Expert Opinion Pleading: Any Merit to Special Certificates of Merit?
Parness, Jeffrey A.
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Civil litigation reform to reduce frivolous civil lawsuits was a hot topic in the most recent Presidential debates. It has stirred much recent interest and action in state and federal legislatures. Some new developments involve special pleading norms. Lawmakers will likely debate and implement new special pleading requirements in coming years, often involving certificates of merit. Such certificates are now required for most or some professional malpractice claims in several states. Illinois adopted a certificate of merit standard for product liability actions, while certificates of merit for certain childhood sexual abuse claims are necessary in both California and Louisiana. As debate continues over the need for and benefits of such special pleading requirements, lawmakers should ensure that empirical evidence supports any new legislation. In implementing new certificates of merit, careful attention must be directed to constitutional issues, as well as to policy questions involving the breadth of coverage, the nature of any needed expert opinion, the opportunity for pre-filing discovery, and the possible sanctions upon noncompliance. Upon reviewing various approaches to the use of special certificates of merit to reduce frivolous lawsuits, certain provisions for any future legislation are recommended to address the problems raised by current statutes. To address ambiguities in the breadth of coverage, certificate of merit requirements should be limited to claims where expert testimony is necessary to establish a prima facie case. Expert opinions should be required only after the initial pleadings have been completed, after there has been some opportunity for discovery, and only when the court deems them necessary. Expert opinions filed only for the purpose of certifying the merits of the civil action should not normally be admissible unless the experts are expected to testify at trial. Most would agree with President Clinton who said in the 1996 Presidential debates that frivolous civil lawsuits should be reduced as long as deserving claimants are also not denied recovery. Easier said than done.