The opinion of the court was delivered by: Juan R. Sanchez, J.
Pro se Plaintiff Elizabeth Redding brings a claim for legal malpractice against the Estate of Robert Sugarman, Esquire (the Estate), arising out of Sugarman's handling of Redding's underlying medical malpractice claim. Redding alleges Sugarman caused her medical malpractice action to be dismissed because of his failure to procure an expert witness to testify in support of her claims. The Estate asks this Court to grant summary judgment in its favor, asserting Redding cannot prove her legal malpractice claim, or her underlying medical malpractice claim, without an expert witness, which she does not have and cannot obtain at this late stage of the case. For the following reasons, the Estate's motion will be granted.
In her Complaint, filed on November 19, 2007, Redding accuses Sugarman of legal malpractice as a result of his negligent representation of her in a medical malpractice case.*fn3 Pursuant to Pennsylvania Rule of Civil Procedure 1042.3, which requires a plaintiff in a professional negligence action to file a certificate of merit within 60 days after filing a complaint, Redding certified she did not need an expert to prove her case. In response, Sugarman moved to dismiss Redding's Complaint. On October 22, 2008, this Court granted Sugarman's motion, finding Redding had not complied with Rule 1042.3 because her case required an expert. Redding successfully appealed, and the Third Circuit remanded the case to this Court for further proceedings finding Redding in fact had complied with Rule 1042.3 by certifying expert testimony was not required to prove her claim. The Third Circuit found Redding's certification sufficient to "allow the case to proceed to discovery, leaving the consequence of [Redding]'s decision to be dealt with at a later stage of the proceeding, such as summary judgment or trial." Liggon-Redding v. The Estate of Robert Sugarman, 659 F.3d 258, 265-66(3d Cir. 2011). The Third Circuit did not reach the issue of whether Redding would need an expert to prove her claims. After the close of discovery in this case and after the date on which Redding's expert reports were due had passed, the Estate filed the instant motion for summary judgment based on the same premise that Redding cannot prove her legal malpractice claim, or her underlying medical malpractice claim, without an expert witness to present testimony on the standards of care for legal malpractice and medical malpractice, or on causation issues, and, therefore, judgment must be granted in favor of the Estate as a matter of law. Oral argument was held on this motion.
A motion for summary judgment shall be granted "if the movant shows there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). To defeat such a motion, the non-moving party may not rest upon the "mere allegations or denials" of the moving party's pleadings, or "bare assertions, conclusory allegations or suspicions," Ness v. Marshall, 660 F.2d 517, 519 (3d Cir. 1981), but instead must set forth specific facts showing there is a genuine issue of material fact. Fed. R. Civ. P. 56(c); Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990). "Where 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 Elec. Indus. Co., 475 U.S. at 587.
Under Erie Railroad v. Tompkins, 304 U.S. 64 (1938), a federal court sitting in diversity, as this Court is here, must apply the state's substantive law. Pennsylvania's certificate of merit requirement is a substantive rule, not a procedural requirement. Liggon-Redding, 659 F.3d at 264-65; McElwee Grp., LLC v. Mun. Auth. of Elverson, 476 F. Supp. 2d 472, 475 (E.D. Pa. 2007).
Pennsylvania Rule of Civil Procedure 1042.1 "govern[s] a civil action in which a professional liability claim is asserted against . . . an attorney at law." Pa. R. Civ. P. 1042.1(c)(2). Rule 1042.3, which requires a professional to certify the claim has merit, provides in part:
(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 . . .
(3) expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim.
Pa. R. Civ. P. 1042.3. Any plaintiff who certifies expert testimony is unnecessary pursuant to Rule 1042.3(a)(3), is "bound by the certification" and barred from "presenting testimony by an expert on the questions of standard of care and causation." Id. at 1042.3(a)(3), Note. The Certificate of Merit rule applies equally to pro se and represented litigants. Mumma v. Boswell, Tintner, Piccola & Wickersham, 937 A.2d 459, 465 (Pa. Super. Ct. 2007).
To prevail on her legal malpractice claim, Redding must prove: "(1) the employment of the attorney or other basis for duty; (2) the failure of the attorney to exercise ordinary skill and knowledge; and (3) that such negligence was the proximate cause of damage to the plaintiff." Gans v. Mundy, 762 F.2d 338, 341 (3d Cir. 1985) (quoting Schenkel v. Monheit, 405 A.2d 493, 494 (Pa. Super. Ct. 1979)). To prove damages resulting from Sugarman's alleged negligence, Redding must show she would have prevailed in her underlying medical malpractice action. ASTech Int'l LLC v. Husick, 676 F. Supp. 2d 389, 400-02 (E.D. Pa. 2009) (acknowledging the obligation in a professional negligence case to prove the underlying case and holding legal malpractice plaintiffs must prove actual loss which means they must prove that, "but for [the] attorney's negligence, a different result would have occurred in the [underlying] litigation") (citation omitted). In other words, Redding must prove "a case within a case." Javaid v. Weiss, No. 11-1084, 2011 WL 6339838, at *7 (M.D. Pa. Dec. 19, 2011) (explaining further "plaintiff must initially establish by a preponderance of the evidence that [s]he would have prevailed in the underlying action before reaching the attorney's alleged failure to exercise ordinary skill and knowledge. Thus, '[i]t is only after the plaintiff proves
[s]he would have recovered a judgment in the underlying action that the plaintiff can proceed with proof that the attorney [s]he engaged to prosecute or defend the underlying action was negligent" (quoting Kituskie v. Corbman, 714 A.2d 1027, 1030 (Pa. 1998))). The standard of care to which an attorney must adhere is measured by the skill generally possessed and employed by practitioners of the profession. Gans, 762 F.2d at 341; Beech Tree Run, Inc. v. Kates, No. 99-5993, 2000 WL 1269839, at *7 (E.D. Pa. Sept. 7, 2000) (citing Lentino v. Fringe Emp. Plans, Inc., 611 F.2d 474, 480 (3d Cir.1979)). An attorney is presumed to have complied with the duties of his representation unless shown otherwise. Mazer v. Sec. Ins. Grp., 368 F. Supp. 418, 422 (E.D. Pa. 1973), aff'd, 507 F.2d 1338 (3d Cir. 1975). "The determination of legal malpractice, like determinations of malpractice in other professions, requires an evaluation of professional skill and judgment, as well as a standard of care" normally exercised by members of the same profession under similar circumstances that is typically beyond the scope of the normal experience of ordinary laypersons. Lentino, 611 F.2d at 480-81. As a result, an expert witness is necessary in a professional malpractice case "to establish the specific standard of care and to assist the jury in its determination of defendant's conformity to the relevant standard." Id. (citations omitted); see also Schmidt v. Currie, 470 F. Supp. 477, 482 (E.D. Pa. 2005) ("A plaintiff who fails to produce such expert evidence cannot meet his or her burden of proof."); Mazer, 368 F. Supp. at 422 ("It is black letter law that in an action for negligence the party alleging lack of due care has the burden of proof"); Rizzo v. Haines, 555 A.2d 58 (Pa. 1989). Professional negligence cannot ...