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Statutes in several states require that law suits against design professionals be accompanied by an affidavit of merit by an expert, attesting there is a reasonable probability that the defendant did not exercise the requisite standard of care. The issue to be decided by the court was whether the state statute required each defendant to receive an affidavit specifically naming that defendant and identifying his specific culpability. Where the affidavit failed to identify the defendant by name but instead referred only to the “defendant architects and engineers,” an appellate court held that this was a sufficient affidavit.

The state statute provides: “In any action for damages for personal injuries . . . plaintiff shall . . . provide each defendant with an affidavit of an appropriate licensed person that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional or occupational standards or treatment practices.” This statute was designed, says the court, as a tort reform measure to weed out frivolous lawsuits at an early stage and to allow meritorious cases to go forward. The statute requires that an appropriate licensed professional attest that there exists a reasonable probability that there was a deviation in the standard of care in the activity that is the subject of the complaint against the defendant. In this case, since the affidavit states that there was a deviation from the standard of care by “defendant architects and engineers, respectively,” and since there was no dispute that the firm of “O’Donnell & Naccarato was the only engineering firm who performed the work on the project, the court concluded that it was not necessary under the circumstances to actually name the firm in the affidavit.

Another argument that the court rejected was that the affidavit was too generic and insufficiently specific. The court quoted from a New Jersey Supreme Court decision that stated: “The content of the expert’s affidavit is summary in nature, and the required statement of opinion that the defendant’s work or treatment fell outside acceptable professional standards need not be accompanied by the same detailed explanation and analysis that ordinarily would be contained in an expert’s report required to be furnished pursuant to [the state statutes].” Medeiros v. O’Donnell & Naccarato, Inc., 790 A.2d 969 (N.J. Super. A.D. 2002).

ConstructionRisk.com Report, Vol. 4, No. 8 (Sep 2002)