The Oregon Legislature is currently considering Senate Bill 383, which would revise Oregon’s “certificate of merit” statute, ORS 31.300. The Bill has already passed through the Senate Judiciary Committee, and is now before the House Committee on Consumer Protection and Government Effectiveness. The Bill would add a requirement that a court filing against an architect or engineer include a summary or the conduct complained of, and would narrow who can certify claims against what type of disciplines. A “certificate of merit” law with clear standards and processes is more likely to achieve the goal of limiting actions against design professionals to meritorious claims. SB 383 muddies the waters, and worse, conflicts with Oregon’s Rules of Civil Procedure which lawyers must follow.
“Certificate of merit” statutes in Oregon, and other states, are designed to limit frivolous lawsuits against design professionals by requiring that the attorney filing the lawsuit certify that the attorney has consulted with another design professional who will testify to the standard of care required in the profession, and that the standard of care was breached. Senate Bill 383’s proponents wish to strengthen and clarify the Oregon statute. But Senate Bill 383 does not go far enough, and is not specific enough, to achieve what the Bill’s proponents wish to achieve. Instead, in its current form, it simply invites further litigation and questions. Worse, it conflicts with Oregon’s Rules of Civil Procedure, which attorneys must follow in Oregon.
First, the Bill’s proponents wish to clarify that only an Oregon-registered architect should be allowed to testify to a claim against an Oregon-registered architect, and an Oregon-registered engineer against an Oregon-registered engineer, etc. Unfortunately, that is not what the amendment says. The current proposed language states only that “a design professional with similar credentials” may testify against another design professional. This would simply invite further litigation over who has “similar credentials.” If the point of the Bill is that only an Oregon-registered architect should be allowed to testify to a claim against an Oregon-registered architect, then the Bill’s drafters would benefit from simply including that specific language in the statute.
Second, the Bill would require that any Complaint filed against a design professional include a “summary of the alleged conduct of the design professional that 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.” However, Oregon law does not permit that evidence be included in written claims against design professionals, but rather “[a] plain and concise statement of the ultimate facts constituting a claim for relief * * *.” ORCP 18 A. The Supreme Court in Adams v. Oregon State Police, 289 Or 233, 240-41 (1980) wrote that:
‘The purpose of requiring an exchange of pleadings is not to produce perfection in the statement of the issue but only to bring forth into the light the points that are in dispute. When those points are sufficiently revealed so that the opponent is apprised of what he must meet and the trial judge is given sufficient information so that he can rule advisedly during the progress of the trial, the pleadings have performed their function.’
Thus, a pleading is sufficient if it contains allegations that permit the introduction of evidence which will satisfy the elements of a claim, and additional information can be obtained through the discovery process. Dahlen v. Oregon Transfer Co., 180 Or App 599 (2002). It will be difficult for the Courts to draw the line between the requirements of proposed Bill 383, and the limits of pleading requirements in Oregon.
Third, in Oregon there is no mechanism for discovery of experts hired by the parties, or of their opinions. That is why the current statute tracks the language of ORCP 47E, which describes how a party may oppose summary judgment by submitting an affidavit stating that it has consulted with an expert on a given topic, and the expert will testify to evidence raising a question of fact. This new requirement of a “summary” in SB 383 would exceed that, and require not only that evidence be included in the court papers, but expert opinions themselves. Oregon is unique in the United States in that it does not require litigants to disclose their experts’ identities or opinions. To the contrary, Oregon has a clear policy against this, affirmed by many Court of Appeals and Supreme Court rulings, as well as the Legislature’s removal of expert discovery mechanisms from the Rules of Civil Procedure.
Fourth, and most practically, this requirement is dangerously vague. The proposed language does not clearly state how a claimant is supposed to satisfy this requirement. If this is to be an absolute prerequisite to bringing a lawsuit, and punishable by dismissal of the claims, or could lead to sanctions against attorneys, or malpractice claims, it needs to be clear. It its current state, it lacks the specificity needed to give it teeth so that architects and engineers will have a real chance of defeating claims that do not comply.
SB 383 would be more effective at achieving the goals of streamlining the litigation process for architects and engineers, and protecting them from frivolous claims, if the amendments harmonized with Oregon’s existing pleading and discovery rules and stated clearly that it would require architects to certify against architects, engineers against engineers, and so on for the disciplines covered by the statute.