MCKINLEY v. UNITED STATES OF AMERICA
ORDER denying 5 Motion to Dismiss Complaint; finding as moot 12 Motion for Extension of Time; denying 13 Motion to Dismiss Complaint. Ordered by US DISTRICT JUDGE HUGH LAWSON on 10/6/2015. (aks)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MARY JO MCKINLEY, Individually
and as Administrator of the Estate
of HOWARD MCKINLEY,
Civil Action No. 5:15-CV-101
This case is before the Court on Defendant’s Motion to Dismiss (Doc. 5),
Defendant’s Motion to Dismiss Plaintiff’s First Amended and Recast Complaint
(Doc. 13), and Plaintiff’s Motion for Extension of Time to File Good Faith
Certificate (Doc. 12). For the reasons discussed herein, Defendant’s Motion to
Dismiss and Motion to Dismiss Plaintiff’s First Amended and Recast Complaint
are denied, and Plaintiff’s Motion for Extension of Time to File Good Faith
Certificate is therefore moot.
This is a negligence action brought under the Federal Tort Claims Act
(“FTCA”), 28 U.S.C. § 1346(b)(1) (2013) and 28 U.S.C. §§ 2671–80 (2000).
Plaintiff commenced this action individually and as the administrator of the estate
of her now-deceased husband, Howard McKinley.
Plaintiff is seeking
compensation for damages resulting from the death of Mr. McKinley.
Plaintiff alleges that Mr. McKinley died as a result of the negligence of
various personnel at the United States Department of Veterans Affairs’ (“VA”)
Tennessee Valley Healthcare System (“TVHCS”) in Nashville, Tennessee.
Plaintiff has attached to her Complaint the Affidavit of Marianne Barnhill, M.D.,
who is of the opinion that the physicians at TVHCS failed to adhere to the
standard of care generally employed in the medical profession under similar or
like circumstances. Dr. Barnhill is a medical doctor licensed to practice in the
State of Louisiana.
Mr. McKinley was first seen at TVHCS on July 29, 2010, after an
emergency room visit for an episode of gross hematuria (blood in his urine).
Following a diagnosis of bladder cancer, Mr. McKinley underwent a series of
tests, operations, and chemotherapy.
His second round of chemotherapy
concluded on November 22, 2011, and Mr. McKinley was assured by his
physicians at TVHCS that he no longer had bladder cancer.
However, on December 20, 2011, a routine CT scan of Mr. McKinley’s
abdomen and pelvis showed a “new bladder mass consistent with clinical
diagnosis of carcinoma.” Pl.’s First Am. and Recast Compl. ¶ 21. Following the
CT scan, Mr. McKinley underwent a cystoscopy in early January during which his
“‘posterior bladder wall [was] found to have what was felt to either be BCG
changes versus possibly carcinoma in situ. The right lateral wall also with what
looked like could have been BCG changes versus papillary superficial bladder
cancer.’” Pl.’s First Am. and Recast Compl. ¶ 23. Mr. McKinley underwent a
second cystoscopy in early February. The operative findings noted that there
were “‘no obvious bladder tumors,’” although “‘anatomy of bladder neck makes it
such that it is impossible to see the dome and posterior portion of the bladder
with rigid scope.’” Pl.’s First Am. and Recast Compl. ¶ 25.
Despite the concerns raised in these tests and procedures, Plaintiff
alleges that the physicians at TVHCS did nothing to treat Mr. McKinley’s clearly
present and growing bladder cancer, and in fact assured Plaintiff and Mr.
McKinley that he no longer had bladder cancer.
Mr. McKinley continued to
experience grossly bloody urine. On May 31, 2012, Mr. McKinley presented for a
routine cystoscopy, and doctors noted their inability to visualize the right uretal
orifice due to swelling. Again, Plaintiff alleges that the doctors ignored these
symptoms, did nothing to treat Mr. McKinley’s bladder cancer, and continued to
reassure Plaintiff and Mr. McKinley that Mr. McKinley was cancer-free.
In July 2012, Plaintiff and Mr. McKinley relocated to Bibb County, Georgia.
Mr. McKinley visited the Dublin, Georgia VA hospital to establish primary care on
August 28, 2012. During this visit, Mr. McKinley told his physician that his bloody
urination persisted. He was referred to a non-VA urologist, and an appointment
was scheduled for October, 2012.
On September 13, 2012, Mr. McKinley
returned to the Dublin VA due to continued bloody urination and the onset of low
blood pressure. While hospitalized, Mr. McKinley underwent an abdominal and
pelvic CT scan at the direction of a urologist, which revealed findings consistent
with advanced bladder cancer and metastatic disease.
Mr. McKinley’s diagnosis was confirmed after he underwent tumor removal
surgery on October 1, 2012. A large necrotic tumor was removed, and pathology
results revealed malignancy. Despite aggressive chemotherapy and radiation,
Mr. McKinley’s cancer worsened, spreading to his brain and eventually killing him
on September 21, 2013. Mr. McKinley died at his home in Georgia.
Plaintiff initially presented her claims to the VA for wrongful death, medical
expense, pre-death pain and suffering, loss of consortium, and ordinary
negligence. The VA denied her claims initially and on appeal. Plaintiff filed this
lawsuit on March 20, 2015, just over one month after her request for
reconsideration was denied.
Defendant has moved the Court to dismiss Plaintiff’s Complaint and First
Amended and Recast Complaint. Defendant first argues that Plaintiff’s claims
should be dismissed because she failed to comply with Tennessee’s certificate of
good faith requirement for medical malpractice claims, pursuant to Tenn. Code
Ann. § 29-26-122(a) (2012), and failed to disclose the number of prior violations
of Tenn. Code Ann. § 29-26-122(d)(4). Defendant also argues that Plaintiff’s
claims are barred by Tennessee’s medical malpractice statute of repose, and
therefore should be dismissed.
In response, Plaintiff argues that Tennessee substantive law is
inapplicable in this case, and therefore compliance with Tennessee’s certificate
of good faith requirement, violation disclosure requirement, and statute of repose
is not required. In the alternative, Plaintiff argues that Tenn. Code Ann. § 29-26122 is preempted by the Federal Rules of Civil Procedure and that Tennessee’s
medical malpractice statute of repose is preempted by the time limitations
prescribed by Congress in the FTCA.
Finally, Plaintiff argues that, if
Tennessee’s statute of repose is relevant, the period was tolled due to
concealment on the part of the TVHCS physicians, and therefore the complaint
was filed within the prescribed time.
Plaintiff has also filed a Motion for Extension of Time to File Good Faith
Certificate and Brief in Support Thereof, which the Court need not consider
because Defendant’s motions are denied.
STANDARD OF REVIEW
A motion to dismiss filed pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure (“FRCP”) tests the facial sufficiency of the complaint. When
considering a Rule 12(b)(6) motion to dismiss, the Court must accept as true all
facts set forth in the plaintiff’s complaint. Speaker v. U.S. Dep’t of Health and
Human Services, 623 F.3d 1371, 1379 (11th Cir. 2010); Columbia Natural
Resources, Inc. v. Tatum, 58 F.3d 1101, 1109 (6th Cir. 1995). The Court is not
to decide whether plaintiff will ultimately prevail but rather, whether she is entitled
to offer evidence to support her claims. Bell Atl. Corp. v. Twombly, 550 U.S. 544,
A motion to dismiss for lack of subject matter jurisdiction, filed pursuant to
FRCP 12(b)(1), “may either attack the claim of jurisdiction on its face or it can
attack the factual basis of jurisdiction.” Golden v. Gorno Bros., Inc., 410 F.3d
879, 881 (6th Cir. 2005); see also Garcia v. Copenhaver, Bell & Associates,
M.D.'s, P.A., 104 F.3d 1256, 1260–61 (11th Cir. 1997). A factual attack, which
Defendant makes in its motions, is “not a challenge to the sufficiency of the
pleading’s allegations, but a challenge to the factual existence of subject matter
jurisdiction.” United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994); see also
Garcia, 104 F.3d at 1261.
The FTCA is a statutory scheme that removes the sovereign immunity of
the United States from suits in tort, with certain specific exceptions. Richards v.
United States, 369 U.S. 1, 6 (1962). The statute renders the Government liable
in the same capacity that an individual would be under like circumstances. Id.
Specifically, the FTCA provides that the United States may be held liable for
damages for “personal injury or death caused by the negligent or wrongful act or
omission of any employee of the Government while acting within the scope of his
office or employment, under circumstances where the United States, if a private
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).
The statutory scheme was intended to build upon the legal relationships
formulated and characterized by the states, rather than to operate with complete
Richards, 369 U.S. at 6–7.
This is clear from the statute’s
express statement that the law of the state “where the act or omission occurred”
controls. 28 U.S.C. §1346(b)(1).
The Court will first examine whether Tennessee or Georgia substantive
law applies in evaluating the sufficiency of Plaintiff’s allegations. Next, the Court
will examine whether the FTCA’s pleading requirements and time limitations
preempt state statutes that materially alter the requirements FTCA claimants
Tennessee Substantive Law Governs the Rights and Liabilities
of the Parties with Respect to All of Plaintiff’s Claims.
At this stage of the litigation, a critical issue is whether Georgia or
Tennessee substantive law governs the rights and liabilities of the parties in this
case. Particularly relevant are the pleading requirements and statutes of repose
for medical malpractice suits in these two states. Plaintiff argues that a choice of
law analysis should control this determination, while Defendant maintains that a
choice of law analysis is inapplicable on the facts alleged.
A choice of law analysis is relevant when (1) the events of the case touch
more than one state, Richards, 369 U.S. at 9, and (2) a conflict of laws exists
between the states that are touched by the events, Dresdner Bank AG v. M/V
OLYMPIA VOYAGER, 446 F.3d 1377, 1381 (11th Cir. 2006). Here, Plaintiff has
established that the events of the case touch both Tennessee and Georgia.
Although the alleged negligence of Defendant occurred in Tennessee, Mr.
McKinley became aware of his cancer in Georgia, was treated in Georgia, and
eventually died in Georgia. The relevant events in this case – the negligent act,
impact of the negligent act, treatment, and diagnosis – sufficiently touch both
Tennessee and Georgia, such that it is necessary to determine whether a conflict
exists between Tennessee and Georgia law with respect to the medical
malpractice pleading requirements and statutes of repose.
To succeed in a medical malpractice claim in Tennessee, a plaintiff must
establish the following:
(1) the recognized standard of professional care in the specialty and
locality in which the defendant practices; (2) that the defendant failed
to act in accordance with the applicable standard of care; and (3)
that as a proximate result of the defendant’s negligent act or
omission, the claimant suffered an injury which otherwise would not
Estate of French v. Stratford House, 333 S.W.3d 546, 554–55 (Tenn. 2011). If
an expert is hired to establish these facts, Section 29-26-122(a) of the
Tennessee Code requires the plaintiff to file a certificate of good faith confirming,
among other things, that the plaintiff has conferred with a medical expert who
meets the witness competency requirements of Section 29-26-112, and that such
expert has reviewed the medical records and believes that a good faith basis
exists for maintaining the action. Tenn. Code Ann. § 29-26-122(a). This section
of the code further provides that, if the plaintiff fails to file a certificate of good
faith with the complaint, the complaint shall be dismissed . . . .” Id. Finally,
Tennessee requires that the expert whose opinion is relied upon be licensed to
practice the relevant specialty in Tennessee or a contiguous bordering state. Id.
at § 29-26-115(b). Tennessee has a three-year statute of repose for medical
malpractice actions. Id. at § 29-26-116(a)(3).
Like Tennessee, Georgia has a merit statute for medical malpractice
actions; however, the requirements under Georgia law differ substantially from
Tennessee law. Georgia’s medical malpractice merit statute, O.C.G.A. § 9-119.1 (2007), requires an affidavit to be filed, along with the complaint, setting forth
at least one negligent act or omission claimed to exist and the factual basis for
each such claim.
O.C.G.A. § 9-11-9.1(a).
However, unlike the Tennessee
statute, the Georgia statute sets forth several exceptions to the requirement that
the affidavit be filed contemporaneously with the complaint. See O.C.G.A. § 911-9.1(b). Plaintiffs who meet the requirements of one of the exceptions have an
additional 45 days from the filing of the complaint to satisfy the requirement. Id.
Also unlike Tennessee, Georgia allows any expert “competent to testify” under
the circumstances to allege negligence in the affidavit. See id. at § 9-11-9.1(a).
The statute of repose for medical malpractice actions under Georgia law is five
years. Id. at § 9-3-71(b).
An examination of Tennessee and Georgia law governing medical
malpractice suits reveals several conflicts of law, necessitating a choice of law
analysis. As described above, the FTCA requires that the “whole law of the state
where the act or omission occurred[,]” including its choice of law rules, be
applied. Richards, 369 U.S. at 11 (emphasis added). Plaintiff and the United
States agree that the negligent acts at issue in this case occurred in Tennessee.
See Pl.’s Resp. to Def.’s Mot. to Dismiss at 8; Def.’s Mem. in Supp. of its Mot. to
Dism. Pl.’s First Am. and Recast Compl. 5–6.
Thus, the Court must apply
Tennessee choice of law rules in determining whether Tennessee substantive
law or Georgia substantive law controls in this case.
Tennessee has adopted the “most significant relationship” approach of the
Restatement (Second) of Conflict of Laws, including §§ 6, 145, 146, and 175,
when a conflict of laws arises. Hataway v. McKinley, 830 S.W.2d 53, 59 (Tenn.
1992). This approach is as follows:
§ 145. The General Principle
(1) The rights and liabilities of the parties with respect to an issue in
tort are determined by the local law of the state, which with respect
to that issue, has the most significant relationship to the occurrence
and the parties under the principles stated in § 6.
(2) Contacts to be taken into account in applying the principles of § 6
to determine the law applicable to an issue include:
(a) the place where the injury occurred,
(b) the place where the conduct causing the injury occurred,
(c) the domicile, residence, nationality, place of incorporation
and place of business of the parties,
(d) the place where the relationship, if any, between the
parties is centered.
These contacts are to be evaluated according to their relative
importance with respect to the particular issue.
Restatement (Second) of Conflict of Laws § 145 (Am. Law Inst. 1971). With
respect to actions for personal injury or wrongful death, the local law of the state
where the injury occurred is the default law governing the rights and liabilities of
the parties. Id. at §§ 146, 175.
Because Plaintiff contends that this lawsuit is an action under the FTCA for
wrongful death, medical malpractice, and ordinary negligence, see Pl.’s Resp. to
Def.’s Mot. to Dismiss 1, and a different rule governs choice of law analyses in
wrongful death suits, the Court must evaluate the claims separately.
Action under the FTCA for wrongful death
In an action for wrongful death, the law of the state where the injury
occurred controls. Restatement (Second) of Conflict of Laws § 175. There is an
exception to this default rule when some other state has a more significant
relationship to the occurrence and the parties.
The exception is not
applicable on the facts alleged.1
The parties disagree about what Mr. McKinley’s injury was, and therefore,
where the injury occurred. Plaintiff contends that the injury to Mr. McKinley was
both his death and the metastases of his bladder cancer. Pl.’s Resp. to Def.’s
An example of circumstances giving rise to the exception is provided in
Comment d to the Restatement (Second) of Conflict of Laws § 146. The
example describes a situation where the plaintiff, a resident of state X, purchases
an airline ticket in state X from an airline that is incorporated in state X and has
its principal place of business in state X. The purchased flight departs from one
city in state X and lands in another city in state X, but for a short period in flight,
flies over state Y. While over state Y, the pilot commits an act of negligence
which causes the plane to lose an engine. However, the plane is able to safely
land at its intended destination. The plaintiff then seeks damages from the
defendant airline for the severe fright and shock resulting from the pilot’s
negligence. Under these circumstances, the parties and occurrences are more
closely related to state X than they are to state Y, even though the negligence
and injury occurred in state Y.
Mot. to Dismiss 11. It is Plaintiff’s position that both of these injuries occurred in
Georgia, and that the substantive law of Georgia controls. Pl.’s Resp. to Def.’s
Mot. to Dismiss 10–12. Defendant does not clearly state what it contends was
the injury to Mr. McKinley, but cites the Restatement (Second) of Conflict of Laws
§ 175, cmt. b, for the proposition that, “the place where the injury occurs for
purposes of an action for wrongful death is where the force set in motion by the
actor first takes effect on the person, not necessarily where the death occurs nor
where the death results in pecuniary loss to the beneficiary.” Def.’s Mem. in
Support of its Mot. to Dismiss Pl.’s First Am. and Recast Compl. 5.
The Court is persuaded by Defendant’s argument regarding the location of
Plaintiff’s injury on the theory of wrongful death. The Restatement specifically
states that the location of the injury in a wrongful death suit is where the alleged
negligence “first takes effect on the person.” Rest. (Second) of Conflict of Laws §
175, cmt. b.
Here, Plaintiff contends that Defendant was first negligent on
December 20, 2011, when a routine CT scan showed a mass in Mr. McKinley’s
bladder and Mr. McKinley was not told about the mass. The failure to tell Mr.
McKinley about the mass had an immediate effect – he was not told that the
mass was “consistent with clinical diagnosis of carcinoma,” and therefore was
denied the opportunity to choose a course of action while the mass remained
inside of his body. Because the effect of Defendant’s alleged negligence was
immediate, Mr. McKinley’s injury on the theory of wrongful death took place in
Tennessee. Thus, Tennessee substantive law governs the rights and liabilities of
the parties with respect to Plaintiff’s claim under the FTCA for wrongful death.
Action under the FTCA for medical malpractice and ordinary
On the theories of medical malpractice and ordinary negligence, the Court
looks to the general principles outlined in Section 145 of the Restatement
(Second) of Conflict of Laws, supra pages 10–11. The Restatement dictates that
the substantive law of the state with the most significant relationship to the
occurrence and the parties governs. Section 145 provides some guidance with
respect to what should be considered in determining the state with the most
significant relationship to the claims.
An analysis of the contacts to be
considered persuades the Court that Tennessee substantive law governs the
rights and liabilities of the parties with respect to Plaintiff’s claims under the
FTCA for medical malpractice and ordinary negligence.
1. The place where the injury occurred
First, the Court should consider the place where the alleged injury
occurred. The “first takes effect” principle of Section 175, pertaining to wrongful
death claims, is inapplicable on the theories of medical malpractice and ordinary
negligence. This leaves it to the Court to determine the location of the injury
when the injury is a latent disease, a question not yet addressed by the
Tennessee Supreme Court.
The Sixth Circuit Court of Appeals, applying Tennessee choice of law rules
in a medical malpractice action, noted that although the Tennessee Supreme
Court has not examined the issue, it has commented in dicta that where the
“‘injury complained of, and the harmful effect thereof develops gradually over a
period of time, the injury is “sustained” . . . when the harmful effect first manifests
itself and becomes physically ascertainable.’” Montgomery v, Wyeth, 580 F.3d
455, 460 (6th Cir. 2009) (quoting Teeters v. Curry, 518 S.W.2d 512, 517 (Tenn.
1974)). Plaintiff cites this language for the proposition that Georgia is the state
where Mr. McKinley’s injury occurred.
Plaintiff explains that Mr. McKinley’s
injuries are “two-fold: Howard McKinley’s wrongful death and the metastases of
his bladder cancer,” and that both manifested and became physically
ascertainable in Georgia. Pl.’s Resp. to Def.’s Mot. to Dismiss 11.
Plaintiff’s argument regarding the location of Mr. McKinley’s injuries is
without support. The court in Montgomery concluded that the place of the injury
was Tennessee, not Georgia, when the injured party was receiving the
medication that caused her injury in Georgia, but did not claim to suffer any
symptoms in Georgia. 580 F.3d at 460–61. Rather, her symptoms manifested in
Tennessee, where she was diagnosed and treated for her injury.
McKinley’s case is distinguishable from that of the injured party in Montgomery.
Mr. McKinley was experiencing symptoms throughout the time period between
Defendant’s alleged negligence and Mr. McKinley’s move to Georgia. See Pl.’s
Am. Comp. ¶¶ 20–32.
The harmful effect of Defendant’s alleged negligence
manifested and continued to be physically ascertainable from the moment
Defendant failed to disclose Mr. McKinley’s diagnosis.
Mr. McKinley’s case is also distinguishable from the plaintiff in Teeters.
The court in Teeters addressed the date of accrual of a medical malpractice
claim resulting from a negligently performed surgical procedure. The plaintiff in
Teeters underwent a bilateral tubal ligation in order to prevent pregnancy. 518
S.W.2d at 512. The court concluded that the plaintiff’s medical malpractice claim
accrued and the statute of limitations began to run when she discovered she was
pregnant, or in the exercise of reasonable care should have known she was
pregnant, as opposed to the day she underwent the negligently performed
operation. Id. at 517. Unlike the plaintiff in Teeters, who had no symptoms of the
negligently performed surgery until her pregnancy, Mr. McKinley’s symptoms
were occurring and continued to occur both before and after the alleged
negligence of Defendant.
Also unlike the plaintiff in Teeters, Mr. McKinley’s
injury was immediately diagnosable upon examination, as is clear from the
Mr. McKinley’s injury resulted from Defendant’s failure to
disclose this diagnosis to him.
The place of Mr. McKinley’s injury was Tennessee, not Georgia.
McKinley experienced symptoms of bladder cancer, including blood in his urine,
before and after Defendant’s alleged negligence, and continued to experience
symptoms until his death. As a result, Mr. McKinley’s injury was immediate and
continued to worsen after Defendant failed to disclose his diagnosis. Unlike the
injured parties in the cases cited by Plaintiff, Mr. McKinley’s injury was obvious
immediately upon the occurrence of Defendant’s negligence in Tennessee.
Thus, the location of Mr. McKinley’s injury is Tennessee.
2. The place where the conduct causing the injury occurred
The parties agree that Tennessee is the place where the conduct causing
the injury occurred. See, supra, page 10. As a result, this consideration also
weighs in favor of Tennessee substantive law governing the rights and liabilities
of the parties.
3. The domicile of the parties
Consideration of the domicile of the parties favors Georgia substantive law.
Plaintiff filed this lawsuit on behalf of herself and as administrator of the estate of
Mr. McKinley. Plaintiff is a resident of Georgia, Mr. McKinley was a resident of
Georgia at the time of his death, and all of the heirs of Mr. McKinley reside in
Georgia. Therefore, Plaintiff’s domicile is undeniably Georgia.
The United States is a non-domiciliary Defendant, and its domicile is not
considered. Foster v. U.S., 768 F.2d 1278, 1283 (11th Cir. 1985). When the
United States is a defendant, the parties’ domicile in applying the “most
significant relationship” test should be discounted as a consideration. Id. Thus,
while consideration of the domicile of the parties favors Georgia substantive law,
the Court does not give much weight to this portion of the “most significant
relationship” test under the circumstances.
4. The place where the relationship between the parties is
The place where the relationship between the parties is centered is a
contact to be considered when (1) a relationship between the parties exists and
(2) the injury was caused by an act done in the course of the relationship.
Restatement (Second) of Conflict of Laws § 145, cmt. on Subsection (2). The
relevant relationship between the parties is that Plaintiff’s husband was the victim
of TVHCS’s alleged negligence beginning on December 20, 2011 until he moved
to Georgia in July 2012. Any other relationship that Plaintiff has with Defendant,
including her citizenship and any pre-suit efforts to resolve this dispute, have no
connection to the cause of the injury, and are therefore irrelevant to consideration
of this contact.
Thus, consideration of the relationship between the parties
indicates that Tennessee substantive law should determine the rights and
liabilities of the parties.
An examination of the four factors to be considered in a choice of law
analysis, pursuant to § 145 of the Restatement (Second) of Conflict of Laws,
clearly favors Tennessee substantive law. All but one of the four factors weighs
in favor of Tennessee.
Further, the one consideration that favors Georgia
substantive law should be discounted because of the United States’ nondomiciliary nature. Thus, the Court concludes that Tennessee substantive law
governs the rights and liabilities of the parties with respect to Plaintiff’s medical
malpractice and ordinary negligence claims.
An examination of the relevant choice of law principles leads the Court to
conclude that Tennessee substantive law, to the extent it is not preempted by the
FTCA, governs the rights and liabilities of the parties in this case as to all of
Plaintiff’s claims against Defendant. Plaintiff’s wrongful death claim is governed
by the substantive law of Tennessee because that is where Defendant’s
negligence first took effect on Plaintiff.
Plaintiff’s medical malpractice and
ordinary negligence claims are also governed by Tennessee law, based on the
“most significant relationship” approach outlined in the Restatement (Second) of
Conflict of Laws § 145.
Rules 8, 9, and 11 of the Federal Rules of Civil Procedure Apply
to the Exclusion of Section 29-26-122 of the Tennessee Code, in
Cases Before the Court Pursuant to the FTCA.
In her replies to Defendant’s Motion to Dismiss and Motion to Dismiss
Plaintiff’s First Amended and Recast Complaint, Plaintiff contends that, if
Tennessee law applies to determine the rights and liabilities of the parties,
Section 29-26-122 of the Tennessee Code is preempted by the FRCP. This
section of the Tennessee Code, discussed in detail on pages 8–9 of this Order,
requires a plaintiff to file a Certificate of Good Faith contemporaneously with the
complaint. Tenn. Code Ann. § 29-26-122(a). If a Certificate of Good Faith is not
filed with the complaint, a plaintiff’s claim is subject to dismissal. Id. Defendant’s
position is that the certificate of good faith requirement is substantive in nature
and does not conflict with the federal rules.
It is well established that when a federal court considers a case under the
FTCA, the court is to apply state law to substantive questions and federal rules to
procedural matters, just as it would if the case were before the court based on
Williams v. United States, 754 F.Supp.2d 942, 948–49
(W.D. Tenn. 2010) (“Because the FTCA directs federal courts to determine the
United States’ liability according to state substantive law . . . courts must make
the same distinction between procedural and substantive law [as they do when
adjudicating claims based on diversity jurisdiction] to determine what law
governs.”); see also United States v. Yellow Cab Co., 340 U.S. 543, 553 (1951);
Young v. United States, 71 F.3d 1238, 1242 (6th Cir. 1995); Stidham v. United
States, No. 1:13-CV-1093, 2014 WL 25584, at *2 (N.D. Ga. Jan. 2, 2014).
However, when both a federal rule and a state rule appear to govern an
issue before a federal court, that court must first determine whether the federal
rule displaces the state rule. See Shady Grove Orthopedic Associations, P.A. v.
Allstate Insurance Co., 559 U.S. 393, 421 (2010) (Stevens, J., concurring in part
and concurring in judgment).
The Supreme Court announced a two-step
framework the court must follow to address preemption under the circumstances
presented in this case. See id. First, the court must determine whether the
federal rule is sufficiently broad to control the issue before the court. Id. If the
federal rule can operate alongside the state rule, the court should determine
whether the state rule is substantive or procedural, pursuant to the doctrine
announced in Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938). Id. If the federal
rule cannot operate alongside the state rule, the court must proceed with the
second step of the framework – determining whether the federal rule is a valid
exercise of the court’s authority under the Rules Enabling Act. Id. at 422. If the
court determines that the federal rule is (1) sufficiently broad to control the issue
before the court and (2) a valid exercise of the court’s power under the Rules
Enabling Act, the federal rule controls to the exclusion of the state rule. See id.
FRCP 8, 9, and 11 directly collide with Tenn. Code Ann. § 29-26122
The Supreme Court recently considered the test for when a federal rule is
“‘sufficiently broad’ to ‘control the issue’ before the court.” See Shady Grove, 559
U.S. at 421. At issue in Shady Grove was whether N.Y. Civ. Prac. Law Ann. §
901(b), which precludes a suit to recover a “penalty” from proceeding as a class
action, was preempted by FRCP 23.
Id. at 393.
FRCP 23 sets out the
prerequisites for a suit to proceed as a class action. See Fed. R. Civ. P. 23(a).
The Supreme Court held that the New York statute directly conflicts with FRCP
23 because it alters the right to proceed as a class action, rather than simply
having a practical effect on that right. Shady Grove, 559 U.S. at 407–08. The
Supreme Court explained that Rule 23 provides a “one-size-fits-all formula” for
determining whether a suit may proceed as a class action. Id. at 398–99. Thus,
N.Y. Civ. Prac. Law Ann. § 901(b) was preempted by FRCP 23 and did not apply
in federal court. Id.
Similar to Rule 23 in Shady Grove, Rules 8, 9, and 11 of the FRCP provide
a “one-size-fits-all formula” for what is required to properly plead a case in federal
court. Rule 8(a) provides:
(a) Claim for Relief. A pleading that states a claim for relief must
(1) a short and plain statement of the grounds for the court’s
jurisdiction, unless the court already has jurisdiction and the claim
needs no new jurisdictional support;
(2) a short and plain statement of the claim showing that the pleader
is entitled to relief; and
(3) a demand for the relief sought, which may include relief in the
alternative or different types of relief.
Fed. R. Civ. P. 8(a). Rule 9 provides exceptions to the pleading requirements of
Rule 8, none of which are applicable on the facts alleged in this case. Fed. R.
Civ. P. 9. Together, Rules 8 and 9 provide a comprehensive scheme of pleading
requirements for stating a claim in federal court.
FRCP 11(a) provides that
“[u]nless a rule or statute specifically states otherwise, a pleading need not be
verified or accompanied by an affidavit.” Fed. R. Civ. P. 11(a). This Rule is
generally interpreted to apply solely to federal enactments. Benjamin Grossberg,
Uniformity, Federalism, and Tort Reform: The Erie Implications of Medical
Malpractice Certificate of Merit Statutes, 159 U. Pa. L. Rev. 217, 251–53 (2010).
Nowhere in the FRCP are there heightened pleading requirements for medical
In cases where no heightened pleading requirement is
dictated by the FRCP, the Supreme Court has held that the complaint “must
satisfy only the simple requirements of Rule 8(a).” Swierkiewicz v. Sorema N. A.,
534 U.S. 506, 513 (2002).
Under Rule 8(a), there is no requirement that a
complaint alleging medical malpractice be accompanied by a certificate or
affidavit of merit to survive dismissal. It would be improper, then, for a state
statute imposing a heightened pleading requirement to apply to an FTCA claim.
Although Section 29-26-122 of the Tennessee Code does not appear on
its face to impose heightened pleading requirements on medical malpractice
plaintiffs, its practical effect is to increase the burden for pleading a medical
malpractice claim. Section 29-26-122 addresses the content requirements for
the certificate of merit and dictates that such a certificate must be filed with the
complaint or the claim will be subject to dismissal by the court. Tenn. Code Ann.
§ 29-26-122. The additional requirements that a medical malpractice plaintiff is
required to meet at the pleading stage under Tennessee law effectively impose a
heightened pleading requirement, beyond the “simple requirements of Rule 8(a).”
This is exactly the kind of conflict between state law and the FRCP that was
addressed by the Supreme Court in Shady Grove. Similar to the New York class
action statute, Section 29-26-122 alters a plaintiff’s right to proceed with a
medical malpractice claim in federal court.
While the Sixth Circuit has yet to address the applicability of state affidavit
of merit requirements in federal court, Sixth Circuit district courts relying on
Shady Grove have held that state merit statutes improperly impose a heightened
pleading requirement on FTCA claimants.2 In Thompson, the plaintiff sued the
United States pursuant to the FTCA, alleging medical malpractice. 2013 WL
3480347, at *1. The United Stated moved to dismiss because the plaintiff failed
to attach an affidavit of merit to his complaint, as required by Ohio law. Id. The
United States argued that the Ohio affidavit of merit statute is substantive, and on
the principles of Erie, applies to the proceedings. Id. at *2. The court first noted
that the substantive/procedural distinction of Erie is a “secondary question,” and
that the court must first address whether there are federal rules that “occupy the
field in question.”
Id.; see also Shady Grove, 559 U.S. at 421.
explained that it was therefore not persuaded by other district court decisions that
found the Ohio affidavit of merit statute substantive and applicable in federal
court on an Erie analysis.
Id. at *3.
The court cited the Supreme Court’s
decision in Shady Grove in holding that FRCP 8, 9, and 11 are “‘sufficiently
broad,’ so as to control the issue before [the] [c]ourt and preclude the applicability
of the Ohio requirement.” Id. at *2–3, *5.
The same court reached a similar decision in Larca. The plaintiff in Larca
was a former prisoner who brought suit under the FTCA alleging negligent
treatment while in prison. 302 F.R.D. at 149. Again, the United States moved to
dismiss because the plaintiff failed to submit an affidavit of merit as required by
Ohio law. Id. at 151. In denying the United States’ motion to dismiss, the court
See Larca v. United States, 302 F.R.D. 148 (N.D. Ohio 2014); Thompson v.
United States, No. 1:13-CV-00550, 2013 WL 3480347 (N.D. Ohio July 10, 2013);
Muncy v. Siefker, No. 3:12cv2301, 2013 WL 1284233 (N.D. Ohio Mar. 26, 2013).
held that FRCP 8 and 9 answered the question of whether the plaintiff’s
complaint was sufficient, and the Ohio affidavit of merit statute conflicted with the
federal rules by adding requirements.
Id. at 159–60.
Again, the court cited
Shady Grove in justifying its conclusion. Id. at 155–56, 159–60.
Eleventh Circuit courts have long held that affidavit of merit statutes are
preempted by the FRCP, even prior to the Supreme Court’s decision in Shady
Grove. Braddock v. Orlando Reg’l Health Care Sys., Inc., 881 F.Supp. 580, 583–
84 (M.D. Fla. 1995) (“where states have created specialized hurdles for filing
particular causes of action . . . the Eleventh Circuit has consistently favored the
federal rules.”); see also Callaway v. O’Connell, 44 F.Supp.3d 1316, 1329 n.7
(M.D. Ga. 2014) (“The Court recognizes the requirement that a plaintiff attach an
expert affidavit to his complaint in a professional malpractice action pursuant to
[Georgia’s statute] does not apply in federal court.”); Robinson v. Corr. Med.
Assoc., Inc., No. 1:09-cv-01509, 2010 WL 2499994, at *4 (N.D. Ga. June 15,
2010) (holding that Georgia affidavit statute imposes a heightened pleading
requirement, and under Hanna v. Plumer, 380 U.S. 460 (1965), is contrary to the
FRCP); Roberts v. Jones, 390 F.Supp.2d 1333, 1337 (M.D. Ga. 2005) (“The
sufficiency of a plaintiff’s complaint is judged by the standard set out in Federal
Rule 8(a) which does not require the affidavit of an expert.”).
Defendant points out that “the overwhelming majority position within the
Sixth Circuit is that affidavit of merit requirements are substantive and not in
conflict with federal rules.” Def.’s Reply to Pl.’s Resp. to Def.’s Mot. to Dismiss 5
(citing Bennafield v. U.S., No. 4:12CV3010, 2013 WL 5173221 (N.D. Ohio Sept.
12, 2013)). Defendant cites several Sixth Circuit district court cases to bolster
this argument.3 However, all of the cases cited by Defendant either (1) jump to
the Erie analysis of whether a state law is substantive or procedural; (2) conclude
that Ohio’s affidavit of merit requirement applies in federal court based on the
court’s holding in Daniel v. United States, 716 F.Supp.2d 694, 698 (N.D. Ohio
2010), which also relied on an Erie analysis; or (3) conduct no analysis at all in
concluding that the Ohio affidavit of merit requirement applies in federal court.
None of the cases relied on by Defendant cite Shady Grove or “address the preErie threshold question—whether a Federal Rule answers the question in dispute
such that a conflicting state law cannot apply.”
Larca, 302 F.R.D. at 157.
Because the courts in these cases did not address whether the FRCP are
sufficiently broad so as to control the pleading requirements for plaintiffs alleging
medical malpractice, the Court is not persuaded by the contrary results reached.
Upon thorough examination of FRCP 8, 9, and 11, Section 29-26-122 of
the Tennessee code, and all applicable case law, the Court agrees with Plaintiff.
The FRCP’s pleading requirements are sufficiently broad so as to control the
Bush v. United States, No. 1:13-cv-406, 2014 WL 661686, at *6 (S.D. Ohio Feb.
19, 2014); Kennedy v. U.S. Veterans Admin., No. 2:11-cv-150, 2013 WL
5524686 (S.D. Ohio Oct. 4, 2013); Borders v. Lappin, No. 1:11cv1514, 2013 WL
3804858, at *3–6 (N.D. Ohio July 19, 2013); Willis v. U.S. Dep’t of Veteran’s
Affairs, No. 2:12-cv-867, 2013 WL 3155785, at *3–4 (S.D. Ohio June 20, 2013);
Smith v. U.S., No. 2:11-CV-0616, 2011 WL 5101779, at *1 (S.D. Ohio Oct. 26,
2011); Bierbauer v. Manenti, No. 4:09CV2142, 2010 WL 4008835, at *10 (N.D.
Ohio Oct. 12, 2010); Landis v. U.S., No. 2:08-cv-00723, 2009 WL 825407, at *1
(S.D. Ohio Mar. 27, 2009).
question of whether Plaintiff has pled her case sufficiently to survive a motion to
dismiss. Because Section 29-26-122’s certificate of merit requirement conflicts
with Rule 8, the Court must apply the federal rule unless it is invalid under the
Rules Enabling Act or the Constitution. Royalty Network, Inc. v. Harris, 756 F.3d
1351, 1360 (11th Cir. 2014). The Court now proceeds to the second prong of the
Shady Grove analysis.
FRCP 8, 9, and 11 are a valid exercise of the Court’s authority
under the Rules Enabling Act
In the Rules Enabling Act, Congress authorized the Supreme Court to
“promulgate rules of procedure subject to its review, 28 U.S.C. § 2072(a), but
with the limitation that those rules ‘shall not abridge, enlarge or modify any
substantive right,’ § 2072(b).”
Shady Grove, 559 U.S. at 406–07; see also
Hanna, 380 U.S. at 471. The FRCP are presumed to be constitutionally and
statutorily valid constraints. Burlington Northern R. Co. v. Woods, 480 U.S. 1, 5
(1987). The court finds nothing here that would undermine these presumptions.
Further, none of the parties in this case have challenged Rules 8, 9 or 11 of the
FRCP as unconstitutional, and the Court sees no basis for such a challenge.
The Court concludes that FRCP 8, 9, and 11 are presumptively valid under the
Rules Enabling Act and the Constitution.
The Court holds that (1) the FRCP are sufficiently broad so as to control
the pleading requirements for medical malpractice cases in federal court on the
basis of an FTCA claim, and (2) FRCP 8, 9, and 11 are presumptively valid under
the Rules Enabling Act and the Constitution.
As a result, Section 29-26-122 of the Tennessee Code is inapplicable to
claims in federal court, regardless of whether it is considered a substantive or
Plaintiff’s failure to comply with Section 29-26-122 does not
warrant dismissal of the Complaint because the FRCP displace state law that
imposes additional pleading requirements.
Tennessee’s Medical Malpractice Statute of Repose is
Preempted by the Time Limitations Prescribed by Congress in
Defendant further moves to dismiss Plaintiff’s Complaint for lack of subject
matter jurisdiction, arguing that the Complaint is barred by Tennessee’s threeyear statute of repose for medical malpractice actions. Def.’s Mem. in Supp. of
its Mot. to Dismiss 7. Plaintiff contends that, if Tennessee law is applicable in
this case, the Tennessee statute of repose for medical malpractice actions is
preempted by the time limitations of the FTCA. Under Tennessee law, there is a
three-year statute of repose for health care liability actions, unless there is
fraudulent concealment on the part of the defendant. Tenn. Code Ann. § 29-26116(a)(3). The time limitations prescribed by Congress for FTCA claims directly
conflict with Tennessee’s three-year statute of repose.
Congress has enacted several statutes governing time limitations in FTCA
claims. Relevant to Plaintiff’s claims are 28 U.S.C. §§ 2675(a) and 2401(b).
Under § 2675(a), a plaintiff must first have his claim denied by the appropriate
federal agency before filing the claim in federal court.
28 U.S.C. § 2675(a).
Section 2401(b) states:
A tort claim against the United States shall be forever barred unless
it is presented in writing to the appropriate Federal agency within two
years after such claim accrues or unless action is begun within six
months after the date of mailing . . . of notice of final denial of the
28 U.S.C. § 2401(b). The FTCA’s time limitations in § 2401(b) and § 2675(a) are
tolled by the filing of a reconsideration claim within six months after “final denial”
by the appropriate agency. 28 C.F.R. § 14.9(b). Tolling allows a claimant to wait
until a final agency decision is made, “‘thereby increasing the chances of
administrative resolution and decreasing the burden on the federal courts.’” Blau
v. United States, No. 8:12-cv-2669-T-26AEP, 2013 WL 704762, at *2 (M.D. Fla.
Feb. 26, 2013) (quoting Mack v. United States, 414 F.Supp. 504, 508 (E.D. Mich.
As Plaintiff explains in her Response to Defendant’s Motion to Dismiss,
this leaves only two time-has-lapsed scenarios that will bar a plaintiff’s cause of
action under the FTCA: (1) where the claimant does not present his claim to the
appropriate federal agency within two years from the claim’s accrual; or (2)
where the claimant fails to bring a cause of action within six months of final denial
of the claim by the federal agency.
See 28 U.S.C. §§ 1675(a), 2401(b); 28
C.F.R. § 14.9(b).
Plaintiff filed her administrative claim with the VA on October 4, 2013.
Assuming that Plaintiff’s claim accrued on December 20, 2011,4 Plaintiff’s
administrative action was timely filed within two years, in compliance with §
2401(b). Plaintiff’s claim was not denied by the VA until April 10, 2014. Plaintiff
then timely filed a request for reconsideration with the VA on September 8, 2014.
This request for reconsideration was not denied until February 10, 2015, after the
expiration of Tennessee’s three-year statute of repose. Plaintiff filed this action
on March 20, 2015, after exhausting her administrative remedies. March 20,
2015 is within the six-month window provided for in § 2401(b).
Defendant acknowledges that Plaintiff was required to first file an
administrative claim with the appropriate federal agency prior to instituting a
claim in federal court. Def.’s Rep. to Pl.’s Resp. to Def.’s Mot. to Dismiss 8.
However, Defendant contends that Plaintiff should have filed this action after the
initial denial of her claim by the VA, April 10, 2014, but before the date that
Defendant contends the statute of repose expired, December 20, 2014. Id. at 8–
Defendant argues that Plaintiff’s failure to file the instant action before
December 20, 2014 was a violation of Tennessee’s statute of repose for medical
malpractice claims, and therefore warrants dismissal of the Complaint.
argument would defeat the purpose of the tolling provision provided for in 28
C.F.R. § 14.9(b), which allows a claimant to wait until the agency has reached a
final resolution of the claim.
The date of Defendant’s first alleged act of negligence.
The Court must address whether Tennessee’s statute of repose is
preempted under the circumstances of this case—where the plaintiff follows the
time constraints of the FTCA, but the state statute of repose would bar the action.
There are three categories of preemption: (1) express preemption; (2) field
preemption; and (3) conflict preemption. Florida State Conference of N.A.A.C.P.
v. Browning, 522 F.3d 1153, 1167 (11th Cir. 2008). Field and conflict preemption
are together considered “implied preemption.”
Id. (citing Gade v. Nat’l Solid
Wastes Mgmt. Ass’n, 505 U.S. 88, 98 (1992)). Express preemption occurs when
“Congress manifests its intent to displace a state law using the text of a federal
statute.” Id. Field preemption occurs when a “congressional legislative scheme
is ‘so pervasive as to make the reasonable inference that Congress left no room
for the states to supplement it.’” Id. (citing Rice v. Santa Fe Elevator Corp., 331
U.S. 218, 230 (1947)).
Conflict preemption occurs when it is “physically
impossible to comply with both the federal and the state laws or when the state
law stands as an obstacle to the objective of the federal law.” Id.
Courts confronted with the issue facing this Court have reached conflicting
Plaintiff urges the Court to adopt the reasoning of two other district
courts that found that the time limitations prescribed by the FTCA preempted
state statutes of repose. In Blau, the Middle District of Florida held that Florida’s
four-year statute of repose was preempted by the FTCA.
Blau, 2013 WL
704762, at *1. The court provided three main reasons for its decision. First, the
court noted that the tolling provision of the FTCA allows claimants to wait for a
final agency decision, thereby increasing chances of administrative resolution
and decreasing the burden on federal courts. Blau, 2013 WL 704762, at *2.
Allowing state statutes of repose to supersede the FTCA’s time limitations would
defeat Congress’s attempt to encourage administrative resolution. Id. Second,
the FTCA’s time limitations are couched in terms of accrual, indicating
Congress’s intent to occupy the field of statutes of limitations and repose. Id. at
*3. Finally, the court explained that if state statutes of repose were applicable in
FTCA claims, each state would be permitted to define the federal courts’ subject
matter jurisdiction. Id. at *3. The court dismissed cases that found otherwise,
explaining that those cases either did not consider federal preemption or were
factually distinguishable from the facts presented in Blau. Id. at *3. The court
held that state statutes of repose are preempted by the FTCA.
The Middle District of Tennessee took a similar position in Jones v. United
States, 789 F.Supp.2d 883 (M.D. Tenn. 2011). In that case, Tennessee’s threeyear statute of repose was at issue. Jones, 789 F. Supp.2d at 885. Plaintiff filed
the action in federal court after waiting more than six months for the agency’s
final ruling on the administrative action, after Tennessee’s statute of repose ran
but before the deadline for filing under § 2401(b). Id. The court held that, “[a]
claimant’s claim is extinguished only if the claimant fails to meet the deadlines in
§2401(b), and a state’s statute of repose has no effect on the federal claim.” Id.
at 892. The time limitations of the FTCA were held to supplant state statutes of
Defendant argues that the Middle District of Tennessee’s holding in Jones
should not persuade this Court, because the same court reached a different
holding just two months later in Huddleston v. U.S., No. 3-11-0223, 2011 WL
2489995 (M.D. Tenn. June 22, 2011). The Sixth Circuit affirmed Huddleston on
appeal. See Huddleston v. U.S., 485 F. App’x 744 (6th Cir. 2012). As Plaintiff
correctly points out, however, the district and circuit court opinions in Huddleston
are unpublished, and unpublished opinions are not considered binding precedent
in this Circuit. 11th Cir. R. 36-2. The Middle District of Tennessee’s opinion in
Jones is published, and of greater precedential value.
The Court agrees with Plaintiff, and is persuaded by the courts’ holdings in
Blau and Jones. Under either of the implied preemption categories, the time
limitations of the FTCA preempt state statutes of repose. The court in Mamea v.
United States, No. 08—00563, 2011 WL 4371712 (D. Hawai’i Sept. 16, 2011),
explained it best:
A statute of repose extinguishes a claim after a certain period of
time, even if the claim has not yet accrued. Insofar as Congress
expressly defined the statute of limitations for the FTCA in terms of
accrual, applying state statutes of repose can effectively shorten the
FTCA limitations period. By defining the statute of limitations as two
years after accrual, Congress chose to allow suits against the United
States that might be barred in states with shorter limitations periods,
whether by statute of limitation or statute of repose.
Mamea, 2011 WL 4371712, at *10. The time limitations crafted by Congress in §
2401(b) persuade the Court that Congress intended to override state statutes of
limitation and repose. Congress left no room for states to supplement the law
with respect to the time constraints governing FTCA claims.
Further, Tennessee’s statute of repose stands as an obstacle to the
objective of the time limitations dictated in the FTCA. In considering the FTCA’s
time limitations, the United States Supreme Court has stated:
We should also have in mind that the [FTCA] waives the immunity of
the United States and that in construing the statute of limitations,
which is a condition of that waiver, we should not take it upon
ourselves to extend the waiver beyond that which Congress
intended. See Soriano v. United States, 352 U.S. 270, 276, 77 S.Ct.
269, 273, 1 L.Ed.2d 306 (1957); cf. Indian Towing Co. v. United
States, 350 U.S. 61, 68–69, 76 S.Ct. 122, 126, 100 L.Ed. 48 (1955).
Neither, however, should we assume the authority to narrow the
waiver that Congress intended. Indian Towing Co. v. United States,
United States v. Kubrick, 444 U.S. 111, 117–18 (1979). Applying Tennessee’s
three-year statute of repose to Plaintiff’s FTCA claim would narrow the waiver
Congress intended when it expressly laid out the time limitations for FTCA
claimants. As a result, applying Tennessee’s statute of repose in this case would
pose an obstacle to the time limitations in the FTCA, all of which with Plaintiff
The Court holds that Tennessee’s statute of repose is impliedly preempted
by the FTCA; therefore, Plaintiff’s Complaint is not subject to dismissal and this
Court does not lack subject matter jurisdiction.
Plaintiff’s tolling argument is
therefore moot, and need not be addressed by the Court.
For the foregoing reasons, the Court denies Defendant’s Motion to Dismiss
(Doc. 5) and Motion to Dismiss Plaintiff’s First Amended and Recast Complaint
(Doc. 13). Plaintiff’s Motion for Extension of Time to File Good Faith Certificate
(Doc. 12) is moot.
SO ORDERED, this the 6th day of October, 2015.
/s/ Hugh Lawson_________________
HUGH LAWSON, SENIOR JUDGE
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