The Extension to Federal Court of Pennsylvania’s Certificate of Merit Requirement
In Pennsylvania state court, any claim that a licensed professional deviated from the applicable standard of care must be accompanied by a “Certificate of Merit." This has been the case since January 2003, when the Pennsylvania Rules of Civil Procedure governing Professional Liability actions were adopted. Pursuant to the “Certificate of Merit Rules," Pa.R.C.P. 1042.3et seq.,all claims of professional negligence must include a certificate affirming that a professional has reviewed the plaintiff’s claims and, if true, the alleged conduct amounted to professional negligence. These rules govern the steps necessary to maintain a professional malpractice claim. In the event that a plaintiff fails to timely file a Certificate the defending professional may move to dismiss the claim. Although it was well established that these Rules apply in Pennsylvania state court, it was not until the Third Circuit’s recent decision inLiggons-Redding v. Estate of Robert Sugarmanthat those rules were extended to federal court as well.
The Certificate of Merit Rules: What and Why?
Pennsylvania Rule of Civil Procedure 1042.3 provides:
In any action based upon an allegation that a licensed professional deviated from an acceptable professional standard, the attorney for the plaintiff … shall file with the complaint or within sixty days after the filing of the complaint, a certificate of merit signed by the attorney or party that either
(1) an appropriate licensed professional has supplied a written statement that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm, or
(2) the claim that the defendant deviated from an acceptable professional standard is based solely on allegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable professional standard, or
(3) expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim.
These Rules apply to claims of malpractice asserted against the following professionals: health care providers, accountants, architects, chiropractors, dentists, engineers, land surveyors, nurses, optometrists, pharmacists, physical therapists, psychologists, veterinarians, and attorneys.See,Pa.R.C.P. 1042.1. Under the Certificate of Merit Rules, a professional defending such a claim hasnoobligation to respond to a complaint until 20 days after the plaintiff files the required Certificate of Merit pursuant to Pa.R.C.P. 1042.5. Moreover, the defending professional may move for entry of a judgment of non pros dismissing the malpractice claim in the event that a plaintiff does not timely file a Certificate.
The Certificate of Merit Rules were adopted in Pennsylvania as a result of the growing frequency in which professional malpractice actions “of questionable merit were being commenced." Ditch v. Waynesboro Hosp., 17 A.3d 310, 314-315 (Pa. 2011). The Pennsylvania Supreme Court utilized its constitutional rule making authority to implement “an orderly procedure that would serve to identify and weed non-meritorious malpractice claims from the judicial system efficiently and promptly." Womer v. Hilliker, 589 Pa. 256, 266-267 (Pa. 2006). A goal was to avoid the potential burdens that frivolous professional negligence claims impose upon the parties and the courts. Id. Moreover, the Certificate of Merit Rules help to minimize defense costs and the time necessary to defend such claims “until the plaintiff has been able to secure a certificate of merit," and hence affirm that the claim as alleged is meritorious if supported by the evidence. Almes v. Burket, 2005 PA Super 289, P14 (Pa. Super. Ct. 2005)
As a result of these rules, the litigation cannot proceed without a Certificate of Merit. On the one hand, the presence of a filed Certificate signals to the parties and the trial court “that the plaintiff is willing to attest to the basis of his malpractice claim; that he is in a position to support the allegations he has made in his professional liability action; and that resources will not be wasted if additional pleading and discovery take place." Womer v. Hilliker, 589 Pa. 256, 266-267 (Pa. 2006). On the other hand, however, the lack of a Certificate signals “that nothing further should transpire in the action, except for the lawsuit’s termination." Id. Hence, these rules force a complaining plaintiff to obtain independent, presumably objective, confirmation prior to initiating suit. Accordingly, the Certificate of Merit Rules go a long way to eliminate frivolous suits and provide some unique defense opportunities for the defending professional.
The Application of the Certificate of Merit Rules in Federal Court
Since their inception, the Certificate of Merit Rules have been uniformly followed throughout Pennsylvania in state courts. It was not until the Third Circuit’s recent decision inLiggons-Redding,however, that Pennsylvania joined some of its neighbors in extending the reach of the Certificate of Merit requirement to professional negligence claims in federal court as well.
By way of comparison, an affidavit of merit is required in New Jersey stateandfederal courts for certain claims of professional negligence resulting in property damage or personal injury, notably medical malpractice claims. See,N.J.S.A. §§ 2A:53A-26 to 2A:53A-29. Likewise, in stateandfederal court in Connecticut, an affidavit is required to maintain a cause of action for professional negligence against a health care provider. See,Conn. Gen. Stat. § 52-190a.
InLiggons-Redding, a pro se plaintiff alleged that her former attorney, Robert Sugarman, committed legal malpractice in an underlying medical malpractice suit. Liggons-Redding alleged that her case was dismissed because Sugarman negligently failed to retain an expert witness. In the case in chief, Sugarman’s counsel filed a motion to dismiss the complaint for failure to file a certificate of merit. The district court granted the defendant’s motion and dismissed the complaint.
On appeal, the Third Circuit Court of Appeals initially evaluated whether Pennsylvania’s Certificate of Merit Rules apply in federal court. According to the Circuit Court, a federal court sitting in diversity must apply state substantive law and federal procedural law underErie R.R. v. Tompkins, 304 U.S. 64 (1938). According to that standard, the Court determined that Pennsylvania’s Certificate of Merit Rules were substantive law and must be applied by the federal courts.
As a result, all claims of professional negligence in Pennsylvania stateandfederal court, including claims against attorneys, accountants, architects, health care providers and others, must contain a Certificate of Merit. This decision will certainly open the door to additional defenses for professionals defending claims of professional malpractice in Pennsylvania’s federal courts.