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Frierson v. United States

United States District Court, D. Vermont

June 25, 2019

SHARON L. FRIERSON, Executrix of the Estate of David R. Frierson, Plaintiff,

          OPINION AND ORDER (DOCS. 20, 32, 35, 38)

          Geoffrey W. Crawford, Chief Judge.

         Plaintiff 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.

         Several 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.

         On 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.)

         On May 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.)


         I. Rule 15 Standard

         "Leave 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)).

         II. Certificate of Merit Requirement

         Vermont law includes the following provision relating to medical malpractice claims:

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 complaint.

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).

         The 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.

         The 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 ...

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