Tuesday, July 24, 2012

Eastern District Court Rules on Certificate of Merit Issue

In its decision in the case of Mertzig et al. vs. Robert E. Booth Jr., et al., No. 11 - Civil - 1462 (E.D.Pa. April 25, 2012 Savage, J.), the United States District Court for the Eastern District of Pennsylvania addressed whether a plaintiff who sought to use expert testimony to prove elements of a claim under the res ipsa loquitur doctrine was barred due to the Certificate of Merit election imposed by Rule 1042.3(a)(1).

The court essentially held that if a plaintiff completes a Certificate of Merit and certifies that expert testimony is not necessary to prosecute the action, the plaintiff is thereafter barred from presenting expert testimony related to proving the claim including testimony related to standard of care and causation.

The Mertzig case involved a medical malpractice claim.  The Plaintiff underwent knee replacement surgery, which included a total left knee revision. During the procedure, the prosthetic was removed, cultured, and placed with a new device. Shortly thereafter, it was alleged that the prosthetic knee had been affected with staphylococcus capitis prior to placement in the plaintiff’s body during the surgery.

The plaintiff sued her medical providers claiming negligence, vicarious liability, and loss of consortium resulting from the staph infection. The plaintiff filed a Certificate of Merit pursuant to Pa. Rule 1042.3(a)(3), certifying as to each defendant that “expert testimony of an appropriate licensed professional regarding deviation from acceptable professional standards of care is unnecessary for prosecution of claim against the Defendant.”

During the litigation, the plaintiff produced four expert reports in support of a res ipsa loquitur theory. In response, all defendants filed Motions for Summary Judgment, arguing that Rule 1042.3(a)(3) barred the plaintiff from introducing expert testimony on the standard of care and causation after having certified that such testimony was unnecessary to prosecute the claim.
The court held that while a procedural rule, Pennsylvania Rule of Civil Procedure 1042.3(a), which requires a Certificate of Merit, has the effect of state substantive law.

The court noted that 1042.3(a) clearly provides certifying that expert testimony is not required is almost always irrevocable.  The court also noted that the Pennsylvania Supreme Court has not addressed this specific issue.  The Eastern District relied upon Pennsylvania Superior Court case of Vazquez v. CHS Prof’l Practice, P.C., 39 A.3d 395, 399 n.3 (Pa. Super. 2012).

In the absence of guidance from the Pennsylvania Supreme Court on the issue presented, the Eastern District went on to rule that, absent exceptional circumstances, a party is bound by its certification, and when a party certifies no expert testimony is needed, it may not introduce expert testimony on the standard of care and causation on a res ipsa loquitur claim at trial.

Because the plaintiff was unable to support the claims without expert testimony, the defendant’s Motion for Summary Judgment was granted.

Anyone wishing to review this decision in the case of Mertzig v. Booth, may click this LINK.

I thank Attorney Stephen Franko of the Scranton office of the law firm of Cipriani & Werner for bringing this case to my attention and for allowing me to paraphrase from his synopsis of the case to serve as the basis for this Tort Talk blog post.

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