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Expert Unavailability May be Grounds for a Continuance

February 23, 2018

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A Pennsylvania court recently held it was an abuse of discretion for a trial court to deny a motion for a continuance when a party sought more time to obtain a substitute expert witness after their original expert suddenly and unexpectedly became unavailable.
In <a href=""><em>Rutyna v. Schweers</em></a>, plaintiffs brought a legal malpractice suit against an attorney, William Schweers, who previously represented them in a medical malpractice action.  Plaintiffs’ medical malpractice action had been dismissed after they failed to file a certificate of merit, which is required by Pennsylvania's Medical Care Availability and Reduction of Error Act.  Plaintiffs alleged that Schweers's failure to file the certificate of merit fell below the standard of care for an attorney.
Plaintiffs sought a continuance of the trial date after they discovered that their medical expert, who would testify to the merits of plaintiffs' underlying medical malpractice action, would no longer be able to testify.  In an unrelated case, that same expert signed a consent judgment whereby he agreed not to testify against UPMC or its doctors in <em>any</em> pending or future cases.  The trial court denied the plaintiff's motion for a continuance, and dismissed the case.  However, the Superior Court reversed and remanded, holding that the trial court had abused its discretion by not permitting the continuance.
Significant to the court's decision was testimony that plaintiffs' lawyer had contacted their expert several times in the weeks leading up to trial.  The expert never mentioned the potential consent judgment with UPMC, or the possibility that he may not be permitted to testify against UPMC or its doctors in plaintiffs' legal malpractice suit.  The denial of the continuance effectively deprived plaintiffs the opportunity of proving their case, and the "prejudice was irreversible."  They were therefore given the opportunity to find a new expert.
This case highlights the importance of independently screening experts and staying informed of any peripheral issues that may affect their ability to testify.  This is especially true in litigation that gets drawn out over an extended period of time.
Thanks to Robert Truchick for his contribution to this post.

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