Rodriguez v. United States of America et al

Filing 33

Opinion and Order signed by Judge James S. Gwin on 7/23/15 denying the motion to dismiss filed by Defendant United States of America. (Related Doc. 6 ) (M,G)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
------------------------------------------------------:
VICTORIO C. RODRIGUEZ,
:
:
Plaintiff,
:
:
v.
:
:
UNITED STATES OF AMERICA,
:
:
Defendant.
:
:
-------------------------------------------------------

CASE NO. 1:14-CV-02526

OPINION & ORDER
[Resolving Doc. 6]

JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
In this case brought under the Federal Tort Claims Act (“FTCA”), Plaintiff Victorio
Rodriguez alleges he received negligent medical care from the Department of Veterans Affairs
(“VA”) and that care led to him having a heart attack. Defendant United States of America has
moved to dismiss the claim.1/ For the following reasons, the Court DENIES the motion to dismiss.
I. Background
In April 2007, Plaintiff Rodriguez began receiving treatment at the VA Medical Center in
Brecksville, Ohio, for various conditions related to his exposure to Agent Orange during his service
in the Vietnam War.2/ One of the conditions noted at the time Plaintiff began receiving treatment
was “occasional left-sided chest pains.”3/ An EKG and a stress test done at that time showed no

1/

Doc. 6. Plaintiff opposes. Doc. 9. Defendant has filed a reply. Doc. 12. Plaintiff has, without the Court’s
leave, filed a sur-reply. Doc. 17. Although not authorized under the Rules, see L.R. 7.1, Defendant has not objected
to the sur-reply and therefore the Court will consider it.
2/

Doc. 1 at 7–8; Doc. 1-5.

3/

Doc. 1-5 at 2.

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Gwin, J.
problems with Plaintiff’s heart.4/
On April 15, 2010, during a compensation and pension examination, Plaintiff was given an
EKG. The EKG showed that Plaintiff may have suffered a mild heart attack in the past.5/
On May 10, 2010, Plaintiff sought treatment at the VA hospital for chest pain. Plaintiff’s
primary physician at the VA hospital, Dr. George Knappenberger, recommended that Plaintiff
undergo either a stress test or a cardiac catheterization.6/ Plaintiff refused these tests, and instead
demanded a cardiac MRI, which Dr. Knappenberger ordered.7/ Because the VA Medical Center did
not have the equipment to perform this test, Dr. Knappenberger requested that Plaintiff be referred
to the Cleveland Clinic.8/ Plaintiff never received the cardiac MRI, though, because for reasons not
specified in the record currently before the Court, the referral was not approved.9/
In September 2012, Plaintiff went to the VA ophthalmology clinic because he was
experiencing vision problems.10/ Based on his symptoms, the ophthalmologist ordered a carotid scan.
The scan, which was performed in October 2012, revealed a “moderate” plaque build-up in
Plaintiff’s left carotid artery.11/ The scan results were sent to Dr. Knappenberger, but they were never
given to Plaintiff.12/
On December 17, 2012, Plaintiff suffered a heart attack. He was treated at the Parma

4/

See Doc. 1 at 17; Doc. 1-5 (noting that stress test will be performed); Doc. 1-16 at 2 (describing results of
stress test performed June 11, 2007); Doc. 1-18 at 3 (same).
5/

Doc. 1 at 11; Doc. 1-16 at 3.

6/

Doc. 1 at 12; Doc. 1-18 at 2.

7/

Doc. 1-18 at 2.

8/

Doc. 1-18 at 3; Doc. 1-23.

9/

See Doc. 1 at 19–20; Doc. 1-28 at 2.
Doc. 1 at 20; Doc. 1-27 at 2.

10/
11/

Doc. 1-27 at 3.

12/

Doc. 1 at 20; see Doc. 1-27 (receipt acknowledged by Dr. Knappenberger).

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Community General Hospital with the insertion of two coronary stents.13/
On November 17, 2014, Plaintiff filed this suit against the United States claiming that the
negligence of the VA employees led to his 2012 heart attack. Plaintiff says that if he had been given
the cardiac MRI in 2010, or at least had been told the results of his September 2012 carotid scan, he
could have taken immediate corrective action that would have prevented his heart attack.
II. Legal Standard
“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted
as true, to ‘state a claim to relief that is plausible on its face.’”14/ The plausibility requirement is not
“akin to a probability requirement,” but requires “more than a sheer possibility that the defendant
has acted unlawfully.”15/ In deciding a motion to dismiss under Rule 12(b)(6), “a court should
assume the[] veracity” of “well-pleaded factual allegations.”16/
Plaintiff Rodriguez is representing himself in this case. “A document filed pro se is ‘to be
liberally construed,’ and ‘a pro se complaint, however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by lawyers.’”17/ However, a pro se complaint must
still meet Rule 8’s minimum requirement of a “short and plain statement” showing entitlement to
relief.
III. Analysis
Defendant United States raises two grounds for dismissing Plaintiff Rodriguez’s claims.

13/

Doc. 1 at 20; Doc. 1-33.

14/

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

15/

Id.

16/

Id.

17/

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)); see also
Fed. R. Civ. P. 8(e) (“Pleadings must be construed so as to do justice.”).

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First, that this suit is barred by the FTCA’s two-year statute of limitations for filing an administrative
claim. Second, that Rodriguez failed to attach to his complaint an affidavit of merit required under
Ohio law. Both grounds lose.
A. Statute of Limitations
The United States first argues that Plaintiff Rodriguez’s claim is barred by the statute of
limitations. The FTCA, which provides a limited waiver of the government’s sovereign immunity,
requires that the plaintiff present an administrative claim to the proper federal agency before filing
a lawsuit against the United States.18/ If the administrative claim is not presented within two years
of the time the claim “accrues,” then the claim is “forever barred.”19/ If the administrative claim is
denied, the plaintiff must bring suit within six months of the denial.20/
Plaintiff sent his administrative claim form to the VA on April 26, 2014; it was denied on
July 3, 2014.21/ With this motion, the United States says Plaintiff Rodriguez’s suit is time barred
because his claim accrued no later than June 26, 2010, when Plaintiff complained to the VA about
not having received the cardiac MRI he had demanded.22/ Thus, says the United States, Plaintiff’s
filing of an administrative claim in April 2014 was almost two years too late.
In making this argument, the United States confuses Plaintiff Rodriguez’s claimed
injury—his 2012 heart attack—with the alleged tortious conduct causing it—negligent care that

18/

28 U.S.C. § 2675(a).

19/

28 U.S.C. § 2401(b).
Id.

20/
21/

Doc. 1 at 3. Plaintiff did not attach copies of these documents to his complaint, which the Court finds to be
somewhat surprising since Plaintiff attached almost 300 pages of other VA records as exhibits to his complaint.
Nevertheless, the United States does not dispute that Plaintiff presented his administrative claim on April 26, 2014. See
Doc. 6-1 at 6.
22/

Doc. 6-1 at 5–6.

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occurred in 2010.
“Typically, a tort claim accrues under [the FTCA] ‘at the time of the plaintiff’s injury.’”23/
Thus, in a medical negligence case, the plaintiff’s claim does not accrue until the injury actually
manifests itself, even if the plaintiff was earlier aware of the tortious conduct.24/
The United States, however, argues that Plaintiff Rodriguez’s claim accrued in 2010 when
he did not receive a cardiac MRI, because he was aware that not receiving the test could possibly
cause him injury in the future.25/ In support of its position, the United States cites to cases discussing
the applicability of a discovery rule—that is, when the statute of limitations begins to run relative
to when the plaintiff learns of the negligent conduct that caused his injury.26/
But the cases do not support the United States’s argument that the plaintiff’s knowledge of
the allegedly negligent conduct itself starts the clock on the statute of limitations even if the plaintiff
has not yet been injured.
Plaintiff Rodriguez’s claim accrued when he had a heart attack on December 17, 2012. He
had two years from that date to file an administrative claim, which he did on April 26, 2014. Thus,
his claim is not barred by the FTCA’s two-year statute of limitations.
B. Affidavit of Merit
The United States next argues that Plaintiff Rodriguez’s suit must be dismissed because
Plaintiff did not file an affidavit of merit with his complaint. Under the FTCA, “[l]iability is

23/

Amburgey v. United States, 733 F.3d 633, 637 (6th Cir. 2013) (quoting United States v. Kubrick, 444 U.S.
111, 120 (1979)).
24/
See id. at 636 (citing Kubrick, 444 U.S. at 113).
25/

See Doc. 6-1 at 5–6.

26/

See id. (citing Kubrick, 444 U.S. at 120, and Hawkins v. Spitters, 79 F. App’x 168 (6th Cir. 2003)).

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determined by reference to the law of the place where the act or omission occurred.”27/
In order to limit frivolous malpractice actions, Ohio Civil Rule 10(D)(2) requires that “a
complaint that contains a medical claim . . . shall include one or more affidavits of merit relative to
each defendant named in the complaint for whom expert testimony is necessary to establish
liability.”28/ The affiant—who must be qualified as an expert witness under the Ohio Rules of
Evidence—must say that the affiant has reviewed the relevant medical records, is familiar with the
standard of care, and believes that the named defendants breached that standard.29/ A complaint that
does not attach an affidavit of merit must be dismissed.30/
Responding to the motion to dismiss, Plaintiff titled a portion of his brief in opposition “writ
of merit,” where he states—acting as his own expert witness31/—why he believes “that Defendant
United States of America committed malpractice of negligence.”32/ Because the Court concludes
below that Plaintiff was not required to file an affidavit of merit with his complaint, it need not
decide whether this would satisfy the requirements of Ohio Rule 10(D)(2).
Similar to when it is sitting in diversity, a federal court in an FTCA case applies state
substantive law and federal procedural law.33/ In its motion, the United States argues that Ohio Rule
10(D)(2) is a substantive rule that must be applied in this case. Several other courts in this district
27/

28 U.S.C. § 1346(b); see Young v. United States, 71 F.3d 1238, 1242 (6th Cir. 1995).

28/

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

29/

Id.

30/

Fletcher v. Univ. Hosps. of Cleveland, 897 N.E.2d 147, 170 (Ohio 2008).

31/

Plaintiff Rodriguez is a doctor who has practiced family medicine for about forty years. See Doc. 9 at 2; Doc.

17 at 3–4.
32/

See Doc. 9 at 4. Plaintiff reiterated the contents of this “writ of merit” in his sur-reply. See Doc. 17 at 2–3.

33/

Larca v. United States, 302 F.R.D. 148, 155 (N.D. Ohio 2014) (citing Hanna v. Plumer, 380 U.S. 460
(1965)); Thompson v. United States, No. 1:13-cv-00550, 2013 WL 3480347, at *1 (N.D. Ohio July 10, 2013) (citing
Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 (1938)). See generally Daniel A. Morris, Federal Tort Claims §§ 2:25, 2:32
(2015).

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have held that Ohio Rule 10(D)(2) is substantive, not procedural, because failing to include the
affidavit of merit with a complaint requires dismissal and disregarding that requirement would
significantly alter the course of the litigation.34/
This Court, however, along with others in this district, have discussed how this question of
whether Ohio Rule 10(D)(2) is substantive or procedural somewhat misses the mark.35/ Under the
Supreme Court’s decision in Shady Grove Orthopedic Associates v. Allstate Insurance Co., state law
that directly “collides” with the Federal Rules does not apply in federal court.36/ “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.”37/ Such a collision occurs when
a state law imposes additional requirements to bringing suit beyond what is required by the Federal
Rules.
The courts in this district that have undertaken this preliminary analysis have concluded that
Ohio Rule 10(D)(2) directly collides with Federal Rules of Civil Procedure 8 and 9.38/ Those rules
tell a federal court litigant how to plead. Applying Ohio Rule 10(D)(2) would make Plaintiff’s claim
subject to requirements beyond what is required by Rule 8—because that Rule requires nothing more
34/

E.g., Daniel v. United States, 716 F. Supp. 2d 694, 698 (N.D. Ohio 2010) (Gaughan, J.); Fonseca v. United
States, No. 1:13-cv-1710, 2013 WL 6797736, at *3–4 (N.D. Ohio Dec. 23, 2013) (Boyko, J.); Bennafield v. United
States, No. 4:12-cv-3010, 2013 WL 5173221, at *1–2 (N.D. Ohio Sept. 12, 2013) (Adams, J.); Borders v. Lappin, No.
1:11-cv-1514, 2013 WL 3804858, at *5 (N.D. Ohio July 19, 2013) (Pearson, J.); Nicholson v. Catholic Health Partners,
No. 4:08-cv-2410, 2009 WL 700768, at *4–5 (N.D. Ohio Mar. 13, 2009) (Economus, J.).
35/
E.g., Larca, 302 F.R.D. at 155–60 (Lioi, J.); Thompson, 2013 WL 3480347 (Gwin, J.); Muncy v. Siefker, No.
3:12-cv-2301, 2013 WL 1284233, at *4–8 (N.D. Ohio Mar. 26, 2013) (Helmick, J.).
36/

Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 421–22 (2010) (citing Walker v.
Armco Steel Corp., 446 U.S. 740, 749–50 (1980)); see also Hanna, 380 U.S. at 470–74.
37/
Thompson, 2013 WL 3480347, at *2 (citing Hanna, 380 U.S. at 473, and Chamberlain v. Giampapa, 210
F.3d 154, 159 (3d Cir. 2000)).
38/

Larca, 302 F.R.D. at 159–60; Thompson, 2013 WL 3480347, at *3; Muncy, 2013 WL 1284233, at *5 (relying
only on Fed. R. Civ. P. 8); accord Benjamin Grossberg, Comment, Uniformity, Federalism, and Tort Reform: The Erie
Implications of Medical Malpractice Certificate of Merit Statutes, 159 U. Pa. L. Rev. 217 (2010).

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that a statement of the court’s jurisdiction, a short and plain statement showing entitlement to relief,
and a demand—and Rule 9—because that Rule specifies a heightened pleading standard that only
applies in certain types of cases, such as those involving fraud or mistake.39/ Ohio Rule 10(D)(2)
imposes an additional pleading requirement not contemplated by either Federal Rule, and therefore
directly collides with them.
This Court has also previously held that Ohio Rule 10(D)(2) directly collides with Federal
Rule 11, which already seeks to limit frivolous complaints and specifies that a pleading generally
need not be accompanied by an affidavit.40/ Other courts in this district have not discussed the
impact of Rule 11 in their collision analysis, and the parties do not address it in their briefing in this
case. Without belaboring the point, the Court will simply reiterate its prior holding that these
requirements of Rule 11 form part of the “finely crafted and comprehensive scheme” created by the
pleading requirements of the Federal Rules, and that applying Ohio Rule 10(D)(2) would “upset”
this scheme.41/
The United States argues that not applying Ohio Rule 10(D)(2) in federal courts leads to an
“‘inequitable administration of the laws’” because cases that would have been dismissed had they
been brought in state court may proceed when brought in federal court.42/ But whether Plaintiff
Rodriguez’s case would have a different outcome in state court is irrelevant at this stage of the
inquiry. In fact, “the possibility that the same case may follow a different course if filed in federal
court instead of state court” is “the inevitable (indeed, one might say the intended) result of a

39/

Thompson, 2013 WL 3480347, at *3 (citing Fed. R. Civ. P. 8, and Fed. R. Civ. P. 9).
See id. at *4 (citing Fed. R. Civ. P. 11).

40/
41/

See id. (citing Grossberg, supra note 38, at 251, 253).

42/

See Doc. 6-1 at 13 (quoting Hanna, 380 U.S. at 468).

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uniform system of federal procedure” that was created by Congress.43/ Furthermore, although
applying Ohio Rule 10(D)(2) may require dismissing Plaintiff Rodriguez’s claim at this stage, it
would be unlikely to have much effect on the ultimate outcome of his case. Because the dismissal
would be “otherwise than on the merits,” Plaintiff would have the opportunity to either re-file or
amend his complaint to include the affidavit of merit.44/ Thus, Defendant’s argument that Ohio Rule
10(D)(2) must be applied because it is outcome-determinative is unpersuasive.
The Sixth Circuit has not ruled on the question of whether Ohio Rule 10(D)(2) applies in
federal proceedings. Instead, the United States points to two unpublished Sixth Circuit cases that
upheld dismissals of FTCA medical malpractice claims brought by pro se prisoners because they
failed to file certificates of good faith required under Tennessee law.45/ These terse orders do not
even discuss the procedural-substantive distinction, let alone the direct collision issue; they simply
say that Tennessee law applies and move on.
More importantly, the Tennessee law at issue in those cases is different from Ohio Rule
10(D)(2). At the time those cases arose, Tennessee required that a certificate of good faith be filed
within ninety days of the filing of the complaint in a medical malpractice action,46/ but only in cases
where expert testimony is necessary to establish liability because the negligence would not be

43/

Shady Grove, 559 U.S. at 416 (opinion of Scalia, J.).

44/

See Muncy, 2013 WL 1284233, at *7 (citing Troyer v. Janis, 971 N.E.2d 862, 862 (Ohio 2012), and Fletcher,
897 N.E.2d at 151); Ohio Civ. R. 10(D)(2)(b)–(d).
45/
See Daniels v. United States, No. 11-5009, 2011 U.S. App. LEXIS 26533 (6th Cir. Oct. 7, 2011); Ayala v.
United States, No. 12-5474, slip op. at 2 (6th Cir. Jan. 10, 2013).
46/

Tenn. Code Ann. § 29-26-122(a) (2008), amended by 2009 Tenn. Pub. Acts 425. The Tennessee statute at
issue in those cases has since been amended, and now requires the certificate of good faith be filed simultaneously with
the complaint. See Tenn. Code Ann. § 29-26-122(a) (2012).

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obvious to the average juror.47/ These requirements are different from Ohio Rule 10(D)(2), which
requires an affidavit of merit be filed simultaneously with the complaint in every case that involves
a “medical claim.” These differences would certainly come into play were the Court to decide
whether Tennessee’s certificate of good faith requirement directly collides with the Federal Rules.48/
But they do not persuade the Court to deviate from its prior decision that Ohio Rule 10(D)(2) directly
collides with the Federal Rules.
Finally, the Court notes that the United States makes no argument that any of the Federal
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.”49/ Should the federal rule “abridge, enlarge or modify any substantive right,” it is presumed
invalid.”50/ Because the plaintiff’s failure to provide an affidavit of merit in an Ohio case operates
“as a failure otherwise than on the merits,” and the affidavit of merit is not admissible as evidence,
the affidavit of merit plays no substantive role in the outcome of the action.51/ Thus, the Federal
Rules discussed above do not exceed the authority of the Rules Enabling Act.52/
In short, Federal Rule of Civil Procedure 8, not Ohio Civil Rule 10(D)(2), provides the
pleading standard for Plaintiff Rodriguez’s claim. Federal Rule 8 does not require Plaintiff to have

47/

See Estate of French v. Stratford House, 333 S.W.3d 546, 555 (Tenn. 2011).
See Larca, 302 F.R.D. at 158–59 (collecting and distinguishing cases from other jurisdictions that “involve
affidavit requirements that are not pleadings and need not be filed until well after the complaint” (internal quotation
marks omitted)).
48/

49/

Shady Grove, 559 U.S. at 422 (Stevens, J., concurring) (quotations, citations, and alterations omitted).

50/

28 U.S.C. § 2072(b).

51/

Muncy, 2013 WL 1284233, at *7 (citing Ohio Civ. R. 10(D)(2)(d), and Fletcher, 897 N.E.2d at 151).

52/

Larca, 302 F.R.D. at 159–60; Muncy, 2013 WL 1284233, at *7–8.

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filed an affidavit of merit. Thus, there is no reason to dismiss Plaintiff’s claim for failing to attach
an affidavit of merit to his complaint.
IV. Conclusion
For the foregoing reasons the Court DENIES Defendant United States of America’s motion
to dismiss.
IT IS SO ORDERED.

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

Dated: July 23, 2015

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