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Following the dismissal of the medical malpractice action, the Rutynas sued Attorney Schweers for legal malpractice alleging that his failure to file the requisite Certificate of Merit fell below the standard of care for an attorney. Attorney Schweers filed a Motion for Summary Judgment seeking a dismissal of the legal malpractice case based on the Rutynas purported failure to provide a legal expert opinion attesting to Schweers failure to obtain the requisite medical expert’s report in the underlying medical malpractice action. In response, the Rutynas provided the February 28, 2008, expert report of Dr. Mark R. Foster to establish the defendants’ liability in the underlying medical malpractice action. The Rutynas also provided the report of an expert to support their legal malpractice claim against Schweers.
As a result of motions and appeals, the legal malpractice action, which was originally filed in 2007, was not scheduled for trial until May, 2016. On May 16, 2016, the Rutynas filed a motion seeking a continuance of the trial date on the basis that Dr. Foster, the Rutynas’ expert, had recently executed a consent judgment with the University of Pittsburgh Medical Center in which Dr. Foster agreed not to testify against the University of Pittsburgh Medical Center or any of its doctors in any pending or future case. Attorney Schweers opposed the Rutynas’ request for a continuance contending that not only had the Rutynas failed to perform their due diligence to ensure Dr. Foster’s participation at trial, but that they also were of the dispute between Dr. Foster and the University of Pittsburgh Medical Center that they were now advancing as a reason Dr. Foster could no longer present as an expert in the matter.
The trial court denied the Rutynas motion for a continuance and granted Attorney Schweers’ motion to preclude Dr. Foster from testifying at trial and introducing his expert report. Additionally, the trial court entered an Order dismissing the legal malpractice action on the basis that the Rutynas did not have an expert who could opine as to the required standard of care in the underlying medical malpractice action and, as a result, the Rutynas were not able to prove their claims in the underlying medical malpractice action.
The Superior Court of Pennsylvania reversed the trial court’s ruling on appeal. The Court agreed with Rutynas’ argument that the trial court erred in denying their motion for a continuance so that sufficient time could be provided to obtain a new medical expert. The Superior Court held that the trial court “manifestly abused its discretion” when it denied the motion for a continuance of the trial, where Dr. Foster was precluded from testifying as a result of the contractual agreement he made with the hospital and not due to any fault on the part of the Rutynas. To that end, the Superior Court noted the trial court “sealed the Rutynas’ fate” as they were unable to obtain a new expert and that the prejudice to the Rutynas was “irreversible.”
Notably, the Superior Court gave specific credence to the testimony of the Rutynas’ attorney who testified that he called Dr. Foster several times before the trial date and spoke with him regarding his availability and preparation for the trial. Significantly, during those conversations, Dr. Foster never mentioned the agreement with the University of Pittsburgh Medical Center, nor did he advise counsel that he would not be available for the trial.
This matter should serve as a reminder to attorneys of the importance of the proper vetting of, and communication with, retained experts in litigation. This matter highlights the reality that litigation can drag on for an extended period of time. Proper communication with experts, including having an understanding of any litigation in which the expert may be involved, during the pendency of the litigation will ensure attorneys are aware of any issues that may affect the ability of the expert to participate in the litigation, as well as any issues that may impact the expert’s opinions. To that end, attorneys should conduct regular independent research regarding their proposed experts- beyond mere conflict checks- to ensure there are no obstacles preventing the expert’s involvement in the litigation.