Thompson v. United States of America et al

Filing 17

Opinion and Order signed by Judge James S. Gwin on 7/10/13 denying defendant's motion to dismiss. (Related Doc. 8 ) (M,G)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
------------------------------------------------------:
Gerald Thompson,
:
:
Plaintiff,
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:
vs.
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United States of America,
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Defendant.
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CASE NO. 1:13-CV-00550

OPINION & ORDER
[Resolving Doc. No. 8]

JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
In this action brought under the Federal Tort Claims Act (FTCA), Plaintiff Gerald Thompson
sues Defendant United States of America for medical malpractice. Thompson says that Department
of Veterans Affairs employees failed to properly treat his right leg, which eventually required
amputation.1/ The United States now moves to dismiss the complaint.2/ It says that Thompson failed
to attach an affidavit of merit to his complaint, as required by Rule 10(D)(2) of the Ohio Rules of
Civil Procedure. For the following reasons, the motion is DENIED.
I.
In 2005, in response to the Ohio Legislature’s passage of so-called “tort reform,” the Ohio
Supreme Court amended Rule 10 of the Ohio Rules of Civil Procedure.3/ Ohio Rule 10, which
governs the forms of civil pleadings, now included a requirement that “a complaint that contains a

1/

Doc. 1.

2/

Doc. 8.

3/

See Fletcher v. Univ. Hosps. of Cleveland, 897 N.E.2d 147 (Ohio 2008).

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Gwin, J.
medical claim” shall include an affidavit of merit provided by an expert witness.4/ The affiant must
aver that she has reviewed the relevant medical records, is familiar with the standard of care, and
believes that the named defendants breached that standard.5/
The Ohio General Assembly required an affidavit of merit as one of many measures enacted
by the Ohio Legislature to reduce medical malpractice actions. In 2004, through House Bill 215, the
Ohio Legislature: excepted statements of apology or remorse from malpractice proceedings; made
it easier for defendants to exit lawsuits by filing affidavits of noninvolvement; restricted a plaintiff’s
testifying expert to a person in the same or substantially similar specialty as the defendant; expedited
the discovery process in medical liability claims; and required the filing of an affidavit of merit, or
“a certificate of expert review,” with a medical malpractice complaint.6/ Governor Bob Taft, upon
signing House Bill 215 into law, said that “[s]igning these bills is a good start to stabilizing the
malpractice insurance market and keeping good doctors here in Ohio, but it is only a start.”7/ Lest
the purpose of the rule be misunderstood, the Supreme Court of Ohio has pointed out that
[c]learly, the purpose behind the rule is to deter the filing of frivolous medicalmalpractice claims. The rule is designed to ease the burden on the dockets of Ohio’s
courts and to ensure that only those plaintiffs truly aggrieved at the hands of the
medical profession have their day in court. To further this end, Civ. R. 10(D)(2)
expressly made it clear that the affidavit is necessary in order to establish the
adequacy of the complaint.8/
Similar rules have sprung up around the country, often encouraged by federal policies.9/
4/

Ohio R. Civ. P. 10(D)(2)(a).

5/

Id.

6/

See Ohio H.B. 215 (2004).

7/

Taft Signs Medical Malpractice Legislation, The Business Journal (June 14, 2004).

8/

Fletcher, 897 N.E.2d at 170 (alterations and omissions omitted).

9/

See Benjamin Grossberg, Comment, Uniformity, Federalism, and Tort Reform: The Erie Implications of
Medical Malpractice Certificate of Merit Statutes, 159 U. Pa. L. Rev. 217, 220 (2010) (In the lead-up to the passage of
the Patient Protection and Affordable Care Act, congressional leaders sought to introduce amendments “encouraging
states to implement certificate of merit legislation.” Doing so would permit a state to receive incentive payments from

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Gwin, J.
II.
The federal government’s liability under the FTCA “is determined in accordance with the
law of the state where the event giving rise to liability occurred.”10/ Under this analysis, this Court
applies state substantive law and federal procedural law.11/ A law is substantive if 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.”12/ When
attempting to answer this question, the Court must consider “the twin aims of the Erie rule:
discouragement of forum-shopping and avoidance of inequitable administration of the laws.”13/
The United States says that Ohio Rule 10(D)(2) is substantive and applies in these
proceedings. Therefore, the United States says, Plaintiff Thompson’s failure to file an affidavit of
merit requires dismissal of his complaint. The United States’s argument puts the cart before the
horse. As discussed below, the substantive/procedural distinction is a secondary question; the Court
must first resolve whether there are applicable federal rules that occupy the field in question.
A. Hanna and its progeny
Perhaps the best place to start is with the Supreme Court’s first foray into the effects of the
Erie rule on the Federal Rules of Civil Procedure. In Hanna v. Plumer, 380 U.S. 460 (1965), the
Supreme Court held that a federal court sitting in diversity “must determine whether a Federal Rule

the Department of Health and Human Services. Although that amendment was left out of the final bill, President Obama
did create a similar incentive program through the Agency for Healthcare Research and Quality.).
10/

Young v. United States, 71 F.3d 1238, 1242 (6th Cir. 1995).

11/

Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938). The Court notes, however, that it is questionable whether
Erie ought to apply to FTCA actions; forum shopping concerns are not present because the federal courts retain exclusive
jurisdiction over such claims. 28 U.S.C. § 1346(b) (“[T]he district courts . . . shall have exclusive jurisdiction of civil
actions on claims against the United States, for money damages . . . .”). Nevertheless, the Court need not jump into that
issue today.
12/

Hanna v. Plumer, 380 U.S. 460, 466 (1965).

13/

Id. at 468.

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directly ‘collides’ with the state law it is being urged to apply.”14/ If such a collision exists, the
Federal Rule must be applied so long as it is constitutional and within the scope of the Rules
Enabling Act.15/ It is only after this analysis, and a finding of harmony as opposed to collision, that
the federal court should concern itself with whether the state rule in question is a substantive one.16/
So, first, this Court must consider whether Ohio’s affidavit of merit rule directly conflicts
with one of the Federal Rules of Civil Procedure. The Supreme Court has repeatedly addressed what
constitutes a “direct collision,” though the terrain is a bit rocky.17/
Most recently, the Supreme Court found that Federal Rule 23, the rule governing class
actions, conflicted with New York’s rule barring class actions for certain statutory penalties.18/
Justice Scalia, writing for three other Justices (and with Justice Stevens concurring in the judgment),
found that Rule 23:
provides a one-size-fits-all formula for deciding the class-action question. Because
[the New York rule] attempts to answer the same question—i.e., it states that Shady
Grove’s suit “may not be maintained as a class action” (emphasis added) because of
the relief it seeks—it cannot apply in diversity suits unless Rule 23 is ultra vires.19/
And, importantly for our purposes, the Court rejected the argument that the New York rule addressed
an antecedent issue; that is, that the state rule concerned which types of claims are eligible for class
treatment, while the federal rule concerned the certification process for those eligible claims. Justice

14/

Chamberlain v. Giampapa, 210 F.3d 154, 159 (3d Cir. 2000) (citing Hanna, 380 U.S. at 470-74).

15/

Id.

16/

See Hanna, 380 U.S. at 473 (“The purpose of the Erie doctrine . . . was never to bottle up federal courts with
‘outcome-determinative’ and ‘integral-relation’ stoppers—when there are affirmative countervailing (federal)
considerations and when there is a Congressional mandate (the Rules) supported by constitutional authority.”) (quotation
omitted); see also Chamberlain, 210 F.3d at 159 (“If a ‘direct collision’ does not exist, then the court applies the Erie
rule to determine if state law should be applied.”) (citing Hanna, 380 U.S. at 470).
17/
See Grossberg, supra note 9, at 231-42.
18/

Shady Grove Orthopedic Assocs. v. Allstate Ins. Co., 130 S. Ct. 1431 (2010).

19/

Id. at 1437.

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Scalia found “the line between eligibility and certifiability” to be “entirely artificial.”20/
Thus, post-Shady Grove, a federal rule that allows an action stops additional state rules that
would give a different result. Or, as one commentator says, “because the Court viewed Rule 23 as
setting forth sufficient, rather than necessary, criteria for bringing class actions, state laws imposing
further duties conflicted with Rule 23 and would not be enforced in federal court.”21/
Shady Grove added to the previous analysis of direct collision, which includes allowing for
use of the state rule if both the state and federal rules “can exist side by side . . . each controlling its
own intended sphere of coverage without conflict.”22/ Importantly, in Ricoh, the Supreme Court
expanded the “direct collision” framework to permit use of the federal rule if that rule is “sufficiently
broad to control the issue before the Court.”23/
Against this backdrop, the Court now considers whether relevant Federal Rules of Civil
Procedure are so broad.
B. The Federal Rules’ Pleading Requirements
The majority of courts have found state affidavit of merit statutes applicable in federal
proceedings.24/ But, those decisions from this district conduct an Erie analysis and rest on a finding
that the Ohio rule is substantive—and thus presume that there is no collision with a federal

20/

Id. at 1438.
See Grossberg, supra note 9, at 240.

21/
22/

Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 31 (1988) (quoting Walker v. Armco Steel Corp., 446 U.S.
740, 752 (1980)).
23/

Id. at 26 n.4. See also Grossberg, supra note 9, at 240 (“If the federal enactment’s discretionary mode of
operation conflicts with the nondiscretionary provisions of state law, the federal enactment applies in diversity even if
wholly different policy concerns animate the state law.”) (alterations and quotation marks omitted).
24/

See Kollin v. City of Cleveland, No. 1:11-cv-2605 (N.D. Ohio May 24, 2013); Bierbauer v. Manetti, No.
4:09–cv–2142, 2010 WL 4008835 (N.D. Ohio October 12, 2010); Daniel v. United States, 716 F.Supp.2d 694 (N.D.
Ohio 2010); Perotti v. Medlin, No. 4:05–cv–2739, 2009 WL 723230 (N.D. Ohio March 16, 2009); Nicholson v. Catholic
Health Partners, No. 4:08–cv–2410, 2009 WL 700768 (N.D. Ohio March 13, 2009).

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enactment. The only other court in this district that spoke to the issue found Ohio Rule 10(D)(2) was
not incorporated into the federal action, because the rule “states a procedural rule of law that does
not apply in this case as a result of a direct conflict with the Federal Civil Rules.”25/ The United
States Court of Appeals for the Sixth Circuit has yet to address the issue.
For the following reasons, the Court finds that the Ohio affidavit of merit requirement
conflicts with a number of Federal Rules that occupy their respective spaces. As such, an Erie
analysis is unnecessary.
First, the Ohio Rule conflicts with Federal Rules 8 and 9. Under Rule 8, a pleading “that
states a claim for relief” must contain three things: a statement of the court’s jurisdiction, a “short
and plain statement” showing entitlement to relief, and a demand.26/ Notice that the plain text of the
rule’s introductory clause envisions that these three elements are all that is necessary to constitute
a “claim for relief.” The rule’s structure suggests that no more is needed, especially not evidentiary
material like that required by the Ohio Rule. The simplicity of Rule 8 is its beauty; “[t]here are no
magic words, no requirement that a case fit any particular model or design, and no mandate for
specificity of facts, claims, or evidence.”27/ What Defendant would have this Court do is read the
introductory clause out of Rule 8, and allow Rule 8 to set out only necessary, but not sufficient,
elements of a cause of action.
But federal enactments are presumed to directly collide with state rules when the federal rule
is “sufficiently broad to control the issue.”28/ Rules 8 and 9 lay out a comprehensive scheme of which
25/

Muncy v. Siefker, No. 3:12-cv-2301, 2013 WL 1284233 (N.D. Ohio March 26, 2013).

26/

Fed. R. Civ. P. 8(a).

27/

Mary Margaret Penrose & Dace A. Caldwell, A Short and Plain Solution to the Medical Malpractice Crisis:
Why Charles E. Clark Remains Prophetically Correct About Special Pleading and the Big Case, 39 Ga. L. Rev. 971,
1006 (2005).
28/

Ricoh Corp., 487 U.S. at 26 n.4.

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types of cases are subject to a notice pleading requirement, and which are subject to a heightened
pleading standard.29/ And Rule 9, which limits itself to specific types of cases, is the exception to
the rule. That is, that all civil litigation is subject to the requirements of Rule 8, except for those
specific situations—allegations of fraud or mistake, conditions precedent, special damages, or
admiralty claims—that are subject to Rule 9.30/ Defendant’s position makes Plaintiff’s medical
malpractice claim subject to neither Rule 8 (because that rule requires less) nor Rule 9 (because that
rule requires more).
The tension between the federal pleading rules and Ohio’s affidavit of merit requirement
mirrors the Shady Grove conflict. And though much of that opinion is fractured, the opinion is clear
that New York’s limitation on certain types of class actions does not curb Federal Rule 23’s
certification process. So too here: the federal pleading rules tell a litigant how to plead to survive
a motion to dismiss for failing to state a claim. Plaintiff Thompson followed those rules. That his
case would be subject to a different outcome in state court is of no relevance at this stage of the
inquiry.31/
Second, adherence to the Ohio Rule subverts Federal Rule 11(a), which says that “[u]nless
a rule or statute specifically states otherwise, a pleading need not be verified or accompanied by an

29/

See Swierkiewicz v. Sorema N. A., 534 U.S. 506, 514 (2002) (“The liberal notice pleading of Rule 8(a) is the
starting point of a simplified pleading system, which was adopted to focus litigation on the merits of a claim.”).
30/

Fed. R. Civ. P. 9.

31/

Shady Grove, 130 S. Ct. at 1448 (“But divergence from state law, with the attendant consequence of forum
shopping, is the inevitable (indeed, one might say the intended) result of a uniform system of federal procedure.
Congress itself has created the possibility that the same case may follow a different course if filed in federal instead of
state court. The short of the matter is that a Federal Rule governing procedure is valid whether or not it alters the
outcome of the case in a way that induces forum shopping. To hold otherwise would be to ‘disembowel either the
Constitution’s grant of power over federal procedure’ or Congress’s exercise of it.”) (quoting Hanna, 380 U.S. at 47374).

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affidavit.”32/ Now, of course, if the words “rule or statute” refer to both state and federal enactments,
Defendant’s argument would be stronger. But, Rule 11’s advisory committee notes strongly suggest
that the words refer to federal enactments alone. To wit: “This rule expressly continues any statute
which requires a pleading to be verified or accompanied by an affidavit, such as [28 U.S.C. § 381],
[28 U.S.C. 762], [28 U.S.C. § 829].” Courts disagree on the ambit of this rule, though “every case
that has considered this question in the context of certificate of merit statutes has found that the
exception does include state statutes,” while “virtually every other case that has considered the
question in other contexts has concludes that state statutes are excluded.”33/ Judge Easterbrook,
writing for Judges Posner and Ripple, analyzed the language of Rule 11(a) as follows:
This means federal rule or federal statute, because state requirements for pleading do
not apply in federal litigation. Rules established under the Rules Enabling Act
supersede state norms. Federal and state tribunals may (and do) use their own rules
of procedure. Sometimes it can be hard to determine whether a given norm is
procedural or substantive, but when a federal rule covers the subject it must be
applied no matter how the issue is characterized; that’s the point of Walker and
Hanna.34/
Moreover, Ohio’s rule—a rule that, at its base, seeks to limit frivolous complaints—infringes
on the representations element of Federal Rule 11(b). That is, Federal Rule 11 already seeks to
ensure that litigants are filing meritorious lawsuits, supported by evidence, and for proper
purposes.35/ Ohio’s rule upsets a finely crafted and comprehensive scheme.36/

32/

Fed. R. Civ. P. 11(a).

33/

See Grossberg, supra note 9, at 251. One court within this district has suggested that other state pleading
requirements (there, Ohio Rule 10(D)(1)) are not applicable in federal court. See Deutsche Bank Nat. Trust Co. v.
Barton, No. 1:06-cv-511, 2007 WL 1598067 at *2 n.1 (N.D. Ohio May 30, 2007) (“As noted previously, this Court is
applying the Federal Rules of Civil Procedure which does not contain a part D to Rule 10 or otherwise require the
attachment of written instruments which form the basis of Plaintiff’s claim.”).
34/

Farzana K. v. Ind. Dep’t of Educ., 473 F.3d 703, 705 (7th Cir. 2007).

35/

Fed. R. Civ. P. 11(b).

36/

See Grossberg, supra note 9, at 253 (“Problematically, certificate of merit statutes requiring the attorney to
file a certificate stating that she has consulted with an expert seems to heighten [Rule 11(b)’s] requirement.”).

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Finally, the Court notes that the United States makes no argument that any of the rules
discussed above are improperly enacted. Upon a finding of a direct collision between a federal
enactment and a state rule, this Court “must decide whether application of the federal rule represents
a valid exercise of the rule making authority bestowed on [the Supreme Court] by the Rules Enabling
Act.”37/ Should the federal rule “abridge, enlarge or modify and substantive right,” it is presumed
invalid.38/ The Defendant does not make this argument and the Court need not engage in an analysis
of whether these rules are consonant with the Rules Enabling Act. Regardless, the Court notes that
the rules at issue have been found to be duly enacted.39/
III.
Ohio Rule 10(D)(2) seeks to impose additional burdens on medical malpractice plaintiffs that
are not required by the applicable federal rules. But, Federal Rules 8, 9, and 11 are “sufficiently
broad,”40/ so as to control the issue before this Court and preclude the applicability of the Ohio

37/

Shady Grove, 130 S. Ct. at 1451 (Stevens, J., concurring) (quotations, citations, and alterations omitted).

38/

28 U.S.C. § 2072(b).
See Windy City Metal Fabricators & Supply Inc. v. CIT Tech. Fin. Serv., 536 F.3d 663, 672 (7th Cir. 2008)
(“There is, moreover, no basis for concluding that the regulation of pleading requirements in federal court is beyond the
limits of federal constitutional authority.”); Bus. Guides, Inc. v. Chromatic Commc’ns Enters, Inc., 498 U.S. 533, 552
(1991) (“There is little doubt that Rule 11 is reasonably necessary to maintain the integrity of the system of federal
practice and procedure, and that any effect on substantive rights is incidental.”).
39/

40/

Ricoh, 487 U.S. at 26 n.4.

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requirement. The United States’ motion to dismiss is DENIED.
IT IS SO ORDERED.

s/
James S. Gwin
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE

Dated: July 10, 2013

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