DONATO, MINX, BROWN & POOL, P.C. MEMORANDUM

Certificate of Merit Statutes

Professional associations representing design professionals have, for a number of years,

promoted legislation that requires plaintiffs to obtain an opinion from a professional consultant before

instituting suit against a design professional. These statutes are often referred to as “certificate of merit”

laws. In general, these laws require a plaintiff to obtain an opinion from a design professional

confirming that its claim for professional negligence has merit. Most statutory schemes require the

plaintiff’s complaint to be dismissed in the event the requisite certificate is not obtained.

About a quarter of the states have enacted certificate of merit statutes.1 These statutes differ

widely in scope, dependent on a broad number of issues. In addition, Hawaii and Kansas have enacted

laws requiring plaintiffs to submit claims against professionals with an independent review board before

filing the suit against a licensed professional. Constitutional challenges to these statutes have produced

mixed results.

The following states require a certificate of merit or submission to an independent review board

for professional negligence claims:

Arizona California Colorado Georgia

Hawaii Kansas Maryland* Minnesota

Nevada New Jersey Oklahoma* Oregon

Pennsylvania* South Carolina Texas

The following states do not require a certificate of merit for professional negligence claims:

Alabama* Alaska Arkansas* Connecticut

Delaware Florida Idaho Illinois

Indiana Iowa Kentucky Louisiana

Maine Massachusetts Michigan Mississippi*

Missouri Montana Nebraska New Hampshire

New Mexico New York North Carolina* North Dakota

Ohio Rhode Island South Dakota Tennessee

Utah Vermont Virginia Washington

Washington, DC West Virginia Wisconsin Wyoming

*Denotes recent legislative activity related to certificate of merit statute. See Appendix: States to Watch.

1 This memorandum does not discuss certificate of merit statutes related to healthcare/medical malpractice claims. All

statutes are current as of November 24, 2014.

2

TABLE OF CONTENTS

ARIZONA 3

CALIFORNIA 5

COLORADO 7

GEORGIA 9

HAWAII 11

KANSAS 12

MARYLAND 13

MINNESOTA 15

NEVADA 17

NEW JERSEY 19

OKLAHOMA 20

OREGON 22

PENNSYLVANIA 24

SOUTH CAROLINA 27

TEXAS 30

APPENDIX: STATES TO WATCH 32

3

ARIZONA

Arizona Revised Statutes Annotated

Title 12. Courts and Civil Proceedings

Chapter 17. Claims Against Licensed Professionals (Refs & Annos)

Article 1. General Provisions (Refs & Annos)

A.R.S. § 12-2602

§ 12-2602. Preliminary expert opinion testimony; certification

A. If a claim against a licensed professional is asserted in a civil action, the claimant or the claimant’s attorney shall certify in

a written statement that is filed and served with the claim whether or not expert opinion testimony is necessary to prove the

licensed professional’s standard of care or liability for the claim.

B. If the claimant or the claimant’s attorney certifies pursuant to subsection A that expert opinion testimony is necessary, the

claimant shall serve a preliminary expert opinion affidavit with the initial disclosures that are required by rule 26.1, Arizona

rules of civil procedure. The claimant may provide affidavits from as many experts as the claimant deems necessary. The

preliminary expert opinion affidavit shall contain at least the following information:

1. The expert’s qualifications to express an opinion on the licensed professional’s standard of care or liability for the claim.

2. The factual basis for each claim against a licensed professional.

3. The licensed professional’s acts, errors or omissions that the expert considers to be a violation of the applicable standard of

care resulting in liability.

4. The manner in which the licensed professional’s acts, errors or omissions caused or contributed to the damages or other

relief sought by the claimant.

C. The court may extend the time for compliance with this section on application and good cause shown or by stipulation of

the parties to the claim. If the court extends the time for compliance, the court may also adjust the timing and sequence of

disclosures that are required from the licensed professional against whom the claim is asserted.

D. If the claimant or the claimant’s attorney certifies that expert testimony is not required for its claim and the licensed

professional who is defending the claim disputes that certification in good faith, the licensed professional may apply by

motion to the court for an order requiring the claimant to obtain and serve a preliminary expert opinion affidavit under this

section. In its motion, the licensed professional shall identify the following:

1. The claim for which it believes expert testimony is needed.

2. The prima facie elements of the claim.

3. The legal or factual basis for its contention that expert opinion testimony is required to establish the standard of care or

liability for the claim.

4

E. After considering the motion and any response, the court shall determine whether the claimant shall comply with this

section and, if the court deems that compliance is necessary, shall set a date and terms for compliance. The court shall stay all

other proceedings and applicable time periods concerning the claim pending the court’s ruling on the motion to compel

compliance with this section.

F. The court, on its own motion or the motion of the licensed professional, shall dismiss the claim against the licensed

professional without prejudice if the claimant fails to file and serve a preliminary expert opinion affidavit after the claimant

or the claimant’s attorney has certified that an affidavit is necessary or the court has ordered the claimant to file and serve an

affidavit.

G. A claimant may supplement a claim or preliminary expert opinion affidavit with additional claims, evidence or expert

opinions that are timely disclosed under the Arizona rules of civil procedure or pursuant to court order. An action under this

chapter does not preclude a party from using a preliminary expert opinion affidavit for any purpose, including impeachment.

Credits

Added by Laws 1999, Ch. 194, § 3.

A. R. S. § 12-2602, AZ ST § 12-2602

Current through the Second Regular and Second

Special Sessions of the Fifty-first Legislature

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5

CALIFORNIA

West’s Annotated California Codes

Code of Civil Procedure (Refs & Annos)

Part 2. Of Civil Actions (Refs & Annos)

Title 5. Jurisdiction and Service of Process (Refs & Annos)

Chapter 2. Commencing Civil Actions (Refs & Annos)

West’s Ann.Cal.C.C.P. § 411.35

§ 411.35. Malpractice actions; architects, engineers, or surveyors; certificate of review and consultation; res ipsa loquitur

exception; failure to file

Effective: January 1, 2000

(a) In every action, including a cross-complaint for damages or indemnity, arising out of the professional negligence of a

person holding a valid architect’s certificate issued pursuant to Chapter 3 (commencing with Section 5500) of Division 3 of

the Business and Professions Code, or of a person holding a valid registration as a professional engineer issued pursuant to

Chapter 7 (commencing with Section 6700) of Division 3 of the Business and Professions Code, or a person holding a valid

land surveyor’s license issued pursuant to Chapter 15 (commencing with Section 8700) of Division 3 of the Business and

Professions Code on or before the date of service of the complaint or cross-complaint on any defendant or cross-defendant,

the attorney for the plaintiff or cross-complainant shall file and serve the certificate specified by subdivision (b).

(b) A certificate shall be executed by the attorney for the plaintiff or cross-complainant declaring one of the following:

(1) That the attorney has reviewed the facts of the case, that the attorney has consulted with and received an opinion from at

least one architect, professional engineer, or land surveyor who is licensed to practice and practices in this state or any other

state, or who teaches at an accredited college or university and is licensed to practice in this state or any other state, in the

same discipline as the defendant or cross-defendant and who the attorney reasonably believes is knowledgeable in the

relevant issues involved in the particular action, and that the attorney has concluded on the basis of this review and

consultation that there is reasonable and meritorious cause for the filing of this action. The person consulted may not be a

party to the litigation. The person consulted shall render his or her opinion that the named defendant or cross-defendant was

negligent or was not negligent in the performance of the applicable professional services.

(2) That the attorney was unable to obtain the consultation required by paragraph (1) because a statute of limitations would

impair the action and that the certificate required by paragraph (1) could not be obtained before the impairment of the action.

If a certificate is executed pursuant to this paragraph, the certificate required by paragraph (1) shall be filed within 60 days

after filing the complaint.

(3) That the attorney was unable to obtain the consultation required by paragraph (1) because the attorney had made three

separate good faith attempts with three separate architects, professional engineers, or land surveyors to obtain this

consultation and none of those contacted would agree to the consultation.

(c) Where a certificate is required pursuant to this section, only one certificate shall be filed, notwithstanding that multiple

defendants have been named in the complaint or may be named at a later time.

(d) Where the attorney intends to rely solely on the doctrine of “res ipsa loquitur,” as defined in Section 646 of the Evidence

Code, or exclusively on a failure to inform of the consequences of a procedure, or both, this section shall be inapplicable. The

attorney shall certify upon filing of the complaint that the attorney is solely relying on the doctrines of “res ipsa loquitur” or

failure to inform of the consequences of a procedure or both, and for that reason is not filing a certificate required by this

6

section.

(e) For purposes of this section, and subject to Section 912 of the Evidence Code, an attorney who submits a certificate as

required by paragraph (1) or (2) of subdivision (b) has a privilege to refuse to disclose the identity of the architect,

professional engineer, or land surveyor consulted and the contents of the consultation. The privilege shall also be held by the

architect, professional engineer, or land surveyor so consulted. If, however, the attorney makes a claim under paragraph (3) of

subdivision (b) that he or she was unable to obtain the required consultation with the architect, professional engineer, or land

surveyor, the court may require the attorney to divulge the names of architects, professional engineers, or land surveyors

refusing the consultation.

(f) A violation of this section may constitute unprofessional conduct and be grounds for discipline against the attorney,

except that the failure to file the certificate required by paragraph (1) of subdivision (b), within 60 days after filing the

complaint and certificate provided for by paragraph (2) of subdivision (b), shall not be grounds for discipline against the

attorney.

(g) The failure to file a certificate in accordance with this section shall be grounds for a demurrer pursuant to Section 430.10

or a motion to strike pursuant to Section 435.

(h) Upon the favorable conclusion of the litigation with respect to any party for whom a certificate of merit was filed or for

whom a certificate of merit should have been filed pursuant to this section, the trial court may, upon the motion of a party or

upon the court’s own motion, verify compliance with this section, by requiring the attorney for the plaintiff or cross-

complainant who was required by subdivision (b) to execute the certificate to reveal the name, address, and telephone number

of the person or persons consulted with pursuant to subdivision (b) that were relied upon by the attorney in preparation of the

certificate of merit. The name, address, and telephone number shall be disclosed to the trial judge in an in-camera proceeding

at which the moving party shall not be present. If the trial judge finds there has been a failure to comply with this section, the

court may order a party, a party’s attorney, or both, to pay any reasonable expenses, including attorney’s fees, incurred by

another party as a result of the failure to comply with this section.

(i) For purposes of this section, “action” includes a complaint or cross-complaint for equitable indemnity arising out of the

rendition of professional services whether or not the complaint or cross-complaint specifically asserts or utilizes the terms

“professional negligence” or “negligence.”

Credits

(Added by Stats.1979, c. 973, p. 3334, § 1. Amended by Stats.1983, c. 414, § 1; Stats.1986, c. 1231, § 1; Stats.1988, c. 1070,

§ 1; Stats.1990, c, 204 (S.B.2089), § 1; Stats.1991, c. 272 (S.B.527), § 1; Stats.1995, c. 241 (S.B.934), § 1; Stats.1999, c. 176

(A.B.540), § 1.)

West’s Ann. Cal. C.C.P. § 411.35, CA CIV PRO § 411.35

Current with urgency legislation through Ch. 931 of

2014 Reg.Sess., Res. Ch. 1 of 2013-2014 2nd

Ex.Sess., and all propositions on 2014 ballots

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7

COLORADO

West’s Colorado Revised Statutes Annotated

Title 13. Courts and Court Procedure

Damages

Regulation of Actions and Proceedings

Article 20. Actions

Part 6. Actions Against Licensed Professionals (Refs & Annos)

C.R.S.A. § 13-20-602

§ 13-20-602. Actions against licensed professionals and acupuncturists--certificate of review required

(1)(a) In every action for damages or indemnity based upon the alleged professional negligence of an acupuncturist regulated

pursuant to article 29.5 of title 12, C.R.S., or a licensed professional, the plaintiff’s or complainant’s attorney shall file with

the court a certificate of review for each acupuncturist or licensed professional named as a party, as specified in subsection

(3) of this section, within sixty days after the service of the complaint, counterclaim, or cross claim against such person

unless the court determines that a longer period is necessary for good cause shown.

(b) A certificate of review shall be filed with respect to every action described in paragraph (a) of this subsection (1) against a

company or firm that employed a person specified in such paragraph (a) at the time of the alleged negligence, even if such

person is not named as a party in such action.

(2) In the event of failure to file a certificate of review in accordance with this section and if the acupuncturist or licensed

professional defending the claim believes that an expert is necessary to prove the claim of professional negligence, the

defense may move the court for an order requiring filing of such a certificate. The court shall give priority to deciding such a

motion, and in no event shall the court allow the case to be set for trial without a decision on such motion.

(3)(a) A certificate of review shall be executed by the attorney for the plaintiff or complainant declaring:

(I) That the attorney has consulted a person who has expertise in the area of the alleged negligent conduct; and

(II) That the professional who has been consulted pursuant to subparagraph (I) of this paragraph (a) has reviewed the known

facts, including such records, documents, and other materials which the professional has found to be relevant to the

allegations of negligent conduct and, based on the review of such facts, has concluded that the filing of the claim,

counterclaim, or cross claim does not lack substantial justification within the meaning of section 13-17-102(4).

(b) The court, in its discretion, may require the identity of the acupuncturist or licensed professional who was consulted

pursuant to subparagraph (I) of paragraph (a) of this subsection (3) to be disclosed to the court and may verify the content of

such certificate of review. The identity of the professional need not be identified to the opposing party or parties in the civil

action.

(c) In an action alleging professional negligence of a physician, the certificate of review shall declare that the person

consulted meets the requirements of section 13-64-401; or in any action against any other professional, that the person

consulted can demonstrate by competent evidence that, as a result of training, education, knowledge, and experience, the

consultant is competent to express an opinion as to the negligent conduct alleged.

8

(4) The failure to file a certificate of review in accordance with this section shall result in the dismissal of the complaint,

counterclaim, or cross claim.

(5) These provisions shall not affect the rights and obligations under section 13-17-102.

Credits

Added by Laws 1987, H.B.1201, § 1, eff. July 1, 1987. Amended by Laws 1989, H.B.1284, § 1, eff. April 12, 1989; Laws

1995, H.B.95-1182, § 6, eff. Jan. 1, 1996; Laws 1998, Ch. 165, § 1, eff. Feb. 1, 1999.

C. R. S. A. § 13-20-602, CO ST § 13-20-602

Current through the Second Regular Session of the

Sixty-Ninth General Assembly (2014)

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9

GEORGIA

West’s Code of Georgia Annotated

Title 9. Civil Practice

Chapter 11. Civil Practice Act (Refs & Annos)

Article 3. Pleadings and Motions

Ga. Code Ann., § 9-11-9.1

§ 9-11-9.1. Affidavit of expert to be filed with complaint in action for damages alleging professional malpractice

Effective: July 1, 2007

(a) In any action for damages alleging professional malpractice against:

(1) A professional licensed by the State of Georgia and listed in subsection (g) of this Code section;

(2) A domestic or foreign partnership, corporation, professional corporation, business trust, general partnership, limited

partnership, limited liability company, limited liability partnership, association, or any other legal entity alleged to be liable

based upon the action or inaction of a professional licensed by the State of Georgia and listed in subsection (g) of this Code

section; or

(3) Any licensed health care facility alleged to be liable based upon the action or inaction of a health care professional

licensed by the State of Georgia and listed in subsection (g) of this Code section,

The plaintiff shall be required to file with the complaint an affidavit of an expert competent to testify, which affidavit shall

set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim.

(b) The contemporaneous affidavit filing requirement pursuant to subsection (a) of this Code section shall not apply to any

case in which the period of limitation will expire or there is a good faith basis to believe it will expire on any claim stated in

the complaint within ten days of the date of filing the complaint and, because of time constraints, the plaintiff has alleged that

an affidavit of an expert could not be prepared. In such cases, if the attorney for the plaintiff files with the complaint an

affidavit in which the attorney swears or affirms that his or her law firm was not retained by the plaintiff more than 90 days

prior to the expiration of the period of limitation on the plaintiff’s claim or claims, the plaintiff shall have 45 days after the

filing of the complaint to supplement the pleadings with the affidavit. The trial court shall not extend such time for any

reason without consent of all parties. If either affidavit is not filed within the periods specified in this Code section, or it is

determined that the law firm of the attorney who filed the affidavit permitted in lieu of the contemporaneous filing of an

expert affidavit or any attorney who appears on the pleadings was retained by the plaintiff more than 90 days prior to the

expiration of the period of limitation, the complaint shall be dismissed for failure to state a claim.

(c) This Code section shall not be construed to extend any applicable period of limitation, except that if the affidavits are filed

within the periods specified in this Code section, the filing of the affidavit of an expert after the expiration of the period of

limitations shall be considered timely and shall provide no basis for a statute of limitations defense.

(d) If a complaint alleging professional malpractice is filed without the contemporaneous filing of an affidavit as permitted by

subsection (b) of this Code section, the defendant shall not be required to file an answer to the complaint until 30 days after

the filing of the affidavit of an expert, and no discovery shall take place until after the filing of the answer.

(e) If a plaintiff files an affidavit which is allegedly defective, and the defendant to whom it pertains alleges, with specificity,

by motion to dismiss filed on or before the close of discovery, that said affidavit is defective, the plaintiff’s complaint shall

be subject to dismissal for failure to state a claim, except that the plaintiff may cure the alleged defect by amendment

pursuant to Code Section 9-11-15 within 30 days of service of the motion alleging that the affidavit is defective. The trial

court may, in the exercise of its discretion, extend the time for filing said amendment or response to the motion, or both, as it

shall determine justice requires.

(f) If a plaintiff fails to file an affidavit as required by this Code section and the defendant raises the failure to file such an

affidavit by motion to dismiss filed contemporaneously with its initial responsive pleading, such complaint shall not be

10

subject to the renewal provisions of Code Section 9-2-61 after the expiration of the applicable period of limitation, unless a

court determines that the plaintiff had the requisite affidavit within the time required by this Code section and the failure to

file the affidavit was the result of a mistake.

(g) The professions to which this Code section shall apply are:

(1) Architects;

(2) Attorneys at law;

(3) Audiologists;

(4) Certified public accountants;

(5) Chiropractors;

(6) Clinical social workers;

(7) Dentists;

(8) Dietitians;

(9) Land surveyors;

(10) Marriage and family therapists;

(11) Medical doctors;

(12) Nurses;

(13) Occupational therapists;

(14) Optometrists;

(15) Osteopathic physicians;

(16) Pharmacists;

(17) Physical therapists;

(18) Physicians’ assistants;

(19) Podiatrists;

(20) Professional counselors;

(21) Professional engineers;

(22) Psychologists;

(23) Radiological technicians;

(24) Respiratory therapists;

(25) Speech-language pathologists; or

(26) Veterinarians.

Credits

Laws 1987, p. 887, § 3; Laws 1989, p. 419, § 3; Laws 1997, p. 916, § 1; Laws 2005, Act 1, § 3, eff. Feb. 16, 2005; Laws

2006, Act 453, § 9(1), eff. April 14, 2006; Laws 2007, Act 125, § 1, eff. July 1, 2007.

Ga. Code Ann., § 9-11-9.1, GA ST § 9-11-9.1

Current through Acts 343 to 669 of the 2014

Regular Session.

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11

HAWAII

West's Hawai‘i Revised Statutes Annotated

Division 4. Courts and Judicial Proceedings

Title 36. Civil Remedies and Defenses and Special Proceedings

[Chapter 672B]. Design Claim Conciliation Panel (Refs & Annos)

HRS § 672B-5

[§ 672B-5]. Review by panel required; notice; presentation of claims; request for a more definite statement of the claim

(a) Effective January 1, 2008, any person or the person's representative claiming that a tort has been committed by a design

professional shall submit a statement of the claim to the design claim conciliation panel before a suit based on the claim

may be commenced in any court of this State. Claims shall be submitted to the design claim conciliation panel in writing.

The claimant shall set forth facts upon which the claim is based and shall include the names of all parties against whom

the claim is or may be made who are then known to the claimant.

(b) Within five business days thereafter the panel shall give notice of the claim and the statement of the claim, by certified

mail, to all design professionals and others who are or may be parties to the claim and shall furnish copies of written

claims to these persons. The notice shall set forth a date, not more than twenty days after mailing the notice, within

which any design professional against whom a claim is made shall file a written response to the claim, and a date and

time, not less than fourteen days following the last date for filing a response, for a hearing of the panel. The notice shall

describe the nature and purpose of the panel's proceedings and shall designate the place of the meeting. The times

originally set forth in the notice may be enlarged by the chairperson, on due notice to all parties, for good cause.

(c) If the statement of the claim in the notice is so vague or ambiguous that any party receiving notice of the claim cannot

reasonably be required to frame a written response, the party may submit a written request to the chairperson for a more

definite statement before filing the written response. Copies of the request shall be provided to the panel, the claimant,

and other affected parties. The request, which shall be ex parte and stay the proceedings of the panel until notice of the

chairperson's decision is given to the panel and all parties, shall specify the defects complained of and the details desired.

The chairperson may deny, grant, or modify the request at the chairperson's own discretion, without the necessity of a

hearing, although the chairperson may reach a decision after consulting with the panel or the claimant. The chairperson

shall provide notice of the decision to the panel, the claimant, and other affected parties. If the request is granted and the

claimant fails to provide a more definite statement of the claim within five days after notice of the decision, the panel

may make an order as it deems just. This subsection shall not be used as a tactic to delay the proceedings.

Credits

Laws 2007, ch. 207, § 2, eff. Jan. 1, 2008.

H R S § 672B-5, HI ST § 672B-5

Current through Act 235 [End] of the 2014 Regular Session of the Hawai'i Legislature.

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12

KANSAS

West’s Kansas Statutes Annotated

Chapter 60. Procedure, Civil

Article 35. Professional Malpractice Liability Screening Panels

K.S.A. 60-3502

60-3502. Convening of screening panel; selection of members; list of professional licensees to be maintained by state

agencies

(a) If a professional malpractice liability action is filed in a district court of this state and one of the parties to the action

requests, by filing a memorandum with the court, that a professional malpractice screening panel be convened, the judge of

the district court shall convene a professional malpractice screening panel, hereafter referred to as the screening panel. If a

claim for damages arising out of the rendering of or failure to render services by a professional licensee has not been

formalized by the filing of a petition, any party affected by such claim may request, by filing a memorandum with the court,

that a screening panel be convened and, if such request is made, the judge of the district court shall convene a screening

panel. If a petition or claim is filed naming more than one defendant or more than one person against whom a claim is being

made, each defendant or person is entitled to request a separate screening panel.

(b) The membership of the screening panel shall be selected as follows: (1) A person licensed in the same profession as the

defendant or person against whom the claim is filed, designated by the defendant or by the person against whom the claim is

made if no petition has been filed; (2) a person licensed in the same profession as the defendant or person against whom the

claim is filed, designated by the plaintiff or by the claimant if no petition has been filed; (3) a person licensed in the same

profession as the defendant or person against whom the claim is filed, selected jointly by the plaintiff and the defendant or by

the claimant and the person against whom the claim is made, if no petition has been filed; and (4) an attorney selected by the

judge of the district court from a list of attorneys maintained by the judge of the district court for such purpose. Such attorney

shall be a nonvoting member of the screening panel but shall act as chairperson of the screening panel.

(c) The state agency which licenses, registers, certifies or otherwise is responsible for the practice of any group of

professional licensees shall maintain and make available to the parties to the proceeding a current list of professional

licensees who are willing and available to serve on the screening panel. The persons appointed shall constitute the screening

panel for the particular professional malpractice claim to be heard.

Credits

Laws 1987, ch. 214, § 2; Laws 1999, ch. 57, § 55; Laws 2008, ch. 80, § 1, eff. July 1, 2008; Laws 2012, ch. 67, § 1, eff. July

1, 2012.

K. S. A. 60-3502, KS ST 60-3502

Current through 2014 regular session

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13

MARYLAND

West’s Annotated Code of Maryland

Courts and Judicial Proceedings

Title 3. Courts of General Jurisdiction--Jurisdiction/Special Causes of Action (Refs & Annos)

Subtitle 2C. Malpractice Claims Against Licensed Professionals (Refs & Annos)

MD Code, Courts and Judicial Proceedings, § 3-2C-02

§ 3-2C-02. Certificates of qualified expert requirement

Failure to file certificate of qualified expert

(a)(1) Except as provided in subsections (b) and (c) of this section, a claim shall be dismissed, without prejudice, if the

claimant fails to file a certificate of a qualified expert with the court.

(2) A certificate of a qualified expert shall:

(i) Contain a statement from a qualified expert attesting that the licensed professional failed to meet an applicable

standard of professional care;

(ii) Subject to the provisions of subsections (b) and (c) of this section, be filed within 90 days after the claim is filed; and

(iii) Be served on all other parties to the claim or the parties’ attorneys of record in accordance with the Maryland Rules.

Production of documentary evidence by defendant

(b)(1) Upon written request made by the claimant within 30 days of the date the claim is served, the defendant shall produce

documentary evidence that would be otherwise discoverable, if the documentary evidence is reasonably necessary in order to

obtain a certificate of a qualified expert.

(2) The time for filing a certificate of a qualified expert shall begin on the date on which the defendant’s production of the

documentary evidence under paragraph (1) of this subsection is completed.

(3) The defendant’s failure to produce the requested documentary evidence under paragraph (1) of this subsection shall

constitute a waiver of the requirement that the claimant file a certificate of a qualified expert as to that defendant.

Waiver or modification of requirement

(c)(1) Upon written request by the claimant and a finding of good cause by the court, the court may waive or modify the

requirement for the filing of the certificate of a qualified expert.

(2) The time for filing the certificate of merit of a qualified expert shall be suspended until the court rules on the request

and, absent an order to the contrary, the certificate shall be filed within 90 days of the court’s ruling.

Discovery as to basis of certificate

14

(d) Discovery by the defendant as to the basis of the certificate of a qualified expert shall be available.

Credits

Added by Acts 1998, c. 452, § 1, eff. Oct. 1 1998. Amended by Acts 2005, c. 125, § 1, eff. Oct. 1, 2005.

MD Code, Courts and Judicial Proceedings, § 3-2C-02, MD CTS & JUD PRO § 3-2C-02

Current through the 2014 Regular Session of the

General Assembly.

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15

MINNESOTA

Minnesota Statutes Annotated

Judicial Procedure, District Court (Ch. 530-552)

Chapter 544. Pleadings

Effective: April 4, 2014

M.S.A. § 544.42

544.42. Actions against professionals; certification of expert review

Subdivision 1. Definitions. For purposes of this section:

(1) “professional” means a licensed attorney or an architect, certified public accountant, engineer, land surveyor, or landscape

architect licensed or certified under chapter 326 or 326A; and

(2) “action” includes an original claim, cross-claim, counterclaim, or third-party claim. An action does not include a claim for

damages requiring notice pursuant to section 604.04.

Subd. 2. Requirement. In an action against a professional alleging negligence or malpractice in rendering a professional

service where expert testimony is to be used by a party to establish a prima facie case, the party must:

(1) unless otherwise provided in subdivision 3, paragraph (a), clause (2) or (3), serve upon the opponent with the pleadings an

affidavit as provided in subdivision 3; and

(2) serve upon the opponent within 180 days of commencement of discovery under the Rules of Civil Procedure, rule

26.04(a) an affidavit as provided in subdivision 4.

Subd. 3. Affidavit of expert review. (a) The affidavit required by subdivision 2, clause (1), must be drafted by the party's

attorney and state that:

(1) the facts of the case have been reviewed by the party's attorney with an expert whose qualifications provide a reasonable

expectation that the expert's opinions could be admissible at trial and that, in the opinion of this expert, the defendant

deviated from the applicable standard of care and by that action caused injury to the plaintiff;

(2) the expert review required by clause (1) could not reasonably be obtained before the action was commenced because of

the applicable statute of limitations; or

(3) the parties have agreed to a waiver of the expert review required by clause (1) or the party has applied for a waiver or

modification by the court under paragraph (c).

(b) If an affidavit is executed under paragraph (a), clause (2), the affidavit in paragraph (a), clause (1), must be served on the

defendant or the defendant's counsel within 90 days after service of the summons and complaint.

(c) The certification of expert review required under this section may be waived or modified if the court where the matter will

be venued determines, upon an application served with commencement of the action, that good cause exists for not requiring

the certification. Good cause includes, but is not limited to, a showing that the action requires discovery to provide a

reasonable basis for the expert's opinion or the unavailability, after a good faith effort, of a qualified expert at reasonable cost.

If the court waives or modifies the expert review requirements, the court shall establish a scheduling order for compliance or

discovery. If the court denies a request for a waiver under this subdivision, the plaintiff must serve on the defendant the

affidavit required under subdivision 2, clause (1), within 60 days, and the affidavit required under subdivision 2, clause (2),

within 180 days.

16

Subd. 4. Identifying experts to be called; adding or substituting experts. (a) The affidavit required by subdivision 2,

clause (2), must be signed by the party's attorney and state the identity of each person whom the attorney expects to call as an

expert witness at trial to testify with respect to the issues of negligence, malpractice, or causation, the substance of the facts

and opinions to which the expert is expected to testify, and a summary of the grounds for each opinion.

Answers to interrogatories that state the information required by this subdivision satisfy the requirements of this subdivision

if they are signed by the party's attorney and served upon the opponent within 180 days after commencement of discovery

under the Rules of Civil Procedure, rule 26.04(a).

(b) The parties by agreement, or the court for good cause shown, may provide for extensions of the time limits specified in

subdivision 2, 3, or this subdivision. Nothing in this subdivision prevents any party from calling additional expert witnesses

or substituting other expert witnesses.

Subd. 5. Responsibilities of party as attorney. If a party is acting pro se, the party shall sign the affidavit or answers to

interrogatories referred to in this section and is bound by those provisions as if represented by an attorney.

Subd. 6. Penalty for noncompliance. (a) Failure to comply with subdivision 2, clause (1), within 60 days after demand for

the affidavit results, upon motion, in mandatory dismissal of each cause of action with prejudice as to which expert testimony

is necessary to establish a prima facie case.

(b) Failure to comply with subdivision 3, paragraph (b) or (c), results, upon motion, in mandatory dismissal of each cause of

action with prejudice as to which expert testimony is necessary to establish a prima facie case.

(c) Failure to comply with subdivision 4 results, upon motion, in mandatory dismissal of each action with prejudice as to

which expert testimony is necessary to establish a prima facie case, provided that an initial motion to dismiss an action under

this paragraph based upon claimed deficiencies of the affidavit or answers to interrogatories shall not be granted unless, after

notice by the court, the nonmoving party is given 60 days to satisfy the disclosure requirements in subdivision 4. In providing

its notice, the court shall issue specific findings as to the deficiencies of the affidavit or answers to interrogatories.

Subd. 7. Consequences of signing affidavit. The signature of the party or the party's attorney constitutes a certification that

the person has read the affidavit or answers to interrogatories, and that to the best of the person's knowledge, information, and

belief formed after a reasonable inquiry, it is true, accurate, and made in good faith. A certification made in violation of this

subdivision subjects the attorney or party responsible for that conduct to reasonable attorney's fees, costs, disbursements, and

other damages that may be determined by the court.

Credits

Laws 1997, c. 212, § 2. Amended by Laws 2001, c. 109, art. 2, § 9, eff. Jan. 1, 2003; Laws 2014, c. 153, §§ 3, 4, eff. April 4,

2014.

M. S. A. § 544.42, MN ST § 544.42

Current with legislation through the end of the 2014

Regular Session.

© 2014 Thomson Reuters. No claim to original U.S. Government

Works.

17

NEVADA

West’s Nevada Revised Statutes Annotated

Title 3. Remedies; Special Actions and Proceedings (Chapters 28-43)

Chapter 40. Actions and Proceedings in Particular Cases Concerning Property (Refs & Annos)

Actions Resulting from Constructional Defect (Refs & Annos)

Additional Requirement for Actions Against Design Professionals

N.R.S. 40.6884

40.6884. Attorney required to consult expert; required affidavit of attorney; required report of expert

1. Except as otherwise provided in subsection 2, in an action governed by NRS 40.600 to 40.695, inclusive, that is

commenced against a design professional or a person primarily engaged in the practice of professional engineering, land

surveying, architecture or landscape architecture, including, without limitation, an action for professional negligence, the

attorney for the complainant shall file an affidavit with the court concurrently with the service of the first pleading in the

action stating that the attorney:

(a) Has reviewed the facts of the case;

(b) Has consulted with an expert;

(c) Reasonably believes the expert who was consulted is knowledgeable in the relevant discipline involved in the action; and

(d) Has concluded on the basis of the attorney’s review and the consultation with the expert that the action has a reasonable

basis in law and fact.

2. The attorney for the complainant may file the affidavit required pursuant to subsection 1 at a later time if the attorney could

not consult with an expert and prepare the affidavit before filing the action without causing the action to be impaired or

barred by the statute of limitations or repose, or other limitations prescribed by law. If the attorney must submit the affidavit

late, the attorney shall file an affidavit concurrently with the service of the first pleading in the action stating the attorney’s

reason for failing to comply with subsection 1 and the attorney shall consult with an expert and file the affidavit required

pursuant to subsection 1 not later than 45 days after filing the action.

3. In addition to the statement included in the affidavit pursuant to subsection 1, a report must be attached to the affidavit.

Except as otherwise provided in subsection 4, the report must be prepared by the expert consulted by the attorney and

include, without limitation:

(a) The resume of the expert;

(b) A statement that the expert is experienced in each discipline which is the subject of the report;

(c) A copy of each nonprivileged document reviewed by the expert in preparing the expert’s report, including, without

limitation, each record, report and related document that the expert has determined is relevant to the allegations of negligent

conduct that are the basis for the action;

18

(d) The conclusions of the expert and the basis for the conclusions; and

(e) A statement that the expert has concluded that there is a reasonable basis for filing the action.

4. In an action brought by a claimant in which an affidavit is required to be filed pursuant to subsection 1:

(a) The report required pursuant to subsection 3 is not required to include the information set forth in paragraphs (c) and (d)

of subsection 3 if the claimant or the claimant’s attorney files an affidavit, at the time that the affidavit is filed pursuant to

subsection 1, stating that the claimant or the claimant’s attorney made reasonable efforts to obtain the nonprivileged

documents described in paragraph (c) of subsection 3, but was unable to obtain such documents before filing the action;

(b) The claimant or the claimant’s attorney shall amend the report required pursuant to subsection 3 to include any documents

and information required pursuant to paragraph (c) or (d) of subsection 3 as soon as reasonably practicable after receiving the

document or information; and

(c) The court may dismiss the action if the claimant and the claimant’s attorney fail to comply with the requirements of

paragraph (b).

5. An expert consulted by an attorney to prepare an affidavit pursuant to this section must not be a party to the action.

6. As used in this section, “expert” means a person who is licensed in a state to engage in the practice of professional

engineering, land surveying, architecture or landscape architecture.

Credits

Added by Laws 2001 (17th ss), c. 3, § 5.

N. R. S. 40.6884, NV ST 40.6884

Current through End of 28th Special Session (2014) © 2014 Thomson Reuters. No claim to original U.S. Government

Works.

19

NEW JERSEY

New Jersey Statutes Annotated

Title 2A. Administration of Civil and Criminal Justice (Refs & Annos)

Subtitle 6. Specific Civil Actions

Chapter 53A. Negligence and Other Torts (Refs & Annos)

N.J.S.A. 2A:53A-27

2A:53A-27. Affidavit required in certain actions against licensed persons

Effective: July 7, 2004

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. The court may grant no more than one additional period, not to exceed 60 days, to file the affidavit

pursuant to this section, upon a finding of good cause.

In the case of an action for medical malpractice, the person executing the affidavit shall meet the requirements of a person

who provides expert testimony or executes an affidavit as set forth in section 7 of P.L.2004, c. 17 (C.2A:53A-41). 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.

Credits

L.1995, c. 139, § 2. Amended by L.2004, c. 17, § 8.

N. J. S. A. 2A:53A-27, NJ ST 2A:53A-27

Current with laws effective through L.2014, c. 63

and J.R. No. 3.

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20

OKLAHOMA Oklahoma Statutes Annotated

Title 12. Civil Procedure (Refs & Annos)

Chapter 1B. Professional Negligence

12 Okl.St.Ann. § 19.1

§ 19.1. Affidavit of consultation with qualified expert--Extension--Exemption

A. 1. In any civil action for negligence wherein the plaintiff shall be required to present the testimony of an expert witness to

establish breach of the relevant standard of care and that such breach of duty resulted in harm to the plaintiff, except as

provided in subsection B of this section, the plaintiff shall attach to the petition an affidavit attesting that:

a. the plaintiff has consulted and reviewed the facts of the claim with a qualified expert,

b. the plaintiff has obtained a written opinion from a qualified expert that clearly identifies the plaintiff and includes

the determination of the expert that, based upon a review of the available material including, but not limited to,

applicable records, facts or other relevant material, a reasonable interpretation of the facts supports a finding that the

acts or omissions of the defendant against whom the action is brought constituted negligence, and

c. on the basis of the review and consultation of the qualified expert, the plaintiff has concluded that the claim is

meritorious and based on good cause.

2. If the civil action for negligence is filed:

a. without an affidavit being attached to the petition, as required in paragraph 1 of this subsection, and

b. no extension of time is subsequently granted by the court, pursuant to subsection B of this section,

the court shall, upon motion of the defendant, dismiss the action without prejudice to its refiling.

3. The written opinion from the qualified expert shall state the acts or omissions of the defendant or defendants that the expert

then believes constituted negligence and shall include reasons explaining why the acts or omissions constituted negligence.

The written opinion from the qualified expert shall not be admissible at trial for any purpose nor shall any inquiry be

permitted with regard to the written opinion for any purpose either in discovery or at trial.

B. 1. The court may, upon application of the plaintiff for good cause shown, grant the plaintiff an extension of time, not

exceeding ninety (90) days after the date the petition is filed, except for good cause shown, to file in the action an affidavit

attesting that the plaintiff has obtained a written opinion from a qualified expert as described in paragraph 1 of subsection A

of this section.

2. If on the expiration of an extension period described in paragraph 1 of this subsection, the plaintiff has failed to file in the

action an affidavit as described above, the court shall, upon motion of the defendant, unless good cause is shown for such

failure, dismiss the action without prejudice to its refiling. If good cause is shown, the resulting extension shall in no event

exceed sixty (60) days.

C. 1. Upon written request of any defendant in a civil action for negligence, the plaintiff shall, within ten (10) business days

after receipt of such request, provide the defendant with:

a. a copy of the written opinion of a qualified expert mentioned in an affidavit filed pursuant to subsection A or B of

this section, and

21

b. an authorization from the plaintiff in a form that complies with applicable state and federal laws, including the

Health Insurance Portability and Accountability Act of 1996, for the release of any and all relevant records related to

the plaintiff for a period commencing five (5) years prior to the incident that is at issue in the civil action for

negligence.

2. If the plaintiff fails to comply with paragraph 1 of this subsection, the court shall, upon motion of the defendant, unless

good cause is shown for such failure, dismiss the action without prejudice to its refiling.

D. A plaintiff in a civil action for negligence may claim an exemption to the provisions of this section based on indigency

pursuant to the qualification rules established as set forth in Section 4 of this act.

Credits

Laws 2013, 1st Ex.Sess., c. 12, § 2, eff. Dec. 9, 2013.

12 Okl. St. Ann. § 19.1, OK ST T. 12 § 19.1

Current through Chapter 430 (End) of the Second

Session of the 54th Legislature (2014)

© 2014 Thomson Reuters. No claim to original U.S. Government

Works.

22

OREGON

West’s Oregon Revised Statutes Annotated

Title 3. Remedies and Special Actions and Proceedings

Chapter 31. Tort Actions (Refs & Annos)

Specific Claims for Relief

(Actions Against Construction Design Professionals)

O.R.S. § 31.300

31.300. Construction design professionals; complaints

(1) As used in this section, “construction design professional” means an architect, registered landscape architect, professional

engineer or professional land surveyor.

(2) A complaint, cross-claim, counterclaim or third-party complaint asserting a claim against a construction design

professional that arises out of the provision of services within the course and scope of the activities for which the person is

licensed may not be filed unless the claimant’s attorney certifies that the attorney has consulted a licensed construction design

professional who is qualified, available and willing to testify to admissible facts and opinions sufficient to create a question

of fact as to the liability of the construction design professional. The certification required by this section must be filed with

or be made part of the original complaint, cross-claim, counterclaim or third-party complaint. The certification must contain a

statement that a licensed construction design professional who is qualified to testify as to the standard of care applicable to

the alleged facts, is available and willing to testify that:

(a) The alleged conduct of the construction design professional failed to meet the standard of professional care applicable

to the construction design professional in the circumstances alleged; and

(b) The alleged conduct was a cause of the claimed damages, losses or other harm.

(3) In lieu of providing the certification described in subsection (2) of this section, the claimant’s attorney may file with the

court at the time of filing a complaint, cross-claim, counterclaim or third-party complaint an affidavit that states:

(a) The applicable statute of limitations is about to expire;

(b) The certification required under subsection (2) of this section will be filed within 30 days after filing the complaint,

cross-claim, counterclaim or third-party complaint or such longer time as the court may allow for good cause shown; and

(c) The attorney has made such inquiry as is reasonable under the circumstances and has made a good faith attempt to

consult with at least one licensed construction design professional who is qualified to testify as to the standard of care

applicable to the alleged facts, as required by subsection (2) of this section.

(4) Upon motion of the construction design professional, the court shall enter judgment dismissing any complaint, cross-

claim, counterclaim or third-party complaint against any construction design professional that fails to comply with the

requirements of this section.

(5) This section applies only to a complaint, cross-claim, counterclaim or third-party complaint against a construction design

professional by any plaintiff who:

23

(a) Is a construction design professional, contractor, subcontractor or other person providing labor, materials or services for

the real property improvement that is the subject of the claim;

(b) Is the owner, lessor, lessee, renter or occupier of the real property improvement that is the subject of the claim;

(c) Is involved in the operation or management of the real property improvement that is the subject of the claim;

(d) Has contracted with or otherwise employed the construction design professional; or

(e) Is a person for whose benefit the construction design professional performed services.

Credits

Added by Laws 2003, c. 418, § 1.

O. R. S. § 31.300, OR ST § 31.300

Current with 2014 Reg. Sess. legislation effective

through 7/1/14 and ballot measures on the 11/4/14

ballot. Revisions to Acts made by the Oregon

Reviser were unavailable at the time of publication.

© 2014 Thomson Reuters. No claim to original U.S. Government

Works.

24

PENNSYLVANIA

Purdon’s Pennsylvania Statutes and Consolidated Statutes

Pennsylvania Rules of Civil Procedure (Refs & Annos)

Actions (Refs & Annos)

Civil Action (Refs & Annos)

Professional Liability Actions

Pa.R.C.P. No. 1042.3

Rule 1042.3. Certificate of Merit

(a) In any action based upon an allegation that a licensed professional deviated from an acceptable professional standard, the

attorney for the plaintiff, or the plaintiff if not represented, shall file with the complaint or within sixty days after the filing of

the complaint, a certificate of merit signed by the attorney or party that either

Note: The requirements of subdivision (a) apply to a claim for lack of informed consent.

(1) an appropriate licensed professional has supplied a written statement 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 standards and that such conduct was a cause in bringing about the harm, or

Note: It is not required that the “appropriate licensed professional” who supplies the necessary statement in support

of a certificate of merit required by subdivision (a)(1) be the same person who will actually testify at trial. It is

required, however, that the “appropriate licensed professional” who supplies such a statement be an expert with

sufficient education, training, knowledge and experience to provide credible, competent testimony, or stated

another way, the expert who supplies the statement must have qualifications such that the trial court would find

them sufficient to allow that expert to testify at trial. For example, in a medical professional liability action against

a physician, the expert who provides the statement in support of a certificate of merit should meet the qualifications

set forth in Section 512 of the Medical Care Availability and Reduction of Error (MCARE) Act, 40 P.S. §

1303.512.

(2) the claim that the defendant deviated from an acceptable professional standard is based solely on allegations that other

licensed professionals for whom this defendant is responsible deviated from an acceptable professional standard, or

Note: A certificate of merit, based on the statement of an appropriate licensed professional required by subdivision

(a)(1), must be filed as to the other licensed professionals for whom the defendant is responsible. The statement is

not required to identify the specific licensed professionals who deviated from an acceptable standard of care.

(3) expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim.

Note: In the event that the attorney certifies under subdivision (a)(3) that an expert is unnecessary for prosecution

of the claim, in the absence of exceptional circumstances the attorney is bound by the certification and,

subsequently, the trial court shall preclude the plaintiff from presenting testimony by an expert on the questions of

standard of care and causation.

(b) (1) A separate certificate of merit shall be filed as to each licensed professional against whom a claim is asserted.

(2) If a complaint raises claims under both subdivisions (a)(1) and (a)(2) against the same defendant, the attorney for the

plaintiff, or the plaintiff if not represented, shall file

25

(i) a separate certificate of merit as to each claim raised, or

(ii) a single certificate of merit stating that claims are raised under both subdivisions (a)(1) and (a)(2).

(c)(1) A defendant who files a counterclaim asserting a claim for professional liability shall file a certificate of merit as

required by this rule.

(2) A defendant or an additional defendant who has joined a licensed professional as an additional defendant or asserted a

cross-claim against a licensed professional need not file a certificate of merit unless the joinder or cross-claim is based on

acts of negligence that are unrelated to the acts of negligence that are the basis for the claim against the joining or cross-

claiming party.

(d) The court, upon good cause shown, shall extend the time for filing a certificate of merit for a period not to exceed sixty

days. A motion to extend the time for filing a certificate of merit must be filed by the thirtieth day after the filing of a notice

of intention to enter judgment of non pros on a professional liability claim under Rule 1042.6(a) or on or before the

expiration of the extended time where a court has granted a motion to extend the time to file a certificate of merit, whichever

is greater. The filing of a motion to extend tolls the time period within which a certificate of merit must be filed until the

court rules upon the motion.

Note: There are no restrictions on the number of orders that a court may enter extending the time for filing a

certificate of merit provided that each order is entered pursuant to a new motion, timely filed and based on cause

shown as of the date of filing the new motion.

The moving party must act with reasonable diligence to see that the motion is promptly presented to the court if

required by local practice.

In ruling upon a motion to extend time, the court shall give appropriate consideration to the practicalities of

securing expert review. There is a basis for granting an extension of time within which to file the certificate of

merit if counsel for the plaintiff was first contacted shortly before the statute of limitations was about to expire, or

if, despite diligent efforts by counsel, records necessary to review the validity of the claim are not available.

Credits

Adopted Jan. 27, 2003, imd. effective. Amended Feb. 11, 2005, imd. effective; Dec. 5, 2005, imd. effective; June 16, 2008,

imd. effective.

Editors’ Notes

EXPLANATORY COMMENT--2005

Rules 1042.3(b) and 1042.8 which govern certificates of merit required in professional liability actions have been

amended to clarify their application in cases in which multiple claims are asserted against the same defendant.

New subdivision (b)(2) has been added to Rule 1042.3 advising the plaintiff who files a complaint raising claims

against the same defendant under both subdivisions (a)(1) and (a)(2) that either (i) a separate certificate of merit

must be filed as to each claim raised, or (ii) a single certificate of merit must be filed indicating stating that claims

are raised under both subdivisions (a)(1) and (a)(2). The form of the certificate of merit set forth in Rule 1042.8

also has been amended by inserting the words “AND/OR” between paragraphs (1) and (2) which correspond to

subdivisions (a)(1) and (a)(2) of Rule 1042.3.

Rules Civ. Proc., Rule 1042.3, 42 Pa.C.S.A., PA ST RCP Rule 1042.3

26

Current with amendments received through Sept.

15, 2014

© 2014 Thomson Reuters. No claim to original U.S. Government

Works.

27

SOUTH CAROLINA

Code of Laws of South Carolina 1976 Annotated

Title 15. Civil Remedies and Procedures

Chapter 36. South Carolina Frivolous Civil Proceedings Sanctions Act

Code 1976 § 15-36-100

§ 15-36-100. Complaint in actions for damages alleging professional negligence; contemporaneous affidavit of expert

specifying negligent act or omission.

(A) As used in this section, “expert witness” means an expert who is qualified as to the acceptable conduct of the professional

whose conduct is at issue and who:

(1) is licensed by an appropriate regulatory agency to practice his or her profession in the location in which the expert

practices or teaches; and

(2)(a) is board certified by a national or international association or academy which administers written and oral

examinations for certification in the area of practice or specialty about which the opinion on the standard of care is offered;

or

(b) has actual professional knowledge and experience in the area of practice or specialty in which the opinion is to be

given as the result of having been regularly engaged in:

(i) the active practice of the area of specialty of his or her profession for at least three of the last five years

immediately preceding the opinion;

(ii) the teaching of the area of practice or specialty of his or her profession for at least half of his or her professional

time as an employed member of the faculty of an educational institution which is accredited in the teaching of his or

her profession for at least three of the last five years immediately preceding the opinion; or

(iii) any combination of the active practice or the teaching of his or her profession in a manner which meets the

requirements of subitems (i) and (ii) for at least three of the last five years immediately preceding the opinion;

(3) is an individual not covered by subsections (A)(1) or (2), that has scientific, technical, or other specialized knowledge

which may assist the trier of fact in understanding the evidence and determining a fact or issue in the case, by reason of the

individual’s study, experience, or both. However, an affidavit filed pursuant to subsection (B) by an expert qualified under

this subsection must contain an explanation of the expert’s credentials and why the expert is qualified to conduct the

review required by subsection (B). The defendant is entitled to challenge the sufficiency of the expert’s credentials

pursuant to subsection (E).

(B) Except as provided in Section 15-79-125, in an action for damages alleging professional negligence against a professional

licensed by or registered with the State of South Carolina and listed in subsection (G) or against any licensed health care

facility alleged to be liable based upon the action or inaction of a health care professional licensed by the State of South

Carolina and listed in subsection (G), the plaintiff must file as part of the complaint an affidavit of an expert witness which

must specify at least one negligent act or omission claimed to exist and the factual basis for each claim based on the available

evidence at the time of the filing of the affidavit.

28

(C)(1) The contemporaneous filing requirement of subsection (B) does not apply to any case in which the period of limitation

will expire, or there is a good faith basis to believe it will expire on a claim stated in the complaint, within ten days of the

date of filing and, because of the time constraints, the plaintiff alleges that an affidavit of an expert could not be prepared. In

such a case, the plaintiff has forty-five days after the filing of the complaint to supplement the pleadings with the affidavit.

Upon motion, the trial court, after hearing and for good cause, may extend the time as the court determines justice requires. If

an affidavit is not filed within the period specified in this subsection or as extended by the trial court and the defendant

against whom an affidavit should have been filed alleges, by motion to dismiss filed contemporaneously with its initial

responsive pleading that the plaintiff has failed to file the requisite affidavit, the complaint is subject to dismissal for failure

to state a claim. The filing of a motion to dismiss pursuant to this section, shall alter the period for filing an answer to the

complaint in accordance with Rule 12(a), South Carolina Rules of Civil Procedure.

(2) The contemporaneous filing requirement of subsection (B) is not required to support a pleaded specification of

negligence involving subject matter that lies within the ambit of common knowledge and experience, so that no special

learning is needed to evaluate the conduct of the defendant.

(D) This section does not extend an applicable period of limitation, except that, if the affidavit is filed within the period

specified in this section, the filing of the affidavit after the expiration of the statute of limitations is considered timely and

provides no basis for a statute of limitations defense.

(E) If a plaintiff files an affidavit which is allegedly defective, and the defendant to whom it pertains alleges, with specificity,

by motion to dismiss filed contemporaneously with its initial responsive pleading, that the affidavit is defective, the

plaintiff’s complaint is subject to dismissal for failure to state a claim, except that the plaintiff may cure the alleged defect by

amendment within thirty days of service of the motion alleging that the affidavit is defective. The trial court may, in the

exercise of its discretion, extend the time for filing an amendment or response to the motion, or both, as the trial court

determines justice requires. The filing of a motion to dismiss pursuant to this section shall alter the period for filing an answer

to the complaint in accordance with Rule 12(a), South Carolina Rules of Civil Procedure.

(F) If a plaintiff fails to file an affidavit as required by this section, and the defendant raises the failure to file an affidavit by

motion to dismiss filed contemporaneously with its initial responsive pleading, the complaint is not subject to renewal after

the expiration of the applicable period of limitation unless a court determines that the plaintiff had the requisite affidavit

within the time required pursuant to this section and the failure to file the affidavit is the result of a mistake. The filing of a

motion to dismiss pursuant to this section shall alter the period for filing an answer to the complaint in accordance with Rule

12(a), South Carolina Rules of Civil Procedure.

(G) This section applies to the following professions:

(1) architects;

(2) attorneys at law;

(3) certified public accountants;

(4) chiropractors;

(5) dentists;

(6) land surveyors;

(7) medical doctors;

(8) marriage and family therapists;

(9) nurses;

(10) occupational therapists;

(11) optometrists;

(12) osteopathic physicians;

(13) pharmacists;

(14) physical therapists;

(15) physicians’ assistants;

29

(16) professional counselors;

(17) professional engineers;

(18) podiatrists;

(19) psychologists;

(20) radiological technicians;

(21) respiratory therapists; and

(22) veterinarians.

Credits

HISTORY: 2005 Act No. 32, § 4, eff July 1, 2005, for causes of action arising after that date.

COPYRIGHT (C) 2014 BY THE STATE OF SOUTH CAROLINA

Code 1976 § 15-36-100, SC ST § 15-36-100

Current through End of 2014 Reg. Sess. © 2014 Thomson Reuters. No claim to original U.S. Government

Works.

30

TEXAS

Vernon’s Texas Statutes and Codes Annotated

Civil Practice and Remedies Code (Refs & Annos)

Title 6. Miscellaneous Provisions

Chapter 150. Licensed or Registered Professionals (Refs & Annos)

V.T.C.A., Civil Practice & Remedies Code § 150.002

§ 150.002. Certificate of Merit

Effective: September 1, 2009

(a) In any action or arbitration proceeding for damages arising out of the provision of professional services by a

licensed or registered professional, the plaintiff shall be required to file with the complaint an affidavit of a third-

party licensed architect, licensed professional engineer, registered landscape architect, or registered professional

land surveyor who:

(1) is competent to testify;

(2) holds the same professional license or registration as the defendant; and

(3) is knowledgeable in the area of practice of the defendant and offers testimony based on the person’s:

(A) knowledge;

(B) skill;

(C) experience;

(D) education;

(E) training; and

(F) practice.

(b) The affidavit shall set forth specifically for each theory of recovery for which damages are sought, the

negligence, if any, or other action, error, or omission of the licensed or registered professional in providing the

professional service, including any error or omission in providing advice, judgment, opinion, or a similar

professional skill claimed to exist and the factual basis for each such claim. The third-party licensed architect,

licensed professional engineer, registered landscape architect, or registered professional land surveyor shall be

licensed or registered in this state and actively engaged in the practice of architecture, engineering, or surveying.

(c) The contemporaneous filing requirement of Subsection (a) shall not apply to any case in which the period of

limitation will expire within 10 days of the date of filing and, because of such time constraints, the plaintiff has

alleged that an affidavit of a third-party licensed architect, licensed professional engineer, registered landscape

architect, or registered professional land surveyor could not be prepared. In such cases, the plaintiff shall have 30

days after the filing of the complaint to supplement the pleadings with the affidavit. The trial court may, on motion,

after hearing and for good cause, extend such time as it shall determine justice requires.

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(d) The defendant shall not be required to file an answer to the complaint and affidavit until 30 days after the filing

of such affidavit.

(e) The plaintiff’s failure to file the affidavit in accordance with this section shall result in dismissal of the complaint

against the defendant. This dismissal may be with prejudice.

(f) An order granting or denying a motion for dismissal is immediately appealable as an interlocutory order.

(g) This statute shall not be construed to extend any applicable period of limitation or repose.

(h) This statute does not apply to any suit or action for the payment of fees arising out of the provision of

professional services.

Credits

Added by Acts 2003, 78th Leg., ch. 204, § 20.01, eff. Sept. 1, 2003. Amended by Acts 2005, 79th Leg., ch. 189, § 2,

eff. May 27, 2005; Acts 2005, 79th Leg., ch. 208, § 2, eff. Sept. 1, 2005; Acts 2009, 81st Leg., ch. 789, § 2, eff.

Sept. 1, 2009.

V. T. C. A., Civil Practice & Remedies Code § 150.002, TX CIV PRAC & REM § 150.002

Current through the end of the 2013 Third Called

Session of the 83rd Legislature

© 2014 Thomson Reuters. No claim to original U.S. Government

Works.

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APPENDIX: STATES TO WATCH

Alabama:

- House Bill No. 126, Alabama 2013 Regular Session.

- Status: “Indefinitely postponed” on May 7, 2013.

- This bill would require a plaintiff in an action against a licensed professional engineer, licensed

professional land surveyor, registered architect, licensed professional geologist, or a registered landscape

architect to file a certificate of merit affidavit of a third-party engineer, land surveyor, architect, geologist,

or landscape architect providing an opinion of at least one negligent act, error, or omission of the

defendant.

Arkansas:

- House Bill No. 2231, Arkansas Eighty-Ninth General Assembly

- Status: Recommended for study in the interim by Joint Interim Committee on Judiciary Committee – House

on April 11, 2013.

- This bill would require the contemporaneous filing of a certificate of merit as a condition of filing any

action for damages alleging professional negligence by a licensed or registered engineer.

Maryland:

- House Bill No. 345, Maryland 434th Session of the General Assembly, 2014

- Status: Hearing at 1:00 p.m. on March 26, 2014.

- This bill would amend the existing certificate of merit statute in Maryland. It would specify the vehicle for

dismissing a claim (a motion to dismiss) and would also seem to require a certificate of merit when suing

the employer of a licensed professional by adding the language “failed to meet an applicable standard of

professional care and supervision.”

Mississippi:

- Senate Bill No. 2172, Mississippi One Hundred Twenty-Eighth Legislative Session

- Status: Died in Committee on March 5, 2013.

- This bill would require the contemporaneous filing of a certificate of merit as a condition of filing any

action for damages alleging professional negligence by any professional licensed or registered in good

standing in the state of Mississippi.

North Carolina:

- House Bill No. 739, North Carolina 2013 General Assembly – 2013 Regular Session

- Status: House assigned to Judiciary Subcommittee B on May 15, 2013.

- This bill would require a certificate of merit in civil actions or arbitration proceedings brought against a

person or firm providing architecture or engineering services in the state.

Oklahoma

- In recent years, Oklahoma has engaged in a back-and-forth battle over the constitutional validity of

certificate of merit statutes. In particular, certificate of merit statutes were deemed unconstitutional by the

Oklahoma Supreme Court in 2006 and again in June 2013. The current statute became effective December

9, 2013, and has yet to be constitutionally challenged.

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Pennsylvania:

- House Bill No. 1301, Pennsylvania One Hundred Ninety-Seventh General Assembly – 2013-2014

- Status: Referred to Judiciary on May 1, 2013.

- This bill would amend the existing certificate of merit statute in Pennsylvania. The bill does not appear to

have any material changes, however, it does provide that a person is not competent to execute a certificate

of merit unless that person does all of the following: (1) affirms that the person has read the complaint, (2)

possesses sufficient education, training, knowledge and experience to provide credible, competent

testimony, and (3) provides a resume or curriculum vitae attesting to the person’s credentials for inclusion

with the complaint.