Culver v. Specter et al
MEMORANDUM (Order to follow as separate docket entry).Signed by Honorable Yvette Kane on 9/22/14. (sc)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
BRETT T. CULVER,
JAMES SPECTER, et al.,
CIVIL NO. 1:CV-11-2205
This is a civil rights action filed pursuant to 42 U.S.C. § 1983 wherein Plaintiff Brett
Culver sets forth allegations of failure to protect and inadequate medical care in violation of the
Eighth Amendment. He also asserts state medical malpractice claims. Before the Court for
consideration are Plaintiff’s motions for extension of time within which to file certificates of
merit (Doc. Nos. 202, 211), and Defendant Specter’s motion to strike Plaintiff’s certificate of
merit (Doc. No. 247).
The incidents set forth in the complaint arose during Plaintiff’s confinement at the State
Correctional Institution at Mahanoy (SCI-Mahanoy).1 He alleges that Officers Muick and
Marhelko failed to protect him from an assault by a fellow inmate after Defendants informed the
inmate that Plaintiff had made complaints about him. He also sets forth Eighth Amendment
inadequate medical care claims with respect to treatment for a fractured jaw he sustained from the
assault. Related state law negligence claims are also asserted. Remaining as Defendants are the
following SCI-Mahanoy employees: Dr. Robert Moczulski, dentist; Health Care Administrator
Plaintiff has since been transferred and is currently confined at the State Correctional
Instition at Forest, Pennsylvania.
Cerullo; Drs. Lisiak and Gustitus; Correctional Officers Muick and Machelko; and Mr. Stantis,
Food Supervisor. Also remaining in this action is Dr. James Specter, a private practice oral
surgeon contracted by the Pennsylvania Department of Corrections to provide services to SCIMahanoy.
On August 15, 2012, a motion to dismiss filed by Defendant Specter was granted in part
and denied in part. (Doc. No. 81.) The motion was granted only to the extent that any negligence
claims raised under the Eighth and Fourteenth Amendments were dismissed. On October 9, 2012,
a motion to dismiss filed by the Corrections Defendants was granted only with respect to
Plaintiff’s challenges to the denial of grievances and appeals therefrom. The motion was denied
in all other respects. (Doc. No. 115). Plaintiff was also directed to file certificates of merit
(“COM”) with respect to his state negligence claims. In addition, a motion to dismiss filed by
medical service provider Corizon was granted.
On October 11, 2012, Plaintiff’s sixth request for the appointment of counsel was
conditionally granted. (Doc. No. 116.) A stay was imposed with respect to all pending motions
until it was determined whether counsel could be obtained. Because counsel could not be found,
the stay was lifted on March 29, 2013, and Plaintiff advised that he would be proceeding pro se in
this matter. (Doc. No. 160.) A motion to dismiss filed by Defendants Lisiak and Gustitus was
denied on September 30, 2013.2 (Doc. No. 196). Defendants have all filed answers to the claims
remaining in the complaint, and discovery has been taking place.
On the same date, a motion to dismiss filed by Defendant Chipriano was also granted,
and she was dismissed from this action. (Doc. No. 197.)
Before the Court for consideration are two motions for extension of time within which to
file COMs (Doc. Nos. 202, 211) and Defendant Specter’s motion to strike a COM filed by
Plaintiff on February 10, 2014, while his motions for extension were still pending before the
Court (Doc. No. 238).
In Pennsylvania, a plaintiff pursuing a professional malpractice suit must file a certificate
of merit with the complaint, or within sixty days thereafter. Pa. R. Civ. P. 1042.3(a). The
certificate must include one of the following: a written attestation by “an appropriate licensed
professional” that there is a “reasonable probability that the care, skill or knowledge exercised or
exhibited” by the defendant “fell below acceptable professional standards,” and that this was the
cause of the plaintiff’s injuries; a statement that the claim against the defendant is based only on
the professional negligence of those for whom the defendant is responsible; or a statement that
expert testimony is unnecessary for the plaintiff’s claim to proceed. Pa. R. Civ. P. 1042.3(a)(1)(3). Failure to file a certificate of merit is fatal to a plaintiff’s claim. Pa. R. Civ. P. 1042.7. A
defendant seeking to dismiss for want of a certificate must first file written notice of their intent to
do so, no sooner than thirty days after the complaint was filed. Pa. R. Civ. P. 1042.6(a).
The purpose of the required certificate of merit is to “assure that malpractice claims for
which there is no expert support will be terminated at an early stage in the proceedings.”
Chamberlain v. Giampapa, 210 F. 3d 154, 160 (3d Cir. 2000). Pennsylvania adopted its
certificate requirement in order to cull from its dockets malpractice claims of questionable merit,
conserving judicial resources and sparing defendants the burden of defending against spurius
suits. Womer v. Hilliker, 589 Pa. 256, 908 A.2d 269, 275 (Pa. 2006). By filing a certificate of
merit, the plaintiff attests that he has the resources to support his allegations, and that proceeding
with litigation will not be a wasteful exercise. Id. Rule 1042.3(a) applies to both pro se and
represented plaintiffs and constitutes a rule of substantive state law with which plaintiffs in
federal court must comply. See Liggon-Redding v. Estate of Sugarman, 659 F.3d 258, 264-65
(3d Cir. 2011)(holding that the COM requirement is a substantive rule that federal courts must
follow); Iwanejko v. Cohen & Grigsby, P.C., 249 F. App’x 938, 944 (3d Cir. 2007)(holding that
district courts must “appl[y] Rule 1042.3 as substantive state law”); Perez v. Griffin, 304 F.
App’x 72, 74 (3d Cir. 2008)(Rule 1042.3 applies to incarcerated and pro se plaintiffs and
constitutes a rule of substantive state law to which plaintiffs in federal court must comply).
Plaintiff filed the complaint in this action on November 29, 2011. Certificates of merit
with respect to any medical malpractice claims were required to be filed with the complaint, or
within sixty days thereof, or on or about January 30, 2012. No COMs were filed by this date.
On March 20, 2012, Plaintiff filed a motion seeking a determination of the necessity to file a
certificate of merit. On May 1, 2012, he filed a motion for extension of time to file a certificate of
merit. This motion was opposed by Defendant Specter. Plaintiff replied thereto. On August 14,
2012, the Court entered an order requiring Plaintiff to file a COM against Specter within 20 days
or his malpractice claims would be dismissed. (Doc. No. 81.) No COM was filed within the
prescribed time period. As such, Specter filed a motion for involuntary dismissal of the state
On September 14, 2012, Plaintiff filed a motion to file nunc pro tunc certificate of merit.
In the motion, he argued that he had never received the Court’s August 14, 2012 order, and did
not become aware of it until September 7, 2012. He requested permission to file an untimely
certificate of merit as to Defendant Specter stating that “expert testimony of an appropriate
licensed professional is unnecessary for the prosecution of the claims against this defendant.”
On September 30, 2013, the Court ordered that its September 15, 2012 order be vacated to
the extent the Court construed Plaintiff’s indication that he did not need expert testimony as
suggesting that he was relieved from the requirement of filing a COM in this action.3 (Doc. No.
On the same date, the Court issued the following opinion resolving the issues related to
the COM matter and Plaintiff’s lack of knowledge of the August 14, 2012 decision:
Defendant Specter’s motion for involuntary dismissal of Count Seven of the
complaint (state malpractice/negligence claims)(Doc. No. 87) will be denied.
Plaintiff’s motion to file nunc pro tunc certificates of merit (Doc. No. 98) will be
granted to the following extent. The certificate attached to Document 98 will be
accepted by the Court. With this said, in each of the certificates submitted by
Plaintiff he states that expert testimony of an appropriate licensed professional is
unnecessary for the prosecution of his claims against the referenced defendants.
Although the Court originally found that expert testimony would be necessary in
this case (Doc. No. 81 at 10), such a finding was premature and the Court vacated
that portion of its previous order (Doc. No. 194). In an abundance of caution, the
Court will accept Plaintiff’s certificates of merit indicating that he does not need
expert testimony to proceed as timely filed, but, given the confusion the Court’s
earlier order may have caused Plaintiff, the Court will also give Plaintiff an
additional twenty days from the date of this order to refile his certificates of merit
were Plaintiff to conclude that expert testimony is required. If Plaintiff chooses to
proceed with his certificate of merit (Doc. No. 98) as filed, the Court advised
Pennsylvania law “expressly allows” a plaintiff to proceed on the basis of a
certification that expert testimony will not be required to prove his claim. Pa. R.C.P.
1042.3(a)(3). The consequence of such a filing is a prohibition against offering expert testimony
late in the litigation, absent exceptional circumstances. Id. A filing under this rule allows the
case to proceed to discovery, leaving the consequences of choosing to proceed without expert
testimony to be dealt with at a later stage of litigation, such as summary judgment or trial. Thus,
even though a “preliminary determination” by the Court that expert testimony will be required
may “superficially appear to serve the purpose of the certificate of merit requirement,” see
Liggon-Redding v. Estate of Sugarman, 659 F.3d 258, 265 n.5 (3d Cir. 2011), the plain language
of the rule does not authorize such an early determination. Id.
Plaintiff that he is bound by his decision as set forth in the certificates, and is
prohibited from offering expert testimony later in the litigation absent “exceptional
circumstances.” Pa. R.C.P. 1042.3(3).
(Doc. No. 195 at 4-5.) Based on the foregoing, Plaintiff’s nunc pro tunc certificates of merit were
accepted, Specters’ motion for involuntary dismissal of the state claims was denied, and Plaintiff
afforded the opportunity to refile certificates of merit within twenty (20) days if he concludes that
expert testimony is required.4 As such, any refiled COMs were due to be filed by October 24,
On October 22, 2013, Plaintiff filed a motion for extension of time within which to submit
his COMs. (Doc. No. 202). Prior to any resolution by the Court, he submitted a second motion
for extension of time on December 19, 2013 (Doc. No. 211.) These motions are fully briefed by
the parties and pending before the Court. To complicate matters further, on February 10, 2014,
Plaintiff submitted certificates of merit with respect to Defendants Specter, Lisiak, Gustitus and
Moczulski wherein he certifies as follows:
an appropriate licensed professional has supplied a written statement to the
undersigned that there is a basis to conclude that the care, skill or knowledge
exercised or exhibited by this defendant in the treatment, practice or work that is
the subject of the complaint, fell outside acceptable professional standards and that
such conduct was a cause in bringing about the harm;
the claim that this defendant deviated from an acceptable professional standard is
based solely on allegations that another licensed professional for whom this
defendant is responsible deviated from an acceptable professional standard and an
appropriate licensed professional has supplied a written statement to the
undersigned that there is a basis to conclude that the care, skill or knowledge
exercised or exhibited by the other licensed professionals in the treatment, practice
Although the Court’s Memorandum was dated September 30, 2013, the accompanying
order was dated October 1, 2013.
or work that is the subject of the complaint, fell outside acceptable professional
standards and that such conduct was a cause in bringing about the harm.
(Doc. No. 238 at 1-5.)5 Attached to the COMs is a letter submitted by Jeff A. Jageman, D.M.D.,
stating that he has reviewed documents submitted to him by Plaintiff and has concluded he was
treated below the acceptable professional standards for his injuries. He further states that he will
need corrective surgery to repair the damage done, and will likely have continued pain and dental
problems for the rest of his life due to the negligent treatment he received. (Id. at 6.)
Defendant Specter opposes both motions for extension of time and seeks to strike the COM
subsequently submitted. He maintains that Plaintiff has failed to show good cause for an extension
of time. He moves to strike the COM, in any event, claiming that Dr. Jageman is not an
appropriate licensed professional qualified to testify to the standard of care of an oral and
Pa. R.C.P. 1042.3(d) provides as follows:
(d) The court, upon good cause shown, shall extend the time for filing a certificate
of merit for a period not to exceed sixty days. A motion to extend the time for
filing a certificate of merit must be filed by the thirtieth day after the filing of a
notice of intention to enter judgment of non pros on a professional liability claim
under Rule 1042.6(a) or on or before the expiration of the extended time where a
court has granted a motion to extend the time to file a certificate of merit,
whichever is greater. The filing of a motion to extend tolls the time period within
which a certificate of merit must be filed until the court rules upon the motion.
Pa. R.C.P. 1042.3(d). There is no question that Plaintiff submitted his request for extension timely
and that because the Court did not rule on his motion, the time to file a certificate of merit was
The Court notes that a COM was submitted with respect to Dr Aires who is not a
named defendant in this action. (Doc. No. 238 at 4.)
tolled pending a decision by the Court. While the case law on what establishes “good cause” for
granting a motion for extension of time is still evolving, good cause has been found under the
following circumstances: (1) reasonable explanation or legitimate excuse; (2) the practicalities of
securing expert review; and (3) the added burden of incarceration on the already difficult task of
quickly finding and meeting with a suitable doctor. See generally Rule 1042.3(d) notes; Booker v.
United States, 366 F. App’x 425 (3d Cir. 2010); Womer v. Hilliker, 589 Pa. 256, 908 A.2d 269
(Pa. 2006); Fabian v. United States of America, Civ. No. 13-1656, 2013 WL 5525647 (E.D. Pa.
Oct. 7, 2013).
While the Court is cognizant of the pendency of this action, based upon the extensive
history of this case demonstrating the efforts Plaintiff has put forth in attempting to meet the
technical requirements of Rule 1042.3, his timely request for an extension of the deadline for
refiling COMs, and the fact that his ability to secure expert review is compromised by his
confinement, the Court will accept the COMs submitted on February 10, 2014. While incarcerated
and proceeding pro se, he has attempted to locate qualified physicians, compile his medical
records, and provide the Court with a compliant COM. In fact, since the filing of his motions for
extension of time, he has submitted COMs.
Defendant Specter moves to strike the COM filed with respect to the state malpractice/
negligence claims against him. He does so on the basis that Dr. Jeff Jageman, D.M.D., does not
qualify as an appropriate licensed professional who can support a certificate of merit against him
since Jageman is not an oral and maxillofacial surgeon. The statement submitted by Dr. Jageman
in support of Plaintiff’s COMs states that he is a general dentist in practice for thirty (30) years.
He represents that he has reviewed the documents sent to him by Plaintiff with respect to his
medical care, and has concluded that he was treated below the acceptable professional standards
for his injuries. According to Dr. Jageman, Plaintiff will require corrective surgery to repair the
damage done, and will most likely have continued pain and dental problems for the rest of his life
due to the negligent treatment received. (Doc. No. 238 at 6.)
Rule 1042.3 requires that the appropriate licensed professional have sufficient education,
training, knowledge, and experience to provide credible competent testimony. There is sparse
guidance as to how a court should determine whether a professional supporting a certificate of
merit is properly qualified to do so without the benefit of discovery and expert reports that are
available in later stages of litigation. Plaintiff has offered that Dr. Jageman obtained his D.M.D.
degree and has been practicing dentistry for three decades. He certifies that he has reviewed the
documents provided to him by Plaintiff with respect to his injuries and care. While it is true that
Defendant Specter possesses further specialization in the field of oral surgery, the Court finds no
authority to support Defendant’s position that Dr. Jageman lacks the qualifications necessary to
issue a certificate of merit. Should Plaintiff offer Dr. Jageman as a expert witness at trial,
Defendant will have ample opportunity to challenge his credentials in pre-trial motions. For these
reasons, the pending motion to strike the COM submitted on February 10, 2014 will be denied. An
appropriate order follows.
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