Are New Jersey Courts Modifying the Affidavit of Merit Requirements in Professional Malpractice Cases?

Based on its recent decision in Hill International v. Atlantic City Board of Education, 106 A.3d 487 (App.Div. 2014), the New Jersey Appellate Division had to decide whether the affidavit of merit (AOM) statute should be interpreted to require a supporting AOM from a “like-licensed” professional in all malpractice and negligence cases. The court held that to support claims of malpractice, the AOM must be issued by a professional who is licensed in the same profession as the defendant and that this “like-licensed” requirement applied, even in matters involving architects and engineers, where relevant professional licensing occasionally overlap.

In Hill, representatives of defendant SOSH Architects (SOSH) and the Atlantic City Board of Education (School Board) engaged in discussions for the construction of two schools in Atlantic City, New Jersey. SOSH submitted a proposal for design services to the School Board.

In 2009, the School Board and SOSH entered into a contract for the design of the Richmond Avenue School. Defendant Patrick J. Gallagher, an architect employed by SOSH, participated in the project. SOSH and Gallagher asserted that they both were “registered architects” in New Jersey.

In early 2010, the School Board solicited bids for the construction of the Richmond Avenue School (the Project). Plaintiff Cobra Construction Company, Inc. (Cobra), a general contractor, won that bid. Cobra and the School Board then entered into a construction contract for the Project on March 16, 2010, with a scheduled substantial completion date of August 24, 2011.

Problems arose during the course of construction. Particularly, Cobra alleged that the School Board, SOSH and Gallagher impeded and interfered with its ability to complete the Project on schedule. These impediments allegedly included errors and omissions, lack of coordination in the plans and specifications, and failures to timely grant proper change order and time extension requests.

In January 2013, Cobra filed a complaint in the New Jersey Superior Court, Law Division, against the School Board, SOSH and Gallagher. The complaint alleged that the School Board breached the terms of its agreement with Cobra by removing Cobra from the Project. The complaint further alleged that SOSH and Gallagher wrongfully interfered and induced the School Board to breach the construction contract. It also alleged that the architect defendants negligently deviated from professional standards in the design of the Project and in the administration and oversight of the construction contract.

On March 18, 2013, Cobra issued a two-page AOM from James R. Beach, P.E. His curriculum vitae represented that he had extensive experience in construction claims evaluation and in the analysis of contractor schedules. Beach previously had been retained as an expert in litigation involving delay claims, loss of productivity claims, damage calculations, and project planning and scheduling. He gave numerous lectures on construction claims, construction scheduling, and project administration before the Project Management Institute and the American Society of Civil Engineers.

Fourteen days after the 120-day maximum period for an AOM passed, SOSH and Gallagher moved to dismiss the plaintiff’s claims against them on the basis that Beach’s first AOM did not comply with the AOM statute. After hearing oral argument, the trial court denied the architects’ dismissal motion. In his decision dated December 16, 2013, the motion judge concluded that Beach was qualified to provide an AOM in support of Cobra’s professional malpractice claims against SOSH and Gallagher. In reaching that conclusion, the judge noted that there are overlapping areas of expertise between engineers and architects. The judge’s decision implied that Beach’s own personal areas of expertise overlapped with the architectural work performed by SOSH and Gallagher. SOSH and Gallagher appealed.

In the appeal, the Appellate Division held that the trial court erred in ruling that an AOM issued by the plaintiff’s expert, a licensed engineer, sufficed to support claims of alleged deviations of professional standards of care by the defendant architect. In reaching this conclusion, the court noted that certain exceptions exist for the AOM requirement, including that an AOM from a like-licensed expert is not required in circumstances where the plaintiff’s claims are confined to theories of vicarious liability or agency and do not assert or implicate deviations from the defendant’s professional standard of care.

The court additionally stated that by categorizing architects in N.J.S.A. 2A:53A-26(b) separately from engineers in N.J.S.A. 2A:53A-26(e), Section 26 of the AOM statute acknowledged the distinct professional identities of licensed architects and of licensed engineers. Those distinct professional identities exist even though, subject to certain educational and examination requirements, some engineers are eligible to be additionally licensed as architects, N.J.S.A. 45:3-5.1, and some architects are eligible to be additionally licensed as engineers, N.J.S.A. 45:8-35.1.

Ultimately, because this was a novel issue decided by the Appellate Division, the court remanded the case. It allowed Cobra a reasonable opportunity to procure a suitable AOM from a qualified architect.

The court’s holding in Hill affects professional malpractice and negligence cases that require the filing of an AOM. As seen above, the “like-license” requirement applies even where professional licensing laws overlap, making this requirement more stringent in certain aspects. Hill, however, does not bear much impact on medical malpractice cases because the medical professional drafting the AOM must further satisfy the more stringent specialization requirements for physicians and other health care professionals set forth in the Patients First Act. See, Nicholas v. Mynster, 64 A.3d 536 (N.J. 2013)(holding that the Patients First Act, N.J.S.A. 2A:53A-41, requires that plaintiffs’ medical expert must have the same specialty or subspecialty as defendant physician).

Time will only tell how much the court’s decision in Hill will be a catalyst for the imposition of further filing requirements in professional malpractice cases.

* Jeremy is an associate in our Cherry Hill, New Jersey office. He can be reached at 856.779.6103 or jjzacharias@mdwcg.com.

_{Defense Digest, Vol. 21, No. 2, June 2015}

_{Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2015 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.}