Trial Court Addresses Whether a Certificate of Merit is Required

In the case of Muniz-Colon v. Friends Hospital, Sept. Term, 2025, No. 0068500065 (C.P. Phila. Co. Jan. 12, 2026 Hill, J.), the court addressed the issue of when a Certificate of Merit may be required for a professional negligence case.

According to information gathered on this case, the Plaintiff in this matter was allegedly brought to the hospital where he was allegedly assaulted and apparently knocked unconscious by the staff as he was allegedly being admitted to the facility on a 302 admission.

In response to the lawsuit filed, the Defendants all filed Motions for Non Pros due to the failure of the Plaintiff to present a Certificate of Merit under the MCARE statute.

Plaintiff’s counsel filed a Motion under Pa. R.C.P. 1042.6(c) for a determination as to whether a Certificate of Merit was required or not.

In its decision, the court ruled that the alleged assault may have indeed occurred in the course of a professional relationship given that it occurred during the admissions process. However, the court ruled the allegations in the Complaint as involving alleged negligence that did not involve medical judgment. 

Accordingly, the court ruled that no Certificate of Merit was required for the case presented.

Anyone wishing to review a copy of this decision may click this LINK.


I send thanks to Attorney Robin Feeney of the Philadelphia law firm of Matkoff, Shengold, Berman, Goodnow & Associates, P.C. for bringing this case to my attention.

U.S. Supreme Court Decision Ruling that Delaware Rule Requiring Certificate of Merit for Professional Liability Claims Has Implications In Pennsylvania Matters

In the United State Supreme Court case of Berk v. Choy, No. 24-440 (U.S. Jan. 20, 2026) (Op. by Barrett, J.), the United States Supreme Court held that a Delaware law requiring a Plaintiff suing for medical malpractice to provide an affidavit from a medical professional attesting to the merit of the claims presented in the law suit conflicts with valid Federal Rule of Civil Procedure and, as such, does not apply in federal court proceedings.

According to commentators, this United States Supreme Court decision can be read as establishing that Pennsylvania's requirements for a Certificate of Merit in professional negligence in state court matters would not apply in the federal courts of Pennsylvania.

As such, these commentators have suggested that, in those cases where a plaintiff can establish diversity jurisdiction in order to get into federal court, those plaintiffs may opt to proceed in federal court where they need not secure and produce a Certificate or Merit before proceeding with a professional negligence claim, such as a medical malpractice claim or a legal malpractice claim.   

Anyone wishing to review a copy of this decision may click this LINK.

I send thanks to Attorney Thomas J. Foley, III of the Foley Law Firm in Scranton, PA for bringing this decision to my attention.

Source of image:  Photo by Fine Photographics on www.pexels.com.

Trial Court Refuses to Grant Plaintiff an Extension to Secure a Proper Certificate of Merit

In the case of Winters v. Patient First Pennsylvania Medical Group, No. 2024-03638-PL (C.P. Chester Co. Dec. 17, 2024 Binder, J.), the court denied a Plaintiff’s Motion for Additional Time to Provide a Certificate of Merit in support of a medical malpractice claim.

In this matter, the Plaintiff sued the Defendant medical providers relative to alleged negligence in prescribing certain medications to the Plaintiff’s minor daughter.

The court denied the Plaintiff’s Motion after finding that the Plaintiff failed to demonstrate good cause for an extension of time.

The Court noted that the Plaintiff’s counsel merely cited conflicting litigation and work demands.  Plaintiff's counsel also offered speculative reliance on his hope that the Plaintiff’s former physician would provide the necessary written statement. 

The court otherwise granted the Defendant’s Motion to Strike a Purported Certificate of Merit that the Plaintiff had previously produced. The court found that the previously provided written statement pursuant to Pa. R.C.P. 1042.3(e) was insufficient given that it was written by a pharmacist.

Anyone wishing to review a copy of this decision may click this LINK.


Source: The Legal Intelligencer Common Pleas Case Alert, www.Law.com (Aug. 14, 2025).

Plaintiff Cannot Compel a Doctor to Provide a Certificate of Merit if the Doctor Does Not Wish To

In the case of Berk v. Rothman Institute Orthopedic Foundation, No. 23-1437 (E.D. Pa. March 28, 2024 Murphy, J.),  a Plaintiff sued his own doctors who declined to give him a Certificate of Merit to allow the Plaintiff to pursue a medical malpractice claim against other doctors.  The Plaintiff sued the doctors in an effort to compel them to provide him with the Certificate of Merit.

The court granted the doctors' Motion to Dismiss after finding that treating physicians do not owe their patients any fiduciary duty to provide them with a Certificate of Merit that would allow the patient to sue other doctors for medical malpractice.

The rationale for this decision was, in part, the general rule that potential experts may not be compelled to issue expert opinions against their will.

The court otherwise found that there is no valid cause of action for an alleged intentional deprivation of legal recourse for an alleged injury.

Anyone wishing to review a copy of this decision may click this LINK.  The Court's companion Order can be viewed HERE.


I thank Attorney James M. Beck of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention.

Source of image:  Photo by Sasun Bughdaryn on unsplash.com.

Certificate of Merit Requirements Also Apply in Federal Court

In the case of Rightmyer v. Philly Pregnancy Center, P.C., No. 23-1925 (E.D. Pa. March 1, 2024 Quinones Alejandro, J.), the court granted a Defendant’s Motion to Dismiss after finding that the Certificate of Merit requirements for medical malpractice claims in Pennsylvania also apply in federal court.

In this case, the court ruled that a nurse is not qualified to execute a required Pennsylvania Certificate of Merit in a medical malpractice action against a medical doctor.

The court additionally found that the Plaintiff failed to plead a claim for negligence infliction of emotional distress in this case.

Anyone wishing to review a copy of this decision may click this LINK.  The Court's companion Order can be viewed HERE.


I send thanks to Attorney James Beck of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention.

Third Circuit Rules that Federal Tort Claims Act Does Not Incorporate Certificate of Merit Requirements

In the case of Wilson v. U.S., No. 22-1940 (3d Cir. Aug. 21 2023 Chagares, C.J., Bibas, J., and Matey, J.) (Op. by Chagares, C.J.), the Third Circuit Court of Appeals ruled that a district court erred in granting summary judgment to the government based upon the failure of a pro se prisoner to produce an expert report in a medical malpractice action.

The court ruled that the Federal Tort Claims Act did not incorporate the Certificate of Merit requirement found under Pa. R.C.P. 1042.3.

The appellate court also noted that the pro se prisoner Plaintiff did not otherwise have an adequate opportunity to seek out an expert or to conduct discovery due to his circumstances as an inmate during the COVID-19 pandemic.

Anyone wishing to review a copy of this decision may click this LINK.


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Sept. 21, 2023).

Certificate of Merit Report Found To Be Good Enough To Start Case, But Not To Take Case To Trial

In the case of Dodson v. Univ. of Pitts. Med. Ctr., No. CV-19-01803 (C.P. Lyc. Co. Jan. 9, 2023 Linhardt, J.), the court granted a medical malpractice Defendant’s Motion for Summary Judgment after finding that, while a Plaintiff produced a physician’s statement that satisfied the Pennsylvania Rules of Civil Procedure regarding Certificate of Merit given that statement asserted that deviations from some applicable standard of care likely caused the Plaintiff’s injuries, that same statement was found to have failed to establish the elements of the Plaintiff’s medical malpractice claim to a prima facie level to enable the Plaintiff to proceed to a jury trial.

This matter arose out of medical treatment that included surgery which the Plaintiff alleged resulted in a serious infection that required additional surgery. The Plaintiff alleged that the Defendant was negligent in the performance of both procedures, which resulted in a below knee amputation.

The court found that the Plaintiff’s physician’s statement was conclusory, lacking in detail, and was based upon limited medical information. While the Certificate of Merit was challenged earlier in the case, the case was allowed to proceed because the Certificate of Merit asserted some deviation from an applicable standard of care and contained a conclusion that those deviations likely caused the Plaintiff harm.

However, at this later summary judgment stage, the court noted that, in medical malpractice suits, parties are required to produce their expert reports in order to proceed to a trial. In this matter, the Defendant asserted that the Plaintiff failed to produce any expert report other than the above statement that had been provided relative to the Certificate of Merit.

The court agreed and found that the statement provided by the Plaintiff with the Certificate of Merit failed to establish the elements of the Plaintiff’s medical malpractice claim to even a prima facie level.

The court noted that, when it had previously denied the Defendant’s Motion to Strike the Certificate of Merit, the court had foreshadowed in that decision that the Plaintiff had failed to produce any evidence that any particular doctor had violated any duty of care while treating the Plaintiff.

Judge Linhardt otherwise noted that the mere fact of an infection, or of a surgical complication, in and of itself, was insufficient, in and of itself, to establish that negligence had occurred, let alone who was responsible for it.

As such, the Defendant’s Motion for Summary Judgment was granted.

Anyone wishing to review a copy of this decision may click this LINK.


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Feb. 21, 2023).

Superior Court Affirms Entry of Judgment Non Pros in Favor of Medical Malpractice Defendants Based Upon Deficient Language in Certificates of Merit

In the non-precedential decision by the Pennsylvania Superior Court in the case of Monger v. Encompass Health Rehab. Hosp. of Reading, LLC, No. 862 M.D.A. 2021 (Pa. Super. Feb. 10, 2022 Olson, J., Kunselman, J., and Pellegrini, J.) (Op. by Olson, J.), the court affirmed a trial court’s denial of a Plaintiff’s Motion to Open Judgments of Non Pros entered in favor of the medical malpractice Defendants which judgments were entered based upon Certificates of Merit that were found to be deficient, in part, with regards to the language that is statutorily required to be contained in such documents.

Anyone wishing to review this non-precedential Opinion may click this LINK.


I send thanks to Attorney Anthony J. Gabriel of the Camphill, PA office of Margolis Edelstein for bringing this decision to my attention.

Sanctions Order Regarding Certificate of Merit Vacated on Appeal

In the case of Green v. The Trustees of the University of Pennsylvania, 2021 Pa. Super. 2009 (Pa. Super. Oct. 19, 2021 Bowes, J.), the court addressed the rules surrounding Certificate of Merit, the failure to produce one, and the possible sanctions as a result.

The Pennsylvania Superior Court described its opinion in this case as a “cautionary tale for attorneys or venture outside their area of expertise into unfamiliar specialized area of litigation without educating themselves on the applicable rules and law.”

This case arose out of a medical malpractice claim.

In its decision, the Pennsylvania Superior Court reviewed the current status of the law on sanctions under Pa.R.C.P. 1023.1 Pa.R.C.P. 1023.4 and Pa.R.C.P. 1042.

In the end, the appellate court vacated the trial court's entry of sanctions in the amount of over $84,000 and remanded the case for further analysis of the request for sanctions under the standard of review outlined in this case.

Anyone wishing to review a copy of this decision may click this LINK.


I send thanks to Attorney Daniel J. Siegel of the Law Offices of Daniel J. Siegel in Havertown, Pennsylvania for bringing this case to my attention.

Source of image:  Photo by Sora Shimazaki from Pexels.com.

Parts of Medical Malpractice Claim Dismissed Due to Lack of Certificate of Merit; Punitive Damages Claim Allowed to Proceed

In the case of Kinard v. Butler Memorial Hospital, No.30002 of 2019, C.A. (C.P. Lawr. Co. March 11, 2020 Motto, P.J.), the court sustained in part and denied in part Preliminary Objections filed on behalf of various Defendants in a medical malpractice claim after finding, in part, that the Plaintiffs’ Certificate of Merit only supported the Plaintiffs’ claim for vicarious liability and not corporate negligence. 

According to the Opinion, the allegations of corporate negligence of the hospital was based upon negligent acts of the institution itself arising from the policies and actions or in-action of the institution, rather than any specific acts of any hospital employees. 

The court noted that the Certificate of Merit produced by the Plaintiffs only addressed the negligence of medical professionals providing treatment at the hospital and not any alleged institutional negligence. Given that the Certificate of Merit only addressed issues of vicarious liability, and not corporate negligence, the court sustained the Defendant’s Preliminary Objection with respect to the claim of corporate negligence. 

The Opinion is also notable in that the court found that the Complaint stated sufficient facts to allow the Plaintiffs’ punitive damages claim to go forward. 

The court also sustained Preliminary Objections filed on behalf of a nurse practitioner under the argument that the nurse practitioner only saw the Plaintiff once and that was for a different medical issue unrelated to the central claim presented in this case. The claim against the nurse practitioner was stricken from the Complaint. 

Anyone wishing to review a copy of this decision may click this LINK.

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (May 12, 2020).

Negligent Hiring/Supervision Claim Against Hospital Allowed To Proceed in Absence of Certificate of Merit

In the case of Joyner v. St. Luke’s Univ. Hosp., No. 2018-C-1033 (C.P. Leh. Co. Oct. 19, 2018 Johnson, J.), the court overruled a hospital’s Preliminary Objections asserting that the Plaintiff’s claims against the hospital for negligent hiring and supervision could not proceed in the absence of a Certificate of Merit.  As such, the Plaintiff was permitted to proceed on the claims presented.

The court ruled in this fashion after finding that the Plaintiff’s claim sounded in ordinary negligence and not professional negligence.  

In this matter, the Plaintiff alleged that she was sexually assaulted by an employee of the hospital while the Plaintiff was a patient at the hospital.   The Complaint asserted a claim against the hospital for negligent hiring, supervision, and training.  

After the Complaint was filed, the hospital filed a Notice of Intention to Enter a Judgment of Non Pros on a professional liability claim because Plaintiff did not file a Certificate of Merit.  

The Plaintiff responded with a Motion to Determine a Necessity of Filing a Certificate of Merit Pursuant to Pa.R.C.P. 1042.6.   The hospital then filed a Preliminary Objection as to the sufficiency of the Plaintiff’s claim against it.  

As stated, the court found that the Complaint asserted an ordinary negligence claim for which a Certificate of Merit was not required.   The court more specifically stated that the Plaintiff’s claim against the hospital did not raise questions of medical judgment, allege substandard medical treatment, or allege that the hospital’s actions fell below a professional or medical standard.   

The court additionally found that a jury could determine whether the hospital allegedly breached its duty to properly hire, supervise, and train its employee without any need for expert opinion.  

Accordingly, the court found that the Plaintiff could proceed in this claim without the necessity of filing a Certificate of Merit.

Anyone wishing to review a copy of this decision may click this LINK.

Source:  “Digest of Recent Opinions.”  Pennsylvania Law Weekly (Feb. 26, 2019).  

Non Pros Default Judgment Entered Due to Faulty Certificates of Merit Stricken Due to No Prejudice Arising From Technical Errors

In the medical malpractice case of Leo v. Geisinger Community Medical Center, No. 17-CV-5805 (C.P. Lacka. Co. Oct. Sept. 25, 2018 Nealon, J.), the court granted Plaintiff relief from non pros judgments pursuant to Pa.R.C.P. 3051, pertaining to Certificates of Merit.  

According to the Opinion, this medical malpractice action arose out of allegations pertaining to thyroid surgery and treatment.  

The Plaintiff’s Complaint asserted various malpractice claims and attached a report authored by the Defendant surgeon which arguably contained admissions regarding the alleged surgical and pathological errors.  

The Plaintiff filed Certificates of Merit as to each Defendant but inadvertently failed to check the appropriate boxes on the form to indicate that the Plaintiff possessed expert support for the negligence and vicarious liability claims or, in the alternative, was proceeding based upon the theory of res ipsa loquitur.

The Defendants filed Judgments of Non Pros pursuant to Pa.R.C.P. 1042.7 based upon the Plaintiff’s alleged failure to satisfy the Certificate of Merit requirement contained in Pa.R.C.P. 1042.3.  

When the Plaintiff filed a Petition for Relief from the Non Pros Judgments, the Clerk of Judicial Records struck those judgments. The Defendants responded with the motion at issue seeking to strike the Plaintiff’s Petition and reinstate the non pros judgments.   

After reviewing the law pertaining to relief from non pros judgments, the court noted that the Plaintiff had timely filed the Petition for Relief within nine (9) days of entries of the judgment and the parties’ submissions confirmed that the initial failure to check the indicated boxes on the Certificates of Merit forms was attributed to an oversight or mistake by the secretary for Plaintiff’s counsel during Plaintiff’s counsel’s period of medical incapacity and convalescence.

 The court also noted that, in addition to furnishing a reasonable explanation for the original default, which was subsequently cured by the filing of corrected Certificates of Merit, the Plaintiff had also provided factual support for concluding that her claims against the Defendants were supported by expert testimony and were potentially meritorious in any event.  

Judge Nealon further ruled that, since the defense counsel and the carriers were apprised by the Plaintiff’s theories of liability and the identity of her expert witness prior to the filing of the Plaintiff’s flawed Certificates of Merit, there was no prejudice to the Defendants by virtue of the Plaintiff’s belated filing of a fully compliant Certificate of Merit.   Judge Nealon therefore reasoned that Rule 1042.3’s purpose of eliminating meritless malpractice suits at their inception would not be frustrated by allowing this litigation to proceed.

Accordingly, the court found the Plaintiff was indeed entitled to relief from the non pros judgments pursuant to Pa.R.C.P. 3051.  Consequently, the Defendants’ Motion to Strike the Plaintiff’s Petition for Relief and to Re-enter the Non Pros Judgments was denied.  

Anyone wishing to review this Opinion may click this LINK.

Certificate of Merit Required to Support a Direct Corporate Negligence Claim Against a Licensed Medical Corporation

In his recent decision in the case of Goodfellow v. Camp Netimus Inc., 2017 U.S. Dist. Lexis 68140 (M.D. Pa. May 4, 2017, Mannion, J.), the court granted in part and denied in part a Motion to Dismiss in a case involving a claim of direct corporate negligence.  

A copy of this decision can be viewed online HERE.

I send thanks to Attorney James Beck of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention.  

The Pennsylvania Supreme Court Analyzes the Gist of the Action Doctrine and The Certificate of Merit Rules

In a wordy December 15, 2014 decision in the homeowner's insurance contract dispute case of Bruno v. Erie Insurance, No. 25 WAP 2013 (Pa. Dec. 15, 2014)(Op. by Todd, J.) (Concurring Op. by Eakin, J.), the Pennsylvania Supreme Court offered its latest detailed analysis of the "gist of the action" Doctrine, as well as the scope of the Certificate of Merit rules in professional negligence claims.

This matter involved a contractual dispute between insureds and their homeowner's carrier over the alleged existence of mold in the insured's home and how to remedy the same. The insureds attempted to include in their suit a negligence claim against the engineer retained by the carrier to evaluate the alleged mold condition.

The homeowner's insurance carrier Defendant filed preliminary objections asserting that the gist of the action doctrine barred the Plaintiff's pursuit of a negligence claim arising out of the same allegations as involved in the breach of contract action.

The engineering expert filed preliminary objections asserting that the claim against him was barred due to the Plaintiff's failure to secure a Certificate of Merit to support the negligence claim against that professional defendant.

After extensively reviewing essentially the entire history of the doctrine, the Supreme Court ruled that the negligence action asserted in this matter against the homeowner's carrier based upon the alleged misdeeds and/or omissions of the carrier's adjuster or its retained engineering expert was not barred by the "gist of the action" doctrine.  The court found that that the allegations of negligence on the part of a person or persons performing the duties under, or in furtherance of, the contract are, as a matter of law, not to be viewed as a cause of action based upon the underlying contract since such claims are not founded upon the breach of any of the specific promises that make up the contract, but rather the negligent acts or omissions of an agent of the homeowner's carrier.  See Maj. Op. at p. 35, 36-37.

In other words, while the homeowner's carrier had contractual duties to properly investigate whether mold existed, and to pay for property damage caused by the mold, the focus of the allegations by the insured was not that the carrier failed in meeting these contractual obligations, but rather, that, in the course of attempting to fulfill these obligations, representatives of the carrier (the adjuster and the expert retained by the carrier) acted negligently in their dealings with the insureds.  As such, the Plaintiff's were alleging a breach of a social duty in this regard as opposed to any breach of the contract terms.

Accordingly, the court found that the Plaintiff's negligence claims against the carrier were not barred by the "gist of the action" doctrine.

The Court also addressed the issue of whether the insureds were required to secure a Certificate of Merit under Pa.R.C.P. 1042.1 and 1042.3 in order to be able to proceed on their negligence claim against the engineer retained by the carrier to inspect the mold conditions. 

After studying the wording of the Rules, the Pennsylvania Supreme Court ruled that the insureds were not required to obtain a Certificate of Merit in order to proceed with their negligence suit against the engineer, since they were not patients or clients of the engineering company which employed that expert.  Stated otherwise, as the Plaintiffs were not the party who retained the expert, they were not required by the applicable Rules to secure a Certificate of Merit relative to their pursuit of a negligence claim against the engineer.

Overall, the Supreme Court reversed the Superior Court and remanded for further proceedings.

Anyone wishing to review the Pennsylvania Supreme Court's majority Opinion decision in the Bruno v. Erie Insurance case may click this LINK.

The Concurring Opinion by Justice Eakin, joined in by Chief Justice Castille, can be viewed HERE.  Justice Eakin and Chief Justice Castille agreed with the majority Opinion but cautioned that the "broad pronouncement" in the majority Opinion suggesting that finding negligent actions by a contracting party do not arise out of the contract does not fully comport with the gist of the action Doctrine and may represent a painting of the issue with too broad a brush.

 

I send thanks to Attorney Andrew L. Braunfeld of the Conshohocken law firm of Masterson Braunfeld LLP for bringing this case to my attention.

Judge Minora of Lackawanna County Provides Lessons on Proper Pleading of Punitive Damages in Auto Accident Case

Hon. Carmen D. Minora
Lackawanna County

In his recent decision in the case of Calhoun v. Burns, No. 12-CV-2915 (C.P. Lacka. Co. Feb. 26, 2013 Minora, J.), Judge Carmen D. Minora of the Lackawanna County Court of Common Pleas addressed various Preliminary Objections filed by the Defendants to a Plaintiffs’ Complaint in an auto accident matter. 

By way of background, this matter involves a motor vehicle accident in which all Plaintiffs were passengers in a bus that was involved in a motor vehicle accident.  

After reviewing the Complaint and the challenges set forth in the Preliminary Objections, the Court ruled that all allegations as to recklessness, wanton, gross, and willful misconduct were to be stricken from the Plaintiff’s Complaint.  The Court did note that if discovery later revealed facts supporting such allegations, the Plaintiff would have the right to seek to amend and reinsert such language after which the Defendants would again have the right to object if warranted.   In his Opinion in this Calhoun case, Judge Minora provides a thorough overview of the law applicable to this type of pleading.  

The Court also sustained the Defendants’ Preliminary Objections as to generalized allegations of negligence where certain paragraphs in the Plaintiffs’ Complaint did not contain factual averments sufficiently specific enough to put the Defendants on notice of the particular allegations of negligence asserted against them.  

The Court also struck punitive damages language from the Plaintiffs’ Complaint given that no facts were alleged to set forth the essential factual circumstances under which punitive damages would be permitted under Pennsylvania law.  

Anyone desiring a copy of this case may contact me at dancummins@comcast.net. 

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.