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Virginia Mertzig, et al. v. Robert E. Booth

April 25, 2012


The opinion of the court was delivered by: Savage, J.


The threshold issue in this medical malpractice case is whether Rule 1042.3 of the Pennsylvania Rules of Civil Procedure permits a plaintiff invoking res ipsa loquitur to rely upon expert testimony after having certified that such testimony was unnecessary. In other words, is a plaintiff who seeks to use expert testimony to invoke the res ipsa loquitur doctrine in a professional malpractice action excused from the certificate of merit requirement imposed by Rule 1042.3(a)(1)?

We hold that the plaintiffs, Virginia and Robert Mertzig, are bound by their certification that expert testimony is not necessary to prosecute their action and they may not present expert testimony on questions of standard of care and causation.*fn1 Because the Mertzigs cannot support an inference of negligence in this medically complex case without expert testimony,*fn2 we shall grant the defendants' motions for summary judgment.


On May 29, 2007, Virginia Mertzig underwent knee replacement surgery performed by Dr. Robert Booth, at Pennsylvania Hospital. Following her surgery, she experienced persistent pain and stiffness in her knee. She was ultimately diagnosed with a loosening of the prosthetic components, requiring a total left knee revision, which took place on May 5, 2009. During this procedure, the prosthetic device was removed, cultured, and replaced with a new device. The culture tested positive for the bacterium Staphylococcus capitis ("staph"). Virginia Mertzig claims that she was told by an infectious disease specialist on March 11, 2009 that the prosthetic knee was infected when it was placed in her body during the May 29, 2007 surgery.

The Mertzigs brought this action against Dr. Booth, 3B Orthopaedics, and Pennsylvania Hospital, claiming negligence, vicarious liability and loss of consortium resulting from the staph infection. On July 21, 2011, the Mertzigs filed certificates of merit pursuant to Pennsylvania Rule of Civil Procedure 1042.3(a)(3), certifying as to each defendant that "expert testimony of an appropriate licensed professional regarding deviation from acceptable professional standards of care is unnecessary for prosecution of the claim against this defendant." Despite these certifications, five months later, they produced four expert reports to the defendants. They now rely upon these experts' opinions to support their res ipsa loquitur theory.

All defendants have filed motions for summary judgment. Pennsylvania Hospital argues that because Rule 1042.3(a)(3) bars the Mertzigs from introducing expert testimony on the standard of care and causation after they certified that such testimony was unnecessary, they cannot prove a breach of the duty of care. Acknowledging that they must offer expert testimony to pursue their claims, the Mertzigs argue that they may do so because Rule 1042.3(a)(3)'s prohibition on expert testimony does not apply when the plaintiff invokes res ipsa loquitur. The defendants contend that even if the Mertzigs' expert reports were admissible, they still could not establish the elements of res ipsa loquitur.

Standard of Review

Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Judgment will be entered against a party who fails to sufficiently establish any element essential to that party's case and who bears the ultimate burden of proof at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In examining the motion, we must draw all reasonable inferences in the non-movant's favor. InterVest, Inc. v. Bloomberg, L.P., 340 F.3d 144, 159-60 (3d Cir. 2003).

The initial burden of demonstrating there are no genuine issues of material fact falls on the moving party. Fed. R. Civ. P. 56(a). Once the moving party has met its burden, the nonmoving party must counter with "'specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation omitted). The non-movant must show more than the "mere existence of a scintilla of evidence" for elements on which she bears the burden of production. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). Bare assertions, conclusory allegations or suspicions are not sufficient to defeat summary judgment. Fireman's Ins. Co. v. DuFresne, 676 F.2d 965, 969 (3d Cir. 1982). Thus, "[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no 'genuine issue for trial.'" Matsushita, 475 U.S. at 587 (citation omitted).

The issue raised in this case is appropriate for summary judgment. Whether an inference of negligence may be drawn from the circumstances surrounding an injury is a matter for the court's determination. Restatement (Second) of Torts § 328D(2) (1965).


Res ipsa loquitur is a rule of evidence permitting an inference of negligence from the circumstances surrounding the injury. Quinby v. Plumsteadville Family Practice, Inc., 907 A.2d 1061, 1071 (Pa. 2006). The Pennsylvania Supreme Court has adopted res ipsa loquitur as articulated in the Restatement (Second) of Torts § 328D. Id. (citation omitted). Under § 328D, it may be inferred that the harm suffered was caused by the negligence of the defendant when: (a) the event is the kind which does not ordinarily occur in the absence of negligence; (b) the evidence sufficiently eliminates other possible causes, including the conduct of the plaintiff and third parties; and (c) the indicated negligence is within the scope of the defendant's duty to the plaintiff. If the court determines that these prerequisites are met, it is for the jury to determine whether an inference of negligence should be drawn. See Toogood v. Rogal, 824 A.2d 1140, 1149-50 (Pa. 2003) (plurality) (holding that before res ipsa loquitur may be invoked, plaintiffs must meet the three § 328D conditions).

The Mertzigs Are Bound By Their Certification That Expert Testimony Is Unnecessary Under Pennsylvania law, a plaintiff bringing a professional malpractice action must, at the outset of the action, certify either that an expert has stated that there was malpractice or that an expert is not necessary to prosecute the action. Pa. R. Civ. P. 1042.3(a). The ...

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