PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 08-4336
__________
*ELIZABETH LIGGON-REDDING,
Appellant
v.
THE ESTATE OF ROBERT SUGARMAN
*(Pursuant to Rule 43(a), FRAP)
__________
On Appeal from the United States District Court
For the Eastern District of Pennsylvania
(D.C. No. 2-07-cv-04591)
District Judge: Honorable Juan R. Sanchez
__________
ARGUED JULY 13, 2011
Before: FUENTES, FISHER, and NYGAARD,
Circuit Judges
(Filed: October 4, 2011)
Elizabeth Liggon-Redding
P. O. Box 521
Rancocas, NJ 08073
Pro Se Appellant
Richard H. Frankel, Esq.
Iwona Rusek, Student Counsel
Kristin Shicora, Student Counsel [Argued]
Drexel University
Earle Mack School of Law
3320 Market Street
Philadelphia, PA 19104
Court Appointed Amicus Curiae
Audrey J. Copeland, Esq. [Argued]
Marshall, Dennehey, Warner, Coleman & Goggin
620 Freedom Business Center, Suite 300
Kind of Prussia, PA 19406
John J. Hare, Esq.
Frederic Roller, Esq.
Marshall, Dennehey, Warner, Coleman & Goggin
1845 Walnut Street
Philadelphia, PA 19103
Attorneys for Appellees
__________
OPINION OF THE COURT
__________
2
NYGAARD, Circuit Judge
This appeal presents two questions: first, whether
Pennsylvania Rule of Civil Procedure 1042.3, requiring the
filing of a Certificate of Merit in malpractice cases, is
substantive law that federal courts must apply under Erie v.
Tompkins, 304 U.S. 64 (1938); and second, if the rule is
substantive state law, did the Appellant comply? We answer
both questions in the affirmative and will, as a result, reverse
the District Court‟s dismissal of the Appellant‟s complaint
and remand this matter for further proceedings.
I.
In this diversity case, Appellant Elizabeth Liggon-
Redding filed suit pro se against Attorney Robert Sugarman,
alleging that he committed legal malpractice while
representing her in a medical malpractice case in
Pennsylvania state court.1 In particular, she alleged that her
1
The District Court‟s jurisdiction was based on 28 U.S.C. §
1332 (diversity of citizenship). Our jurisdiction is based on
28 U.S.C. § 1291. The District Court dismissed with
prejudice Liggon-Redding‟s claims for failure to prosecute or
to comply with its orders pursuant to Federal Rule of Civil
Procedure 41(b). We review such an order for an abuse of
discretion. Emerson v. Thiel College, 296 F.3d 184, 190 (3d
Cir. 2002). Although we defer to the District Court's
discretion, dismissal with prejudice is only appropriate in
limited circumstances and doubts should be resolved in favor
of reaching a decision on the merits. Id.
3
medical malpractice case was dismissed by the state court
because Sugarman was negligent in failing to retain an expert.
Sugarman, also proceeding pro se in the District Court,
defaulted on the complaint but successfully moved to vacate
the default, explaining the circumstances that gave rise to it
and also summarizing his defense to Liggon-Redding‟s claim
(in essence, that Liggon-Redding‟s subsequent treating
physician told him that Liggon-Redding‟s previous physician
had not been negligent, and that he could not locate an expert
to testify to the contrary). The District Court then permitted
him to file an answer. Sugarman died while this case was
pending in the District Court and his estate was substituted as
a defendant.
Pennsylvania law requires a plaintiff to file a
certificate of merit within 60 days after filing a professional
negligence complaint. Liggon-Redding‟s certificate was due
by January 18, 2008, but she did not file a certificate within
that time. Sugarman, however, did not raise that issue either
in his answer (filed three days before that deadline) or later by
separate motion. The District Court entered a routine
scheduling order on January 24, 2008. Then, on February 28,
2008, the District Court sua sponte entered an order directing
the parties to file briefs regarding Pennsylvania‟s certificate
of merit requirement.2 The order correctly noted that the
Pennsylvania rules require:
2
Sugarman did not argue below and does not argue on appeal
that the District Court lacked the authority to grant this
extension sua sponte. Cf. PA.R.CIV.P. 1042.3(d) and Note
(authorizing extension only on timely motion for good cause
shown). In any event, under Pennsylvania law, a plaintiff
may file an untimely certificate of merit as long as she does
4
a certificate of merit signed by the
attorney or party that either
(1) an appropriate licensed
professional has supplied a
written statement that there exists
a reasonable probability that
[defendant‟s conduct] fell outside
acceptable professional standards
and that such conduct was a cause
in bringing about the harm, or . . .
(3) expert testimony of an
appropriate licensed professional
is unnecessary for prosecution of
the claim.
PA.R.CIV.P. 1042.3(a)(1) & (3) (emphasis added). The order
also quoted the note to the latter provision, which states:
In the event that the attorney
certifies under subdivision (a)(3)
that an expert is unnecessary for
prosecution of the claim, in the
so before the defendant files a praecipe for non pros, and
Liggon-Redding filed all of the relevant documents here
before Sugarman moved to dismiss her complaint. See Moore
v. John A. Luchsinger, P.C., 862 A.2d 631, 632-33 (Pa.
Super. Ct. 2004) (noting also that the certificate of merit
requirement is not “self-enforcing”).
5
absence of exceptional
circumstances the attorney is
bound by the certification and,
subsequently, the trial court shall
preclude the plaintiff from
presenting testimony by an expert
on the questions of standard of
care and causation.
PA.R.CIV.P. 1042.3(a)(3), Note.
In response to this order, Liggon-Redding filed a
document entitled “certificate of merit,” in which she stated
in relevant part: “At the conference when you asked if I
wanted or needed an expert and I said no, will that be deemed
under Rule 1042.3 as (3) expert testimony of an appropriate
licensed professional is unnecessary for prosecution of the
claim?” The District Court did not directly answer her
question and, instead, entered a second order on March 27,
2008, amending its previous order “to allow Plaintiff 45 days
from the date of this Order to submit a certificate of merit,”
and again quoting the relevant language of Rule 1042.3.
Within those 45 days, Liggon-Redding filed two more
documents. The first is captioned “motion on certificate of
merit requirement,” and states in relevant part: “The Plaintiff
has not failed to comply with this requirement, Once Again,
„EXPERT TESTIMONY OF AN APPROPRIATE
PROFESSIONAL IS UNNECESSARY FOR
PROSECUTION OF THE CLAIM![‟.]” The second
document is also captioned a “certificate of merit” and states
in relevant part that “Plaintiff does not know how to comply
with rule 1042 if stating that, „expert testimony of an
appropriate licensed professional is unnecessary for
6
prosecution of the claim,‟ does not satisfy the requirement,”
and that “Plaintiff has satisfied the Certificate of Merit
Requirement to the best of her knowledge and belief.”
Thereafter, when Sugarman‟s estate was substituted as
a defendant, counsel for the estate filed a motion to dismiss
Liggon-Redding‟s complaint under Rule 41(b) for her
purported failure to file a certificate of merit. The District
Court granted that motion by memorandum and order entered
October 23, 2008. In doing so, the District Court wrote that
Liggon-Redding had “failed to file a Certificate of Merit,”
and characterized her as “argu[ing] that she does not need a
Certificate of Merit because she expects to proceed without
an expert.” Judge Sanchez rejected that argument because he
concluded that Liggon-Redding in fact would require expert
testimony to prove her claim. The District Court did not
address why Liggon-Redding‟s filings should not be
construed as a certificate under Pennsylvania Rule
1042.3(a)(3) or why, as a matter of Pennsylvania or federal
law, she was not entitled to proceed under that section of the
Rule.
II.
We begin with the question of whether the
Pennsylvania rule requiring a certificate of merit is procedural
or substantive law. The District Court found Pennsylvania‟s
certificate of merit requirement to be substantive state law.
We have never addressed the issue precedentially and asked
the parties to submit additional briefing on this question.3
3
District Courts within this Circuit have long recognized that
Rule 1042.3 is substantive law and should be applied by
7
A federal court sitting in diversity must apply state
substantive law and federal procedural law. See Erie R.R. v.
Tompkins, 304 U.S. 64, 78 (1938). In Chamberlain v.
Giampapa, 210 F.3d 154, 158-61 (3d Cir. 2000), we
summarized the jurisprudence of the United States Supreme
Court and other courts concerning the Erie Rule, and set out a
three-part test to determine whether a state law is substantive
or procedural for purposes of compliance with the Erie Rule.
First, a court must determine whether there is a direct
collision between a federal rule and the state law or rule that
the court is being urged to apply. If there is a direct conflict,
the federal court must apply the federal rule and reject the
state rule. If there is no “direct collision,” then the court
applies the Erie Rule to determine if state law should be
applied, by evaluating the second and third prongs of the
Chamberlain test. Chamberlain, 210 F.3d at 159-161. In the
second part of the Chamberlain test, a court must determine
whether the state law is outcome-determinative and whether
failure to apply the state law would frustrate the twin aims of
the Erie Rule to discourage forum shopping and avoid
inequitable administration of the law. Third, the court must
consider whether any countervailing federal interests prevent
the state law from being applied in federal court. See id.
The parties point to Federal Rules of Civil Procedure
8, 9, 11 and 41(b) as rules that may collide with the
Pennsylvania Certificate of Merit requirement. We have also
independently looked at FED.R.CIV.P. 7. None of these rules
federal courts sitting in diversity. See, e.g., Schwalm v.
Allstate Boiler & Const., 2005 WL 1322740 , at *1 (M.D. Pa.
May 17, 2005); Scaramuzza v. Sciolla, 345 F.Supp.2d 508,
509-10 (E.D.Pa. 2004).
8
collide with the Pennsylvania certificate of merit requirement.
We will briefly discuss each rule.
A.
Federal Rule 7(b) governs the application to the court
for an order and requires that any application to the court be
by motion. Unlike Federal Rule 7(b), Pennsylvania Rule
1042.3 requires a certificate of merit to be filed within 60
days after filing a professional negligence claim. Filing a
certificate of merit, and applying for an order are clearly
different and unrelated. Filing a certificate of merit is not an
application to the court for an order because, when a plaintiff
files a certificate, he or she is merely adding to the record and
not requesting any relief or action by the court. Therefore,
Federal Rule 7(b) and Pennsylvania Rule 1042.3 do not
directly collide.
In Chamberlain, we held that neither FED.R.CIV.P. 8
nor 9 conflicted with a New Jersey Affidavit of Merit statute.
See 210 F.3d at 159-60. The same holds true for the
Pennsylvania rule. Federal Rule 8 sets out a requirement that
a complaint contain a “short and plain statement of the claim
showing that the pleader is entitled to relief.” FED.R.CIV.P.
8(a). In contrast, Pennsylvania Rule 1042.3 does not require
a plaintiff to set forth any factual averments upon which a
claim is based. Instead, the rule requires that a “written
statement [must be filed] that there exists a reasonable
probability” that the defendant‟s care, skill, or knowledge fell
outside acceptable professional standards. PA.R.CIV.P.
1042.3(a)(1). Further, the attorney‟s signature certifies that
an “appropriate licensed professional has supplied a written
statement that there is a basis to conclude that the care, skill,
9
or knowledge exercised or exhibited by the defendant in the
treatment, practice, or work that is the subject of the
complaint fell outside acceptable professional standards and
that such conduct was a cause in bringing about the harm.”
Id. Thus, PA.R.CIV.P. 1042.3 was created to ensure that
professional negligence claims are meritorious, and the
certificate of merit requirement prevents needless waste of
judicial time and resources which would otherwise be spent
on non-meritorious claims. The Certificate of Merit,
therefore, does not have any “effect on what is included in the
pleadings of a case or the specificity thereof. ” Chamberlain,
210 F.3d at 160.
Federal Rule 9 does require specificity in pleading
certain types of claims, but malpractice is not among them.
See id. Taken together, these rules “dictate the content of the
pleadings and the degree of specificity that is required.” Id.
As was the case with the New Jersey statute, Pennsylvania
Rule 1042.3 does not govern the content of pleadings or the
level of specificity contained therein. The Pennsylvania
Certificate of Merit, like its New Jersey counterpart, is not a
pleading and need not be filed until well after the complaint.
The Pennsylvania rule does not interfere with the pleading
standards set forth in Federal Rules 8 and 9. Therefore, these
rules can co-exist with the Federal Rules.
The same is true for Rule 11. Liggon-Redding argues
that Rule 11 requires an attorney to sign a pleading, thereby
attesting that the complaint is meritorious. See FED.R.CIV.P.
11(b)(1)-(4). Pennsylvania‟s Rule 1042.3, she maintains, is
superfluous because it requires the same thing. We disagree.
Pennsylvania Rule 1042.3 requires an additional written
statement by “an appropriate licensed professional” attesting
10
to a “reasonable probability” that a “licensed professional
deviated from an acceptable professional standard.”
PA.R.CIV.P. 1042.3. Additionally, the Pennsylvania
certificate of merit must be filed within sixty (60) days of the
filing of the complaint. Federal Rule 11, in contrast, does not
require an additional consultation with experts or the filing of
a separate written statement within sixty (60) days of the
filing of the complaint. Indeed, Federal Rule 11 only requires
consultation with an attorney while the Pennsylvania
Certificate of Merit Rule 1042.3 requires a written statement
of an appropriate licensed professional, typically a physician.
If a plaintiff does not file a certificate of merit pursuant
to PA.R.CIV.P. 1042.3, then PA.R.CIV.P. 1042.6 provides that
an entry of judgment of non pros may be entered for failure
to file the certification. Conversely, Federal Rule 11 does not
mandate dismissing a plaintiff's claim for failure to consult
with an attorney. Rule 11 does, however, provide for
discretionary sanctions if the plaintiff violates this Federal
Rule of Civil Procedure. Dismissing an action under Rule 11,
however, is a sanction of last resort. See Doering v. Union
Cnty. Bd. of Chosen Freeholders, 857 F.2d 191, 194 (3d Cir.
1988) (sanctions under Rule 11 only prescribed “in the
exceptional circumstance where a claim or motion is patently
unmeritorious or frivolous” (internal citation and quotation
marks omitted)). This, of course, differs from PA.R.CIV.P.
1042.6 which requires dismissal.
Federal Rule of Civil Procedure 11 can co-exist with
the Pennsylvania certificate of merit rule because each rule
controls its own intended area of influence without any
conflict. PA.R.CIV.P. 1042.3 is not “superfluous” since its
promulgation was specifically intended to ferret out claims
11
lacking merit in the interest of preserving judicial resources
and promoting judicial economy. We therefore hold that
FED.R.CIV.P. 11 does not conflict with PA.R.CIV.P. 1042.3.
Likewise, Federal Rule 41(b) does not directly collide
with Pennsylvania Rule 1042.3. Federal Rule 41(b) governs
involuntary dismissals. Pennsylvania Rule 1042.3 does not
address any form of dismissal. The filing of a certificate of
merit serves an entirely different purpose and contemplates an
entirely different process than that of moving for an
involuntary dismissal. Therefore, because filing a certificate
of merit is different than an involuntary dismissal, we
conclude that these rules do not directly collide.
B.
Having found no direct collision, we proceed to the
second part of the Chamberlain test which requires us to
apply traditional Erie principles. See 210 F.3d at 161. We
have no difficulty holding that the failure to apply
PA.R.CIV.P. 1042.3 would be outcome-determinative and that
such a failure would frustrate the twin aims of the Erie Rule:
discouraging forum shopping and avoiding inequitable
administration of the laws. See Lafferty v. St. Riel, 495 F.3d
72, 83 n. 14 (3d Cir. 2007) (quoting Hanna v. Plumer, 380
U.S. 460, 468 (1965).
In Pennsylvania state court, a plaintiff‟s failure to
comply with Pennsylvania Rule 1042.3 permits a defendant to
file a Praecipe for Entry of Judgment of Non Pros. Dismissing
a claim or case can certainly determine the outcome of the
matter. Indeed, a dismissal is permanently determinative if
the case is dismissed after the statute of limitations has run.
12
Thus, failing to apply the Pennsylvania rule in a federal action
where no certificate of merit was filed would “produce a
different outcome than that mandated in the state
proceeding.” Chamberlain, 210 F.3d at 161.
Further, failing to apply Pennsylvania Rule 1042.3 in
federal court would not serve the “twin aims” of the Erie rule.
First, such a failure would encourage forum shopping. As we
held in Chamberlain, a plaintiff “who [has] been unable to
secure expert support for their claims and face[s] dismissal
under the statute in state court may, by filing in federal court,
be able to survive beyond the pleading stage and secure
discovery.” 210 F.3d at 161. Put another way, if PA.R.CIV.P.
1042.3 is considered procedural, and thus inapplicable in
federal courts, it would, theoretically, be easier to pursue
frivolous or meritless professional malpractice cases in
federal court (without a certificate of merit requirement) in
diversity and pendent jurisdiction cases, than in Pennsylvania
state courts (with such a requirement). Inasmuch as one of
the purposes of the Erie doctrine is to end discrimination
against citizens by non-citizens and to discourage forum
shopping, see Hanna, 380 U.S. at 468, the Pennsylvania rule
must be applied.
The second of Erie‟s “twin aims” is likewise satisfied
by enforcing the Pennsylvania rule in federal court. The
failure to apply Pa.R.Civ.P. 1042.3 would result in
inequitable administration of the law. Were we not to apply
the state rule, a defendant in federal court would be forced to
engage in additional litigation and expense in a non-
meritorious malpractice suit simply because the plaintiff was
from a different state. See Chamberlain, 210 F.3d at 161.
Moreover, a non-diverse plaintiff in state court would be
13
required to comply with the rule, while a plaintiff in federal
court could avoid the certificate of merit requirement simply
because he or she is a citizen of a different state. The “twin
aims” of Erie, therefore, weigh in favor of concluding that the
Pennsylvania rule is substantive, rather than procedural. See
Hanna, 380 U.S. at 468.
C.
Finally, the parties have not asserted a countervailing
federal interest nor can we conceive of any that would
prevent the application of the Pennsylvania Rule 1042.3.
Accordingly, we conclude that Pennsylvania Rule 1042.3,
mandating a certificate of merit in professional negligence
claims, is substantive law under the Erie Rule and must be
applied as such by federal courts.
III.
We now turn to the sufficiency of the Appellant‟s
Certificate of Merit. The District Court and the Appellee both
stated that the Appellant “failed” to file a Certificate of Merit.
We disagree. The District Court dismissed her complaint on
that basis, relying on Fed.R.Civ.P. 41 which authorizes
dismissal of a complaint “[i]f the plaintiff fails to prosecute or
to comply with these rules or a court order[.]” FED.R.CIV.P.
41(b).4 Our review of the record, however, reveals that
4
We review a District Court's dismissal of a plaintiff's claim
pursuant to FED.R.CIV.P. 41(b) for an abuse of discretion.
Doe v. Megless, --- F.3d ---, 2011 WL 3250443 at *5 (3d Cir.
Aug. 1, 2011) (citing Briscoe v. Klaus, 538 F.3d 252, 257 (3d
Cir.2008) and Emerson, 296 F.3d at 190.
14
Liggon-Redding filed a certificate of merit in compliance
with the Pennsylvania rules wherein she indicated that expert
testimony of an appropriate licensed professional was
unnecessary for the prosecution of her complaint. See
PA.R.CIV.P. 1042.3(a)(3).
Pro se filings, such as Liggon-Redding‟s, must be
liberally construed. See Hartmann v. Carroll, 492 F.3d 478,
482 n.8 (3d Cir. 2007). Liggon-Redding filed two documents
within the time period permitted by the District Court. These
filings unambiguously stated that she was proceeding under
Pennsylvania Rule 1042.3(a)(3) by asserting that no expert
testimony was needed to advance her claims. The District
Court did not address her point and, instead, characterized her
statements as an argument that she need not file a certificate
of merit under PA.R.CIV.P. 1042.3(a)(1). The District Court
concluded that her claims would need expert testimony and
rejected the position it ascribed to Liggon-Redding. In doing
so, the District Court abused its discretion.5
5
We recognize that a preliminary determination that expert
testimony will be required in a particular case may seem to be
an attractive option and superficially appear to serve the
purpose of the certificate of merit requirement, which is to
“identify and weed out non-meritorious malpractice claims
from the judicial system efficiently and promptly.” Womer v.
Hilliker, 908 A.2d 269, 275 (Pa. 2006). However, neither the
rule nor Pennsylvania jurisprudence authorizes such an early
determination. The Pennsylvania Supreme Court‟s decision
in Womer, for example, speaks only in terms of the
“presence” or “absence” of a certificate, and the plain
language of the rule permits parties to certify that no expert
15
There is no basis in Pennsylvania law that would
permit a district court to reject a filing under Rule
1042.3(a)(3) in favor of one filed under Rule 1042.3(a)(1).
Pennsylvania law expressly allows a plaintiff to proceed on
the basis of a certification that expert testimony will not be
required to prove her claim. Of course, the consequence of
such a filing is a prohibition against offering expert testimony
later in the litigation, absent “exceptional circumstances.”
PA.R.CIV.P. 1042.3(a)(3), Note. A filing under this rule
allows the case to proceed to discovery, leaving the
consequence of Liggon-Redding‟s decision to be dealt with at
a later stage of the litigation, such as summary judgment or
trial. This is the course of action the District Court should
follow on remand.
IV.
The District Court‟s dismissal of Liggon-Redding‟s
complaint was clearly premature. Hence, we will reverse the
cause and remand this matter for further proceedings
consistent with this opinion.
will be required. The federal rules likewise do not provide a
basis for the District Court‟s actions here. As we have
determined, a “certificate of merit” is not a pleading. See
FED.R.CIV.P. 7(a); Chamberlain, 210 F.3d at 160 (New
Jersey affidavit of merit not a “pleading”).
16