United States District Court, D. Vermont
SHARON L. FRIERSON, Executrix of the Estate of David R. Frierson, Plaintiff,
THE UNITED STATES OF AMERICA, Defendant.
OPINION AND ORDER (DOCS. 20, 32, 35, 38)
Geoffrey W. Crawford, Chief Judge.
Sharon L. Frierson, the executrix of the Estate of David R.
Frierson, has filed this case under the Federal Tort Claims
Act, 28 U.S.C. §§ 2671-2680 ("FTCA"),
alleging negligent medical care at the White River Junction
Veteran Affairs Medical Center ("VAMC"). Like the
original complaint (Doc. 1), the currently operative First
Amended Complaint (Doc. 18) asserts negligence by VAMC staff
physician Donald O. Kollisch, M.D. (Count I) and by the VAMC
pharmacy (Count II) in connection with a
"double-prescription error" of an antifungal
medication prescribed to Mr. Frierson in 2015. Plaintiff
asserts that the error resulted in liver injury that caused
Mr. Frierson's death on August 16, 2015. The First
Amended Complaint added a new claim (Count III) asserting
that VAMC staff and physicians negligently failed to have Mr.
Frierson timely evaluated and transferred for a liver
transplant. (Doc. 18 ¶ 64.) Although the original
complaint was accompanied by a certificate of merit in
conformance with 12 V.S.A. § 1042 (Doc. 1-2), the First
Amended Complaint does not include a certificate of merit.
motions related to Count III are currently pending. In its
answer to the First Amended Complaint, the United States
asserted that Plaintiff had failed to exhaust her
administrative remedies. (Doc. 19 ¶ 49.) Plaintiff filed
a motion for partial summary judgment as to that defense,
asserting that Count III was sufficiently presented to the
Department of Veterans Affairs in the prior administrative
claim. (Doc. 20.) The court took that motion under advisement
after a March 12, 2019 hearing.
March 20, 2019, the United States filed a motion to dismiss
Count III under Fed.R.Civ.P. 12(b)(6) on the grounds that
Plaintiff failed to file a certificate of merit related to
that claim. (Doc. 32.) Plaintiff filed an opposition to that
motion (Doc. 33), and the United States filed a reply (Doc.
34). In its reply, the United States stated that its March
20, 2019 request for dismissal of Count III was "too
limited," and asserted that Plaintiffs failure to
include a certificate of merit with the First Amended
Complaint required dismissal of the entire complaint. (Doc.
34 at 3.)
8, 2019, Plaintiff filed a Rule 15(a)(2) motion for leave to
file a second amended complaint that would remove and dismiss
Count III. (Doc. 35.) According to Plaintiff, the purpose of
the second amendment is to narrow the issues in the case,
leaving only Counts I and II for trial. (Id. at 1.)
Plaintiff filed an additional certificate of merit (Doc.
35-3) with the proposed second amended complaint "for
the sake of being extra cautious." (Doc. 35 at 2.) The
United States opposes the motion to amend, arguing that it is
a "futile attempt to avoid dismissal of the First
Amended Complaint" for failure to file a certificate of
merit. (Doc. 36 at 2.) Plaintiff maintains that there is no
legal support for dismissing the entire First Amended
Complaint and no pending motion to do so. (Doc. 37 at 3.)
Rule 15 Standard
to amend should be 'freely give[n] . . . when justice so
requires.'" Pasternack v. Shrader, 863 F.3d
162, 174 (2d Cir. 2017) (alterations in original) (quoting
Fed.R.Civ.P. 15(a)(2)). Nevertheless, leave to amend
"should generally be denied in instances of futility,
undue delay, bad faith or dilatory motive, repeated failure
to cure deficiencies by amendments previously allowed, or
undue prejudice to the non-moving party." United
States ex rel. Ladas v. Exelis, Inc., 824 F.3d 16, 28
(2d Cir. 2016) (quoting Burch v. Pioneer Credit Recovery,
Inc., 551 F.3d 122, 126 (2d Cir. 2008)). "A
proposed amendment to a complaint is futile when it could not
withstand a motion to dismiss." F5 Capital v.
Pappas, 856 F.3d 61, 89 (2d Cir. 2017) (quoting
Balintulo v. Ford Motor Co., 796 F.3d 160, 164-65
(2d Cir. 2015)).
Certificate of Merit Requirement
law includes the following provision relating to medical
No civil action shall be filed to recover damages resulting
from personal injury or wrongful death occurring on or after
February 1, 2013, in which it is alleged that such injury or
death resulted from the negligence of a health care provider,
unless the attorney or party filing the action files a
certificate of merit simultaneously with the filing of the
12 V.S.A. § 1042(a). The certificate must certify that
the attorney or party filing the action has consulted with a
qualified expert who has described the applicable standard of
care and has indicated that "there is a reasonable
likelihood that the plaintiff will be able to show that the
defendant failed to meet that standard of care," causing
the plaintiffs injury. Id. Failure to file the
certificate as required by § 1042 is "grounds for
dismissal of the action without prejudice, except in the rare
instances in which a court determines that expert testimony
is not required to establish a case for medical
malpractice." Id. § 1042(e). Because the
certificate of merit is a substantive requirement, "it
applies equally in the context of the FTCA."
Fredette v. Med, Device Bus. Servs., Inc., No.
5:18-mc-58, 2018 WL 4692375, at *1 (D. Vt. June 12, 2018).
Vermont Supreme Court has recently enforced § 1042's
requirements. In McClellan v. Haddock, 2017 VT 13,
204 Vt. 252, 166 A.3d 579, the plaintiffs initial pleading
omitted the requisite certificate of merit. The defendants
moved to dismiss for failure to file the certificate of
merit, and the plaintiff filed a motion to amend the
complaint to add the certificate. The Vermont Supreme Court
affirmed the trial court's dismissal of the complaint.
The Court observed that § 1042 "says nothing
directly .. . about the possibility of later amending the
complaint to add the required certificate." Id.
¶ 16. But the Court concluded that "permitting such
an amendment would be fundamentally inconsistent with the
statutory purpose." Id. The purpose of §
1042 "is to protect defendants from the burden of
defending medical malpractice claims lacking in expert
support." Id. ¶ 25. The Court reasoned
that "[d]ismissal of a complaint filed without the
requisite certificate of merit attesting to such support is
essential to effectuate that purpose." Id.
McClellan decision controlled the outcome in
Quinlan v. Five-Town Health Alliance, Inc., 2018 VT
53, 192 A.3d 390. There, as in McClellan, the
plaintiff filed his initial complaint without the required
certificate of merit. The Quinlan Court held that
dismissal was required under § 1042(e).
Quinlan,2018 VT 53, ¶ 15. Rejecting
Quinlan's claim that he "substantially
complied" with § 1042(a) by investigating the claim
and providing defendants with an expert report, the Court
stated that "§ 1042's requirement that ...