BOULA v. UNITED STATES OF AMERICA

Filing 17

MEMORANDUM OPINION & RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE JOE L. WEBSTER signed on 4/2/2013, recommending that Defendant's motion to dismis (Docket Entry 7 ) be GRANTED. (Daniel, J)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
DONALD J. BOULA,
Plaintiff,
v.
THE UNITED STATES OF
AMERICA,
Defendant.

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1:11CV366

MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
This matter is before the Court on Defendant’s motion to dismiss (Docket Entry 7.)
Plaintiff has responded in opposition to the motion (Docket Entry 9) and the matter is ripe
for disposition. For the reasons that follow, Defendant’s motion should be granted.
I. BACKGROUND
Plaintiff initiated this action on May 11, 2011, alleging a claim for medical malpractice
pursuant to the Federal Tort Claims Act (FTCA). (Compl., Docket Entry 1.) Plaintiff
alleges that on July 2, 2007, while undergoing vitrectomy eye surgery at the VA Medical
Center in Durham, North Carolina (“DVA”), attending surgeons placed an incorrect gas
concentration into his left eye. (Id. at ¶ 1.) Plaintiff required subsequent treatment following
the vitrectomy (Id. at ¶¶ 16-20) and ultimately Plaintiff’s left eye was removed in October
2009 due to complications resulting from the initial July 2007 surgery. (Id. at ¶ 20.) Plaintiff
contends that he has suffered pain, has had to undergo multiple painful procedures, and

ultimately lost vision in his left eye which then had to be removed, causing disfigurement, all
as a result of the alleged medical negligence of Defendant.
Plaintiff brought this action against Defendant pursuant to the FTCA. Defendant
moved to dismiss the complaint for failure to meet the mandatory pre-filing requirements
for medical malpractice actions under N.C. R. Civ. P. Rule 9(j) 1.
II. STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 12(b)(6), a defendant may seek dismissal of a
complaint for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P.
12(b)(6). A motion to dismiss for failure to state a claim should be granted if the complaint
does not allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007). In other words, the factual allegations must “be
enough to raise a right to relief above the speculative level.” Id. at 555. “Thus, while a
plaintiff does not need to demonstrate in a complaint that the right to relief is ‘probable,’ the
complaint must advance the plaintiff’s claim ‘across the line from conceivable to plausible.’”
Walters v. McMahen, 684 F.3d 435, 439 (4th Cir. 2012) (quoting Twombly, 550 U.S. at 570). As
explained by the United States Supreme Court:
A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged. The plausibility standard is not akin to a
probability requirement, but it asks for more than a sheer possibility that a
defendant has acted unlawfully. Where a complaint pleads facts that are
merely consistent with a defendant’s liability, it stops short of the line between
possibility and plausibility of entitlement to relief.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotations and citations omitted).

1

N.C. Gen. Stat. § 1A-1, Rule 9(j).
2

A 12(b)(6) motion tests the sufficiency of a complaint and “does not resolve contests
surrounding the facts, the merits of a claim, or the applicability of defenses.” Republican Party
of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992). Accordingly, a court should “assume the
truth of all facts alleged in the complaint and the existence of any fact that can be proved,
consistent with the complaint’s allegations.” E. Shore Mkts. Inc. v. J.D. Assocs. Ltd. P’ship, 213
F.3d 175, 180 (4th Cir. 2000). Although the truth of the facts alleged is assumed, courts are
not bound by the “legal conclusions drawn from the facts” and “need not accept as true
unwarranted inferences, unreasonable conclusions, or arguments.” Id.
III. DISCUSSION
In enacting the Federal Torts Claim Act in 1946, Congress waived the sovereign
immunity of the United States for certain torts committed by federal employees. Pursuant to
the FTCA, the United States is liable in the same manner and extent as a private individual
under similar circumstances pursuant to the law of the state where the act or omission
occurred. 28 U.S.C. § 2674; 28 U.S.C. § 1346(b)(1); Anderson v. United States, 669 F.3d 161,
164 (4th Cir. 2011). “In other words, a claimant has a FTCA cause of action against the
government only if she would also have a cause of action under state law against a private
person in like circumstances.” Anderson, 669 F.3d at 164 (internal quotation and citation
omitted). Thus, the substantive law of the state where the cause of action arises applies. Id.
Here, the acts giving rise to Plaintiff’s medical malpractice claim occurred in North Carolina,
and thus North Carolina substantive law applies to his claim. See 28 U.S.C. § 1346 (b)(1).
North Carolina imposes substantive requirements necessary for claimants seeking to
pursue a medical malpractice claim. Under North Carolina Rule of Civil Procedure 9(j), a
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plaintiff’s medical malpractice complaint must assert that the medical care has been reviewed
by a person who is reasonably expected to qualify (or whom the plaintiff will move to
qualify) as an expert witness and who is willing to testify that the medical care received by
the plaintiff did not comply with the applicable standard of care. See N.C. R. Civ. P. 9(j)(1),
(2) 2; see, e.g., Thigpen v. Ngo, 355 N.C. 198, 202, 558 S.E.2d 162, 165 (2002); Gregory v.
Schatzman, No. 1:08cv497, 2009 WL 3151867, at *1 (M.D.N.C. Sept. 24, 2009) (“Rule 9(j)
mandates dismissal where there is not statement of certification in the complaint itself when
filed.”).
As a threshold matter, federal district courts in North Carolina have generally applied
Rule 9(j) as a substantive requirement in medical malpractice claims asserted pursuant to the
FTCA. See Smith v. United States, No. 1:10cv112, 2011 WL 4899933, at *16-17 (M.D.N.C.
Oct. 14, 2011) (applying Rule 9(j) to medical malpractice claim brought pursuant to the
FTCA); Howell v. Physicians and Staff, VAMC-Salisbury, No. 1:12cv1233, 2012 WL 5879748, at
*3 (M.D.N.C. Nov. 21, 2012) (requiring plaintiff to comply with “the substantive
requirements” of Rule 9(j)); Hall v. United States, No. 5:10-CT-3220-BO, 2013 WL 163639
(E.D.N.C. Jan. 15, 2013) ) (failure of complaint to include pre-filing certification “does not
comply with the substantive requirements of Rule 9(j)[.]”); Lauer v. United States, No.
1:12cv41, 2013 WL 566124 (W.D.N.C. Feb. 13, 2013).

The Fourth Circuit has not

addressed this issue. 3

Rule 9(j) provides one narrow exception to pre-filing certification requirement, in cases where
negligence may be established under the doctrine of res ipsa loquitur. See N.C. R. Civ. P. 9(j)(3).
Plaintiff does not allege that this exception applies to the facts of this case.
3
The law on this issue in other circuits appears to be unsettled. See Lewis v. Womack Army Medical
Center, 886 F.Supp.2d 1304, 1306-07 (N.D. Fla. 2012) (collecting cases suggesting weight of authority
2

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In his Complaint, Plaintiff here alleges that “the medical care which is the subject of
this Complaint has been reviewed by a medical health provider who plaintiff reasonably
believes will qualify as an expert under Rule 702 of the North Carolina Rules of Evidence
and who has stated a willingness to testify to these opinions . . .” as required by Rule 9(j).
(Compl. ¶ 23.) Plaintiff identified his expert reviewer for Rule 9(j) purposes as the “DVA
Chief of Ophthalmology.” Id. 4 Later, Plaintiff identified the reviewer as Dr. Sharon Fekrat,
DVA Chief of Ophthalmology. Plaintiff provided to Defendant a copy of an email from
Dr. Fekrat to the DVA Risk Manager, Kathleen Logan. (Def.’s Mem. in Supp. of Mot. to
Dismiss, Ex. 1, Docket Entry 7-1.) This e-mail came from Plaintiff’s VA benefits claim file
and was apparently produced in the context of Plaintiff’s application for benefits as a result
of the loss of his eye. (Id., Ex. 2, Declaration of Dr. Sharon Fekrat ¶ 3.) However, Dr.
Fekrat also states:
(4) Plaintiff asked me to testify in this matter on his behalf and I advised him
I would not be his expert witness.
(5) I am not willing to testify that the medical care at issue in this case did not
comply with the applicable standard of care in this case.
(Id.) Defendant contends that Dr. Fekrat’s declaration clearly shows that Plaintiff has not
met the requirements of Rule 9(j) because he has not identified an expert witness “willing to
testify that the medical care did not comply with the applicable standard of care.” N.C. Gen.
Stat. § 1A-1, Rule 9(j)(1).
among district courts in the Eleventh Circuit is that such state pre-filing requirements do not apply
in federal court.)
4
Rule 9(j) provides that defendants may challenge a plaintiff’s Rule 9(j) certification by
propounding up to ten interrogatories to the plaintiff to prove compliance with this requirement.
Here, Plaintiff voluntarily identified his proposed expert to Defendant, thus removing the need for
interrogatories.
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The law of North Carolina is clear that an action must be dismissed if a plaintiff
cannot produce an expert willing to testify as to the standard of care. This requirement is
more than a simple pleading requirement. McGuire v. Riedle, 190 N.C. App. 785, 788, 661
S.E.2d 754, 758 (N.C. App. 2008) (“[C]ontrary to plaintiff’s claims, Rule 9(j) is not merely
facial,” thus dismissal is proper where plaintiff does not comply with the certification
requirement.) “In considering whether a plaintiff’s Rule 9(j) statement is supported by the
facts, a court must consider the facts relevant to Rule 9(j) and apply the law to them.”
Barringer v. Forsyth Cnty Wake Forest Univ. Baptist Med. Ctr., 197 N.C. App. 238, 255-56, 667
S.E.2d 465, 477 (N.C. App. 2009) (internal quotation and citation omitted). Thus, “even
when a complaint facially complies with Rule 9(j) by including a statement pursuant to Rule
9(j), if discovery subsequently establishes that the statement is not supported by the facts,
then dismissal is likewise appropriate.” Ford v. McCain, 192 N.C. App. 667, 672, 666 S.E.2d
153, 157 (N.C. App. 2008)
Plaintiff argues that because at the time he filed the complaint he believed that Dr.
Fekrat would testify on his behalf, the motion to dismiss should be denied. However, what
is controlling here is not the knowledge of Plaintiff, but the willingness of the medical expert
to testify. Here, Dr. Fekrat unequivocally states that she would not testify as to any alleged
breach of the standard of care. Thus, Plaintiff’s knowledge or reasonable belief is irrelevant.
See McGuire, 190 N.C. App. at 788, 551 S.E.2d at 757 (“Rule 9(j) contains no good faith
exception.”) Rule 9(j) clearly requires that a plaintiff certify and identify an expert “who is
willing to testify.” Plaintiff here has not done so. Dr. Fekrat’s affidavit clearly shows that

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she is not willing to testify in this matter as to the standard of care. (Ex. 2, ¶¶ 4-5). See Ford,
192 N.C. at 672, 666 S.E.2d at 157; McGuire, 190 N.C. App. at 788, 551 S.E.2d at 757. 5
Plaintiff argues that because this court has considered matters outside the pleadings
this court should convert the motion to dismiss into a motion for summary judgment, and
thus rule in his favor because there is a genuine issue of material fact as to whether Plaintiff
has met the requirements of Rule 9(j). Controlling precedent from North Carolina appellate
courts suggests otherwise, however:
In considering whether a plaintiff’s Rule 9(j) statement is supported by the
facts, a court must consider the facts relevant to Rule 9 (j) and apply the law to
them. In such a case, this Court does not inquire as to whether there was any
question of material fact, nor do we view the evidence in the light most
favorable to the plaintiff. Rather, our review of Rule 9(j) compliance is de novo,
because such compliance clearly presents a question of law.
Barringer, 197 N.C. App. at 255-56, 677 S.E.2d at 477 (internal quotations and citations
omitted);see also McGuire, 190 N.C. App. at 787, 661 S.E.2d at 757. Thus, this court may
consider any relevant facts in determining whether to grant a motion to dismiss based on
Rule 9(j). Plaintiff’s contention that this court should examine the record to determine if
there is any question of material fact is not correct. Dismissal under Rule 9(j) (and Fed. R.
Civ. P. 12(b)(6)) is appropriate.

Plaintiff has called to the court’s attention the recent North Carolina Supreme court case of Moore
v. Proper, 726 S.E. 2d 812 (N.C. 2012). While Plaintiff does not specifically address the significance
of this case, I note that the court in Moore primarily was concerned with the requirement of Rule 9(j)
that the expert witness identified by a plaintiff be reasonably expected to qualify under Rule 702 of the
North Carolina Rules of Evidence. (emphasis added). In the context of this discussion, the court
stated that “to the extent there are reasonable disputes or ambiguities in the forecasted evidence, the
trial court should draw all reasonable inferences in favor of the nonmoving party at this preliminary
state of determining whether the party reasonably expected the expert witness to qualify under Rule
702.” Id. at 818 (emphasis in original). Plaintiff’s reliance on Moore is misplaced under the facts of
this case where the willingness of Dr. Fekrat to testify, not her qualifications as an expert, is at issue.
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Plaintiff further argues that Defendant improperly interviewed Plaintiff’s non-party
treating physician privately without Plaintiff’s consent. See Crist v. Moffatt, 326 N.C. 326, 389
S.E.2d 41 (1990). Crist, which pre-dates Rule 9(j), is easily distinguishable from this case. In
Crist, a medical malpractice case, the defendant’s attorney met privately with two of the
plaintiff’s treating physicians. 326 N.C. at 328, 389 S.E.2d at 43. The plaintiff filed a motion
to compel disclosure of these private conversations and requested that the trial court
disallow the use of such information at trial. Id. at 329, 389 S.E.2d at 43. The trial court
entered an order finding that these contacts were improper, ordering disclosure, and
prohibiting contact between the defendant’s attorney and the plaintiff’s treating physicians
without the knowledge and consent of the plaintiff’s attorney or a court order. Id. at 329-30,
389 S.E.2d at 43. The North Carolina Court of Appeals court ruled that “defense counsel
may not interview nonparty treating physicians privately without plaintiff’s express consent.”
Id. at 336, 389 S.E.2d at 47. However, Crist did not involve a FTCA claim, nor did it involve
non-treating physicians who were employees of the defendant. Crist addressed contact by
defense counsel with non-party treating physicians who had no relationship with the
defendant. Here, Dr. Fekrat is employed by Defendant and she was not Plaintiff’s treating
physician.

As noted by Defendant, “[a] rule requiring the government to engage in formal

discovery to obtain such information from its own employees would, in addition to
interfering with the attorney-client and work product privileges, unduly burden the
government and interfere with the employer-employee relationship.” (Def.’s Reply Br. at
11-12, Docket Entry 14) To extend the reasoning of Crist to the factual situation in this case
would be both overreaching and unnecessary.
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IV. CONCLUSION
Because Plaintiff has failed to comply with N.C. Gen. Stat. § 1A-1, Rule 9(j)(1), by
presenting this court with an expert who was “willing to testify that the medical care did not
comply with the applicable standard of care, dismissal of the action is appropriate.
Accordingly, IT IS RECOMMENDED that Defendant’s motion to dismiss
(Docket Entry 7) be GRANTED.

Durham, North Carolina
April 2, 2013

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