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Is it Time for an Affidavit of Merit Requirement Against Design Professionals in New York?

08.06.19  |  By Lee J. Sacket

Frivolous lawsuits against design professionals are an ongoing concern and, based on this author’s observations, on the rise.  Advances in technology have created larger masses of data and documents, sending discovery costs skyrocketing.  Correspondingly, with higher discovery costs, comes leverage by claimants to settle cases on a “cost of defense” basis.  Since State Courts are generally reluctant to grant pre-discovery dismissals, exposing the design professionals (and the insurance carriers) to these rising discovery costs, settlement becomes an attractive financial option.  However, this circular process invites more and more claimants to commence frivolous lawsuits, betting that there will be some “recovery” (i.e., settlement) regardless of the merit (or lack thereof) of the claim.  This brings us to the present dilemma: what can be done to weed out frivolous lawsuits against design professionals?  A legislative, procedural tool implemented in many states, but not New York, is the Affidavit of Merit requirement.   Is it time for New York to follow suit? 

In general, an Affidavit of Merit is an Affidavit executed by a licensed design professional affirming under oath that the design professional’s services were negligent and/or breached the applicable standard of care.  It is a device used by many states as a condition precedent to commencing, or proceeding with, a lawsuit against a design professional, with the intent to eliminate meritless claims against design professionals without the need to incur the expenses associated with costly discovery.  States with a version of an Affidavit of Merit requirement include Arizona, California, Colorado, Georgia, Hawaii, Kansas, Minnesota, New Jersey, Oregon, Pennsylvania, South Carolina and Texas.

In some states with an Affidavit of Merit requirement, a design professional can move to dismiss a Complaint should a claimant fail to file an Affidavit of Merit, or if the Affidavit fails to satisfy certain elements, which vary from state to state.  The impact of the dismissal (with or without prejudice) also varies from state to state, with some states allowing a claimant the opportunity to cure any deficiency within the affidavit, rather than outright dismiss the lawsuit. 

Since no one can honestly advocate that a frivolous claim is a good thing for our judicial system, why doesn’t every state have an Affidavit of Merit requirement? In some states, Affidavit of Merit requirements have been challenged as unconstitutional inasmuch as the requirement arguably infringes on a party’s right to sue and violates equal protection guarantees.  Other arguments championed in opposition cite to a lack of information at the early stages of litigation, which preclude an early determination as to fault and which could render compliance with Affidavit of Merit requirements problematic.  In this same regard, claimants have argued that they may not have pre-discovery access to certain evidence, such as drawings, specifications, etc., which may be necessary for an independent design professional to provide an informed opinion in an Affidavit of Merit. 

While an Affidavit of Merit requirement in New York, in concept, appears to be a no-brainer from the design professional’s perspective, whether it would actually reduce the number of frivolous lawsuits remains uncertain.  From a practical perspective, an Affidavit of Merit requirement is only as good as the system charged with enforcing it, specifically, the Courts.  While certainly not predictive, a look at the New Jersey Court’s treatment of the Affidavit of Merit requirement in neighboring New Jersey can be informative.  The New Jersey Affidavit of Merit Statute, N.J.S.A. 2A:53-27 reads:

In any action for damages for personal injuries, wrongful death or property damage resulting from an alleged act of malpractice or negligence by a licensed person in his profession or occupation, the plaintiff shall, within 60 days following the date of filing of the answer to the complaint by the defendant, 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. . . .
In all other cases, the person executing the affidavit shall be licensed in this or any other state; have particular expertise in the general area or specialty involved in the action, as evidenced by board certification or by devotion of the person's practice substantially to the general area or specialty involved in the action for a period of at least five years.  The person shall have no financial interest in the outcome of the case under review, but this prohibition shall not exclude the person from being an expert witness in the case. 

On its face, the statute is clearly intended to protect design professionals from frivolous lawsuits by requiring a modest showing, through a licensed, financially uninterested design professional, of a departure from the accepted standard of care.  However, challenges over the years have weakened the statute beyond recognition.  New Jersey Court decisions have created exceptions for “extraordinary circumstances” and “substantial compliance” so that “technical defects will not defeat valid claims”.  New Jersey Courts cite to these “exceptions” to “temper the draconian results of an inflexible application of the statute”.  While the New Jersey Courts treatment and interpretation of the statute is not uniform, through the creation of these “exceptions”, the damage has been done.  The New Jersey Court’s self-mutilation of the Affidavit of Merit Statute is instructive that the legislative imposition of an Affidavit of Merit requirement does not guarantee the intended result.

The bottom line is that an Affidavit of Merit requirement in New York is not the likely game changer it was once thought to be, or some hoped it would be.  Instead, it will take a concerted effort from the legislators and the Courts, in the drafting of statutory requirements and corresponding enforcement, and the insurance companies and design professionals themselves, in their litigation behavior in response to meritless lawsuits, to curb the conduct of the frivolous litigant.  Only when those forces act in concert will litigants pause, even ever so slightly, before filing a questionable lawsuit.  

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