                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                _____________

                                      No. 16-4298
                                     _____________

                               RONALD JOSEPH BILINSKI,
                                                   Appellant

                                             v.

           WILLS EYE HOSPITAL; WILLS EYE INSTITUTE; WILLS EYE
  OPHTHALMOLOGY CLINIC INC.; JOSEPH P. BILSON; DR. JULIA A. HALER;
 YLA SECRETARY TO CEO JOE P. BILSON; LISA, Secretary to Dr. Julia A. Haller;
     MICHAEL ALLEN, General Legal Counsel & Chief Administrator; DONNA
    GAMBINO, Co-Ordinator of Surgery; MID ATLANTIC RETINA; CEO JOHN
   DUEMELL; ED WEBER, Director of Operations; WINKEL, SPECT; BARBARA
  BROWN, At Cherry Hill, New Jersey; SARAH RAPUANO; DR. DAVID C. REED;
 DR. SONJA MEHTA; DR. ROBERT S. BAILEY, JR.; DR. SAMUEL K. HOUSTON,
    III; DR. MICHAEL ATHONY DELLAVECCHIA; CITY OF PHILADELPHIA
  TRUSTEE; MID ATLANTIC RETINA PRACTICE; WILLS EYE FOUNDATION;
                RHONDA CERETELLE; RHONDA COLCLOUGH
                                _____________

                    On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                            District Court No. 2-16-cv-02728
                    District Judge: The Honorable Gerald J. Pappert

                                Argued December 11, 2018

          Before: SMITH, Chief Judge, McKEE, and FISHER, Circuit Judges

                                 (Filed: January 11, 2019 )

Sara Solow                                [ARGUED]
Hogan Lovells US
1735 Market Street
23rd Floor
Philadelphia, PA 19103
       Counsel for Appellant
Karyn Dobroskey Rienzi                 [ARGUED]
Donna Y. Kramer
Post & Schell
1600 John F. Kennedy Boulevard
Four Penn Center, 13th Floor
Philadelphia, PA 19103
      Counsel for Appellee Wills Eye Hospital

Roseann L. Brenner
Deborah M. Knight                 [ARGUED]
Goldfein & Joseph
1800 John F. Kennedy Boulevard
20th Floor
Philadelphia, PA 19103
       Counsel for Appellees Dr. Samuel K. Houston, III and
       other medical defendants

Carol M. Cowhey
Daniel P. Martz
Christie & Young
1880 John F. Kennedy Boulevard
10th Floor
Philadelphia, PA 19103
       Counsel for Dr. Michael A. DellaVecchia

Jonathan P. Rardin
Howard A. Rosenthal
Archer & Greiner
Three Logan Square
1717 Arch Street, Suite 3500
Philadelphia, PA 19103
      Counsel for City of Philadelphia Trustee

                                   _____________________

                                          OPINION*
                                   _____________________




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute
binding precedent.
                                                 2
SMITH, Chief Judge.

       Ronald Bilinski appealed the District Court’s dismissal of his pro se complaint

that asserted multiple federal and state law causes of action against Dr. Samuel Houston,

Wills Eye Hospital, and twenty-five other defendants.1          After we granted Bilinski’s

request for the appointment of counsel,2 pro bono counsel argued that the District Court

had erred by granting the defendants’ motion to dismiss Bilinski’s medical malpractice

claims for failure to file the Certificate of Merit (COM) required under Pennsylvania

Rule of Civil Procedure 1042.3(a).3 We agree.

                                              I.




1
 Among the numerous other defendants are several persons and entities associated with
Wills Eye Hospital. For simplicity, we refer to them collectively as Wills Eye Hospital.
Bilinski also sued Dr. Houston, Retinovitreous Associates, Ltd., and several other persons
associated with that entity. We refer to those defendants collectively as Dr. Houston.
2
 The Court extends its thanks to Attorney Sara Solow for representing Bilinski pro bono
during this appellate proceeding.
3
  Rule 1042.3 requires plaintiffs alleging “that a licensed professional deviated from an
acceptable professional standard” to file a COM. Pa. R. Civ. P. 1042.3(a). Relevant to
this appeal, subsections (a)(1) and (a)(3) of the Rule provide that the COM consists of a
written statement either by (1) an appropriate licensed professional “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”
sustained by the plaintiff, or (3) counsel or the party indicating that “expert testimony . . .
is unnecessary for prosecution of the claim.” Pa. R. Civ. P. 1042.3(a)(1), (a)(3). In
Liggon-Redding v. Estate of Sugarman, we held that this state rule is “substantive law
under the Erie Rule and must be applied as such by federal courts.” 659 F.3d 258, 265
(3d Cir. 2011).

                                              3
       According to Ronald Bilinski’s pro se amended complaint, he has had some visual

impairment in his left eye since 1965, but 20-20 vision in his right eye. A45-46. On

December 15, 2013, Bilinski went to Wills Eye Hospital’s emergency room because

“snow + ice [were] hitting [his] good right eye.” A46. The following day, he had an

operation and “Dr. Reed restored [his] vision [in the right eye] back to 20-20.” Id.

       During a follow-up evaluation for new glasses on June 16, 2014, Dr. Samuel

Houston “looked in [Bilinski’s] right eye”, then left “screaming [‘]Oh, Oh, Oh, Oh[’]

repeatedly,” causing Bilinski to go “into shock.” A80-82. Dr. Houston “made [Bilinski]

follow him,” and then “lasered [Bilinski’s] right eye [and] ruined it,” leaving Bilinski

blind in that eye. A82, 47. Bilinski alleges that Dr. Houston, without Bilinski’s consent,

performed an unnecessary operation and “hurt” him. A82.

       Thereafter, Bilinski initiated this civil action against Dr. Houston, Wills Eye

Hospital and numerous other defendants. Bilinski alleged multiple federal and state

causes of action, including that the defendants were liable for negligence and had

operated without obtaining Bilinski’s informed consent (collectively referred to as the

medical malpractice claims).4 Under Rule 1042.3(a), a COM must be filed either with a


4
  Although Bilinski appealed the dismissal of all of his claims against all of the
defendants, his pro bono counsel acknowledged that this appeal does not require review
of any claims other than the professional negligence and lack of informed consent claims.
Appellant’s Reply Br. at 1 n.1. Furthermore, counsel does not take issue with the
dismissal of any claims against defendants Dr. Michael A. DellaVecchia and the City of
Philadelphia, Trustee under the Will of James Wills, Deceased, Acting by the Board of
Directors of City Trusts (Board of Directors). Id. Accordingly, we will affirm the
District Court’s orders dismissing Bilinski’s non-medical malpractice claims against all
of the defendants and the dismissal of the medical malpractice claims against Dr.
DellaVecchia and the Board of Directors.
                                             4
complaint alleging medical malpractice or within sixty days after such a complaint is

filed. When this sixty day period expired and Bilinski had failed to file a COM, some of

the defendants filed a “Notice of Intention to Enter Judgment of Non Pros” on the

medical malpractice claims. See Pa. R. Civ. P. 1042.6. In response, Bilinski filed a brief

and a COM which indicated, as permitted under Rule 1042.3(a)(3), that “expert

testimony of an appropriate licensed professional is unnecessary for prosecution of the

claim against Defendants.” A300; see Pa. R. Civ. P. 1042.3(a)(3). The defendants then

filed motions to dismiss all of Bilinski’s claims. As to his medical malpractice claims,

the defendants asserted that Bilinski’s COM under Rule 1042.3(a)(3) was inadequate

because he would need expert testimony to establish that the medical professionals had

deviated from the acceptable standard of care.

      The District Court thoughtfully addressed all of Bilinski’s claims, explaining why

dismissal was warranted.     In addressing Bilinski’s medical malpractice claims, the

District Court noted that Pennsylvania law generally requires expert testimony in medical

malpractice actions, unless the “matter is so simple or the lack of skill or care is so

obvious as to be within the range of experience and comprehension of even non-

professional persons.” A9 (omitting citation and internal quotation marks). Given the

nature of Bilinski’s ophthalmologic claims, the District Court determined that Bilinski

would need to present expert testimony to establish the elements of the negligence action.

The Court also concluded that a COM was required if Bilinski were to prevail on his

claim that the defendants operated without his informed consent. A10. Because of

Bilinski’s pro se status and a belief that Bilinski might have been confused by the Rule’s
                                            5
requirements, the District Court gave Bilinski another thirty days to file the statement of a

licensed professional as contemplated by Rule 1042.3(a)(1). A10.

       Bilinski refused. In response to the Court’s memorandum, Bilinski stated that

“you are not even getting a COMerit, I am sticking to my guns, and I checked [the] block

I checked, cause of a simple comon [sic] sense law.” Bilinski v. Wills Eye Hosp., No.

2:16-cv-02728, ECF No. 116 at 10 (E.D. Pa. Nov. 30, 2016). Because Bilinski elected at

this stage in the litigation to proceed without expert testimony, he was bound by his

certification and would be precluded, absent exceptional circumstances, from presenting

expert testimony at summary judgment or trial. Pa. R. Civ. P. 1042.3(a)(3), Note.

       Thereafter, Dr. Houston filed a second motion to dismiss, which Wills Eye

Hospital joined. Dr. Houston urged dismissal based upon Bilinski’s failure to file a COM

and a written statement by a licensed professional within thirty days as ordered by the

District Court. The District Court granted the motion to dismiss. This timely appeal

followed.5

                                             II.

       Bilinski contends that the District Court failed to comply with the directives of

Liggon-Redding v. Estate of Sugarman, 659 F.3d 258, 265 (3d Cir. 2011). There, we

concluded that the District Court had erred by dismissing a pro se plaintiff’s professional



5
  The District Court had jurisdiction under 28 U.S.C. §§ 1331, 1332, and 1367. We
exercise final order jurisdiction under 28 U.S.C. § 1291. Because the issue of whether
the District Court erred in granting the motion to dismiss for failure to file a Rule
1042.3(a)(1) COM presents a question of law, our review is plenary. Schmigel v. Uchal,
800 F.3d 113, 116 n.4 (3d Cir. 2015).
                                             6
liability claim because she had submitted, as permitted by Rule 1042.3(a)(3), a COM that

indicated that expert testimony was not required to prove her case. We declared:

       There is no basis in Pennsylvania law that would permit a district court to
       reject a filing under Rule 1042.3(a)(3) in favor of one filed under Rule
       1042.3(a)(1). Pennsylvania law expressly allows a plaintiff to proceed on
       the basis of a certification that expert testimony will not be required to
       prove her claim. Of course, the consequence of such a filing is a
       prohibition against offering expert testimony later in the litigation, absent
       “exceptional circumstances.” . . . A filing under this rule allows the case to
       proceed to discovery, leaving the consequence of Liggon-Redding’s
       decision to be dealt with at a later stage of the litigation, such as summary
       judgment or trial. This is the course of action the District Court should
       follow on remand.

659 F.3d at 265. (citation omitted).

       Like the District Court in Liggon-Redding, the District Court erred by granting the

defendants’ motion to dismiss on the basis that Bilinski’s COM filed under Rule

1042.3(a)(3) was inadequate. Id. A COM under Rule 1042.3(a)(3) that indicates the

plaintiff will not adduce expert testimony may be an appropriate basis for summary

judgment, but it does not provide a ground for granting a Rule 12(b)(6) dismissal. Id.

       Dr. Houston and Wills Eye Hospital assert that we should affirm the District

Court’s dismissal on an alternative ground.       They contend that the District Court

essentially converted the Rule 12(b)(6) motion to dismiss into a Rule 56 motion for

summary judgment. See Fed. R. Civ. P. 12(d). Because a lack of necessary expert

testimony is an appropriate basis for granting summary judgment, Dr. Houston and Wills

Eye Hospital submit that we should affirm the District Court’s dismissal.

       The District Court did not issue a summary judgment ruling. Dr. Houston and

Wills Eye Hospital moved for dismissal and, in ruling on that motion, the District Court
                                             7
did not provide Bilinski notice of any intention to convert the motion to one for summary

judgment as required by Rule 12(d). See Rose v. Bartle, 871 F.2d 331, 340 (3d Cir.

1989). Moreover, Liggon-Redding made clear that a Rule 1042.3(a)(3) COM may serve

as the basis for summary judgment. 659 F.3d at 265. We reiterated this point in

Schmigel v. Uchal, 800 F.3d 113, 122 (3d Cir. 2015), instructing that “the COM

requirement and its conditions are facts that can form the basis for a motion for summary

judgment.” We also noted that a “motion for summary judgment can be filed whenever

appropriate.” Id. Despite the clarity of our case law, Dr. Houston and Wills Eye Hospital

ask us to relieve them from the consequences of their decision to file a motion to dismiss.

We decline their invitation. Instead, we will reverse the District Court’s dismissal of

Bilinski’s medical malpractice claims and remand for further proceedings.

                                             III.

       Finally, we note that pro bono counsel asserts that Bilinski’s pro se complaint,

which must be construed liberally, adequately alleges claims for gross negligence and

battery. See Fantone v. Latini, 780 F.3d 184, 193 (3d Cir. 2015) (acknowledging that a

pro se plaintiff’s pleading must be liberally read) (citing Haines v. Kerner, 404 U.S. 519,

520-21 (1972)). These claims, counsel contends, do not require expert discovery and

should be allowed to proceed to discovery. Because we are remanding this matter for

further proceedings, we will leave the issue of whether the complaint adequately alleges

claims of gross negligence and battery to the District Court to resolve in the first instance.

                                             IV.


                                              8
      We appreciate the District Court’s attempt to assist Bilinski in prosecuting his

claim by examining whether expert testimony was required under Pennsylvania law and

affording him additional time. Nonetheless, it was error to conclude that Bilinski’s COM

under Rule 1042.3(a)(3) provided a basis for granting the defendants’ Rule 12(b)(6)

motion to dismiss. We will reverse the District Court’s order dismissing Bilinski’s

medical malpractice claims against Dr. Houston and Wills Eye Hospital. We will affirm

the District Court’s orders dismissing all of Bilinski’s other non-medical malpractice

claims against all of the defendants. We will also affirm the District Court’s order

dismissing the medical malpractice claims against Dr. DellaVecchia and the Board of

Directors.




                                           9
