Thakar v. Tan, D.N.J., March 25, 2010
Facts: Dr. Thakar sued four attorneys for alleged malpractice and conspiracy in representing him in state and federal actions against JFK Medical Group. The attorneys who were timely served with Thakar’s summons and complaint eventually moved to dismiss for failure to provide an affidavit under N.J.S.A. 2A:53A-27. Thakar argued that his claim against at least one of the attorneys, for failure to abide by the applicable statute of limitations, fell under the "common knowledge" exception, and therefore, no affidavit of merit was necessary.
Issue: Does an attorney’s alleged failure to abide by the statute of limitations fall into the common knowledge exception, or is an affidavit of merit necessary?
Ruling: An affidavit of merit is required.
The factual predicate for a common knowledge case is one where the carelessness of the defendant is readily apparent to anyone of average intelligence and ordinary experience. If, however, the claim’s underlying factual allegations require proof of a deviation from the professional standard of care applicable to that specific profession, an affidavit of merit is required.
Thakar’s claim does not turn on common knowledge. Thakar challenges [the attorney’s] alleged delay in filing suit in state court, which he claims resulted in dismissal of the suit as barred by the statute of limitations. As the District Court observed, understanding a lawyer’s duties with regard to a statute of limitations depends on an industry standard of care, and is beyond the experience of the ordinary person. Expert testimony would be required to determine the duty of care owed, and whether [the attorney’s] actions breached that duty.
Thakar then argued that if an affidavit of merit was necessary, he had "substantially complied." The Court rejected this argument as well, holding that Thakar’s unsatisfactory consultation with several attorneys in an effort to obtain an affidavit of merit did not meet the requirements for substantial compliance:
(1) the lack of prejudice to the defending party;
(2) a series of steps taken to comply with the statute involved;
(3) a general compliance with the purpose of the statute;
(4) a reasonable notice of petitioner’s claim; and
(5) a reasonable explanation why there was not strict compliance with the statute.
Lesson: Plaintiffs are well advised to err on the side of obtaining affidavits of merit in legal malpractice matters. Failure to obtain an affidavit within the time limits set for by the statute will not be excused in all but the most compelling circumstances.