2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

In Liggon-Redding, 659 F.3d at 265, the Third Circuit found the pro se plaintiffcomplied with the Rule when she filed two documents labeled certificate of merit statingexpert testimony would not be required to prove her claim. It found the district courterred when it characterized her statements as an argument that she was not required to filea certificate of merit, rather than a statement that expert testimony was not required,which was permitted under Rule 1042.3(a)(3). Liggon-Redding, 659 F.3d at 265. TheCourt found a court cannot reject a filing under Rule 1042.3(a)(3) in favor of a filing under1042.3(a)(1). Id. The Court noted that if a certificate asserts that no expert testimony isrequired, the plaintiff is prohibited from offering expert testimony at a later date, absent“exceptional circumstances.” Id.In Perez v. Griffin, No. 1:06-CV-1468, 2008 U.S. Dist. LEXIS 45240 (M.D. Pa. June 9,2008), aff’d, 304 Fed. Appx. 72 (3d Cir. 2008) (not precedential), cert. denied, 129 S.Ct. 2439(2009), the pro-se Plaintiff failed to file a certificate of merit in accordance with Rule 1042.3.The court noted that Plaintiff failed to file a certificate of merit or request an extension andexplained that “[f]ailure to file either a certificate of merit under Rule 1042.3(a) or motion forextension under Rule 1042.3(d) is fatal unless the plaintiff demonstrates that his or her failure tocomply is justified by a ‘reasonable excuse.’” Plaintiff maintained that the attorney-Defendant’sactions constitute common law fraud, not legal malpractice, and as such no certificate of merit isrequired. In dismissing Plaintiff’s legal malpractice claim, the court reasoned that Plaintiff’sallegations of fraud cannot serve as a ‘reasonable excuse’ for his failure to file a certificate ofmerit.The certificate of merit requirement applies regardless of whether Plaintiff styles theclaim as a malpractice action or as or as one for fraud or breach of contract. Donnelly v.O’Malley & Langan, P.C., 370 Fed. Appx. 347 (3 rd Cir. 2010).Further discussion of the certificate of merit requirement is contained at thebeginning of this publication.O. Requirement and Substance of Expert Testimony / Expert QualificationsIn the context of legal malpractice under Pennsylvania law, the plaintiff must put onexpert testimony to establish the relevant standard of care and noncompliance therewith. Int’lLand Acquisitions, Inc. v. Fausto, 39 Fed. Appx. 751 (3d Cir. 2002) (not precedential); see alsoBallinger v. Bock & Finkelman, 823 A.2d 1020 (Pa. Super. Ct. 2003), aff’d, 823 A.2d 1020 (Pa.2003) (trial court properly granted summary judgment due to Plaintiff’s failure to present experttestimony).Only where the matter under investigation is so simple, and the lack of skill so obvious,as to be within the range of ordinary experience and comprehension of non-professional persons,are expert witnesses unnecessary. Antonis v. Liberati, 821 A.2d 666 (Pa. Commw. Ct. 2003),appeal granted, 842 A.2d 407 (Pa. 2004) (no expert needed to establish that attorney failed induty to secure proper recording of client’s mortgage); see also Amoroso v. Morley, No. 00-3496,2002 U.S. Dist. LEXIS 4989 (E.D. Pa. Mar. 25, 2002); Philadelphia Waterfront Partners, L.P. v.Churchill Dev. Group 2009 Phila Ct. Com. Pl. LEXIS 16 (Phila. Cty. Ct. Com. Pl. Jan. 21, 2009)168