Schmigel v. Uchal, No. 14-3476 (3d Cir. 2015)Annotate this Case
In 2003, the Pennsylvania Supreme Court amended its Rules of Civil Procedure to require malpractice plaintiffs to file a certificate of merit (COM) within 60 days of bringing suit, under penalty of dismissal. Five years later, to dismissal of meritorious claims due to technical oversights, the Court amended the Rules again, setting conditions that had to be met before a defendant could seek dismissal. The Third Circuit previously held that the COM requirement is substantive state law that must be applied by a federal court sitting in diversity. Schmigel sued Dr. Uchal, who performed Schigel’s laparoscopic adjustable gastric band surgery in Pennsylvania before moving to Florida. Realizing that no COM had been filed, Uchal waited out the 60-day window, then filed a motion to dismiss. The next day, Schmigel’s counsel filed an “answer,” attaching the missing COM, and arguing that Uchal had not waited 30 days after giving notice of the deficiency to allow for cure before filing his motion to dismiss, The district court dismissed. The Third Circuit reversed, finding that conditions precedent to dismissing an action for failure to comply with the COM requirement, including fair notice to a plaintiff, are substantive law that must be applied in federal court.