by Christopher Graham and Joseph Kelly

D’Agostino v. Drazin & Warshaw, P.C., Case No. A-1460-11T3 (Superior Court of N.J. Sep. 13, 2013)

Plaintiff filed a pro se legal malpractice complaint against his former lawyer. Plaintiff failed to produce an affidavit of merit under N.J.S.A. 2A:53A-27 which requires a plaintiff who alleges professional negligence to provide an expert’s affidavit stating the action has merit. Defendant attorney successfully moved to dismiss because of the lack of an affidavit of merit. Plaintiff appealed and the appellate court affirmed.

The appellate court noted that “our Court has held that an affidavit of merit is not required in those cases where, under the common knowledge doctrine, expert testimony would not be required to establish a deviation from the standard of care” and that “[t]he common knowledge doctrine applies ‘where “jurors” common knowledge as lay persons is sufficient to enable them, using ordinary understanding and experience, to determine a defendant’s negligence without a benefit of the specialized knowledge of experts.'”

Here, plaintiffs’ allegations of malpractice were so non-specific that it wasn’t clear that the common knowledge doctrine applied; and it didn’t matter that the Judge was the fact-finder rather than a jury.

Tags: New Jersey, legal malpractice, affidavit of merit