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