Subchapter B. ACTION IN TRESPASS
Rule
1041. [Rescinded].
1041.1. Asbestos Litigation. Special Provisions.
1041.2. Civil Action. Alternative Procedure.
1042. [Rescinded].
PROFESSIONAL LIABILITY ACTIONS
1042.1. Professional Liability Actions. Scope. Definition.
1042.2. Complaint.
1042.3. Certificate of Merit.
1042.4. Responsive Pleading.
1042.5. Discovery.
1042.6. Notice of Intent to Enter Judgment of Non Pros for Failure to File Certificate of Merit. Motion to Determine Necessity to File Certificate Form of Notice.
1042.7. Entry of Judgment of Non Pros for Failure to File Certification.
1042.8. Motion to Strike. Defect of Certificate of Merit.
1042.9. Sanctions.
1042.10. Certificate of Merit. Form.
1042.11. Notice of Intent to Enter Judgment of Non Pros for Failure to File a Written Statement from an Appropriate Licensed Professional. Form of Notice.
1042.12. Entry of Judgment of Non Pros for Failure to File a Written Statement from an Appropriate Licensed Professional. Form of Praecipe.
LEGAL PAPERS; CAPTION
1042.16. Medical Professional Liability Actions. Legal Papers. Caption.
SETTLEMENT CONFERENCE; MEDIATION
1042.21. Medical Professional Liability Actions. Motion for Settlement Conference or Mediation.
EXPERT REPORTS
1042.26. Medical Professionsl Liability Actions. Expert Reports.
1042.27. Requests for Production of Expert Reports. Responses. General Provisions.
1042.28. Defendant’s Request to Plaintiff for Production of Expert Reports. Response.
1042.29. Plaintiff’s Request to Defendant or Additional Defendant for Production of Expert Reports. Response.
1042.30. Defendant’s or Additional Defendant’s Request to Another Defendant or Additional Defendant for Production of Expert Reports. Response.
1042.31. Failure to Produce Report. Sanctions. Summary Judgment.
1042.32. Additional and Supplemental Reports.
1042.36. Defendant’s Request to Plaintiff. Form.
1042.37. Plaintiff’s Request to Defendant or Additional Defendant.
1042.38. Defendant’s or Additional Defendant’s Request to Another Defendant or Additional Defendant. Form.
SCHEDULING ORDER
1042.41. Medical Professional Liability Actions. Scheduling Order.
PRE-TRIAL CONFERENCE
1042.51. Medical Professional Liability Actions. Motion for Pre-Trial Conference. Mediation. Report of Cases not Tried.
1042.71. Medical Professional Liability Actions. Damages. Findings.
1042.72. [Rescinded].
1043. [Rescinded].
1044. [Rescinded].
1045. [Rescinded].
1046. [Rescinded].
1047. [Rescinded].
1048. [Rescinded].Rule 1041. [Rescinded].
Source The provisions of this Rule 1041 rescinded December 16, 1983, effective July 1, 1984, 13 Pa.B. 3999. Immediately preceding text appears at serial page (85721).
Rule 1041.1. Asbestos Litigation. Special Provisions.
(a) In an action involving any allegation for injury or death arising from exposure to asbestos, the rules of civil procedure governing a civil action shall apply except as provided by this rule.
Official Note
This rule applies whenever there is an allegation of injury or death arising from exposure to asbestos, although there may be additional allegations unrelated to exposure to asbestos. The rule also encompasses actions in which there is a claim arising from exposure to silica in addition to the asbestos claim.
(b) The caption of all legal papers filed in the action shall contain the designation ‘‘Civil Action—Asbestos.’’
Official Note
Rule of Judicial Administration 1902 requires the prothonotary to maintain a record of all asbestos actions.
(c) Within twenty days after service of the complaint, the defendant shall enter an appearance which shall constitute
(1) a denial of all averments of fact in the complaint,
(2) an allegation of all affirmative defenses, and
(3) a claim for indemnification and contribution from any other party.
(d) Except for the filing of preliminary objections pursuant to Rule 1028(a)(1), (2), (5) and (6) and a complaint to join an additional defendant, there shall be no further pleading after the complaint.
(e) Leave of court to join an additional defendant later than the sixty-day period described by Rule 2253 shall not be required, but the party joined, upon preliminary objection, may request that the joinder be stricken.
(f) A motion for summary judgment filed by one defendant alleging a ground common to one or more other defendants shall be deemed filed on behalf of all such defendants.
Source The provisions of this Rule 1041.1 adopted April 4, 1990, effective July 1, 1990, 20 Pa.B. 2281; amended March 11, 1991, effective July 1, 1991, 21 Pa.B. 1274; amended November 19, 1991, effective January 1, 1992, 22 Pa.B. 5637. Immediately preceding text appears at serial page (157205).
Rule 1041.2. Civil Action. Alternative Procedure.
(a) In an action which involves multiple parties, the court, on motion of any party or on its own motion, may require the parties to follow the practice and procedure prescribed by Rule 1041.1(a) and (c) through (f).
Official Note
The court is given discretion to determine if the procedure prescribed for asbestos litigation would be appropriate in other litigation involving, for example, mass torts, product liability or other toxic substances.
(b) If a significant number of cases is affected by the order, the court may require that the caption of legal papers filed contain a special designation identifying the category of case and that the prothonotary maintain a record of all such cases by separate docket, docketing code or other appropriate means.
Source The provisions of this Rule 1041.2 adopted April 4, 1990, effective July 1, 1990, 20 Pa.B. 2281.
Rule 1042. [Rescinded].
Source The provisions of this Rule 1042 rescinded December 16, 1983, effective July 1, 1984, 13 Pa.B. 3999. Immediately preceding text appears at serial page (85721).
PROFESSIONAL LIABILITY ACTIONS
Rule 1042.1. Professional Liability Actions. Scope. Definition.
(a) The rules of this chapter govern a civil action in which a professional liability claim is asserted by or on behalf of a patient or client of the licensed professional against
(1) a licensed professional, and/or
(2) a partnership, unincorporated association, corporation or similar entity where the entity is responsible for a licensed professional who deviated from an acceptable professional standard, and
(b) A professional liability claim asserted against a licensed professional includes a claim for lack of informed consent.
(c) As used in this chapter, ‘‘licensed professional’’ means
(1) any person who is licensed pursuant to an Act of Assembly as
(i) a health care provider as defined by Section 503 of the Medical Care Availability and Reduction of Error (Mcare) Act, 40 P. S. § 1303.503;
(ii) an accountant;
Official Note
See the CPA Law, Act of May 26, 1947, No. 318, as reenacted and amended, 63 P. S. § 9.1 et seq.
(iii) an architect;
Official Note
See the Architects Licensure Law, Act of December 14, 1982, P. L. 1227, No. 281, 63 P. S. § 34.1 et seq.
(iv) a chiropractor;
Official Note
See the Chiropractic Practice Act of Dec. 16, 1986, P. L. 1646, No. 188, 63 P. S. § 625.101 et seq.
(v) a dentist;
Official Note
See the Dental Law, Act of May 1, 1933, P. L. 216, 63 P. S. § 120 et seq.
(vi) an engineer or land surveyor;
Official Note
See The Engineer, Land Surveyor and Geologist Registration Law, Act of May 23, 1945, P. L. 913, as amended, 63 P. S. § 148 et seq.
(vii) a nurse;
Official Note
See the Professional Nursing Law, Act of May 22, 1951, P. L. 317, as amended, 63 P. S. § 211 et seq.
(viii) an optometrist;
Official Note
See the Optometric Practice and Licensure Act of June 6, 1980, P. L. 197, No. 57, 63 P. S. § 244.1 et seq.
(ix) a pharmacist;
Official Note
See the Wholesale Prescription Drug Distributors License Act of December 14, 1992, P. L. 1116, No. 145, 63 P. S. § 391.1 et seq.
(x) a physical therapist;
Official Note
See the Physical Therapy Practice Act of October 10, 1975, P. L. 383, No. 110, 63 P. S. § 1301 et seq.
(xi) a psychologist; and
Official Note
See the Professional Psychologists Practice Act of March 23, 1972, P. L. 136, No. 52, 63 P. S. § 1201 et seq.
(xii) a veterinarian.
Official Note
See the Veterinary Medicine Practice Act of December 27, 1974, P. L. 995, No. 326, 63 P. S. § 485.1 et seq.
(2) an attorney at law; and
Official Note
See Rule 76 for the definition of attorney at law.
(3) any professional described in paragraphs (1) and (2) who is licensed by another state.
Source The provisions of this Rule 1042.1 adopted January 27, 2003, effective immediately, 33 Pa.B. 748; amended June 16, 2008, effective immediately, 38 Pa.B. 3481. Immediately preceding text appears at serial pages (295850) and (316383).
Rule 1042.2. Complaint.
(a) A complaint shall identify each defendant against whom the plaintiff is asserting a professional liability claim.
Official Note
It is recommended that the complaint read as follows:
‘‘Defendant
(name) is a licensed professional with offices in
County, Pennsylvania. Plaintiff is asserting a professional liability claim against this defendant.’’(b) A defendant may raise by preliminary objections the failure of the complaint to comply with subdivision (a) of this rule.
Official Note
The filing of preliminary objections pursuant to Rule 1042.2(b) is not a prerequisite to the filing of a notice of intent to enter a judgment of non pros on a professional liability claim pursuant to Rule 1042.6.
Source The provisions of this Rule 1042.2 adopted January 27, 2003, effective immediately, 33 Pa.B. 748; amended June 16, 2008, effective immediately, 38 Pa.B. 3481. Immediately preceding text appears at serial pages (316383) to (316384).
Rule 1042.3. Certificate of Merit.
(a) In any action based upon an allegation that a licensed professional deviated from an acceptable professional standard, the attorney for the plaintiff, or the plaintiff if not represented, shall file with the complaint or within sixty days after the filing of the complaint, a certificate of merit signed by the attorney or party that either
Official Note
The requirements of subdivision (a) apply to a claim for lack of informed consent.
(1) an appropriate licensed professional has supplied a written statement that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm, or
Official Note
It is not required that the ‘‘appropriate licensed professional’’ who supplies the necessary statement in support of a certificate of merit required by subdivision (a)(1) be the same person who will actually testify at trial. It is required, however, that the ‘‘appropriate licensed professional’’ who supplies such a statement be an expert with sufficient education, training, knowledge and experience to provide credible, competent testimony, or stated another way, the expert who supplies the statement must have qualifications such that the trial court would find them sufficient to allow that expert to testify at trial. For example, in a medical professional liability action against a physician, the expert who provides the statement in support of a certificate of merit should meet the qualifications set forth in Section 512 of the Medical Care Availability and Reduction of Error (MCARE) Act, 40 P. S. § 1303.512.
(2) the claim that the defendant deviated from an acceptable professional standard is based solely on allegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable professional standard, or
Official Note
A certificate of merit, based on the statement of an appropriate licensed professional required by subdivision (a)(1), must be filed as to the other licensed professionals for whom the defendant is responsible. The statement is not required to identify the specific licensed professionals who deviated from an acceptable standard of care. The purpose of this subdivision is to ensure that a claim of vicarious liability made against a defendant is supported by a certificate of merit. Separate certificates of merit as to each licensed professional for whom a defendant is alleged to be responsible are not required. Only a single certificate of merit as to a claim under subdivision (a)(2) is required.
(3) expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim.
Official Note
In the event that the attorney certifies under subdivision (a)(3) that an expert is unnecessary for prosecution of the claim, in the absence of exceptional circumstances the attorney is bound by the certification and, subsequently, the trial court shall preclude the plaintiff from presenting testimony by an expert on the questions of standard of care and causation.
(b)(1) A separate certificate of merit shall be filed as to each licensed professional against whom a claim is asserted.
Official Note
This subdivision relates to licensed professionals named as defendants. It should not be interpreted to require certificates of merit under subdivision (a)(2) or otherwise as to non-defendant licensed professionals.
(2) If a complaint raises claims under both subdivisions (a)(1) and (a)(2) against the same defendant, the attorney for the plaintiff, or the plaintiff if not represented, shall file
(i) a separate certificate of merit as to each claim raised, or
(ii) a single certificate of merit stating that claims are raised under both subdivisions (a)(1) and (a)(2).
(c)(1) A defendant who files a counterclaim asserting a claim for professional liability shall file a certificate of merit as required by this rule.
(2) A defendant or an additional defendant who has joined a licensed professional as an additional defendant or asserted a cross-claim against a licensed professional need not file a certificate of merit unless the joinder or cross-claim is based on acts of negligence that are unrelated to the acts of negligence that are the basis for the claim against the joining or cross-claiming party.
(d) The court, upon good cause shown, shall extend the time for filing a certificate of merit for a period not to exceed sixty days. A motion to extend the time for filing a certificate of merit must be filed by the thirtieth day after the filing of a notice of intention to enter judgment of non pros on a professional liability claim under Rule 1042.6(a) or on or before the expiration of the extended time where a court has granted a motion to extend the time to file a certificate of merit, whichever is greater. The filing of a motion to extend tolls the time period within which a certificate of merit must be filed until the court rules upon the motion.
Official Note
There are no restrictions on the number of orders that a court may enter extending the time for filing a certificate of merit provided that each order is entered pursuant to a new motion, timely filed and based on cause shown as of the date of filing the new motion.
The moving party must act with reasonable diligence to see that the motion is promptly presented to the court if required by local practice.
In ruling upon a motion to extend time, the court shall give appropriate consideration to the practicalities of securing expert review. There is a basis for granting an extension of time within which to file the certificate of merit if counsel for the plaintiff was first contacted shortly before the statute of limitations was about to expire, or if, despite diligent efforts by counsel, records necessary to review the validity of the claim are not available.
(e) If a certificate of merit is not signed by an attorney, the party signing the certificate of merit shall, in addition to the other requirements of this rule, attach to the certificate of merit the written statement from an appropriate licensed professional as required by subdivisions (a)(1) and (2). If the written statement is not attached to the certificate of merit, a defendant seeking to enter a judgment of non pros shall file a written notice of intent to enter a judgment of non pros for failure to file a written statement under Rule 1042.11.
Source The provisions of this Rule 1042.3 adopted January 27, 2003, effective immediately, 33 Pa.B. 748; amended February 11, 2005, effective immediately, 35 Pa.B. 1416; amended December 5, 2005, effective immediately, 35 Pa.B. 6894; amended June 16, 2008, effective immediately, 38 Pa.B. 3481; amended March 20, 2013, effective May 1, 2013, 43 Pa.B. 1835; amended March 30, 2016, effective immediately, 46 Pa.B. 1895. Immediately preceding text appears at serial pages (366166) to (366167).
Rule 1042.4. Responsive Pleading.
A defendant against whom a professional liability claim is asserted shall file a responsive pleading within the time required by Rule 1026 or within twenty days after service of the certificate of merit on that defendant, whichever is later.
Source The provisions of this Rule 1042.4 adopted January 27, 2003, effective immediately, 33 Pa.B. 748.
Rule 1042.5. Discovery
Except for the production of documents and things or the entry upon property for inspection and other purposes, a plaintiff who has asserted a professional liability claim may not, without leave of court, seek any discovery with respect to that claim prior to the filing of a certificate of merit.
Official Note
Upon motion seeking leave of court, the court shall allow any discovery which is required for a licensed professional to make a determination as to whether a defendant deviated from accepted professional standards.
This rule does not preclude a defendant from seeking a protective order under Rule 4012 in response to a request for the production of documents and things or the entry upon property for inspection and other purposes.
Source The provisions of this Rule 1042.5 adopted January 27, 2003, effective immediately, 33 Pa.B. 748.
Rule 1042.6. Notice of Intent to Enter Judgment of Non Pros for Failure to File Certificate of Merit. Motion to Determine Necessity to File Certificate. Form of Notice.
(a) Except as provided by subdivision (b), a defendant seeking to enter a judgment of non pros under Rule 1042.7(a) shall file a written notice of intention to file the praecipe and serve it on the party’s attorney of record or on the party if unrepresented, no sooner than the thirty-first day after the filing of the complaint.
(b) A judgment of non pros may be entered as provided by Rule 1042.7(a) without notice if
(1) the court has granted a motion to extend the time to file the certificate and the plaintiff has failed to file it within the extended time, or
(2) the court has denied the motion to extend the time.
(c) Upon the filing of a notice under subdivision (a) of this rule, a plaintiff may file a motion seeking a determination by the court as to the necessity of filing a certificate of merit. The filing of the motion tolls the time period within which a certificate of merit must be filed until the court rules upon the motion. If it is determined that a certificate of merit is required, the plaintiff must file the certificate within twenty days of entry of the court order on the docket or the original time period, whichever is later.
Official Note
The motion may be filed at any time prior to the entry of a judgment of non pros.
Once the judgment of non pros is entered, a party cannot raise the claim that the filing of a certificate of merit was not required.
(d) The notice required by subdivision (a) of this rule shall be substantially in the following form:
(Caption)
Notice of Intention to Enter Judgment of
Non Pros for Failure to File a Certificate of MeritTo:
(Identify Party)
Pursuant to Pennsylvania Rule of Civil Procedure 1042.7, I intend to enter a judgment of non pros against you after thirty (30) days of the date of the filing of this notice if a certificate of merit is not filed as required by Rule 1042.3.
I am serving this notice on behalf of
.
(Name of party)The judgment of non pros will be entered as to the following claims:
.
(State if a judgment is to be entered as to all claims. Otherwise, identify claims set forth in the complaint as to which a judgment of non pros will be entered.)
(Attorney)
(Address)
(Telephone Number)
Source The provisions of this Rule 1042.6 adopted June 16, 2008, effective immediately, 38 Pa.B. 3481; amended March 20, 2013, effective May 1, 2013, 43 Pa.B. 1835. Immediately preceding text appears at serial pages (335365) to (335366).
Rule 1042.7. Entry of Judgment of Non Pros for Failure to File Certification. Form of Praecipe.
(a) The prothonotary, on praecipe of the defendant, shall enter a judgment of non pros against the plaintiff for failure to file a certificate of merit within the required time provided that
(1) there is no pending motion for determination that the filing of a certificate is not required or no pending timely filed motion seeking to extend the time to file the certificate,
(2) no certificate of merit has been filed,
(3) except as provided by Rule 1042.6(b), the defendant has attached to the praecipe a certificate of service of the notice of intention to enter the judgment of non pros, and
(4) except as provided by Rule 1042.6(b), the praecipe is filed no less than thirty days after the date of the filing of the notice of intention to enter the judgment of non pros.
Official Note
The prothonotary may not enter judgment if the certificate of merit has been filed prior to the filing of the praecipe.
Rule 237.1 does not apply to a judgment of non pros entered under this rule.
See Rule 208.2(a)(4) for the content of the certificate of service.
(b) The praecipe for the entry of a judgment of non pros shall be substantially in the following form:
(Caption)
Praecipe for Entry of Judgment of Non Pros
Pursuant to Rule 1042.7To the Prothonotary:
Enter judgment of non pros in the above-captioned matter against
Identify Partyas to(1) all claims against
.
Identify Party
OR
(2) only the following claims against
:
Identify Party
Identify Claims
.Date:
Attorney for
(Identify Party)
Official Note
Where applicable, a certificate of service of the notice of intention to enter judgment of non pros shall be attached to the praecipe.
Source The provisions of this Rule 1042.7 adopted January 27, 2003, effective immediately, 33 Pa.B. 748; amended June 16, 2008, effective immediately, 38 Pa.B. 3481. Immediately preceding text appears at serial pages (316386) to (316387).
Rule 1042.8. Motion to Strike. Defect of Certificate of Merit.
If a court grants a motion to strike a claim for noncompliance with the requirements of Rule 1042.3(b), the court shall grant the plaintiff twenty days to file a certificate of merit which cures the defect.
Source The provisions of this Rule 1042.8 adopted March 20, 2013, effective May 1, 2013, 43 Pa.B. 1835.
Rule 1042.9. Sanctions.
(a) If a plaintiff has filed a certificate of merit as to a particular defendant and that defendant is dismissed from the case through voluntary dismissal, verdict or order of court, the plaintiff, within thirty days of the written request of that defendant, shall provide him or her with the written statement obtained from the licensed professional upon which the certificate of merit as to that defendant was based. If a plaintiff’s claims against other licensed professionals are still pending, the written statement shall be produced within thirty days of resolution of all claims against the other licensed professionals.
Official Note
Rule 4003.5 governs the discovery of expert testimony, including the written statements of licensed professionals furnished prior to the filing of a certificate of merit, until a defendant has been dismissed from the case.
(b) A court may impose appropriate sanctions, including sanctions provided for in Rule 1023.4, if the court determines that an attorney violated Rule 1042.3(a)(1) and (2) by improperly certifying that an appropriate licensed professional has supplied a written statement that there exists a reasonable probability that the care, skill or knowledge experienced or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm.
Source The provisions of this Rule 1042.8 adopted January 27, 2003, effective immediately, 33 Pa.B. 748; amended June 16, 2008, effective immediately, 38 Pa.B. 3481; renumbered Rule 1042.9 March 20, 2013, effective May 1, 2013, 43 Pa.B. 1835. Immediately preceding text appears at serial pages (335367) to (335368).
Rule 1042.10. Certificate of Merit. Form.
The certificate required by Rule 1042.3(a) shall be substantially in the following form:
(Caption) Certificate of Merit as to
(Name of Defendant)
I,
, certify that:
(Attorney or Party)
an appropriate licensed professional has supplied a written statement to the undersigned that there is a basis to conclude that the care, skill or knowledge exercised or exhibited by this defendant in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm;
AND/OR
OR
Date:
…
(Attorney or Party)
Source The provisions of this Rule 1042.9 adopted January 27, 2003, effective immediately, 33 Pa.B. 748; amended December 5, 2005, effective immediately, 35 Pa.B. 6894; amended June 16, 2008, effective immediately, 38 Pa.B. 3481; renumbered Rule 1042.10 March 20, 2013, effective May 1, 2013, 43 Pa.B. 1835. Immediately preceding text appears at serial pages (335368) to (335369).
Rule 1042.11. Notice of Intent to Enter Judgment of Non Pros for Failure to File a Written Statement from an Appropriate Licensed Professional. Form of Notice.
(a) A defendant seeking to enter a judgment of non pros under Rule 1042.12 shall file a notice of intent to enter a judgment of non pros for failure to file a written statement from an appropriate licensed professional with the certificate of merit.
(b) The notice required by subdivision (a) of this rule shall be substantially in the following form:
(Caption)
Notice of Intention to Enter Judgment of Non Pros
for Failure to File Written Statement from
an Appropriate Licensed ProfessionalTo:
(Identify Party)Pursuant to Pennsylvania Rule of Civil Procedure 1042.12, I intend to enter a judgment of non pros against you after thirty (30) days of the date of the filing of this notice if a written statement from an appropriate licensed professional is not filed as required by Rule 1042.3(e).
I am serving this notice on behalf of
(Name of party)
The judgment of non pros will be entered as to the following claims:
(State if a judgment is to be entered as to all claims. Otherwise, identify claims set forth in the complaint as to which a judgment of non pros will be entered.)
(Attorney)
(Address)
(Telephone Number)
Source The provisions of this Rule 1042.11 adopted March 20, 2013, effective May 1, 2013, 43 Pa.B. 1835.
Rule 1042.12. Entry of Judgment of Non Pros for Failure to File a Written Statement from an Appropriate Licensed Professional. Form of Praecipe.
(a) The prothonotary, on praecipe of the defendant, shall enter a judgment of non pros against the plaintiff for failure to file a written statement under Rule 1042.3(e) provided that
(1) no written statement has been filed,
(2) the defendant has attached to the praecipe a certificate of service of the notice of intention to enter the judgment of non pros, and
(3) the praecipe is filed no less than thirty days after the date of the filing of the notice of intention to enter judgment of non pros.
Official Note
The prothonotary may not enter judgment if the written statement has been filed prior to the filing of the praecipe.
Rule 237.1 does not apply to a judgment of non pros entered under this rule.
See Rule 208.2(a)(4) for the content of the certificate of service.
(b) The praecipe for the entry of a judgment of non pros shall be substantially in the following form:
(Caption)
Praecipe for Entry of Judgment of Non Pros Pursuant to Rule 1042.12 To the Prothonotary:
Enter judgment of non pros in the above-captioned matter against
as to (Identify Party)(1) all claims against
.
(Identify Party)OR
(2) only the following claims against
:
(Identify Party)
Identify Claims Date:
…
…Attorney for
(Identify Party)
Source The provisions of this Rule 1042.12 adopted March 20, 2013, effective May 1, 2013, 43 Pa.B. 1835.
LEGAL PAPERS; CAPTIONS
Rule 1042.16 Medical Professional Liability Actions. Legal Papers. Cap tion.
In an action in which there is a claim for medical professional liability, the caption of all legal papers, or the cover sheet in a county that requires a cover sheet, shall contain the designation ‘‘Civil Action—Medical Professional Liability Action.’’
Source The provisions of this Rule 1042.16 adopted December 27, 2004, effective immediately, 35 Pa.B. 349.
SETTLEMENT CONFERENCE; MEDIATION
Rule 1042.21. Medical Professional Liability Actions. Motion for Settle ment Conference or Mediation.
(a) Prior to the exchange of expert reports in a medical professional liability action, a health care provider may file a motion with the court requesting a settlement conference or court ordered mediation.
(1) If the motion is filed without the consent of all other parties, the moving party shall certify that it believes there is a realistic possibility of settlement.
(2) If the motion requests court ordered mediation, the moving party shall describe in the motion the mediation which is sought and shall pay for the mediation.
(b) The court shall consider any objection to the motion before entering an order.
Official Note
See Section 5101.1(c) of the Judicial Code, 42 Pa.C.S. § 5101.1(c), for the definitions of ‘‘health care provider’’ and ‘‘medical professional liability action.’’
Source The provisions of this Rule 1042.21 adopted March 29, 2004, effective immediately, 34 Pa.B. 1926.
EXPERT REPORTS
Rule 1042.26. Medical Professional Liability Actions. Expert Reports.
(a) The rules of this chapter, Rules 1042.26 through 1042.38, govern a medical professional liability action in which a medical professional liability claim is asserted against a health care provider.
Official Note
See Section 5101.1(c) of the Judicial Code, 42 Pa.C.S. § 5101.1(c), for the definitions of ‘‘health care provider,’’ ‘‘medical professional liability action’’ and ‘‘medical professional liability claim.’’
The rules of this chapter create additional requirements for the pre-trial production of expert reports for cases within the scope of these rules.
(b) The rules of this chapter are applicable only in those jurisdictions where the court has not established case management deadlines by court order or otherwise.
Official Note
These rules do not apply if the court has set different times for the production of expert reports, whether those times are established before or after a party has initiated a proceeding under this chapter by the filing of a request for expert reports.
Source The provisions of this Rule 1042.26 adopted March 29, 2004, effective immediately, 34 Pa.B. 1926.
Rule 1042.27. Requests for Production of Expert Reports. Responses. General Provisions.
(a)(1) A party may request the production of expert reports as provided by Rules 1042.28(a), 1042.29(a) and 1042.30(a).
(2) The request shall specify the party to whom it is directed and the party making the request.
(b)(1) A party served with a request shall respond as provided by Rules 1042.28(b), 1042.29(a)(2) or (a)(3) or 1042.30(b) as may be appropriate.
(2) An expert report produced pursuant to these rules shall encompass all issues in the liability phase of the case, including issues of professional negligence and causation of harm, for which a party to whom a request has been directed will offer expert testimony at trial in support of claims made against the requesting party or in support of defenses raised to the requesting party’s claims. The report shall reflect the best information available to the party producing the report at the time it is produced.
(3) The report shall be signed by the expert and shall comply with the requirements of Rule 4003.5.
Official Note
Rule 4003.5 governs the discovery of expert testimony and trial preparation material.
(c) While a request for the production of an expert report may be filed with the court, an expert report produced pursuant to these rules is discovery material that shall not be filed except as provided by Rule 4002.1.
Official Note
Rule 4002.1 governs filing discovery material.
Source The provisions of this Rule 1042.27 adopted March 29, 2004, effective immediately, 34 Pa.B. 1926.
Rule 1042.28. Defendant’s Request to Plaintiff for Production of Expert Reports. Response.
(a)(1) A defendant against whom a claim of professional negligence has been made may serve on a plaintiff making that claim a Defendant’s Request to Plaintiff for Production of Expert Reports. The request shall be substantially in the form prescribed by Rule 1042.36.
(2) The Defendant’s Request may be served not earlier than ninety days after the defendant filed its original answer to the plaintiff’s complaint.
Official Note
An additional defendant may serve a Defendant’s Request to Plaintiff for Production of Expert Reports on a plaintiff pursuant to subdivision (a)(1) if the plaintiff is actively pursuing a claim against the additional defendant.
(b) A plaintiff to whom a request has been made under subdivision (a) shall, within one hundred eighty days after service of the request, furnish to the requesting party expert reports summarizing the expert testimony that will be offered by that plaintiff to support the claims of professional negligence made by that plaintiff against the requesting party.
Source The provisions of this Rule 1042.28 adopted March 29, 2004, effective immediately, 34 Pa.B. 1926.
Rule 1042.29. Plaintiff’s Request to Defendant or Additional Defendant for Production of Expert Reports. Response.
(a)(1) Within the times set forth in subdivisions (a)(2) and (a)(3), a plaintiff who has furnished a defendant or additional defendant expert reports summarizing the expert testimony that will be offered by the plaintiff to support his or her claims of professional liability made against that defendant or additional defendant, may serve on that defendant or additional defendant a Plaintiff’s Request to Defendant or Additional Defendant for Production of Expert Reports. The request shall be substantially in the form prescribed by Rule 1042.37.
(2) A plaintiff who has furnished an expert report to the defendant or additional defendant in response to a request pursuant to Rule 1042.28 may thereafter serve a request on that defendant or additional defendant. Within sixty days after service of the request, the party to whom the request has been directed shall furnish to the requesting party expert reports summarizing the expert testimony that will be offered by that party to support the defenses to the requesting party’s claims.
(3) A plaintiff who has furnished an expert report to the defendant or additional defendant without a request may serve a request on that defendant or additional defendant after ninety days following the filing of the certificate of merit as to the party to whom the request is directed. Within one hundred twenty days after service of the request, the party to whom the request has been directed shall furnish to the requesting party expert reports summarizing the expert testimony that will be offered by that party to support the defenses to the requesting party’s claims.
(b) If the defendant or additional defendant to whom a Plaintiff’s Request to Defendant or Additional Defendant for Production of Expert Reports has been directed has raised claims against other parties pursuant to Rule 2251 et seq., the expert reports shall also summarize the expert testimony that will be offered by that party in support of the claims against other parties.
Official Note
Rule 2251 et seq. governs the joinder of additional defendants.
Source The provisions of this Rule 1042.29 adopted March 29, 2004, effective immediately, 34 Pa.B. 1926.
Rule 1042.30. Defendant’s or Additional Defendant’s Request to Another Defendant or Additional Defendant for Production of Expert Reports. Response.
(a)(1) A defendant or additional defendant who has furnished expert reports summarizing the expert testimony offered by that party in support of claims against other parties pursuant to Rule 1042.29(b) may serve a Defendant’s or Additional Defendant’s Request to Another Defendant or Additional Defendant for Production of Expert Reports. The request shall be substantially in the form prescribed by Rule 1042.38.
(2) The request may not be made earlier than ninety days after a certificate of merit was served on the party to whom the request is directed.
(b) A party to whom a request for production of expert reports has been directed pursuant to subdivision (a) shall within sixty days after service of the request furnish to the requesting party expert reports summarizing the expert testimony that will be offered by that party supporting the defenses to the claims by the requesting party and any claims raised against the requesting party and any other parties joined pursuant to Rule 2251 et seq.
Official Note
Rule 2251 et seq. governs the joinder of additional defendants.
Source The provisions of this Rule 1042.30 adopted March 29, 2004, effective immediately, 34 Pa.B. 1926.
Rule 1042.31. Failure to Produce Report. Sanctions. Summary Judg ment.
(a) A party who has not received an expert report required to be produced under these rules may upon motion obtain a court order compelling the production of the report. In ruling on the motion, the court shall consider the complexity of the case, the diligence of the parties in making and responding to discovery requests, and other relevant factors. A party who has proceeded with reasonable diligence shall be given a reasonable time in which to complete necessary discovery and to produce an expert report.
Official Note
A party cannot justify the non-production of an expert report required by these rules simply by stating that discovery has not been completed or that the party failing to provide the report has not yet identified the experts whom he or she intends to call at trial. However, a party who has acted diligently should not be required to produce expert reports if discovery of significant information has not been completed because of difficulty obtaining discovery from other parties or third persons or because of the complexity of the case.
(b) A court may impose sanctions for non-compliance with an order entered pursuant to subdivision (a) including, where appropriate, an order barring a party from introducing expert testimony.
(c) A court shall promptly consider a motion for summary judgment which is based solely on a court order entered pursuant to subdivision (b), barring a party from introducing expert testimony.
Source The provisions of this Rule 1042.31 adopted March 29, 2004, effective immediately, 34 Pa.B. 1926.
Rule 1042.32. Additional and Supplemental Reports.
Until a deadline set by the court for the production of expert reports has passed or unless the court has precluded such production, a party may serve additional and supplemental expert reports without leave of court. These reports may introduce new theories of liability or causation or new defenses, and may be prepared by other experts.
Source The provisions of this Rule 1042.32 adopted March 29, 2004, effective immediately, 34 Pa.B. 1926.
Rule 1042.36. Defendant’s Request to Plaintiff. Form.
The Defendant’s Request to Plaintiff for Production of Expert Reports required by Rule 1042.28(a)(1) shall be substantially in the following form:
(CAPTION)
DEFENDANT’S REQUEST TO PLAINTIFF
FOR PRODUCTION OF EXPERT REPORTSTO:
Name of PlaintiffFROM:
Name of Defendant
Pursuant to Pennsylvania Rule of Civil Procedure 1042.28(b), you are requested within one hundred eighty (180) days of service of this request to furnish to me, the defendant named above, expert reports summarizing the expert testimony that you will offer to support the claims of professional negligence that you have made against me. You are required to serve copies of all expert reports on all other parties.
Dated:
Attorney for Defendant
Source The provisions of this Rule 1042.36 adopted March 29, 2004, effective immediately, 34 Pa.B. 1926.
Rule 1042.37. Plaintiff’s Request to Defendant or Additional Defendant.
The Plaintiff’s Request to Defendant or Additional Defendant for Production of Expert Reports required by Rule 1042.29(a)(1) shall be substantially in the following form:
(CAPTION)
Plaintiff’s Request to Defendant or Additional Defendant
for Production of Expert ReportsTO:
Name of Defendant/Additional Defendant
FROM:
Name of Plaintiff1. I, the plaintiff named above, have furnished you, the defendant named above, expert reports summarizing the expert testimony that I will offer to support the claims of professional negligence or product liability that I have made against you.
2(A) .Pursuant to Pennsylvania Rule of Civil Procedure 1042.29(a)(2), you are requested within sixty (60) days of service of this request to furnish to me expert reports summarizing the expert testimony that you will offer to support your defenses to the claims of professional negligence that I have made against you.
2(B). Pursuant to Pennsylvania Rule of Civil Procedure 1042.29(a)(3), you are requested within one hundred twenty (120) days of service of this request to furnish to me expert reports summarizing the expert testimony that you will offer to support your defenses to the claims of professional negligence that I have made against you.
3. If you have made claims against other parties pursuant to Pennsylvania Rule of Civil Procedure 2251 et seq. governing the joinder of additional defendants, your expert reports are required also to summarize the expert testimony that you will offer in support of these claims against those other parties.
4. You are required to serve copies of all expert reports on all other parties.
Date:
Attorney for
, Plaintiff
Official Note
Delete Paragraph 2(A) or 2(B), whichever is not applicable.
Source The provisions of this Rule 1042.37 adopted March 29, 2004, effective immediately, 34 Pa.B. 1926.
Rule 1042.38. Defendant’s or Additional Defendant’s Request to Another Defendant or Additional Defendant. Form.
The Defendant’s or Additional Defendant’s Request to Another Defendant or Additional Defendant for Production of Expert Reports required by Rule 1042.30(a)(1) shall be substantially in the following form:
(CAPTION)
Defendant’s or Additional Defendant’s Request to Another Defendant or Additional Defendant for Production of Expert Reports TO:
Name of Another Defendant/Additional DefendantFROM:
Name of Defendant/Additional DefendantI, the defendant/additional defendant named above, have furnished to you expert reports summarizing the expert testimony that I will offer to support the claims that I have made against you pursuant to Pennsylvania Rule of Civil Procedure 2251 et seq. governing joinder of additional parties.
Pursuant to Pa.R.C.P. 1042.30(b), you are requested within sixty (60) days to furnish me expert reports summarizing the expert testimony that you will offer to support your defenses to my claims against you and to support any claims you have raised against me pursuant to Pa.R.C.P. 2251 et seq.
If you have raised claims against other parties pursuant to Pa.R.C.P. 2251 et seq., your expert reports are required also to summarize the expert testimony that you will offer in support of your claims against these other parties.
You are required to serve copies of all expert reports on all other parties.
Date:
Attorney for
Defendant/Additional Defendant
Source The provisions of this Rule 1042.38 adopted March 29, 2004, effective immediately, 34 Pa.B. 1926.
SCHEDULING ORDER
Rule 1042.41. Medical Professional Liability Actions. Scheduling Order.
(a) After one year from the date the first answer was filed in a medical professional liability action, any party to the action may file a motion requesting the court to issue a scheduling order. Upon presentation of the motion, the court shall within thirty days issue a scheduling order or schedule a case management conference.
(b) The scheduling order shall include schedules for the completion of discovery and the production of expert reports.
(c) This rule shall not apply where the court by court order or otherwise has established schedules for completion of discovery and production of expert reports.
Source The provisions of this Rule 1042.41 adopted March 29, 2004, effective immediately, 34 Pa.B. 1926.
PRE-TRIAL CONFERENCE
Rule 1042.51. Medical Professional Liability Actions. Motion for Pre- Trial Conference. Mediation. Report of Cases not Tried.
(a)(1) Any party to a medical professional liability action may file a motion requesting the court to schedule a pre-trial conference. The motion may be filed
(i) after the parties have produced expert reports as to liability pursuant to a request under Rule 1042.26 et seq. or a scheduling order under Rule 1042.41 or
(ii) whenever the motion includes a statement that all parties have exchanged expert reports as to liability.
(2) The pre-trial conference shall be scheduled within sixty days of the filing of the motion and shall be governed by the procedure of Rule 212.3.
(b) At the pretrial conference, the court shall
(1) set a date for another pre-trial conference or for trial or furnish the parties with a tentative trial date, and
(2) inquire of the parties whether they are willing to participate in mediation.
(c) On the first day of February and the first day of September of each year, the court administrator of each court of common pleas shall file with the Administrative Office of Pennsylvania Courts a list of all medical professional liability cases that have not been tried within nine months of a pre-trial conference scheduled pursuant to this rule.
(d) This rule shall not apply where a court has set a trial date.
Source The provisions of this Rule 1042.51 adopted March 29, 2004, effective immediately, 34 Pa.B. 1926.
Rule 1042.71. Medical Professional Liability Actions. Damages. Findings.
At the request of any party to a medical professional liability action, the trier of fact shall make a determination, with separate findings for each plaintiff, specifying the amount of all of the following:
(1) except as provided under Section 508 of the MCARE Act, past damages for:
(i) medical and other related expenses in a lump sum;
(ii) loss of earnings in a lump sum; and
(iii) noneconomic loss in a lump sum.
Official Note
Section 508 of Act No. 13 of 2002, the MCARE Act, 40 P. S. § 1303.508, governs collateral sources.
(2) future damages for:
(i) medical and other related expenses by year;
(ii) loss of earnings or earning capacity in a lump sum; and
(iii) noneconomic loss in a lump sum.
Official Note
Section 509(a) of the MCARE Act, 40 P. S. § 1303.509(a), provides for the separate findings set forth in this rule.
This rule applies to all medical professional liability actions, whether tried before a jury or a court without a jury.
The term ‘‘plaintiff’’ as used in Rule 1042.71 is synonymous with the term ‘‘claimant’’ as used in Section 509(a) of the MCARE Act, 13 P. S. § 1303.509(a), and as defined in Section 103 of the Act, 40 P. S. § 1303.103.
Source The provisions of this Rule 1042.71 adopted August 20, 2004, effective October 1, 2004, 34 Pa.B. 4880.
Rule 1042.72. [Rescinded].
Source The provisions of this Rule 1042.72 adopted September 17, 2004, effective December 1, 2004, 34 Pa.B. 5351; rescinded October 17, 2012, effective immediately, 42 Pa.B. 6872. Immediately preceding text appears at serial pages (335377) to (335378).
Rule 1043. [Rescinded].
Source The provisions of this Rule 1043 rescinded December 16, 1983, effective July 1, 1984, 13 Pa.B. 3999. Immediately preceding text appears at serial page (22267).
Rule 1044. [Rescinded].
Source The provisions of this Rule 1044 rescinded December 16, 1983, effective July 1, 1984, 13 Pa.B. 3999. Immediately preceding text appears at serial page (22268).
Rule 1045. [Rescinded].
Source The provisions of this Rule 1045 rescinded December 16, 1983, effective July 1, 1984, 13 Pa.B. 3999. Immediately preceding text appears at serial pages (22268) and (40039).
Rule 1046. [Rescinded].
Source The provisions of this Rule 1046 rescinded December 16, 1983, effective July 1, 1984, 13 Pa.B. 3999. Immediately preceding text appears at serial page (40039).
Rule 1047. [Rescinded].
Source The provisions of this Rule 1047 rescinded December 16, 1983, effective July 1, 1984, 13 Pa.B. 3999. Immediately preceding text appears at serial pages (40039) to (40040).
Rule 1048. [Rescinded].
Source The provisions of this Rule 1048 rescinded December 16, 1983, effective July 1, 1984, 13 Pa.B. 3999. Immediately preceding text appears at serial page (40040).
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