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February 7th, 2024
In Fox v Downey, No. 3066 EDA 2022 (Pa. Super. Ct. February 1, 2024), the Pennsylvania Superior Court affirmed a trial court’s decision to grant the defendants’ motion for summary judgment associated with plaintiff’s failure to timely file his expert’s reports.
Mr. Fox filed a Complaint in May 2018, alleging professional and corporate negligence, vicarious liability and wrongful death the Defendants, Dr. Downey and Northeastern Gastroenterology Associates, P.C. Fox’s claim arose from Dr. Downey’s performance of an endoscopy procedure, which led to various complications, including infection, sepsis, and ultimately Fox’s wife’s death
The court scheduled trial for November 2019, and ordered that Fox produce his expert reports by July 1, 2019. However, the court subsequently continued the trial date three (3) times at Fox’s request before finally scheduling trial for November 2022. The operative date for Fox to submit his expert’s report was set on November 15, 2021.
By October 14, 2022, Fox had failed to file his expert report; therefore the Defendants filed a motion for summary judgment, claiming that Fox had violated the court’s order by failing to timely file his expert report. The Defendants also argued that, given the proximity to trial, they would sustain severe prejudice by late expert submission because they would not have sufficient time for trial preparation.
On October 17, 2022, Fox filed his expert report, and argued that the parties had informally agreed to extend the deadline for Fox to file his expert’s report because the trial had been continued to November 2022, one year before trial. On October 18, 2022, Fox responded to the filed a moved the court to continue the trial asserting an “unforeseen and unanticipated inability to obtain a timely expert medical report . . . despite good faith efforts to do so.” More specifically, Fox’s expert was unable to timely respond to telephonic and email requests to timely produce an expert liability report.
The trial court denied the motion to continue the trial. On October 31, 2022, Fox filed his response to the Defendants’ motion for summary judgment, denying that the trial court’s October 28, 2021 scheduling order required him to produce expert reports by November 15, 2021, because the parties had informally agreed to extend the deadline, albeit to an unspecified date in the future. Fox argued that, because he produced Dr. Nasr’s expert report providing expert medical testimony regarding the standard of care and causation, he had presented a prima facie case of medical malpractice. However, Fox acknowledged that he would need a continuance of the trial in order to replace his expert.
Following a hearing, the trial court granted the Defendants’ motion, and dismissed the case with prejudice pursuant to Pa.R.Civ.P. 1035.2(2), and in relying on Pa.R.Civ.P. 4003.5(b) and Kurian ex rel. Kurian v. Anisman, 851 A.2d 152 (Pa. Super. 2004), the trial court determined that, although Appellant had not acted in bad faith, allowing Fox’s expert report at such a late stage would prejudice the Defendants.
1035.2(2) permits a party to seek judgment as a matter of law where an adverse party “has failed to produce evidence of facts essential to the cause of action . . . which[,] in a jury trial would require the issues to be submitted to a jury.”
Pa.R.Civ.P. 1035.2(2).
Rule 4003.5(b) provides that, “[an] expert whose identity is not disclosed [through interrogatories] shall not be permitted to testify on behalf of the defaulting party at the trial of the action. However, if the failure to disclose the identity of the witness is the result of extenuating circumstances beyond the control of the defaulting party, the court may grant a continuance or other appropriate relief.”
Pa.R.Civ.P. 4003.5(b).
On appeal, a panel of the Superior Court declined Fox’s invitation to overrule Kurian because the panel lacked the authority to overturn another panel’s decision. Commonwealth v. May, 271 A. 3d 475, 482 (Pa. Super. 2022). The Superior Court also disagreed with Fox’s argument that a trial court can only raise Rule 4003.5(b) as a sanction to preclude an otherwise Rule1035.3-compliant expert report is limited to cases where prejudice is apparent on the face of the record. Specifically, the Court concluded that Fox violated the trial court’s order by filing his expert’s report eleven months late, and for failing to reduce the informal agreement to extend the deadline to file his expert report in accordance with Pa.R.Civ.P. 201. (“Agreements of attorneys relating to the business of the court shall be in writing, except such agreements [made at the bar of the court] as are noted by the prothonotary upon the minutes or by the stenographer on the stenographer’s notes.”).
Also, the Court determined that Pennsylvania law did impose on the trial court a requirement to hold an evidentiary hearing prior to determining whether to exclude a late-filed expert report. See Feingold v. Southeastern Pa. Transp. Auth., 517 A.2d 1270 (Pa. 1986). The Feingold Court noted, Rule 4003.5(b) merely requires that the court “balance the facts and circumstances of each case to determine the prejudice to each party.” Feingold, 517 A.2d at 1273. Moreover, the Court concluded that Rule 4003.5(b) “give[s] the trial court discretion to preclude expert trial testimony at any pretrial date[.]” Kurian, 851 A.2d at161. Accordingly, the Court concluded that the trial court did not abuse its discretion in determining that the late-filing of Fox’s expert report would cause prejudice or surprise. Finally, the Court noted that while Fox did not act in bad faith, he did not intend to use his expert at trial, and that the trial court properly used its discretion to refuse to continue the trial on the basis of the efficient and just administration of justice.
The Superior Court’s Memorandum Opinion in Fox v Downey, No. 3066 EDA 2022 (Pa. Super. Ct. February 1, 2024) can be accessed here.
