PITTSBURGH - The Superior Court of Pennsylvania has upheld a lower court’s decision to dismiss a legal malpractice lawsuit against William S. Schweers Jr.

Aldis and Mary Jane Rutyna claimed Schweers failed to help them obtain an expert opinion, which allegedly doomed their medical malpractice case, claiming the medical witness secured was not qualified as an expert.

On May 18, 2006, Schweers filed a medical malpractice complaint on behalf of the Rutynas, naming as defendants Dr. William P. Donaldson III and the University of Pittsburgh Medical Center Presbyterian (UPMC).

According to court records, the complaint alleged Aldis Rutyna was injured as a result of negligence during back surgery. After the Rutynas, through Schweers, did not file a certificate of merit, a judgment of non pros was entered, and the Rutynas’ medical malpractice case was dismissed.

On Dec. 5, 2007, the Rutynas filed a complaint against Schweers and his law firm, Harrington Schweers Datillo & McClelland PC.

Following preliminary objections, the Rutynas were allowed to proceed on legal malpractice and breach of contract claims against Schweers and a vicarious liability claim against the firm.

According to documents, the couple alleged Schweers’ performance fell below the standard of care for failing to file the required certificate of merit, resulting in the entry of a non pros judgment against the Rutynas.

  

On Sept. 12, 2012, Schweers and the law firm filed a motion for summary judgment claiming they were entitled to judgment because the Rutynas would not be able to find an expert witness to support the medical malpractice claim for their underlying case.

In response, the Rutynas attached an expert report prepared by Dr. Mark Foster from 2008 that noted Dr. Donaldson deviated from the standard of care during and following Rutyna’s back surgery.

After the trial court heard oral arguments on the motion, Schweers and his law firm requested summary judgment in their favor because the Rutynas had not produced an expert report regarding the legal malpractice allegation.

In response, the trial court issued an order requiring the Rutynas to submit an expert report within 45 days. They failed to do so, and the trial court granted summary judgment to Schweers.

Claiming they never received a copy of the trial court’s order for an expert report on the legal malpractice claim, the Rutynas appealed to the Superior Court of Pennsylvania.

  

On appeal, that court vacated the trial court’s order granting summary judgment because the docket did not show that the Rutynas received a copy of the trial court’s order.

Following that ruling, the Rutynas filed an expert report from attorney Dennis Blackwell for their legal malpractice claim.

On April 27, 2014, Schweers and the law firm again filed a motion for summary judgment, claiming Blackwell’s report did not satisfy the burden of proof required of the Rutynas.

Once again, the trial court granted summary judgment and the Superior Court overturned that ruling, holding that "when an attorney contacts only one potential expert to support a certificate of merit and then receives a negative response, the attorney breached the standard of care he owes to his client.”

In May 2016, the Rutynas had to secure a new expert witness after it was discovered that Dr. Foster “had signed a consent judgment in another case in which he agreed not to testify against UPMC or any of its physicians in any pending or future cases.”

The trial court ruled Dr. Foster did not possess adequate qualifications to testify as an expert because he had not practiced in the specific field in question within 10 years.

Because the Rutynas did not have a qualified expert available to testify, the trial court granted the motion in limine. No continuance was granted.

In their defense, the Rutynas pointed to their allegations of misconduct of Schweers’ counsel. However, the court explained that Dr. Foster was unable to testify, and that information was available to counsel before May 16, 2016.

Because the Rutynas had not made a convincing argument that the trial court erred in any regard, the court, by a 2-1 vote, affirmed the order of the trial court.

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