August 10, 2017 Top Story

Summary Judgment Granted after Expert Is Conflicted Out of Case

Court properly denied continuance preventing replacement of conflicted expert

By Onika K. Williams

Disqualification of the sole expert witness in a legal malpractice suit did not warrant a continuance. Rutyna v. Schweers serves as a reminder of the importance of selecting experts for trial and how parties that fail to wisely choose experts do so at their own peril.

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Dismissed Case Leads to Malpractice Suit

The conflict in Rutyna began when William S. Schweers filed a medical malpractice complaint on behalf of the Rutynas against Dr. William P. Donaldson III and a hospital. The complaint alleged that Dr. Donaldson and the hospital negligently injured Rutyna during his back surgery. After Donaldson failed to file a required certificate of merit, the trial court entered a default judgment and dismissed the Rutynas' suit.

Subsequently, the Rutynas filed a complaint against Schweers and his law firm for legal malpractice and breach of contract. The Rutynas alleged that Schweers failed to meet the minimum standard of care by not filing a certificate of merit, which lead to the default judgment. In response, Schweers and his law firm moved for summary judgment, asserting that the Rutynas would not have been able to obtain an expert report to support their underlying medical malpractice claims.

After two appellate decisions vacating summary judgments in favor of Schweers, the case was ultimately scheduled for trial. Shortly thereafter, Schweers moved for a continuance because the attorney who was retained to conduct the medical malpractice portion of the trial was unavailable. The trial court granted the continuance over the Rutynas' objection and announced that no additional continuances would be permitted.

Denial of a Continuance Leads to Case-Ending Appeal

The Rutynas had retained Dr. Mark Foster to opine that Dr. Donaldson deviated from the standard of care during and following Rutyna's back surgery. A few weeks before the rescheduled trial date, the Rutynas requested another continuance on the grounds that Dr. Foster had signed a consent judgment in another case in which he agreed not to testify against the hospital or any of its physicians in any pending or future cases. The Rutynas sought this continuance to obtain a new expert.

The Schweers responded that the Rutynas should have known that Dr. Foster's ability to testify was in jeopardy even prior to his signing of the consent judgment because Dr. Foster no longer practiced in the same sub-specialty as Dr. Donaldson and had lost his privileges to practice medicine at the defendant hospital years ago. The trial court denied the Rutynas' request for a continuance.

Prior to the commencement of trial, Schweers filed a motion in limine to preclude Dr. Foster from testifying because he was not a qualified expert witness. Schweers also made an oral motion for nonsuit on the grounds that the Rutynas did not have a medical expert qualified to testify on the essential element of causation. The trial court granted both motions, and the Rutynas appealed.

A split Superior Court of Pennsylvania upheld the trial court's dismissal. The majority concluded that Dr. Foster was not qualified to testify because, under Pennsylvania law, to qualify as an expert in a medical malpractice case, a witness must be (1) licensed and active, or recently retired; (2) substantially familiar with the standard of care for the specific care in question; and (3) must practice in the same subspecialty as the defendant or a subspecialty with a substantially similar standard of care. The appellate court's majority also held that the trial court did not abuse its discretion in denying the Rutynas' request for continuation or in dismissing the case.

Finding the Wrong Expert Can Lead to Dismissal

Section leaders agree that this case illustrates the importance of understanding the role of experts in litigation. "This case represents a remarkable string of missteps with respect to retention and use of experts. Most strikingly, it underscores the need to both select and properly vet your experts as early as possible," observes Nicholas Reuhs, Indianapolis, IN, cochair of the Conflicts of Interest Subcommittee of the ABA Section of Litigation's Ethics & Professionalism Committee. "Starting early makes this process easier. Finding the right expert can take time. And even when you find the right expert, it is important that they understand your expectations," states Reuhs.

While Section leaders acknowledge that the plaintiffs may have been treated harshly in this case, they agreed that it is the attorney's duty to approach the qualification requirements for experts seriously. "An attorney needs to know the procedural requirements for these types of cases; this falls under the duty of competence," advises Scott Reiser, Roseland, NJ, cochair of the Section of Litigation's Ethics & Professionalism Committee. "This decision is a reminder that expert issues can be dispositive. It needs to be part of the checklist at the beginning of the case," warns Reuhs.


Onika K. Williams is an associate editor of Litigation News.

Keywords: expert witness, malpractice, legal, medical

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