Beruflich Dokumente
Kultur Dokumente
PlaintiffsAppellants
----against----
Defendant-Appellee
BRIEF OF APPELLANTS
This is an appeal by Tracy Lynn Reece Eiswert, in her own right and as Administratrix of
the Estate of Scott Walter Eiswert, her late husband, and on behalf of her minor children U.E. and
B.E., from a judgment which dismissed Plaintiffs-Appellants claims in their entirety under Rule
12(b)(6). (RE # 61 and 62). Thereafter Appellants filed a Motion to Alter Judgment (RE # 63),
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JURISDICTIONAL STATEMENT
Jurisdiction was properly evoked below pursuant to 28 U.S.C. 1331 and 28 U.S.C.
1346(b) as this case arises under federal law in that the United States of America is a defendant and
the case alleges claims under the Federal Tort Claims Act.
The United States District Court for the Eastern District of Tennessee granted a Rule
12(b)(6) motion filed by the Defendant-Appellee and entered judgment in its favor on all claims on
September 30, 2013. (RE # 61 and 62). Plaintiffs-Appellants filed a timely Rule 59(e) Motion
To Alter Judgment on October 25, 2013. (RE # 63). The District Court denied this motion on
September 10, 2014 and Plaintiffs-Appellants filed a timely Notice of Appeal on September 11,
2014. (RE # 72 and 73). Because the District Court dismissed all of Plaintiffs-Appellants
claims, this appeal is as a matter of right under Rules 3 and 4 of the Federal Rules of Appellate
Procedure.
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STATEMENT OF THE ISSUES PRESENTED
claims for an alleged failure to strictly comply Tenn. Code Ann. 29-26-121 was proper.
2. Whether the Appellants complied with Tenn. Code Ann. 29-26-122 making
3. If Plaintiffs failed to comply with Tenn. Code Ann. 29-26-121 and -122, then did
Plaintiffs have the right to amend their Complaint in accordance with Federal Rule of Civil
4. Whether Tenn. Code Ann. 29-26-121 and -122 apply to cases filed in federal
court or do those provisions unlawfully conflict with Rules 8 and 26 of the Federal Rules of Civil
Procedure.
second motion to dismiss violated Rule 12(g)(2) of the Federal Rules of Civil Procedure.
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STATEMENT OF THE CASE
I. Factual Background
This action arises out of the wrongful death of Scott Walter Eiswert (Mr. Eiswert or
Decedent), a combat veteran who tragically took his own life following his battle with
Plaintiffs-Appellants brought this Federal Tort Claims Act (28 U.S.C. 2671 et. seq., the
FTCA) case alleging that the Mountain Home V.A. Medical Center (Mountain Home V.A.)
committed medical malpractice by failing to timely diagnose and treat Decedents PTSD. (Id.).
the pending action in the United States District Court for the Eastern District of Tennessee. (Id. at
Eiswert enlisted in the United States National Guard in July of 2001 for an eight year
period. (Id. at PageID 3). He was called to active duty in 2003 and served in Iraq during
Operation Iraq Freedom in 2004 and 2005, and he was honorably discharged from active duty on
Immediately following his discharge he sought help from an internal medicine physician in
his community who recommended mental health counseling. (Id. at PageID 3-4). Eiswert took
his physicians recommendation and sought help at the Nolichucky-Holston Center in Greeneville,
Tennessee, a community mental health center. (Id. at PageID 4). Eiswert received care from the
Nolichucky-Holston Center in Greeneville from December 21, 2005 through April 12, 2006.
(Id.). Eiswerts counselor at Nolichucky-Holston Center was Ray White, LPC, MHSP, who
treated Mr. Eiswert during that period. (Id.). On April 21, 2006, Eiswert quit his job due to
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stress and on May 9, 2006, White wrote to the Department of Veterans Affairs, at the request of
Mr. Eiswert, wherein he stated: [a]fter meeting with Mr. Eiswert for several appointments, we
have established a diagnosis of PTSD, per the Diagnostic Statistical Manual Criteria. (Id. at
PageID 5).
Based upon the diagnosis by White, Mr. Eiswert made application to the Department of
Veterans Affairs for service connected PTSD disability. (Id. at PageID 5-6). In his application
On July 28, 2006, Mr. Eiswert was evaluated for PTSD at the Mountain Home V.A. by
Patrick J. MacMillan, M.D. (Id. at PageID 6). Following this evaluation, Dr. MacMillan
concluded that veteran has current diagnosis of depression, NOS, he does describe symptoms of
Post Traumatic Stress Syndrome, however, not enough to meet criteria. (Id.). As a result, on
September 8, 2006, the Department of Veteran Affairs denied Eiswerts application for a service
From when Mr. Eiswert first presented with mental health issues to the Mountain Home
V.A. through March 28, 2008, Mountain Home V.A. denied his request for service connected
On August 13, 2008, the Department of Veterans Affairs reversed its three prior denials
and found that Mr. Eiswert was entitled to service connected PTSD and retroactively applied this
conclusion to March 28, 2007, over 13 months prior to Mr. Eiswerts suicide, all but admitting that
the Department of Veterans Affairs misdiagnosed and misidentified Mr. Eiswerts service-related
PTSD. (Id. at PageID 13). The basis for the reversal was the joint records research
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memorandum received August 7, 2008 has confirmed stressor associated with duty in Iraq.
(Id.).
On August 26, 2008, the Department of Veteran Affairs admits the decision dated August
13, 2008 was clearly and unmistakenably an error in failing to grant a higher impairment
evaluation for PTSD with an earlier effective date of February 9, 2007, almost 17 months prior to
Mr. Eiswerts suicide. (Id.). The February 9, 2007 date is a result of a Veterans Administration
Medical Centers Consultation Note of Dual Diagnosis Clinic which took into consideration
In other words, based on the Department of Veterans Affairs own admission, Mr. Eiswert
should have been receiving treatment and benefits for service-related PTSD at least 17 months
Further, attached to the complaint are two expert statements from Board Certified
Psychiatrists who state that within a reasonable degree of medical certainty, the Department of
Veteran Affairs failure to timely recognize and treat Eiswerts service-related PTSD directly
contributed to his PTSD spiraling out of control and his eventual untimely death on May 16, 2008.
One such statement was from Jay Sydney Alexander, M.D., a psychiatrist in Knoxville,
Tennessee, who is the former medical director of the Lakeshore Mental Health Institute, a state
institution located in Knoxville. (RE # 1-3). In his statement, whichalso contained his
Curricula Vitae establishing Dr. Alexanders credentials to render such a medical opinion, Dr.
Alexander affirmatively stated that the Department of Veterans Affairs treatment of Mr. Eiswert
fell below the standard of care owed to him and this caused Mr. Eiswerts untimely death on May
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16, 2008. (Id.).
On April 20, 2010, Plaintiffs-Appellants filed the claims asserted in this action with the
process required by 28 U.S.C. 2675. (RE # 1 at PageID 14). On April 19, 2011 the
Department of Veterans Affairs ultimately denied that claim and gave Plaintiffs-Appellants six
months to file suit in a court of competent jurisdiction. (Id.). On October 11, 2011,
Plaintiffs-Appellants filed their original complaint in the Eastern District of Tennessee and
attached to that complaint the expert statements identified in the previous section, including the
On March 9, 2012, Defendant-Appellee filed its original motion to dismiss alleging that the
Court lacked jurisdiction over this case pursuant to Tennessees statute of repose in medical
opposition to this original motion, and attached an affidavit of counsel submitting most of the
administrative record from the FTCA-mandated pre-suit administrative process. (RE # 23 and
24).
On January 24, 2013, almost one year after filing its original motion to dismiss,
Defendant-Appellee filed a motion for permission to file a second motion to dismiss. (RE # 34).
Although Plaintiffs-Appellants opposed this motion, the Court ultimately granted it, permitting
for the first time that Plaintiffs-Appellants complaint should be dismissed for failure to comply
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with Tenn. Code Ann. 29-26-121 and 122, provisions of Tennessees Healthcare Liability Act
(the THCLA). (RE # 39). Tenn. Code Ann. 29-26-121 requires a plaintiff who files a
medical malpractice claim to provide the named-defendant healthcare providers at least 60 days
advance notice of the claim prior to filing suit. Tenn. Code Ann. 29-26-122 requires a plaintiff
to file a certificate of good faith certifying that the medical malpractice claims alleged in the
dismiss arguing that it had complied with Tenn. Code Ann. 29-26-121 and 122 by filing with
the complaint the actual expert report counsel had obtained from a qualified expert and by
had previously filed documents reflecting that the Defendant-Appellees had actual notice of the
attached all exhibits of the original complaint along with two additional exhibits: 1) evidence of
counsels compliance with Tenn. Code Ann. 29-26-121 (the pre-suit notice requirements under
Administrative Office of the Courts for use in satisfying the requirements of Tenn. Code Ann.
On April 11, 2013, United States Magistrate Judge Dennis Inman entered a report and
recommendation denying the motion to amend filed by Plaintiffs-Appellants and granting the
timely objection on April 25, 2013. (RE # 56). On September 30, 2013, United States District
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Judge Ronnie Greer upheld the report and recommendation thereby granted Defendant-Appellees
second motion to dismiss and denying Plaintiffs-Appellants Motion to Amend and dismissed the
On October 25, 2013, Plaintiffs-Appellants filed a Rule 59(e) Motion to Amend the
September 30, 2013 judgment, which Judge Greer ultimately denied on September 10, 2014. (RE
# 63, 64 and 72.) Plaintiffs-Appellants filed their notice of appeal the following day on
STANDARD OF REVIEW
The District Courts dismissal under Rule 12(b)(6) and the conclusions of law related
thereto are reviewed de novo. Dillon v. Cobra Power Corp., 560 F.3d 591, 599 (6th Cir. 2009).
SUMMARY OF ARGUMENT
The District Court incorrectly applied the THCLA when it dismissed Plaintiffs-Appellants
claims for failure to comply with Tenn. Code Ann. 29-26-121 and -122. Tenn. Code Ann.
29-26-121 requires a plaintiff asserting a case for medical malpractice to provide defendants with
pre-suit notice at least 60 days before the filing of the complaint. Tenn. Code Ann. 29-26-122
requires that a plaintiff asserting a case for medical malpractice in which expert proof is required to
file a certificate of good faith attesting to the fact that the complaint has merit.
The District Court interpreted the Tennessee Supreme Courts decision in Myers v.
AMISUB (SFH), Inc., 382 S.W.3d 300, 310 (Tenn. 2012.) to require that a plaintiff strictly comply
with all aspects of both Tenn. Code Ann. 29-26-121 and -122. However, in subsequent
decisions to Myers and the District Courts order granting dismissal, the Tennessee Supreme Court
has clarified that the strict compliance requirements of Myers do not apply to the technical contents
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of the notice or the certificate of good faith, the exact issues now raised on this appeal. Here,
because Plaintiffs-Appellants provided the necessary 60 day pre-suit notice by exhausting the
FTCA-mandated pre-suit administrative process and served with the complaint an expert
statement attesting to the merit of the claims asserted in this action, the strict compliance standard
of Myers does not apply. Rather, Plaintiffs-Appellants are permitted to substantially comply with
Tenn. Code Ann. 29-26-121 and -122 so long as any technical non-compliance did not actually
prejudice, and the District Court found no such actual prejudice. Accordingly, the District
Courts dismissal for alleged technical failures to strictly comply with Tenn. Code Ann.
29-26-121 and -122 is not in accordance with relevant Tennessee Supreme Court precedent and
must be reversed.
Further, even if it can be demonstrated that Plaintiffs-Appellants violated Tenn. Code Ann.
29-26-121 and -122, Rule 15(a) of the Federal Rules of Civil Procedure gave
non-compliance. Relatedly, Tenn. Code Ann. 29-26-121 and -122 do not apply to cases filed in
Federal Court because they conflict with Rules 8 and 26 of the Federal Rules of Civil Procedure,
which necessarily control the content required in the complaint and the timing of expert discovery,
Finally, the District Courts grant of a motion to dismiss must be reversed because the
District Court improperly permitted Defendant-Appellee to file a second motion to dismiss in clear
LEGAL ARGUMENT
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A. Plaintiffs-Appellants Complied With Tenn. Code Ann. 29-26-121 By Pursuing The
FTCA-Mandated Pre-Suit Administrative Process And The District Courts Holding
To The Contrary Should Be Reversed.
Tenn. Code Ann. 29-26-121 requires that a plaintiff in a medical malpractice action
provide health care related defendants notice of the claim at least 60 days prior to filing the
complaint. Tenn. Code Ann. 29-26-121(a)(1). The notice must contain the following:
(A) The full name and date of birth of the patient whose treatment is
at issue;1
(B) The name and address of the claimant authorizing the notice and
the relationship to the patient, if the notice is not sent by the
patient;2
(C) The name and address of the attorney sending the notice, if
applicable;3
(D) A list of the name and address of all providers being sent a
notice; and4
Here, nobody disputes that Plaintiffs-Appellants provided each of the above items at least
60 days prior to filing suit (in fact Appellants provided all such information at least 15 months
1 Plaintiffs-Appellants provided this information to Appellees on March 31, 2010. RE # 24-2 at PageID
217.
2 Plaintiffs-Appellants provided this information to Appellees on March 31, 2010. RE # 24-2 at PageID
217.
3 Plaintiffs-Appellants provided this information to Appellees on March 31, 2010. RE # 24-2 at PageID
217.
4 Plaintiffs-Appellants provided this information to Appellees on March 31, 2010. RE # 24-2 at PageID
217.
5 Plaintiffs-Appellants provided this information to Appellees on July 2, 2010. RE # 24-4 at PageID
270-76.
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prior to filing suit in the District Court) because of the FTCA-mandated pre-suit administrative
process wherein Plaintiffs-Appellants provided each of the above-required items, and far more
information then required by Tenn. Code Ann. 29-26-121(a)(2). (RE # 24-2 and 4).
for an alleged technical failure that these items were not attached to the complaint via an affidavit
61 at PageID 1185, n.2 (Judge Greer Order Affirming The Report and Recommendation.) The
District Court conclusion rests on the following finding: the requirements of sections
29-26-121are substantive and mandatory, not procedural and directory. (RE # 61 at PageID
The District Courts overly broad and simplistic reading of the Myers opinion lead it to
conclude that all of the requirements of Tenn. Code Ann. 29-26-121 are mandatory. (RE # 61 at
PageID 1184.) However, the Myers Court did not state that strict compliance with the technical
requirements of Tenn. Code Ann. 29-26-121 is mandatory. Instead, the Court carefully limited
its decision to hold only that the statutory requirements that a plaintiff provide pre-suit notice [per
Tenn. Code Ann. 29-26-121] and confer with an expert prior to filing the suit [per Tenn. Code
Ann. 29-26-122] are mandatory. The Myers Court deliberately left for another day the question
of whether the technical requirements of Tenn. Code Ann. 29-26-121 could be satisfied by
substantial compliance. Myers, 382 S.W.3d at 310 ([W]e need not decide whether the statutes'
requirements as to the content of the notice and the certificate of good faith may be satisfied by
substantial compliance.).
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The Tennessee Supreme Court has now clarified this question in two key decisions.6 In
Stevens v. Hickman Community Health Care Services, Inc., et al., 418 S.W.3d 547 (Tenn. 2013)
the Tennessee Supreme Court made clear that: (1) substantial compliance with the technical
requirements of Tenn. Code Ann. 29-26-121 is sufficient; and (2) a complaint should not be
dismissed based upon a statutory technicality unless and until a defendant shows actual prejudice.
As explained by the Tennessee Supreme Court in Stevens, the purposes of the pre-suit
notice requirements articulated in Tenn. Code Ann. 29-26-121(a) include: (1) requiring
plaintiffs to notify health care defendants of impending litigation before it occurs, (2) facilitating
settlements can occur, and (3) allowing target health care defendants to investigate potential
claims by gathering medical records from other parties being sent notice. Stevens, 418 S.W.3d at
554. Here, the FTCA-mandated administrative process ensures each of these purposes are
satisfied. The Defendant-Appellee knew over 18 months prior to Plaintiffs-Appellants filing the
instant action that Plaintiffs-Appellants intended to pursue medical negligence claims against them
for their treatment, or lack thereof, of Mr. Eiswert. Moreover, Defendant-Appellee had ample
opportunity to investigate and settle the instant case well before Plaintiffs-Appellants filed the
512 (Tenn. Apr. 24, 2014), the Tennessee Supreme Court addressed the exact issue now before this
Court: whether a plaintiff who otherwise provided proper notice under Tenn. Code Ann.
29-26-121 but failed to file an affidavit of counsel attesting to such service must nevertheless have
6 The Tennessee Supreme Court filed these two decisions after the District Court entered judgment against
Plaintiffs-Appellants under the Myers, strict-compliance standard.
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a complaint dismissed for failure to comply with that statute. Id. at 515-16. In overturning the
trial courts decision that failure to file an affivavit with the complaint proved fatal, the Tennessee
Supreme Court once again reiterated its stance that before a suit can be dismissed for failure to
comply with Tenn. Code Ann. 29-26-121, a defendant must demonstrate actual prejudice
resulting from any technical deficiencies. Id. (overturning grant of motion to dismiss where
Defendant [made] no claim of prejudice resulting from Plaintiffs failure to comply with Tenn.
Taken together, Stevens and Thurmond require that before the District Court can dismiss
any claims for an alleged failure to comply with Tenn. Code Ann. 29-26-121, it must find: 1)
plaintiff failed to substantially comply with Tenn. Code Ann. 29-26-121(a) and 2) defendant
Code Ann. 29-26-121 by exhausting the FTCA mandated administrative review process. (See
n.1-5 supra.)7 Moreover, the Defendant-Appellee has not attempted to demonstrate, nor could it
demonstrate, that they have been prejudiced by any failure of plaintiffs to comply with Tenn. Code
18 months prior to the filing of the complaint, and indeed had access to far more information than
required by that statute, yet such access and knowledge still did not lead to the resolution of
7 In fact, Plaintiffs demonstrated compliance with Tenn. Code Ann. 29-26-121s pre-suit notice
requirements when they filed the declaration of Cristobal Bonifaz providing the relevant portion of the
FTCA-mandated administrative record of Appellants claims before the Department of Veterans Affairs.
RE # 24.
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constitute substantial compliance with Tenn. Code Ann. 29-26-121, the Defendant-Appellee
merely seek to dismiss these cases on a hyper technical reading of a statute that is unsupported by
the relevant case law. (RE # at 41 PageID 706 (arguing in a single paragraph for dismissal for
mere failure to comply with technical requirements and making no attempt to demonstrate actual
actual) with Section 121 in their amended pleadings, the District Court nevertheless dismissed
their claims because the original complaint failed to strictly comply with Section 121. (RE # 61 at
pageID 1184). Such a result is clearly contrary to the substantial compliance and actual
prejudiced requirements imposed by the Tennessee Supreme Courts post-Myers decisions. See
In fact, since the Myers decision has been rendered, several Tennessee state court decisions
have quickly backed away from the mandatory, strict compliance standard in Myers and have
allowed plaintiffs claims to survive challenges of technical failures to comply with Tenn. Code
Ann. 29-26-121. Thurmond, 433 S.W.3d at 519-22; Chambers ex rel. Chambers v. Bradley
County, 2014 Tenn. App. LEXIS 175 (Mar. 28, 2014) (The hospital received actual notice. It
seems to us that the technical requirements in the statute are intended to provide just that: notice of
the claim. Any arguments regarding the method of giving notice would be relevant where the
defendant asserts no notice was received. They are not, however, where there is no dispute that the
defendant received actual notice.); Givens v. Vanderbilt Univ., 2013 Tenn. App. LEXIS 695 (Oct.
24, 2013) (Under the circumstances presented here, where Plaintiffs filed their initial suit prior to
the enactment of the statutory notice requirements and when Defendants had some notice of the
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potential claim as a result of the initial lawsuit, we conclude that the trial court erred in dismissing
Lawsuit 2 for noncompliance with section 29-26-121.); Haley v. State, 2013 Tenn. App. LEXIS
634 (Tenn. Ct. App. Sept. 25, 2013) (overturning dismissal for failure to comply with Section 121
when plaintiff exhausted administrative remedies prior to filing suit against the State of
Tennessee); Foster v. Chiles, 2013 Tenn. App. LEXIS 422, at *6 (Tenn. Ct. App. June 27, 2013)
(We conclude that section 121 does not require a court to dismiss a complaint with prejudice for
the case at bar. Haley v. State, 2013 Tenn. App. LEXIS 634 (Sept. 25, 2013). Haley involved an
almost exact same situation where a claimant exhausted a robust, pre-suit administrative process
under the Tennessee Claims Act (T.C.A. 9-8-108, et seq.) prior to filing suit, (Id. at 6-9) but, like
Plaintiffs-Appellants here, did not technically comply with the THCLA in almost the exact same
manner as Plaintiffs here: namely its pre-suit notice was not attached to the originating complaint
nor was an expert certificate, although it is clear that both notice and expert vetting was performed.
Id. at 10-11. In fact, the Plaintiff in Haley provided less information than Plaintiffs here, namely
that it never provided a HIPAA-compliant medical release or identified other healthcare providers
that were also sent a notice Id. at 26. The State of Tennessee moved to dismiss on the exact same
grounds as the Defendants here (namely that Plaintiff failed to satisfy the notice and expert
requirements of T.C.A. 29-26-121 and 122), Id. at 11-12, which the Tennessee Claims
Commission granted (claims under the Tennessee Claims Act are not pursued in county court but
17
at the Claims Commission which functions as the trial court for purposes of the Tennessee
The Court of Appeals, however, overturned this decision, finding that by exhausting the
Tennessee Claims Acts pre-suit, administrative process, the plaintiffs satisfied the pre-suit notice
The situation before the Tennessee Court of Appeals in Haley is the exact situation now
before this Court and Haley compels the conclusion that District Courts dismissal order must be
reversed.
8
The Tennessee Claims Act requires that a plaintiff, before proceeding against a state institution on a claim
for monetary damages, provide written notice requiring the presentation of certain material. T.C.A.
9-8-402(a). Although there is a substantial overlap between the requirements of a notice under the
Tennessee Claims Act and that required by T.C.A. 29-26-121, they are not identical. Haley, 2013 Tenn.
App. LEXIS 634 at 3-5 (discussing differences). The Standard Form 95 used to initiate an administrative
claim under the FTCA requires similar although not identical information to that required by the Tennessee
Claims Act. Compare Doc. 24-2 to T.C.A. 9-8-402(a). In fact, the requirements of Standard Form 95 are
closer to the requirements of T.C.A. 29-26-121 than the notice provisions outlined in T.C.A. 9-8-402(a).
In other words by complying with the FTCA provisions, Plaintiffs here came closer to full compliance with
T.C.A. 29-26-121 than the plaintiff in Haley. Compare Doc. 24-2 to Haley, 2013 Tenn. App. LEXIS 634
at 4-7 (containing the entire notice sent by the plaintiff that the court found sufficient to satisfy the
requirements of T.C.A. 29-26-121).
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Taken together the Stevens, Thurmond, Haley and other decisions hold strict compliance is
not necessary in instances where a party, prior to filing suit, substantially complies with Tenn.
Code Ann. 29-26-121 and defendants fail to demonstrate actual prejudice resulting from any
technical non-compliance. Stevens, 418 S.W.3d at 554; Thurmond, 433 S.W.3d at 519-21; Haley,
dismissed for failure to strictly comply with all technical requirements of Tenn. Code Ann.
29-26-121 must be reversed. At a minimum, the Courts dismissal with prejudice pursuant to
Tenn. Code Ann. 29-26-121 must be reversed since Stevens makes clear that the proper remedy
for failure to comply with Tenn. Code Ann. 29-26-121 is a dismissal without prejudice.
Stevens, 418 S.W.3d at 560 (We reaffirm our general presumption against dismissing cases with
B. Plaintiffs Complied With Tenn. Code Ann. 29-26-122 By Filing With Their
Complaint An Expert Report Establishing That The Claim Had Merit
Similar to the above, the District Court dismissed Plaintiffs-Appellants claims for an
alleged failure to comply with Tenn. Code Ann. 29-26-122, once again misapplying the standard
in Myers to the case at bar. Specifically, the District Court held that the requirements of section
[29-26-122] are substantive and mandatory, not procedural and directory. Thus a failure to file a
Certificate of Good Faith results in a case being dismissed with prejudice. (RE # 61 at PageID
Tennessee Code Annotated section 29-26-122 requires the filing of a certificate of good
faith in all medical malpractice cases requiring expert testimony, confirming that an expert has
signed a written statement that there is a good faith basis to maintain the action. Myers, 382
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S.W.3d at 312.
The District Courts overly simplistic reading of Myers once again ignores the applicable
standard. In Myers, the plaintiff failed to attach any statement to the original complaint resulting
in dismissal of plaintiffs claims. Id. However, Myers does not stand for the proposition that a
plaintiff must strictly comply with the technical aspects of Tenn. Code Ann. 29-26-122. Myers,
382 S.W.3d at 310 ([W]e need not decide whether the statutes' requirements as to the content of
the notice and the certificate of good faith may be satisfied by substantial compliance.). Rather,
Myers requires only that the complaint be accompanied by some certificate of good faith and
does not require that the certificate comply with all technical aspects of Tenn. Code Ann.
29-26-122. Id.
Here, Plaintiffs filed with their original complaint two expert statements that contain all of
the information required to be provided in the certificate. Compare RE # 1-3 with Tenn. Code
Ann. 29-26-122(a). Ignoring this fact, the District Court held that:
(RE # 55 at PageID 1137.) This holding ignores the fact that Plaintiffs-Appellants complaint
contained the very expert statement contemplated by Tenn. Code Ann. 29-26-122(a). (RE #
1-3.) In essence, the District Court dismissed Plaintiffs-Appellants claims for failing to file with
the complaint a certificate certifying that it had obtained the very expert statement that the
The District Court reached this odd conclusion because of an unsupported broad reading of
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the Myers decision that a plaintiff must strictly comply with the statute. (RE # 61 at PageID
1185.) Yet, Myers does not require strict compliance with the content of the certificate of good
faith, only that a Plaintiff confer with an expert prior to filing suit and the complaint contains some
evidence thereof. Myers, 382 S.W.3d at 312 (With respect to Tennessee Code Annotated section
29-26-122, after Mr. Myers's original action terminated, he could not rely on statements made by
experts relative to that action as a substitute for a certificate of good faith filed with his new action
because the statute provides that [i]f the certificate is not filed with the complaint, the complaint
shall be dismissed. The statements upon which Mr. Myers seeks to rely were not filed with his new
Nothing in Myers compels the conclusion, reached here by the District Court, that
Plaintiffs-Appellants filing of the actual expert statement contemplated by Tenn. Code Ann.
29-26-122 cannot be deemed satisfactory compliance with that statute. Indeed, the one
Tennessee Court of Appeals decision to address this very issue concluded that filing of the actual
expert statement with the complaint is sufficient compliance with Tenn. Code Ann. 29-26-122.
Hinkle v. Kindred Hosp., 2012 Tenn. App. LEXIS 611 at *7, * 15 (Tenn. Ct. App. Aug. 31, 2012).
Id. at * 23 (internal citations and quotations omitted). The Court of Appeals also noted that,
[p]laintiffs attorney in the present case did not make use of the standard form, nor did he file with
the complaint any document entitield certificate of good faith. Instead, he filed a detailed
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affidavit by a doctor with whom he had consulted. Id. The Hinkle Court then held that the
affidavit from the expert satisfied the certificate of good faith requirement and noted that the
affidavit clearly gives the defendants far more information than is required by the certificate of
This is the exact situation now before this Court. Plaintiffs-Appellants, like the plaintiffs
in Hinkle, filed with the complaint the expert statement in lieu of the standard form certificate
of good faith. (RE # 1-3.) This expert statement detailed the standard of care applicable to the
case at bar and claimed that defendants treatment of Mr. Eiswert fell below this applicable
standard of care and thereby impliedly asserted the existence of a good faith basis to maintain a
medical malpractice claim for [Mr. Eiswerts] injuries. Hinkle, 2012 Tenn. App. LEXIS 611, at
*25.
Nothing in Myers changes this central holding of Hinkle, as the subsequent Tennessee
Supreme Court decisions in Stevens and Thurmond make clear. See discussion supra at P.
INSERT; see also Stoval v. UHS of Lakeside, LLC, 2014 Tenn. App. LEXIS 221 (Tenn. Ct. App.
dismissed for failure to strictly comply with the technical requirements of Tenn. Code Ann.
9 At best this remains simply an open question in Tennessee law as the cases from the Tennessee Court of
Appeals decided after Myers but before Stevens and Thurmond make clear. See e.g., Caldwell
v.Vanderbilt University, 2013 Tenn. App. LEXIS 123, at *6, n.8 (Tenn. Ct. App. Feb. 20, 2013) ("We note
that our Supreme Court has not opined as to whether the content requirements of Tenn. Code Ann.
29-26-122 may be satisfied by substantial compliance.").
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C. Federal Rule 15(a) Gives Plaintiffs-Appellants the Right to Amend the Complaint To
Correct Technical Failures To Comply With The THCLA
Rule 15(a) confers upon a federal litigant the right to amend a pleading once as a matter of course
either within 21 days of service of the pleading to be amended or within 21 days after the service of
a motion under Rule 12(b). See Broyles v. Corr. Med. Servs., 2009 U.S. App. LEXIS 5494 (6th
Cir. 2009) (citing Pertuso v. Ford Motor Credit Co., 233 F.3d 417, 421 (6th Cir. 2000) (noting that
Rule 15(a) "gives plaintiffs an absolute right to amend their complaint one time before a
'responsive pleading' is served"; Morse v. McWhorter, 290 F.3d 795, 800 (6th Cir. 2002)).
The District Court denied Plaintiffs-Appellants when it held that that a deficiency in a
complaint by failing to comply with sections 29-26-121 and -122 cannot be cured by amending the
complaint. (RE # 61 at PageID 1185 citing Vaughn v. Mountain States Health Alliance, 2013
This holding ignores a body of United States Supreme Court cases which dictate the
applicability of Federal procedural rules when those rules conflict with state substantive law.
Hanna v. Plumer, 380 U.S. 460, 463-64, (1965); see Burlington Northern R. Co. v. Woods, 480
U.S. 1, 4-5 (1987); Shady Grove Orthopedic Assocs. v. Allstate Ins. Co., 559 U.S. 393 (2010);
Davis v. Piper Aircraft Corp., 615 F.2d 606, 611 (4th Cir. 1980) (applying Fed. R. Civ. P. 15(c)
rather than contrary North Carolina law regarding relation back of amended pleadings).
Contrary to the holding of the District Court, the THCLA cannot limit a federal litigants
right to amend a complaint. It is well settled that where a state law conflicts with a Federal Rule
of Civil Procedure, the federal courts must apply the Federal Rule unless that rule exceeds the
mandate embodied in the Rules Enabling Act or transgresses constitutional bounds. Hanna v.
Plumer, 380 U.S. at 463-64; Burlington Northern 480 U.S. at 4-5. Specifically, the United States
23
Supreme Court held in Hanna that:
The Supreme Courts decision in Shady Grove is also instructive. Shady Grove, involved
a conflict between Fed. R. Civ. Proc. 23 and N.Y. Civ. Proc. L. 901(b). Shady Grove, 559 U.S. at
397. New York law precluded class actions suits which sought to recover penalties such as
statutory interest. Id. Although the United States Court of Appeals for the Second Circuit held
that since 902(b) was a substantive rule under the Erie Rule, the New York law must be applied
and the matter dismiss. The United States Supreme Court disagreed and stated Rule 23 permits
all class actions that meet its requirements, and a State cannot limit that permission by structuring
one part of its statute to track Rule 23 and enacting another part that imposes additional
In Shady Grove, the Supreme Court held that 901(b)s application in federal court
directly contradicted Rule 23 (which permitted class actions to be filed in all actions) because it
limited the types of claims that could be pursued on a class basis. Id. Such a result (i.e. a state
substantive law trumping a federal procedural right) is impermissible because the validity of a
Federal Rule depends entirely upon whether it regulates procedure...If it does, it is authorized by
2072 and is valid in all jurisdictions, with respect to all claims, regardless of its incidental effect
Congress has undoubted power to supplant state law, and undoubted power to prescribe
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rules for the courts it has created, so long as those rules regulate matters rationally capable of
classification as procedure. Id. at 406. As the Supreme Court stated in Shady Grove:
Id. at 407 (internal quotations omitted) citing Mississippi Pub. Corp. V. Murphree, 326 U.S. 438
(1946).
In applying this test the Supreme Court noted that it had upheld the application of rules that
had practical effect on the parties rights, but each undeniably regulated only the process for
enforcing those rights; non altered the rights themselves, the available remedies, or the rules of
The outer reaches of this principal can be seen by comparing two different United States
Supreme Court decisions. First, in Hannah the Supreme Court held that a Massachusetts law
creditor conflicted with Federal Rule of Civil Procedure 4(d)(1). 380 U.S. at 470-71. After
determining that Rule 4(d)(1), which dictated the means of service of a complaint, fell within the
limits prescribed by the Rules Enabling Act, the Court concluded that the "clash" between Rule 4
and the Massachusetts law was "unavoidable. Id. at 470. After all, "Rule 4(d)(1)
says-implicitly, but with unmistakable clarity-that [personal] service is not required in federal
courts," but the Massachusetts law required such personal service. Id. at 470. Because the state
law imposed service requirements above and beyond those imposed by a valid, constitutional
Federal Rule of Civil Procedure, the Supreme Court held that the state law was in direct collision
with the federal law and therefore could not be given effect in the federal courts. Id. at 470-471.
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On the other hand, the Supreme Court concluded in Walker v. Armco Steel Corp. that there
was no direct collision between Federal Rule of Civil Procedure 3 and an Oklahoma statute
providing that an action was "commenced" for the purposes of the statute of limitations only upon
service of a summons on the defendant, or, if the complaint was filed within the limitations period,
and the defendant was served within 60 days of that filing, on the date the complaint was filed. 446
U.S. 740, 752 (1980). The Supreme Court found that there was no direct conflict because Rule 3,
which states that an action is "commenced" by the filing of the complaint, and the Oklahoma
statute, because Rule 3 regulated "commencement" of an action only with respect to when various
timing requirements imposed by the Federal Rules begin to run, and does not affect the tolling of
state statutes of limitation. Id. at 750-52. There was thus no conflict between the Oklahoma law,
which established a rule for the tolling of that state's statute of limitations, and Rule 3.
In short, Walker, unlike Hanna, involved a Federal Rule that was not so broad as to cover
the point in dispute and therefore the Court concluded that the state law must be applied by the
The District Court failed to conduct any of the analysis required by Shady Grove, Hanna,
and Walker and instead simply concluded that because Tenn. Code Ann. 29-26-121 and -122
were substantive that they necessarily controlled Plaintiffs-Appellants right to amend their
complaint.11 (RE # 61 at PageID 1185.) This simply misses the point because it does not matter
10 Because the Supreme Court in Walker determined that there was no conflict between state law and
federal procedural law, it then undertook the traditional Erie analysis to determine whether to apply the
state rule in federal court. 446 U.S. at 750. Here, there is a direct conflict between Rule 15s liberal
amendment policy and Tenn. Code Ann. 29-26-121 and -122 and therefore the Court need not navigate
Eries troubled waters.
11 The District Court seemed to only consider the application of Tenn. Code Ann. 29-26-121 and -122
under the standard Erie analysis, but Hanna and Walker make clear that before an Erie analysis is done, the
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whether the state law is substantive, but rather whether the Federal Rule and state law are in
unavoidable conflict. Hanna, 380 U.S. at 470-71. If they are, then the Federal Rule must be
applied so long as it is rationally capable of classification as procedural. Shady Grove, 559 U.S.
at 406.
Rule 15 unequivocally is a federal procedural rule and its liberal amendment policy is
regularly used by federal litigants to to cure technical deficiencies in a complaint. See Piper
Aircraft, 615 F.2d at, 610-11 (applying Fed. R. Civ. P. 15(c) because it governed a procedural right
and was directly contradicted by a North Carolina law regarding relation back of amended
pleadings); see, e.g., Tefft, 689 F.2d at 638-39 (overturning denial of motion to amend to cure
technical pleading defects where on the face of the original complaint, plaintiff clearly sought to
assert an action for tort and other claims); Berkshire Fashions v. M.V. Hakusan II, 954 F.2d 874,
886-88 (3d Cir. 1992) (allowing plaintiff to amend under Rule 15(a) to drop a non-diverse party in
order to preserve jurisdiction); Stanley v. Central Intelligence Agency, 639 F.2d 1146, 1159-60
(5th Cir. 1981) (granting leave to amend when it appeared that plaintiff may have pleaded a
colorable section 1983 claim in his complaint, rather than the Federal Tort Claims Act cause of
action asserted); May Dep't Store v. Graphic Process Co., 637 F.2d 1211, 1216 (9th Cir. 1980)
(reaching same result as United Steelworkers); United Steelworkers of Am. v. Mesker Bros. Indus.,
Inc., 457 F.2d 91 (8th Cir. 1972) (allowing plaintiff to amend to refashion federal claim that was
improperly pleaded in the first instance); In re Silica Prods. Liab. Litig., 398 F. Supp. 2d 563 (S.D.
Tex.) (permitting party to file amended complaint to cure technical defects as they related to the
Court must first decide whether the federal procedural rule and state law are in conflict.
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To the extent that Tenn. Code Ann. 29-26-121 and -122 would operate to prevent and
curtail a federal litigants right to amend their complaint, and Vaughn, 2013 Tenn. App. LEXIS
159 suggests that they do, they would be in direct collision with Rule 15s liberal amendment
policy and therefore could not be given effect in federal courts. See Hanna, 380 U.S. at 471
(When a situation is covered by one of the Federal Rules, the question facing the court is a far cry
from the typical, relatively unguided Erie choice: the court has been instructed to apply the Federal
Rule, and can refuse to do so only if the Advisory Committee, this Court, and Congress erred in
their prima facie judgment that the Rule in question transgresses neither the terms of the Enabling
Accordingly, the District Courts denial of Plaintiffs-Appellants right to amend to cure any
technical deficiencies with its original complaint must be reversed. Hanna, 380 U.S. at 473
(To hold that a Federal Rule of Civil Procedure must cease to function whenever it alters the
mode of enforcing state-created rights would be to disembowel either the United States
Constitution's grant of power over federal procedure or Congress' attempt to exercise that power in
the Rules Enabling Act, 28 U.S.C.S. 2072.); see also Monarch Leasing, 84 F.3d at 207 (Under
the Court's holding in Hanna, we must follow [Rule 58] unless we find that it is invalid under the
D. The Pre-Suit Notice Requirements of Section 29-26-121 and the Certificate of Good
Faith Requirements Conflict With Rules 8 and 26 Of The Federal Rules Of Civil
Procedure And Are Therefore Inapplicable To The Case At Bar.
Under the Shady Grove and Hanna analysis discussed at length above, several federal
courts have refused to apply other states medical malpractice laws which impermissibly attempt
to curtail a federal litigants procedural rights. See e.g. Willever v. United States, 775 F. Supp. 2d
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771, 780-781 (Dist. Md. 2011) (refusing to apply state medical malpractice claims requiring expert
reports be attached to the compliant when they conflicted with Rule 26 of the Federal Rules of
Civil Procedure.); Long v. Adams, 411 F. Supp. 2d 701 (E.D. Mich. 2006) (holding that
Michigans medical malpractice pleading requirements were not applicable in federal court
because they conflicted with the pleading requirements of Rule 8); Baird v. Celis, 41 F. Supp. 2d
1358, 1360 (N.D. Ga. 1999) (holding that Rule 8 trumped a state medical malpractice requirement
that an affidavit be filed with a complaint because state substantive law could not alter or amend
the Federal Rules of Civil Procedure); Braddock v. Orlando Reg'l Health Care Sys., Inc., 881 F.
Supp. 580, 584 (M.D. Fla. 1995) (refusing to enforce Florida certificate of merit pleading
The Sixth Circuit has not addressed this issue and district courts
within this circuit, as well other federal courts, have split on whether
state law medical malpractice certificate pleading requirements
constitute (a) "substantive" state law that federal courts must
enforce, or (b) procedural requirements that are trumped by the
Federal Rules of Civil Procedure, particularly Rule 8.
Stinnett v. Untied States, Stinnett v. United States,891 F. Supp. 2d 858, 866 (M.D. Tenn. 2012)
citing Williams v. United States, 754 F. Supp. 2d 942. 948-953 (W.D. Tenn. 2010) (finding that
earlier version of THCLA certification requirement was substantive and, therefore, enforceable in
an FTCA action, but explicitly declining to address whether requirement violated any federal
procedural rules because plaintiff had not raised that argument); and Long v. Adams, 411 F. Supp.
2d 701, 705-709 (E.D. Mich. 2006) (refusing to enforce Michigan pleading certification
requirement in diversity action, on basis that requirement was procedural and conflicted with Rule
8(a).)
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In Long v. Adams, the Eastern District of Michigan in reliance on the principles articulated
in Hanna held that because there is no heightened pleading requirements for medical malpractice
cases contained in Rule 8(a), Michigans medical malpractice laws requiring that an affidavit of
merit be filed with a complaint was not applicable in federal court. 411 F. Supp. 2d at 706.
Applied to the case at bar, the Long decision necessarily invalidates Tenn. Code Ann.
29-26-122, which, like the statute at issue in Long attempted to set a heightened pleading standard
for medical malpractice by requiring plaintiffs to file documents attesting to the complaints merit.
Further, Tenn. Code Ann. 29-26-122 also requires a plaintiff to commence expert discovery prior
to the time period proposed by Rule 26(a)(2)(D). Under the Hanna and Shady Grove standards
then Tenn Code Ann. 29-26-122 should not apply to cases filed in federal court because it
imposes greater burdens on a federal litigant than the Federal Rules require. See Hanna, 380 U.S.
at 471 (When a situation is covered by one of the Federal Rulesthe court has been instructed to
apply the Federal Rule and can refuse to do so only if the Advisory Committee, this Court, and
Congress erred in their prima facie judgment that the Rule in question transgresses neither the
pleading requirement that is inconsistent with Rule 8(a)s notice pleading standard. Long, 411 F.
Supp. 2d at 706; Braddock, 881 F. Supp. At 584 (refusing to enforce Flrodias certificate of merit
Accordingly, the District Courts dismissal of Plaintiffs claims pursuant to Tenn. Code
Rule 12(g)(2) is clear: a party that makes a motion under this rule must not make another
motion under this rule raising a defense or objection that was available to the party but omitted
from its earlier motion. In other words, if a party choses to make a motion under Rule 12 that
party must include all Rule 12 defenses and objections then available in a single motion. Fed. R.
Civ. P. 12(g); Rauch v. Day & Night Mfg. Corp., 576 F.2d 697, 701 n.3 (6th Cir. 1978).
Successive Rule 12(b)(6) motions are clearly disfavored, as the Sixth Circuit has held:
Rauch, 576 F.2d at 701 n.3 (emphasis added); see also King v. Taylor, 694 F.3d 650 at 658 (6th
Cir. 2012) (A defendant is required at some point to raise the issue by motion for the court's
determination. Waiting too long to do so can forfeit the defense.) (internal citations and
quotations omitted).
In Rauch, the Sixth Circuit held that a party seeking to raise a new, additional grounds for
dismissal under Rule 12(b)(6) had waived that ground by failing to raise such an issue in its
original motion to dismiss. That is the situation now at bar. To the extent that
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Defendant-Appellee wished to obtain dismissal based on Plaintiffs-Appellants failure to comply
with Tenn. Code Ann. 29-26-121 and -122, that defense must have been raised in
file a second motion to dismiss almost 10 months after Defendant-Appellee first filed its original
Rule 12(b)(6) motion. (RE # 34 (Motion to File Second Motion to Dismiss) and 38 (Order
Granting Motion)). This was error and the Court must overturn the District Courts decision to
dismiss the present claim on an improperly filed second motion to dismiss. See Rauch, 576 F.2d at
701.
CONCLUSION
For the reasons set forth above, Plaintiffs-Appellants respectfully request that the District
Courts Order granting Defendant-Appellees motion to dismiss (RE # 61) be reversed in its
entirety, and the case remanded to the United States District Court for the Eastern District of
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Respectfully submitted,
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CERTIFICATE OF SERVICE
The undersigned hereby certifies that on the 29 day of October, 2014, a copy of the
foregoing was filed electronically. Notice of this filing will be sent by operation of the Courts
electronic filing system to all parties indicated on the electronic filing receipt. All other parties
may access this filing through the Courts electronic filing system.
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