Robert Morrow v. United States, No. 21-3134 (8th Cir. 2022)
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Plaintiff wife of decedent and executor of the estate of the decedent, brought suit under the Federal Tort Claims Act (FTCA). The district court granted summary judgment to the government, dismissing the suit with prejudice.
On appeal, Plaintiffs argued that the district court (1) erred in denying their motion for voluntary dismissal and (2) erred in granting summary judgment to the government. The Eighth Circuit affirmed. The court explained that because Plaintiffs moved for voluntary dismissal after the government filed its answer, the action could be dismissed only by court order, on terms the court considers proper. Here, the district court did not abuse its discretion by denying Plaintiffs’ motion for voluntary dismissal without prejudice.
Plaintiffs argued that their filing of unverified medical records with the complaint substantially complied with the requirement to file an expert witness affidavit on the question of the standard of care within the prescribed deadline. However, the court explained it is undisputed that Plaintiffs failed to serve the government with a certificate of merit within 60 days of the government filing its answer.” Thus, the district court did not err in granting summary judgment to the government and in dismissing Plaintiffs’ complaint with prejudice.
Court Description: [Smith, Author, with Colloton and Shepherd, Circuit Judges] Civil case - Federal Tort Claims Act. Plaintiff alleged the VA failed to provide their decedent with adequate medical care after he was diagnosed with lung cancer; plaintiffs failed to serve the United States with a certificate of merit and an affidavit signed by an expert witness stating the appropriate standard of care and its alleged breach with the time permitted by Iowa Code Sec. 147.140(1)(a), and the government moved for summary judgment; after the government filed its motion, plaintiffs moved to voluntarily dismiss without prejudice; the district court denied that motion and granted the government summary judgment. Held: the district court did not abuse its discretion by denying plaintiffs' motion to dismiss the case voluntarily; the district court did not err in granting the government summary judgment based on plaintiffs' failure to serve the certificate of merit within the time allowed by the Iowa statute.
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