In a recent decision, the Pennsylvania Superior Court reversed a defense verdict and remanded for a new trial after holding that the trial court erred by allowing settled defendants to remain in a medical negligence action despite the absence of any evidence that they could be held liable at trial. The Court concluded that, where no prima facie case exists against settling defendants and plaintiff negligence is not at issue, there is no basis for apportionment under the Fair Share Act pursuant to Spencer v. Johnson. As a result, the continued presence of those defendants before the jury constituted reversible prejudice.
In Miste Swank, as Executrix of the Estate of Thomas Swank v. Rabkin Dermatopathology Laboratory, P.C., et al., No. 342 WDA 2025, the plaintiff asserted claims for medical negligence, wrongful death, and survival arising from the delayed diagnosis of squamous cell carcinoma on the decedent’s hand. What began as a non-healing lesion progressed over several years, ultimately metastasizing and resulting in multiple amputations before the decedent’s death at age fifty-one.
The action involved numerous medical providers, including dermatology practices and dermatopathologists. Prior to trial, the plaintiff reached settlements with several defendants, including Forefront Dermatology and Rabkin Dermatopathology, and executed a joint tortfeasor release pursuant to the Uniform Contribution Among Tortfeasors Act (42 Pa. C.S.A. §§ 8321-8327). This Release provided that, if Dr. Sangueza and Cutaneous Pathology (the “Non-Settling Defendants”) were found to be joint tortfeasors with any of the Settling Defendants, any damages for which the Non-Settling Defendants were liable would be reduced in proportion to the fault attributed to the settling defendants. Following those settlements, the case proceeded to trial against the remaining defendants.
Critically, long before trial, the plaintiff made clear that she would not present any expert testimony establishing that the settling defendants breached the applicable standard of care. Following execution of the Release, the settling defendants amended their pleadings to assert the Release as an affirmative defense and sought dismissal from the action. The pleadings reflected that the plaintiff no longer intended to pursue any theory of liability against the settling defendants and would present no expert opinions criticizing their care or treatment.
The procedural posture was further clarified when the Non-Settling Defendants moved for leave to amend their pleadings to assert cross-claims against the settling defendants. In that motion, the Non-Settling Defendants conceded that they had been relying on the plaintiff’s experts to establish any deviation from the standard of care by the settling defendants. Still, they anticipated that those experts would no longer testify as a result of the settlement. The trial court denied the motion, leaving no party in possession of expert testimony necessary to establish breach or causation as to the settling defendants. At that point, no party identified expert opinions supporting liability against the settling defendants, and the Non-Settling Defendants expressly acknowledged that they likewise lacked expert testimony sufficient to establish a prima facie case of medical negligence against them.
Despite this record, the trial court declined to dismiss the settling defendants prior to trial. The court expressed concern that dismissal would prevent allocation of fault and relied on its interpretation of the Fair Share Act. As a result, the settling defendants remained in the case through jury selection and a substantial portion of trial before ultimately being dismissed by compulsory nonsuit. The jury thereafter returned a verdict in favor of the remaining defendants.
On appeal, the Superior Court rejected the trial court’s approach. The Court explained that, under Spencer v. Johnson, 249 A.3d 529, 557 (Pa. Super. 2021), the Fair Share Act applies only where the plaintiff’s own negligence is at issue. Where plaintiff negligence is not alleged, there is no statutory basis for apportioning fault under the Fair Share Act. Because plaintiff negligence played no role in Swank, the trial court erred in relying on the Fair Share Act to justify keeping the settling defendants in the case.
The Court further explained that the Uniform Contribution Among Tortfeasors Act did not require a different result. While the statute permits a reduction of damages if a settling party is found to be a joint tortfeasor, Pennsylvania law is clear that a settling defendant may only be placed on a verdict sheet if a prima facie case of liability exists. See Swank, 2025 WL 4062691, at 7 (quoting Hyrcza v. West Penn Allegheny Health System, 978 A.2d 961, 969 (Pa. Super. Ct. 2009)). Under Pennsylvania law, expert testimony was required to establish breach and causation, and without it, liability against the settling defendants could not be proven as a matter of law. See Swank, 2025 WL 4062691, at 9 (quoting Mazzie v. Lehigh Valley Hospital—Muhlenberg, 257 A.3d 80, 87 (Pa. Super. Ct. 2021)). Absent expert testimony establishing breach of the standard of care and causation, the Court concluded that the settling defendants should have been dismissed before trial commenced.
The Superior Court also concluded that the error was not harmless. Allowing the settling defendants to remain in the case through trial created juror confusion and unfairly prejudiced the plaintiff. The jury was exposed to defendants who should never have been part of the liability determination, observed their counsel participate in the proceedings, and was left to speculate as to why those defendants later disappeared from the case without explanation. At the same time, the remaining defendants were permitted to suggest negligence on the part of entities that could not legally be found liable.
The Swank decision reinforces that the dismissal of settling defendants is not a discretionary procedural matter when liability cannot be established. Under Pennsylvania law, defendants who cannot be held liable at trial may not remain in the case merely to preserve a theoretical apportionment argument. Where a plaintiff’s negligence is not at issue, and no prima facie case exists against settling defendants, apportionment under the Fair Share Act is improper, and retaining those defendants before the jury risks reversible error.
The Swank decision can be found here.
For additional questions, please contact Conrad James Benedetto, Esq. and/or Patrick Henry, Esq.
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