November 11, 2019

In its opinion published on November 7, 2019, the United States Court of Appeals for the Sixth Circuit (“Federal Appellate Court”) addressed whether a federal inmate who had surgery while imprisoned in a federal prison in Ohio that left him permanently disabled was required to file an affidavit of merit pursuant to Ohio Rule 10(D)(2), in his Federal Tort Claims Act lawsuit filed against the United States in which he alleged that the Bureau of Prisons (“BOP”) was negligent. The federal district court ruled that the plaintiff was required to file an affidavit of merit and dismissed the federal lawsuit because he had failed to do so.

Federal Appellate Court Opinion

The Federal Appellate Court stated, “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? … 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 Act … 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).”

The Federal Appellate Court explained, “For the first question, the Federal Rules provide a clear answer: no affidavit is required to state a claim for medical negligence. Under Rule 8(a), which provides the general rules of pleadings, a complaint must include (1) a short and plain jurisdictional statement, (2) a short and plain statement of the claim, and (3) an explanation of the relief sought. Fed. R. Civ. P. 8(a). That’s it. By listing these elements, Rule 8 implicitly “excludes other requirements that must be satisfied for a complaint to state a claim for relief … Rule 8 does not require litigants to file any affidavits.””

The Federal Appellate Court continued: “Nor does Rule 12. A complaint survives a motion to dismiss under Rule 12(b)(6) by simply alleging facts “sufficient to state a claim to relief that is plausible on its face” … Rule 12 does not demand “evidentiary support”—in an affidavit or any other form—for a claim to be plausible … Even without an affidavit, a complaint can move beyond the pleading stage and into discovery … And Rule 9 confirms the point by specifying the few situations when heightened pleading is required—for instance, when a party alleges fraud or mistake. Fed. R. Civ. P. 9(b). Since none of those heightened requirements apply here, Rule 8’s more liberal pleading standards govern … To impose a heightened pleading standard in [the plaintiff’s] case would upset the careful balance struck by the Federal Rules. In short, the Federal Rules answer the question in dispute: [The plaintiff] did not have to file an affidavit with his complaint to state a claim … In sum, the district court should have applied the Federal Rules, not Ohio Rule 10(D)(2).”

Source Gallivan v. United States, 19a0278p.06.

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