Marquis Wilson v. United States

                                       PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT
                  _____________

                     No. 22-1940
                    _____________

                 MARQUIS WILSON,
                    Appellant

                           v.

           UNITED STATES OF AMERICA
                 _____________

     On Appeal from the United States District Court
         for the Eastern District of Pennsylvania
               (D.C. Civil No. 19-cv-04257)
      District Judge: Honorable Gerald A. McHugh
                     _____________

                 Argued: June 20, 2023
                   ______________

 Before: CHAGARES, Chief Judge, BIBAS and MATEY,
                 Circuit Judges

                (Filed: August 21, 2023)
                     _____________

Julia E. Fine [ARGUED]
Claire R. Cahill
Kari M. Lorentson
Williams & Connolly
680 Maine Avenue SW
Washington, DC 20024

      Counsel for Appellant

Matthew Howatt
Office of United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106

Catherine M. Padhi [ARGUED]
Sushma Soni
Mark B. Stern
United States Department of Justice
Civil Division
950 Pennsylvania Avenue NW
Washington, DC 20530

      Counsel for Appellee
                     _____________

                OPINION OF THE COURT
                    _____________

CHAGARES, Chief Judge.

      Marquis Wilson challenges the District Court’s grant of
summary judgment to the Government in his Federal Tort
Claims Act (“FTCA”) lawsuit for medical negligence. The




                              2
dispositive issue here is whether Pennsylvania Rule of Civil
Procedure 1042.3 (“Rule 1042.3”), which requires medical
malpractice plaintiffs to certify either that they have expert
support for their claims or instead will proceed without an
expert, applies in FTCA cases like Wilson’s. The grant of
summary judgment here was predicated upon Wilson’s Rule
1042.3 certification to proceed without an expert to support his
claim. Because we interpret the FTCA not to incorporate Rule
1042.3, and because Wilson did not otherwise have an
adequate opportunity to seek out an expert or conduct
discovery prior to the District Court’s decision due to his
unique position as a pro se inmate during the COVID-19
pandemic, we will reverse the grant of summary judgment and
remand this case to the District Court.

                               I.1

                               A.

       Rule 1042.3 requires a Pennsylvania plaintiff claiming
professional malpractice to file a so-called “certificate of
merit” either with the complaint or within 60 days of filing it.
As relevant here, the certificate of merit must attest that either
(1) an appropriate licensed professional supplied a written
statement that there exists a reasonable probability that the
professional services provided fell outside acceptable
professional standards, or (2) expert testimony of an

1
  Wilson was represented in this appeal by pro bono counsel
Julia E. Fine, Claire R. Cahill, and Kari M. Lorentson of
Williams & Connolly LLP. We thank them for their skillful
advocacy in this matter.




                                3
appropriate licensed professional is unnecessary.2 Pa. R. Civ.
P. 1042.3(a)(1) & (3). A note appended to Rule 1042.3
provides that, in the “absence of exceptional circumstances,” a
plaintiff who certifies that expert testimony is unnecessary for
prosecution of the case is precluded from subsequently
presenting testimony by an expert on the questions of standard
of care and causation. Pa. R. Civ. P. 1042.3(a)(3) n.1.

         The Rule was implemented in January 2003 when the


2
    The key provisions of Rule 1042.3 read as follows:

         (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

                (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

                ...

                (3) expert testimony of an appropriate licensed
                professional is unnecessary for prosecution of
                the claim.




                                  4
Supreme Court of Pennsylvania “determined that malpractice
actions were being commenced in the Pennsylvania courts
more frequently.” Womer v. Hilliker, 

 (Pa.
2006). That rise in malpractice litigation led to an attendant
increase in what the Court termed “malpractice claims of
questionable merit.” 

 The Court adopted Rule 1042.3
pursuant to its rulemaking authority under the Pennsylvania
Constitution, intending the provision to be “an orderly
procedure that would serve to identify and weed non-
meritorious malpractice claims from the judicial system
efficiently and promptly.” 

 The consequences for failing to
comply with the Rule 1042.3 certificate of merit requirement
are accordingly severe: a non-compliant lawsuit will be
dismissed once the opposing party has followed the requisite
procedures. See Schmigel v. Uchal, 

 (3d Cir.
2015) (explaining that the “ultimate consequence of the failure
to comply [is] termination of the suit”).

                              B.3

       With the foregoing background in mind, we turn to the
facts and procedural history of Wilson’s case. While being
held as a pretrial detainee in Philadelphia in 2017, Wilson
complained to medical staff at the Federal Detention Center
(“FDC”) in Philadelphia about a lump on one of his testicles.
Wilson was seen by medical staff in November 2017, who
noted the testicular swelling and allegedly told him that a lump
in that area was probably cancerous. Wilson subsequently

3
 Because the District Court granted summary judgment before
any discovery was conducted, the relevant factual background
here is taken from Wilson’s complaint and the Government’s
answer.




                               5
complained to FDC staff that his condition worsened, but he
asserts that no further medical treatment was provided at that
time. Wilson was eventually sentenced in early 2018 and then
transferred to Bureau of Prisons custody, where he was seen by
medical staff at USP-Allenwood. Wilson was referred to a
urologist who determined in February 2018 that the lump was
cancerous. Wilson underwent surgery on February 21, 2018,
to remove his right testicle. Medical staff at USP-Allenwood
purportedly told Wilson that “the lump should have been
treated earlier for best results but by that point the only course
of action was to remove one of [Wilson’s] testicles which was
done surgically.” Joint Appendix (“JA”) 18.

        Wilson believed that, had his cancer been caught and
addressed earlier, treatment would not have involved
chemotherapy and the invasive surgery, which he asserts led to
side effects including the loss of ejaculatory function. After
exhausting his administrative remedies, Wilson filed a lawsuit
in the United States District Court for the Eastern District of
Pennsylvania alleging medical negligence under the FTCA.
The Government subsequently filed a notice of its intent to
seek dismissal of the complaint because Wilson had not filed a
certificate of merit pursuant to Rule 1042.3.

        The District Court set a deadline for Wilson, who was
at that time proceeding pro se, to take a position on the
certificate of merit, but it subsequently granted him multiple
extensions of time, partly due to the onset of the COVID-19
pandemic. The District Court eventually denied Wilson’s
additional motion for an extension and request for appointment
of counsel, and the Government promptly moved to dismiss.
In response to the motion to dismiss, Wilson explained that he
would like to have an expert testify about his deficient medical




                                6
care, but “concede[d] to the impossibility” of obtaining a
medical expert “in the midst of a [g]lobal [p]andemic” that had
caused prison lockdowns. JA 31–32. He stated “under
protest” that his medical records would “obviously”
demonstrate that his injury “was not inevitable and happened
[as a] result of [the Government’s] negligence,” and he could
prove his claim without expert testimony “at this juncture.” JA
29–30.

        The Government thereafter withdrew its motion to
dismiss, filed an answer, and immediately moved for summary
judgment. In the Government’s view, Wilson’s Rule 1042.3
certification that he would not offer expert evidence
“precluded [him] from offering expert testimony in this case
on the questions of standard of care and causation.” JA 69.
The Government argued that Wilson’s suit could not be proven
under a res ipsa loquitur theory, his sole expert-less avenue of
proving liability. In the Government’s view, Wilson needed
expert testimony to prove elements of his claim and was now
precluded from presenting that testimony based on his Rule
1042.3 election. This, the Government claimed, entitled it to
summary judgment.

       Wilson’s summary judgment opposition asked the court
“to move forward with discovery.” JA 79. In addition to re-
asserting his view that his case could be proven by res ipsa
loquitur, Wilson specifically identified “medical documents
chronicled by the [Bureau of Prisons] while and since [he had]
been in its custody” as discoverable material that would
substantiate his allegations. 

 He also disputed the
Government’s claim that he would be precluded from offering
an expert later in the case. Though he acknowledged his prior
Rule 1042.3 certification, he stated that he “would love to have




                               7
an expert attest” to his claims and asserted that his “case and
the circumstances around it are so unusual [that] it would
satisfy the standard for a medical expert to be available later.”

 In particular, he discussed at length the difficulties he faced
securing expert testimony as a pro se prisoner during the
COVID-19 pandemic. 

        Following the parties’ summary judgment briefing, the
District Court sua sponte stayed all deadlines and ordered the
case listed with the District Court’s pro bono prisoner civil
rights panel. The case remained on the pro bono list for one
year. In response to a notice from the court requiring him to
act if he wished for his case to remain on the pro bono list,
Wilson elected to have his case removed therefrom and to
proceed again pro se. The District Court ordered Wilson to file
any additional submissions in response to the pending
summary judgment motion within 45 days. Wilson did not
submit any further responses.

        The District Court granted summary judgment to the
Government. It acknowledged that the parties had not
conducted any discovery and that the Government “denie[d]
various facts.” Wilson v. United States, 

, at
*2 n.1 (E.D. Pa. Apr. 26, 2022). It nevertheless determined
that the “material facts essential to [Wilson’s] claim” were not
in dispute with respect to Wilson’s claims of belated treatment.

 The District Court also separately noted the growing body
of authority holding that state certificate of merit requirements
do not apply in FTCA actions but stated that it need not decide
that issue to resolve the summary judgment motion. 

 at *2
n.2. It held that, regardless of whether Wilson needed to
comply with Rule 1042.3(a), he was bound by his statement of
intent to proceed without an expert and to rely only on a res




                                8
ipsa loquitur theory. Id. at *2. Wilson thus needed to show,
without expert testimony, that his injury would not usually
occur absent negligence and that the evidence sufficiently
eliminated other causes of the harm. Id. at *3. The District
Court then determined that, while a factfinder could find
without expert testimony that the delay in treatment of
Wilson’s testicular lump was unreasonable, the issue of
whether the delay was the cause of the eventual need to remove
Wilson’s testicle was complex and required expert testimony.
Id. at *3–4. Wilson, of course, had said he had no such expert;
thus, the District Court concluded that summary judgment was
warranted. Id. Wilson timely appealed.

                              II.

       The District Court had jurisdiction over Wilson’s FTCA
claim under 

 and 1346. This Court has
appellate jurisdiction over Wilson’s appeal of the District
Court’s grant of summary judgment under 

.
Our review of a district court’s grant of summary judgment is
plenary. Sikora v. UPMC, 

 (3d Cir. 2017).

                             III.

       We hold that Rule 1042.3’s certificate of merit
requirement does not apply in FTCA cases.4 Our analysis

4
  The applicability of Rule 1042.3 is appropriately before us
despite the Government’s urging to the contrary. Wilson’s
decision — made “under protest,” JA 30 — to proceed without
an expert pursuant to Rule 1042.3 resulted from the
Government’s attempt to dismiss Wilson’s case for lack of a
certificate of merit.     And, though the District Court




                              9
centers on the statutory language through which Congress has
explicitly delineated the extent to which state law is to be
applied as federal law in FTCA cases. See Richards v. United
States, 

 (1962) (holding that in FTCA cases “the
issue of the applicable law is controlled by a formal expression
of the will of Congress”). To this end, the FTCA provides that
when the United States is sued in tort it “shall be liable . . . in
the same manner and to the same extent as a private individual
under like circumstances.” 

. The statute also
waives the federal government’s sovereign immunity for
personal injury claims “under circumstances where the United
States, if a private person, would be liable to the claimant in
accordance with the law of the place where the act or omission
occurred.” 

(b)(1); see also Xi v. Haugen, 

, 837–38 (3d Cir. 2023).

        The FTCA’s incorporation of state law is limited in
scope and reaches only a subset of potentially relevant state
legal rules. The Supreme Court has instructed that Ҥ
1346(b)’s reference to the ‘law of the place’ means law of the
State—the source of substantive liability under the FTCA.”
F.D.I.C. v. Meyer, 

 (1994) (emphasis added).
We have in turn interpreted Meyer and its progeny to mean that
state law supplies “[t]he cause of action in an FTCA claim.”


thoughtfully identified the thorny issues raised by Rule
1042.3’s application to the FTCA context and attempted to
avoid the issue, its summary judgment grant was nonetheless
based upon the premise that Wilson was bound by his election
to proceed without an expert as well as his consequent decision
to rely solely upon the doctrine of res ipsa loquitur to prove his
case. Rule 1042.3’s applicability to FTCA cases is therefore
directly presented and integral to the outcome of this appeal.




                                10
CNA v. United States, 

 (3d Cir. 2008). Other
Courts of Appeals have described the scope of the FTCA’s
incorporation of state law using similar liability-oriented
language. See, e.g., Calderon-Ortega v. United States, 

 (1st Cir. 2014) (observing that the FTCA’s
incorporation of state law encompasses a state’s “rules of
decision”); In re Supreme Beef Processors, Inc., 

,
252 n.4 (5th Cir. 2006) (concluding that the FTCA’s
incorporation language reflects Congress’s decision “to
incorporate standards for federal conduct that mirror applicable
state standards of liability”).      No matter the precise
terminology used, the common thread running through each of
these decisions is recognition of the FTCA’s limited
incorporation of state law — specifically, that the FTCA
incorporates only state law that governs liability in tort.

        Applying that limited incorporation language to the case
at hand, Pennsylvania common law provides Wilson’s cause of
action alleging medical negligence under the FTCA. See
Hightower-Warren v. Silk, 

 (Pa. 1997). A
Pennsylvania medical malpractice plaintiff “must establish a
duty owed by the physician to the patient, a breach of that duty
by the physician, that the breach was the proximate cause of
the harm suffered and the damages suffered were a direct result
of the harm.” 

 As a result, those common law elements are
what Wilson must prove to win his case — that is precisely the
sort of liability-determining law that the FTCA incorporates.
Rule 1042.3, on the other hand, does not define a cause of
action or otherwise determine the “manner” and “extent” of
liability, 

. Instead, it is a judicially-created
rule located tellingly in the Pennsylvania Rules of Civil
Procedure. Per the Pennsylvania Supreme Court’s own
description, Rule 1042.3 is an immediate, post-pleading barrier




                              11
to entry meant to weed out malpractice claims “of questionable
merit” early in proceedings to avoid wasting time and
resources. Womer, 

. No part of that
explanation suggests that Rule 1042.3 is itself an element or
evidence of a malpractice claim or otherwise part of the
liability analysis. In fact, the Pennsylvania state constitution
requires that any rule created by the Pennsylvania Supreme
Court — of which Rule 1042.3 is one — must not “abridge,
enlarge nor modify the substantive rights of any litigant.” Pa.
Const. Art. 5, § 10(c). There thus can be little doubt that Rule
1042.3’s certificate of merit requirement does not determine
liability. It is, instead, a technical requirement dictating what
plaintiffs must do in Pennsylvania state court to vindicate their
rights. Rule 1042.3 is therefore not incorporated by the FTCA.

       The Government argues that Rule 1042.3’s certificate
of merit requirement is applicable here because this Court has
already determined that the Rule is substantive state law
applicable in federal court in Liggon-Redding v. Estate of
Sugarman, 

 (3d Cir. 2011). But in Liggon-
Redding, we engaged in the choice-of-law analysis for
purposes of diversity jurisdiction. We determined that Rule
1042.3 is “substantive” under the familiar principles laid out in
Erie R. Co. v. Tompkins, 

 (1938), and its progeny,
and that it should thus be applied in a diversity case. That is
an entirely distinct inquiry from determining which state laws
allocate or inform tort liability and are thus incorporated as
federal law in an FTCA case.

       The Supreme Court recognized this analytical
distinction in Richards when it explained that the FTCA
“present[s] . . . a situation wholly distinguishable from
[diversity] cases” because the FTCA involves “a formal




                               12
expression of the will of Congress.” 

. In light of
that distinction, the Supreme Court held in Richards that it is
not necessary “to consider the question whether the [Erie] rule
applied in suits where federal jurisdiction rests upon diversity
of citizenship shall be extended to” FTCA cases. Id.; see also
Cibula v. United States, 

, 320–21 (4th Cir. 2009)
(“[B]ecause the FTCA contains an explicit instruction by
Congress regarding which law to use, courts should not engage
in their normal Erie analysis to make that determination.”);
F.D.I.C. v. Wabick, 

, 625–26 (7th Cir. 2003)
(observing that where a statute “contains an explicit direction
of where to find the appropriate law[, t]he question we must
answer—one of statutory interpretation—is therefore distinct
from any questions about the application of the Erie doctrine .
. . . Where Congress tells us which laws to look to we are not
authorized to disregard that directive”). Put simply, the
FTCA’s statutory language includes an explicit mandate
articulating the precise bounds of state law incorporation in an
FTCA case, and that language requires an inquiry that is
different than the diversity jurisdiction analysis we conducted
in Liggon-Redding.

        That we analyze FTCA incorporations of state law
differently than we do applications of state law in diversity
jurisdiction cases makes sense given the unique choice-of-law
principles underpinning the Erie doctrine that do not apply in
the FTCA context where no such choice of law occurs.
Consider, for example, our core conclusion in Liggon-
Redding: that Rule 1042.3 was substantive state law because
“the failure to apply [it] would be outcome-determinative and
. . . would frustrate the twin aims of the Erie Rule: discouraging
forum shopping and avoiding inequitable administration of the




                               13
laws.” 

. Such reasoning has no bearing on the
FTCA state law incorporation analysis for several reasons.

        Just because a state rule of civil procedure is outcome
determinative does not necessarily mean that it informs the
state law merits-based liability determination as required for
FTCA incorporation. As other Courts of Appeals have
recognized in similar cases, failing to apply a state certificate
of merit rule in an FTCA case “may mean that fewer
complaints are dismissed as ‘procedurally defective,’ but it will
do ‘nothing to change the scope of the Government’s liability’
because state law continues to supply the ‘rules of decision.’”
Pledger v. Lynch, 

, 522–23 (4th Cir. 2021) (quoting
Gallivan v. United States, 

 (6th Cir. 2019)).
Rule 1042.3 “neither modifies [the common law] standard of
liability nor elucidates the types of evidence required to
establish the standard, its breach, or causality. The [expert]
opinion required by [Rule 1042.3] does not ‘play any role in
the post-complaint adjudication of a medical malpractice
claim.’” Corley v. United States, 

 (2d Cir. 2021)
(quoting Shields v. United States, 

, 542 n.2
(D. Conn. 2020)). It is therefore not a rule of tort liability
incorporated by the FTCA, even if it may be “substantive” for
the purposes of Erie.

        Nor are the forum shopping, inequitable administration
of the laws, and federalism policy considerations driving Erie’s
substance-versus-procedure analysis applicable here because
FTCA cases are necessarily always brought in federal court.
See Pledger, 5 F.4th at 532–34 (“[T]he Erie factors identified
by the Supreme Court seem meaningless in the face of an
FTCA suit.”) (Quattlebaum, J., concurring in part and
dissenting in part). The Government recognized as much in its




                               14
briefing, as did the District Court when it observed that it was
“not intuitively obvious that the Pennsylvania rule should
apply in this federal statutory context” due to the lack of forum
shopping and federalism concerns. Wilson, 

, at *2 n.2. Our determination in Liggon-Redding that
Rule 1042.3 was “substantive” for the purposes of Erie —
grounded in diversity jurisdiction considerations inapplicable
to the FTCA context — thus does not undermine or conflict
with our conclusion here that the Rule is not one of liability
that must be incorporated as federal law for FTCA purposes.5

5
   Though Liggon-Redding is the focal point of the
Government’s case, and thus our analysis here, there are
similar cases in which this Court has applied certificate of merit
requirements in diversity jurisdiction cases. See Chamberlain
v. Giampapa, 

 (3d Cir. 2000); Schmigel, 

. We have similarly found a certificate of merit
requirement to apply in cases arising under 

(b) and its provision granting federal courts concurrent
jurisdiction over “all civil proceedings . . . related to
[bankruptcy] cases under title 11.” Nuveen Mun. Tr. ex rel.
Nuveen High Yield Mun. Bond Fund v. WithumSmith Brown,
P.C., 

 (3d Cir. 2012). The same rationale
articulated here distinguishing the FTCA context from
diversity cases like Liggon-Redding applies with equal force
to “related to” jurisdiction cases like Nuveen.              Most
fundamentally, diversity jurisdiction and “related to”
jurisdiction both require federal courts to adjudicate state law
claims that may be brought in state court; the considerations
underpinning the Erie doctrine therefore apply with equal force
in “related to” cases. FTCA cases, by contrast, can only be
heard in federal court and require the application of state law
only because Congress elected to adopt the state law rules of




                               15
       Because Rule 1042.3’s certificate of merit requirement
does not determine the manner and extent of liability under
Pennsylvania law and is thus not incorporated by the FTCA,
Wilson’s representations attendant to that provision — that he
would proceed without an expert and rely solely on a res ipsa
loquitur theory — should not have bound him on summary
judgment.

        We recognize that Wilson’s case had been pending for
several years at the time of the summary judgment grant, and
we commend the District Court for repeatedly going out of its
way to accommodate Wilson by allowing him numerous
extensions to obtain representation or otherwise build his case.
It is clear that the District Court thoughtfully and carefully
attempted to balance Wilson’s interests and circumstances with
the expedient disposition of justice. Wilson, it is true, neither
found an expert nor apparently attempted to conduct discovery
during these periods of accommodation. In a different case,
such an extended elapsed time period, combined with a
plaintiff’s ostensible inactivity and subsequent stated intent to
proceed without an expert, may have justified a grant of
summary judgment irrespective of Rule 1042.3’s applicability.
Here, however, Wilson was a prisoner proceeding pro se
during the COVID-19 pandemic, a period during which prisons
were on frequent lockdown. These factors inarguably
undermined his ability to seek out an expert. Such extenuating


decision. Moreover, Congress has chosen to supplant certain
aspects of state law rules of decision in FTCA cases. See
Supreme Beef, 468 F.3d at 252 n.4 (noting that Congress has
imposed “substantive limits on t[he] incorporation” of state
law in FTCA cases, including the “discretionary function and
intentional tort exceptions to the FTCA”).




                               16
circumstances, which Wilson articulated in his filings,
culminated in his decision made “under protest” to proceed
without an expert in order to stave off the Government’s Rule
1042.3-based motion to dismiss. JA 30. Wilson thereafter
continued to assert in his opposition to summary judgment that
he could later present expert testimony and that he should be
permitted to seek discovery. These factors and filings militate
against the conclusion that pre-discovery summary judgment
based on Wilson’s stated lack of expert testimony was
appropriate. The District Court therefore erred in granting pre-
discovery summary judgment.

                              IV.

      For the foregoing reasons, we will reverse the grant of
summary judgment and remand to the District Court for further
proceedings.




                              17