Certificate of Merit Blunder Results in Dismissal

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A growing number of states have enacted some version of an “affidavit of merit” statute in professional malpractice matters. The intended purpose behind these laws is to reduce “unnecessary” or unsupported lawsuits.  In states such as Pennsylvania, New Jersey, and others, plaintiffs in malpractice litigation must certify through an impartial professional in the defendant’s field that there is a fundamental basis for the complaint. While the specifics of the particular statute in each state may differ in terms of scope and application, the importance of compliance cannot be overstated.  A pro se litigant in New Jersey recently learned this lesson the hard way.

The issue in D’Agostino v. Drazin & Warshaw, P.C.,  (N.J. Sup. Ct. App. Div. Sept. 13, 2013), was whether the plaintiff had established that his claims were excused from the affidavit of merit requirement as a result of the “common knowledge exception.”  In the underlying dispute, the defendant law firm represented the plaintiff in a slip-and-fall claim.  The plaintiff alleged that he accepted a lower settlement due to the defendant’s malpractice.  Specifically, the plaintiff alleged that the defendant law firm did not sufficiently investigate his claim by obtaining all medical records and failed to call treating physicians as experts. The plaintiff did not file an affidavit of merit and the complaint was dismissed. 

On appeal, the court considered whether the plaintiff’s complaint was exempt from the affidavit of merit requirement based on the common knowledge doctrine.  The court ultimately concluded that dismissal was appropriate because the plaintiff’s allegations concerned the “adequacy” of the defendant’s investigation into the underlying claim and therefore expert testimony was required. While complete failure to conduct a task may fall into the common knowledge exception, the adequacy or level of performance requires the assistance of an expert. The decision was affirmed and the case was dismissed. 

The lesson for the professional malpractice community is to be aware of the potential impact of a plaintiff’s failure to comply with the certificate of merit rules. Defense counsel should calendar any filing requirements and be cognizant of the specific rules in each venue. These important statutes were created to protect professionals and should be utilized when available.