Stidham v. United States of America

Filing 5

ORDER denying 2 Motion to Dismiss. Signed by Judge Thomas W. Thrash, Jr on 1/2/2014. (ss)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
CONNIE BILL STIDHAM,
Plaintiff,
v.

CIVIL ACTION FILE
NO. 1:13-CV-1093-TWT

UNITED STATES OF AMERICA,
Defendant.

OPINION AND ORDER

This is a medical malpractice case arising under the Federal Tort Claims Act.
It is before the Court on the Defendant’s Motion to Dismiss [Doc. 2] the Plaintiff’s
Complaint. For the reasons set forth below, the Defendant’s Motion to Dismiss is
DENIED.
I. Background
This lawsuit arises out of treatment received by the Plaintiff Connie Bill
Stidham at the VA Medical Center in Decatur, GA. The Plaintiff was injured in a
motor vehicle accident on July 12, 2010. (Compl. ¶ 13.) He was initially transported
to the Gwinnett Medical Center where he was told that he needed surgery to correct
a tibial fracture. (Compl. ¶¶ 14-15.) The Plaintiff, a veteran, instead chose to seek
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treatment at the local VA Medical Center on July 13, 2010. (Compl. ¶¶ 16-17.) There,
he was told that the swelling was too involved for immediate surgery. (Compl. ¶ 17.)
He was given a knee brace and sent home. (Compl. ¶ 17.)
The Plaintiff then returned to the VA Medical Center on July 16, 2010, and was
told he did not need surgery for his tibial fracture. (Compl. ¶ 18.) Instead, the doctor
instructed him to wear a locking PCL knee brace. (Compl. ¶ 19.) The Plaintiff was
told to wear the previous brace he had been given until the PCL knee brace arrived.
(Compl. ¶ 21.) However, an order for the new brace was not placed until January 5,
2011, six months after it had been prescribed. (Compl. ¶ 26.) The order was also for
the wrong type of brace. (Compl. ¶ 27.) Another brace was then procured for the
Plaintiff, and it was again the incorrect brace. (Compl. ¶ 29.) Finally, on June 6, 2011,
the Plaintiff was given the correct brace. (Compl. ¶ 36.)
As a result of the alleged negligence of the VA Medical Center personnel, the
Plaintiff claims that his right knee is permanently damaged. (Compl. ¶ 38.) He further
alleges that "he will be forced to wear two braces and walk with a cane, suffer
significant pain with each step, require daily narcotic pain medication, and live with
the fact that he will never be able to resume a normal gait." (Compl. ¶ 33.)

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II. Legal Standard
A complaint should be dismissed under Rule 12(b)(6) only where it appears that
the facts alleged fail to state a "plausible" claim for relief. Ashcroft v. Iqbal, 129 S.Ct.
1937, 1949 (2009); Fed. R. Civ. P. 12(b)(6). A complaint may survive a motion to
dismiss for failure to state a claim, however, even if it is "improbable" that a plaintiff
would be able to prove those facts; even if the possibility of recovery is extremely
"remote and unlikely." Bell Atlantic v. Twombly, 550 U.S. 544, 556 (2007). In
ruling on a motion to dismiss, the court must accept the facts pleaded in the complaint
as true and construe them in the light most favorable to the plaintiff. See Quality
Foods de Centro America, S.A. v. Latin American Agribusiness Dev. Corp., S.A., 711
F.2d 989, 994-95 (11th Cir. 1983); see also Sanjuan v. American Bd. of Psychiatry
and Neurology, Inc., 40 F.3d 247, 251 (7th Cir. 1994) (noting that at the pleading
stage, the plaintiff "receives the benefit of imagination"). Generally, notice pleading
is all that is required for a valid complaint. See Lombard's, Inc. v. Prince Mfg., Inc.,
753 F.2d 974, 975 (11th Cir. 1985), cert. denied, 474 U.S. 1082 (1986). Under notice
pleading, the plaintiff need only give the defendant fair notice of the plaintiff's claim
and the grounds upon which it rests. See Erickson v. Pardus, 551 U.S. 89, 93 (2007).

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III. Discussion
The only issue before the Court is whether O.C.G.A. § 9-11-9.1 applies to
actions brought in federal court. Under Georgia law, a party asserting a claim for
professional malpractice must file with the complaint "an affidavit of an expert
competent to testify" setting forth "specifically 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).
The Plaintiff did not attach such an affidavit to his Complaint. The Defendant argues
that this pleading requirement applies in federal court, and that the Plaintiff's failure
to satisfy it warrants dismissal. The Plaintiff argues, conversely, that he need only
satisfy the requirements set forth in Rule 8(a) of the Federal Rules of Civil Procedure.1
Although the Eleventh Circuit has not expressly addressed this question, Brown
v. Nichols, 8 F.3d 770, 774 (11th Cir. 1993) ("We . . . need not reach the question of
whether § 9-11-9.1 actually applies in federal court."), Judges of this Court have

1

The cause of action in this case arises under the Federal Tort Claims Act. The
FTCA operates as a limited waiver of sovereign immunity so that, subject to certain
limitations, federal officials may be liable under state law to the same extent as private
individuals. See Pate v. Oakwood Mobile Homes, Inc., 374 F.3d 1081, 1084 (11th Cir.
2004). Consequently, state law governs liability. See Creekmore v. United States, 905
F.2d 1508, 1510 (11th Cir. 1990) ("The Federal Tort Claims Act requires us to apply
state law to determine the substantive liability of the United States."). "In FTCA
cases"--like with diversity jurisdiction actions--"state law applies to substantive
questions and federal rules govern procedural matters." Gil v. Reed, 535 F.3d 551, 558
n.2 (7th Cir. 2008).
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previously found that O.C.G.A. § 9-11-9.1 does not apply to actions in federal court,
Baird v. Celis, 41 F. Supp. 2d 1358, 1362 (N.D. Ga. 1999) ("Plaintiff is not bound by
O.C.G.A. § 9-11-9.1 in this Court."). Since Baird, this Court has repeatedly reached
the same conclusion. See, e.g., Zurich Am. Ins. Co. v. Sheffer Eng'g Co., Inc., Civ. A.
109-cv-666-RWS, 2011 WL 344095, at *4 (N.D. Ga. Jan. 31, 2011) ("[T]his Court
has consistently held that O.C.G.A. § 9-11-9.1 does not apply in federal court.");
Robinson v. Correctional Medical Associates, Inc., Civ. A. 1:09-cv-1509-JOF, 2010
WL 2499994, at *4 (N.D. Ga. June 15, 2010) ("[T]he court finds that the affidavit
requirement of O.C.G.A. § 9-11-9.1 is contrary to the Federal Rules of Civil
Procedure and does not apply in this case."); Larson v. Grayer, Civ. A.
109-cv-1501-RWS, 2009 WL 4281100, at *1 (N.D. Ga. Nov. 23, 2009); Botes v.
Steel, Civ. A. 108-cv-02854-CAM, 2010 WL 1080752, at *5 (N.D. Ga. Mar. 17,
2010). The Court now concludes, again, that O.C.G.A. § 9-11-9.1 does not apply to
actions in federal court.
In Hanna v. Plumer, 380 U.S. 460 (1965), the Supreme Court "set forth the
appropriate test for resolving conflicts between state law and the Federal Rules."
Burlington N. R. Co. v. Woods, 480 U.S. 1, 4 (1987). The first step is to resolve
whether there actually is a conflict. The Court must "determine whether, when fairly
construed, the scope of [the] Federal Rule . . . is 'sufficiently broad' to cause a 'direct

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collision' with the state law or, implicitly, to 'control the issue' before the court,
thereby leaving no room for the operation of that law." Id. at 4-5. If it is, "[t]he Rule
must then be applied if it represents a valid exercise of Congress' rulemaking
authority, which originates in the Constitution and has been bestowed on this Court
by the Rules Enabling Act."2 Id.
Rule 8(a) is sufficiently broad to control the issue of whether the Plaintiff's
Complaint must be accompanied by an expert affidavit. Rule 8(a) certainly applies to
the Plaintiff’s claim,3 see Swierkiewicz v. Sorema N. A., 534 U.S. 506, 513 (2002)
("Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited
exceptions."), and it requires only "a short and plain statement of the claim showing
that the pleader is entitled to relief," FED. R. CIV. P. 8(a)(2). Under this pleading
standard, "a plaintiff's allegations need only be sufficiently detailed-at least for the

2

However, "[i]f a federal statute or Rule of Civil Procedure does not
sufficiently cover the disputed issue, Hanna requires that the district court consider .
. . whether application of federal judge-made law would disserve the twin aims of the
Erie rule: discouragement of forum shopping and avoidance of inequitable
administration of the laws." Alexander Proudfoot Co. World Headquarters v. Thayer,
877 F.2d 912, 917 (11th Cir. 1989).
3

The Plaintiff asserted a medical malpractice claim. To prevail, he must
establish: "(1) the duty inherent in the health care provider-patient relationship; (2)
breach of that duty by failing to exercise the requisite degree of skill and care; and (3)
that this failure is the proximate cause of the injury sustained." Renz v. Northside
Hosp., Inc., 285 Ga. App. 882, 885 (2007).
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purpose of stating an adequate claim on the merits-to 'give the defendant fair notice
of what the . . . claim is and the grounds upon which it rests.'" Weissman v. National
Ass'n of Sec. Dealers, Inc., 500 F.3d 1293, 1304 (11th Cir. 2007). This represents a
policy judgment that plausible claims which lack merit for evidentiary reasons should
be disposed of on summary judgment. See Swierkiewicz, 534 U.S. at 512 ("This
simplified notice pleading standard relies on liberal discovery rules and summary
judgment motions to . . . dispose of unmeritorious claims."). Indeed, this Court has
previously found that a professional malpractice claim is unlikely to survive summary
judgment if the plaintiff has not provided expert testimony. See Botes, 2010 WL
1080752, at *6 ("[A]lthough a plaintiff alleging legal malpractice in a federal diversity
action governed by Georgia law need not attach an expert affidavit to his complaint,
he must present 'the testimony of an expert witness' to 'create an issue of fact' for trial
'concerning alleged legal malpractice.'"). Thus, Rule 8(a) is inconsistent with
O.C.G.A. § 9-11-9.1, which establishes a more stringent pleading requirement. See,
e.g., Vitner v. Miller, 223 Ga. App. 692, 693 (1996) ("Vitner . . . contends . . . that the
expert affidavit . . . was insufficient. . . .We disagree. OCGA § 9-11-9.1 merely
imposes an initial pleading requirement."); 0-1 Doctors Mem'l Holding Co. v. Moore,
190 Ga. App. 286, 287 (1989) ("We construe OCGA § 9-11-9.1 as establishing an
exception to the general liberality of pleading.").

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In response, the Defendant cites to one Eleventh Circuit case, Nelson v. U.S.,
478 Fed. Appx. 647 (11th Cir. 2012). That case dealt with a Missouri affidavit
requirement similar to O.C.G.A. § 9-11-9.1. The district court dismissed the plaintiff's
claim because he failed to "identify an expert witness" and failed to "provide an
affidavit in support of his claims." Id. at 647. In agreeing that the failure to satisfy the
affidavit requirement justified dismissal, the Eleventh Circuit stated, in full: "Nelson
never provided the required affidavit; thus, dismissal without prejudice was
permissible on this basis as well."4 Id. To begin, Nelson is not binding precedent. See
11th Cir. R. 36-2; Solis v. A? Nursetemps, Inc., 5:07-CV-182-OC-10PRL, 2013 WL
1395863, *5 n.9 (M.D. Fla. Apr. 5, 2013) ("Decisions published in the Federal
Appendix are not binding precedent, but may be cited as persuasive authority."). In

4

The Eleventh Circuit also based its decision on another conclusion. Because
Missouri law requires expert testimony to establish an element of the claim (standard
of care), it found that the failure to name an expert witness meant that the plaintiff did
not state a viable claim. See Nelson, 478 Fed. Appx. at 648 ("Nelson never disclosed
a medical expert. Therefore, Nelson did not support his medical malpractice claim
with evidence of the applicable medical standard of care, and his claim was due to be
dismissed on this basis."). To the extent that this suggests that a federal court must
adhere to state laws governing evidence sufficiency, that conclusion would be
inconsistent with controlling precedent. See Daniels v. Twin Oaks Nursing Home, 692
F.2d 1321, 1323-24 (11th Cir. 1982) ("[U]nder Erie federal law controls questions of
the sufficiency of the evidence in state law claims."); Cater v. Gordon Transp., Inc.,
390 F.2d 44, 46 (5th Cir. 1968) (When "[t]he question is not whether a certain element
is a part of a prima facie case which must be proven, but only whether certain facts are
sufficient to prove the state-determined elements," a court must look to "federal and
not state law.").
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Caster v. Hennessey, 781 F.2d 1569, 1570 (11th Cir. 1986)--which is binding--the
Eleventh Circuit stated that "a federal court need not adhere to a state's strict pleading
requirements but should instead follow Fed.R.Civ.P. 8(a)." Further, unlike in Caster
where the Eleventh Circuit assessed whether the state rule was controlling under the
Hanna test, no similar analysis took place in Nelson. Thus, even as persuasive
authority, Nelson does not compel the Court to reach a different conclusion. Given
that Rule 8(a) is controlling, and that the Defendant is not arguing that it exceeds
Congress' rule-making authority, the motion to dismiss should be denied.
IV. Conclusion
For these reasons, the Court DENIES the Defendant’s Motion to Dismiss [Doc.
2].
SO ORDERED, this 2 day of January, 2014.

/s/Thomas W. Thrash
THOMAS W. THRASH, JR.
United States District Judge

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