"Like-licensed" professional rule does not necessarily apply when reviewing the qualifications of testifying experts. Barring plaintiff's expert's report on the eve of trial constitutes exceptional circumstances that warrant a discovery extension.

The New Jersey Appellate Division considered the barring of a plaintiff's expert's report on the eve of trial due to the fact that the report was authored by an engineer but offered against the defendant architectural firm.  It is noted that the report was barred despite the fact that an architect had contributed to the report and authored a supplement to the report, as well.  The motion judge, because the report was being barred just prior to trial, suggested that the plaintiff make an application to adjourn the trial for the purpose of obtaining another expert's report.  That application was made, accompanied by an application to extend discovery, but it was denied by a different judge on the basis that the case had already been dismissed without prejudice and that there had already been 802 days of discovery with five discovery extensions.  The judge hearing the discovery application also ruled that there was no finding of exceptional circumstances as required by New Jersey Court Rule 4:24-1(c). 

Upon review, the Appellate Division considered the "area of concurrent practice between architecture and engineering, specifically in the area of building design," as set forth in the Building Design Services Act, codified at N.J.S.A. 45:4B-1 to -14.  The Appellate Division then held that the motion judge should have considered whether some or all of the claims asserted fell within those areas where the practices of architecture and engineering overlap.  The court also distinguished its holding from its recent "like-licensed" ruling in the matter of Hill International, Inc. v. Atlantic City Board of Education, 2014 N.J. Super. LEXIS 177 (App.Div. December 30, 2014), holding that the "like-licensed" ruling does not apply in this case because it does not concern the requirements of New Jersey's Affidavit of Merit Statute.   As articulated by the Appellate Division, "The admissibility of a proposed expert's trial testimony is governed by the standards in [New Jersey Rule of Evidence] 702, not the [Affidavit of Merit] Statute."  The Appellate Division then reversed the trial court's order barring substantially all of the plaintiff's report and remanded the matter to the trial court for reconsideration on the defendant's motion to strike, which had been granted subsequent to the barring of the plaintiff's expert's report.

The Appellate Division also ruled that barring the plaintiff's expert's report on the eve of trial had constituted "exceptional circumstances" that warranted an extension of the discovery deadline, particularly in light of the fact that the motion had not been filed until after the close of discovery, and that, therefore, the requested discovery extension should have been granted. 

_{Case Law Alerts, 2^nd Quarter, April 2015}

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