A construction contractor on a design-build wastewater treatment construction project filed suit against the engineering firms that had entered with them into the design-build venture.  A Georgia state statute requires that an expert affidavit be filed with a complaint alleging professional malpractice.  The contractor failed to file such an affidavit with its complaint, and the trial court dismissed the case without prejudice.

Since the dismissal was without prejudice, this meant that the contractor could potentially re-file the complaint again with a properly executed affidavit.  The engineers pre-empted action, however, by filing an appeal asking the appellate court to go beyond the trial court’s remedy and direct that the case be dismissed with prejudice so that the contractor could not file its case again.

In reviewing the matter, the appellate court remanded the case to the trial court to enter judgment of dismissal with prejudice.  The court agreed with the engineers arguments that a plaintiff who brings an action alleging professional malpractice must file with the complaint an expert’s affidavit.  The affidavit must set forth at least one negligent act or omission and the factual basis for the claim.  “If the required affidavit is not filed with the complaint, the complaint is subject to dismissal for failure to state a claim.  A dismissal for failure to state a claim is a dismissal on the merits and is with prejudice.”   Jordan, Jones & Goulding v. Balfour Beatty Construction, 2000 WL 1364215, 246 Ga.App. 93.

NOTE:  This case focused on statutory language and was decided strictly on the basis on how that language was to be interpreted and applied.  The statutes vary in the different states, and the timing of when an expert affidavit must be filed may be different depending upon the jurisdiction.  Even if not required by statute to be filed with the complaint, however, an expert’s testimony is almost always required if a judge or jury is being called upon to decide whether a design professional performed its services negligently.  To prove negligence, the plaintiff  must present evidence that the designer did not comply with the generally accepted standard of care. Expert testimony is necessary to prove the standard of care and that it was violated by the defendant.   For newsletter articles analyzing cases on that point, please see the A/E Briefings subject index on the first page of the ConstructionRisk.com website.

Copyright 2001, ConstructionRisk.com, LLC – Virginia

About the author: Article written by J. Kent Holland, Jr.,  a construction lawyer located in Tysons Corner, Virginia,  with a national practice (formerly with Wickwire Gavin, P.C. and now with Construction Risk Counsel, PLLC) representing design professionals, contractors and project owners.  He is founder and president of a consulting firm, ConstructionRisk, LLC, providing consulting services to owners, design professionals, contractors and attorneys on construction projects.  He is publisher of ConstructionRisk.com Report and may be reached at Kent@ConstructionRisk.com or by calling 703-623-1932.  This article is published in ConstructionRisk.com Report, Vol. 3, No. 3 (May/Jun 2001).