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A legal malpractice plaintiff is not entitled to a continuance to seek an expert to testify despite learning shortly before a scheduled trial that his intended expert was ineligible, the Pennsylvania Superior Court has ruled.

A split three-judge panel issued a March 27 memorandum finding that Aldis Rutyna should have known that his medical expert had signed a consent judgment precluding him from testifying against the medical center involved in Rutyna’s underlying medical malpractice case. The trial court correctly dismissed the case with prejudice due to Rutyna’s inability to produce an expert witness, the appellate court determined in Rutyna v. Schweers.

Attorney William S. Schweers Jr. of Harrington, Schweers, Datillo & McClelland filed a medical malpractice complaint on Rutyna’s behalf against the University of Pittsburgh Medical Center in 2006 alleging negligence during back surgery. But Rutyna did not file a certificate of merit, leading to a judgment of non pros and the case being dismissed, Senior Judge Eugene Strassburger wrote for the 2-1 majority.

The following year, Rutyna and his wife filed a complaint against Schweers alleging breach of contract and vicarious liability for failure to file the certificate of merit. After a winding course of litigation that Judge Carl Solano described in his dissent as “convoluted,” a trial was set for June 2016, but the Rutynas requested a continuance just two weeks prior upon learning from Schweers about their expert’s inability to testify against UPMC.

Schweers filed a motion in limine seeking to preclude the expert, Dr. Mark Foster, from testifying because he was not qualified under the MCARE Act due to his failure to practice within the subspecialty at issue. Schweers also made an oral motion for nonsuit based on the Rutynas’ lack of a qualified medical expert. Both motions were granted, leading the Rutynas to appeal to the Superior Court.

On appeal, the Rutynas argued that Schweers waited too long to object to Foster’s qualifications, an argument Strassburger said was without merit because there is no requirement that an objection be made before voir dire.

“The trial court could not make a determination regarding Dr. Foster’s qualifications without conducting voir dire,” Strassburger said. “However, the trial court could not conduct voir dire under these circumstances because, as the Rutynas acknowledge, Dr. Foster would not testify.”

In reviewing Foster’s qualifications, Strassburger said that because he no longer practices as an orthopedic surgeon, he did not meet the standards set forth by the MCARE Act to testify as an expert against an orthopedic surgeon. Foster’s lack of qualifications factored into the court’s response to the Rutynas’ argument that their case should not have been dismissed because Foster’s inability to testify was caused by Schweers’ actions.

“Even if Dr. Foster were otherwise available, i.e., he had not signed an agreement not to testify, he would have been precluded anyway under MCARE,” Strassburger said.

He also rejected the Rutynas’ argument that they should have been given additional time to find a replacement expert, quoting the trial court’s ruling in the process.

“‘This case is over a decade old. … The only “surprise” that befell [the Rutynas] respecting the scheduled trial in this matter was that [Dr. Foster] had determined months in advance that he would not offer testimony against [UPMC],’” Strassburger said.

Finding no abuse of discretion by the trial court, he affirmed the order. In his dissent, Solano said the Rutynas should have been granted a continuance because there was no evidence they were negligent in not learning of Foster’s agreement sooner.

James R. Cooney of Pittsburgh represented the Rutynas. He said he thought it was “the type of case that cried out for a continuance, even though it’s been around for a while,” and noted his disappointment for his injured client.

Kenneth Schott III and James Schadel of Burns White in Pittsburgh represented Schweers. Schott did not return a call for comment.

Contact managing editor Zack Needles at zneedles@alm.com.