The opinion of the court was delivered by: Chief Judge Kane
Before the Court are Defendants' motions to dismiss pursuant to Rule 41(b) of the Federal Rules of Civil Procedure for Plaintiffs' failure to file certificates of merit as required by Pennsylvania Rule of Civil Procedure 1042.3. (Doc. Nos. 31, 45.) The motion is fully briefed, the Court has heard oral argument, and the issues are ripe for disposition. For the following reasons, the Court will deny the motions to dismiss.
Plaintiffs initiated this action with the filing of a complaint in this Court on February 1, 2007, only weeks before the statute of limitations expired. (Doc. No. 1.) Plaintiff invokes federal jurisdiction based on 28 U.S.C. § 1332 because there is complete diversity of citizenship between the Plaintiffs, Florida residents, and the Pennsylvania Defendants. (Id. at ¶ 12.) The complaint alleges that the Defendants failed to diagnose nasopharyngeal cancer in Plaintiff Jillian Keel-Johnson, causing the cancer to go untreated for nine months, aggravating her condition and necessitating the termination of her pregnancy. (Id. ¶¶ 33-36.) Although clearly alleging only one cause of action; that licensed professionals deviated from the standard of care, Plaintiffs did not file a certificate of merit ("COM") in support of their complaint, which is required in any professional liability action in Pennsylvania courts. Pennsylvania Rule of Civil Procedure 1042.3(a) ("Rule 1042.3") provides:
(a) In any action based upon an allegation that a licensed professional deviated from an acceptable professional standard, the attorney for the plaintiff, or the plaintiff if not represented, 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. . . .
Pa. R. Civ. P. 1042.3(a). The parties do not dispute that the subject of this action brings it within the purview of Rule 1042.3(a). Applying the rule to this action would require that plaintiffs file their COMs by April 2, 2007, within 60 days of filing the complaint on February 1, 2007. (See Doc. No. 50 at 3.) Inexplicably, Plaintiffs filed their COMs on April 4, 2007 (Doc. Nos. 34-44), after the present motions to dismiss had already been filed.
Defendants urge the Court to apply Pennsylvania Rule 1042.3 as substantive state law and dismiss this action. Plaintiffs argue that the rule has no application in this Court. Plaintiffs urge the Court to apply the well accepted standards of Rule 41(b) of the Federal Rules of Civil Procedure and deny the motions to dismiss.
A. Applicability of the Pennsylvania COM Rule in Federal Court
1. Pennsylvania Rule 1042.3
When a federal court is exercising jurisdiction over an action with state law claims pursuant to 28 U.S.C. § 1332, it must apply state substantive law and federal procedural law. Erie R. Co. v. Tompkins, 304 U.S. 64, 79 (1938). Here, the parties agree that it is the state substantive law of Pennsylvania that would apply to the state law claims in this case. There is no dispute that Pennsylvania Rule 1042.3(a) is mandatory in actions brought in state court, and that the requirement is enforced through Rule 1042.6 (implementing notice requirements and providing for motions to challenge the necessity of a COM),*fn1 Rule 1042.7 (providing for entry of a judgment of non pros upon praecipe of defendant for failure to satisfy COM requirements), and Rule 3051 (providing grounds for a court to consider before re-opening a case after entry of a judgment of non pros). Importantly, however, the Plaintiffs argue that the COM requirement and the rules that implement it are rules of state procedure. Plaintiffs argue that the COM "is a rule of state procedure which purports to impose additional pleading requirements beyond those contained in the Federal Rules of Civil Procedure, namely, Rule 8 and Rule 11." (Doc. No. 50 at 10.) As a state procedural rule, the Plaintiffs argue that it should not be applied in federal court. Federal courts have grappled with the application of state filing prerequisites, consistently holding that these rules constitute substantive law. In Chamberlain v. Giampapa, the Third Circuit addressed the New Jersey law requiring an "affidavit of merit" in medical malpractice cases and held that the requirement did not conflict with any federal rules and was outcome determinative, therefore concluding that it was a substantive state law that must be applied by federal courts sitting in diversity. 210 F.3d 154, 159-161 (3d Cir. 2000) (citing Hanna v. Plumer, 380 U.S. 460, 470 (1965)). While Plaintiffs have tried to distinguish the New Jersey statute from the COM requirement at issue, it appears that the weight of authority has found the Giampapa reasoning applicable to the similar Pennsylvania COM rules. See, e.g., Scaramuzza v. Sciolla, 345 F. Supp. 2d 508, 510 (E.D. Pa. 2004); Stroud v. Abington Memorial Hosp., 546 F. Supp. 2d 238, 248 (E.D. Pa. 2008). The Third Circuit has also upheld application of the Pennsylvania COM rule in federal court, albeit without much discussion and in nonprecedential opinions. See, ...