Sixth Circuit Panel Splits Over Whether Michigan’s Affidavit-of-Merit and Presuit-Notice Rules for Medical-Malpractice Actions Apply in Federal Court Under Erie and Hanna

In Albright v. Christensen. No. 21-1046 (6th Cir. Jan 31, 2022), a 2-1 panel holds that the Federal Rules of Civil Procedure bar application of Michigan state-law rules requiring that a lawsuit against a medical professional for malpractice be preceded by 182-days’ notice to the defendant and accompanied by an  “affidavit of merit signed by a health professional.”

Plaintiff Albright brought this diversity action in federal court alleging that defendant physician “Christensen administered three drugs that allegedly caused Albright severe emotional and physical harm.” Defendants Christensen and his medical practice moved for early summary judgment “assert[ing] that Albright had failed to comply with Michigan rules for medical-malpractice actions.”

“Section 600.2912b contains Michigan’s presuit-notice rule for persons seeking to bring a medical-malpractice action: ‘a person shall not commence an action alleging medical malpractice against a health professional or health facility unless the person has given the health professional or health facility written notice under this section not less than 182 days before the action is commenced.’ MICH. COMP. LAWS § 600.2912b. Section 600.2912d contains Michigan’s affidavit-of-merit rule: ‘the plaintiff in an action alleging medical malpractice . . . shall file with the complaint an affidavit of merit signed by a health professional . . . .’ MICH. COMP. LAWS § 600.2912d.”

The district court held that the presuit-notice requirement applied in federal court and dismissed.

The Sixth Circuit panel, 2-1, holds that neither requirement applies in federal court and reverses. “We must confront two well-known cases—Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), and Hanna v. Plumer, 380 U.S. 460 (1965)—to resolve this classic civil-procedure conundrum . . . . Hanna . . . requires us to hold that the Federal Rules of Civil Procedure conflict with Michigan’s affidavit-of-merit and presuit-notice requirements. These state rules therefore do not apply in diversity cases in federal court.”

The panel majority first holds, in agreement with the district court, that the lawsuit was properly characterized as a medical-malpractice claim ordinarily subject to the two state statutes rather than an ordinary negligence action as characterized in the plaintiff’s complaint. “Albright complains that Christensen administered to her three drugs during her detoxification. To us, a doctor’s management of an opioid-addiction treatment program and administration of medication involves . . . sophisticated professional knowledge . . . that ‘involve[d] matters of medical judgment in the course of a professional relationship with [Christensen] . . . .’ We thus conclude that Albright’s claims sound in medical malpractice.”

Relying on Justice Stevens’s controlling concurring opinion in Shady Grove Orthopedic Associates, P.A. v. Allstate Insurance Co., 559 U.S. 393, 421–25 (2010), the panel addresses the ErieHanna issue of whether the Federal Rules take precedence in this case over state law.

“Relevant to this case are Federal Rules of Civil Procedure 3, 8(a), 9, 11, and 12(b)(6). Rule 3 provides that ‘[a] civil action is commenced by filing a complaint with the court.’ FED. R. CIV. P. 3. Rule 8(a) requires pleadings to contain ‘a short and plain statement of the claim.’ FED. R. CIV. P. 8(a)(2). Rule 9 specifies when heightened pleadings are required. See FED. R. CIV. P. 9. Rule 11 wards against frivolous claims and defenses. See FED. R. CIV. P. 11; see id. advisory committee’s note to 1993 amendment (‘[Rule 11(b)(2)] establishes an objective standard, intended to eliminate any ‘empty-head pure-heart’ justification for patently frivolous arguments.’). Rule 11 states that ‘Unless a rule or statute specifically states otherwise, a pleading need not be verified or accompanied by an affidavit” and that an attorney’s signature on, submission of, or advocacy regarding a filing certifies that the argument is nonfrivolous. Id. 11(a), (b). And Rule 12(b)(6) guarantees that a complaint that alleges sufficient facts will survive a motion to dismiss. See FED. R. CIV. P. 12(b)(6).”

Citing a recent Fourth Circuit decision addressing a similar West Virginia statute, Pledger v. Lynch, 5 F.4th 511, 520 (4th Cir. 2021), and the circuit’s own Gallivan v. United States, 943 F.3d 291, 293 (6th Cir. 2019), the panel majority holds that the two state laws conflict with the Federal Rules.

Regarding the affidavit-of-merit requirement (which the district court also found in conflict), “Rules 8(a), 9, and 12(b)(6) do not require that plaintiffs file affidavits with their complaints in order to state a claim and held that these Federal Rules exclude other requirements that must be satisfied for a complaint to state a claim.”

The panel majority reverses the district court on its finding, though, that the presuit-notice did not conflict. “Rule 3 most obviously resolves this disputed question. That rule requires only the filing of a complaint to commence an action—nothing more.” Moreover, Federal Rules 8(a), 9, 11, and 12 conflict because the Michigan Supreme Court, in controlling authority, construed the presuit-notice rule as a pleading requirement rather than a prerequisite to suit. The presuit notice requirements “exceed those in Federal Rule 8(a), which requires only ‘a short and plain statement of the grounds for the court’s jurisdiction’; ‘a short and plain statement of the claim showing that the pleader is entitled to relief’; and ‘a demand for the relief sought.’ If Michigan law provided that its requirements be included in the complaint, rather than in the notice, that law would clearly not apply federal court.”

Dissenting, Judge Siler would hold that the presuit-notice requirement ought to apply in a diversity case, viewing the presuit-notice as an element of the malpractice claim rather than a pleading requirement. “Federal Rule 3 is meant to establish with certainty when a suit has started . . . . The majority employs Federal Rule 3 far afield from its purpose when using it to bar the application of a state substantive element of a claim. And “[e]ven if the majority is correct that the pre-suit requirement relates only to the commencement of an action, its conclusion remains incorrect. The commencement of an action is decided by state law, not federal law.” The dissent concludes that “[u]nsurprisingly, no United States Court of Appeals circuit has ever found a conflict between Federal Rule 3 and a similar pre-suit requirement. In diversity cases, this court must respect the substantive laws of the States.”

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