Schmigel v. Uchal, 14–3476.

• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
• Citation: 800 F.3d 113
• Docket Number: No. 14–3476.,14–3476.
• Parties: Brian SCHMIGEL, an adult individual, Appellant v. Miroslav UCHAL, MD, Fasc, an adult individual.
• Decision Date: 02 September 2015

800 F.3d 113

Brian SCHMIGEL, an adult individual, Appellant
v.
Miroslav UCHAL, MD, Fasc, an adult individual.

No. 14–3476.

United States Court of Appeals, Third Circuit.

Argued: Jan. 22, 2015.
Opinion Filed: Sept. 2, 2015.

800 F.3d 114

Noah P. Fardo, William F. Rogel, (Argued), Flaherty Fardo, Pittsburgh, PA, Counsel for Appellant.

Daniel P. Carroll, Jr., Kristin L. Pieseski, (Argued), Timothy R. Stienstraw, Davies, McFarland & Carroll, Pittsburgh, PA, Counsel for Appellee.

Before: RENDELL, SMITH, and KRAUSE, Circuit Judges.

OPINION OF THE COURT

KRAUSE, Circuit Judge:

In 2003, the Pennsylvania Supreme Court grew troubled by the frequency of meritless professional malpractice claims filed in the state system. To address that concern, the Court amended the Pennsylvania

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Rules of Civil Procedure to require malpractice plaintiffs or their attorneys to file a certificate of merit (“COM”) within sixty days of bringing suit. Failure to comply conferred upon a defendant the right to have the action dismissed. Five years after the COM regime was enacted, however, Justices of the Supreme Court grew concerned that it had the unintended consequence of requiring the dismissal of meritorious claims due to technical oversights by plaintiffs or their attorneys. Thus, the Court amended the Rules again, setting a number of conditions that had to be met before a defendant could seek dismissal of an action for failure to comply.

We have previously held that the COM requirement is substantive state law that must be applied by a federal court sitting in diversity. See Liggon–Redding v. Estate of Sugarman, 659 F.3d 258, 265 (3d Cir.2011). In this appeal, we consider whether one of Pennsylvania's conditions precedent to dismissing an action for failure to comply with the COM requirement, fair notice to a plaintiff, is also substantive law. We conclude that it is, and thus will reverse the judgment of the District Court.

I. Facts and Procedural History¹

In 2010, Appellee Dr. Miroslav Uchal performed laparoscopic adjustable gastric band surgery, a procedure intended to place a band around a person's stomach to limit his food intake and help him lose weight, on Appellant Brian Schmigel. The surgery went awry, however, and the band was left “free floating in his abdomen.” App. 20a. As a result, Schmigel not only failed to lose weight; he suffered internal scarring, limiting his options for similar surgeries into the foreseeable future.

With the benefit of the discovery rule, Schmigel filed suit against Uchal just inside Pennsylvania's statute of limitations for professional malpractice actions. Between the surgery and the initiation of the suit, Uchal had moved to Florida so that Schmigel, a resident of Pennsylvania, was able to sue in the United States District Court for the Western District of Pennsylvania on the basis of diversity jurisdiction. Schmigel's attorney asked Uchal to accept service of the complaint,² but Uchal declined. Instead, realizing that no COM had been filed with the Complaint, Uchal waited out the sixty-day window in which a plaintiff may file a COM after initiating suit to sustain a malpractice action under Pennsylvania law, see Pa.R.C.P. Nos. 1042.2–1042.10, and on day sixty-nine, filed a motion to dismiss.

The next day, Schmigel's counsel filed an “answer” to the motion, which included the missing COM and an affidavit explaining that counsel had timely consulted with a doctor but, due to an oversight, had not prepared a COM. In the briefing that followed, the parties disputed, among other things, whether Schmigel had substantially complied with the COM requirement, whether his failure should have been excused, and—because Uchal had not waited thirty days after giving notice of the deficiency to allow for cure before filing his motion to dismiss, which is one of the conditions precedent to dismissal under Pennsylvania law—whether Uchal had the

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right to seek dismissal in the first place.³

The District Court granted the motion and dismissed the claim. Schmigel v. Uchal, No. 14–358, 2014 WL 3397669, at *7 (W.D.Pa. July 11, 2014). First, the District Court held, under our precedent, that Pennsylvania's COM requirement was substantive law that a federal court must apply when sitting in diversity. Id. at *3. Second, the District Court found that neither of Pennsylvania's equitable exceptions for allowing a late-filed complaint—substantial compliance and justifiable excuse—applied here. Id. at *5–7. The District Court did not address at all Schmigel's final argument, that Pennsylvania's notice requirement as a condition of dismissal applied in federal court, so that Uchal's failure to satisfy that condition precluded dismissal. This appeal followed.⁴

II. Discussion

A. Pennsylvania's Certificate of Merit Requirement

As the Pennsylvania Supreme Court recounted in Womer v. Hilliker, 589 Pa. 256, 908 A.2d 269 (2006), the Supreme Court adopted the COM regime “in January of 2003, having determined that malpractice actions were being commenced in the Pennsylvania courts more frequently.” Id. at 275. With that recognition came concern that state courts would be overburdened with “malpractice claims of questionable merit.” Id. Thus, the Court “devise[d] an orderly procedure that would serve to identify and weed non-meritorious malpractice claims from the judicial system efficiently and promptly.” Id. The COM requirement was born.

Rule 1042.3 of the Pennsylvania Rules of Civil Procedure, the centerpiece of the COM regime, requires that within sixty days of filing “any action based upon an allegation that a licensed professional deviated from an acceptable professional standard,” a plaintiff file a COM that states (1) “an appropriate licensed professional has supplied a written statement that there exists a reasonable probability that the care, skill or knowledge” of the defendant “fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm”; (2) the claim is “based solely on allegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable

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professional standard”; or (3) “expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim.” Pa.R.C.P. No. 1042.3(a)(1)-(3). The purpose of the requirement is to create a reasonable, early barrier that all malpractice plaintiffs must meet:

On the one hand, the presence in the record of a COM signals to the parties and the trial court that the plaintiff is willing to attest to the basis of his malpractice claim; that he is in a position to support the allegations he has made in his professional liability action; and that resources will not be wasted if additional pleading and discovery take place. On the other hand, the absence from the record of a COM signals to the parties and the trial court that none of this is so and that nothing further should transpire in the action, except for the lawsuit's termination.

Womer, 908 A.2d at 275–76 (internal footnote and citations omitted).

That ultimate consequence of the failure to comply—termination of the suit—is effectuated in state court upon the filing of a praecipe with a prothonotary, who in turn enters a judgment of non pros.⁵ Pa.R.C.P. Nos. 1042.6–7. As originally written, the ability to seek dismissal for failure to file a COM had but one explicit condition: No dismissal could be entered if a plaintiff's timely motion seeking to extend the sixty-day window was pending. Pa.R.C.P. No. 1042.6(a) (West 2003) (amended 2008).⁶

B. The Pennsylvania Supreme Court Identifies a Problem

In Womer, the Pennsylvania Supreme Court encountered a situation substantially similar to the one we face today. There, a plaintiff initiated a medical malpractice suit only months after the COM regime began and, within sixty days, served the defendant with an expert report from a doctor that stated the claim was meritorious. 908 A.2d at 273. The plaintiff or his counsel did not, however, actually file a COM. Id. Accordingly, as soon as the sixty-day deadline passed, the defendant filed a praecipe to dismiss the claim, and the prothonotary entered a judgment of non pros. Id. As here, the statute of limitations had run, and thus a presumptively meritorious claim came to a precipitous end. Id. at 274.

Two days after the filing of the praecipe, the plaintiff sought to reopen his case, arguing that, among other things, his failure to submit the COM was a result of his counsel's “oversight or mistake.” Id. at 273. Included with that filing was a COM that his lawyer had written the previous day. The motion was denied, but on appeal the Superior Court reversed the trial court and reinstated the case. Womer v. Hilliker, 860 A.2d 1144 (Pa.Super.Ct.2004) (unpublished table decision). The Pennsylvania Supreme Court then granted allocatur and reversed the Superior Court, terminating the plaintiff's claim.

In its decision, the Supreme Court acknowledged that the consequence of...