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PA Bulletin, Doc. No. 05-5


Title 255--LOCAL


Local Rule 1042; No. 2834 of 2004

[35 Pa.B. 12]


   And Now, this 10th day of December, 2004, pursuant to Rule 239 of the Pennsylvania Rules of Civil Procedure, it is hereby ordered that Local Rule 1042 is adopted as set forth in the attachment.

   The Prothonotary is directed as follows:

   (1)  Seven certified copies of the Local Rule shall be filed with the Administrative Office of Pennsylvania Courts.

   (2)  Two certified copies and diskette of the Local Rule shall be distributed to the Legislative Reference Bureau for publication in the Pennsylvania Bulletin.

   (3)  One certified copy of the Local Rule shall be sent to the State Civil Procedural Rules Committee.

   (4)  One certified copy shall be sent to the Fayette County Law Library.

   (5)  One certified copy shall be sent to the Editor of the Fayette Legal Journal.

   This Local Rule shall be continuously available for public inspection and copying in the Office of the Prothonotary. Upon request and payment of reasonable costs of reproduction and mailing, the Prothonotary shall furnish to any person a copy of any local rule.

   This Local Rule shall be effective 30 days after the date of publication in the Pennsylvania Bulletin.

By the Court

President Judge

Rule 1042. Mediation of Medical Professional Liability Actions.

   (a)  A mediation conference may be requested at the F.C.R. 202 status conference or any time thereafter upon agreement and motion of the parties. The conference shall be confidential and no record shall be made thereof.

   (b)  (1) Except as provided in Pa.R.C.P. 1042.21(a)(2), each party shall pay, pro rata, an initial non-refundable mediation fee of $500.00 per session. The fee shall be made payable to the Prothonotary for deposit in the Fayette County Medical Professional Liability Trustee Account and shall be submitted at the time the motion seeking a conference is filed. The receipt for payment shall be attached to the motion upon presentation to the assigned Judge through Motions Court or a mediator will not be appointed.

   (2)  A session shall consist of a time period of three (3) hours or less.

   (c)  The mediator will be appointed in seriatim fashion by the Court Administrator from a list approved by the Court and shall consist of lawyers from Fayette County who have experience in medical professional liability litigation and who shall receive the mediation fee of $500.00 per session.

   (d)  The mediator shall conduct the session for the purpose of effectuating a settlement within sixty (60) days from the date of appointment.

   (e)  The attendance of trial counsel, the parties, and a representative of the insurance carrier for the Defendant(s)at all scheduled sessions shall be mandatory. Failure to attend will cause the session to be rescheduled with attorney fees and expenses assessed against the nonappearing person.

   (f)  At least ten (10) days prior to the session, each party shall provide the mediator and the parties with a statement which must include the following:

   (1)  the party's position regarding liability and damages;

   (2)  a listing of all legal issues involved, with citation of applicable legal authority;

   (3)  medical reports;

   (4)  expert reports;

   (5)  an itemized list of damages; and

   (6)  the last informal settlement posture and rationale.

   If a party fails to timely provide the required statement, the session will be rescheduled with attorney's fees and expenses assessed against the offending party.

   (g)  If the initial session is insufficient to complete the conference, then subsequent sessions may be scheduled as necessary. In such event, the parties shall pay, pro rata, a non-refundable $500.00 fee for each subsequent session, except if the mediation has been directed pursuant to Pa.R.C.P. 1042.21(a)(2), in which case the moving party shall pay the entire fee. The total fee for all subsequent sessions shall be paid to the Prothonotary for deposit in the Fayette County Medical Professional Liability Trustee Account immediately upon the conclusion of the final conference session.

   (h)  In the event a party withdraws from mediation resulting in the termination of the process, that party shall be responsible for the total cost of the mediation fee.

   (i)  (1) If the case is not settled, the mediator shall, within ten (10) days of the final conference session, file with the Prothonotary a report setting forth the following:

   (i)  Plaintiff's final settlement demand;

   (ii)  Defendant's/Additional Defendant's final settlement offer;

   (iii)  The mediator's assessment of liability;

   (iv)  The mediator's assessment of damages;

   (v)  The mediator's opinion regarding the potential range of a verdict and settlement value of the case;

   (vi)  The mediator's recommendations regarding settlement of the case; and

   (vii)  The number of sessions conducted.

   (2)  The Prothonotary shall seal and make confidential the report of the mediator and shall provide a copy of the report to the assigned Judge.

   (3)  The Prothonotary shall pay the amount due to the mediator within ten (10) days of the filing of the report.

   (4)  If the case is settled, the mediator shall, within five (5) days of the final conference session, file a report indicating such settlement and the number of sessions conducted. Additionally, a written settlement agreement shall be executed by a person(s) having the authority to do so and filed with the Prothonotary who shall discontinue the action. The agreement shall be sealed if requested by the parties.

[Pa.B. Doc. No. 05-5. Filed for public inspection December 30, 2004, 9:00 a.m.]

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