Harold Berk v. Rothman Institute Orthopedic Foundation

• Court: Court of Appeals for the Third Circuit
• Decided: April 23, 2025
• Docket: 24-2293
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________

No. 24-2293 _____________

HAROLD R. BERK, Appellant

v.

ROTHMAN INSTITUTE ORTHOPEDIC FOUNDATION; RECONSTRUCTIVE ORTHOPEDIC ASSOCIATES, II, LLC; ROTHMAN ORTHO PA HOLDCO I., P.C.; ROTHMAN ORTHO PA HOLDCO III, P.C.; ROTHMAN ORTHO PA HOLDCO IV, P.C.; ROTHMAN ORTHOPEDIC SPECIALTY HOSPITAL, L.P.; ROTHMAN ORTHOPEDIC SPECIALTY HOSPITAL, LLC; ALEXANDER R. VACCARO, MD; DAVID I. PEDOWITZ, MD; STEVEN M. RAIKIN, MD; ROTHMAN ORTHO PA HOLDCO II, P.C., _____________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2:23-cv-01437) District Judge: Honorable John F. Murphy _____________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) April 14, 2025 _____________

Before: CHAGARES, Chief Judge, SCIRICA and RENDELL, Circuit Judges

(Filed: April 23, 2025) _____________________

OPINION _____________________

CHAGARES, Chief Judge

Harold Berk alleges that his treating physicians and their employers, Rothman

Institute Orthopedic Foundation and its affiliated entities (collectively, “Rothman

Entities”), refused to provide him with an affidavit of merit attesting that Berk’s medical

malpractice claim against different healthcare providers was meritorious. Because

Delaware law, which governed Berk’s malpractice claim, requires plaintiffs bringing a

medical malpractice claim to file an affidavit of merit with the pleading, Berk’s

malpractice lawsuit was dismissed. Berk then sued the Rothman Entities for, inter alia,

intentional deprivation of legal recourse. Berk appeals the District Court’s dismissal of

his complaint and denial of his subsequent motion for reconsideration. Because the

District Court correctly held that Berk failed plausibly to state a claim to relief, we will

affirm.

I.1

Berk suffered a fall that resulted in a significant ankle injury. He alleges that he

received deficient care while hospitalized in Delaware that exacerbated his ankle injury

 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. 1 We write primarily for the parties and recite only the facts essential to our decision.

2 as well as pre-existing wounds on his legs. He subsequently obtained care from the

Rothman Entities.

The Rothman Entities refused to provide Berk with an affidavit of merit attesting

that, in their expert opinion, Berk’s malpractice claim against his initial providers was

meritorious. Berk unsuccessfully attempted to schedule an appointment with Dr. Steven

Raikin to request the affidavit. Staff initially explained that Dr. Raikin was on leave but

later informed Berk that Dr. Raikin had in fact retired for medical reasons. Berk then

scheduled a follow-up appointment with Dr. David Pedowitz. When Berk requested an

affidavit of merit at that appointment, Dr. Pedowitz stated that he did not have time to

discuss the request. Berk subsequently made multiple written requests to Dr. Pedowitz

and Dr. Alexander Vaccaro, the chief executive officer of the Rothman Entities, but Dr.

Vaccaro’s secretary informed Berk that the Rothman Entities were unable to provide the

letter. Berk also contacted Dr. Raikin on his personal cell phone. Dr. Raikin informed

Berk that, although Berk “had a good medical malpractice case,” Berk needed to make

his request to the Rothman Entities, whose policies prevented Dr. Raikin from providing

Berk an affidavit of merit.

Although Berk contacted multiple providers other than the Rothman Entities, he

was ultimately unable to obtain an affidavit of merit. Delaware law requires plaintiffs

bringing a medical malpractice claim to file an affidavit of merit with the pleading. See

Del. Code Ann. tit. 18, § 6853(a). So when Berk filed a malpractice claim in the United

States District Court for the District of Delaware against his initial providers but failed to

include an affidavit of merit, his complaint was dismissed. See Berk v. Choy, No. 22-

3 1506, 2023 WL 2770573, at *2 (D. Del. Apr. 4, 2023), aff’d, No. 23-1620, 2024 WL

3534482 (3d Cir. July 25, 2024), cert. granted, No. 24-440, 2025 WL 746311 (U.S. Mar.

10, 2025).2

Berk, who is a retired attorney proceeding pro se, then filed the instant lawsuit in

the United States District Court for the Eastern District of Pennsylvania against the

Rothman Entities for breaching their fiduciary duty, conspiring to restrain trade in

violation of the Sherman Act and Clayton Act, and intentionally depriving him of legal

recourse. After the Rothman Entities moved to dismiss pursuant to Federal Rule of Civil

Procedure 12(b)(6), the District Court dismissed with prejudice Berk’s amended

complaint because the amended complaint failed to state a claim and because it

determined further amendment would be futile. The District Court also denied Berk’s

motion for reconsideration of that decision. Berk timely appealed. On appeal, Berk

pursues only his intentional deprivation claim and abandons his other claims. See Berk

Br. 7.

II.3

We exercise plenary review over a district court’s decision to grant a Rule

12(b)(6) motion to dismiss. See Fleisher v. Standard Ins. Co., 679 F.3d 116, 120 (3d Cir.

2012). We accept all factual allegations as true and construe the complaint in the light

2 During the pendency of this appeal, Berk notified this Court that the Supreme Court had granted his petition for writ of certiorari in his earlier case. Neither Berk nor the Rothman Entities have requested that we stay this appeal and we see no reason to do so sua sponte. 3 The District Court had jurisdiction under 28 U.S.C. § 1332. We have jurisdiction under 28 U.S.C. § 1291.

4 most favorable to the plaintiff. Id. Although we generally afford pro se litigants special

solicitude in evaluating compliance with the federal rules, that solicitude does not extend

to current or former attorneys representing themselves. See Huffman v. Lindgren, 81

F.4th 1016, 1020–21 (9th Cir. 2023) (collecting cases and remarking that “[t]he circuits

that have reached the issue speak with one voice: they have uniformly declined to extend

the liberal pleading standard to pro se attorneys”).

III.

The District Court did not err in dismissing Berk’s claim for intentional

deprivation of legal recourse. Berk alleges that, in barring Dr. Raikin from issuing an

affidavit of merit, the Rothman Entities prevented him from succeeding on his medical

malpractice claims.4 Because Berk believes that “he would likely” have prevailed on his

malpractice claims if the Rothman Entities had permitted Dr. Raikin to provide him with

an affidavit of merit, he alleges that the Rothman Entities deprived him of the

compensation that he would have been awarded. Appendix 130–31. Based on these

allegations, Berk argues “that the Rothman Entities intentionally interfered with Berk’s

ability to contract with Dr. Raikin” for an affidavit of merit. Berk Br. 8.

To state a claim for intentional interference with a prospective or existing contract

under Pennsylvania law,5 a plaintiff must allege:

4 Although Berk’s complaint is broadly directed to the Rothman Entities’ general refusal to provide him with an affidavit of merit, he clarifies on appeal that he pursues this claim only with respect to Dr. Raikin’s refusal to provide him with the affidavit. See Berk Br. 8–9. 5 The parties agree that Pennsylvania law applies, as do we.

5 (1) the existence of a contractual, or prospective contractual relation between the complainant and a third party;

(2) purposeful action on the part of the defendant, specifically intended to harm the existing relation, or to prevent a prospective relation from occurring;

(3) the absence of privilege or justification on the part of the defendant; and

(4) the occasioning of actual legal damage as a result of the defendant’s conduct.

Pelagatti v. Cohen, 536 A.2d 1337, 1343 (Pa. Super. Ct. 1987); see also Salsberg v.

Mann, 310 A.3d 104, 110 (Pa. 2024). As relevant to this appeal, the District Court

dismissed the intentional interference claim on the ground that, because the Rothman

Entities were not obliged to provide an affidavit of merit, they could not have interfered

in any prospective or existing contract. While the existence of contractual freedom alone

is not a complete defense to a claim for intentional interference with a contract, we will

affirm because we agree with the District Court that Berk has not adequately stated his

claim. See Downey v. Pa. Dep’t of Corr., 968 F.3d 299, 309 (3d Cir. 2020) (“[W]e may

affirm the judgment on any grounds supported by the record . . . .”).

The amended complaint fails plausibly to establish that the Rothman Entities

“specifically intended” to cause Dr. Raikin to decline to provide the affidavit. Pelagatti,

536 A.2d at 1343. At most, Berk has alleged that the Rothman Entities enforced their

general policy against providing affidavits of merit to existing patients. See Berk Br. 17–

18 (arguing that the Rothman Entities’ rules prevent physicians from issuing affidavits of

merit to avoid jeopardizing referrals). That is not enough. See Ira G. Steffy & Son, Inc.

v. Citizens Bank of Pa., 7 A.3d 278, 289 (Pa. Super. Ct. 2010) (holding that the fact that a

6 defendant was “aware” that its actions “would interfere with potential” contracts did not

plausibly establish that it acted with the “specific purpose” of interfering with a particular

contract). The amended complaint contains no allegations that the defendants “not only

. . . intended the interference, but . . . acted in part at least for the purpose of

accomplishing it.” Glenn v. Point Park Coll., 272 A.2d 895, 899 (Pa. 1971) (citation

omitted).

IV.

The District Court’s decision to dismiss the amended complaint with prejudice

based on its determination that further amendment would be futile was not error. We

review a district court’s decision to deny leave to amend for abuse of discretion. See

Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). Leave to amend

must be granted unless amendment “would be inequitable or futile.” Id. “A District

Court has discretion to deny a plaintiff leave to amend where the plaintiff was put on

notice as to the deficiencies in his complaint, but chose not to resolve them.” United

States ex rel. Schumann v. Astrazeneca Pharmas. L.P., 769 F.3d 837, 849 (3d Cir. 2014)

(cleaned up).

The Rothman Entities placed Berk on notice of the defects in his intentional

interference claim in their first motion to dismiss, after which Berk amended his

complaint but failed to cure those defects. See Defs.’ Rule 12(b)(6) Mot. to Dismiss,

Dist. Ct. Dkt. No. 12, at 22–23. Thus, the District Court did not abuse its discretion in

determining that the deficiencies in Berk’s claim were unlikely to be remedied by another

amendment.

7 V.

Finally, the District Court did not err in denying Berk’s motion for

reconsideration. We review a district court’s decision to deny a motion for

reconsideration for abuse of discretion. See Long v. Atl. City Police Dep’t, 670 F.3d

436, 447 (3d Cir. 2012). Generally, reconsideration is warranted only upon “(1) an

intervening change in controlling law; (2) the availability of new evidence; or (3) the

need to correct clear error of law or prevent manifest injustice.” Lazaridis v. Wehmer,

591 F.3d 666, 669 (3d Cir. 2010). Because Berk’s motion for reconsideration merely

rehashed the arguments that he made in opposition to the motion to dismiss pursuant to

Rule 12(b)(6), which we hold was properly granted, the District Court did not abuse its

discretion in denying the motion for reconsideration.

VI.

For the foregoing reasons, we will affirm the judgment of the District Court.