Plaintiff's expert for certificate of merit purposes must have qualifications such that a trial court would find them sufficient to allow that expert to testify at trial.

If a plaintiff's claim against a medical professional is meritless and the matter is terminated, it may be worthwhile to request from plaintiff's counsel, pursuant to Pa.R.C.P. No. 1042.8, the written statement obtained from the licensed professional upon which the certificate of merit was based. An expert used to support a certificate of merit must have qualifications such that a trial court would find them sufficient to allow that expert to testify at trial. In Fallon, the court concluded that the plaintiff's certificate of merit expert was not qualified. The court noted that an expert must hold an "unrestricted" license; i.e. the medical license must not be subject to any limitations or restraints. Fallon's expert, who is also an attorney, held only an active-retired medical license. The court found this insufficient. Additionally, the court found that the written statement by the plaintiff's certificate of merit expert was not critical of the care provided by the defendants. The court concluded that plaintiff's counsel should never have filed a certificate of merit against the defendants and sanctioned plaintiff's counsel and his law firm. The court awarded reasonable counsel fees and expenses in the amount of $26,667.33.

Case Law Alert - 1st Qtr 2012