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3rd Circuit Hands Law Students Win in Certificate of Merit Challenge

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By Robyn Hagan Cain on October 07, 2011 4:02 PM

It’s another victory for law school practice clinics.

Two former Drexel University law students won their appeal before the Third Circuit Court of Appeals this week. The students, Iwona Rusek and Kristin Shicora, assisted plaintiff Elizabeth Liggon-Redding with her claim that her lawyer had committed legal malpractice while representing her in a medical malpractice claim.

Liggon-Redding, who filed her legal malpractice claim pro se, claimed that a state court dismissed her medical malpractice case because her attorney, Robert Sugarman, was negligent in failing to retain an expert to testify. Sugarman countered that Liggon-Redding's subsequent treating physician told him that Liggon-Redding's previous physician had not been negligent, and that he could not locate an expert to testify to the contrary.

A plaintiff must file a certificate of merit to proceed in a professional negligence complaint in Pennsylvania. The Pennsylvania Certificate of Merit Rule requires a written statement of an appropriate licensed professional, typically a physician.

The district court dismissed Liggon-Redding's claim against Sugarman because she did not file a certificate of merit within 60 days after filing her complaint.

The Third Circuit Court of Appeals reversed the district court's decision, finding that Liggon-Redding had not "failed" to file a certificate of merit, as the district court and Sugarman claimed. On the contrary, the appellate court found that Liggon-Redding properly filed a certificate of merit in which she indicated that expert testimony of an appropriate licensed professional was unnecessary for the prosecution of her complaint.

The Third Circuit noted that pro se filings, such as Liggon-Redding's, must be liberally construed. Liggon-Redding filed two documents within the time period permitted by the District Court. These filings unambiguously stated that she was proceeding under the certificate of merit rule by asserting that no expert testimony was needed to advance her claims.

The district court did not address that point and, instead, characterized her statements as an argument that she need not file a certificate of merit under the Pennsylvanie rules. The Third Circuit Court of Appeals ruled that the district court abused its discretion in concluding that Liggon-Redding's claims would need expert testimony and rejecting that position.

Do you find the Third Circuit's decision to grant pro se litigants latitude in filing a certificate of merit in a legal malpractice claim disconcerting?

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