Wilson v. United States

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Decision Date21 August 2023
Docket Number22-1940




No. 22-1940

United States Court of Appeals, Third Circuit

August 21, 2023

Argued: June 20, 2023

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civil No. 19-cv-04257) District Judge: Honorable Gerald A. McHugh

Julia E. Fine [ARGUED]


Claire R. Cahill

Kari M. Lorentson

Williams & Connolly

Counsel for Appellant

Matthew Howatt

Office of United States Attorney

Catherine M. Padhi [ARGUED]

Sushma Soni

Mark B. Stern

United States Department of Justice

Counsel for Appellee

Before: CHAGARES, Chief Judge, BIBAS and MATEY, Circuit Judges


CHAGARES, Chief Judge.

Marquis Wilson challenges the District Court's grant of summary judgment to the Government in his Federal Tort Claims Act ("FTCA") lawsuit for medical negligence. The


dispositive issue here is whether Pennsylvania Rule of Civil Procedure 1042.3 ("Rule 1042.3"), which requires medical malpractice plaintiffs to certify either that they have expert support for their claims or instead will proceed without an expert, applies in FTCA cases like Wilson's. The grant of summary judgment here was predicated upon Wilson's Rule 1042.3 certification to proceed without an expert to support his claim. Because we interpret the FTCA not to incorporate Rule 1042.3, and because Wilson did not otherwise have an adequate opportunity to seek out an expert or conduct discovery prior to the District Court's decision due to his unique position as a pro se inmate during the COVID-19 pandemic, we will reverse the grant of summary judgment and remand this case to the District Court.



Rule 1042.3 requires a Pennsylvania plaintiff claiming professional malpractice to file a so-called "certificate of merit" either with the complaint or within 60 days of filing it. As relevant here, the certificate of merit must attest that either (1) an appropriate licensed professional supplied a written statement that there exists a reasonable probability that the professional services provided fell outside acceptable professional standards, or (2) expert testimony of an


appropriate licensed professional is unnecessary.[2] Pa. R. Civ. P. 1042.3(a)(1) &(3). A note appended to Rule 1042.3 provides that, in the "absence of exceptional circumstances," a plaintiff who certifies that expert testimony is unnecessary for prosecution of the case is precluded from subsequently presenting testimony by an expert on the questions of standard of care and causation. Pa. R. Civ. P. 1042.3(a)(3) n.1.

The Rule was implemented in January 2003 when the


Supreme Court of Pennsylvania "determined that malpractice actions were being commenced in the Pennsylvania courts more frequently." Womer v. Hilliker, 908 A.2d 269, 275 (Pa. 2006). That rise in malpractice litigation led to an attendant increase in what the Court termed "malpractice claims of questionable merit." Id. The Court adopted Rule 1042.3 pursuant to its rulemaking authority under the Pennsylvania Constitution, intending the provision to be "an orderly procedure that would serve to identify and weed non-meritorious malpractice claims from the judicial system efficiently and promptly." Id. The consequences for failing to comply with the Rule 1042.3 certificate of merit requirement are accordingly severe: a non-compliant lawsuit will be dismissed once the opposing party has followed the requisite procedures. See Schmigel v. Uchal, 800 F.3d 113, 117 (3d Cir. 2015) (explaining that the "ultimate consequence of the failure to comply [is] termination of the suit").


With the foregoing background in mind, we turn to the facts and procedural history of Wilson's case. While being held as a pretrial detainee in Philadelphia in 2017, Wilson complained to medical staff at the Federal Detention Center ("FDC") in Philadelphia about a lump on one of his testicles. Wilson was seen by medical staff in November 2017, who noted the testicular swelling and allegedly told him that a lump in that area was probably cancerous. Wilson subsequently


complained to FDC staff that his condition worsened, but he asserts that no further medical treatment was provided at that time. Wilson was eventually sentenced in early 2018 and then transferred to Bureau of Prisons custody, where he was seen by medical staff at USP-Allenwood. Wilson was referred to a urologist who determined in February 2018 that the lump was cancerous. Wilson underwent surgery on February 21, 2018, to remove his right testicle. Medical staff at USP-Allenwood purportedly told Wilson that "the lump should have been treated earlier for best results but by that point the only course of action was to remove one of [Wilson's] testicles which was done surgically." Joint Appendix ("JA") 18.

Wilson believed that, had his cancer been caught and addressed earlier, treatment would not have involved chemotherapy and the invasive surgery, which he asserts led to side effects including the loss of ejaculatory function. After exhausting his administrative remedies, Wilson filed a lawsuit in the United States District Court for the Eastern District of Pennsylvania alleging medical negligence under the FTCA. The Government subsequently filed a notice of its intent to seek dismissal of the complaint because Wilson had not filed a certificate of merit pursuant to Rule 1042.3.

The District Court set a deadline for Wilson, who was at that time proceeding pro se, to take a position on the certificate of merit, but it subsequently granted him multiple extensions of time, partly due to the onset of the COVID-19 pandemic. The District Court eventually denied Wilson's additional motion for an extension and request for appointment of counsel, and the Government promptly moved to dismiss. In response to the motion to dismiss, Wilson explained that he would like to have an expert testify about his deficient medical


care, but "concede[d] to the impossibility" of obtaining a medical expert "in the midst of a [g]lobal [p]andemic" that had caused prison lockdowns. JA 31-32. He stated "under protest" that his medical records would "obviously" demonstrate that his injury "was not inevitable and happened [as a] result of [the Government's] negligence," and he could prove his claim without expert testimony "at this juncture." JA 29-30.

The Government thereafter withdrew its motion to dismiss, filed an answer, and immediately moved for summary judgment. In the Government's view, Wilson's Rule 1042.3 certification that he would not offer expert evidence "precluded [him] from offering expert testimony in this case on the questions of standard of care and causation." JA 69. The Government argued that Wilson's suit could not be proven under a res ipsa loquitur theory, his sole expert-less avenue of proving liability. In the Government's view, Wilson needed expert testimony to prove elements of his claim and was now precluded from presenting that testimony based on his Rule 1042.3 election. This, the Government claimed, entitled it to summary judgment.

Wilson's summary judgment opposition asked the court "to move forward with discovery." JA 79. In addition to reasserting his view that his case could be proven by res ipsa loquitur, Wilson specifically identified "medical documents chronicled by the [Bureau of Prisons] while and since [he had] been in its custody" as discoverable material that would substantiate his allegations. Id. He also disputed the Government's claim that he would be precluded from offering an expert later in the case. Though he acknowledged his prior Rule 1042.3 certification, he stated that he "would love to have


an expert attest" to his claims and asserted that his "case and the circumstances around it are so unusual [that] it would satisfy the standard for a medical expert to be available later." Id. In particular, he discussed at length the difficulties he faced securing expert testimony as a pro se prisoner during the COVID-19 pandemic. Id.

Following the parties' summary judgment briefing, the District Court sua sponte stayed all deadlines and ordered the case listed with the District Court's pro bono prisoner civil rights panel. The case remained on the pro bono list for one year. In response to a notice from the court requiring him to act if he wished for his case to remain on the pro bono list, Wilson elected to have his case removed therefrom and to proceed again pro se. The District Court ordered Wilson to file any additional submissions in response to the pending summary judgment motion within 45 days. Wilson did not submit any further responses.

The District Court granted summary judgment to the Government. It acknowledged that the parties had not conducted any discovery and that the Government "denie[d] various facts." Wilson v. United States, 2022 WL 1227974, at *2 n.1 (E.D. Pa. Apr. 26, 2022). It nevertheless determined that the "material facts essential to [Wilson's] claim" were not in dispute with respect to Wilson's claims of belated treatment. Id. The District Court also separately noted the growing body of authority holding that state certificate of merit requirements do not apply in FTCA actions but stated that it need not decide that issue to resolve the summary judgment motion. Id. at *2 n.2. It held that, regardless of whether Wilson needed to comply with Rule 1042.3(a), he was bound by his statement of intent to proceed without an expert and to rely only on a res


ipsa loquitur theory. Id. at *2. Wilson thus needed to show, without expert testimony, that his injury would not usually occur absent negligence and that the evidence sufficiently eliminated other causes of the harm. Id. at *3. The District Court then determined that, while a factfinder could find without expert testimony that the delay in treatment of Wilson's testicular lump was unreasonable, the issue...

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