Pennsylvania

Expert’s Questionable Report Ultimately Thwarts Summary Judgment (PA)

In deciding an appeal from the Court of Common Pleas of Philadelphia County, the Superior Court of Pennsylvania determined that summary judgment in a personal injury action was inappropriately granted in favor of defendant Consolidated Railroad Corporation (Conrail). The trial court’s conclusion that no genuine issue of material fact was created as to causation even though a belated plaintiff’s expert’s report concerning the alleged exposure to asbestos and diesel was deemed error. The plaintiff claimed that his work for the defendant exposed him to asbestos and caused him to develop stage 0 chronic lymphocytic leukemia (CLL). An expert for the plaintiff produced a report that indicated how long the plaintiff was exposed to asbestos and the lack of non-occupational sources of cancer-causing chemicals, such as cigarette smoke. Conrail filed a motion for summary judgment asserting that the expert’s report failed to provide a methodology for reaching the opinion that occupational exposure caused the plaintiff’s injury. The trial court was persuaded that the expert could not reach an opinion as to causation because it found that the report did not indicate the level or manner of exposure. The Superior Court disagreed. Instead, the Superior Court noted that the expert’s opinions were derived from the industrial report of another expert discussing plaintiff’s exposure levels in detail and providing a generally accepted methodology. The appellate court also noted that dose analysis is not required for an expert to opine as to medical causation, and drawing inferenced from published scientific literature is itself a generally accepted methodology of expert opining. However, the methodological sufficiency of the expert’s report was not the only factor recognized in concluding that there was a genuine issue of material fact; the Superior Court of Pennsylvania emphasized the special standard of proof under FELA. Citing Labes v. New Jersey Transit Rail Operations, Inc., 863 A.2d 1195 (Pa. Sup. Ct. 2004), the appellate court explained that under FELA a case should be permitted to reach the jury if the proofs justify the conclusion that employer negligence played even the slightest part in producing the plaintiff’s injury. If it is possible that the employee’s injuries may have resulted from the employer’s negligence, summary judgment is not appropriate. Anderson v. Consolidated Rail Corporation, 2023 WL 2607444 (Pa. Sup. Ct. 2023) shows us just how relaxed the standard for escaping summary judgment is for a plaintiff bringing a personal injury action under FELA. Even when the plaintiff alleges causation using an expert report that is arguably deficient, the plaintiff will have raised a genuine issue of material fact as to causation upon demonstrating the smallest likelihood that the employer contributed in the smallest way to the plaintiff’s injury. Thus, in a motion for summary judgment by a FELA defendant, a plaintiff’s seemingly inexpertly raised issue is likely still genuine. Thanks to Ben Salvatore for his contribution to this article.  Should you have any questions, contact Matthew Care.Read More

An Issue Of First Impression For PA: Are Minor Children Bound To Arbitration Agreements Signed On Their Behalf?

In Santiago v. Philly Trampoline Park LLC, the Superior Court of Pennsylvania was tasked with deciding an issue of first impression in the state: whether a parent’s role as a natural guardian entitles that parent to bind their minor child to an arbitration agreement and waive that child’s right to seek redress for injuries in a court of law.  Santiago v. Philly Trampoline Park, LLC., 291 A.3d 1213, 1216 (Pa. Super. Ct., 2023).  The case involved several parents bringing separate claims against the defendant, Sky Zone, a Philadelphia trampoline park.  Id at 1217.  In 2019, a mother and his two daughters visited Sky Zone and signed a “Participant Agreement, Release and Assumption of Risk” (the “Agreement”).  Among other things, the agreement provided that “if I or any of my children are injured in any way, this waiver prevents and prohibits any recovery of money from any Sky Zone related entity.”  After one of the children was injured at the facility, her father filed a complaint on behalf of his child.  Sky zone moved to compel the arbitration agreement, signed by the other parent, contending that the Agreement was a valid agreement that both the parents and child were within its scope. The Court noted that as a general rule of contract law, only the parties to an arbitration agreement may be compelled to arbitrate.    That said, a party can still be compelled to arbitrate under an agreement, regardless of whether she signed it, if common law principles of agency and contract support such an obligation on her part.  Whether an agency relationship exists is a question of fact, the burden of proof weighing on the party asserting the agency relationship.  An agency relationship may exist by: 1) express authority; 2) implied authority; 3) apparent authority; and/or 4) authority by estoppel. Relevant to this case is “apparent authority,” which exists where the principal, “by word or conduct” causes people with whom the agent deals to believe that the principal has granted the agent authority to act.  The focus is on the principal’s conduct to determine whether an agency relationship exists, for the purposes of this analysis, the purported agent’s conduct is irrelevant. After analyzing the issue of whether an agency relationship existed as between spouses through apparent authority and finding one did not exist because the principal had no interaction with Sky Zone, the court moved to the novel question of this case.  . At the outset, the court acknowledged that the minor children could not have entered into the arbitration agreement themselves, as minors lack the capacity to contract in their own right. Id.  As such, the court held that minors also lack the capacity to “grant express authority to an agent to contract on their behaves, rendering any such resulting contracts voidable.”  The court held that, “Natural guardianship confers no inherent right to intermeddle with the property of the minor child, and the natural guardian has no inherent authority to demand or power to receive, hold or manage the minor’s property unless the natural guardian has also been appointed as guardian of the minor’s estate.” Id.  This is an interesting decision that we expect to be appealed. Thanks to Hannah Garber for her contribution to this article.  Should you have any questions, contact Matthew Care.Read More

Supreme Court Rejects Narrowing Of Employer Immunity From Tort Liability, Under the Workers’ Compensation Act (PA)

In the recent case of Franczyk v. Home Depot Inc., the Supreme Court of Pennsylvania found that when relief in the form of workers’ compensation is available for a workplace injury, the exclusivity provision of Pennsylvania’s Workers’ Compensation Act (“WCA”), bars employees from also seeking tort relief against their employer. Plaintiff-Franczyk suffered a dog bite, from a customer’s dog, while working at Home Depot. Franczyk was instructed by her employer not to have any further interaction with the offending customer on the day of the incident. She was ultimately diagnosed with injuries requiring surgery and claimed and received workers’ compensation under the WCA. Franczyk filed suit against Home Depot, alleging that by preventing her from investigating and  receiving necessary contact information from the customer, the store “denied her the opportunity to file a third-party suit against the dog owner.” Home Depot moved for Summary Judgment on the grounds that they were immune from liability under the exclusivity provision of the WCA. This provision states:

• 481. Exclusiveness of remedy; actions by and against third party; contract indemnifying third party

(a) The liability of an employer under this act shall be exclusive and in place of any and all other liability to such employes [sic] … entitled to damages in any action at law or otherwise on account of any injury or death as defined in section 301(c)(1) and (2) or occupational disease as defined in section 108. (b) In the event injury or death to an employe is caused by a third party, then such employe … may bring [her] action at law against such third party, but the employer, his insurance carrier, their servants and agents, employes, representatives acting on their behalf or at their request shall not be liable to a third party for damages, contribution, or indemnity in any action at law, or otherwise, unless liability for such damages, contributions or indemnity shall be expressly provided for in a written contract entered into by the party alleged to be liable prior to the date of the occurrence which gave rise to the action. The trial court denied summary judgment. It reasoned that an employer cannot utilize the statutory protections of § 481, when its alleged negligence prevented an employee from learning identifying information about the theoretical third-party whom the statute envisions employees will sue instead of their employers. Significantly, the trial court made no reference to any specific duty owed by employers, that could give rise to the type of negligence claim asserted against Home Depot in the present matter. The Superior Court affirmed the Trial court’s decision. The Supreme Court rejected the lower courts’ finding. It reasoned that § 481 is the product of public policy compromise wherein “the employer assumes liability without fault for a work-related injury but is relieved of the possibility of a larger damages verdict in a common[-]law action. The employee benefits from the expeditious payment of compensation but forgoes recovery of some elements of damages.” In light of this public-policy context, the court determined that even intentional acts by an employer, are insufficient to pierce the employer-liability protections of § 481. While the Court acknowledged the existence of a select few carve-outs to the Act, it ultimately determined that “the WCA has anticipated and foreclosed virtually any sort of negligence claim against an employer ‘on account of” a physical injury that occurs in the workplace.” The Court reversed and remanded the lower court’s decision and granted Summary Judgment to Home Depot.  Franczyk is a win for defendant-employers and their insurers as it limits the risk of duplicative liability for employers by correctly accounting for the public policy compromise set forth in § 481 of the WCA. Thanks to Stephen Kerstein for his contribution to this article.  Should you have any questions, contact Tom Bracken.Read More

Fraudulent Joinder To Retain State Jurisdiction Denied By Federal Court Of Appeals (PA)

In Williams v. John Middleton Company, the Third Circuit Court of Appeals recently issued an  opinion instructive as to what might make for a fraudulent joinder of a defendant for the purposes of avoiding federal court. In the case, plaintiff filed a products liability action after allegedly being injured from attempting to light a cigar/cigarillo which resulted in an explosion. Of the four defendants in the case, two were residents of Pennsylvania and two were not. One of the non-Pennsylvania defendants removed the case to federal court, asserting that the two Pennsylvania defendants were fraudulently joined and that the federal court therefore had “diversity jurisdiction” over the case. The plaintiff subsequently filed to remand the case back. to Pennsylvania state court. The federal court’s review of joinder law recounted that, in a case with defendants who have the same residency as the plaintiff, a defendant who does not have that same residency may still remove the case to a federal court if “it can establish that the non-diverse defendants were ‘fraudulently’ named or joined solely to defeat diversity jurisdiction.” Williams v. John Middleton Co., No. CV 23-1158, 2023 WL 3393413, at *1 (E.D. Pa. May 11, 2023) (quoting In re Briscoe, 448 F.3d 201, 216 (3d Cir. 2006)). Likewise, if there “is no reasonable basis in fact or colorable ground supporting the claim against the joined defendant[s], or no real intention in good faith to prosecute the action against the defendant[s] or seek a joint judgment” then joinder is fraudulent. Id. Despite focusing on the plaintiff’s complaint and assuming that all allegations were true, and without deciding any merits of the case, the federal court decided that the 2 defendants were indeed fraudulently joined and thus denied the plaintiff’s motion to remand. To make this decision the federal court noted that it did however have the ability to look beyond the pleadings and consider other indicators of fraudulent joinder, such as affidavits presenting “undisputed facts.” Id at 2. The federal court found that the third defendant, who admitted to owning the premises, which in turn was leased to another company which manages a gas station on the property, could not be held liable for the alleged defective cigarillos or lighter, because it was merely a real estate holding company and the contention that it “manufactured, or distributed” the cigarillo or lighter was not supported by the records. Id. at 3. Thus, the court concluded that there was “no reasonable basis in fact or colorable ground supporting” the claims of the plaintiff. Id. The third defendant was accordingly dismissed from the case. The fourth defendant was likewise dismissed from the case, though for a different reason. Simply put, the fourth defendant was found to have been misidentified by the plaintiff, and the plaintiff’s records indicating similarly named entities therefore did not contradict the defendants’ assertions that the fourth defendant had nothing to do with the case. There are two important reminders to be taken from the federal court’s decision about fraudulently joined defendants: (1) an owner of a premises which sells products is, not necessarily, part of the manufacture and distribution of those products and therefore might be fraudulently joined; and (2) having the same, or a similar name, to an entity which would be a proper defendant certainly does not mean that one is itself a proper defendant, and any such joinder might be fraudulent. Thanks to Ryan Hunsicker for his assistance in this post. Should you have any questions, please contact Tom Bracken.Read More

WCM Welcomes A New Class Of Summer Associates

WCM’s Summer Associate program welcomes a new crop of law students for the Summer of 2023. New Jersey Jordan Davis is a 2L at Widener University Delaware Law School.  Jordan is a graduate of St. Joseph’s University with a degree in political science.  Prior to joining WCM, Jordan was a paralegal for a Philadelphia personal injury law firm. Susan Derasmo is a 3L at Rutgers Law School and a member of Rutgers’ Computer and Technology Law Journal.  Susan is a graduate of Elon University with a degree in policy studies and strategic communications and earned a masters in higher and postsecondary education from Teachers College, Columbia University.  Prior to joining WCM, Susan interned as a judicial clerk in Monmouth County Superior Court and before that was a legal research assistant in the Office of General Counsel, Teachers College, Columbia University. Matthew Staniloff is a 3L at Rutgers Law School and a member of the Entertainment, Arts, and Sports Law Society.  Matthew is a graduate of the University of Victoria in British Columbia, Canada with a degree in psychology.  Prior to joining WCM, Matthew participated in a variety of internships, including a legal intern with a New York personal injury law firm and a judicial intern with the United States Bankruptcy Court for the District of New Jersey.  Matthew is an avid hockey fan, having worked part time for the Victoria Grizzlies while in undergrad. New York Jordan Joachim-James is a 3L at Fordham University School of Law and a member of the Environmental Law Review.  Jordan is a graduate of Fordham University with a degree in sociology.  Prior to joining WCM, Jordan interned with Manhattan Legal Services, Bronx Legal Services and with the Industrial Court of Trinidad and Tobago in Port of Spain, Trinidad. Jacob Popeck is a 3L at Fordham University School of Law and a member of the International Law Journal.  Jacob is a graduate of SUNY Binghamton with a degree in political science and philosophy, politics, and law.  Prior to joining WCM, Jacob participated in a legal extern with Housing Conservation Coordinators and interned with Travelers, Broome County District Attorney Office, and a well-known New York asbestos firm.  Jacob is an avid Rangers and Yankees fan. Seamus Rooney is a 3L at Fordham University School of Law and a member of the Environmental Law Review.  Seamus is a graduate of Rowan University with a degree in philosophy and world religions.  Prior to joining WCM, Seamus was a legal fellow for a Philadelphia law firm and interned with the Gloucester County Clerk’s Office and Gloucester County Surrogate Court in New Jersey. Corey Weisfeld is a 3L at Brooklyn  Law School and a member of the Entertainment and Sports Law Society.  Corey is a graduate of SUNY Binghamton with a degree in philosophy, politics, and law.  Prior to joining WCM, Corey worked as a paralegal for a personal injury law firm on Long Island and interned with the Nassau County District Attorney’s Office. Pennsylvania Allen Dejewski is a 3L at Drexel University Thomas R. Kline School of Law and a Law Review staff editor.  Allen is a graduate of Temple University with a degree in economics.  Prior to joining WCM, Allen was a judicial intern with the Philadelphia Court of Common Pleas.  Allen is a former football player and an Eagles enthusiast. Hannah Garber is a 2L at Temple University Beasley School of Law.  Hannah is a graduate of Arcadia University with a degree in politics, government, and law.  Prior to joining WCM, Hannah interned with the Montgomery County Public Defender’s Office and worked as a crisis counselor. Gianna Hroncich is a 3L at Drexel University Thomas R. Kline School of Law and a Law Review staff editor.  Gianna is a graduate of Lafayette College with a degree in government and law.  Prior to joining WCM, Gianna was a law clerk for a Florida law firm and paralegal at a New York law firm.  Gianna is a beam gymnast champion. Nicolas Ozorowski is a 3L at Villanova University Charles Widger School of Law and a member of the Moot Court Board.  Nicholas is a graduate of the University of Massachusetts Amherst Commonwealth Honors College with a degree in political science.  Prior to joining WCM, Nicholas interned with Fanatics and was a paralegal for a Philadelphia real estate firm.  Nicholas is a distance runner. Benjamin Salvatore is a 3L at Rutgers School of Law and a member of the Law Review.  Benjamin is a graduate of Rowan University with degrees in mathematics and political science.  Prior to joining WCM, Benjamin was a judicial extern for the USDC for the District of New Jersey and interned with Rutgers Civil Practice Clinic – Veterans Advocacy Program.Read More

Does OSHA Give Employees A Right Of Action? Question Addressed In PA

In Jane Doe v. Eugene Scalia, appearing in front of the Court of Appeals Third Circuit, plaintiff Jane Doe presented a matter of first impression to the court which found that the OSHA Act mandates the dismissal of a §662(d) claim once the Department has completed its enforcement proceedings.

The case decided whether Section 13(d) of the OSHA Act gives employees a private right of action to remediate dangers in the workplace specifically, whether an employee may maintain an action against the Secretary of Labor seeking relief for dangerous working conditions after the Department of Labor has completed enforcement proceedings.

Plaintiffs are employees at a Meatpacking Plant located in Dunmore Pennsylvania. The Plant’s workers argued that they were exposed to COVID-19 for the first time in early 2020. As the virus spread, plaintiffs became concerned that the Plant had taken inadequate COVID-19 prevention measures. Plaintiffs notified OSHA who proceeded to conduct a “non-formal” inspection which proceeded through a document exchange. Plaintiffs repeatedly notified OSHA expressing dissatisfaction with the inspection, which they claimed had not addressed the dangers they were facing.

In the OSH Act of 1970, Congress created the Occupational Safety and Health Administration (“OSHA” or “the Agency”) to develop and enforce workplace safety standards. In general, OSHA, rather than private litigants, is responsible for assuring workplace safety. In furtherance of that objective, the OSH Act funnels safety grievances through OSHA’s administrative processes. Various sections of OSHA establish authority to conduct workplace inspections, authorize the ability to issue “citations”. In addition to the OSH Act’s standard enforcement procedures, Congress also provided expedited mechanisms in § 662 for remedying workplace hazards requiring immediate attention. The expedited mechanisms provide that the Secretary may seek injunctive relief against an employer and an employee may seek a writ of mandamus against the Secretary to address “imminent danger[s]” in the workplace. Id. § 662(a), (d) and, in relevant part here, § 662(d) authorizes a limited private right of action.

In its decision, the court held that § 662(d) “private right of action” gives no indication that Congress intended the “such further relief” language to permit employees to challenge OSHA’s determinations outside of the imminent-danger context. Instead, the “such further relief” language is linked to the injunctive remedy. Id. § 662(d). In deciding this the court acknowledged that it appreciate Plaintiffs’ concern that this interpretation of § 662(d) means that it will provide an avenue for relief in only limited circumstances but affirmed that such a limitation is exactly what Congress intended in enacting § 662. The proper reading of § 662 is that Congress inserted § 662(d) as a safeguard against a failure by OSHA to address an imminent danger while its own enforcement proceedings are ongoing.

Thanks to Dominika Rybaltowski for her contribution to this post. Please contact Heather Aquino with any questions.  Read More

Does An Insurance Company Have The Duty To Indemnify A Policyholder Against Criminal Activity? (PA)

When a policyholder is sued and seeks coverage from their insurance company, it can become complicated when that insurance company refuses coverage. It can become even more complicated when the underlying cases concern a crime. In Samsung Fire and Marine Insurance Co. Ltd (US Branch) v. UFVS Management Company LLC, (E.D. Pa. 2023), the insurance company Samsung Fire and Marine Insurance, Co. LTD., U.S. Branch (“Samsung”) brought a declaratory judgment against UFVS Management Company, LLC (“UFVS”), Roosevelt Motor Inn, Inc. (“Roosevelt Inc.”), Roosevelt Inn, LLC (“Roosevelt LLC”), and Yagna Patel (“Patel”) (collectively, “Policyholders”) seeking a declaration that Samsung did not have a duty to defend or indemnify Policyholders in four state court actions brought against them. The underlying state court actions were brought by four different women, who alleged that they were victims of human sex trafficking at the Roosevelt Inn in Philadelphia, owned by Policyholders, and covered under Samsung’s policy at the time of the alleged incidents. Subsequently, when the women brought suit against Policyholders, they sought coverage against the claims. The relevant provisions of both the Nationwide and Samsung policies were those providing coverage for bodily injury and property damage (Coverage A) and personal and advertising injury (Coverage B). Samsung alleged in their declaratory judgment that they did not have a duty to indemnify the Policyholders, because there was an exclusion for abuse or molestation in the insurance policy. Additionally, Samsung, along with the other insurance companies (collectively, “Providers”) involved in the relevant third-, fourth-, and fifth-party claims to this matter, argued that providing coverage to Policyholders went not only against the respective policies, but also against Pennsylvania public policy. Providers further asserted that even if their policies were found by a court to cover Policyholders, public policy would bar coverage, and would require the Court to award declaratory judgment. The Court ruled in favor of the Providers, opining that “shielding Policyholders from the consequences of their criminal conduct would be against the safety, morals, and welfare of the Commonwealth.” Therefore, Samsung’s Motion for Judgment on the Pleadings was granted, and Policyholders’ was denied. Thanks to Haley Matthew for her contribution to this article. Should you have any questions, please contact Andrew Gibbs.Read More

PA Commonwealth Court Unanimously Rejects Lead Paint Claims Brought Under a Novel Public Nuisance Theory

On May 5, 2023 in a lawsuit entitled Atlantic Richfield Company, et al. v. The County of Montgomery, Pennsylvania, No. 1338 C.D. 2021 (Pa. Comm. Ct. 2023), an unanimous en banc panel for the Pennsylvania Commonwealth Court ordered the dismissal of a suit filed by Montgomery County seeking to hold paint manufacturers liable for lead paint in residential structures under a novel theory of public nuisance.

Specifically, Montgomery County, Pennsylvania (“Montgomery County”) filed a complaint against various paint manufacturers seeking a declaratory judgment that lead paint is a public nuisance under the common law as well as the Lead Certification Act (Certification Act), Act of July 6, 1995, P.L. 291, No. 44, 35 P.S. §§ 5901-5916. In doing so, Montgomery County pursued a novel legal theory that lead paint is a public nuisance under the Lead Certification Act, which regulates activities involving lead-based paint, but does not outright identify lead paint to be a public nuisance. Despite this, Montgomery County argued that the statute nonetheless makes the connection through its language, calling lead poisoning a public health threat and that its citizens have a common right to be free from the detrimental effects of exposure to lead paints/pigments in, on, and around private homes / residences throughout the county.

In appealing the trial court’s dismissal of the paint manufacturers’ preliminary objections, the manufacturers argued that the County’s proposed interpretation of the Certification Act was contrary to its plain language and legislative intent and that even if proven, Montgomery County had failed to establish proximate causation under Pennsylvania tort law. Ultimately, the Commonwealth Court agreed and reversed the trial court, thereby dismissing the lawsuit. The Commonwealth Court unanimously rejected Montgomery County’s argument that lead paint constitutes a public nuisance under the Certification Act and determined that even if so, the Act does not empower a Pennsylvania county to sue paint manufacturers for creating a public nuisance.

In approaching the merits of the common law public nuisance claims, the Commonwealth Court determined that the existence of lead paint in one dwelling was not necessarily transitory in nature where the surrounding community members would also be impacted as necessary to constitute a public nuisance. Furthermore, such a finding would be in contrast to Pennsylvania precedent related to lead paint claims. Pennsylvania courts have declined to apply market share liability theory to lead paint claims. Instead, Pennsylvania law requires that such claims be made on a property-by-property basis proving that lead paint or pigment manufactured by a particular identified defendant is present and causing harm at a particular property. In dismissing the claims against the manufacturers, the Commonwealth Court acknowledged that Montgomery County’s allegations were essentially a products liability claim raised improperly under the guise of a public nuisance action.

Through this precedential ruling in Atlantic Richfield Company, the Pennsylvania Commonwealth Court shut down Montgomery County’s attempt to pave a novel avenue for fellow political subdivisions to combat exposure risks related to lead paint injuries its residents. Yet, had Montgomery County been successful, shifting risk to the paint manufacturers through any subsequent lawsuits could have rewarded irresponsible landlords for failing to follow existing laws and subjecting vulnerable communities to substandard housing.

Thanks to Kendal Hutchings for her contribution to this article.  Should you have any questions, contact Matthew Care.Read More

Punitive Damages Denied In Red Light Auto Case (PA)

In Koch v. Lawson, 2023 U.S. Dist. Lexis 65802, 2023 WL 2923139, a Pennsylvania Court held that simply driving through a red light did not rise to the level to warrant punitive damages. In Pennsylvania, punitive damages are proper, “when a person’s actions are of such an outrageous nature as to demonstrate intentional, willful, wanton or reckless conduct.”  In order to seek punitive damages, a plaintiff must aver facts in his complaint and not mere conclusions. The Plaintiff sought punitive damages after sustaining serious and permanent injuries when a tractor and trailer ran a red light a struck the Plaintiff’s vehicle. The Plaintiff alleged that the truck driver violated many traffic laws, including driving while being distracted or fatigued and falling asleep while driving. The Plaintiff failed to plead in his fact section of his complaint that the trucker driver was asleep at the wheel instead it only alleges that the truck driver violated traffic law. The court held that at most the Plaintiff only alleged that the truck driver failed to comply with traffic laws, and that is insufficient for punitive damages. Thanks to Jean Scanlan for her contribution to this article.  Should you have any questions, please contact Tom Bracken.Read More

Definition Of ‘Appropriate Licensed Professional’ For Expert Purposes Narrowed In Federal Medical Malpractice Case (PA)

In the recent case of Joseph Geiger v. United States of America, the United States District Court for the Middle District of Pennsylvania, held that only a physician can qualify as “an ‘appropriate licensed professional’ for the purposes of providing expert testimony regarding the applicable standard of care or a statement in support of a certificate of merit against a physician. Joseph Geiger v. United States of America, No. 3:22-CV-01079, 2023 WL 3136405, at *3 (M.D. Pa. Apr. 27, 2023). In Geiger, Geiger filed a civil action against the Federal government, under the Federal Torts claim Act (“FTCA”), alleging that he received negligent medical care, in Pennsylvania, from the United States Department of Veteran Affairs. Under the FTCA, federal courts, sit in federal question jurisdiction but apply “the substantive tort laws of the state in which the alleged tort arose,” and Pennsylvania substantive law requires a certificate of merit to be filed when pursuing a medical malpractice action. The certificate of merit “must attest either that an appropriate licensed professional supplied a written statement that there exists a reasonable probability that the care provided fell outside acceptable professional standards, or that expert testimony of an appropriate licensed professional is unnecessary.” Defendant-United States of America, motioned to strike Geiger’s certificate of merit because it relied upon a written statement by his optometrist, and optometrists are not physicians, i.e., not MDs. The court agreed with the Defendant. The court reasoned that while optometrists are licensed professionals, they are not “appropriate” licensed professionals for purposes of satisfying Pennsylvania’s certificate of merit requirement. The court relied upon a variety of precedents and various Sections of Pennsylvania’s MCare Act, which, in a variety of contexts repeatedly differentiated between MD-holding physicians, and other non-physician medical professionals, such as optometrists and podiatrists. Geiger is a victory for civil defendants, in that it posits a narrow definition of “appropriate licensed professional” which plaintiffs need satisfy to state a claim for medical malpractice. By limiting “appropriate licensed professional” to physicians in this context, the Court has shrunk the pool of licensed professionals that Plaintiffs can rely upon to help them satisfy their certificate of merit requirements, thus making it harder, as a practical matter, for plaintiffs to state claims for medical malpractice. Thanks to Stephen Kerstein for his assistance with this article.  Should you have any questions, please contact Tom Bracken.Read More