Rutyna v. Schweers

ALDIS RUTYNA AND MARY JANE RUTYNA, Appellants v. WILLIAM S. SCHWEERS, JR., Appellee

J-A33042-16

No. 895 WDA 2016

SUPERIOR COURT OF PENNSYLVANIA

MARCH 27, 2017

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Order Entered June 1, 2016, in the Court of Common Pleas of Allegheny County, Civil Division at No(s): GD 07-025594

BEFORE: LAZARUS, SOLANO, and STRASSBURGER,^* JJ.

MEMORANDUM BY STRASSBURGER, J.:

Aldis and Mary Jane Rutyna (the Rutynas) appeal from the order entered on June 1, 2016, which granted the motion for nonsuit filed by William S. Schweers, Jr. (Attorney Schweers) and dismissed this legal malpractice case.¹ Upon review, we affirm.

On May 18, 2006, Attorney Schweers filed a medical malpractice complaint on behalf of the Rutynas, naming as defendants William P. Donaldson, III, M.D., and the University of Pittsburgh Medical Center-Presbyterian (UPMC). The complaint alleged that Mr. Rutyna was injured as a result of negligence during back surgery. After the Rutynas, through Attorney Schweers, did not file a certificate of merit, a judgment of non pros was entered, and the Rutynas' medical malpractice case was dismissed.

On December 5, 2007, the Rutynas filed a complaint against Attorney Schweers and his law firm, Harrington, Schweers, Datillo & McClelland, P.C. (the Law Firm).² After preliminary objections were resolved, the Rutynas were permitted to proceed on legal malpractice and breach of contract claims against Attorney Schweers and a vicarious liability claim against the Law Firm.³ Specifically, the Rutynas alleged that Attorney Schweers's performance fell below the standard of care for failing to file the required certificate of merit, resulting in the entry of a non pros judgment against the Rutynas.

On September 12, 2012, Attorney Schweers and the Law Firm filed a motion for summary judgment claiming, inter alia, they were entitled to judgment as a matter of law because the Rutynas would not be able to obtain an expert report to support the medical malpractice claim for their underlying case.⁴ In response to that motion for summary judgment, the Rutynas attached an expert report from Dr. Mark Foster, dated February 28, 2008, which opined that Dr. Donaldson deviated from the standard of care during and following Mr. Rutyna's back surgery. After the trial court heard oral argument on that motion, counsel for Attorney Schweers and the Law Firm hand-delivered a letter to the trial court. In that letter, Attorney Schweers and the Law Firm requested summary judgment be entered in their favor because the Rutynas had not yet produced an expert report with respect to the legal malpractice claim.⁵ The trial court issued an order requiring that the Rutynas submit such expert report within 45 days. The Rutynas did not do so and the trial court granted summary judgment.

On April 30, 2013, the Rutynas appealed to this Court arguing that they never received a copy of the trial court's order requiring they file an expert report as to their legal malpractice claim. On appeal, this Court vacated the trial court's order granting summary judgment because the docket did not show that the Rutynas received a copy of the trial court's order. Rutyna v. Schweers, 100 A.3d 325 (Pa. Super. 2014) (unpublished memorandum). At that juncture, the Rutynas filed an expert report from Attorney Dennis Blackwell as to their legal malpractice claim.

On April 27, 2014, Attorney Schweers and the Law Firm filed a motion for summary judgment claiming that Attorney Blackwell's expert report failed to satisfy the Rutynas' burden. On July 14, 2014, the trial court granted summary judgment once again. On appeal, this Court vacated the order granting summary judgment. Specifically, we held that

when the record is viewed in the light most favorable to [the Rutynas], the record demonstrates that Attorney Schweers contacted, at most, one expert - Dr. Perling - to support the certificate of merit in the underlying case. However, as Attorney Blackwell opined, when an attorney contacts only one potential expert to support a certificate of merit and then receives a negative response, the attorney breached the standard of care he owes to his client.

Rutyna v. Schweers, 122 A.3d 1129 (Pa. Super. 2015) (unpublished memorandum at 16).

Upon return to the trial court, the case was scheduled for trial on January 11, 2016. Attorney Schweers requested that the upcoming trial bebifurcated with the medical malpractice portion being heard first, then the legal malpractice portion continuing at some point in the future, if necessary, depending on the outcome of the medical malpractice trial. That motion was granted on October 27, 2015.⁶

In November of 2015, Attorney Schweers moved for a continuance because the attorney who was recently retained to conduct the medical malpractice portion of the trial was not available in January. The Rutynas contested that motion; however, the trial court continued the case from the January trial list. The trial court also noted that no further continuances would be granted. The trial was scheduled for June 2, 2016.

On May 16, 2016, the Rutynas requested a continuance. In that motion, the Rutynas averred that counsel for Attorney Schweers advised counsel for the Rutynas, on May 10, 2016, that their expert, Dr. Foster, "had signed a consent judgment in another case in which he agreed not to testify against UPMC or any of its physicians in any pending or future cases." Motion for Continuance, 5/16/2016, at ¶ 11. Thus, the Rutynas requested a continuance in order to obtain a new expert. Attorney Schweers responded that the Rutynas, knowing that their case was dependent upon the testimony of Dr. Foster, should have known that Dr. Foster's ability to testify as an expert was in jeopardy prior to the signing of the consent orderbecause, inter alia, Dr. Foster "no longer practices in the same sub-specialty as Dr. Donaldson" and "lost his privileges to practice medicine at UPMC in 2005." Response to Motion for Continuance, 5/16/2016, at 3. On May 16, 2016, the Calendar Control Judge, Judge Folino, denied the motion for continuance.

On June 1, 2016, prior to the commencement of trial, Attorney Schweers filed a motion in limine to preclude Dr. Foster from testifying as he was not qualified under the MCARE Act,⁷ and also made an oral motion for nonsuit on the basis that the Rutynas did not have a medical expert qualified to testify. After hearing oral argument, Judge Colville granted both motions. Specifically, the trial court concluded that it would

[g]rant the motion in limine as to Dr. Foster based, No. 1, wholly and independently upon [its] determination that [Dr. Foster] does not possess adequate qualifications under M[CARE] in light of his failure to practice within the subspecialty or for that matter within ten years.

N.T., 6/1/2016, at 70. The trial court went on to state:

[] I'm not persuaded that I should exercise any discretion afforded to [the trial court] under the M[CARE] Act to waive that requirement in the case of Dr. Foster. I don't see any basis for doing so.

***

So as a completely independent finding or ruling, [Dr. Foster] is disqualified. And I'm granting [Attorney Schweers's] motion toprohibit him from testifying based purely upon his lack of adequate credentials as qualifying under M[CARE].

N.T., 6/1/2016, at 70-71. Thus, because the Rutynas did not have an expert available and qualified to testify, the trial court granted the motion in limine. In addition, the trial court denied the Rutynas's request for a continuance to give them additional time to procure an expert. Finally, the trial court granted a nonsuit because the Rutynas were not able to proceed.⁸

The Rutynas timely filed a notice of appeal, and both the Rutynas and the trial court complied with Pa.R.A.P. 1925.

On appeal, the Rutynas set forth four issues for our review, which we have re-ordered for ease of disposition.

[1.] Did the [trial court] err in holding that [the Rutynas'] proposed expert was not qualified to testify under the [MCARE] Act?

[2.] Did the [trial court] err in dismissing the case with prejudice due to [the Rutynas'] inability to produce an expert medical witness, when such inability was caused by the actions of [counsel for Attorney Schweers]?

[3.] Did the [trial court] err in denying [the Rutynas'] motion for sanctions or other appropriate relief arising out of [Attorney Schweers's] interference with [the Rutynas'] expert?

[4.] Did the [trial court] err in denying [the Rutynas' motion for continuance] to permit them sufficient time to procure a "replacement" expert?

The Rutynas' Brief at 4 (unnecessary capitalization and trial court answers omitted).

We first consider the Rutynas' argument that the trial court erred in "finding that Dr. Foster was not 'qualified to testify' under the [MCARE] Act." The Rutynas' Brief at 22. We consider this issue mindful of the following.

[W]hether a witness has been properly qualified to give expert witness testimony is vested in the discretion of the trial court. It is well settled in Pennsylvania that the standard for qualification of an expert witness is a liberal one. Thus, we may reverse the trial court's decision regarding admission of expert testimony only if we find an abuse of discretion or error of law. Furthermore, because the issue regarding an expert's qualifications under the MCARE Act involves statutory interpretation, our review is plenary.

Frey v. Potorski, 145 A.3d 1171, 1176 (Pa. Super. 2016) (internal citations and quotation marks omitted).

The Rutynas first suggest that Attorney Schweers waited too long to object to Dr. Foster's qualifications, and therefore waived his ability to raise this issue. The Rutynas' Brief at 22. They also argue "there is nothing in the record to support the [trial court's] finding that Dr. Foster was not a qualified witness under [the MCARE Act], and the trial court erred in making this decision "based solely on the representation of...