Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

WILLIAMS v. KORT

December 8, 2005.

ANTHONY M. WILLIAMS, Plaintiff
v.
DR. JOSEPH KORT, SCI-Coal Township; KAREN OHLER DOE, SCI-Somerset; DR. BAKER, SCI-Albion; and BRADLEY LORAH, SCI-Coal Township, Defendants.



The opinion of the court was delivered by: SYLVIA RAMBO, District Judge

MEMORANDUM

Before the court is Plaintiff's motion pursuant to Federal Rule of Civil Procedure 60(b) (Doc. 135) and Defendants' second motion for summary judgment (Doc. 141). The parties have briefed the issues and the matters are ripe for disposition. For the reasons that follow, the court will grant Plaintiff's motion and deny Defendants' motion.

The history of this case is well known to both parties and the court need not recite the facts in-depth. At issue before the court is whether Plaintiff is required to file a certificate of merit pursuant to Pa.R.C.P. 1042.3*fn1 and whether Defendants are entitled to summary judgment.

  I. Plaintiff's Rule 60(b) Motion

  On April 6, 2005, the court granted in part and denied in part Defendants' motion to dismiss or in the alternative for summary judgment. (See Docs. 103, 104.) Following the court's April 6, 2005 order, the only issue remaining in the case was Plaintiff's pendent state medical malpractice claim. On April 7, 2005, Defendants filed a praecipe for entry of judgment non pros pursuant to Pa.R.C.P. 1042.6.*fn2 (Doc. 105.) The court denied Defendants' praecipe; however, the court issued an order requiring Plaintiff to file a certificate of merit. (Doc. 106.)

  On September 29, 2005, Plaintiff filed a Rule 60(b) motion arguing that he should not be required to file a certificate of merit. (Doc. 135.) Specifically, Plaintiff asserts that the Pennsylvania Rule of Civil Procedure certificate of merit requirement was enacted after Plaintiff filed his complaint and that the certificate of merit requirement is not retroactively applicable. On October 14, 2005, Defendants filed a response to Plaintiff's Rule 60(b) motion. (Doc. 139.) Defendants do not disagree that the certificate of merit requirement was enacted after Plaintiff filed his complaint; however, Defendants argue that the requirement should be applied retroactively. The court disagrees with Defendants. Plaintiff will not be required to file a certificate of merit. However, for reasons that will follow, the court finds that expert testimony will be required if this case proceeds to trial. Thus, Plaintiff will be required to file an expert report.

  II. Defendants' Motion for Summary Judgment

  As stated, the only remaining issue in this case is Plaintiff's pendent state medical malpractice claim. On October 28, 2005, Defendants filed a second motion for summary judgment. (Doc. 141.) Defendants argue that summary judgment should be granted because Plaintiff has failed to present expert testimony to support his state medical malpractice claim. In response, Plaintiff asserts that Defendants' motion should be denied because the time for filing an expert report has not yet expired. Additionally, Plaintiff argues that he need not produce an expert witness to support his state medical malpractice claims.

  The court agrees in part and disagrees in part with Plaintiff. The court finds that summary judgment should not be entered at this stage. There has been no date set for the production of an expert report; thus, summary judgment based on Plaintiff's failure to produce expert testimony would, at this time, be improper. However, the court finds that Plaintiff's state medical malpractice claim will require expert testimony. "A plaintiff is . . . required to present an expert witness who will testify, to a reasonable degree of medical certainty, that the acts of the physician deviated from good and acceptable medical standards, and that such deviation was the proximate cause of the harm suffered." Mitzelfelt v. Kamrin, 584 A.2d 888, 892 (Pa. 1990) (citing Brannan v. Lakenau Hospital, 417 A.2d 196 (Pa. 1980)).

  Plaintiff argues that his state medical malpractice claim can be sustained on a theory of res ipsa loquitur and that he need not provide expert testimony. Plaintiff is incorrect. Plaintiff cites to Jones v. Harrisburg Polyclinic Hospital, 437 A.2d 1134 (Pa. 1981) in support of his position. The Jones Court stated that "[e]xpert medical testimony only becomes necessary when there is no fund of common knowledge from which laymen can reasonably draw the inference or conclusion of negligence." Id. at 1138. Because the issues in the instant case are nuanced, the court cannot expect laypeople to make reasonable conclusions without the aid of expert medical testimony. There is no "fund of common knowledge" with respect to issues such as when is a doctor negligent for failing to provide an MRI or what constitutes a negligent diagnosis of a meniscus tear. These issues must be addressed by an expert. Accordingly, pursuant to Federal Rule of Civil Procedure 26(a)2 Plaintiff must produce an expert report.*fn3

  III. Conclusion

  In accordance with the foregoing discussion, the court will grant Plaintiff's Rule 60(b) motion and deny Defendants' motion for summary judgment. The court finds that Plaintiff need not file a certificate of merit; however, expert testimony will be necessary if this case proceeds to trial. Thus, Plaintiff must produce an expert report. Failure by Plaintiff to produce an expert report within the time period set forth in the accompanying order will result in the dismissal of Plaintiff's pendent state medical malpractice claim. An appropriate order will issue. ORDER

  In accordance with the foregoing memorandum of law, IT IS HEREBY ORDERED THAT:

  1) Plaintiff's motion pursuant to Federal Rule of Civil Procedure 60(b) (Doc. 135) is GRANTED. Plaintiff is ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.