SB1650

SECTION 1. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

"Chapter

ACTIONS AGAINST DESIGN PROFESSIONALS

§ ‑1 Design professional defined. As used in this chapter, "design professional" means a professional engineer, architect, surveyor, or landscape architect licensed under chapter 464.

§ ‑2 Certificate of merit. (a) A complaint, cross-claim, counterclaim, or third party complaint asserting a claim against a design professional arising out of an alleged failure to meet the standard of care shall not be filed unless the claimant or the claimant's attorney also files a certificate of merit pursuant to this section. The certificate of merit shall be filed with or made a part of the complaint, cross-claim, counterclaim, or third party complaint.

(b) A separate certificate of merit shall be filed for each design professional against whom a claim is asserted.

(Caption) )

) Certificate of Merit

) as to Defendant ______________

)

I, _____________________, certify that:

(Attorney or Party)

I have consulted a design professional who holds a license, certificate, or registration issued by the State of Hawaii or another state in the same profession as the person against whom the claim is filed and who practices in the same specialty or subspecialty as Defendant _____________. This design professional is qualified, available, and willing to testify that:

A. The alleged conduct of Defendant ______________ failed to meet the standard of care applicable to design professionals in the circumstances alleged.

B. The alleged conduct was a cause of the claimed damages, losses, or other harm.

Declared under penalty of perjury under the laws of the

State of Hawaii.

Date:_______________ Signature:_____________________

(d) Notwithstanding any law to the contrary, the design professional against whom a claim is asserted shall not be required to answer the complaint, cross-claim, counterclaim, or third party complaint until thirty days after the filing of the certificate of merit by the claimant or claimant's attorney.

(e) The court, on its own motion or the motion of the design professional against whom a claim is asserted, shall dismiss the claim against the design professional without prejudice if the claimant or claimant's attorney fails to comply with the requirements of this section.

§ ‑3 Preliminary expert opinion affidavit. (a) Within ninety days of the filing of a certificate of merit, a claimant or claimant's attorney shall file and serve a preliminary expert opinion affidavit on all parties. The preliminary expert opinion affidavit shall contain the following:

(1) The expert's qualifications to express an opinion on the design professional's standard of care or liability for the claim;

(2) The factual basis for each claim against the design professional;

(3) The design professional's acts, errors, or omissions that the expert considers to be a violation of the applicable standard of care; and

(4) The manner in which the design professional's acts, errors, or omissions caused or contributed to the damages or other relief sought by the claimant.

(b) The court may extend the time for filing the preliminary expert opinion affidavit for a period, not to exceed ninety days, upon a showing of good cause or by stipulation of the parties.

(c) Notwithstanding any law to the contrary, no discovery shall be allowed prior to the filing of the preliminary expert opinion affidavit except for requests for production between the parties.

(d) A claimant may supplement a preliminary expert opinion affidavit with additional claims, evidence, or expert opinions pursuant to the Hawaii rules of civil procedure or court order. A preliminary expert opinion affidavit may be used to impeach a witness.

(e) The court, on its own motion or the motion of the design professional against whom a claim is asserted, shall dismiss the claim against the design professional with prejudice if the claimant or claimant's attorney fails to comply with the requirements of this section. The court may award reasonable attorney's fees and costs to the prevailing party."

SECTION 2. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

SECTION 3. This Act shall take effect upon its approval.

INTRODUCED BY:	_____________________________

THE SENATE	S.B. NO.	1650
TWENTY-FOURTH LEGISLATURE, 2007
STATE OF HAWAII