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Fabian v. United States

United States District Court, Third Circuit

October 7, 2013



GENE E.K. PRATTER United States District Judge

Before the Court is the United States’ Motion to Dismiss Plaintiff Francisco Fabian’s Complaint for failure to file a certificate of merit (Docket No. 8), as well as Mr. Fabian’s Response thereto (Docket No. 9). On March 29, 2013, Mr. Fabian sued the United States under the Federal Tort Claims Act (“FTCA”) for medical negligence during its treatment of a hand injury he allegedly sustained while playing soccer at the Federal Detention Center, Philadelphia. Compl. ¶¶ 1-2 (Docket No. 1). After an extension of time to respond to the Complaint (Docket Nos. 6-7), the United States moved to dismiss the Complaint for failure to file a certificate of merit (“COM”). Mr. Fabian responded on September 30, 2013. For the reasons that follow, the Government’s Motion is denied; Mr. Fabian shall resubmit the exhibits attached to his Complaint by Monday, October 21, 2013; and Mr. Fabian must file a proper COM by December 6, 2013.

Under the FTCA, the law of the state in which the alleged tortious conduct occurred applies, see 28 U.S.C. § 1346(b); Gould Elecs., Inc. v. United States, 220 F.3d 169, 179 (3d Cir. 2000), and so here, Pennsylvania law requires a medical malpractice plaintiff, like Mr. Fabian, to submit a COM. The COM must attest that

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 [Plaintiff’s] harm.

Pa. R. Civ. P. 1042.3(a)(1); see Liggon-Redding v. Estate of Sugarman, 659 F.3d 258, 264-65 (3d Cir. 2011) (holding that the COM requirement is a substantive rule that federal courts must follow). Mr. Fabian has not supplied a COM, but argues in his Response that Dr. Scott F. Giberman’s July 21, 2010 notes, quoted in Mr. Fabian’s Complaint, see Compl. ¶ 4, were “sufficient to meet the requirement, ” Resp. at 3.

In Booker v. United States, 366 F. App’x 425 (3d Cir. 2010), the Third Circuit Court of Appeals considered the District Court’s dismissal without prejudice of an FTCA medical malpractice claim for failure to comply with Rule 1042.3. In lieu of a COM, but in what the Court of Appeals ultimately considered to be substantial compliance with Rule 1042.3, Mr. Booker submitted a letter from a doctor that stated that the doctor had reviewed Mr. Booker’s medical file and “believe[s] this case warrants a closer look.” Id. at 427 (quoting the letter). The United States contended, and the District Court had held, that the letter did not fully comply with Rule 1042.3 and therefore that Mr. Booker’s suit had to be dismissed. The Court of Appeals disagreed. Noting that Mr. Booker, “while incarcerated and proceeding pro se and in forma pauperis, ha[d] located a qualified physician, compiled his medical records, timely filed the necessary requests for extensions of time, and attempted to provide the Court with a compliant COM, ” id. at 429, the Court of Appeals held that Mr. Booker had met the requirements of the Pennsylvania doctrine of “substantial compliance, ” applicable in situations in which “the plaintiff has attempted but failed to meet the technical requirements of Rule 1042.3, ” id. at 428.

In the instant case, the Court finds that Mr. Fabian, unlike Mr. Booker, has not substantially complied with Rule 1042.3. The determinative distinction is that Mr. Fabian’s proffered physician’s notes are not a physician’s post hoc assessment of any potential medical malpractice on the part of the United States or its employees, but rather the opinion of a physician consulted in the course of the treatment giving rise to this suit.

Because Mr. Fabian is required to file a COM and has not, the next question is whether his Complaint must be dismissed, as the Government requests. But dismissal is not appropriate at this time.[1] As recently amended, see Anderson v. McAfoos, 57 A.3d 1141, 1154 (Pa. 2012) (Baer, J., concurring), Rule 1042.6 provides that a defendant seeking to enter a judgment of non pros for failure to file a COM must give the plaintiff thirty days’ notice of his intent to file a praecipe for such a judgment. Pa. R. Civ. P. 1042.6(a); id. 1042.6(d) (model form stating, “I intend to enter a judgment of non pros against you after thirty (30) days of the date of the filing of this notice if a certificate of merit is not filed as required by Rule 1042.3”); id. 1042.6 cmt. 3 (“[N]ew Rule 1042.6(a) requires a defendant to give a thirty-day notice of intention to file a praecipe for a judgment of non pros for failure to file a certificate of merit. Subdivision (d) provides a form of notice.”). Only after such notice may the defendant then file the praecipe, which requires the prothonotary to enter a judgment of non pros so long as the plaintiff has not filed a COM or an extension for filing a COM. Id. 1042.7(a). But within that thirty-day allotment, the plaintiff may move for “a determination by the court as to the necessity of filing a certificate of merit, ” with the time period tolled while the court deliberates. Id. 1042.6(c). If the court determines that a COM is required, the plaintiff has twenty days to file one. Id.[2]

Here, the Court construes the Government’s September 13, 2013 Motion to Dismiss as notice of its intent to file a praecipe for entry of a judgment of non pros rather than the praecipe itself. Mr. Fabian responded on September 30, 2013, well within the thirty days allowed, and his Response falls under Rule 1042.6(c) because it indicates that he does not think that a separate COM was required. Although the Court disagrees with Mr. Fabian and finds that a COM is required, Rule 1042.6(c) gives him twenty days to file one.

The only remaining question, then, is whether Mr. Fabian should have sixty days instead. Rule 1042.3(d) provides the roadmap for locating the answer:

The court, upon good cause shown, shall extend the time for filing a certificate of merit for a period not to exceed sixty days. A motion to extend the time for filing a certificate of merit must be filed by the thirtieth day after the filing of a notice of intention to enter judgment of non pros on a professional liability claim under Rule 1042.6(a) or on or before the expiration of the extended time where a court has granted a motion to extend the time to file a certificate of merit, whichever is greater. The filing of a motion to extend tolls the time period within which a certificate of merit must be filed until the court rules upon the motion.

Id. 1042.3(d) (emphasis added). The Rule thus lays out for plaintiffs like Mr. Fabian an alternative avenue to asking for a determination that a COM is not required—it allows them to move for a sixty-day extension of time within which to file a COM. Mr. Fabian’s Response seeks to explore both routes.

To obtain such a sixty-day extension, Mr. Fabian must show “good cause” under Rule 1042.3(d). The case law on what constitutes “good cause” is underdeveloped. But based on the relevant factors it can glean, the Court finds three reasons that Mr. Fabian has shown good cause for an extension of time.

First, to the extent that the Pennsylvania Supreme Court’s construction of “reasonable explanation or legitimate excuse” in Womer v. Hilliker, 908 A.2d 269 (Pa. 2006), has any analogical relevance to the “good cause” analysis, it does not foreclose a finding of good cause here.[3] In Womer, the plaintiff had not timely filed a COM but claimed that his “reasonable explanation or legitimate excuse” for his failure to do so was that he had believed that he had substantially complied with the COM requirement by serving the Defendant, in discovery, with an expert report showing that he had a ...

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