Eiswert et al v. United States of America
Filing
86
MEMORANDUM OPINION AND ORDER: For the reasons stated above, the defendant's motion is DENIED IN PART and GRANTED IN PART. As such, the plaintiffs' case is DISMISSED WITH PREJUDICE. Signed by District Judge J Ronnie Greer on 6/18/2018. (JCK)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT GREENEVILLE
TRACY LYNN REECE EISWERT, etc.,
et al.,
Plaintiffs,
v.
UNITED STATES OF AMERICA,
Defendant.
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No. 2:11-CV-304
MEMORANDUM OPINION AND ORDER
This matter is before the Court on the Sixth Circuit’s remand to decide unresolved issues
with defendant’s Motion to Dismiss, [Doc. 14], and its Supplement, [Doc. 39]. The defendant
moved to dismiss the case pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). For
the reasons that follow, the motion is GRANTED IN PART and DENIED IN PART.
I. BACKGROUND
To review, Mr. Scott Walter Eiswert was honorably discharged from the military on
November 29, 2005. He applied for service-connected disability benefits with the United States
Department of Veterans Affairs (“VA”) in May 2006 for Post Traumatic Stress Disorder
(“PTSD”).
The VA denied the application in September 2006.
Mr. Eiswert applied for
reconsideration on August 24, 2007, and the VA once again denied his request on February 4,
2008. During this process, Mr. Eiswert was unable to obtain treatment for PTSD. On March 25,
2008, Mr. Eiswert declined the VA’s attempts to schedule an appointment with the VA’s PTSD
Auerback Clinic. Tragically, Mr. Eiswert committed suicide on May 16, 2008. In sum, Mr.
Eiswert received no treatment from the VA for PTSD from July 28, 2006, through March 25, 2008.
Mr. Eiswert’s wife, Tracy Lynn Eiswert, the plaintiff, continued to pursue the benefits.
The VA granted PTSD-related disability benefits on August 13, 2008, retroactive March 28, 2007.
The VA increased this amount and the effective date on August 26, 2008, due to error. The VA
did so again in April 2009 and May 2010.
On April 20, 2010, Ms. Eiswert filed an administrative claim pursuant to the Federal Tort
Claims Act (“FTCA”), 28 U.S.C. § 2675 (2011), 1 seeking compensation for damages resulting
from her husband’s suicide. The VA denied the claim on November 5, 2010. She sought
reconsideration on February 1, 2011. The VA notified Ms. Eiswert that the reconsideration was
denied on April 19, 2011, and informed her she had six months to pursue her claim in federal court.
Ms. Eiswert and her children (“plaintiffs”) filed the instant action alleging medical
malpractice on October 11, 2011. Plaintiffs’ counsel attached expert statements from boardcertified psychiatrists to the Complaint, [Doc. 1]. These experts opined that within a reasonable
degree of medical certainty, the VA’s failure to recognize and treat Mr. Eiswert’s PTSD
contributed to his untimely death. One expert stated that the VA’s treatment fell below the
applicable standard of care. Plaintiffs’ counsel also attached the experts’ Curriculum Vitae.
However, the Certificate of Good Faith as required by Tennessee Code Annotated section 29-26122 was not attached.
The defendant then filed a Motion to Dismiss, [Doc. 14], and Supplement, [Doc. 39]. The
defendant raised several arguments: that (1) Title 38 United States Code section 511(a) precluded
the Court’s review of any benefit determination; (2) Tennessee Code Annotated section 29-26116(a)(3), the statute of repose, barred the plaintiffs’ action; (3) plaintiffs failed to file a certificate
of good faith and the action should be dismissed pursuant to Tennessee Code Annotated section
1
All statutes referred to in this opinion are to the 2011 versions, the time when the case was originally filed, unless
otherwise noted.
2
29-26-122; and (4) plaintiffs failed to properly demonstrate and plead compliance with Tennessee
Code Annotated section 29-26-121 and the action should be dismissed.
The Court granted the defendant’s motion because the plaintiffs did not strictly comply
with section 122 in filing a Certificate of Good Faith. [Doc. 61]. The Court did not address the
section 511(a) 2 or section 121 arguments. The Court addressed, but did not decide, the statute of
repose issue. The plaintiffs then filed a Motion to Alter or Amend the Judgment and supplements,
[Docs. 63, 68 and 70]. The Court denied the plaintiffs’ motion, [Doc. 72], and the plaintiffs
appealed.
After oral arguments, the Sixth Circuit certified the question of whether section 122 could
be satisfied with substantial compliance to the Tennessee Supreme Court. Eiswert v. U.S., 619 F.
App’x 483, 488-89 (6th Cir. 2015). The Tennessee Supreme Court declined to answer the question
because the section 121 argument had not been addressed and might be determinative of the case.
See Eiswert v. U.S., 639 Fed. App’x 345, 347 (6th Cir. 2016). As such, the Sixth Circuit remanded
the case to this Court to determine whether the Complaint satisfies section 121 and address “any
unresolved issues.” Id. In a footnote, the Sixth Circuit noted that the statute of repose issue “may
also be dispositive.” Id. at 348 n. 2.
The issues before the Court after remand were whether (1) Tennessee Code Annotated
section 29-26-116(a)(3), the statute of repose, bars the plaintiffs’ action; (2) plaintiffs failed to file
a certificate of good faith and the action should be dismissed pursuant to Tennessee Code
Annotated section 29-26-122; and (3) plaintiffs failed to properly demonstrate and plead
compliance with Tennessee Code Annotated section 29-26-121 and the action should be dismissed.
Upon briefing these remanded issues, however, the defendant stated that section “121 is no longer
2
The Court did not address the section 511(a) argument because plaintiffs claimed “that they did not raise such a
claim.” [Doc. 61]. As such, the Sixth Circuit did not address the issue either.
3
an unresolved issue that needs to be resolved by the Court.” As such, the parties agree that there
are only two issues this Court needs to address. See [Doc. 84 at 7] (stating plaintiffs’ issues for
the Court to decide).
They are whether the statute of repose, Tenn. Code Ann. § 29-26-
116(a)(3),bars the plaintiffs’ action, and whether plaintiffs’ action should be dismissed for failing
to file a certificate of good faith, Tenn. Code Ann. § 29-26-122. 3 The Court will discuss each
issue in turn after setting forth the standard of review.
II. STANDARDS OF REVIEW
A Rule 12(b)(1) motion to dismiss an action for lack of subject matter jurisdiction may be
premised on a facial attack or a factual attack. See Abdelkhaleq v. Precision Door of Akron, No.
5:07-cv-3585, 2008 WL 3980339, at *2 (N.D. Ohio Aug.21, 2008) (O'Malley, J.). A facial attack
tests the adequacy of the complaint, Scheuer v. Rhodes, 416 U.S. 232, 235-37 (1974), overruled
on other grounds by Davis v. Scherer, 468 U.S. 183 (1984), while a factual attack evaluates the
actual existence of subject matter jurisdiction, Ohio Hosp. Ass'n v. Shalala, 978 F.Supp. 735, 739
(N.D. Ohio 1997). The importance of this distinction has to do with the nature of the Court's
consideration of the facts and allegations presented in connection with the Rule 12(b)(1) motion.
If the motion presents a facial attack, the Court must construe the pleadings in the light most
favorable to the plaintiff and may not consider extrinsic materials. Abdelkhaleq, 2008 WL
3980339 at *2 (citing United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994)). In contrast, if
the motion presents a factual attack, the Court is free to consider extrinsic evidence and may weigh
3
On appeal, the plaintiffs raised another issue, i.e. whether the Court should have allowed the plaintiffs to amend the
complaint because Federal Rule of Civil Procedure 15 conflicts with Tennessee Code Annotated section 29-26-122.
The plaintiffs do not contend the Court needs to address this issue on remand. Furthermore, on appeal, for what
appears to be the first time, the plaintiffs argue that Rules 8 and 26 of the Federal Rules of Civil Procedure also
preempt state law. However, this Court will not address this issue because the plaintiffs do not raise it on remand.
The Court notes decisions by two courts that addressed the Rule 8 issue with favor. See Johnson v. United States, No.
2:16-cv-2126, 2017 WL 4570317, at *4 n. 2 (W.D. Tenn. Mar. 31, 2017); McKinley v. United States, No. 5:15-cv101, 2015 WL 5842626, at *7-10 (M.D. Ga. Oct. 6, 2015).
4
the evidence of its own jurisdiction without affording the plaintiff the presumption of truthfulness
that is the hallmark of the Rule 12(b)(6) standard. Id.; Rogers v. Stratton Indus., Inc., 798 F.2d
913, 915 (6th Cir. 1986); see also Ernst v. Rising, 427 F.3d 351, 372 (6th Cir. 2005).
Dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6) eliminates a pleading or
portion thereof that fails to state a claim upon which relief can be granted. Fed. R. Civ. P.
12(b)(6). Moreover, Federal Rule of Civil Procedure 8(a)(2) requires the complaint to contain a
“short plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.
8(a)(2). A motion to dismiss under Rule 12(b)(6) requires the Court to construe the allegations in
the complaint in the light most favorable to the plaintiff and accept all the complaint’s factual
allegations as true. Meador v. Cabinet for Human Res., 902 F.2d 474, 475 (6th Cir. 1990). The
Court may not grant a motion to dismiss based upon a disbelief of a complaint’s factual allegations.
Lawler v. Marshall, 898 F.2d 1196, 1199 (6th Cir. 1990). The Court must liberally construe the
complaint in favor of the party opposing the motion. Miller v. Currie, 50 F.3d 373, 377 (6th Cir.
1995). However, the plaintiff must allege facts that, if accepted as true, are sufficient “to raise a
right to relief above the speculative level,” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007), and to “state a claim to relief that is plausible on its face,” id. at 570; see also Ashcroft v.
Iqbal, 556 U.S. 662, 678-79 (2009). “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.” Iqbal, 556 U.S. at 678. Moreover, this Court need not “‘accept as
true a legal conclusion couched as a factual allegation.’” Twombly, 550 U.S. at 555 (quoting
Papasan v. Allain, 478 U.S. 265, 286 (1986)); see also Iqbal, 556 U.S. at 678. Lastly, this Court
may consider documents central to the plaintiff’s claims to which the complaint refers and
incorporates as exhibits. Amini v. Oberlin College, 259 F.3d 493, 502 (6th Cir. 2001).
5
III. ANALYSIS
A. 12(b)(1) claim
The defendant moves to dismiss pursuant to Rule 12(b)(1) and argues that this Court lacks
subject matter jurisdiction because the plaintiffs failed to file their Complaint within Tennessee’s
three-year statute of repose for health care liability actions. 4 Tenn. Code Ann. § 29-26-116(a)(3)
(2011).
Here, the parties disagree about the date on which the statute of repose began to run. In
Tennessee, the three-year repose period begins from the date of the defendant’s last allegedly
negligent act. See In re Estate of Davis, 308 S.W.3d 832, 838 (Tenn. 2010); Shadrick v. Coker,
963 S.W.2d 726, 735 (Tenn. 1998); see also Tenn. Code Ann. § 29-26-116(a)(3). The defendant
claims that this time period began on March 25, 2008, the last time Mr. Eiswert interacted with the
VA. The plaintiffs claim the period began when Mr. Eiswert committed suicide on May 16, 2008.
Further, the plaintiffs assert that Tennessee Code Annotated section 29-26-121(c) extended the
statute of repose by 120 days. The defendant does not challenge the extension. Thus, the defendant
argues that the plaintiff had until July 23, 2011, to file a health care liability suit. If the Court uses
the plaintiffs start date of May 16, 2008, then the plaintiffs had until September 13, 2011, to file
their action.
In sum, Mr. Eiswert’s last interaction with the VA was on March 25, 2008, and he tragically
committed suicide on May 16, 2008. On April 20, 2010, Ms. Eiswert filed an administrative claim
with the VA pursuant to the FTCA. The VA denied this claim on reconsideration on April 19,
2011, and informed Ms. Eiswert that she had six months to pursue her claim in federal court. The
4
“[T]he Tennessee Civil Justice Act of 2011 amended the existing Tennessee Medical Malpractice Act by removing
all references to ‘medical malpractice’ from the Tennessee Code and replacing them with ‘health care liability’ or
‘health care liability action’ as applicable.” Ellithorpe v. Weismark, 479 S.W.3d 818, 826 (Tenn. 2015).
6
plaintiffs filed the instant action alleging medical malpractice on October 11, 2011. Again, the
defendant argues that the plaintiffs should have filed their action in this Court prior to July 23,
2011. Nonetheless, the defendant argues that, even accepting the plaintiffs’ time frame, the
plaintiffs failed to file within the statute of repose period. As such, the defendant claims that this
Court lacks subject matter jurisdiction.
Two cases in particular are instructive on this issue. In Huddleston v. United States, 485
Fed. App’x 744, 745-46 (6th Cir. 2012), the court stated:
[Tennessee’s] statute of repose is a substantive requirement,
not just a procedural hurdle. See, e.g., Cronin v. Howe, 906 S.W.2d
910, 913 (Tenn. 1995); Montgomery v. Wyeth, 580 F.3d 455, 468 n.
7 (6th Cir. 2009). Unlike a statute of limitations, which eliminates
the remedy available to plaintiffs, Tennessee's statute of repose
extinguishes the cause of action itself. Id. Such substantive
limitations apply to suits brought against the United States under the
FTCA, which permits liability only 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. See 28
U.S.C. § 2674 (“The United States shall be liable, respecting the
provisions of this title relating to tort claims, in the same manner and
to the same extent as a private individual under like circumstances
. . . .”). Because federal law incorporates state substantive law for
the purposes of FTCA claims, applying Tennessee's statute of
repose to FTCA plaintiffs does not run afoul of the Supremacy
Clause.
Huddleston underwent the colonoscopy in 2006 and filed his
complaint in 2010 without claiming fraudulent concealment.
Consequently, at the time of his complaint, Tennessee law
recognized no cause of action for alleged medical negligence
regarding his medical treatment in 2006. The limitations period of §
2401(b) is of no moment because the applicable state law provides
no cause of action.
Id.
The Sixth Circuit faced a similar issue in Kennedy v. United States, No. 12-3049, 2013 WL
1693965, at *4 (6th Cir. Apr. 19, 2013). In Kennedy, the court had to determine whether the district
7
court erred in granting the government’s motion to dismiss pursuant to Rule 12(b)(1) because of
Ohio’s statute of repose. Id. The court held that because Ohio’s statute of repose does not operate
to bar that plaintiff’s already-vested cause of action, then the district court erred. Id. at *5. The
court noted a difference between the Ohio and Tennessee statutes. It stated:
Unlike Ohio's statute of repose, Tennessee's statute would bar the
use of the one-year statute of limitations for claims that vest even
within the third year in the absence of fraudulent concealment by the
defendant. See Tenn. Code Ann. § 29–26–116(a)(3). This suggests
that Tennessee's statute is harsher than Ohio's statute as the former
does more than just limit the time frame for accrual; it extinguishes
some claims before the statute of limitations expires despite accrual
within the three-year repose period.
Id. at *8, n. 2. More importantly, the Kennedy court noted that “[t]he Huddleston court expressly
left open the question whether a claim properly before the appropriate administrative agency
within the statutory repose period is extinguished if it is then filed with the district court in
compliance with the FTCA but outside of the statute of repose.” Id. at *4; see also Stinnett v.
United States, 891 F.Supp.2d 858, 868 n. 10 (M.D. Tenn. Sept. 4, 2012) (“However, the Sixth
Circuit has explicitly declined to decide whether, for purposes of the Tennessee statute of repose,
an FTCA action is commenced when a plaintiff files an administrative claim with the United States
or when, pursuant to applicable FTCA procedures, the plaintiff subsequently files an action on the
same subject matter in federal court.”).
This unanswered question is similar to the question at bar. Before reaching the question,
however, the Court must first address the defendant’s claim that the word “action” as set forth in
section 116(a)(3) does not encompass a federal administrative claim. Section 116(a)(3) states:
(3) In no event shall any such action be brought more than three (3)
years after the date on which the negligent act or omission occurred
except where there is fraudulent concealment on the part of the
defendant, in which case the action shall be commenced within one
(1) year after discovery that the cause of action exists.
8
Tenn. Code Ann. § 29-26-116. The term “action” is not defined in section 116(a)(3). However,
“[h]ealth care liability action’ means any civil action . . . .” Tenn. Code Ann. § 29-26-101(a)(1)
(2011). “All civil actions [in Tennessee] are commenced by filing a complaint with the clerk of
court.” Tenn. R. Civ. P. 3; accord Fed. R. Civ. P. 3 (“A civil action is commenced by filing a
complaint with the court.”) Thus, it appears that according to Tennessee law an administrative
claim is not an “action” under section 116(a)(3). See Logan Proffitt Irrevocable Trust v. Mathers,
Nox. 2:09-CV-292; 2:10-CV-147, 2011 WL 9369856, at *3 n.3 (E.D. Tenn. Aug. 2, 2011) (“[T]he
Court cannot find anything in the statute or Tennessee case law that would lend support to any
proposition that the administrative action was an ‘action’ for purposes of the medical malpractice
statute, the statute of repose, or the savings statute. Therefore, the administrative claim cannot save
a late-filed complaint.”)
Now, this Court must decide whether the FTCA preempts section 116(a)(3) in the situation
at bar. Again, the Huddleston Court left open the question whether a claim properly before the
appropriate administrative agency within the statutory repose period is extinguished if it is then
filed with the district court in compliance with the FTCA but outside of the statute of repose.
Judge White answered the question in a concurring opinion in Kennedy. This Court notes,
however, that both of these cases are unpublished and nonbinding on this Court. Similarly, every
case cited by both the plaintiffs and the defendant are also nonbinding precedents which are
factually distinguishable in that the administrative final decision was issued after the repose period,
the case dealt with a statue of limitations as opposed to a statute of repose, or the FTCA
administrative claim was not filed within the repose period.
Here, the Court is presented with an issue of first impression: Does the FTCA preempt
section 116(a)(3) where the federal administrative action was filed with the VA and a final
9
decision rendered within the state statute of repose, but the health care liability action was filed
in court after the repose period had run? Specifically, the Court must analyze section 2401(b) of
the FTCA. It states:
A tort claim against the United States shall be forever barred unless
it is presented in writing to the appropriate Federal agency within
two years after such claim accrues or unless action is begun within
six months after the date of mailing, by certified or registered mail,
of notice of final denial of the claim by the agency to which it was
presented.
28 U.S.C. § 2401(b).
The preemption doctrine is rooted in the United States Constitution’s Supremacy Clause.
Maryland v. Louisiana, 451 U.S. 725, 746 (1981). “Consideration under the Supremacy Clause
starts with the basic assumption that Congress did not intend to displace state law.” Id. Still, the
Supreme Court has identified three types of preemption: (1) express preemption, (2) field
preemption, and (3) conflict preemption. English v. Gen. Elec. Co., 496 U.S. 72, 78-79 (1990).
The plaintiffs do not discuss the various preemption doctrines. Instead, they mainly rely upon the
concurring opinion in Kennedy, and the holdings of Jones v. United States, 789 F.Supp.2d 883
(M.D. Tenn. Aug. 15, 2011) (holding Tennessee’s statute of repose is preempted by the FTCA),
and McKinley v. United States, No. 5:15-CV-101, 2015 WL 5842626 (M.D. Ga. Oct. 6, 2015)
(same); see also Blau v. United States, No. 8:12-CV-2669, 2013 WL 704762 (M.D. Fla. Feb. 26,
2013) (holding Florida’s statue of repose was preempted by the FTCA. The concurring opinion
in Kennedy based its holding on conflict preemption. 526 Fed. App’x at 458 (“Because Ohio
medical-malpractice statute of repose operates in this case to undercut the federal procedure, it
‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of
Congress’ and thus does not apply under conflict preemption principles.”). Jones does not discuss
the different types of preemption; however, it appears the holding is based on conflict preemption.
10
McKinley relies upon both field and conflict preemption principles in its holding, which it refers
to collectively as “implied preemption.” 2015 WL 5842626 at *13.
State Farm Bank v. Readon sets forth the preemption principles:
Express preemption exists where either a federal statute or
regulation contains explicit language indicating that a specific type
of state law is preempted. See id. at 153, 102 S.Ct. 3014. Implied
preemption has been subdivided into “field preemption” and
“conflict preemption.” Gade v. Nat'l Solid Wastes Mgmt. Ass'n, 505
U.S. 88, 98, 112 S.Ct. 2374, 120 L.Ed.2d 73 (1992). Field
preemption exists “where the scheme of federal regulation is so
pervasive as to make reasonable the inference that Congress left no
room for the States to supplement it.” Id. (internal quotations
omitted). Conflict preemption occurs “where compliance with both
federal and state regulations is a physical impossibility, or where
state law stands as an obstacle to the accomplishment and execution
of the full purposes and objectives of Congress.” Id. (internal
citations and quotations omitted). Regardless of the type of
preemption at issue, this court's duty is to “determine whether state
regulation is consistent with the structure and purpose” of applicable
federal law. Id.
539 F.3d 336, 341–42 (6th Cir. 2008).
It is clear that there is no express preemption here. Furthermore, this Court concludes that
field preemption does not apply to section 116(a)(3) because in Huddleston the Sixth Circuit stated
that statutes of repose “apply to suits brought against the United States under the FTCA” and that
“applying Tennessee’s statute of repose to FTCA plaintiffs does not run afoul of the Supremacy
Clause.” 485 Fed. App’x at 745-46. So this Court will analyze the case at bar according to conflict
preemption principles. Again, “[c]onflict preemption occurs where compliance with both federal
and state regulations is a physical impossibility, or where state law stands as an obstacle to the
accomplishment and execution of the full purposes and objectives of Congress.” Reardon, 539
F.3d at 342. Here, it is not a physical impossibility for the plaintiff to comply with both section
116(a)(3) and section 2401(b).
The entire administrative process, including denial on
11
reconsideration, was completed and suit could have been filed in federal court five months prior
to the statute of repose deadline. However, this does not end the inquiry. The Court must now
determine whether section 116(a)(3) stands as an obstacle to the accomplishment and execution of
the full purposes and objectives of Congress for section 2401(b).
Section 2401(b) states that an FTCA claim is barred unless action is begun within six
months after the date of mailing, by certified or registered mail, of notice of final denial of the
claim by the agency to which it was presented. Here, the VA’s final denial was on April 19, 2011.
According to section 2401(b), the plaintiffs had six months from this date to file the action in
federal court. The statute of repose deadline set forth in section 116(a)(3) was prior to the
conclusion of this six-month period. As such, contrary to the defendant’s contention, the entire
process was not complete.
Accordingly, section 116(a)(3) stands as an obstacle to the
accomplishment and execution of the full purposes and objectives of Congress. This Court finds
persuasive the reasoning in Jones and the concurring opinion in Kennedy even though in those
cases the administrative agency had not rendered a decision prior to the statute of repose deadline.
Still, “Congress intended the administrative process to be the preferred method for resolving tort
claims against the federal government and that a plaintiff engaging in that process have six months
after the agency denial to evaluate his or her position.” Kennedy, 526 Fed. App’x at 458 (emphasis
added). “To conclude otherwise would allow agencies to delay notices of denial in order to allow
the statute of repose to extinguish a plaintiff’s claim. This outcome is not what Congress intended
when it enacted § 2401(b).” Id. at 458-59; see also Jones, 789 F.Supp.2d at 892; A.J.J.T. v. United
States, No. 3:15-CV-1073, 2016 EL 3406138, at *5 (M.D. Tenn. June 21, 2016). But see Augutis
v. United States, 732 F.3d 749 (7th Cir. 2013) (holding the FTCA did not preempt state law where
12
the administrative process began prior to the statute of repose deadline but suit was not filed until
after the deadline).
For the reasons set forth above, the defendant’s motion on this issue is DENIED.
B. 12(b)(6) claim
The second issue is whether a plaintiff can substantially comply with Tennessee Code
Annotated section 29-26-122 even though it is undisputed that the plaintiffs failed to file a
Certificate of Good Faith. Instead, the plaintiff filed three exhibits: (1) the psychiatric opinion
report from William B. Land, M.D.; (2) the economic loss opinion report from Chad L. Staller,
J.D., M.B.A., M.A.C.; and (3) the psychiatric opinion report from J. Sidney Alexander, M.D. The
plaintiff did not file any exhibits that explicitly certified that plaintiff or plaintiff’s counsel had
consulted with one or more experts who provided a written statement confirming that he or she is
competent under section 29-26-115 and that there is a good faith basis to maintain the action
consistent with the requirements of section 29-26-115. Furthermore, no exhibit stated or certified
whether the plaintiff or plaintiff’s counsel have been found in violation of section 29-26-122 on
any previous occasion.
As stated above, on this FTCA claim the Court must apply Tennessee substantive law. The
Tennessee Supreme Court held in Myers v. AMISUB (SFH), Inc., 382 S.W.3d 300, 310 (Tenn.
2012), that the requirements of sections 29-26-121 and -122 are substantive and mandatory, not
procedural and directory. Id. Thus, according to Myers, a failure to file a Certificate of Good
Faith results in a case being dismissed with prejudice. Id. at 311.
Again, it is not disputed that the plaintiffs failed to file such a certificate, and there are no
allegations of extraordinary cause. 5 Even so, the plaintiffs argue that they substantially complied
5
This Court notes that the plaintiffs also moved to amend the Complaint to add the certificate. The magistrate judge
denied this request, [Doc. 55]. The plaintiffs objected to this Order, [Doc. 56]. However, this Court did not find the
13
with section 122’s requirements by what they did file, and the Court should not dismiss the case
on the merits. Of course, the defendant contends the contrary.
Section 122 states in part:
(a) In any medical malpractice action in which expert testimony is
required by § 29-26-115, the plaintiff or plaintiff's counsel shall file
a certificate of good faith with the complaint. If the certificate is not
filed with the complaint, the complaint shall be dismissed, as
provided in subsection (c), absent a showing that the failure was due
to the failure of the provider to timely provide copies of the
claimant's records requested as provided in § 29-26-121 or
demonstrated extraordinary cause. The certificate of good faith shall
state that:
(1) The plaintiff or plaintiff's counsel has consulted with one
(1) or more experts who have provided a signed written statement
confirming that upon information and belief they:
(A) Are competent under § 29-26-115 to express an opinion
or opinions in the case; and
(B) Believe, based on the information available from the
medical records concerning the care and treatment of the plaintiff
for the incident or incidents at issue, that there is a good faith basis
to maintain the action consistent with the requirements of § 29-26115; or
(2) The plaintiff or plaintiff's counsel has consulted with one
(1) or more experts who have provided a signed written statement
confirming that upon information and belief they:
(A) Are competent under § 29-26-115 to express an opinion
or opinions in the case; and
(B) Believe, based on the information available from the
medical records reviewed concerning the care and treatment of the
plaintiff for the incident or incidents at issue and, as appropriate,
information from the plaintiff or others with knowledge of the
incident or incidents at issue, that there are facts material to the
magistrate judge’s Order to be clearly erroneous or contrary to law. See Fed. R. Civ. P. 72(a); see also 28 U.S.C. §
636(b)(1)(A). The magistrate judge was correct in that a deficiency in a complaint by failing to comply with sections
29-26-121 and -122 cannot be cured by amending the complaint. See Vaughn v. Mountain States Health Alliance,
No. E2012-01042-COA-R3-CV, 2013 WL 817032, at *6 (Tenn. Ct. App. Mar. 5, 2013). Furthermore, this is not a
situation where Tennessee substantive law and federal procedural law, i.e., Federal Rule of Civil Procedure 15, are at
odds. Even if the plaintiffs timely sought to amend their Complaint as of right, the defects they sought to cure were
not “technical”; they were substantive. See Fed. R. Civ. P. 15. Furthermore, the plaintiffs “may not use federal
procedural law to circumvent the requirements of state substantive law.” Miller v. Uchendu, No. 2:13–cv–02149–
JPM–dkv, 2013 WL 4097340, at *5 (W.D. Tenn. Aug. 13, 2013); see also Litton v. Wellmont Health Systems, 2:11CV-257, 2012 WL 4372375, at *4 (E.D. Tenn. Sept. 24, 2012) (noting that Tennessee substantive law requires
dismissal in medical malpractice cases for failing to file a Certificate of Good Faith and declining to hold that Rule 15
trumps Tennessee substantive law).
14
resolution of the case that cannot be reasonably ascertained from the
medical records or information reasonably available to the plaintiff
or plaintiffs counsel; and that, despite the absence of this
information, there is a good faith basis for maintaining the action as
to each defendant consistent with the requirements of § 29-26-115.
Refusal of the defendant to release the medical records in a timely
fashion or where it is impossible for the plaintiff to obtain the
medical records shall waive the requirement that the expert review
the medical record prior to expert certification.
....
(c) The failure of a plaintiff to file a certificate of good faith in
compliance with this section shall, upon motion, make the action
subject to dismissal with prejudice. The failure of a defendant to file
a certificate of good faith in compliance with this section alleging
the fault of a non-party shall, upon motion, make such allegations
subject to being stricken with prejudice unless the plaintiff consents
to waive compliance with this section. If the allegations are stricken,
no defendant, except for a defendant who complied with this section,
can assert, and neither shall the judge nor jury consider, the fault, if
any, of those identified by the allegations. The court may, upon
motion, grant an extension within which to file a certificate of good
faith if the court determines that a health care provider who has
medical records relevant to the issues in the case has failed to timely
produce medical records upon timely request, or for other good
cause shown.
(d)
(1) Subject only to subdivision (d)(2), the written statement
of an expert relied upon in executing the certificate of good faith is
not discoverable in the course of litigation.
(2) If a party in a medical malpractice action subject to this
section prevails on the basis of the failure of an opposing party to
offer any competent expert testimony as required by § 29-26-115,
the court may, upon motion, compel the opposing party or party's
counsel to provide to the court a copy of each such expert's signed
written statement relied upon in executing the certificate of good
faith. The medical experts may be compelled to provide testimony
under oath, as determined by the court, for the purposes of
determining that party's compliance with subsection (a) or (b).
(3) If the court, after hearing, determines that this section has
been violated, the court shall award appropriate sanctions against
the attorney if the attorney was a signatory to the action and against
the party if the party was proceeding pro se. The sanctions may
include, but are not limited to, payment of some or all of the
attorney's fees and costs incurred by a party in defending or
15
responding to a claim or defense supported by the non-complying
certificate of good faith. If the signatory was an attorney, the court
shall forward the order to the board of professional responsibility for
appropriate action. Upon proof that a party or party's counsel has
filed a certificate of good faith in violation of this section in three
(3) or more cases in any court of record in this state, the court shall,
upon motion, require the party or party's counsel to post a bond in
the amount of ten thousand dollars ($10,000) per adverse party in
any future medical malpractice case to secure payment of sanctions
for any violation of this section in such case.
(4) A certificate of good faith shall disclose the number of
prior violations of this section by the executing party.
(5) The administrative office of the courts shall develop a
certificate of good faith form to effectuate the purposes of this
section. 6
Tenn. Code Ann. § 29-26-122 (2011). The plain language of the statue is clear. It states, “If the
certificate is not filed with the complaint, the complaint shall be dismissed.” Id. § 29-26-122(a).
Subsection (c) states that the dismissal “shall” be “with prejudice.” Id. § 29-26-122(c). Despite
the plain language of the statute, the plaintiffs argue that they can substantially comply with the
statute to avoid dismissal with prejudice.
On remand, the Sixth Circuit directed the Court to several cases to determine whether the
statute allows substantial compliance. See Davis ex rel. Davis v. Ibach, 465 S.W.3d 570, 574
(Tenn. 2015); Thurmond v.Mid-Cumberland Infectious Disease Consultants, PLC, 433 S.W.3d
512 (Tenn. 2014); Stevens ex rel. Stevens v. Hickman Cmty. Health Care Servs., Inc., 418 S.W.3d
547 (Tenn. 2013). The Court has reviewed those cases and many others. None of the cases have
held that section 122 can be substantially complied with when no certificate of good faith has been
filed in the first place. But see Hinkle v. Kindred Hospital, No. M2010–02499–COA–R3–CV,
2012 WL 3799215, at *9 (Tenn. Ct. App. Aug. 31, 2012) (holding to the contrary but it predates
Myers). It is true that Davis held section 122’s requirement that a certificate disclose the number
6
See § 8:282.10.Certificate of good faith—Medical malpractice case—Plaintiff's form, 5 Tenn. Prac., Civil Procedure
Forms § 8:282.10 for a copy of the form.
16
of prior violations does not require the disclosure of the absence of any prior violations. Davis,
465 S.W.3d at 574. Accordingly, one might argue that the court allowed substantial compliance.
However, Davis “was decided on grounds of statutory interpretation, not substantial compliance.”
Estate of Dustin Barnwell v. Grigsby, No. 3:13-CV-124, 2018 WL 1733311, at *4 (E.D. Tenn.
Apr. 10, 2018). The holding is not one that a plaintiff can satisfy all of section 122’s requirements
when the plaintiff has failed to file a certificate of good faith in the first place. Thus, the Court
does not find the cases referred to by the Sixth Circuit, or any other case, as providing an avenue
for the plaintiffs to maintain this action.
Instead, the Court will decide the case based on Myers and the plain language of the statue,
and they both require dismissal with prejudice when a plaintiff fails to file a certificate of good
faith. 7 The Court notes that courts have allowed substantial compliance with section 121.
Nevertheless, section 121 does not provide a penalty for noncompliance and section 122 does.
These statutes were enacted together as part of the Tennessee Health Care Liability Act, and,
therefore, the Court must interpret the sections together and must presume the Tennessee
Legislature intended for them to carry different sanctions. Phillips v. Casey, No. E2014-01563COA-R9-CV, 2015 WL 4454781, at *6 (Tenn. Ct. App. Jul. 21, 2015). “Although legislative
silence is not generally indicative of an intent not to act, legislative silence in this particular context
offers a strong suggestion that the legislature intended . . . [sections] -121 and -122 to function
differently.” Id. (citations omitted). Other courts have reached the same conclusion that section -
7
The statute contemplates expert reports, which is exactly what was filed in this case, in subsection (d). So it is clear
the legislature considers those as separate documents. The Court understands the plaintiffs’ argument that the report
provides more information than the certificate in terms of the substance of the health care liability claim; however, the
documents serve different purposes. Although good faith can be inferred from an expert report, a report typically is
not certified by the plaintiff or plaintiff’s counsel, it usually does not certify competency under section 29-26-115
(despite some of this information being included to infer such a conclusion), and it does not certify the number of
prior violations of the statute by the plaintiffs or plaintiffs’ counsel. Thus, the need for an actual certificate. Without
such a certificate, the majority of subsection (d) would be moot which is further evidence that the legislature did not
intend satisfaction of section 122 by substantial compliance by filing an expert report.
17
122 requires strict compliance post Myers. See Ellithorpe v. Weismark, 479 S.W.3d 818, 829
(Tenn. 2015); see also Kinsey v. Schwarz, No. M2016–02028–COA–R3–CV, 2017 WL 3575895,
at *7 (Tenn. Ct. App. Aug. 18, 2017). In sum, the Court holds that section 122 cannot be satisfied
by substantial compliance when the plaintiffs fail to file a certificate of good faith along with the
complaint. 8
The Court once again states its dissatisfaction with this outcome. “But the Court must
follow the dictates of the law; and ‘it is the Tennessee legislature, and not this Court, that drafts
the law of the state.’” Barnwell, 2018 WL 1733311, at * 5 (citations omitted). Furthermore, this
Court followed the precedent of the Tennessee Supreme Court in Myers and Ellithorpe, a court
which refused to answer the very question at issue in this case. Therefore, the Court must further
conclude that the court is not interested in changing its ruling; otherwise, it could have done so by
answering the certified question contrary to its prior rulings.
IV. CONCLUSION
For the reasons stated above, the defendant’s motion is DENIED IN PART and GRANTED
IN PART. As such, the plaintiffs’ case is DISMISSED WITH PREJUDICE.
ENTER:
s/J. RONNIE GREER
UNITED STATES DISTRICT JUDGE
8
The Court need not reach whether the plaintiffs in fact substantially complied. The Court will note, however, that
Dr. Alexander’s report and CV do not address the locality rule, which is a requirement under section 115.
18
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