Oregon Redefines Certificates of Merit for A&E Claims
Attorney: Ryan Probstfeld
It has become a little harder to sue design professionals in the State of Oregon, and rightfully so. Prior to January, 2016, ORS 31.300(2)(a) required plaintiffs to submit a certificate of merit, signed by a certifying design professional, indicating that the defendant design professional “failed to meet the standard of professional care applicable to the construction design professional in the circumstances alleged.” The purpose of such certificates of merit is to prevent frivolous lawsuits against design professionals.
Effective January 1, 2016, Senate Bill 383 amended ORS 31.300(2)(a) to reflect the following certificate of merit language:
“The alleged conduct of the design professional failed to meet the standard of professional skill and care ordinarily provided by other design professionals with similar credentials, experience and expertise and practicing under the same or similar circumstances.”
The amendment is the practical result of a host of claims against design professionals in which the certificates of merit were signed by inexperienced professionals. By way of example, under the prior, vague language, a claim related to a commercial project could be filed against an architect with 30 years of experience based upon the certification of an architect with 1 year of experience who has never worked on a commercial project. The new statutory language may give rise to new defenses and arguments about the adequacy of the plaintiff’s expert’s opinions if offered by a design professional who lacks credentials, experience, or expertise similar to the defendant professional.
However, the practical application of the statutory revision may be limited prior to trial. Since Oregon law does not permit expert discovery, and it will be tough for defendants to obtain the necessary information through formal discovery to test the new “similar credentials, experience and expertise” requirements prior to trial.