Rudisill v. UNITED STATES OF AMERICA et al
ORDER denying 31 Motion to Qualify Expert; granting in part and denying in part 33 Motion for Leave to File; granting 35 Motion for Ruling on Plaintiff's Motion for Protective Order; denying as moot 11 Motion to Dismiss for Lack of Jurisdiction. Counsel is reminded to read the order in its entirety for critical deadlines and information. Signed by Senior Judge James C. Fox on 3/20/2014. (Edwards, S.)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
CATHY L. RUDISILL,
UNITED STATES OF AMERICA,
This matter is before the court on the Government's motion to dismiss [DE-ll] and
Rudisill's motion to amend [DE-33], motion for protective order [DE-20], and motion to qualify
expert [DE-31]. The motion to amend is ALLOWED in part and DENIED in part, the motion to
dismiss is DENIED AS MOOT, the motion for protective order is ALLOWED in part and
DENIED in part and the motion to qualify expert is DENIED.
Cathy Rudisill alleges that her surgeons committed medical malpractice in the course of a
surgery at the Womack Army Medical Center. After learning that she had an "adrenal mass" in
her abdomen that was interfering with her ability to control her blood sugars, Rudisill scheduled
surgery to have it removed. Rudisill alleges two Army surgeons negligently performed the
procedure and their negligence proximately caused injuries to her spleen and pancreas. After the
surgery, Rudisill sought treatment at a different hospital, where surgeons removed most of her
pancreas and her entire spleen.
Because the surgery occurred at an army hospital, Rudisill brings her claims under the
Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. Among other things, the FTCA requires
administrative exhaustion before the claims may be pursued in federal district court. § 2675(a).
Rudisill alleges that she pursued her negligence claims through the appropriate administrative
channels, but they were ultimately denied. The Government has filed a motion to dismiss the
hospital negligence claim and an answer responding to Rudisill's other claims. After discovery
began, Rudisill filed the instant motion to amend, motion for protective order, and motion to
A. Motion to Amend/Motion to Dismiss
The Government's Rule 12(b)(l) motion to dismiss asserts that Rudisill has failed to
exhaust administrative remedies with respect to the hospital negligence claim, thereby depriving
the court of subject matter jurisdiction. However, Rudisill recently filed a motion to amend the
complaint. The motion requests, among other things, an amendment which reads "[p ]rior to
filing this action, Plaintiff exhausted all administrative remedies as to each party and each
claim." Pl.'s Mot. for Leave to File Amended Compl. [DE-33] at 1.
In these circumstances, Federal Rule of Civil Procedure 15(a)(2) allows "a party [to]
amend its pleading only with the opposing party's written consent or the court's leave. The court
should freely give leave when justice so requires." Fed. R. Civ. P. 15(a)(2). District courts
should liberally allow amendments:
If the underlying facts or circumstances relied upon by a plaintiff may be a proper
subject of relief, he ought to be afforded an opportunity to test his claim on the
merits. In the absence of any apparent or declared reason-such as undue delay, bad
faith or dilatory motive on the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue prejudice to the opposing
party by virtue of allowance of the amendment, futility of amendment, etc.-the
leave sought should, as the rules require, be "freely given."
Foman v. Davis, 371 U.S. 178, 182 (1962). However, leave to amend is "not to be granted
automatically," Deasy v. Hill, 833 F.2d 38, 40 (4th Cir. 1987), and a district court has discretion
to deny amendment so long as the court does not "outright refuse 'to grant the leave without any
justifying reason."' Equal Rights Ctr. v. Niles Bolton Assocs., 602 F .3d 597, 603 (4th Cir. 201 0)
(quoting Foman, 371 U.S. at 182).
The government (confusingly) argues that the administrative exhaustion amendment is
futile because the court will address administrative exhaustion when it decides the motion to
dismiss, which the Government filed prior to the motion to amend. Although the Government
fails to explain this argument in any additional detail, the court assumes the Government is
arguing that Rudisill's amendment is not based on any new facts uncovered in discovery
regarding administrative exhaustion and thus the amendment does not moot the Government's
motion to dismiss. 1 And Rudisill's motion certainly does not contradict that argument, as there is
no memorandum in support of the motion to dismiss explaining the legal or factual basis for any
of the proposed amendments.
Although the court is reluctant to allow leave to amend in these circumstances, the court
remains mindful that the policy ofthe Federal Rules is that claims should be decided on their
merits, not legal technicalities (such as the failure to file a memorandum in support of leave to
Because the Government's motion is made pursuant to Federal Rule of Civil Procedure
12(b)(l), the court may consider facts beyond the pleadings. See Kerns v. United States, 585 F.3d 187,
192 (4th Cir. 2009).
amend). 2 Laber v. Harvey, 438 F.3d 404, 426 (4th Cir. 2006). As such, the court will presume
that new facts have come to light in discovery that may bear on the issue of administrative
exhaustion. Accordingly, the motion to amend paragraph six to allege administrative exhaustion
"as to all claims" is ALLOWED. Because the court presumes Rudisill filed this amendment
because new facts have come to light that would confer jurisdiction, the Government's motion to
dismiss [DE-ll] is DENIED AS MOOT but without prejudice to re-file. 3 In the event Rudisill
did not intend this amendment to suggest that new facts are available regarding administrative
exhaustion, the parties may proceed as follows: the Government should file a new motion to
dismiss the hospital negligence claim. Then, the parties may file a consent motion to adopt the
prior briefing related to the Government's motion to dismiss at docket entry 11 as the operative
briefing on the new motion to dismiss. The court will then decide the motion to dismiss on the
basis of the facts and arguments addressed in the earlier briefing. Assuming the parties have new
information regarding administrative exhaustion, then the parties will need to file new briefing
regarding dismissal of the hospital negligence claim.
Rudisill also requests leave to amend paragraph 43 of her complaint. Originally,
paragraph 43 read as follows: "[p ]rior to instituting this suit for medical malpractice, Plaintiff
first obtained certification from an appropriately qualified expert medical witness stating that the
Counsel should not construe this statement as suggesting that future motions do not need to be
accompanied by properly-supported memoranda. Almost all civil motions require memoranda in support
in this district. Local Civil R. 7.1 (d).
The Government also requests "clarification" that its response time runs from the date the
court allows the amended complaint. That has always been the court's understanding of Rule 15. In this
particular case, Rudisill will have seven business days to file her amended complaint and the
Government's response time will begin to run on the date the amended complaint is filed. The
Government also requests, without citation to authority, to "be relieved of its obligation to file an
amended answer" to address the administrative exhaustion amendment. This request is DENIED.
Defendants were negligent .... " Compl.
43. Rudisill's proposed amendment retains
the foregoing language and adds, among other things, the following: "[A ]ll medical records
pertaining to the alleged negligence that are available to the plaintiff after reasonable inquiry
have been reviewed by a person who is reasonably expected to qualify as an expert witness under
Rule 702 ofthe Rules of Evidence .... " Mot. to Amend [DE-33] at 2.
As the Government notes, this amendment is an attempt to bring the complaint in
compliance with Rule 9(j) of the North Carolina Rules of Civil Procedure. 4 Rule 9(j) provides
[a]ny complaint alleging medical malpractice by a health care provider ... shall
be dismissed unless ( 1) [t]he pleading specifically asserts that the medical care
and all medical records pertaining to the alleged negligence that are available to
the plaintiff after reasonable inquiry have been reviewed by a person who is
reasonably expected to qualify as an expert witness ... and who is willing to
testify that the medical care did not comply with the applicable standard of
N.C. Gen. Stat. § lA-1, Rule 9(j). The Government maintains that the amendment is futile
because it fails to allege that Rudisill's expert reviewed the medical records prior to filing the
lawsuit. See Mot. to Amend [DE-33] at 2 (requesting leave to amend to include the sentence "all
medical records pertaining to the alleged negligence that are available ... have been
rev1ewe d . . . .") .
Although the court is reluctant to deny amendment on this basis, the North Carolina
Supreme Court has interpreted Rule 9(j) so restrictively that the court is constrained to the agree
with the Government's position. In Brown v. Kindred Nursing Ctrs. E., 364 N.C. 76, 692 S.E.2d
The court takes no position on whether the initial complaint (without the amendment) complies
with Rule 9U), as that issue is not currently before the court.
87 (20 10), the Court held that the Rule 9U) expert review must occur prior to filing the initial
complaint. Id. at 84, 692 S.E.2d at 92. The Court also held that any amendment proposed to the
initial complaint regarding Rule 9(j) certification must contain language indicating the Rule 9(j)
certification occurred prior to filing the initial complaint. !d. In effect, Kindred Nursing
precludes a party from filing a medical malpractice claim, obtaining Rule 9(j) certification after
filing the lawsuit, and then requesting leave to amend the complaint to include the Rule 9(j)
Here, Rudisill's proposed amendment fails to allege that the expert review occurred prior
to filing her initial complaint. The proposed amendment contains the language "all medical
records pertaining to the alleged negligence that are available to the plaintiff after reasonable
inquiry have been reviewed[,]" Mot. to Amend [DE-33] at 2, but the language fails to allege
when the review occurred. Ordinarily, given the procedural posture of this case, the court would
draw the inference in Rudisill's favor that the review occurred prior to the time she filed her
initial complaint. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) ("A claim has facial
plausability when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged."). However, in the Rule 9(j)
context, the North Carolina Supreme Court apparently requires that any amendment specifically
allege that the review occurred prior to the plaintiff filing the initial complaint. See Kindred
Nursing, 364 N.C. at 84, 692 S.E.2d at 92; Thigpen v. Ngo, 355 N.C. 198, 203-04, 558 S.E.2d
162, 166-67 (2002). Accordingly, the amendment to paragraph 43, to the extent it alleges expert
review has been obtained, is DENIED as futile.
The court notes that the Government is not currently challenging the sufficiency of
Rudisill's original Rule 9(j) certification, which provides "prior to instituting this suit for medical
malpractice, Plaintiff first obtained certification from an appropriately qualified expert medical
witness stating that the Defendants were negligent .... " Compl.
43. As the
Government notes in a recent filing, "[the Government] elected to file an answer in response to
the complaint and to pursue Rule 9G) verification [during] discovery so as not to waste time with
a challenge to Rule 9(j) compliance unless such challenge was supported by the facts." Def. 's
Resp. to Pl.'s Mot. To Qualify Expert Per Rule 702 [DE-38] at 5. The court agrees that this
approach is preferable. Rather than deciding the case on the technical pleading rules, the court
prefers to decide the Rule 9(j) certification issue based on the actual merits of the certification as
disclosed in discovery. See Ford v. McCain, 192 N.C. App. 667, 672, 666 S.E.2d 153, 157
(2008) (explaining that a medical malpractice action is subject to dismissal if discovery reveals
that the plaintiff did not comply with Rule 9(j)). To that end, and as discussed in more detail
below, Rudisill will be required to anwser the Government's Rule 9(j) interrogatories.
The proposed amendment to paragraph 43 also contains the language "or facts
establishing negligence under the existing common-law doctrine of res ipsa loquitur." Although
it is by no means clear, the court presumes that this amendment seeks to plead in the alternative
that the facts alleged in the complaint make out a negligence claim under the doctrine of res ipsa
loquitur. Under Rule 9(j), if the pleadings allege facts that establish res ipsa, then expert
certification is not required. Rule 9G)(3).
Rather than challenging this amendment on the basis that the facts alleged do not make
out a res ipsa claim, the Government argues the amendment is futile because the doctrine of res
ipsa does not apply in the surgical field as a general matter. But that is not strictly true. See Tice
v. Hall, 310 N.C. 589, 593, 313 S.E.2d 565, 567 (1984); Schaffher v. Cumberland Cnty. Hasp.
Sys., Inc., 77 N.C. App. 689,691-94, 336 S.E.2d 116, 118-19 (1985). Presumably, the
Government is arguing that the facts as alleged in Rudisill's complaint do not make out a res ipsa
claim. However, the Government makes no attempt to support this legal conclusion with any
analysis of the facts alleged in the complaint and the court is not going to undertake this research
project without any assistance from the Government's brief. Accordingly, the motion to amend
to include the res ipsa language is ALLOWED.
To summarize, Rudisill's motion to amend [DE-33] is ALLOWED in part and DENIED
in part. It is ALLOWED as to the amendment to paragraph six. It is DENIED as to the portions
of the amendment to paragraph 43 addressing expert review. It is ALLOWED as to the portions
of the amendment to paragraph 43 addressing res ipsa loquitur. The Government's motion to
dismiss [DE-ll] is DENIED AS MOOT but without prejudice tore-file as explained above.
Rudisill is DIRECTED to file her amended complaint incorporating only the changes allowed in
this order within seven business days of the date of this order. The Government's response time
will begin running on the date the amended complaint is filed.
B. Motion for Protective Order
Rudisill also moves for a protective order regarding ten interrogatories the Government
served relating to Rudisill's compliance with Rule 9G). Rudisill maintains that because Rule 9(j)
is procedural, the Erie doctrine precludes the Government from serving these interrogatories. 5
Rudisill's motion fails to precisely identify the type of relief she seeks. Rudisill requests a
"protective order" regarding the Government's Rule 9U) interrogatories and argues that Rule 9(j)
conflicts with various Federal Rules of Civil Procedure. However, it is not clear if Rudisill is requesting
See Hanna v. Plumer, 380 U.S. 460, 465-66 (1965) (holding federal court sitting in diversity
should apply state substantive law and federal procedural law). Rudisill is wrong, and she is
DIRECTED to answer the interrogatories and provide the appropriate expert verification.
It is well settled that Rule 9(j), which requires dismissal of medical malpractice actions
that fail to comply with its directives, is substantive law, notwithstanding its denomination as a
rule of civil procedure. See, e.g., Littlepaige v. United States, 528 F. App'x 289, 292-93 (4th Cir.
2013) (explaining certification under Rule 9(j) is required to bring a medical malpractice action
in North Carolina and collecting cases); Flythe v. Davis, No. 4:10-CV-126-BO, 2011 WL
1870229, at *2 (E.D.N.C. May 16, 2011) ("[F]ederal courts in North Carolina have generally
characterized and applied Rule 9(j) as a substantive element of a medical malpractice claim,
rather than as a procedural requirement."); BouZa v. United States, No. 1: 11-CV -366, 2013 WL
1343547, at *2 (M.D.N.C. April2, 2013); Lauer v. United States, No. 1:12-CV-41, 2013 WL
566124, at *4 (W.D.N.C. Feb. 13, 2013). Because Rule 9(j) grafts a substantive requirement
onto medical malpractice actions in North Carolina, Rudisill is required to answer the
Government's Rule 9(j) interrogatories and provide the required expert verification.
To the extent Rudisill is complaining about Rule 9(j)'s provision allowing for an
additional ten interrogatories above the limit set by the North Carolina Rules of Civil Procedure,
the court agrees that the number of interrogatories is a matter exclusively within the province of
the Federal Rules and the court's discretion. Fed. R. Civ. P. 33 ("Unless otherwise stipulated or
a court order finding that she is not required to respond to the substance of the interrogatories or if she
requests an order clarifying that these interrogatories count as part of the Government's maximum
number of interrogatories. In an effort to clarify Rudisill's responsibilities regarding these
interrogatories, the court assumes that the motion requests both forms of relief.
ordered by the court, a party may serve on any other party no more than 25 written
interrogatories .... "). In this case, the parties have agreed (and the court has approved) up to
fifty interrogatories that each side may serve on the opposing party. Scheduling Order [DE-27] at
7. That is twice the limit provided for the in Federal Rules. Fed. R. Civ. P. 33. Accordingly, the
Government's ten Rule 9(j) interrogatories must be counted within the fifty interrogatory limit to
which the parties have already agreed. If the Government needs additional interrogatories, it
must first attempt to work the issue out with opposing counsel and, assuming that fails, seek
court approval for additional interrogatories.
The motion for protective order [DE-20] is DENIED in part and ALLOWED in part. To
the extent it requests a court order that Rudisill does not have to answer the substance of the Rule
9(j) interrogatories or provide the required expert certification, it is DENIED. It is ALLOWED
to the extent it requests that these ten interrogatories should count towards the fifty interrogatory
limitation. Rudisill is DIRECTED to answer the Rule 9(j) interrogatories and to provide the
required expert certification. The court will leave the time limitation for answering these
interrogatories to the parties, but the parties are cautioned, once again, not to be dilatory in
C. Motion to Qualify Expert under Rule 702
Finally, Rudisill also requests a court order determining that her expert is qualified under
Rule 702 ofthe Federal Rules of Evidence. As the Government notes, this motion is entirely
premature. The Government is not even contesting Rudisill's expert's qualifications at the
present time. Nor could it, given that the Government has not had an opportunity to depose the
expert or review his reports. While it is true that Rule 9(j) requires that the certification come
from an expert reasonably expected to qualify as an expert under Rule 702, nothing in the rule
requires court approval of the expert early in the litigation. It is counsel's responsibility to ensure
that the expert used for the Rule 9(j) certification was reasonably expected to qualify under Rule
702 at the time of the certification. And as the Government notes, so long as the expert was
reasonably expected to qualify at the time of the certification, a later disqualification of the expert
under Rule 702 does not necessarily render the claim itself subject to dismissal. See Trapp v.
Maccioli, 129 N.C. App. 237,241,497 S.E.2d 708,711 (1998) ("The disqualification of a Rule
9(j) witness under Rule 702 does not necessarily require the dismissal of the pleadings. The
question under Rule 9(j) instead is whether it was 'reasonably expected' that the witness would
qualify under Rule 702."). Accordingly, the motion to qualify expert [DE-31] is DENIED.
In summary, the motion to amend is ALLOWED in part and DENIED in part. It is
ALLOWED as to the amendment to paragraph six. It is DENIED as to the portions ofthe
amendment to paragraph 43 addressing expert review. It is ALLOWED as to the portions of the
amendment to paragraph 43 addressing res ipsa loquitur (the final phrase of the proposed
language). The Government's motion to dismiss [DE-ll] is DENIED AS MOOT but without
prejudice tore-file as explained above. Rudisill is DIRECTED to file her amended complaint
incorporating only the changes allowed in this order within seven business days of the date of
this order. The Government's response time will begin running on the date the amended
complaint is filed.
The Government's motion for ruling on the motion for protective order [DE-35] is
ALLOWED. The motion for protective order itself [DE-20] is ALLOWED in part and DENIED
in part. To the extent it requests a court order that Rudisill does not have to answer the substance
of the Rule 9G) interrogatories or provide the required expert certification, it is DENIED. It is
ALLOWED to the extent it requests that these ten interrogatories should count towards the fifty
interrogatory limitation. Rudisill is DIRECTED to answer the Rule 9(j) interrogatories and to
provide the required expert certification. The court will leave the time limitation for answering
these interrogatories to the parties. The motion to qualify expert [DE-31] is DENIED without
prejudice tore-file at the appropriate time.
Finally, the Clerk of Court has communicated with counsel for the Government regarding
whether the appropriate parties are named in this case. The Government indicates that one or
more of the named Defendants are not the appropriate parties. Assuming that is the case, counsel
must file a motion requesting that the relevant party be terminated. The motion may be a consent
This the ?.-6 day of March, 2014.
JAMES C. FOX
Senior United States District Judge
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