2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

federal issues because the federal laws address the same concern through F.R.C.P. Rule 11(b),and F.R.C.P. Rule 26(a)(2).” The court reasoned, since Rule 11(b) (which providesrepresentations to the court are made for proper purpose) and 26(a)(2) (which governs disclosureof expert testimony) address the concern of weeding out “clearly nonmeritorious lawsuits earlyin the litigation process,” Rule 1042.3 does not need to be imported into the federal judicialsystem.Likewise, in Staten v. Lackawanna County, No. 4:07-CV-1329, 2008 U.S. Dist. LEXIS6539 (M.D. Pa. Jan. 29, 2008), the District Court examined whether a certificate of merit neededto be filed in cases involving claims under 42 U.S.C. §1983. Specifically, in cases wherePlaintiff alleged Defendant violated her constitutional rights by acting with deliberateindifference to Plaintiff’s medical needs. The court held a certificate of merit was not requiredbecause Plaintiff did not allege a state law negligence claim and instead claimed herconstitutional rights were violated. The court noted, even if the certificate of merit rule could bedeemed applicable to a claim under the Eighth Amendment, the Supremacy Clause would beviolated for a federal or state court to require a certificate of merit to be filed in a case involvinga claim under 42 U.S.C. §1983. The court explained, if the certificate of merit requirement wasapplied to causes of action based solely on federal law, it would interfere with federal law bycreating a barrier to plaintiffs pursuing their rights under 42 U.S.C. §1983. Therefore, acertificate of merit does not need to be filed to support a claim for a violation of constitutionalrights brought under 42 U.S.C. §1983, even if the claim alleges defendant violated Plaintiff’sconstitutional rights by acting with deliberate indifference to Plaintiff’s medical needs.In US Airways, Inc. v. Elliot Equipment Co., Inc., No. 06-CV-1481, 2007 U.S. Dist.LEXIS 78332 (E.D. Pa. Oct. 22, 2007), Plaintiff filed a complaint against various Defendants fordamage sustained to an aircraft. Subsequently, Plaintiff filed an amended complaint naming anadditional third party Defendant. The allegations against the third party Defendant included aclaim the defendant negligently provided professional services.Plaintiff failed to file a certificate of merit within the sixty day time frame. The thirdparty Defendant filed a Rule 12(b)(6) Motion to Dismiss based upon Plaintiff’s failure to file acertificate of merit. In response, Plaintiff argued that Defendant’s motion should be deniedbecause: (i) Rule 1042.3 had not yet been held applicable to a federal court sitting in diversity;(ii) the delay in filing the certificate of merit was reasonable due to lead counsel being out onmaternity leave; (iii) third party Defendant waived its objection because it failed to raise theobjection in its answer; and (iv) Plaintiff’s failure to file a certificate of merit did not prejudiceadditional Defendant; third party Defendant remained a party to this action because otherdefendants have filed certificate of merits to support their claims.At the outset, the court found that Rule 1042.3 does not conflict with the Federal Rules ofCivil Procedure. As such, the rule must be applied by the federal courts sitting in diversity. Thecourt held that the claims against third party Defendant essentially amounted to a claim that thisDefendant rendered professional services; therefore, Plaintiff was required to file a certificate ofmerit. The court found Plaintiff’s inability to file a certificate of merit due to lead counsel beingout on maternity leave unpersuasive. Additionally, the court noted that Rule 1042.3 does notrequire a defendant to assert the rule in its answer. Finally, the court held that the fact that other127