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Philadelphia County Court of Common Pleas Sanctions Plaintiff's Counsel Under Certificate of Merit Rules

Healthcare Alert | September 3, 2013
By: Kevin C. Cottone and Daniel J. Ferhat

In Solomon v. Meller, M.D., the Honorable Frederica Messiah-Jackson sanctioned the plaintiff’s counsel and his firm $4,784 as a result of their failure to produce a written statement from an expert in support of the Certificate of Merit filed in the case.  Judge Messiah-Jackson entered the sanction pursuant to Rule 1042.9(a) of the Pennsylvania Rules of Procedure, in response to a motion filed by the defendants after they received a defense verdict at trial.  The court reasoned the monetary sanction imposed was “sufficient to deter repetition of such conduct or comparable conduct by others similarly situated” and directed payment to be made to the court “for reasonable costs incurred by the Court for the trial as a result of this litigation[.]”   

The court levied the sanction as a deterrent and appears to have made no attempt to compensate the defendants for any harm arising from the conduct.  Arguably, the damages arising from an improperly filed Certificate of Merit could include the cost of defending the case and the harm to the defendant brought about by the mere existence of the lawsuit.  The court may have considered the fact that the defendants still have the option of pursuing claims under the Dragonetti Act or for wrongful use of civil proceedings in deciding to not make the sanction payable to the defendants.

Judge Massiah-Jackson’s sanction certainly serves as notice to the plaintiff’s bar of the importance of obtaining a written statement from an appropriately qualified expert before filing a Certificate of Merit in a professional liability matter.  From a defense lawyer’s perspective, the decision also reinforces the importance of consulting with your client and considering whether or not to make a request for the written statement(s) under the Rules.  The Solomon case is presently on appeal to the Superior Court of Pennsylvania.

Should you need guidance or more information regarding the Certificate of Merit rules or this alert, please contact Kevin Cottone (cottonek@whiteandwilliams.com; 215.864.7108) or Daniel Ferhat (ferhatd@whiteandwilliams.com; 215.864.6297) or any member of our Healthcare Group for further assistance. 

This correspondence should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult a lawyer concerning your own situation and legal questions.
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