Williams et al v. United States, No. 2:2009cv02618 - Document 30 (W.D. Tenn. 2010)
Court Description: ORDER denying 21 Motion to Strike; granting 20 Motion for Judgment on the Pleadings. Signed by Judge Samuel H. Mays, Jr., on 11/16/2010. (Mays, Samuel)
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Williams et al v. United States Doc. 30 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION BENNIE COY WILLIAMS and CARRIE ) ) WILLIAMS, ) Plaintiffs, ) ) v. ) ) UNITED STATES OF AMERICA, ) ) Defendant. ) ) No. 09-2618 ORDER DENYING PLAINTIFFS’ MOTION TO STRIKE AND GRANTING DEFENDANT’S MOTION FOR JUDGMENT ON THE PLEADINGS Before the Court in this action for medical malpractice are Defendant’s Second Motion for Judgment on the Pleadings, filed May 12, 2010 and Plaintiffs’ Motion to Strike Defendant’s Second Motion for Judgment on the Pleadings filed May 19, 2010. (See Def.’s Second Mot. for J. on the Pleadings, ECF No. 20 (“Def.’s Mot.”); Pls.’ Mot. to Strike Def.’s Second Mot. for J. on the Pleadings, ECF No. 21 (“Pls.’ Mot.”).) In their Motion Strike, Plaintiffs also responded to Defendant’s Motion. Pls.’ Mot.) to (See Defendant responded to Plaintiffs’ Motion to Strike on May 20, 2010. (United States’ Resp., ECF No. 22.) For the following reasons, the Court DENIES Plaintiffs’ Motion to Strike and GRANTS Defendant’s Motion for Judgment on the Pleadings. I. Background Dockets.Justia.com Plaintiff Bennie Coy Williams (“Williams”) is a veteran of the United Veterans “VA”). States Army Affairs who Medical sought Center medical in (Compl. ¶¶ 3-6, ECF No. 1.) treatment Memphis, at Tennessee the (the On March 13, 2007, Williams underwent an echocardiogram at the VA. (Id. ¶ 6.) Following that procedure, doctors diagnosed him with aortic stenosis and coronary artery disease surgery. (Id. ¶ 7.) and referred him for cardiothoracic Doctors informed Williams on June 1, 2007, that he would need an aortic valve replacement. Williams decided to have his faulty valve biologic, rather than a synthetic, valve. (Id. ¶ 8.) replaced with a (Id.) Williams underwent surgery at the VA to implant a biologic valve replacement on June 5, 2007. (Id. ¶ 9.) Before his discharge on June 1, 2007, VA doctors determined that he had “some perivalvular leaks below his left main coronary sinus and significant, aortic insufficiency with diastolic flow reversal in the descending Williams that discharged aortic.” these him. (Id. problems (Id. ¶ ¶ 11.) Doctors lessen would 10.) with Despite his advised time and physicians’ assurances, on July 2, 2007, Williams returned to the VA for an examination frequent after gagging. complaining (Id.) of Three shortness days later, of breath on July 5, and VA doctors performed a left thoracentesis and drained nine hundred cubic centimeters of fluid from Williams until the procedure was 2 halted because of Williams’ constant coughing. (Id.) Six weeks after his initial surgery, Williams again complained to the VA of “feelings of fatigue and episodes of ‘flip/flopping’ in his chest.” (Id. ¶ 12.) Despite Williams’ complaints and a subsequent July 26, 2007, appointment with the VA Nurse Clinic, the VA did nothing more to address his concerns. (Id. ¶¶ 12- 13.) Unsatisfied, Williams scheduled an August 20, 2007, appointment with Dr. Joseph Weinstein, a cardiologist in private practice. (Id. ¶ 14.) Weinstein performed a more thorough evaluation on September 17, 2007, and diagnosed Williams with a “severe, possible wide open aortic insufficiency.” Later tests leakage. revealed (Id.) On that surgery October 15, was necessary 2007, (Id. ¶ 15.) to Weinstein correct admitted Williams to Methodist Hospital North in Memphis for surgery to “redo” the aortic valve replacement. (Id. ¶ 17.) Williams was discharged from Methodist Hospital on October 22, 2007. (Id.) Post-operative examinations revealed that the second surgery had reduced the leakage to trace levels. (Id. ¶ 18.) Williams initiated his claim against the United States of America (the “United States” or the “government”) by filing the required Form S95 with the Department of Veterans Affairs on April 30, 2008. See 28 U.S.C. § 2675(a); 28 C.F.R. § 14.2(a). The government denied his claim by certified letter on April 30, 3 2009. (Compl. ¶ 2.) Plaintiffs filed suit in this Court on September 22, 2009, alleging two counts of wrongdoing by the government. negligence, including (Id. ¶¶ 20-29.) specifically the medical Williams seeks damages for the medical expenses malpractice, from the of second VA doctors, operation to repair the faulty replacement valve, future medical expenses, pain and suffering, and loss of quality of life. 25.) (Id. ¶¶ 22- Plaintiff Carrie Williams, Williams’ wife, seeks damages (Id. ¶¶ 28-29.) for loss of consortium. Together, Plaintiffs (Id. ¶ 29.) request compensatory damages of $1.6 million. On January 25, 2010, the government filed a Motion for Judgment on the Pleadings ECF (see No. 9), which denied on May 12, 2010 (see Order, ECF No. 19). the government Pleadings. filed its Second (See Def.’s Mot.) Motion Court The same day, Judgment on the Plaintiffs responded and filed the Motion to Strike now before the Court. II. for the (See Pls.’ Mot.) Jurisdiction Because Plaintiffs’ claim for medical malpractice arises under the question Federal Tort jurisdiction Claims over that Act, the claim. Court See has 28 federal U.S.C. § 1346(b)(1) (providing exclusive federal jurisdiction over claims against the United States for allegedly negligent acts); see also 28 U.S.C. § 1331. Because federal question jurisdiction exists for Plaintiffs’ medical malpractice claim, the Court has 4 supplemental jurisdiction over the state-law claim for loss of consortium. See 28 U.S.C. § 1367(a). III. Motion to Strike Plaintiffs urge the Court to strike the government’s Second Motion for Judgment on the Pleadings as untimely. 1-2.) (Pls.’ Mot. The Court’s Scheduling Order required the parties to file any “initial motions to dismiss” by April 8, 2010. (Scheduling Order, ECF No. 8; Am. Scheduling Order, ECF No. 18); see Fed. R. Civ. P. 16(b). Because the government filed its Second Motion for Judgment on the Pleadings after the deadline for initial motions to dismiss set by the Scheduling Order and because the Motion asserts arguments that could have been presented in the original Motion, Plaintiffs argue that the government’s Second Motion is untimely. (Pls.’ Mot. 1-2.) Although the same standard of review applies to motions to dismiss and motions for judgment on the pleadings, see Monroe Retail, Inc. v. RBS Citizens, N.A., 589 F.3d 274, 279 (6th Cir. 2009), the two motions are not the same. Federal Rule of Civil Procedure 12(b) permits a party to move to dismiss based on seven enumerated defenses, but any such motion “must be made before pleading if a responsive pleading is allowed.” Civ. P. 12(b). Fed. R. Federal Rule of Civil Procedure 12(c) permits a party to move for judgment on the pleadings only “[a]fter the pleadings are closed — but early enough not to delay trial.” 5 Fed. R. Civ. P. 12(c). “Pleadings are closed within the meaning of Rule 12(c) if no counter or cross claims are at issue when a complaint and an answer have been filed.” Maniaci v. Georgetown Univ., 510 F. Supp. 2d 50, 60 (D.D.C. 2007) (citing Fed. R. Civ. P. 7(a)); see also 5C Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1367 (“Rule 7(a) provides that the pleadings are closed upon the filing of a complaint and an answer (absent a court-ordered reply), unless a counterclaim, cross-claim, or third-party claim is interposed, in which event the filing of a reply to a counterclaim, cross-claim answer, or third-party answer pleadings.”). normally will mark the close of the Because a motion to dismiss must be made before an answer, but a motion for judgment on the pleadings cannot be made until after an answer, they are not the same motion. Compare Fed. R. Civ. P. 12(b), with Fed. R. Civ. P. 12(c). deadline for Scheduling initial Order does motions not to apply dismiss to the in the government’s The Court’s Second Motion. The Court’s deadline for dispositive motions applies to the government’s Second Motion because a motion for judgment on the pleadings is a dispositive motion. App’x. 436, 439 (6th Cir. 2007) See Fitts v. Sicker, 232 F. (referring to a motion for judgment on the pleadings as a dispositive motion); cf. Ogle v. Church of God, 153 F. App’x 371, 375 (6th Cir. 2005) (noting 6 that a “Rule 12(c) motion is a decision on the merits”). The Court set December 31, 2010 as the deadline for dispositive motions. (See Am. Scheduling Order.) May 2010 19, Def.’s (see By filing its Motion on Mot.), the government met the applicable deadline in the Scheduling Order, (see Am. Scheduling Order); cf. Birge v. Dollar Gen. Corp., No. 04-2531, 2006 U.S. Dist. LEXIS 2983, at *3-4 (W.D. Tenn. Jan. 12, 2006) (rejecting as tardy a motion for judgment on the pleadings filed after the dispositive-motions deadline). The government’s Pleadings also Second comports with See Fed. R. Civ. P. 12(c). Motion Rule for 12(c)’s Judgment time on the requirements. The government filed its Second Motion on May 12, 2010 (see ECF No. 20), after the pleadings had closed with the government’s Answer on December 4, 2009 (see ECF No. 6). See Fed. R. Civ. P. 12(c). present case Order), is the set for government April moved 18, for v. Crawford, No. 2011 (see judgment “early enough not to delay trial.” Mayfield Because trial in the on Am. Scheduling the pleadings See Fed. R. Civ. P. 12(c); 5:07CV2775, 2008 U.S. Dist. LEXIS 111738, at *7 (N.D. Ohio July 3, 2008) (finding that a motion filed in May would not delay a trial scheduled for September). Having filed requirements its of the Second Motion Scheduling Order government’s Second Motion is timely. 7 in accordance and Rule with the 12(c), the Plaintiffs also urge the Court to strike the government’s Second Motion because it presents “the exact same arguments as set out in its original Motion for Judgment on the Pleadings but citing to an earlier version” of the Tennessee statute that arguably governs their claims. (Pls.’ Mot. 2.) Plaintiffs correctly argue that, in its original Motion for Judgment on the Pleadings, the government could have raised the arguments it raises in its Second Motion. (See id.) Plaintiffs have not argued, however, that they are prejudiced by the government’s raising those arguments now. Moreover, “if it seems clear that the motion may effectively dispose of the case on the pleadings, the district court should permit it regardless of any possible delay consideration of the motion may cause.” 5C Wright & Miller, Federal Practice & Procedure § 1367; cf. Hahn v. Star Bank, 190 F.3d 708, 719 (6th Cir. 1999) (“Trial courts have broad discretion preliminary and questions inherent that power may to stay dispose of discovery the case until are determined.”) (citing Landis v. North Am. Co., 299 U.S. 248, 254-55 (1936)). Because the government’s Second Motion raises a purely legal question that potentially disposes of Plaintiffs’ action, their motion to strike is not well-taken. Therefore, the Court DENIES Plaintiffs’ Motion to Strike Defendants’ Second Motion for Judgment on the Pleadings. IV. Motion for Judgment on the Pleadings 8 A. Standard of Review “The standard of review for a judgment on the pleadings is the same as that for a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6).” Monroe Retail, 589 (internal quotation marks and citation omitted). F.3d at 279 In addressing a motion to dismiss, the Court must construe the complaint in the light most favorable to the plaintiff and accept all wellpled factual allegations as true. League of United Latin Am. Citizens v. Bredesen, 500 F.3d 523, 527 (6th Cir. 2007). plaintiff can consistent Atlantic support with standard Corp. the v. claim “by allegations Twombly, requires conclusions. a more 550 than showing in any set of A facts the Bell 544, U.S. complaint.” 563 This bare (2007). assertions of legal Bovee v. Coopers & Lybrand C.P.A., 272 F.3d 356, 361 (6th Cir. 2001). “[A] formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. Any claim for relief must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam). “Specific facts are not necessary; the statement need only ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” 555.) Id. (citing Twombly, 550 U.S. at Nonetheless, a complaint must contain sufficient facts “to ‘state a claim to relief that is plausible on its face’” to 9 survive a motion to dismiss. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). plausibility standard is not akin to a “This ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” U.S. at 556). of action, Id. (citing Twombly, 550 “Threadbare recitals of the elements of a cause supported by mere conclusory statements, do not suffice.” Id. at 1949 (citation omitted). A plaintiff with no facts “armed conclusions” and with nothing “unlock the doors of discovery.” more than cannot Id. at 1950. B. Plaintiffs’ Medical Malpractice Claim Plaintiffs allege two counts of wrongdoing by the VA, the first being medical malpractice. (Compl. ¶¶ 20-26.) Tennessee has codified a cause of action for medical malpractice, adding elements and procedural requirements that differ from a common See Tenn. Code. Ann. §§ 29- law cause of action for negligence. 26-115, et seq. present case, Annotated § Under the statutory provision at issue in the the pre-amendment 29-26-122 (the version “Act” or the of Tennessee “Tennessee Code Act”), “within ninety (90) days after filing a complaint in any medical malpractice action in which expert testimony is required by Section 29-26-115, the plaintiff or plaintiff’s counsel shall 10 file a Certificate of Good Faith” with the court.1 Pub. Acts 919. 2008 Tenn. The certificate must state that the plaintiff or his attorney has consulted with a least one expert, who has provided a signed, written statement in which the expert opines that there is a good faith basis for plaintiff’s claim, based on the medical records available to the expert, and that the expert is competent to give that opinion. See id. “The failure of a plaintiff to file a Certificate of Good Faith in compliance with this section shall, upon motion, make the action subject to dismissal with prejudice.” Id. The Governor signed the Act on May 15, 2008, with the provision that it was to “take effect October 1, 2008, and . . . apply to all actions filed on or after that date.” Id. Because Plaintiffs have not filed a certificate of good faith with the Court, the government has moved for judgment on the pleadings. (Def.’s Mot. 6). In response, Plaintiffs make three alternative arguments: 1) that the Act does not apply to claims brought generally, 2) under that, the even Federal if 1 Act Tort Claims applies to Act FTCA (“FTCA”) claims The Tennessee General Assembly amended Tennessee Code Annotated § 29-26-122 in 2009. See 2009 Tenn. Pub. Acts 425. Under the post-amendment version, a plaintiff must file a certificate of good faith contemporaneously with the complaint. See § Tenn. Code Ann. 29-26-122. That version, however, applies only to “actions in which notice is given on or after July 1, 2009.” See 2009 Tenn. Pub. Acts 425. Because Plaintiffs gave notice of their potential claim on April 30, 2008, the Court has held that the post-amendment version of Tennessee Code Annotated § 29-26-122 does not apply. See Williams v. United States, No. 09-2618, 2010 U.S. Dist. LEXIS 46898, at *6-9 (W.D. Tenn. May 12, 2010). 11 generally, it does not apply to their claim specifically, and 3) that, even if the Act applies to their claim, they have complied with the Act’s purposes.2 (Pls.’ Mot. 5-10.) 1. Tennessee Act and the FTCA Absent waiver, the doctrine of sovereign immunity insulates the government from suit. Dep’t of the Army v. Blue Fox, 525 U.S. 255, 260 (1998) (citing Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 475 (1994)). By enacting the FTCA, Congress waived the government’s sovereign immunity for certain claims, See Sharp ex rel. Estate of subject to specific limitations. Sharp v. United States, 401 F.3d 440, 442-443 (6th Cir. 2005) (citing, as an example, U.S.C. § 2680(a)’s exception for discretionary functions); cf. United States v. Kubrick, 444 U.S. 111, 118 (1979) (noting that courts must not take it upon themselves to extend the waiver of sovereign immunity beyond the limits Congress intended). The FTCA allows suits against the United States for personal injury caused by negligent acts or omissions of federal agents acting within the scope of their duties. See 28 U.S.C. §§ 1346, 2671 et seq. Under brought “under the only FTCA, in suits federal circumstances for court, where the 2 government and negligence liability United States, may attaches if a only private Plaintiffs do not argue that their Complaint does not allege a medical malpractice action in which expert testimony is required by Tennessee Code Annotated § 29-26-115. See 2008 Tenn. Pub. Acts 919. 12 be person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1); see also 28 U.S.C. § 2674 (“The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances . . . .”). As interpreted by the Supreme Court, the law of the state where the alleged negligent act or omission occurred determines the government’s liability under the FTCA. States, 502 U.S. 301, 305 (1992); see Molzof v. United also Young v. United States, 71 F.3d 1238, 1242 (6th Cir. 1995) (citations omitted) (noting that “domestic liability on the part of the federal government under the Federal Tort Claims Act is determined in accordance with the law of the state where the event giving rise to liability occurred”). giving rise to Because the allegedly negligent acts Plaintiffs’ claims Tennessee substantive law applies. Although substantive the law parties governs do the occurred in Tennessee, (See Compl. ¶¶ 4, 6-13.) not dispute Plaintiffs’ that claim, Tennessee they dispute whether the Tennessee Act’s certificate requirement applies to See 2008 Tenn. Pub. Acts 919. claims brought under the FTCA. Plaintiffs argue that the Act does not apply because it is procedural, not substantive, and that the FTCA’s administrative procedure governs their claim instead. 13 (Pls.’ Mot. 7-8). Under the doctrine of Erie Railroad Company v. Tompkins, 304 U.S. 64 (1938), federal courts apply state substantive law and federal procedural law when adjudicating claims based on diversity jurisdiction. Federal court jurisdiction in FTCA claims exists by virtue of the FTCA itself, rather than the parties’ diversity. FTCA directs See 28 U.S.C. § 1346(b)(1). federal courts to determine the Because the United States’ liability according to state substantive law, however, courts must make the same distinction between procedural substantive law to determine what law governs. and See 28 U.S.C. §§ 1346(b)(1), 2674; Molzof v. United States, 502 U.S. at 305; cf., e.g., Trierweiler v. Croxton & Trench Holding Corp., 90 F.3d 1523, 1539 determine (10th whether Cir. a 1996) state (applying law was the Erie substantive analysis and to therefore applied to FTCA claims or was procedural and did not). To determine whether a law is substantive or procedural, courts ask whether it would “significantly affect the result of a litigation for a federal court to disregard a law of a State that would be controlling in an action upon the same claim by the same parties in a State court.” 326 U.S. cautioned 99, 109 (1945). against strict However, Electric Coop., Inc., the application determinative test in all cases. Rural Guar. Trust Co. v. York, Supreme of Court this has outcome- See, e.g., Byrd v. Blue Ridge 356 14 U.S. 525, 535-37 (1958) (rejecting strict application of the outcome-determinative test, asking whether a state law was “bound up with rights and obligations in such a way that its application in the federal court is required,” and ultimately applying federal law because of “affirmative policy). choice,” countervailing considerations” of federal Courts generally conduct a “relatively unguided Erie applying the outcome-determinative test in light of Erie’s twin policies of discouraging forum-shopping and avoiding inequitable administration of the law. Hanna v. Plumer, 380 U.S. 460, 468 (1965). When faced with a potential conflict between a state law and a federal statute, however, “the first and chief question for the district court’s determination is whether the federal statute is ‘sufficiently broad to control the issue before the Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 27 Court.’” (1988) (quoting Walker v. Armco Steel Corp., 446 U.S. 740, 749750 (1980)). To answer that question, courts interpret the federal statute to determine whether Congress intended it to cover the point in dispute. Id. If Congress intended to address the issue, the court simply asks whether the statute comports with the Constitution. Id. (citing Hanna, 380 U.S. at 471). does If the federal statute not cover the point in dispute, “the district court then proceeds to evaluate whether application of federal judge-made law would disserve the so15 called ‘twin aims of the Erie rule: discouragement of forumshopping and laws.’” avoidance Id. at 27 of n.6 inequitable (quoting administration Hanna, 380 at of the 468). “If application of federal judge-made law would disserve these two policies, the district court should apply state law.” Id. (citing Walker, 446 U.S. at 752-753). Plaintiffs assert that the FTCA controls the issue before the Court. (See Pls.’ Mot. 7-8.) They argue that the Tennessee Act’s requirement that they file a certificate of good faith within ninety days of filing their complaint conflicts with the pre-suit administrative procedure accompanying regulations. (Id.) under the FTCA and its Plaintiffs emphasize that, had they followed the Tennessee Act’s procedure and not the FTCA’s administrative failed. procedure, their federal action would have (Id.); see 28 U.S.C. §§ 1346(b)(1), 2675(a). The FTCA administrative and its procedure accompanying that regulations plaintiffs must establish follow bringing a negligence action against a federal agency. U.S.C. § 2675(a); 28 C.F.R. § 14.2(a). plaintiff must present his claim to an before See 28 Before filing suit, a the appropriate agency using an executed Standard Form 95. Id. federal If the agency denies the claim, the plaintiff has six months from the date of final denial to file an action against the United States. U.S.C § 2401. Although the 16 FTCA and its 28 accompanying regulations establish this pre-suit requirement, nothing in their plain text addresses the filing of the action itself or establishes Tennessee any Act post-filing establishes requirements. a post-suit By contrast, requirement — the that plaintiffs alleging medical malpractice file a certificate of good faith within ninety days of filing the complaint. See 2008 Tenn. Pub. Acts 919. Considering a Michigan medical malpractice statute similar to the Tennessee Act, a district court held that Michigan’s certification requirement did administrative procedure. not conflict with the FTCA’s See Williams v. United States, No. 4:01 cv 23, 2001 U.S. Dist. LEXIS 10454, at *17-21 (W.D. Mich. July 16, 2001). Like the Tennessee Act, the Michigan statute required a plaintiff alleging medical malpractice to file an affidavit of merit signed by a health professional, affirming that the health professional believed the defendant had violated the applicable standard of care. See id. at *11-12 (citing Mich. Unlike Comp. Laws. § 600.2912d). the Tennessee Act, however, which allows a plaintiff to file a certificate of good faith up to ninety days after filing the complaint, the Michigan statute required the plaintiff to file the affidavit of merit contemporaneously with the complaint. Id. Although the district court recognized that “Michigan’s requirements may be viewed as more restrictive,” it nonetheless concluded that “they 17 are not inconsistent with the federal regulations issued by the Department of Justice applicable to claims asserted under the FTCA.” Id. at *18. There is less potential conflict between the FTCA’s presuit administrative procedure and the Tennessee Act than between the FTCA procedure and the Michigan statute Williams, 2001 U.S. Dist. LEXIS 10454. at issue in Because the Michigan statute required a plaintiff to file the affidavit of merit contemporaneously with the complaint, the statute arguably imposed on the plaintiff a pre-suit requirement of obtaining the affidavit, in addition to the FTCA’s pre-suit requirement. Mich. Comp. Laws. § 600.2912d. Under the Tennessee See Act, however, a plaintiff has ninety days from filing the complaint to obtain and file a certificate of good faith and therefore need not obtain the certificate before initiating the action. See 2008 Tenn. Pub. Acts 919. Therefore, the Tennessee Act cannot be read as imposing any additional pre-suit requirement on plaintiffs alleging medical malpractice under the FTCA. Like the Michigan statute, the Tennessee Act “may be viewed as more restrictive” than the FTCA’s administrative procedure, but the Act’s post-suit requirement is not inconsistent with the FTCA’s pre-suit requirement. LEXIS 10454, at *17-21. See Williams, 2001 U.S. Dist. There is no “direct collision” between a federal law requiring that a plaintiff present his claims to 18 the relevant agency before suing and a state law requiring that, within 90 days of filing the complaint, the plaintiff also file a certificate of good faith. Hanna, 380 U.S. at 472. accompanying See Walker, 446 U.S. at 749; The Tennessee Act and the FTCA and its regulations “can exist side by side, therefore, each controlling its own intended sphere of coverage without conflict.” not See Walker, 446 U.S. at 752. “sufficiently broad to control Because the FTCA is the issue” of whether Plaintiffs must file a certificate of good faith when bringing a negligence claim under the FTCA,3 the “relatively unguided” Erie analysis. Court must conduct a Stewart Org., 487 U.S. at 27 n.6; cf. Hanna, 380 U.S. at 468. If the Court were to apply the Tennessee Act, it would “significantly See Guar. affect Trust, limitations, which the 326 is result U.S. at of” the 109. substantive for present litigation. Like a statute Erie purposes, of the Tennessee Act bars recovery for plaintiffs who fail to comply with it. See Phelps v. McClellan, 30 F.3d 658, 661 (6th Cir. 1994) (citing Guar. Trust, 326 U.S. at 110-111) (explaining that statutes of limitations are substantive under Erie). failure to comply with the Act results in dismissal, Because it is outcome-determinative, which weighs in favor of concluding that 3 Because Plaintiffs have not raised the issue, the Court need not determine whether the Act conflicts with any of the Federal Rules of Civil Procedure. 19 the Act is substantive, rather than procedural. See 2008 Tenn. Pub. Acts 919; cf. Bierbauer v. Manenti, No. 4:09CV2142, 2010 U.S. LEXIS 108540, at *28 (N.D. Ohio Oct. 12, 2010) (explaining that an Ohio malpractice complaint statute to file is requiring an a plaintiff affidavit of outcome-determinative alleging merit when because medical filing it a mandates dismissal); Daniel v. United States, No. 1:09 CV 2371, 2010 U.S. Dist. LEXIS 10242, at *7-8 (N.D. Ohio Feb. 5, 2010) (same); Lee v. Putz, No. 1:03-CV-267, 2006 U.S. Dist. LEXIS 43449, at *17 (W.D. Mich. June 27, 2006) (explaining that Michigan’s medicalmalpractice certification statute is outcome-determinative because failure to comply results in dismissal). In making an Erie choice, the outcome-determinative test is applied in light of Erie’s goals of discouraging forum-shopping and avoiding inequitable administration of the laws. 380 U.S. at 468. See Hanna, Because the FTCA vests federal courts with exclusive jurisdiction over claims brought against the United States, forum-shopping is not a concern in FTCA cases. U.S.C. §1346(b)(1). See 28 Faced with a choice between a forum that requires the filing of a certificate of good faith within ninety days and a forum without such a requirement, however, a plaintiff would prefer the forum without the requirement because the plaintiff would avoid the cost of obtaining the certificate and have more time to develop his case. 20 Courts considering similar state certification statutes have concluded that, if the statutes were not applied in federal court, plaintiffs would seek to avoid state court by filing in federal court when a federal court would have jurisdiction over their claims based on diversity of citizenship. 43449, at *18. plaintiff statute in federal merely citizenship Courts is See, e.g., Lee, 2006 U.S. Dist. LEXIS have court because, diverse, also to by even concluded avoid a state happenstance, though a that allowing a certification the parties’ non-diverse plaintiff would be required to comply with the certification statute in state court, constitutes inequitable administration of the laws. See, e.g., id., at *18-19. weigh in favor of Therefore, the twin aims of Erie concluding substantive, not procedural. that the Tennessee Act is See Hanna, 380 U.S. at 468. Courts conducting an Erie analysis also consider whether the state law at issue is “bound up with [state-created] rights and obligations in such a federal court is required.” way that its application Byrd, 356 U.S. at 535. in the Tennessee enacted the Act with a package of other medical malpractice reforms. See 2008 Tenn. Pub. Acts 919. Together, the reforms were intended “to dispose of frivolous suits before any party incurred substantial litigation expenses.” See Jenkins v. Marvel, 683 F. Supp. 2d 626, 639 (E.D. Tenn. 2010) (citing News Release, Tenn. S. Republican Caucus (Apr. 24, 2008)); Rebecca 21 Blair, Med-Mal Obstacles, Tenn. Bar. J., Sept. 2008, at 18 (noting that the reforms were “designed to reduce the number of ‘frivolous’ suits filed”). Viewed in this context, Tennessee’s requirement that plaintiffs file a certificate of good faith within ninety days of filing the complaint “substantive decision by that State.” constitutes a Walker, 446 U.S. at 751. Because there are no “affirmative countervailing considerations” of federal policy at issue, see Byrd, 356 U.S. at 537, the Tennessee Act’s certificate requirement is bound up with the state-defined cause of action for medical malpractice, see id. at 535, which weighs in favor of applying the Act in federal court. For these reasons, district courts in the Sixth Circuit have concluded that malpractice certification statutes similar to the Tennessee Act are substantive, not procedural. See Bierbauer, 2010 U.S. LEXIS 108540, at *29 (holding that an Ohio certification statute is substantive and applies in FTCA actions); Daniel, 2010 U.S. Dist. LEXIS 10242, at *8 (same); Lee, 2006 Michigan U.S. Dist. certification LEXIS statute 43449, is at *20 substantive (holding and that applies a in diversity actions); Williams, 2001 U.S. Dist. LEXIS 10454, at *15 (holding that a Michigan malpractice certification statute is substantive and applies in FTCA actions) (internal citations omitted in all). 22 Federal concluded courts that outside state the Sixth certification Circuit statutes have similar Tennessee Act are substantive, not procedural. also to the See, e.g., Hill v. Smithkline Beecham Corp., 393 F.3d 1111, 1117 (10th Cir. 2004) (holding that a Colorado law requiring a plaintiff alleging medical malpractice to file a certificate of review with a complaint is substantive and applies in FTCA actions); Chamberlain v. Giampapa, 210 F.3d 154, 161 (3d Cir. 2000) (holding that a New Jersey statute requiring medical-malpractice plaintiffs to file an affidavit of merit within sixty days of filing a complaint is substantive and applies in diversity actions); Lewis v. Ctr. for Counseling & Health Res., No. C081086 MJP, 2009 U.S. Dist. LEXIS 67415, at *8-11 (W.D. Wash. July 28, 2009) (holding that a Washington statute requiring medicalmalpractice plaintiffs to file a certificate of merit with a complaint is substantive and applies in diversity actions); Lopez v. Brady, No. 4:CV-07-1126, 2008 U.S. Dist. LEXIS 73759 (M.D. Pa. Pennsylvania file a Sept. law 25, 2008), requiring certificate of at *39-41 (holding medical-malpractice merit within sixty days that plaintiffs of filing a to a complaint is substantive and applies in FTCA actions); Smith v. Planned Parenthood, 225 F.R.D. 233, 241 (E.D. Mo. 2004) (holding that a Missouri statute requiring medical-malpractice plaintiffs to file an affidavit certifying a claim’s merits within ninety 23 days of filing a complaint was substantive and applied in diversity actions); Oslund v. United States, 701 F. Supp. 710, 714 (D. Minn. 1988) (holding that a Minnesota statute requiring medical-malpractice plaintiffs to file an expert review affidavit within sixty days of filing a complaint is substantive and applies in FTCA actions) (internal citations omitted); cf. Finnegan v. Univ. of Rochester Med. Ctr., 180 F.R.D. 247, 249 (W.D.N.Y. 1998) (applying a New York law requiring medical- malpractice plaintiffs to file a certificate of merit with the complaint applies in federal court without conducting an Erie analysis) (internal citations omitted in all). In enacting the FTCA, Congress expressed its intent that the United States be held liable only to the extent a private person would also be liable under the substantive law of the state where the conduct giving rise to the claim occurred. 28 U.S.C. §§ 1346(b)(1), § 2674. plaintiff filing a medical See Under the Tennessee Act, a malpractice claim in state court would be required to file a certificate of good faith to recover from a private defendant. See 2008 Tenn. Pub. Acts 919. Because the Tennessee Act is outcome-determinative and failing to apply it in federal court would encourage forum-shopping and result in inequitable administration of the laws, and because the Act is bound up with rights and obligations created by the State of Tennessee, the Act is substantive. 24 For these reasons, the Tennessee Act applies in federal court to claims brought under the FTCA. 2. Application to Plaintiffs’ Claim Plaintiffs alternatively argue that the Tennessee Act does not apply to their claim because they filed Standard Form 95 with the Department of Veterans Affairs on April 30, 2008, well before the Act went into effect on October 1, 2008. 5-6.) (Id. The plain language of the Act makes clear that it applies only to “actions filed on or after” October 1, 2008. Tenn. Pub. Acts 919. See 2008 If the Plaintiffs had filed their action before that date, the Act would not apply to their claim, and they need not have filed a certificate of good faith. By requiring a person to present a claim to the appropriate federal agency before initiating an action against the United States, the plain language of the FTCA and its accompanying regulations make clear that these two acts are not the same. See 28 U.S.C. § 2675; 28 C.F.R. § 14.2(a). In federal court, an action is commenced only by filing a complaint. 3. Fed. R. Civ. P. Although Plaintiffs presented their claim to the Department of Veterans Affairs on April 30, 2008, they did not file an action against the government until September 22, 2009, when they filed their Complaint (see Compl.). Because the Act applies to actions filed after October 1, 2008, it applies to Plaintiffs’ claim. See 2008 Tenn. Pub. Acts 919. 25 3. Plaintiffs’ Compliance with the Act Plaintiffs alternatively argue that they “have complied in practical application with the purpose of the Act” by providing the government with various medical records and notice of their claim through the FTCA’s administrative procedure. Therefore, they argue, requiring them to file a certificate of good faith would be a mere procedural formality. (Pls.’ Mot. 8-9.) Reforms adopted contemporaneously with the Act require a plaintiff alleging medical malpractice to “give written notice of such potential claim to each health care provider against whom such potential claim is being made at least sixty (60) days before the filing of a complaint” and, on filing the complaint, to provide complete copies of the plaintiff’s medical records to the defendant. See 2008 Tenn. Pub. Acts 919. The Tennessee General Assembly enacted these requirements “to provide notice to potential parties and to facilitate early resolution of cases through settlement.” (explaining the Jenkins, purpose of the 683 F. notice Supp. and 2d medical at 639 records provisions that were ultimately codified at Tenn. Code Ann. § 29-26-121). By providing notice and turning over their medical records through the FTCA’s administrative procedure, Plaintiffs have arguably medical-records complied with provisions the enacted Tennessee Act. 26 purposes of the notice contemporaneously with and the Unlike those provisions, however, Tennessee did not adopt the Act for the purpose of providing a defendant notice of a possible claim and encouraging settlement. Although a plaintiff may file a certificate of good faith contemporaneously with the complaint, the plaintiff has up to ninety days after filing the complaint to file the certificate. 919. See 2008 Tenn. Pub. Acts Even if a plaintiff files the certificate of good faith at the earliest possible moment (i.e., when filing the complaint), the defendant has received notice of the possible claim by registered mail at least sixty days before the complaint is filed. Id. Thus, the Act’s certificate requirement cannot be reasonably construed as a provision adopted for the purpose of providing a defendant notice of a possible claim and encouraging settlement. The Act’s certificate requirement exists “to ensure that suits proceeding through litigation have some merit.” 683 F. Supp. 2d at 639. evidences this purpose. Jenkins, The plain text of the Act itself See 2008 Tenn. Pub. Acts 919. The certificate of good faith must state that a plaintiff or his attorney has consulted with a least one expert, who has provided a signed, written statement in which the expert opines that there is a good faith basis for the plaintiff’s claim, based on the available medical records, and that the expert is competent to give such an opinion. See 27 2008 Tenn. Pub. Acts 919. Considering the content of the certificate itself, the Act exists to ensure that a plaintiff’s claim has merit, not to ensure that opportunity a to defendant engage in has notice settlement of the claim negotiations. and See an id.; Jenkins, 683 F. Supp. 2d at 639; cf. News Release, Tenn. S. Republican Caucus (Apr. 24, 2008) (explaining legislature enacted the package of reforms to reduce medical malpractice lawsuits”); Rebecca Obstacles, Tenn. Bar. J., Sept. 2008, at 18. Blair, that the “meritless Med-Mal Plaintiffs do not argue that, by following the FTCA’s administrative procedure, they have fulfilled that purpose. Plaintiffs correctly note that the Act permits courts to extend beyond ninety days the time within which a certificate of good faith must be filed. 9). See Tenn. Pub. Acts 919; (Pls.’ Mot. However, such an extension is permitted only if the court “determines that a health care provider who has medical records relevant to the issues in the case has failed to timely produce medical records upon timely request, or for other good cause shown.” See id. No Tennessee or federal court has interpreted the meaning of “good cause” under the Act. Plaintiffs argue that requiring them to file a certificate of good faith would be a mere formality, but offer no facts or other rationale for extending the time to file the certificate. 28 (See Pls.’ Mot. 8- 9.) Whatever the parameters of “good cause” under the Act, Plaintiffs have not shown it, and an extension is not warranted. Plaintiffs were required to file a certificate of good faith within ninety days of filing their complaint, which they failed to do. See 2008 Tenn. Pub. Acts. 919 § 1. “The failure of a plaintiff to file a Certificate of Good Faith in compliance with this section shall, upon motion, make the action subject to dismissal Because with the prejudice.” government 2008 Tenn. so moved, has Pub. Acts. 919 Plaintiffs’ malpractice claim must be dismissed with prejudice. § 1. medical See id.; cf. Maliani v. Vanderbilt Univ. Med. Ctr., No. 3:10-0235, 2010 U.S. Dist. LEXIS 110259, at *12-13, 17-18 (M.D. Tenn. Oct. 12, 2010) (dismissing with prejudice a plaintiff’s malpractice claim for failure to file a certificate of good faith under the postamendment version of the Tennessee Act, where jurisdiction was based on diversity). C. Plaintiffs’ Other Claim Plaintiffs allege a second count of wrongdoing for Carrie Williams’ loss malpractice of claim, consortium. the law of As the with state Plaintiffs’ where the medical alleged negligent act or omission occurred determines the government’s liability under the FTCA. See 28 U.S.C. § 1346(b)(1); 28 U.S.C. § 2674; Molzof, 502 U.S. 301, 305 (1992); see also Young, 71 F.3d at 1242 (6th Cir.1995) (noting that “domestic liability on 29 the part of the federal government under the Federal Tort Claims Act is determined in accordance with the law of the state where the event giving rise to liability occurred”). Because the allegedly negligent acts giving rise to Carrie Williams’ claim occurred in Tennessee (see Compl. ¶¶ 4, 6-13), Tennessee substantive law applies. Under Tennessee law, “there shall exist in cases where such damages are proved by a spouse, a right to recover for loss of consortium.” Tenn. Code Ann. § 25-1-106. defined loss of consortium husband and wife, and the as “the right Tennessee courts have conjugal of each fellowship to the of company, cooperation, affection and aid of the other in every conjugal McPeek v. Lockhart, No. E2004-01034-COA-R3-CV, 2006 relation.” Tenn. App. LEXIS 276 (Tenn. Ct. App. Apr. 28, 2006) (quoting Jackson v. Miller, 776 S.W.2d 115, 116-17 (Tenn. Ct. App. 1989)). Although loss of consortium is a cause of action distinct and separate from 555, injured spouse’s claim, it remains a See Hunley v. Silver Furniture Mfg. Co., 38 derivative claim. S.W.3d the 557-58 (Tenn. 2001) (citing Tuggle v. Allright Parking Sys., 922 S.W.2d 105, 108 (Tenn. 1996)); Clark v. Shoaf, 209 S.W.3d 59, 62 (Tenn. Ct. App. 2006) (noting that, although a claim for loss of consortium is a distinct and independent action, it is derivative in that it originates from or owes its 30 existence to the spouse’s claim). A spouse seeking recovery for loss of consortium cannot recover unless the defendant has been held liable to the injured spouse. See Swafford v. City of Chattanooga, 743 S.W.2d 174, 178 (Tenn. Ct. App. 1987) (“[A] husband’s or wife’s claim for loss of consortium will always be ‘derivative’ in the sense that the injuries to his or her spouse are an element and must be proved . . . .”). Plaintiffs cannot prove that the government caused Williams’ injuries because Williams’ medical malpractice claim has been dismissed. For that reason, Carrie Williams’ claim for loss of consortium also fails, and Plaintiffs’ second court of wrongdoing against the government must be dismissed. See DeJesus v. Geren, No. 3:08cv0043, 2008 U.S. Dist. LEXIS 48870, at *58 (M.D. Tenn. June 23, 2008) (dismissing a spouse’s claims for loss of consortium where injured spouse’s claims were subject to dismissal or summary judgment); Wentz v. Best W. Int’l, Inc., No. 3:05-cv-368, 2007 U.S. Dist. LEXIS 19894, at *10-12 (E.D. Tenn. Mar. 20, 2007) (dismissing a spouse’s claims for loss of consortium where injured spouse’s claims were subject to dismissal) V. Conclusion Based on the foregoing, the Court DENIES Plaintiffs’ Motion to Strike Defendant’s Second 31 Motion for Judgment on the Pleadings and GRANTS Defendant’s Second Motion for Judgment on the Pleadings. Plaintiffs’ claims are DISMISSED WITH PREJUDICE. So ordered this 16th day of November, 2010. s/ Samuel H. Mays, Jr. SAMUEL H. MAYS, JR. UNITED STATES DISTRICT JUDGE 32
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