Do Not Let The Third Circuit's Recent Decision In Liggon-Redding v. Estate Of Robert Sugarman Scare You: An Alternative Method To Dispose Of Meritless Legal Malpractice Actions Remains

Pennsylvania Rule of Civil Procedure 1042.3, the Certificate of Merit Rule, requires a plaintiff in a malpractice action to certify that he or she has obtained from an appropriate expert an opinion that the defendant's work likely fell outside the acceptable professional standards and caused the plaintiff's damages. In the alternative, a plaintiff may satisfy the Rule by certifying that such expert testimony is not necessary to prosecute his or her claim. A plaintiff who certifies that expert testimony is not necessary is, under the Rule, barred from later presenting expert testimony, in the absence of exceptional circumstances.

On October 4, 2011, the United States Court of Appeals for the Third Circuit, in Liggon-Redding v. Estate of Robert Sugarman, No. 08-4336 (3d Cir. 2011), held that Pennsylvania's Certificate of Merit Rule "is substantive law under the Erie Rule and must be applied as such by federal courts." Slip Opinion at 14. The Court of Appeals reached this conclusion by determining that Pennsylvania's Certificate of Merit Rule does not directly collide with any Federal Rules of Civil Procedure, including Rules 7, 8, 9, 11, and 41(b). Id. at 8–12. The Third Circuit also found that failing to apply Pennsylvania Rule 1042.3 would be outcome determinative and would encourage forum shopping and promote inequitable administration of the laws. Id. at 12–14. Thus, the Court of Appeals concluded that the Erie Doctrine demanded that federal courts apply Rule 1042.3 in diversity cases. Id. at 14.

This conclusion was fairly predictable, based on the Third Circuit's prior decision in Chamberlain v. Giampapa, 210 F.3d 154 (3d Cir. 1999), where it held that New Jersey's analogous Affidavit of Merit statute is substantive law that must be applied by federal courts sitting in diversity cases. However, in reversing the trial court's grant of the defendant's motion to dismiss in Liggon-Redding, the Third Circuit, at least at first blush, appeared to establish an unreasonable rule for defendants in legal malpractice actions. Indeed, the Third Circuit's resolution of the case appeared to give plaintiffs in legal malpractice actions free reign to drag defendants through months or years of discovery even after certifying that they would not obtain the expert testimony necessary to prevail on their claim as a matter of law.

To understand the Third Circuit's holding, a review of the proceedings in the trial court is necessary. In the District Court...