first for reasons in our supplemental letter bre the certificate of merit rule in pennsylvania is a procedural rule and should not apply in federal court however because of him because his position that misleading reading the a palin in this case satisfied satisfy the that an expert is needed in this case yes and so that decision was counted from what she filed in your certificate for marriage was any correct in dismissing the case because she did not state that she an expert is going to be presented no judgement as underpants being used to begin to merit will the district court did not have any authority to to make that determination at this early stage looking at the language of ten forty two point eight  three the requirement for the plaintiff in this case is only to state blanket leave that she does not need an expert and that and caption that filing as a certificate of marriage this is some point of this you're going to have the right to say you know this is a mal practise case and you need somebody here to state that there's a reasonable probability that there was negligence that is a licensed skilled professional should present that information to injury and that apparently is with dr sanchez determined doesn't he have the right to make that notice under pennsylvania certificate a mare rules as to why her claim is being dismissed when it's being dismissed for failure to prosecute nothing in the rule indicates the plaintiff needs to say why she needs an expert to prove her claim at this early stage however at the six motion for a dismissal of failures in a claim the defense is going to be arguing in that motion that you cannot prove your claim because you're going to need an expert therefore that is giving a plaintiff notice that that is why her negligence per se on his part not done that and go through the summary judgment how do you get around liability without damages you have to have a that in the majority of cases that that may be true judge nygaard however looking at pennsylvania's rules and how they should apply to all pieces he says being dismissed for a judgment of nonprofits are not giving the requisite noticed statement you said that ten forty two three and you said this in your submittal was procedural and not substantive correct and then you said but that doesn't matter because our client complied with the rule and now you're somewhat setting up the rule which you claim is not substantive as the only way in which a federal court can proceed in evaluating a claim how does that happen when you're really claiming that ten forty two three is a procedural rule with federal courts do not have to apply because in diversity cases they apply state substantive law and federal procedure well i'm assuming that this case is going to look at our supplemental letter see that the weight of authority may be against us however that the certificate america will so you're arguing in the alternative yes they are and if we in fact were to agree with you and say that this is a procedural rule we would be differences but in essence they're the same thing or in thinking you have to file a certificate asserting that you were going to present an expert to testify as to professional negligence is that the purpose of both of these certificates of merit yes it is however that the method of dismissal of looking at all all portions of the rule as a whole for erie doctrine purposes the the method of dismissal is the more we need a penalty in pennsylvania than it is under new jersey stat you're suggesting that because the method of this missile is different between new jersey and pennsylvania one should be substantive and one is procedural but it created a different conflict and the one that was acknowledged by this court in chamberlain it creates a conflict with f substantive rule but at the same time applying federal precedent in legal malpractise cases such as this one and there is precedent valentino case and others have said that except in that rear case you need to have an expert what's wrong with a court blending together federal law and state law that the court certainly can hire all federal law and state law however they must look at the pennsylvania supreme court's intent in draft doing this procedural court can't preclude the federal district court from making a determination an expert is needed and dismissing a case such as this one you know your honor i'm simply stating that looking at the intent of the rule district courts are making improper determinations on the merits of the case too early evidence of the stage ok looking at the pennsylvania certificate of mer rule the language itself only requires a plaintiff to state that an act she believes an expert is not needed to produce to prove her claim and that each of the appellant's filings in this case all the extra language in addition to the language that met the minimum requirements of the certificate of marriage all the extra languages is pleading with the court not understanding why she's not complying with the certificate of mary quorum an appendix page fifty four as a she states the plaintiff does not know how to comply with rule ten forty two is stating that expert testimony and goes on to quote the rule she's asking the court i don't know why my previous two filings do not comply with this court's order and the pennsylvania rules on force of civil procedure to the marriage filing just as i got her earlier asked you about the medical malpractise case that is the undermining case in this legal malpractise so i thought he was asking about the need for two different certificates of merit how were you going to prove the practice within the mount practice in other words how are you going to prove the medical malpractise in order to get to the legal as well in in this case as we are representing we're not representing the opponent we are we are amicus it may be a difficult burden for her to prove that if this court were to remand just want to get the first place i guess  stage there's very little limited pleading available to tell whether that determination was was correct however in the majority or in other cases there may be the instance where that may not be the appropriate determination brief for you to determine how it should be applied in federal court and that would provide guidance to the pencil works but if it's substantive don't we have to try to predict what the fence of a supreme court's position on this particular provision will be rulings well that would give give the appellant in this case the opportunity to brief that issue and explain why her pleadings are sufficient to see that my time may briefly besides the that would give the litigant in this case the opportunity to respond to that expert she can never come back and present an expert she stuck she cannot use an expert so what the court has back and says you do need she has a big problem which yes she will have to try to explain her pleadings and construe them in a way that would grant her some really have a now practiced claim it does not require an expert claim thank you very much actually several times and i believe she might have also stated that the conference before the district court wasn't isn't that substantive compliance with the requirements of pennsylvania certificate and i believe not in this case your honor because she also went on to explain the reason she didn't need the certificate need the  expert was because of a state court opinion allegedly sanctioning attorney sugarman and because of the late i guess of the other litigation but well mr she has to state a reason at this point no she doesn't but since you brought it up why this she really needed an expert i mean sugarman lost her case botched the case because she didn't present an expert witness when he was required to  was the judge's decision so if the judge says you were born you're sure goma mr requirement by not presenting an expert witness i'm going to dismiss your case does she need an expert to prove that before and his failure to present an expert in the underlying medical malpractise case she needs an expert to show them because when you look at sugar mints answer this is a jury really need an expert to see that her lawyer of heard when there's some skill that's required something that the jury would not would not really capture understand and then the expert helps explain the standard but you don't really need that in this case do you don't need an expert for the jury to understand that something went awfully wrong and it was a result that the lawyers and professional conduct look at is the quality of the representation and his is his compliance with professional standards the standard his profession when you look at this let me ask you this supposing it wasn't that that were not the case but rather that the warrior missed a statute of limitation resulting in the loss of a case do you need an expert to prove that it was the lawyers failure to file a complaint on time if you needed an expert to prove that that was negligent there have been cases that say that as well as if an expert past present a witness i have an examples of several examples here a case in this court the other may be a good reason why the appeal is not filed not to mention getting paid but that's a whole different scenario isn't but no that's exactly the same point they made the reason why the expert was not was not able to be a secur this thing not being dumped just going on to the summary judgment stage where some discovery might take place and where defenses might be presented and explanations given the state of coming under coming under forty one i think not i don't think this fits into the emptiness scenario and i think that the case is a pretty much been uniform that really any deviation from the quality of professional representation of the standard of care requires a medical expert be a case if a plaintiff slipped and fell on the attorney's property which would have nothing to do with his professional the quality professional services it would be something totally different and it would be at ten forty three case of somebody  know the question what do you say the basis of the district court's opinion was that it didn't rule that ten forty two three required  court to make a determination whether a certification of expert was needed was proper is that what it is it's the the court said that in expert was necessary in this case in this case the court said that she felt her back a previous order to from the circuit that say if a plaintiff there's an absolute willful refusal to proceed and in this case the willful refusal to provide that certificate of merit from a licensed professional that the court can we want under thirty or forty one b without making the false determination and also when there's a disobedience of a quarter which are also wasn't this case because by order of march twenty seventh he said you need a certificate of mer and prior to that order the court issued a previous order and in that order describing additional information as to why she didn't need it she didn't say she didn't she does not explain why she doesn't need a lot i'm sorry she's not in compliance with turn forty two because she added additional information because i gave is they gave an insight at least work as to why she was checking that off she said she didn't yet because she was relying upon a an opinion from the links course and out it i don't understand why did she not comply with return forty two all it requires is there and i will be using an expert or i will not one is not necessary she said one is not necessary well the budget put it this way if even if she was compliant with that rule she still needed it didn't it didn't foreclose an inquiry into the apathy of her of her certification that's fine but that comes subsequent doesn't it i mean the point she said i explained is not necessary here is the certificate that's all the ten forty two requires but it doesn't require that to is confused about the rule or doesn't comply necessarily exactly with a rule is not just so an excuse and does not necessarily indicates essential compliance so that's my guess as my sponsor that i want to go back to my question about what the district court determined this year i think you said well it wasn't just a determination that they could look behind the non expert certification under ten forty two three was disposition was this a case where they said well under federal law and legal malpractise case except a very ordinary one you need an expert because at the basis of federal courts i can't recall if your sources  when you when you look at this you look at the face the complaint and in this case there's been so many filings where that the allegations have been discussed for summary judgment motion her response is the defense response is that these issues have been brought up by ms looking right in federal court and the court said no you can't do that then he says a case where there had been some discussion of the marriage that she had brought up the merits and the court to continually given her extensions and said you need a certificate of marriage you need or here's another extension here's another to either dismiss the case for failure to present the certificate of marriage or to let the case go forward or is the judge or theorize to make an assessment of whether an expert is needed or not i think judge is authorized to make the court included a three filings for a reason there are going to be a subset of cases that will be able to proceed beyond a certificate of merit stage it's not our position that in this case an expert was or was not needed it's more about  the procedural rule should be applied or how pennsylvania is to be tomorrow should be applied and fetch the sure you mention that you believe that the supreme court or the pennsylvania courts would find this these certificates to be in substantial compliance and if that were the case a judgment of nonprofit or a judgment district court additionally there is no authorization for the district court to make this determination at such an early stage you mention the no to a three that indicates that it will be held to a three filing it will not be allowed to present expert testimony further in the case additionally that the method of dismissing cases for seafood of merit that was contemplated by the supreme court a judgment of process as i mentioned is for delay in activity and that simply wasn't the case here and that's not a now under forty one b for the failure to prosecute it's a similar mechanism of looking at the way in an activity you must have that lane an activity before you can delve into the merits and determine the the poo