United States District Court, M.D. Pennsylvania
December 8, 2005.
ANTHONY M. WILLIAMS, Plaintiff
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
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
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
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
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 not
required to file a certificate of merit.
2) Defendants' motion for summary judgment (Doc. 141) is
3) Plaintiff shall submit an expert report no later than
February 27, 2006. Failure by Plaintiff to submit an expert
report shall result in the dismissal of Plaintiff's case.
4) Jury selection and trial in the captioned case will begin on
May 4, 2006 at 1:30 p.m. in Courtroom No. 3, Eighth Floor,
Federal Building, Third and Walnut Streets, Harrisburg,
5) The Clerk of Court shall send to Plaintiff a copy of this
court's "Pretrial Memorandum" form. 6) No later than April 14, 2006, the parties shall file
pretrial memoranda in accordance with the local rules of this
court. Plaintiff shall also file in camera with the court an
addendum to his pretrial memorandum indicating the name and
substance of the testimony of each witness he intends to call.
Plaintiff is to note that "in camera" refers to the fact that the
court will not disclose his witness list and proposed witness
testimony. Failure to timely file pretrial memoranda or the
required addendum may result in sanctions, including dismissal.
7) If the parties file trial memoranda, they must be filed five
(5) business days before trial.
8) Whenever any civil action scheduled for jury trial is
settled or otherwise disposed of in advance of trial, jurors'
costs, including mileage and per diem, shall be assessed equally
against the parties unless the Clerk's Office at the place the
trial is to be held is notified of the settlement in sufficient
time to permit the Clerk to advise the jurors that their
attendance will not be necessary. Clerk's Office before 5:00 p.m.
on the last business day preceding the day on which the trial of
the action is to start shall be adequate for such purpose.
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