Most lawsuits against professionals eventually come down to a “battle of experts.” Claims of negligence against a professional rise and fall on the strength of the expert proofs offered in prosecuting or defending claims of professional negligence. However, the expert battle begins the moment the defendant professional files his or her answer to the complaint. As the matter proceeds toward trial, the field upon which the expert battle is fought changes dramatically, and the weapons available to challenge the plaintiff’s expert and the opinions he or she may offer vary depending on the stage of litigation. Two of the most critical moments in the expert battle occur when the plaintiff serves an affidavit of merit attesting to the reasonable probability that the claim against the professional is viable, and then later at trial when the plaintiff must present expert testimony to prove its claim against the professional. The successful defense of a professional requires knowing when and how to fight the expert battle.
Battle Is Joined: The Affidavit of Merit
The first skirmish to typically take place is a challenge to the affidavit of merit served by a plaintiff. Under the New Jersey Affidavit of Merit Act, N.J.S.A. 2A:53A-26 to -29, a plaintiff asserting claims of negligence against a professional must serve an affidavit from an “appropriate licensed person” attesting 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.” N.J.S.A. 2A:53A-27.
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