2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

Relying on the language of Womer, the Superior Court on December 19, 2007 reversedits earlier decision and remanded the case to the trial court for the entry of judgments of non prosin favor of appellants Jefferson, Weiss, and Neuburger. However, with regard to appellantChilders, the Superior Court remanded the case back to the trial court for reconsideration of itsdecision to deny the judgment of non pros. The Superior Court explained that Childers failed toseek a judgment of non pros until after plaintiff filed a certificate of merit and after a great dealof time had been spent litigating the case. Therefore, the Court reasoned, “[t]here is not the total‘non-compliance’ that was present in Womer, and there are undeniable equities to be evaluatedby the fact finder in considering whether a judgment of non pros is warranted and equitable.”Interestingly, in a footnote, the Court in its December 2007 Opinion states: “[a] decisionby this court to stubbornly adhere to a precedent that has since been disapproved by the highestCourt in the Commonwealth, would merely delay the inevitable reversal of this Court’s decisionby the Supreme Court.”In Weaver v. University of Pittsburgh Medical Center, No. 08-411, 2009 U.S. Dist.LEXIS 57988 (W.D. Pa. July 30, 2008), the District Court examined whether Plaintiffsubstantially complied with the certificate of merit requirement. Defendant filed a Motion toDismiss, arguing Plaintiff’s corporate negligence claim should be dismissed because Plaintiff’scertificate of merit only supported a claim of vicarious liability against the hospital and not adirect claim of corporate negligence. Plaintiff conceded the certificate of merit only containedlanguage supporting a claim of vicarious liability, but claimed she simply checked the wrong boxwhen completing the certificate of merit.Plaintiff made several arguments why the court should not dismiss Plaintiff’s corporatenegligence claim. Plaintiff argued in light of the language of the Complaint that only set forth aclaim of corporate negligence (and not vicarious liability), Plaintiff’s incorrect certificate ofmerit was simply a procedural mistake. Plaintiff also produced the opinion of an expert that wasdated prior to the filing of the certificate of merit, which supported Plaintiff’s direct claim ofcorporate negligence and did not support a claim of vicarious liability. Finally, Plaintiff arguedthat since the statute of limitations had not run, the Complaint could simply be re-filed and thatthe re-filing of the Complaint would cause unnecessary paper shuffling.Plaintiff relied heavily on the recent opinion in Stroud, 546 F. Supp. 2d 238, wherecounsel for Plaintiff checked the vicarious liability box on the certificate of merit, not the box forcorporate liability. The court distinguished Stroud, noting the Plaintiff in Stroud could not re-filethe Complaint with a proper certificate of merit because the statute of limitations had run, butthat in the present case Plaintiff was able to re-file a new Complaint with a proper certificate ofmerit. The court also explained that in Stroud, Plaintiff failed to check both applicable boxes onthe certificate of merit (only checking box for vicarious liability); however, in the present case,Plaintiff checked the wrong box, which is clearly supported by Plaintiff’s Complaint and expertreport. The court noted “[w]hile the certificate of merit filed by Plaintiff’s counsel may reflectan egregious lack of attention to detail or knowledge of Pennsylvania law, we conclude Plaintiffhas substantially complied with Rule 1042.” Thus, the court held the filing of an impropercertificate of merit was excusable when counsel simply checked the wrong box (not the wrong119