An Expert Requirement for Dragonetti Act Cases?
There is a move in federal courts applying Pennsylvania law towards requiring a plaintiff in Wrongful Use of Civil Proceedings Act (Dragonetti Act) cases to supply expert testimony to survive summary judgement. The question now is, will the Pennsylvania courts follow along, and if so, when?
The requirement by our federal courts for expert testimony to support a Dragonetti Act case is not new and was made clear in the Third Circuit’s decision in Schmidt v. Currie, 217 F. App’x 153, 156 (3d Cir. 2007). In Schmidt, the Third Circuit wrote:
The District Court here found that a ‘Dragonetti action against an attorney is analogous to a legal malpractice action.’ On the basis of the facts, the court held that Dr. Schmidt should have produced expert testimony to survive summary judgment. Schmidt, 470 F.Supp.2d at 484–85. We agree. Expert testimony assists the jury in its determination of a defendant's conformity to the relevant standard of care when the standard is one that requires special expertise to comprehend.
Two recent opinions have relied at least in part on this language. In Pendergrass v. Pendergrass, 518 F. Supp. 3d 839, 848 (E.D. Pa. 2021), the District Court determined that the underlying defense of a will contest was not a “civil proceeding” for purposes of the Dragonetti Act, but stated that, even if they were considered civil proceedings, then summary judgment would be appropriate because:
The Moving Defendants are attorneys, and because ‘a Dragonetti action against an attorney is analogous to a legal malpractice action,’ expert testimony is required to show that they lacked probable cause. Joan has not presented any expert evidence, and that alone would be sufficient to grant summary judgment in favor of the attorneys.
More recently, the District Court granted summary judgment in Aiyegbusi v. Nkansah, No. CV 19-4319, 2022 WL 837033, at *6 (E.D. Pa. Mar. 21, 2022), noting that “Dragonetti actions against attorneys are analogous to legal malpractice actions, thus, a plaintiff suing an attorney under the Act is required to produce expert testimony to survive summary judgment.”
Pennsylvania State courts have been more reluctant to embrace this concept, probably largely due to the Superior Court’s decision in Bannar v. Miller, 701 A.2d 242, 249 (Pa. Super. 1997), which held that no legal expert was required for that case. However, the Superior Court in Bannar specifically noted: “Appellants make no contention the issues were complex or beyond the knowledge of the average person,” at least inferring that expert testimony may be necessary in more complex cases. Likewise, the Superior Court in Miller v. St. Luke's Univ. Health Network, 2016 PA Super 134, 142 A.3d 884, 897 (2016), acknowledged the finding in Schmidt, but wrote: “Appellant fails to explain why the jury's experience and comprehensions in the present case would not have enabled it to understand the evidence offered and establish the standard of care therefrom.”
It may be that the Pennsylvania Superior Court has simply not had the proper case before it. But for now, those wishing to argue that Dragonetti Act cases require expert testimony will largely have to rely on federal court precedent.
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