163170179Would an architect by any other name smell as sweet? The answer is no when it comes to authoring an affidavit of merit in New Jersey. A recent case made clear that an affidavit from a professional licensed in a different field cannot support a professional liability claim, even if they have sufficient expertise in a related or overlapping area of expertise germane to the issue presented.

The New Jersey Legislature enacted the Affidavit of Merit Statute in 1995 to quell spurious litigation against licensed professionals. While the statute may have since achieved some of the desired effect, lawyers have been fighting over the statute’s reach and application since its enactment. Though the legislature probably never intended for the statute to become a subject of protracted litigation, there is a tangled nest of appellate opinions interpreting the statute from nearly every angle. That new law continues to be made, despite the language of the statute remaining essentially unchanged, shows that the statute still – almost 20 years later – breeds litigation uncertainty in very practical and impactful ways.

In an opinion published on December 30, 2014, the New Jersey Appellate Division added some new wrinkles to the already complex body of law on the Affidavit of Merit Statute. In Hill International Inc. v. Atlantic City Board of Education, the affiant was a licensed engineer who found merit to professional negligence claims levied against a licensed architect and the architect’s licensed firm. The statute requires an affidavit from an “appropriate licensed person,” but does not define that term. The trial court found that the engineer was an “appropriate” person to opine on the architect’s negligence because of the overlap between the areas of expertise of the two professions.

After granting leave to appeal, the Appellate Division began by observing that architects and engineers are licensed under separate statutes and that their practices are governed by different licensing boards. Thus, the court concluded that a professional has a right to be confronted with an affidavit from a professional licensed by the same governing statute, even though practical overlaps can be present between multiple professions. As an analogy, the court illustrated that an accountant could not author an affidavit against a lawyer who allegedly prepared a faulty income tax return.

While experts can engage in all manner of extra-professional activities, they must stay within their profession to render an acceptable affidavit of merit.