In the matter of Mertzig et al. vs. Robert E. Booth Jr., et al., United States District Court for the Eastern District of Pennsylvania (April 25, 2012, Savage, J), the court addressed whether a plaintiff who sought to use expert testimony to prove elements of a claim under the res ipsa loquitur doctrine was barred due to the Certificate of Merit election imposed by Rule 1042.3(a)(1).

The court found that if a plaintiff completes a Certificate of Merit and certifies that expert testimony is not necessary to prosecute the action, the plaintiff is thereafter barred from presenting expert testimony related to proving the claim including testimony related to standard of care and causation.

The Mertzig v. Booth matter involved a medical claim where Ms. Mertzig underwent knee replacement surgery, which included a total left knee revision. During the procedure, the prosthetic was removed, cultured, and placed with a new device. Shortly thereafter, it was alleged that the prosthetic knee had been affected with staphylococcus capitis prior to placement in the plaintiff’s body during the surgery.

The plaintiff brought action against Dr. Booth, his orthopedic group, and Pennsylvania Hospital claiming negligence, vicarious liability, and loss of consortium resulting from the staph infection. The plaintiff filed a Certificate of Merit pursuant to Pa. Rule 1042.3(a)(3), certifying as to each defendant that “expert testimony of an appropriate licensed professional regarding deviation from acceptable professional standards of care is unnecessary for prosecution of claim against the Defendant.”

Litigation continued, and the plaintiff produced four expert reports. The plaintiff maintained that based upon these expert reports the defendants were liable under a res ipsa loquitur theory. In response, all defendants filed Motions for Summary Judgment, arguing that Rule 1042.3(a)(3) barred the plaintiff from introducing expert testimony on the standard of care and causation after having certified that such testimony was unnecessary to prosecute the claim. Defendants sought to bar the expert testimony that may have allowed plaintiff to prove breach of the duty of care.

The plaintiff argued that general proposition that Rule 1042.3(a)(3) created a prohibition on expert testimony does not apply when the plaintiff asserts a claim under the res ipsa loquitur theory. The court examined the history of res ipsa loquitur and noted that it is a Rule of Evidence inferring negligence from the circumstances surrounding the injury.

The court held that while a procedural rule, Pennsylvania Rule of Civil Procedure 1042.3(a), which requires a Certificate of Merit, has the effect of state substantive law. Because it was sitting in diversity, the court applied 1042.3.

The court noted that 1042.3(a) clearly provides certifying that expert testimony is not required is almost always irrevocable and while the Pennsylvania Supreme Court has not addressed this specific issue, the Eastern District relied upon Pennsylvania Superior Court case of Vazquez v. Chsprof’l Practice, P.C., 39 A.3d 395, 399 N.3 (Pa. Super. Ct. 2012), acknowledging that it was unaware of any case law dispositive on the subject.

Without guidance from the Pennsylvania Supreme Court, the Eastern District noted that absent exceptional circumstances of parties bound by its certification, when a party certifies no expert testimony is needed it may not introduce expert testimony on the standard of care and causation on a res ipsa loquitur claim at trial.

The plaintiff Mertzig was seeking to invoke res ipsa loquitur and would have to meet its prerequisites. Because the matter was medically complex, the plaintiff would have been required to present expert testimony on causation, as one point under res ipsa loquitur requires that a plaintiff must sufficiently show that the harm was not caused by a factor other than the defendant’s negligence.

Ultimately, the court held that the plaintiff certified that expert testimony was unnecessary to litigate the claim by signing a Certificate of Merit and, therefore, the plaintiff was barred from attempting to circumvent the mandate of Rule 1042.3 by invoking res ipsa loquitur.

As such, the plaintiff was bound by the certification that expert testimony was not necessary to prosecute the action and, therefore, was not permitted to present expert testimony on questions of standard of care and causation. Because the plaintiff was unable to support the claims without expert testimony, the defendant’s Motion for Summary Judgment was granted.

What It Means to You

Although Mertzig et al. vs. Robert E. Booth Jr., et al was in Federal Court, the court applied Pennsylvania law, and is a polestar opinion on preclusion of expert’s testimony at trial based on Certificate of Merit selection when a plaintiff asserts a claim under a theory of res ipsa loquitur.

Indeed, the court held Pennsylvania Rule of Civil Procedure 1042.3(a), has the effect of state substantive law. In the context of nursing home and medical malpractice cases, it could be the silver bullet for barring a plaintiff’s attempts at using expert testimony to prove claims under the res ipsa loquitur theory.