The opinion of the court was delivered by: Chief Judge Kane
On January 28, 2011, this Court issued an order adopting Magistrate Judge Smyser's report and recommendation that Plaintiff Kenneth Scales's complaint be dismissed without prejudice. (Doc. No. 63.) Plaintiff filed an amended complaint on March 28, 2011. (Doc. No. 66.) Defendants Barry Beaven and Philip Richardson filed a motion to dismiss the amended complaint on April 8, 2011. (Doc. No. 69.) On July 13, 2011, Magistrate Judge Smyser issued a report and recommendation that Plaintiff's amended complaint be dismissed with prejudice as to the claims against Defendants Beaven and Richardson. (Doc. No. 79.) Plaintiff filed objections to the report and recommendation on July 27, 2011. (Doc. No. 80.) Defendants Beaven and Richardson filed a response to Plaintiff's objections on August 8, 2011. (Doc. No. 81.) Plaintiff raises two objections to Magistrate Judge Smyser's report and recommendation, which the Court will consider seriatim.
First, Plaintiff argues that Magistrate Judge Smyser erred in finding that Plaintiff failed to comply with Rule 1042.3 of the Pennsylvania Rules of Civil Procedure. Rule 1042.3 is a substantive state law that federal district courts must apply. Liggon-Redding v. Estate of Sugarman, No. 08-4336, 2011 U.S. App. LEXIS 20123, at *1-2 (3d Cir. Oct. 4, 2011). Pursuant to Rule 1042.3, when pursuing a claim based on a licensed professional's deviation from an acceptable standard of professional care the plaintiff must file with the complaint or within sixty days after the filing of the complaint a certificate of merit attesting 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).
In the present matter, Plaintiff filed a document entitled a "certificate of merit" asserting that expert testimony would not be necessary in this matter. (Doc. No. 66-1.) Expert testimony is required in medical malpractice cases except in those unusual cases in which "the matter is so simple or the lack of skill or care so obvious as to be within the range of experience and comprehension of even non-professional persons." Toogood v. Rogal, 824 A.2d 1140, 1145 (Pa. 2003) (quoting Hightower-Warren v. Silk, 698 A.2d 52, 54 n.1 (Pa. 1997)). Magistrate Judge Smyser reasoned that because this case is not one of those few cases in which expert testimony is not necessary, that Plaintiff's certificate of merit was not proper. (Doc. No. 79 at 15-16.) Therefore, Magistrate Judge Smyser recommended the matter be dismissed for Plaintiff's failure to file a certificate of merit. (Id.)
Plaintiff objects that he did indeed file a certificate of merit that complies with Rule 1042.3(a)(3). (Doc. No. 80 at 1.) The Court agrees that Plaintiff filed a certificate of merit.*fn1
Magistrate Judge Smyser is likely correct that medical testimony is necessary to establish Defendants' negligence. See generally Toogood, 824 A.2d at 1145. As the Third Circuit recently held on very similar facts, however, a filing that a litigant intends to proceed without an expert, even in a case where the Court believes an expert will be necessary, will satisfy Pennsylvania's certificate of merit requirement. Liggon-Redding, 2011 U.S. App. LEXIS at *17-18. Accordingly, the Court cannot adopt Magistrate Judge Smyser's recommendation regarding Plaintiff's state law negligence claim.
II. EIGHTH AMENDMENT CLAIM
Plaintiff's second objection concerns his Eighth Amendment claim. Specifically, Plaintiff objects that he properly stated an Eighth Amendment deliberate indifference claim against Defendant Beaven as to Beaven's alleged deviation from Dr. Sullivan's prescribed plan of treatment. (Doc. No. 80 at 1.) Defendant does not object to Magistrate Judge Smyser's findings as to the remaining Eighth Amendment claims against Defendant Beaven. Nor does Defendant object to Magistrate Judge Smyser's recommendation that the Court dismiss Plaintiff's Eighth Amendment claim against Defendant Richardson. Accordingly, the Court will adopt without further discussion Magistrate Judge Smyser's recommendation that the Eighth Amendment claim ...