stethescope-and-gavelClients rely on attorneys to find the expert witnesses for legal matters. Can an attorney be sued for malpractice for not finding an expert witness for a case?

The plaintiff (“Redding”) filed a legal malpractice complaint against her former attorney.  Redding alleged that her Pennsylvania medical malpractice case was dismissed because her former attorney failed to retain an expert witness.  The former attorney claimed that Redding told him a physician would testify, in fact, the physician refused to do so—and instead told him that the defendant physician was not negligent.  Neither the attorney nor Redding could find a medical expert witness who was willing to testify on her behalf.


The attorney passed away and his estate was substituted as the defendant, the District Court directed Redding to file a certificate of merit pursuant to Pennsylvania law.  Redding complied by certifying that “expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim,” pursuant to Pennsylvania Rules of Civil Procedure 1042.3(a)(3).  The rule also states that when a certification is binding and that, “in the absence of exceptional circumstances … the trial court shall preclude the plaintiff from presenting testimony by an expert on the questions of standard of care and causation.”

The District Court held that the plaintiff’s certificate was deficient and dismissed her complaint.  The Third Circuit reversed and remanded, holding that the state’s certificate of merit requirement applies in federal court and that Redding’s certification complied with Rule 1042.3(a)(3).  In the earlier appeal, the Court of Appeals explained that, although the consequence of her certification was the preclusion of expert testimony absent exceptional circumstances, the certification permitted the case to move forward to the discovery stage.  This would leave the consequences of her decision to be dealt with at a later stage of the litigation.

The plaintiff and the defendant’s Estate engaged in discovery on remand, and at the close of discovery, the estate moved for summary judgment based on the grounds that Redding couldn’t meet her burden of proof without expert testimony—which she didn’t present at any point during or after discovery. The District Court agreed and entered summary judgment in favor of the defendant’s Estate. After the denial of her motion for reconsideration, Redding appealed pro se from the entry of summary judgment.

United States Court of Appeals for the Third Circuit in a Per Curiam opinion by Circuit Judges Thomas L. Ambro, Thomas Michael Hardiman, and Jane Richards Roth held that in a plenary review over the entry of summary judgment, the court would draw all reasonable inferences from the record in favor of the non-moving party.  Under Pennsylvania law, Redding was required to prove, inter alia, that: (1) the attorney failed to exercise ordinary skill and knowledge; and (2) his negligence was the proximate cause of damages.

In order to prove damages, Redding needed to prove the “case within a case,” as the opinion stated.  She was required to sow by a preponderance of evidence that, but for the attorney’s alleged failure to retain an expert, she would have prevailed in the underlying medical malpractice action.  As a result, Redding was required to show that both the attorney and the defendant doctor in her state malpractice action deviated from the applicable standard of care.

Quoting an earlier decision, the panel explained that:

Expert testimony is required to establish the relevant standard and whether the defendant complied with that standard, except where the matter under investigation is so simple, and the lack of skill so obvious, as to be within the range of the ordinary experience and comprehension of non-professional persons.

When a plaintiff fails to propose the required expert evidence in response to a properly supported motion for summary judgment, summary judgment is appropriate.  In Redding’s case, the District Court concluded that the alleged negligence of neither the attorney nor the defendant doctor was so obvious that Redding would be able to prove it without expert evidence. After reviewing the record, the Court of Appeals agreed with the decision of the District Court.

The Court of Appeals found that none of Redding’s arguments had merit.  She first argued that the Third Circuit decided in her previous appeal that she did not require expert evidence to support her claim, relying on a hypothetical question posed by a panel member during oral argument.  The Third Circuit said that it was clear from its written opinion in the earlier appeal that it did not reach the issue of whether an expert would be required.  It instead decided only that Redding’s certification was sufficient to proceed to discovery and that the consequences of her certification that no expert was required could be “dealt with at … summary judgment.”

Second, Redding argued that the District Court ignored evidence and argument she submitted in opposition to summary judgment, including photographs of her underlying injury and her assertion that two treating physicians could testify as lay witnesses only about their treatment of her injury. The District Court discussed the possible lay testimony of these physicians and explained why it would be insufficient to raise a genuine issue for trial. The District Court also stated at oral argument that it had reviewed the photographs she submitted. The Third Circuit agreed that the potential testimony of those physicians did not preclude the need for expert testimony as to the underlying medical malpractice claim. The Third Circuit further noted that none of that evidence went to the issue of the standard of care applicable to the attorney on Redding’s legal malpractice claim. Redding failed to show how the photographs would have obviated the need for expert testimony as to the alleged medical malpractice.  Even if they did, the court wrote, they would have no bearing on the alleged legal malpractice that was the subject of her claim.

The Third Circuit panel thought Redding’ arguments are inconsistent based on her contention that her medical malpractice claim did not require an expert—but that the attorney committed legal malpractice by failing to obtain one.  The judgment of the District Court was affirmed.

By:  Kurt Mattson, J.D. LLM

Redding v. Estate of Sugarman, — Fed.Appx. —-, 2013 WL 4472107 (C.A.3 (Pa.) Aug. 22, 2013)