The New Jersey Affidavit of Merit Statute, N.J.S.A. 2A:53A-26 to -29, requires a plaintiff in a professional negligence action to file an affidavit from an  “appropriate licensed person” attesting that the defendant deviated from the acceptable standards  for the pro- fession, or the matter will be dismissed. The 2004 amendments to the Affidavit of  Merit (“AOM”) statute were designed to tighten the requirements for the AOM in medical malpractice  cases, requiring that experts practice in the “same specialty” within med- ical fields. The latest  appellate decision addressing this statute, Hill International, Inc. v. Atlantic City Board of  Education, A-4139 -13T3 (December 30, 2014), moves in the same direction and tightens the AOM requirements in a way that should allow other professional malpractice defendants,  including architects, attor- neys, and engineers, to obtain early dismissal of some actions.

The AOM statute requires the plaintiff to file the AOM within 60 days after the first answer is  filed, with one 60-day extension available. Before  this  120-day  period  expires,  the  trial   court is required to hold a Ferreira case management conference1 to determine if an AOM has been  filed and whether there are any objections to it.

The plaintiff in Hill was a General Contractor retained by the School Board to construct a school  (the “Project”). The Project experienced significant delays and the General Contractor was fired  from the Project. After being fired, the General Contractor brought an action against the Architect  the School Board retained to provide design and contract administration services on the Project.  The General Contractor asserted professional negligence claims against, among others, the Architect. In support of these professional negligence claims, the General Contractor filed an AOM prepared by a licensed  professional engineer, attessting the Architect was negligent with respect to “certain design  issues” and “contract administration.” The trial court did not hold a Ferreira conference and,  after 120 days, the Architect moved to dismiss the complaint. The trial court denied the motion,  holding that there is significant overlap in the areas of expertise and training between engineers  and architects that allowed the affiant engineer to submit an AOM with respect to the alleged  professional negli- gence of the architect. The Architect was granted leave for an interlocutory  appeal.

The Appellate Division held that this case presented a novel ques- tion as to the definition of an  “appropriately licensed person.” The Court noted, while this term is not defined within Section 27  of the Act, Section 26 enumerates in sub-parts the various profes- sions covered by the Act,  identifying architects and engineers sep- arately. Further, engineers and architects are licensed  and regulat- ed by separate professional boards and are subject to different statutory provisions.  While there is some overlap between the professions (and there are statutory provisions allowing  for engi- neers to be licensed as architects and vice versa), they remain separate professions. The  Court compared it to a nurse opining on a doctor’s failure to take blood pressure properly -- both  are trained to do it, but a nurse is not an “appropriately licensed” person to opine on a doctor’s negligence.

Accordingly, the Court held the AOM statute requires that the AOM be provided by a person who holds the same license as the defend- ant. The Court also held that an  AOM is not required for other dis- crete claims committed by a professional, such as non-negligence  based tort or vicarious liability claims that do not implicate the standards for the profession.  Because the trial court did not hold a Ferreira conference, the matter was remanded to allow the  court to hold the conference after providing the General Contractor with time to submit a new AOM.

We recommend that all licensed  professionals defending against negligence claims request a  Ferreira conference as soon as possi- ble. Additionally, counsel should focus on the AOM and  determine if the affiant and the allegedly negligent professionals operate within separately  regulated professions. We have found, for example, that it is common practice for an AOM issued by  a nurse in a nursing home malpractice action to opine on various issues beyond simply nursing  functions, such as staffing, or policy and procedure issues. Nurses and nursing home administrators, however, are separately licensed (and also separately identified in Section 26 of the Act). In light of the Hill decision,  a motion to dismiss might be appropriate in these cases except for the most directly connected; at  a mini- mum, you might be able to eliminate some claims or defendants.