Weber Gallagher Simpson Stapleton Fires & Newby LLP

April 07, 2009 : Weber Gallagher Attorneys Prevail in Pa. Supreme Court Decision

The Pennsylvania Supreme Court dismissed on March 18, 2009 an appeal of a lower court decision holding that a medical malpractice lawsuit could not proceed because of the absence of certificates of merit.

The case, Zalewski-Cree v. Almar Radiology, involved judgments of non pros entered for the plaintiff’s failure to file timely certificates of merit (COM).  The Allegheny County trial court judge denied the plaintiff’s motion to open the judgments based upon the Supreme Court’s 2005 decision in Womer v. Hilliker, M.D. In addition, the trial noted that the expert reports attached to plaintiff’s petition to open failed to address the issue of causation and therefore were insufficient, even if the court considered them as substitutes for the COMs. 

The Superior Court, which affirmed the trial court decision, also focused on the insufficiency of plaintiff’s expert reports.  The Supreme Court granted appeal solely as to the issue of whether the trial court erred by considering the sufficiency of the expert reports or whether it should have confined its review to the face of the petition to open the judgments of non pros.  Weber Gallagher partner James R. Hartline argued before the high court that it was entirely appropriate for the trial court to have considered the reports inasmuch as the plaintiff attached them as exhibits to the petition, invited the court to consider them in order to demonstrate substantial compliance with the COM rules, and was estopped from now taking a different position.  More importantly, Mr. Hartline argued that the Court should not even reach the issue since the Womer decision was dispositive of the case. In Womer the Court found that providing expert reports in lieu of filing COMs did not, as a matter of law, constitute substantial compliance so as to excuse late filing of the COMs.

Partner Samuel H. Foreman drafted the successful respondent's brief.