Petition for Writ of Certiorari — Reginald Young, Petitioner v. United States

No. _______

In the Supreme Court of the United States

_______________________________

REGINALD YOUNG, PETITIONER,

v.

UNITED STATES OF AMERICA

_______________________________

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

_______________________________

PETITION FOR WRIT OF CERTIORARI

_______________________________

KENNETH N. FLAXMAN

Counsel of Record

JOEL A. FLAXMAN

200 S Michigan Avenue

Suite 201

Chicago, IL 60604

knf@kenlaw.com

(312) 427-3200

Attorneys for Petitioner

QUESTION PRESENTED

Many states require an “affidavit of merit” to accompany a complaint asserting a claim of medical negligence.

The circuits are divided about whether this requirement

applies to an action brought in federal court that is governed by state substantive law.

The Sixth and Ninth Circuits view state law “affidavit

of merit” requirements as preempted by the Federal

Rules of Civil Procedure in accordance with the decision

of this Court in Shady Grove Orthopedic Associates, P.A.

v. Allstate Insurance Co., 559 U.S. 393 (2010).

The Third, Fourth, Eighth and Tenth Circuits follow

a different rule, routinely applying state law “affidavit of

merit” statutes to dismiss any complaint that is not supported by the state law affidavit.

The Seventh Circuit in this case deepened the split by

siding with the circuits that apply a state law in federal

court and treating the Illinois requirement for an “affidavit of merit” as an affirmative defense that a defendant

may raise in a motion for summary judgment.

The question presented is:

In adjudicating a medical negligence claim brought in

federal court that is governed by state substantive law,

must a district court apply a state law “affidavit of merit”

requirement or is such a requirement preempted by the

Federal Rules of Civil Procedure?

(i)

TABLE OF CONTENTS

Page

Opinions Below ................................................................... 1

Jurisdiction ......................................................................... 1

Statute and Rules Involved ............................................. 2

Statement ............................................................................ 2

Reasons for Granting the Petition .................................. 5

Conclusion ......................................................................... 11

Appendix A – Court of Appeals opinion

(November 4, 2019) ............................... 1a

Appendix B – Report and recommendation of

magistrate judge on motion to

dismiss (August 14, 2018) .................... 7a

Appendix C – District Court order overruling

objections to report and

recommendation (September 5,

2018) ...................................................... 14a

Appendix D – Court of Appeals order on

denial of rehearing (December

30, 2019) ................................................ 19a

Appendix E – Federal Rule of Civil

Procedure, Rule 8 ................................ 20a

Appendix F – Federal Rule of Civil

Procedure, Rule 9 ............................... 23a

Appendix G – Federal Rule of Civil

Procedure, Rule 11 ............................. 25a

Appendix G – Federal Rule of Civil

Procedure, Rule 56 ............................. 28a

Appendix H – 735 ILCS 5/622 ..................................... 31a

(ii)

TABLE OF AUTHORITIES

Cases:

Page

Chamberlain v. Giampapa, 210 F.3d 154

(3d Cir. 2000) ............................................................. 8

Farzana K. v. Indiana Dep’t of Educ.,

473 F.3d 703 (7th Cir. 2007) .................................... 6

Gallivan v. United States, 943 F.3d 291

(6th Cir. 2019) .................................... 4, 7-8, 9-10, 11

Goodman v. United States, 2 F.3d 291

(8th Cir. 1992) ........................................................... 9

Hahn v. Walsh, 762 F.3d 617

(7th Cir. 2014) ........................................................... 4

Keating v. Smith, 492 F. App’x 707

(8th Cir. 2012) ........................................................... 9

Kornberg v. United States, 692 F. App’x 468

(9th Cir. 2017) ........................................................... 8

Leatherman v. Tarrant County Narcotics

Intelligence & Coordination Unit, 507

U.S. 163 (1993) .......................................................... 6

Lee v. Berkshire Nursing & Rehab Center,

LLC, 2018 IL App (1st) 171344, 117 N.E.3d

1172 (2018) ................................................................. 6

Liggon-Redding v. Estate of Sugarman,

659 F.3d 258 (3d Cir. 2011) ...................................... 8

Littlepaige v. United States, 528 F. App’x. 289

(4th Cir. 2013) ....................................................... 8-9

Mackovich v. United States, 630 F.3d 1134

(8th Cir. 2011) .......................................................... 9

Ripes v. Schlechter, 2017 IL App (1st) 161026,

91 N.E.3d 415 (2017) .......................................... 6, 10

Royalty Network, Inc. v. Harris, 756 F.3d 1351

(11th Cir. 2014) ......................................................... 7

(iii)

Schroeder v. Nw. Cmty. Hosp., 371 Ill. App. 3d 584,

862 N.E.2d 1011 (2006) ............................................ 6

Shady Grove Orthopedic Assocs., P.A. v.

Allstate Ins. Co., 559 U.S. 393 (2010) ........ 4, 7, 8, 9

Trierweiler v. Croxton & Trench Holding

Corp., 90 F.3d 1523 (10th Cir. 1996) ...................... 9

Watson by Leonard v. West Suburban Medical

Center, 2018 IL App (1st) 162707, 103

N.E.3d 895 (2018) ................................................... 10

Statutes and Rules:

Federal Rules of Civil Procedure

Rule 8 ............................................................ 2, 6, 8

Rule 9 ................................................................ 2, 6

Rule 11 .............................................................. 2, 6

Rule 56 ........................................................ 2, 9-11

Illinois Compiled Statutes

735 ILCS 5/2-622 ................................ 2-3, 5-6, 10

Miscellaneous:

Benjamin Grossman, Uniformity, Federalism,

and Tort Reform: The Erie Implications of

Medical Malpractice Certificate of Merit

Statutes, 159 U. PA. L. REV. 217 (2010) ................. 5

Heather Morton, Medical Liability/Malpractice

Merit Affidavits and Expert Witnesses,

NATIONAL CONFERENCE OF STATE

LEGISLATURES (June 24, 2014) .............................. 5

(iv)

In the Supreme Court of the United States

_______________________________

REGINALD YOUNG, PETITIONER,

v.

UNITED STATES OF AMERICA

_______________________________

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

_______________________________

PETITION FOR WRIT OF CERTIORARI

_______________________________

Reginald Young respectfully petitions for a writ of

certiorari to review the judgment of the United States

Court of Appeals for the Seventh Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App. 1a-6a) is reported at 942 F.3d 349. The order of the district court

dismissing the case (App. 14a-18a) and the report and

recommendation of the magistrate judge (App. 7a-13a)

are both unreported and available at 2018 WL 5904459

and 2018 WL 4217068, respectively.

JURISDICTION

The judgment of the court of appeals was entered on

November 4, 2019. The court of appeals denied rehearing

on December 30, 2019. (App. 19a.) The jurisdiction of this

Court is invoked under 28 U.S.C. § 1254(1).

(1)

-2STATUTE AND RULES INVOLVED

Rules 8, 9, 11, and 56 of the Federal Rules of Civil Procedure are reproduced in Appendices E-G to this petition. (App. 20a-30a.) The Illinois statute requiring an

affidavit of merit for medical negligence complaints, 735

ILCS 5/2-622, is set out in Appendix H. (App. 31a-34a.)

STATEMENT

Petitioner Reginald Young, a federal prisoner,

brought this action under the Federal Tort Claims Act

seeking damages for harm to his vision allegedly caused

by the Bureau of Prisons’ multi-year delay in providing

him with cataract surgery. (Complaint, District Court

Docket 1.) Petitioner explained in his pro se complaint

that he had been diagnosed with severe cataracts in both

eyes in 2008 and was still awaiting surgery on his left eye

in 2018. Petitioner maintained that the lengthy delay had

left him “basically blind” in that eye. (Plaintiff’s Response to Motion to Dismiss, District Court Docket 13 at

4.)

The government responded with a “motion to dismiss

or in the alternative motion for summary judgment”

(District Court Docket 11), describing petitioner’s complaint:

It appears Plaintiff claims that he requires but has not

received this additional surgery. Specifically, Plaintiff

states that his “vision problems have been on going

since 2011 and currently continue as the filing of this

suit, and eight years is far too long.”

(Id. at 2.) The government asked the district court to dismiss the complaint without prejudice (Id. at 8 & n.1) because petitioner had failed to support his complaint with

the “affidavit of merit” required by Illinois law in medical

negligence actions, 735 ILCS 5/2-622. (Id. at 6-7.)

-3The Illinois statute requires the plaintiff’s attorney, or

the plaintiff if proceeding pro se, to attach to the complaint an affidavit averring,

That the affiant has consulted and reviewed the facts

of the case with a health professional who the affiant

reasonably believes: (i) is knowledgeable in the relevant issues involved in the particular action; (ii) practices or has practiced within the last 6 years or teaches

or has taught within the last 6 years in the same area

of health care or medicine that is at issue in the particular action; and (iii) is qualified by experience or

demonstrated competence in the subject of the case;

that the reviewing health professional has determined

in a written report, after a review of the medical record and other relevant material involved in the particular action that there is a reasonable and meritorious

cause for the filing of such action; and that the affiant

has concluded on the basis of the reviewing health professional's review and consultation that there is a reasonable and meritorious cause for filing of such action.

735 ILCS 5/2-622(a)(1) (App. 31a) The Illinois statute

also requires that the written report be attached to the

affidavit and authorizes the redaction of the identity of

the reviewing health professional. Id. (App. 32a.)

The magistrate judge, to whom the government’s motion had been referred for report and recommendation,

agreed that the Illinois affidavit of merit was required.

(App. 11a-13a.) Rather than grant the government’s request that the case be dismissed without prejudice, the

magistrate recommended dismissal with prejudice. (Id.)

Petitioner filed timely objections to the magistrate’s recommendation. (District Court Docket 17.)

The district court overruled petitioner’s objections

and dismissed the action with prejudice. (App. 14a-18a.)

The district court held “that Young has failed to comply

-4with 735 ILCS 5/2-622(a), and his case should therefore

be dismissed.” (App. 17a.)

Petitioner filed a pro se appeal and the Seventh Circuit affirmed. The Seventh Circuit had already held that

the Illinois “affidavit of merit” requirement applies to

medical negligence claims brought under a federal district court’s supplemental jurisdiction. Hahn v. Walsh,

762 F.3d 617, 633 (7th Cir. 2014). The Court of Appeals

concluded that the affidavit requirement “must apply in

suits against the national government, just as it applies

in suits against private physicians.” (App. 2a.) The court

below held, however, that the command of the Illinois

statute that the “affidavit of merit” be attached to the

complaint was inconsistent with Federal Rule of Civil

Procedure 8. (App. 3a-4a.)

The Seventh Circuit then fashioned a new rule to

transfer the “affidavit of merit” requirement from a

pleading requirement to an affirmative defense that

could be litigated at summary judgement. (App. 5a.) The

Seventh Circuit justified its new rule as permitting the

“state substantive goal and the federal procedural system” to “exist harmoniously.” (Id.)

The Seventh Circuit then applied its new rule and affirmed. (App. 6a.) The court of appeals did not explain

why it refused to grant petitioner an opportunity to comply with its new rule on remand.

Three days after the Seventh Circuit filed its opinion,

the Sixth Circuit reached the contrary result in Gallivan

v. United States, 943 F.3d 291 (6th Cir. 2019), rejecting

outright the government’s request to apply the Ohio rule

requiring an “affidavit of merit” to a case brought under

the Federal Tort Claims Act. The Sixth Circuit noted

that it was parting ways with the Seventh Circuit’s holding in Hahn v. Walsh, 762 F.3d 617 (7th Cir. 2014), which

it described as inconsistent with the decision of this

-5Court in Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 399 (2010).

Petitioner filed a timely petition for rehearing, asking

the Seventh Circuit to reconsider in light of the conflicting decision from the Sixth Circuit or to remand and allow plaintiff to comply with the court’s new rule. The

Court of Appeals denied rehearing without opinion.

(App. 19a.)

REASONS FOR GRANTING THE PETITION

Twenty-seven states require some form of an “affidavit of merit” as a prerequisite to adjudication of the merits of a medical negligence claim. 1 One commentator has

computed that these states “represent well over sixty

percent of the United States’ population.” 2

The circuits are divided over whether an “affidavit of

merit” applies to an action brought in federal court but

governed by state substantive law, such as this case

brought by petitioner under the Federal Tort Claim Act.

This case provides the Court with an opportunity to resolve the conflict.

-I-

The Illinois “affidavit of merit” statute is typical; it requires the plaintiff in a medical negligence action to file

an affidavit, either from a pro se plaintiff or counsel, attesting that, after consultation with an expert, the affiant

1

Heather Morton, Medical Liability/Malpractice Merit Affidavits

and Expert Witnesses, NATIONAL CONFERENCE OF STATE

LEGISLATURES (June 24, 2014), https://www.ncsl.org/research/financial-services-and-commerce/medical-liability-malpracticemerit-affidavits-and-expert-witnesses.aspx (visited May 27, 2020).

2

Benjamin Grossman, Uniformity, Federalism, and Tort Reform:

The Erie Implications of Medical Malpractice Certificate of Merit

Statutes, 159 U. PA. L. REV. 217, 225 (2010).

-6believes “there is a reasonable and meritorious cause”

for filing the lawsuit. 735 ILCS 5/2-622(a)(1) (reproduced

in the Appendix, infra, App. 26a.) The statute requires

that the affidavit and a report from the expert be filed

with the complaint or within 90 days thereafter. 735

ILCS 5/2-622 (a)(2) (App. 27a.) The Illinois courts have

construed the statute to allow the late filing of an “affidavit of merit.” Lee v. Berkshire Nursing & Rehab Center, LLC, 2018 IL App (1st) 171344, ¶ 14, 117 N.E.3d

1172, 1177 (2018).

The Illinois courts view the “affidavit of merit” as “a

pleading requirement designed to reduce frivolous lawsuits, not a substantive defense which may be employed

to bar plaintiffs who fail to meet its terms.” Schroeder v.

Nw. Cmty. Hosp., 371 Ill. App. 3d 584, 595, 862 N.E.2d

1011, 1021 (2006); Ripes v. Schlechter, 2017 IL App (1st)

161026, ¶ 14, 91 N.E.3d 415, 420 (2017). This “pleading

requirement” is inconsistent with the Federal Rules of

Civil Procedure.

-II-

Rule 8(a) of the Federal Rules of Civil Procedure

(App. 20a-22a) sets out the requirements for a complaint.

This rule does not include any special criteria for a claim

of medical negligence.

Rule 9(b) of the Federal Rules of Civil Procedure

(App. 23a) requires that fraud or mistake be alleged

“with particularity.” Rule 9(g) requires that any claim

for special damages be “specifically stated.” (App 24a.)

The rule does not apply a heightened pleading standard

to any other element of a cause of action. See Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 169 (1993).

Rule 11(a) of the Federal Rules of Civil Procedure dispenses with the need for verified pleadings or a

-7supporting affidavit “[u]nless a rule or statute specifically states otherwise.” This provision “means federal

rule or federal statute.” Farzana K. v. Indiana Dep’t of

Educ., 473 F.3d 703, 705 (7th Cir. 2007) (Easterbrook, J.);

see also Royalty Network, Inc. v. Harris, 756 F.3d 1351,

1360 (11th Cir. 2014).

The Federal Rules of Civil Procedure thus answer

“the same question,” Shady Grove Orthopedic Assocs.,

P.A. v. Allstate Ins. Co., 559 U.S. 393, 399 (2010), addressed by “affidavit of merit” statutes.

-III-

At issue in Shady Grove was a New York law which

prohibited a class action in cases seeking statutory minimum damages. The Court held that the state law did not

bar a federal court, sitting in diversity, from entertaining

a class action under Rule 23 of the Federal Rules of Civil

Procedure: Five members of the Court agreed that because Rule 23 “unambiguously authorizes any plaintiff,

in any civil proceeding, to maintain a class action if the

Rule’s prerequisites are met,” 559 U.S. at 406, the New

York statute barring class actions in particular kinds of

cases, id. at 399, cannot be applied by the federal courts.

Judge Thapar, writing for the Sixth Circuit in Gallivan v. United States, 943 F.3d 291 (6th Cir. 2019) summarized the analysis mandated by Shady Grove:

The first question we must ask is whether the Federal

Rules of Civil Procedure answer the question in dispute: does someone need an affidavit of merit to state

a claim for medical negligence? See Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S.

393, 398 (2010) (majority opinion). In other words, do

the Federal Rules answer “the same question” as the

state rule? If the Federal Rules answer that question,

we then must ask whether the Federal Rules are valid

under the Constitution and the Rules Enabling

-8Act. See id. If the answers to both those questions are

yes, then our work is done. We apply the Federal

Rules, not Ohio Rule 10(D)(2).

Gallivan, 943 F.3d at 293. Judge Thapar then turned to

the Federal Rules of Civil Procedure and concluded

that the affidavit requirement of the Ohio rule is contrary to the Federal Rules. Id. at 293-94. As the Sixth

Circuit held, the Federal Rules “provide a clear answer:

no affidavit is required to state a claim for medical negligence.” Id. at 293. The same is true for the Illinois statute at issue here.

The Ninth Circuit reached the same conclusion, describing the Nevada “affidavit of merit” requirement as

a procedural rule that does not apply in FTCA cases because “[t]he FTCA contains no affidavit requirement.”

Kornberg v. United States, 692 F. App’x 468, 469 (9th Cir.

2017).

-IV-

The Third, Fourth, Eighth, and Tenth Circuits routinely apply state “affidavit of merit” statutes to federal

cases raising medical negligence claims governed by

state substantive law.

The Third Circuit in Liggon-Redding v. Estate of Sugarman, 659 F.3d 258, 264-65 (3d Cir. 2011) followed its

earlier decision in Chamberlain v. Giampapa, 210 F.3d

154 (3d Cir. 2000), to apply a state “affidavit of merit”

rule because the state and federal rules “can exist side

by side.” Chamberlain, 210 F.3d at 160. The Sixth Circuit observed in Gallivan that this analysis, which is the

fulcrum of the decision of the Seventh Circuit, “conflicts

with Shady Grove,” where the Court wrote “the relevant

inquiry isn’t whether the federal and state rules can coexist but whether the Federal Rules “answer[ ] the

-9question in dispute.” 943 F.3d at 296, quoting Shady

Grove, 559 U.S. at 398 (majority opinion).

The Fourth Circuit in Littlepaige v. United States, 528

F. App’x. 289 (4th Cir. 2013) relied on unanimous decisions from district courts to conclude that compliance

with state law “is required to sustain a medical malpractice action under the FTCA in North Carolina.” Id. at

292-93.

The Eighth Circuit supported its decision in Keating

v. Smith, 492 F. App’x 707 (8th Cir. 2012) to require compliance with a state law “affidavit of merit” requirement

by citing to its earlier decision in Mackovich v. United

States, 630 F.3d 1134, 1135 (8th Cir. 2011) (per curiam).

That case in turn cited without discussion Goodman v.

United States, 2 F.3d 291 (8th Cir. 1992). Mackovich, 630

F.3d at 1135. Goodman, however, did not involve any “affidavit of merit,” but was an appeal after trial, where the

plaintiff argued for a nation-wide standard of appeal, rather than that applied in South Dakota, where the medical care had been provided. Goodman, 2 F.3d at 292-93.

The Tenth Circuit in Trierweiler v. Croxton & Trench

Holding Corp., 90 F.3d 1523 (10th Cir. 1996) employed

the “outcome determinative” test that did not survive

Shady Grove when it chose to apply the state certificate

requirement lest it “create a rule of law likely to produce

substantially different results in state and federal court.”

Id. at 1540. Shady Grove, of course, allowed a class action

to proceed in federal court even though the state courts

were precluded from granting such relief. 559 U.S. at 436

(Ginsburg, J., dissenting).

These cases, as Judge Thapar summarized in Gallivan, “(1) either predate Shady Grove or ignore it,

(2) don’t address Rule 12, and (3) don’t offer a satisfactory response to the clear conflict between the federal

-10pleading rules and the state affidavit-of-merit requirement.” Gallivan, 943 F.3d at 296-97.

-VThe Seventh Circuit recognized that the Illinois “affidavit of merit” requirement conflicts with Rule 8 of the

Federal Rules of Civil Procedure which “does not require attachments.” (App. 4a.) Nevertheless, the Court

hewed to its precedent, holding—in direct conflict with

the Sixth Circuit—that the requirement applies in federal court. (App. 2a.)

The Seventh Circuit then held that the goal of the

state rule “can exist harmoniously” with the federal procedural system if the affidavit requirement is construed

as an affirmative defense that can be raised in a motion

for summary judgment under Rule 56 of the Federal

Rules of Civil Procedure. (App. 5a.)

The rule fashioned by the Seventh Circuit does not

comply with Rule 56(a) of the Federal Rules of Civil Procedure. This Rule permits a party to move for summary

judgment on any “claim or defense.” (App. 28a.) An “affidavit of merit” is not an element of a claim of medical

negligence, which requires the plaintiff to show:

(1) the standard of care in the medical community

by which the physician’s treatment was measured;

(2) that the physician deviated from the standard of

care; and (3) that a resulting injury was proximately caused by the deviation from the standard

of care.

Watson by Leonard v. West Suburban Medical Center,

2018 IL App (1st) 162707, ¶ 236, 103 N.E.3d 895, 927

(2018). Nor is the absence of an affidavit of merit an affirmative defense under Illinois law, which views the affidavit of merit as a “a pleading requirement.” Ripes v.

-11Schlechter, 2017 IL App (1st) 161026, ¶ 14, 91 N.E.3d 415,

420 (2017).

Nor does the Seventh Circuit’s new rule actually “harmonize” Illinois’s “affidavit of merit” requirement with

the federal procedural system. The Seventh Circuit

overlooked Illinois law that permits the submission of a

physician’s report required by 735 ILCS 5/2-622(a)(1)

that is inadmissible under Rule 56. The Illinois statute

does not require the physician’s report to be signed under oath or under penalties of perjury and permits the

plaintiff to redact the name and address of the physician

who signed the certificate. 735 ILCS 5/2-622(a)(1)

(“[I]nformation which would identify the reviewing

health professional may be deleted from the copy so attached.”) This type of document is not among the items

permitted by Rule 56(c)(1)(A) to establish a material

fact.

As Judge Thapar explained in his opinion in Gallivan,

the Seventh Circuit’s approach contradicts Shady Grove

because “the relevant inquiry isn’t whether the federal

and state rules can coexist but whether the Federal

Rules “answer[ ] the question in dispute.” Gallivan, 943

F.3d at 296.

-12CONCLUSION

The petition for writ of certiorari should be granted.

Respectfully submitted,

KENNETH N. FLAXMAN

Counsel of Record

JOEL A. FLAXMAN

200 S Michigan Avenue

Suite 201

Chicago, IL 60604

knf@kenlaw.com

(312) 427-3200

MAY, 2020

Attorneys for Petitioner