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Sidebar - With or Without Prejudice? · Statutes & Stethoscopes | Trial Lessons for Medical Injury Lawyers

• 0:03
  SPEAKER_00: This is that.
• 0:06
  SPEAKER_00: I'm Tracy Libertori.
• 0:08
  SPEAKER_00: Every episode I take one place where medicine and the courtroom collide and break down what actually works.
• 0:14
  SPEAKER_00: You're a clinician who wants this work, or an attorney who needs an expert who can hold up.
• 0:19
  SPEAKER_00: You're in the right place.
• 0:20
  SPEAKER_00: Let's get into it.
• 0:26
  SPEAKER_00: Hello again, everyone.
• 0:27
  SPEAKER_00: In the last episode on AI and expert reports, I told you about a case where the court threw out the causation experts report, and then the whole case was dismissed with prejudice.
• 0:38
  SPEAKER_00: I said those words and kept right on going.
• 0:40
  SPEAKER_00: And then I realized that a lot of you probably have seen with prejudice or without prejudice in an order or in an attorney's email and wondered what the heck does that really mean?
• 0:50
  SPEAKER_00: So today we're going to slow it down a little and talk about it.
• 0:54
  SPEAKER_00: First, let's get one thing out of the way.
• 0:56
  SPEAKER_00: In this phrase, prejudice has nothing to do with bias.
• 1:01
  SPEAKER_00: It does not mean that the judge was prejudiced against anyone.
• 1:05
  SPEAKER_00: Here, it means the loss of a legal right.
• 1:08
  SPEAKER_00: So with prejudice means that the dismissal takes something away from the plaintiff for good.
• 1:15
  SPEAKER_00: Without prejudice means it doesn't.
• 1:18
  SPEAKER_00: So let's start with dismissed with prejudice.
• 1:21
  SPEAKER_00: That means the case is over and the plaintiff can't file the same claim again.
• 1:27
  SPEAKER_00: Not in that court, and usually not in any other court.
• 1:30
  SPEAKER_00: It's treated as a final decision.
• 1:33
  SPEAKER_00: Lawyers call the rule behind this rest judicata.
• 1:36
  SPEAKER_00: It means that the matter has already been decided.
• 1:39
  SPEAKER_00: The plaintiff's only real option is an appeal if there's anything new appeal.
• 1:45
  SPEAKER_00: Now, dismissed without prejudice.
• 1:48
  SPEAKER_00: That means the case is closed for now, but the door isn't locked.
• 1:53
  SPEAKER_00: The plaintiff can fix whatever went wrong and file again.
• 1:56
  SPEAKER_00: Maybe the case was filed in the wrong court.
• 1:59
  SPEAKER_00: Maybe a document was missing.
• 2:00
  SPEAKER_00: Maybe the attorney needs more time to find the right expert.
• 2:04
  SPEAKER_00: But here's the catch, and it's a big one.
• 2:06
  SPEAKER_00: Without prejudice does not stop the clock.
• 2:09
  SPEAKER_00: The statute of limitations keeps running.
• 2:13
  SPEAKER_00: In Pennsylvania, most medical malpractice and personal injury claims have to be filed within a two-year time frame.
• 2:21
  SPEAKER_00: So if a case gets dismissed without prejudice and the two years have already passed, refiling may not be possible anyway.
• 2:29
  SPEAKER_00: On paper, it's without prejudice.
• 2:31
  SPEAKER_00: In real life, the case may still be over.
• 2:35
  SPEAKER_00: Some states have what's called a savings statute that gets a plaintiff extra time to refile, but those rules vary a lot.
• 2:43
  SPEAKER_00: And that's a question for the attorney.
• 2:45
  SPEAKER_00: So, how does a case end up one way or the other?
• 2:48
  SPEAKER_00: Here are the most common ways.
• 2:50
  SPEAKER_00: Number one, the plaintiff drops the case voluntarily.
• 2:54
  SPEAKER_00: In federal court, under Rule 41, if the plaintiff dismisses early, it's usually without prejudice.
• 3:00
  SPEAKER_00: But if they're already dismissed the same claim once before, the second dismissal counts as a final decision.
• 3:07
  SPEAKER_00: Courts don't let people file and drop the same case over and over.
• 3:10
  SPEAKER_00: Number two, the court dismisses it for a reason that isn't about the merits.
• 3:15
  SPEAKER_00: Wrong court, no jurisdiction, wrong venue, a missing party.
• 3:19
  SPEAKER_00: Those are usually without prejudice because nobody has decided who was right.
• 3:24
  SPEAKER_00: Number three, the court dismisses it as a penalty or because the case can't be proven.
• 3:30
  SPEAKER_00: In federal court, when a judge dismisses a case for something like ignoring court orders, it counts as a decision on the merits unless the order says otherwise.
• 3:39
  SPEAKER_00: That's with prejudice.
• 3:41
  SPEAKER_00: Number four, the parties settle.
• 3:43
  SPEAKER_00: When a case settles, the attorneys almost always file a stipulation dismissing it with prejudice.
• 3:49
  SPEAKER_00: That's the whole point of a settlement.
• 3:51
  SPEAKER_00: The defendant is paying to make sure that the claim never comes back.
• 3:55
  SPEAKER_00: So if you see dismissed with prejudice on a case you worked on, don't panic.
• 4:00
  SPEAKER_00: It might mean it's settled.
• 4:02
  SPEAKER_00: Now, let's talk about why this matters to you as an expert, because you're closer to this than you might think.
• 4:08
  SPEAKER_00: In Pennsylvania, a medical malpractice case needs a certificate of merit.
• 4:14
  SPEAKER_00: The attorney has to certify, usually within 60 days of filing, that a qualified professional has reviewed the case and believes the care fell below the standard.
• 4:25
  SPEAKER_00: That's often based on your review.
• 4:27
  SPEAKER_00: If the certificate isn't filed, the defense can ask for something called a judgment of non-pros.
• 4:33
  SPEAKER_00: That's Latin for does not pursue.
• 4:36
  SPEAKER_00: It ends the case.
• 4:37
  SPEAKER_00: It isn't technically a ruling on who was right, and a court can sometimes reopen it, but it's hard to do.
• 4:44
  SPEAKER_00: And by then, the statute of limitations has often run out.
• 4:48
  SPEAKER_00: So your timely review can be the difference between a case that's alive and one that's gone.
• 4:53
  SPEAKER_00: And then there's trial.
• 4:54
  SPEAKER_00: In Pennsylvania, if a plaintiff rests and the evidence isn't enough, the judge can grant what's called a compulsory non-suit.
• 5:02
  SPEAKER_00: In a malpractice case, that often happens because the expert testimony didn't hold up.
• 5:07
  SPEAKER_00: The expert didn't state the opinion to a reasonable degree of medical or nursing certainty, or didn't connect the breach to the harm, or wasn't qualified to give the opinion in the first place.
• 5:18
  SPEAKER_00: That brings us back to the AI case from the last episode.
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  SPEAKER_00: The expert's report was excluded.
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  SPEAKER_00: Without the expert, there was no causation evidence.
• 5:29
  SPEAKER_00: Without causation evidence, there was no case.
• 5:32
  SPEAKER_00: And because that was a ruling on the merits, it was dismissed with prejudice.
• 5:38
  SPEAKER_00: Over for good.
• 5:39
  SPEAKER_00: That's the part I really want you to take away from today.
• 5:43
  SPEAKER_00: When an expert's opinion gets thrown out, the case doesn't just get weaker, sometimes it ends, and it can't be brought back.
• 5:52
  SPEAKER_00: The plaintiff loses their claim, the attorney loses the case, and the expert's name is in the opinion that explains why.
• 6:01
  SPEAKER_00: On the defense side, it works the other way.
• 6:03
  SPEAKER_00: A strong defense expert can be the reason a case gets dismissed for good, and that's a real win for the client.
• 6:11
  SPEAKER_00: So here's a quick cheat sheet.
• 6:14
  SPEAKER_00: With prejudice is final.
• 6:17
  SPEAKER_00: The claim can't be filed again.
• 6:19
  SPEAKER_00: Often a settlement, a ruling on the merits, or a penalty.
• 6:23
  SPEAKER_00: Without prejudice is not final.
• 6:25
  SPEAKER_00: The claim can be refiled, but only if the statute of limitations still allows it.
• 6:31
  SPEAKER_00: Non-pros, a Pennsylvania term for a case ended because the plaintiff didn't do what was required, like filing a certificate of merit.
• 6:39
  SPEAKER_00: Pretty hard to undo.
• 6:41
  SPEAKER_00: Compulsory non-suit.
• 6:42
  SPEAKER_00: The judge ends the case at trial because the plaintiff evidence wasn't enough, and very often that's the expert's evidence.
• 6:50
  SPEAKER_00: And if you're ever not sure what an order on your case means for you, ask your retaining attorney.
• 6:56
  SPEAKER_00: That's always the right move.
• 6:58
  SPEAKER_00: This is educational information, not legal advice.
• 7:01
  SPEAKER_00: Dismissal rules, filing deadlines, and certificate of merit requirements vary greatly by state and by court.
• 7:08
  SPEAKER_00: So check with the retaining attorney.
• 7:11
  SPEAKER_00: This episode of Statutes and Stephen Scott.
• 7:14
  SPEAKER_00: If it was useful, follow the show so the next one finds you.
• 7:17
  SPEAKER_00: And if you're a clinician who wants to do this work properly, start with the Expert Report Starter Kit at Nationalexpertacademy.com.
• 7:25
  SPEAKER_00: I'm Tracy Libratori.
• 7:27
  SPEAKER_00: I'll see you on the next episode.