Common Knowledge Exception to Affidavit of Merit Rule

Your friends at Professional Liability Matters often focus on interpretation of Affidavit of Merit (“AOM”) requirements. As our handy table shows, each state has its own rules as to AOM requirements and other details regarding substance and form.  These rules are of critical importance to many malpractice claims.  Most states require an AOM from a professional within the same field certifying that the malpractice case has merit.  This is a necessary gateway function so that litigants cannot sue professionals without any justification. Implicit in this requirement is that the typical fact-finder may not understand the appropriate standard of care, and therefore must rely upon professionals within the field.  However, in some cases, an expert opinion may not be necessary to understand how the standard of care was breached.  In some states this qualifies as an exception to the AOM requirement. Take for example the following case out of New Jersey which applied the common knowledge exception to the AOM requirement.

The malpractice suit arose from legal representation of Bayway Lumber, Inc. in a real estate transaction.  Bayway exercised the “serious defect” clause in its contract of sale to purchase a piece of property after it discovered contaminated groundwater on the land. After Bayway backed out of the deal, Seller disputed the existence of contaminated groundwater and pressed Bayway’s attorneys to follow through with the agreement. However, Bayway’s attorneys allegedly never notified Bayway of the Seller’s communications. The Seller then sued Bayway for breach of contract. Bayway subsequently turned on its own attorneys and sued for malpractice.

Bayway’s malpractice suit included claims that its attorneys failed to comply with Bayway’s request to name a single-purpose LLC as the purchaser of the property, failed to suggest Bayway hire new counsel when it was sued over the transaction, failed to explain the impact of a “serious defect” clause in the contract, failed to respond to requests by the seller to confirm a closing date, and failed to advise Bayway of communications received from the seller after Bayway recused on the contract.

Bayway, never submitted an AOM and the case was dismissed by the trial judge.

On appeal the court determined that Bayway’s claim that its attorneys failed to communicate with Bayway and the seller amounted to errors that jurors of “average intelligence and ordinary experience” could understand, and therefore there was no need for an expert’s opinion. But, the court concluded that the other claims were beyond the knowledge of an average juror and thus required expert testimony.  The appeals court reinstated the portion of Bayway’s claims pertaining to lack of communication pursuant to the common knowledge exception of the AOM. Accordingly, some of the claim survived.

This case provides further support for the concept that AOM rules can have a major impact on malpractice litigation. Knowing when an AOM is required and to what extent, as well as recognizing when the other side has failed to comply with the rules is essential to being successful.