Merit Certificate Mechanism as Substantive Law

Schmigel v. Uchal, — F.3d — 2015 WL 5131465 (3d. Cir. 2015)

Pennsylvania and many other states require plaintiffs to accompany their suits for medical malpractice with certificates (or affidavits) of merit (COM) from qualifying experts. This requirement has a twin goal. First, it aims to promote accuracy in courts’ decisions. Second and equally important, it makes plaintiffs’ money speak on their behalf. By making a substantial upfront investment in her suit, the plaintiff reliably signals that her allegations are credible rather than frivolous: see here. For these reasons, federal courts have categorized the requirement as “substantive” or “outcome-determinative” for purposes of diversity suits governed by the Erie doctrine. This categorization allows the COM requirement to override federal law. See, e.g., Liggon–Redding v. Estate of Sugarman, 659 F.3d 258 (3d Cir. 2011).

Failure to satisfy this requirement leads to the suit’s direct dismissal. To avoid this harsh result, many states, including Pennsylvania, require defendants to give the defaulting plaintiff a pre-dismissal notice to allow her to submit the requisite certificate to court within a specified period of time. Recently, the Third Circuit has held that this notice and extension requirement is “outcome-determinative” as well, which makes it applicable in federal courts. Schmigel v. Uchal, — F.3d — 2015 WL 5131465 (3d. Cir. 2015).

The court clarified in this connection that the COM requirement is unrelated to the sufficiency of pleadings standards, laid down for federal courts in Ashcroft v. Iqbal, 556 U.S. 662 (2009), and in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). This requirement – it explained – “does not have any effect on what is included in the pleadings of a case or the specificity thereof.” (quoting Liggon–Redding, 659 F.3d at 263). Rather, it is about “facts that can form the basis for a motion for summary judgment.”.

Based on this analysis, the Court concluded that “Because there is no federal interest weighing against applying the same notice requirement as the Pennsylvania Supreme Court, our Erie decision is a clear one: The condition of thirty days’ notice prior to seeking dismissal of an action for failure to comply with the COM regime is substantive and must be applied in federal court.”.

Judge Rendell wrote a powerful dissent. According to her, the Court’s ruling contradicted the Supreme Court’s plurality opinion in Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 410 (2010), that “a federal procedural rule ‘is valid in all jurisdictions, with respect to all claims, regardless of its incidental effect upon state-created rights.’” Judge Rendell explained that Federal Rules of Civil Procedure – Rule 12, in particular – “do not require defendants to give written notice of their intention to file a motion to dismiss [nor] do they preclude courts from entering judgments without such notice.” The Court’s ruling – she added – “will create varied dismissal procedures, which will negate ‘[o]ne of the shaping purposes of the Federal Rules,’ which is ‘to bring about uniformity in the federal courts.’” (citing Hanna v. Plumer, 380 U.S. 460, 472 (1965)). Judge Rendell concluded that while the COM requirement is “substantive” or “outcome-determinative,” the notice requirement is procedural and should therefore be governed by the federal rules.

This dissent strikes me as absolutely right. One should hope that other federal courts decline to follow Schmigel.