Affidavit of Merit in Negligence Suit Must Be From Like-Licensed Professional

The Appellate Division recently held that New Jersey’s Affidavit of Merit (AOM) statute requires a supporting AOM from a “like-licensed” professional in all malpractice or negligence cases within the scope of the statute.

Moreover, the requirement applies even where the relevant professional licensure laws overlap to some degree, as was the case in Hill International, Inc. v. Atlantic City Bd. of Educ. Under the Affidavit of Merit Statute, a plaintiff pursuing an action for damages based on professional malpractice must file an affidavit from an “appropriate licensed person,” stating with “reasonable probability” that the defendant’s conduct “fell outside acceptable professional or occupational standards or treatment practices.” The goal is to weed out baseless and nuisance lawsuits, while preserving an aggrieved individual’s right to file suit.

The AOM statute sets forth various professions that are covered by the law. However, as acknowledged by the Appellate Division, the statute does not specifically address the qualifications of an “appropriate licensed person” who is eligible to submit an AOM, except for the more stringent specialization requirements required in medical malpractice cases.

In the instant case, the question was whether an AOM issued by the plaintiff’s affiant, a licensed engineer, was sufficient to support claims that alleged deviations of the professional standards of care by the defendant architect and his architectural firm.

The Court’s Decision

“To support claims of malpractice or negligence liability, the AOM must be issued by an affiant who is licensed within the same profession as the defendant,” the Appellate Division held.

In reaching its decision, the appeals court highlighted that the “‘professional or occupational standards’ referred to in Section 27 are logically the standards of care within the defendant’s own licensed field of endeavor.” As Judge Sabatino further explained, “The statute does not say that the defendant may be evaluated under the standards of another profession, one in which he or she has not secured a license and for which he or she has not subjected himself or herself to the oversight of a different licensing board.”

The Appellate Division did acknowledge that the rule has some leeway, stating: “Minor variations in the scope or terms of the respective licenses held by the affiant and the defendant that do not bear upon material issues in the case will not disqualify the affiant, so long as both professionals are licensed to practice within the same category of professionals listed in the sixteen subsections of N.J.S.A. 2A:53A-26.”

The court further noted that there are circumstances where an AOM is not required at all, such as claims are confined to theories of vicarious liability or agency.

“As the statute and the case law instruct, no AOM will be required if the defendant professional’s allegedly negligent conduct did not involve the exercise of functions within the scope of his or her licensed professional role,” the opinion also highlighted.

Because the court’s decision on this novel issue of law “might not have been readily predicted,” and also because the trial court failed to hold the required conference at which the claimed AOM deficiency could have been identified before the statutory 120-day deadline expired, the court granted leave to plaintiff to submit, on remand, a substitute AOM from a licensed architect.