2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

number of boxes), which was supported by Plaintiff’s Complaint and expert report, especially inlight of the fact that the statute of limitations had not yet expired.In Scales v. Witherite, No. 3:10-CV-0333, 2011 WL 5239142 (M.D. Pa. Nov. 1, 2011),the court addressed the propriety of a certificate of merit that asserts that expert testimonyis not necessary in a medical negligence claim. In Scales, plaintiff filed a document entitled“certificate of merit” asserting that expert testimony would not be necessary in his medicalnegligence claim. Id. at *1. The magistrate judge recommended the matter be dismissedfor plaintiff’s failure to file a certificate of merit. Id. However, the District courtdisagreed, holding that, while the magistrate judge is likely correct that medical testimonyis necessary to establish defendants’ negligence, a filing that a litigant intends to proceedwithout an expert, even in a case where the Court believes an expert will be necessary, doessatisfy Pennsylvania’s certificate of merit requirement. Id. at *2 (citing Liggon-Redding v.Estate of Sugarman, 659 F.3d 258 (3d Cir. Oct 4. 2011)).(d)Applicability of the Rule(i) Is It a Professional Negligence Claim?In Dental Care Associates, Inc. v. Keller Engineers, Inc., 954 A.2d 597 (Pa. Super. Ct.2008), appeal denied, 968 A.2d 233 (Pa. 2009) the Superior Court determined whether acertificate of merit was needed for a cause of action filed against an incorporated engineeringfirm. The court stated Plaintiff’s claims, although couched as ordinary negligence, were“inextricably intertwined with the propriety of assessing the professional engineering services[Defendant] provided in the storm water management plan and civil design of [Plaintiff’s]property.” The court placed particular emphasis on the expert report Plaintiff attached to thePetition to Open Judgment of Non Pros that stated Defendant’s storm management report for theproperty was found to be “thorough in scope and of sound engineering methods.” The courtexplained that the excerpt from the expert report addressed “topics ‘beyond the realm of commonknowledge and experience’ that would require expert testimony to explicate.” Accordingly, thecourt held a certificate of merit against the engineering firm was required and the entry of ajudgment of non pros was proper. See also Garland v. Chandragiri, 2008 Phila. Ct. Com. Pl.LEXIS 186 (Phila. Cty. Ct. Com. Pl. July 10, 2008) (stating a judgment of non pros for a failureto file a proper certificate of merit is proper where Plaintiff claimed “there was no basis toinvoluntarily commit [sic] the Plaintiff to a mental facility” and explaining that Plaintiff’s claimclearly required expert testimony to determine the standard and duty owed by a psychiatrist to apatient.)In French v. Commonwealth Associates, Inc., 980 A.2d 623 (Pa. Super. Ct. 2009), thecourt addressed whether a certificate of merit was required in a death action brought against anengineering firm alleging negligence, products liability, and breach of warranty. The SuperiorCourt found that the trial court erred in dismissing Plaintiff’s entire complaint, withoutevaluating which claims sounded in professional negligence and which ones sounded in productsliability/breach of warranty, to ensure that only the professional negligence claims weredismissed. The court rejected the trial court’s legal generalization that “if an expert is needed tosustain any cause of action included in the complaint, then the entire complaint is necessarily onefor professional liability. Such a blanket statement is too inclusive, where expert opinion is oftenrelevant and admissible in a variety of contexts, not just in claims for professional negligence.”120