Reply Brief — Reginald Young, Petitioner v. United States

No. 19-8587

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

_______________________________

REPLY BRIEF FOR PETITIONER

_______________________________

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

No. 19-8587

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

_______________________________

REPLY BRIEF FOR THE PETITIONER

_______________________________

Respondent valiantly attempts to minimize the conflict between the rule applied by the Seventh Circuit in

this case and the Sixth Circuit’s holding in Gallivan v.

United States, 943 F.3d 291 (6th Cir. 2019). (Br. in Opp.

14-17.) But the Sixth Circuit was emphatic in rejecting

the rule applied in this case, stating that the Seventh Circuit had “reached the wrong answer because it asked the

wrong questions.” Id. at 294.

The Sixth Circuit in Gallivan considered and rejected

the Seventh Circuit’s rule, first announced in Hahn v.

Walsh, 762 F.3d 617 (7th Cir. 2014), that a state law “affidavit of merit” requirement applies to medical negligence claims brought in federal court that are governed

by state substantive law. The conflict between the Sixth

and Seventh Circuits is inescapable:

What’s more, Hahn conflicts with [Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S.

393 (2010)]. In Shady Grove, the Supreme Court said

that the relevant inquiry isn’t whether the federal and

state rules can coexist but whether the Federal Rules

“answer[ ] the question in dispute” (as they do here).

(1)

-2559 U.S. at 398 (majority opinion). And Shady Grove

emphasized that the purpose of the rules is irrelevant

when the text is clear (as it is here). Id. at 403. So

Hahn reached the wrong answer because it asked the

wrong questions.

Gallivan v. United States, 943 F.3d 291, 296 (6th Cir.

2019).

Respondent also seeks to minimize the conflict between the Seventh Circuit’s rule and the Ninth Circuit’s

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

469 (9th Cir. 2017), stating that “an unpublished decision

does not give rise to the sort of circuit conflict that might

warrant this Court’s review.” (Br. in Opp. 18.) The Court,

however, follows a different standard. See, e.g., Gamble

v. United States, 139 S. Ct. 1960, 1964 (2019) (granting

certiorari to review unpublished Eleventh Circuit decision); Manuel v. City of Joliet, 137 S. Ct. 911, 917 (2017)

(granting certiorari to review unpublished Seventh Circuit decision); Eastern Associated Coal Corp. v. United

Mine Workers, 531 U.S. 57, 61 (2000) (granting certiorari

to review unpublished Fourth Circuit decision).

Finally, respondent mistakenly seeks to characterize

this case as limited to the Seventh Circuit’s interpretation of Illinois law. (Br. in Opp. 10.) This is incorrect. At

issue in this case is a conflict between the circuits about

the application of Shady Grove Orthopedic Assocs., P.A.

v. Allstate Ins. Co., 559 U.S. 393, 399 (2010) to the “affidavit of merit” now required by 28 states as a prerequisite to adjudication of a medical negligence claim. 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 September 7,

2020).

1

-3Respondent is mistaken in its contention that the decision below did not analyze whether the state rule could

coexist with federal rules. (Br. in Opp. 14.) In fact, the

opinion of the Seventh Circuit was animated by the considerations of coexistence rejected by Shady Grove: the

court below concluded that the federal and state rules

“can exist harmoniously.” Young v. United States, 942

F.3d 349, 352 (7th Cir. 2019).

The Court should grant certiorari to resolve the issue,

framed by Judge Thapar in his opinion for the Sixth Circuit in Gallivan: “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?” Gallivan v. United States, 943 F.3d 291, 293

(6th Cir. 2019).

It is therefore respectfully submitted that the petition

for a writ of certiorari 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

SEPTEMBER, 2020

Attorneys for Petitioner