Lauer v. United States of America
ORDER granting without prejudice 3 Motion to Dismiss for Failure to State a Claim. Signed by District Judge Martin Reidinger on 02/12/13. (emw)
IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CIVIL CASE NO. 1:12cv41
JAMES J. LAUER,
UNITED STATES OF AMERICA,
THIS MATTER is before the Court on the Defendant’s Motion to
Dismiss [Doc. 3].
Pursuant to 28 U.S.C. § 636(b) and the Standing Orders of
Designation of this Court, United States Magistrate Judge Dennis L. Howell
was designated to consider the motion and to submit recommendations for
On August 16, 2012, the Magistrate Judge filed a Memorandum and
Recommendation in which he recommended granting the motion. [Doc. 7].
After receiving an extension of time, the Plaintiff timely filed Objections to
[Doc. 10; Doc. 11].
The Defendant has filed a
Response to the Plaintiff’s Objections and the matter is ripe for review.
The Plaintiff initiated this action on February 28, 2012 alleging a claim
for medical malpractice pursuant to the Federal Torts Claims Act (FTCA).
The Plaintiff, who is a veteran, had a left knee replacement
performed on June 1, 2009 at the Veterans Affairs Medical Center (VAMC)
in Buncombe County, North Carolina. [Id.]. The Plaintiff claims that during
that surgery VAMC staff failed to properly place and support his left arm
resulting in injury to his ulnar nerve at the elbow. [Id. at 2]. Medical staff at
the VAMC thereafter recommended left ulnar nerve decompression surgery
to relieve the pain symptoms. [Id. at 3]. That surgery was performed in
July 2009 but was not completely successful.
By the end of
September 2009, one of the treating physicians noted ulnar nerve
parestheasias with increasing pain in the left elbow. [Id.]. The Plaintiff had
a MRI study done in December 2009 which revealed a thickening which
enveloped the nerve. [Id. at 4]. Another left ulnar nerve decompression
and transposition was performed at the VAMC in February 2010. [Id.]. By
March 2011, the Plaintiff still experienced chronic pain and he received a
diagnosis of “Chronic medial epicondylitis and ulnar nerve damage from
entrapment syndrome and first failed surgery. 2nd surgery helped but not
In May 2011, the Plaintiff was examined by a private
physician, not employed at the VAMC, who diagnosed a chronic pain
disorder of the left elbow arising from his left elbow injury which would
require continued treatment for pain. [Id. at 5].
The Plaintiff alleged in the Complaint that Dr. Mary Ann Wolf Curl
(Curl), Chief of Staff at the VAMC, admitted in August 2010 that the
damage to his left ulnar nerve had occurred during his knee replacement
surgery due to improper support and placement of his arm by staff during
the surgery. [Id. at 5-6]. It is undisputed that the Plaintiff’s claim is limited
to medical malpractice pursuant to the FTCA for a deviation from the
applicable standard of care. [Id. at 7-8].
The Defendant moved to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6). [Doc. 3]. The motion is predicated on the Plaintiff’s
failure to meet the mandatory pre-filing certification requirements of Rule
9(j) of the North Carolina General Statutes 1A-1 (Rule 9(j)). [Doc. 4].
STANDARD OF REVIEW
A district court reviews specific objections to a Memorandum and
Recommendation under a de novo standard. 28 U.S.C. §636(b). “Parties
filing objections must specifically identify those findings objected to.” Battle
v. United States Parole Commission, 834 F.2d 419, 421 (5th Cir.1987),
overruled on other grounds Douglass v. United Services Auto. Ass’n, 79
F.3d 1415 (5th Cir. 1996). If a party makes only general objections, de
novo review is not required. Wells v. Shriners Hospital, 109 F.3d 198, 200
(4th Cir. 1997)(boilerplate objections will not avoid the consequences of
failing to object altogether). “Section 636(b)(1) does not countenance a
form of generalized objection to cover all issues addressed by the
magistrate judge; it contemplates that a party’s objection to a magistrate
judge’s report be specific and particularized, as the statute directs the
district court to review only those portions of the report or specified
proposed findings or recommendations to which objection is made.” United
States v. Midgette, 478 F.3d 616, 621 (4th Cir.), cert. denied 551 U.S. 1157,
127 S.Ct. 3032, 168 L.Ed.2d 749 (2007) (emphasis in original). Likewise,
merely reiterating the same arguments made in the pleading submitted to
the Magistrate Judge does not warrant de novo review.
Id.; Veney v.
Astrue, 539 F.Supp.2d 841, 846 (W.D.Va. 2008). “Allowing a litigant to
obtain de novo review of [his] entire case by merely reformatting an earlier
brief as an objection ‘mak[es] the initial reference to the magistrate
useless.’” Id. In order “to preserve for appeal an issue in a magistrate
judge’s report, a party must object to the finding or recommendation on that
issue with sufficient specificity so as reasonably to alert the district court of
the true ground for the objection.” Midgette, 478 F.3d at 622.
And, where a party asserts claims in the objections which were not
asserted in support of or in opposition to the motion, de novo review is not
warranted. Price v. Dixon, 961 F.Supp. 894 (E.D.N.C. 1997)(claims cannot
be raised for the first time in objections to a memorandum and
The Court first notes that the Plaintiff has not objected to the
Magistrate Judge’s recitation of the factual background or the standard of
review applicable to a motion to dismiss pursuant to Rule 12(b)(6). Having
reviewed the same, the Court finds his recitation is factually and legally
correct and adopts it.
Plaintiff’s objection to the application of Rule 9(j).
Rule 9(j) provides that any complaint alleging medical malpractice
must contain an assertion that the records and medical care involved in the
alleged incident have been reviewed by a medical expert who is willing to
testify that the medical care did not comply with the applicable standard of
The Magistrate Judge concluded that Rule 9(j) applies to cases
brought pursuant to the FTCA and it is to this conclusion that the Plaintiff
The FTCA provides a limited waiver of the United States’ sovereign
immunity for personal injury caused by the negligent act or omission of an
employee of the federal government while acting within the scope of his
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) & 2674
(emphasis provided). Section 2674 “makes clear, in conjunction with the
jurisdictional grant over FTCA cases in 28 U.S.C. §1346(b), the extent of
the United States’ liability under the FTCA is generally determined by
reference to state law.” Molzof v. United States, 502 U.S. 301, 305, 112
S.Ct. 711 (1992). “In other words, a claimant has an FTCA cause of action
against the government only if [ ]he would also have a cause of action
under state law against a private person in like circumstances. Thus, the
substantive law of each state establishes the cause of action.” Anderson v.
United States, 669 F.3d 161, 164 (4th Cir. 2011) (emphasis provided).
North Carolina law requires that any complaint alleging medical
malpractice contain the pre-filing certification of a medical expert. N.C.
Gen. Stat. 1A-1, Rule 9(j). There is no such requirement under the FTCA;
however, as noted above, that statute only waives sovereign immunity if
the claim could be brought under the substantive law of North Carolina. 28
U.S.C. §1346(b)(1). Citing Erie Railroad Company v. Thompkins, 304 U.S.
64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), the Plaintiff argues that Rule 9(j) is
a procedural, as opposed to substantive, requirement of North Carolina law
and, thus, applying it here violates the Erie doctrine.1 In deciding whether a
rule of law should be procedural or substantive, the question is whether it
would “significantly affect the result of a litigation for a federal court to
disregard a law of a State that would be controlling in an action upon the
same claim by the same parties in a State court.” Barnes v. Seigler, 2012
WL 265409 **2 (D.S.C. 2012) (quoting Hanna v. Plumer, 380 U.S. 460,
465, 85 S.Ct. 1135, 14 L.Ed.2d 8 (1965)) (applying South Carolina pre-filing
The Erie doctrine requires federal courts sitting in diversity jurisdiction to apply state
substantive law and federal procedural law. This Court’s jurisdiction arises pursuant to
a federal statute, the FTCA, which waives sovereign immunity only if the claim could be
brought under North Carolina substantive law. See United States v. Saint Louis
University, 2012 WL 359995 **3 (S.D.Ill. 2012). Thus, the Plaintiff argues that Rule 9(j)
is a state procedural law which need not be followed by the Court. As noted herein,
however, Rule 9(j) is a substantive rule.
certification rule for malpractice claim as substantive rule).
North Carolina courts have found compliance with Rule 9(j) is a
substantive element of a medical malpractice claim because the plaintiff
must prove, among other elements, the standard of care owed by the
defendant and a breach thereof. Camalier v. Jeffries, 340 N.C. 699, 460
S.E.2d 133 (1995) (stating elements of negligence claim).
[Rule 9(j)] does not provide a procedural mechanism by which a
defendant may file a motion to dismiss a plaintiff’s complaint.
[T]his Court [has] established the following principles regarding
the review of medical malpractice action compliance:
Rule 9(j) unambiguously requires a trial court to dismiss
a complaint [upon motion] if the complaint’s allegations
do not facially comply with the rule’s heightened
pleading requirements. Additionally, this Court has
determined that even when a complaint facially complies
with Rule 9(j) by including a statement pursuant to [the]
Rule, if discovery subsequently establishes that the
statement is not supported by the facts, then dismissal is
likewise appropriate. 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.
Rowell v. Bowling, 197 N.C.App. 691, 695, 678 S.E.2d 748 (2009) (quoting
Barringer v. Wake Forest University Baptist Medical Center, 197 N.C.App.
238, 255, 677 S.E.2d 465, review denied 363 N.C. 651, 684 S.E.2d 690
This language, followed in subsequent North Carolina cases,
shows that the factual allegation that the medical care does not meet
applicable standards of care is a substantive element of a medical
malpractice claim, absent which a defendant may move to dismiss
pursuant to rules of procedure. See Brown v. Kindred Nursing Centers
East, L.L.C., 364 N.C. 76, 692 S.E.2d 87 (2010) (Rule 9(j) ensures access
to courts to resolve medical malpractice claims while protecting health care
providers from frivolous suits); Thigpen v. Ngo, 355 N.C. 198, 558 S.E.2d
162 (2002) (“medical malpractice complaints have a distinct requirement of
expert certification” alleging the defendant failed to meet the applicable
standard of care); Estate of Wooden ex rel. Jones v. Hillcrest Convalescent
, 731 S.E.2d 500, 506-7 (2012) (noting that
Rule 9(j) does not provide a procedural mechanism for dismissing a noncomplying complaint; that mechanism must be found in pari materi with
other Rules of Civil Procedure); Moore v. Proper,
S.E.2d 812, 817 (2012) (Rule 9(j) “operates as a preliminary qualifier” to
show the elements of a medical malpractice claim).
Likewise, federal district courts sitting in North Carolina have held that
the pre-filing certification is a substantive requirement of Rule 9(j).
North Carolina there are substantive legal requirements that a person must
follow to pursue a medical malpractice claim.” Williams v. Haigwood, 2012
WL 4483883 **6 (E.D.N.C. 2012) (citing Rule 9(j)); Hall v. United States,
2013 WL 163639 **3 (E.D.N.C. 2013) (failure of complaint to include prefiling certification “does not comply with the substantive requirements of
Rule 9(j)[.]”); Howell v. Physicians and Staff, VAMC-Salisbury, 2012 WL
5879748 **5 (M.D.N.C. 2012) (requiring plaintiff to comply with “the
substantive requirements” of Rule 9(j)).
Were N.C.R.Civ.P. 9(j) applied as a rule of procedure in federal
court, it would directly conflict with the federal pleading rules by
requiring a more demanding pleading standard. In practice,
however, federal courts in North Carolina have generally
characterized and applied Rule9(j) as a substantive element of
a medical malpractice claim, rather than as a procedural
Flythe v. Davis, 2011 WL 1870229 **2 (E.D.N.C. 2011) (citing Moore v. Pitt
County Memorial Hosp., 139 F.Supp.2d 712, 713 (E.D.N.C. 2001))
(emphasis provided); accord McGhee v. United States, 2011 WL 474413
(E.D.N.C. 2011); Stanley v. United States, 321 F.Supp.2d 805 (N.D.W.Va.
2004). The Court therefore rejects the Plaintiff’s Objection and agrees with
the Magistrate Judge that the pre-filing certification requirement contained
within North Carolina’s Rule 9(j) is a substantive element to allege that the
defendant has failed to comply with the appropriate standard of medical
care; that is, one element of the negligence claim.
The Court will,
nonetheless, exercise its discretion to dismiss the Complaint without
prejudice.2 Wilkes v. Lee County Nursing and Rehabilitation Center, LLC,
2010 WL 703111 (M.D.N.C. 2010) (citing Thigpen, 355 N.C. 198).
Rule 9(j) does not, however, require a pre-filing certification where the
“pleading alleges facts establishing negligence under the existing common
law doctrine of res ipsa loquitur.”
The Magistrate Judge
concluded that the Complaint here does not allege facts giving rise to the
application of that doctrine.
The Plaintiff’s second objection is to this
The doctrine of res ipsa loquitur applies when (1) direct proof of
the cause of an injury is not available, (2) the instrumentality
involved in the accident is under the defendant’s control, and
(3) the injury is of a type that does not ordinarily occur in the
absence of some negligent act or omission.
Alston v. Granville Health System,
, 727 S.E.2d 877, 879,
, 731 S.E.2d 421 (2012).
Attached to the Plaintiff’s Complaint are the Progress Notes of Dr.
Curl, Chief of Staff at the VAMC. [Doc. 1 at 9]. Dr. Curl wrote that the
Although less than clear, portions of the Plaintiff’s Objections make reference to the
constitutionality of Rule 9(j). [Doc. 11 at 6-7]. At no point in the Complaint did the
Plaintiff make any such claim and North Carolina courts have instructed that under this
circumstance, the issue may not be addressed. McKoy v. Beasley,
N.C. App. ,
712 S.E.2d 712, 716-17, review denied
N.C. , 732 S.E.2d 343 (2011).
Plaintiff had a tort claim “centered about L[eft] ulnar nerve injury as a
complication of TKA in 2009.” [Id.]. She further noted that the Plaintiff “had
L[eft] ulnar damage due to positioning of that arm while under anesthesia
for a TKA.” [Id.]. Dr. Curl admitted “it appears that the facts are not being
disputed.” [Id.]. This constitutes “direct proof of the cause of [the] injury”
sustained by the Plaintiff. Alt v. John Umstead Hospital, 125 N.C. App.
193, 199, 479 S.E.2d 800, review denied 345 N.C. 639, 483 S.E.2d 702
(1997) (doctor’s progress notes direct evidence of cause of injury).
In addition to this evidence, the Plaintiff alleged in his Complaint that
he had been “informed by medical experts and staff at VAMC that his
elbow injury was caused by improper placement of his left arm during the
[knee replacement] procedure.” [Id. at 7]. When a plaintiff “asserts in his
pleading” that his injuries were caused directly by the failure of medical
personnel to provide adequate care, the doctrine of res ipsa loquitur does
not apply. Alston, 727 S.E.2d at 880 (citing Yorke v. Novant Health, Inc.,
192 N.C. App. 340, 352, 666 S.E.2d 127, review denied 363 N.C. 260, 677
Moreover, where direct evidence is presented
showing the cause of the injury, the doctrine also does not apply.
(affidavits showing the cause of the injury was absence of restraints on
patient defeats doctrine by showing direct proof); Campbell v. Duke
University Health System, Inc., 203 N.C. App. 37, 43-44, 691 S.E.2d 31,
review denied 364 N.C. 434, 702 S.E.2d 220 (2010) (where plaintiff argued
in brief that there was evidence of medical malpractice, could not invoke
res ipsa loquitur). Indeed, North Carolina courts “are reluctant to apply the
doctrine in medical malpractice cases[.]” Id. The Court therefore rejects
this objection as well.
IT IS, THEREFORE, ORDERED that the Defendant’s Motion to
Dismiss [Doc. 3] is hereby GRANTED and this action is hereby
DISMISSED without prejudice.
Signed: February 12, 2013
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