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Rutyna v. Schweers

Superior Court of Pennsylvania

January 4, 2018

ALDIS RUTYNA AND MARY JANE RUTYNA Appellants
v.
WILLIAM S. SCHWEERS, JR.

         Appeal from the Order Entered June 1, 2016 In the Court of Common Pleas of Allegheny County Civil Division at No(s): GD 07-025594.

          BEFORE: GANTMAN, P.J., BENDER, P.J.E., BOWES, J., SHOGAN, J., LAZARUS, J., OLSON, J., OTT, J., STABILE, J., and DUBOW, J.

          OPINION

          LAZARUS, J.

         Aldis Rutyna and Mary Jane Rutyna appeal from the order, entered in the Court of Common Pleas of Allegheny County, granting Appellee William S. Schweers, Jr.'s motion for a compulsory nonsuit[1] and dismissing all claims in the Rutynas' underlying malpractice action. After careful review, we reverse and remand for trial.

         The instant legal malpractice action[2] relates to an underlying medical malpractice action filed by the Rutynas against William F. Donaldson, III, M.D., and the University of Pittsburgh Medical Center-Presbyterian ("UPMC"). In January 2004, Mr. Rutyna underwent a laminectomy[3] performed by Dr. Donaldson at UPMC; the surgery was complicated by a dural tear.[4] The Rutynas' medical malpractice complaint alleged that Mr. Rutyna suffered nerve damage and other complications from the surgery. Consequently, the Rutynas engaged Schweers to pursue the medical malpractice action on their behalf. On September 19, 2006, the trial court entered a non pros and dismissed the medical malpractice action after the Rutynas failed to file a certificate of merit, a prerequisite for a professional liability action brought pursuant to the Medical Care Availability and Reduction of Error Act ("MCARE Act"), 40 P.S. §§ 1303.101-1303.910.

         On December 5, 2007, the Rutynas filed the instant legal malpractice action against Schweers alleging negligence, fraudulent misrepresentation, negligent misrepresentation, breach of fiduciary duty, and breach of contract.[5] Specifically, the Rutynas alleged that Schweers' performance fell below the standard of care for failing to file the required certificate of merit, resulting in the termination of their medical malpractice action. On September 12, 2012, Schweers filed a motion for summary judgment alleging that the Rutynas were unable to secure a legal expert report to prove that he did not obtain at least one medical expert report in the underlying medical malpractice case and, thus, was unable to prove proximate cause in the instant legal malpractice action. In response to the motion, the Rutynas attached a medical expert report[6] from Mark R. Foster, M.D., dated February 28, 2008, in order to establish Dr. Donaldson's/UPMC's negligence in the underlying medical malpractice case.

         On January 15, 2013, the court struck the Rutynas' December 17, 2012 certificate of merit and removed the case from the May 2013 trial list and placed the case on the September 2013 trial list. On February 22, 2013, the court ordered the Rutynas to provide an expert report with respect to the legal malpractice claim within 45 days or suffer the entry of summary judgment. In April 2013, Schweers praeciped to enter summary judgment when the Rutynas failed to comply with the court's February order to provide a timely expert liability report.

         The Rutynas filed a notice of appeal from the court's decision. Our Court vacated the underlying summary judgment order and remanded for further proceedings. See Rutyna v. Schweers, 1170 EDA 2014 (Pa. Super. filed June 10, 2015) (unpublished memorandum decision) (summary judgment vacated where Rutynas never received copy of trial court's order requiring them to file expert report as to legal malpractice claim). The Rutynas subsequently filed an expert report to support the legal malpractice action. On April 27, 2014, Schweers again moved for summary judgment, claiming that the expert report failed to satisfy the Rutynas' burden. The trial court granted summary judgment and the Rutynas appealed that decision. On appeal, our Court reversed the order granting summary judgment and remanded the case. See Rutyna v. Schweers, 757 WDA 2013 (Pa. Super. filed March 31, 2014) (unpublished memorandum decision) (record demonstrated that Schweers, at most, contacted one expert in medical malpractice case to support certificate of merit; Rutynas expert opined that where attorney contacts only one expert to support certificate of merit and receives negative response, standard of care is breached). The case was scheduled to be tried, upon remand, on January 11, 2016.

         In October 2015, Schweers moved to bifurcate the case, asking the court to first adjudicate the underlying medical malpractice case before resolving the professional, legal malpractice claim against Schweers. The Rutynas filed a response opposing the request on the grounds that bifurcation would unnecessarily complicate trial. On October 27, 2015, the court bifurcated the matter, proceeding with the medical malpractice case. In November 2015, Schweers filed a motion to continue the medical malpractice case due to recently retained counsel, Attorney John C. Conti's unavailability; the Rutynas opposed the motion. The Honorable Ronald W. Folino, administrative trial judge, granted the continuance, relisting the case for the end of May 2016, but noting that no further continuances would be granted.[7]

         On May 16, 2016, the Rutynas filed a motion for a continuance after discovering, just six days prior, that Dr. Foster had signed a consent judgment, in an unrelated case, in which he had agreed not to testify against UPMC or any of its physicians in any pending or future case. See Plaintiffs' Motion for Continuance, 5/16/16, at 4. Schweers filed a response, opposing the motion on the basis that the Rutynas had not done their "due diligence"[8] to ensure Dr. Foster's participation at trial and that "it should be no surprise to Plaintiffs' that the legal battle between UPMC and Dr. Foster culminated recently with a Consent Judgment Agreement wherein Dr. Foster agreed not to serve as an expert medical witness in any pending or future actions against UPMC." Defendant's Response in Opposition to Plaintiffs' Motion for Continuance, 5/16/16, at 6-7. The Honorable Ronald W. Folino denied the motion, with prejudice, by order on the same day. Subsequently, on May 25, 2016, the Rutynas filed a motion for sanctions claiming that, based upon the entry of new defense counsel's appearance and request for a continuance, it is reasonable to conclude "that Schweers' insurer (and possibly defense counsel) has sought to interfere with the Rutynas' expert witness.[]" Plaintiffs' Motion for Sanctions or Other Appropriate Relief, at ¶19.

         In May 2016, Schweers filed a motion in limine to preclude Dr. Foster from testifying at trial and/or introducing his expert report. After a hearing, the court denied the Rutynas' motion for sanctions; however, the Honorable Robert Colville granted Schweers' motion, precluding Dr. Foster from "testify[ing] at trial as to the applicable standard of care and any alleged breaches thereof. Moreover, [the order stated that] Dr. Foster's expert report shall not be admissible as evidence at trial." Order, 6/1/16 (emphasis in original). Specifically, Judge Colville found that Dr. Foster did not possess adequate qualifications under MCARE because: (1) Dr. Foster had not practiced within the subspecialty of orthopedic surgery within the past ten years; (2) Judge Colville was not predisposed to waive the ten-year requirement; and (3) Judge Colville would not waive the five-year sub-specialty requirement under MCARE.[9] N.T. Motion in Limine, 6/1/16, at 70.

         On that same date the court entered an order dismissing, with prejudice, the Rutynas' legal malpractice action against Schweers finding that the Rutynas "do not have a medical witness who can opine as the requisite standard of care and breach thereof in support of their underlying medical malpractice claim and . . . [therefore, they] cannot prove either their underlying medical malpractice claim as a matter of law or their legal malpractice claim as a matter of law." Order, 6/1/16. The Rutynas filed a timely notice of appeal and court-ordered Pa.R.A.P. 1925(b) statement of errors complained of on appeal.[10] They present the following claims[11] for our review:

(1) Did the Court err in denying the [Rutynas'] Motion for Continuance to permit them sufficient time to procure a "replacement" expert?
(2) Did the Court err in dismissing the case with prejudice due to the [Rutynas'] inability to produce an expert medical witness, when such inability was caused by the actions of [Schweers]?
(3) Did the Court err in holding that [the Rutynas'] proposed expert was not qualified to testify under the [MCARE]?
(4) Did the Court err in denying the [Rutynas'] Motion for Sanctions or Other Appropriate Relief arising out of [Schweers'] interference with [the Rutynas'] expert?

         Appellants' Brief, at 4.

         In their first issue on appeal, the Rutynas contend that the trial court erred in denying their motion for a continuance to provide them sufficient time to procure a replacement medical expert witness.

         To determine whether a trial court abuses its discretion by denying a request for a continuance, [12] the reviewing court shall consider the following factors: "whether there was prejudice to the opposing party by a delay, whether opposing counsel was willing to continue the case, the length of the delay requested, and the complexities involved in presenting the case." Papalia v. Montour Auto. Serv. Co., 682 A.2d 343, 345 (Pa. Super. 1996) (citations omitted). "An abuse of discretion exists where the trial court's determination overrides or misapplies the law, its judgment is manifestly unreasonable, or the result or partiality, prejudice, bias or ill-will." See Majcazyk v. Oesch, 789 A.2d 717, 720 (Pa. Super. 2001).

         Factually, the Rutynas emailed Dr. Foster on April 28, 2016, just over one month prior to the scheduled June 2, 2016 trial date, to remind him of the trial date and ensure his availability.[13] However, less than two weeks later, on May 10, 2016, the Rutynas discovered that Dr. Foster had signed a consent judgment and agreed not to testify against UPMC or any of its physicians in any pending or future cases.[14] Less than one week later, on May 16, 2016, the Rutynas filed their motion for continuance, stating:

The Plaintiffs do not have sufficient time to obtain a medical expert to replace Dr. Foster prior to the scheduled trial date of June 2, 2016. Without a medical expert, the Rutynas have no chance of prevailing on their claims against Schweers.
Wherefore, the Plaintiffs respectfully request this Honorable Court to continue this case to the January 2017 Trial List.

         Rutynas' Motion for Continuance, 5/16/16, at 5. On that same date, Judge Folino entered an order denying the Rutynas' motion and a separate order ...


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