United States Court of Appeals

FOR THE SIXTH CIRCUIT

Case Number 14-6125

TRACEY LYNN REECE EISWERT, in her own right and as Administratix
of the Estate of Scott Walter Eiswert; and on behalf of her two minor children; and CHRISTINA
REECE,

Plaintiffs–Appellants

----against----

UNITED STATES OF AMERICA

Defendant-Appellee

ON APPEAL FROM A FINAL DECISION OF THE UNITED STATES DISTRICT COURT,
EASTERN DISTRICT OF TENNESSEE

BRIEF OF APPELLANTS

D. BRUCE SHINE CRISTÓBAL BONIFAZ, ESQ.
RODNEY B. ROWLETT, III JOHN C. BONIFAZ, ESQ.
Shine & Rowlett Law Offices of Cristóbal Bonifaz
An Association of Attorneys 180 Maple Street
433 East Center Street, Suite 201 PO Box 180
Kingsport, Tennessee 37660 Conway, MA 01341
(423) 246-8433 (413) 369-4263

J. GERARD STRANCH, IV, ESQ.
BENJAMIN ANDREW GASTEL
Branstetter Stranch & Jennings PLLC
Fourth Floor
227 Second Avenue North
Nashville, TN 37201-1631
(615) 254-8801
Attorneys for Plaintiffs – Appellants
TABLE OF CONTENTS
TABLE OF AUTHORITIES
PRELIMINARY STATEMENT

This is an appeal by Tracy Lynn Reece Eiswert, in her own right and as Administratrix of

the Estate of Scott Walter Eiswert, her late husband, and on behalf of her minor children U.E. and

B.E., from a judgment which dismissed Plaintiffs-Appellants’ claims in their entirety under Rule

12(b)(6). (RE # 61 and 62). Thereafter Appellants filed a Motion to Alter Judgment (RE # 63),

which was ultimately denied (RE # 72).

2
JURISDICTIONAL STATEMENT

Jurisdiction was properly evoked below pursuant to 28 U.S.C. § 1331 and 28 U.S.C. §

1346(b) as this case arises under federal law in that the United States of America is a defendant and

the case alleges claims under the Federal Tort Claims Act.

The United States District Court for the Eastern District of Tennessee granted a Rule

12(b)(6) motion filed by the Defendant-Appellee and entered judgment in its favor on all claims on

September 30, 2013. (RE # 61 and 62). Plaintiffs-Appellants filed a timely Rule 59(e) Motion

To Alter Judgment on October 25, 2013. (RE # 63). The District Court denied this motion on

September 10, 2014 and Plaintiffs-Appellants filed a timely Notice of Appeal on September 11,

2014. (RE # 72 and 73). Because the District Court dismissed all of Plaintiffs-Appellants’

claims, this appeal is as a matter of right under Rules 3 and 4 of the Federal Rules of Appellate

Procedure.

3
STATEMENT OF THE ISSUES PRESENTED

The Plaintiffs-Appellants raise the following issues on appeal:

1. Whether the District Court’s dismissal with prejudice of Plaintiffs-Appellants

claims for an alleged failure to strictly comply Tenn. Code Ann. § 29-26-121 was proper.

2. Whether the Appellants complied with Tenn. Code Ann. § 29-26-122 making

dismissal for failure to comply with that statute improper.

3. If Plaintiffs failed to comply with Tenn. Code Ann. § 29-26-121 and -122, then did

Plaintiffs have the right to amend their Complaint in accordance with Federal Rule of Civil

Procedure 15 to bring their complaint into compliance with that statute.

4. Whether Tenn. Code Ann. § 29-26-121 and -122 apply to cases filed in federal

court or do those provisions unlawfully conflict with Rules 8 and 26 of the Federal Rules of Civil

Procedure.

5. Whether the District Court’s decision to allow the Defendant-Appellee to file a

second motion to dismiss violated Rule 12(g)(2) of the Federal Rules of Civil Procedure.

4
STATEMENT OF THE CASE

I. Factual Background

This action arises out of the wrongful death of Scott Walter Eiswert (“Mr. Eiswert” or

“Decedent”), a combat veteran who tragically took his own life following his battle with

service-related Post-Traumatic Stress Syndrome (“PTSD”). (RE # 1 at PageID 1).

Plaintiffs-Appellants brought this Federal Tort Claims Act (28 U.S.C. §§ 2671 et. seq., the

“FTCA”) case alleging that the Mountain Home V.A. Medical Center (“Mountain Home V.A.”)

committed medical malpractice by failing to timely diagnose and treat Decedent’s PTSD. (Id.).

Following exhaustion of the mandated FTCA administrative process, Plaintiffs-Appellants filed

the pending action in the United States District Court for the Eastern District of Tennessee. (Id. at

PageID 1 and 14).

Eiswert enlisted in the United States National Guard in July of 2001 for an eight year

period. (Id. at PageID 3). He was called to active duty in 2003 and served in Iraq during

Operation Iraq Freedom in 2004 and 2005, and he was honorably discharged from active duty on

November 25, 2005. (Id.)

Immediately following his discharge he sought help from an internal medicine physician in

his community who recommended mental health counseling. (Id. at PageID 3-4). Eiswert took

his physician’s recommendation and sought help at the Nolichucky-Holston Center in Greeneville,

Tennessee, a community mental health center. (Id. at PageID 4). Eiswert received care from the

Nolichucky-Holston Center in Greeneville from December 21, 2005 through April 12, 2006.

(Id.). Eiswert’s counselor at Nolichucky-Holston Center was Ray White, LPC, MHSP, who

treated Mr. Eiswert during that period. (Id.). On April 21, 2006, Eiswert quit his job due to

5
stress and on May 9, 2006, White wrote to the Department of Veterans Affairs, at the request of

Mr. Eiswert, wherein he stated: “[a]fter meeting with Mr. Eiswert for several appointments, we

have established a diagnosis of PTSD, per the Diagnostic Statistical Manual Criteria.” (Id. at

PageID 5).

Based upon the diagnosis by White, Mr. Eiswert made application to the Department of

Veterans Affairs for service connected PTSD disability. (Id. at PageID 5-6). In his application

he cited a number of incidents arising out of his service in Iraq. (Id.).

On July 28, 2006, Mr. Eiswert was evaluated for PTSD at the Mountain Home V.A. by

Patrick J. MacMillan, M.D. (Id. at PageID 6). Following this evaluation, Dr. MacMillan

concluded that “veteran has current diagnosis of depression, NOS, he does describe symptoms of

Post Traumatic Stress Syndrome, however, not enough to meet criteria.” (Id.). As a result, on

September 8, 2006, the Department of Veteran Affairs denied Eiswert’s application for a service

connected PTSD disability. (Id.).

From when Mr. Eiswert first presented with mental health issues to the Mountain Home

V.A. through March 28, 2008, Mountain Home V.A. denied his request for service connected

PTSD disability a total of three times. (Id. at PageID 12).

On May 16, 2008, Mr. Eiswert committed suicide. (Id.).

On August 13, 2008, the Department of Veterans Affairs reversed its three prior denials

and found that Mr. Eiswert was entitled to service connected PTSD and retroactively applied this

conclusion to March 28, 2007, over 13 months prior to Mr. Eiswert’s suicide, all but admitting that

the Department of Veterans Affairs misdiagnosed and misidentified Mr. Eiswert’s service-related

PTSD. (Id. at PageID 13). The basis for the reversal was the “joint records research

6
memorandum received August 7, 2008 has confirmed stressor associated with duty in Iraq.”

(Id.).

On August 26, 2008, the Department of Veteran Affairs admits the decision dated August

13, 2008 was “clearly and unmistakenably an error” in failing to grant a higher impairment

evaluation for PTSD with an earlier effective date of February 9, 2007, almost 17 months prior to

Mr. Eiswert’s suicide. (Id.). The February 9, 2007 date is a result of a Veterans Administration

Medical Center’s Consultation Note of Dual Diagnosis Clinic which took into consideration

Eiswert’s treatment at the Nolichucky-Holston Center in Greeneville. (Id.).

In other words, based on the Department of Veteran’s Affairs own admission, Mr. Eiswert

should have been receiving treatment and benefits for service-related PTSD at least 17 months

prior to Mr. Eiswert’s suicide. (Id.).

Further, attached to the complaint are two expert statements from Board Certified

Psychiatrists who state that within a reasonable degree of medical certainty, the Department of

Veteran Affair’s failure to timely recognize and treat Eiswert’s service-related PTSD directly

contributed to his PTSD spiraling out of control and his eventual untimely death on May 16, 2008.

(Id. at PageID 13-14; RE # 1-1 and 1-3).

One such statement was from Jay Sydney Alexander, M.D., a psychiatrist in Knoxville,

Tennessee, who is the former medical director of the Lakeshore Mental Health Institute, a state

institution located in Knoxville. (RE # 1-3). In his statement, whichalso contained his

Curricula Vitae establishing Dr. Alexander’s credentials to render such a medical opinion, Dr.

Alexander affirmatively stated that the Department of Veteran’s Affairs treatment of Mr. Eiswert

fell below the standard of care owed to him and this caused Mr. Eiswert’s untimely death on May

7
16, 2008. (Id.).

II. Procedural Background

On April 20, 2010, Plaintiffs-Appellants filed the claims asserted in this action with the

Department of Veterans Affairs thereby instigating the FTCA-mandated pre-suit administrative

process required by 28 U.S.C. § 2675. (RE # 1 at PageID 14). On April 19, 2011 the

Department of Veterans Affairs ultimately denied that claim and gave Plaintiffs-Appellants six

months to file suit in a court of competent jurisdiction. (Id.). On October 11, 2011,

Plaintiffs-Appellants filed their original complaint in the Eastern District of Tennessee and

attached to that complaint the expert statements identified in the previous section, including the

expert report of Dr. J. Sidney Alexander. (Id. at PageID 1 and RE # 1-3).

On March 9, 2012, Defendant-Appellee filed its original motion to dismiss alleging that the

Court lacked jurisdiction over this case pursuant to Tennessee’s statute of repose in medical

malpractice claims. (RE # 14 and 15). On May 7, 2012, Plaintiffs-Appellants filed an

opposition to this original motion, and attached an affidavit of counsel submitting most of the

administrative record from the FTCA-mandated pre-suit administrative process. (RE # 23 and

24).

On January 24, 2013, almost one year after filing its original motion to dismiss,

Defendant-Appellee filed a motion for permission to file a second motion to dismiss. (RE # 34).

Although Plaintiffs-Appellants opposed this motion, the Court ultimately granted it, permitting

Defendant-Appellee’s to file a second motion to dismiss. (RE # 37 and 38).

On February 7, 2013, Defendant-Appellee filed an additional motion to dismiss alleging

for the first time that Plaintiffs-Appellants’ complaint should be dismissed for failure to comply

8
with Tenn. Code Ann. §§ 29-26-121 and 122, provisions of Tennessee’s Healthcare Liability Act

(the “THCLA”). (RE # 39). Tenn. Code Ann. § 29-26-121 requires a plaintiff who files a

medical malpractice claim to provide the named-defendant healthcare providers at least 60 days

advance notice of the claim prior to filing suit. Tenn. Code Ann. § 29-26-122 requires a plaintiff

to file a “certificate of good faith” certifying that the medical malpractice claims alleged in the

complaint had been vetted by a qualified expert and had merit.

On February 25, 2013, Plaintiffs-Appellants filed an opposition to the second motion to

dismiss arguing that it had complied with Tenn. Code Ann. §§ 29-26-121 and 122 by filing with

the complaint the actual expert report counsel had obtained from a qualified expert and by

pursuing the FTCA-mandated pre-suit administrative process. (RE # 41). Plaintiffs-Appellants

had previously filed documents reflecting that the Defendant-Appellee’s had actual notice of the

claim years in advance of the complaint’s filing. (RE # 24).. Additionally,

Plaintiffs-Appellants, out of an abundance of caution, also filed an amended complaint that

attached all exhibits of the original complaint along with two additional exhibits: 1) evidence of

counsel’s compliance with Tenn. Code Ann. § 29-26-121 (the pre-suit notice requirements under

Tennessee’s Healthcare Liability Act); and 2) a certificate approved by the Tennessee

Administrative Office of the Courts for use in satisfying the requirements of Tenn. Code Ann. §

29-26-122. (RE # 40-1 at PageID 860-76)..

On April 11, 2013, United States Magistrate Judge Dennis Inman entered a report and

recommendation denying the motion to amend filed by Plaintiffs-Appellants and granting the

second motion to dismiss filed by Defendant-Appellee. (RE # 55). Plaintiffs-Appellants filed a

timely objection on April 25, 2013. (RE # 56). On September 30, 2013, United States District

9
Judge Ronnie Greer upheld the report and recommendation thereby granted Defendant-Appellees’

second motion to dismiss and denying Plaintiffs-Appellants Motion to Amend and dismissed the

case in its entirety with prejudice. (RE # 61 and 62).

On October 25, 2013, Plaintiffs-Appellants filed a Rule 59(e) Motion to Amend the

September 30, 2013 judgment, which Judge Greer ultimately denied on September 10, 2014. (RE

# 63, 64 and 72.) Plaintiffs-Appellants filed their notice of appeal the following day on

September 11, 2014. (RE # 73.)

STANDARD OF REVIEW

The District Court’s dismissal under Rule 12(b)(6) and the conclusions of law related

thereto are reviewed de novo. Dillon v. Cobra Power Corp., 560 F.3d 591, 599 (6th Cir. 2009).

SUMMARY OF ARGUMENT

The District Court incorrectly applied the THCLA when it dismissed Plaintiffs-Appellants

claims for failure to comply with Tenn. Code Ann. § 29-26-121 and -122. Tenn. Code Ann. §

29-26-121 requires a plaintiff asserting a case for medical malpractice to provide defendants with

pre-suit notice at least 60 days before the filing of the complaint. Tenn. Code Ann. § 29-26-122

requires that a plaintiff asserting a case for medical malpractice in which expert proof is required to

file a certificate of good faith attesting to the fact that the complaint has merit.

The District Court interpreted the Tennessee Supreme Court’s decision in Myers v.

AMISUB (SFH), Inc., 382 S.W.3d 300, 310 (Tenn. 2012.) to require that a plaintiff strictly comply

with all aspects of both Tenn. Code Ann. § 29-26-121 and -122. However, in subsequent

decisions to Myers and the District Court’s order granting dismissal, the Tennessee Supreme Court

has clarified that the strict compliance requirements of Myers do not apply to the technical contents

10
of the notice or the certificate of good faith, the exact issues now raised on this appeal. Here,

because Plaintiffs-Appellants provided the necessary 60 day pre-suit notice by exhausting the

FTCA-mandated pre-suit administrative process and served with the complaint an expert

statement attesting to the merit of the claims asserted in this action, the strict compliance standard

of Myers does not apply. Rather, Plaintiffs-Appellants are permitted to substantially comply with

Tenn. Code Ann. § 29-26-121 and -122 so long as any technical non-compliance did not actually

prejudice the Defendant-Appellee. Defendant-Appellee has made no attempt to show actual

prejudice, and the District Court found no such actual prejudice. Accordingly, the District

Court’s dismissal for alleged technical failures to strictly comply with Tenn. Code Ann. §

29-26-121 and -122 is not in accordance with relevant Tennessee Supreme Court precedent and

must be reversed.

Further, even if it can be demonstrated that Plaintiffs-Appellants violated Tenn. Code Ann.

§ 29-26-121 and -122, Rule 15(a) of the Federal Rules of Civil Procedure gave

Plaintiffs-Appellants an absolute right to amend their complaint to cure any technical

non-compliance. Relatedly, Tenn. Code Ann. § 29-26-121 and -122 do not apply to cases filed in

Federal Court because they conflict with Rules 8 and 26 of the Federal Rules of Civil Procedure,

which necessarily control the content required in the complaint and the timing of expert discovery,

regardless of whether the TCHLA is considered “substantive” Tennessee law..

Finally, the District Court’s grant of a motion to dismiss must be reversed because the

District Court improperly permitted Defendant-Appellee to file a second motion to dismiss in clear

violation of Rule 12(g)(2) of the Federal Rules of Civil Procedure.

LEGAL ARGUMENT

11
A. Plaintiffs-Appellants Complied With Tenn. Code Ann. § 29-26-121 By Pursuing The
FTCA-Mandated Pre-Suit Administrative Process And The District Court’s Holding
To The Contrary Should Be Reversed.

Tenn. Code Ann. § 29-26-121 requires that a plaintiff in a medical malpractice action

provide health care related defendants notice of the claim at least 60 days prior to filing the

complaint. Tenn. Code Ann. § 29-26-121(a)(1). The notice must contain the following:

(A) The full name and date of birth of the patient whose treatment is
at issue;1

(B) The name and address of the claimant authorizing the notice and
the relationship to the patient, if the notice is not sent by the
patient;2

(C) The name and address of the attorney sending the notice, if
applicable;3

(D) A list of the name and address of all providers being sent a
notice; and4

(E) A HIPAA compliant medical authorization permitting the
provider TCA receiving the notice to obtain complete medical
records from each other provider being sent a notice.5

Tenn. Code Ann. § 29-26-121(a)(2).

Here, nobody disputes that Plaintiffs-Appellants provided each of the above items at least

60 days prior to filing suit (in fact Appellants provided all such information at least 15 months

1 Plaintiffs-Appellants provided this information to Appellees on March 31, 2010. RE # 24-2 at PageID
217.
2 Plaintiffs-Appellants provided this information to Appellees on March 31, 2010. RE # 24-2 at PageID
217.
3 Plaintiffs-Appellants provided this information to Appellees on March 31, 2010. RE # 24-2 at PageID
217.
4 Plaintiffs-Appellants provided this information to Appellees on March 31, 2010. RE # 24-2 at PageID
217.
5 Plaintiffs-Appellants provided this information to Appellees on July 2, 2010. RE # 24-4 at PageID
270-76.

12
prior to filing suit in the District Court) because of the FTCA-mandated pre-suit administrative

process wherein Plaintiffs-Appellants provided each of the above-required items, and far more

information then required by Tenn. Code Ann. § 29-26-121(a)(2). (RE # 24-2 and 4).

Notwithstanding these facts, the District Court dismissed Plaintiffs-Appellants’ complaint

for an alleged technical failure that these items were not attached to the complaint via an affidavit

of counsel. (RE # 55 at PageID 1137 (Magistrate Inman’s Report and Recommendation); RE #

61 at PageID 1185, n.2 (Judge Greer Order Affirming The Report and Recommendation.) The

District Court conclusion rests on the following finding: “the requirements of sections

29-26-121…are substantive and mandatory, not procedural and directory.” (RE # 61 at PageID

1184 citing to Myers 382 S.W.3d at 310.

The District Court’s overly broad and simplistic reading of the Myers opinion lead it to

conclude that all of the requirements of Tenn. Code Ann. § 29-26-121 are mandatory. (RE # 61 at

PageID 1184.) However, the Myers Court did not state that strict compliance with the technical

requirements of Tenn. Code Ann. § 29-26-121 is mandatory. Instead, the Court carefully limited

its decision to hold only that the statutory requirements that a plaintiff provide pre-suit notice [per

Tenn. Code Ann. § 29-26-121] and confer with an expert prior to filing the suit [per Tenn. Code

Ann. § 29-26-122] are mandatory. The Myers Court deliberately left for another day the question

of whether the technical requirements of Tenn. Code Ann. § 29-26-121 could be satisfied by

substantial compliance. Myers, 382 S.W.3d at 310 (“[W]e need not decide whether the statutes'

requirements as to the content of the notice and the certificate of good faith may be satisfied by

substantial compliance.”).

13
The Tennessee Supreme Court has now clarified this question in two key decisions.6 In

Stevens v. Hickman Community Health Care Services, Inc., et al., 418 S.W.3d 547 (Tenn. 2013)

the Tennessee Supreme Court made clear that: (1) substantial compliance with the technical

requirements of Tenn. Code Ann. § 29-26-121 is sufficient; and (2) a complaint should not be

dismissed based upon a statutory technicality unless and until a defendant shows actual prejudice.

As explained by the Tennessee Supreme Court in Stevens, the purposes of the pre-suit

notice requirements articulated in Tenn. Code Ann. § 29-26-121(a) include: (1) requiring

plaintiffs to notify health care defendants of impending litigation before it occurs, (2) facilitating

settlement negotiations by informing target defendants of upcoming litigation so that pre-suit

settlements can occur, and (3) allowing target health care defendants to investigate potential

claims by gathering medical records from other parties being sent notice. Stevens, 418 S.W.3d at

554. Here, the FTCA-mandated administrative process ensures each of these purposes are

satisfied. The Defendant-Appellee knew over 18 months prior to Plaintiffs-Appellants filing the

instant action that Plaintiffs-Appellants intended to pursue medical negligence claims against them

for their treatment, or lack thereof, of Mr. Eiswert. Moreover, Defendant-Appellee had ample

opportunity to investigate and settle the instant case well before Plaintiffs-Appellants filed the

instant case in federal court.

In addition, in Thurmond v. Mid-Cumberland Infectious Disease Consultants, 433 S.W.3d

512 (Tenn. Apr. 24, 2014), the Tennessee Supreme Court addressed the exact issue now before this

Court: whether a plaintiff who otherwise provided proper notice under Tenn. Code Ann. §

29-26-121 but failed to file an affidavit of counsel attesting to such service must nevertheless have

6 The Tennessee Supreme Court filed these two decisions after the District Court entered judgment against
Plaintiffs-Appellants under the Myers, strict-compliance standard.

14
a complaint dismissed for failure to comply with that statute. Id. at 515-16. In overturning the

trial court’s decision that failure to file an affivavit with the complaint proved fatal, the Tennessee

Supreme Court once again reiterated its stance that before a suit can be dismissed for failure to

comply with Tenn. Code Ann. § 29-26-121, a defendant must demonstrate actual prejudice

resulting from any technical deficiencies. Id. (overturning grant of motion to dismiss where

Defendant “[made] no claim of prejudice” resulting from Plaintiff’s failure to comply with Tenn.

Code Ann. § 29-26-121.)

Taken together, Stevens and Thurmond require that before the District Court can dismiss

any claims for an alleged failure to comply with Tenn. Code Ann. § 29-26-121, it must find: 1)

plaintiff failed to substantially comply with Tenn. Code Ann. § 29-26-121(a) and 2) defendant

suffered actual prejudice as a result of any technical failure.

Here, there is no question that Plaintiffs-Appellants substantially complied with Tenn.

Code Ann. § 29-26-121 by exhausting the FTCA mandated administrative review process. (See

n.1-5 supra.)7 Moreover, the Defendant-Appellee has not attempted to demonstrate, nor could it

demonstrate, that they have been prejudiced by any failure of plaintiffs to comply with Tenn. Code

Ann. § 29-26-121. Defendant-Appellee knew of the nature of Plaintiffs-Appellants’ complaints

18 months prior to the filing of the complaint, and indeed had access to far more information than

required by that statute, yet such access and knowledge still did not lead to the resolution of

Plaintiffs-Appellants’ claims. Instead of attempting to show actual prejudice or argue that

Plaintiffs-Appellants’ pursuit of the FTCA-mandated administrative review process could

7 In fact, Plaintiffs demonstrated compliance with Tenn. Code Ann. 29-26-121’s pre-suit notice
requirements when they filed the declaration of Cristobal Bonifaz providing the relevant portion of the
FTCA-mandated administrative record of Appellants’ claims before the Department of Veterans Affairs.
RE # 24.

15
constitute substantial compliance with Tenn. Code Ann. § 29-26-121, the Defendant-Appellee

merely seek to dismiss these cases on a hyper technical reading of a statute that is unsupported by

the relevant case law. (RE # at 41 PageID 706 (arguing in a single paragraph for dismissal for

mere failure to comply with technical requirements and making no attempt to demonstrate actual

prejudice from such defects)).

In spite of the fact that Plaintiffs-Appellants demonstrated compliance (substantial or

actual) with Section 121 in their amended pleadings, the District Court nevertheless dismissed

their claims because the original complaint failed to strictly comply with Section 121. (RE # 61 at

pageID 1184). Such a result is clearly contrary to the substantial compliance and actual

prejudiced requirements imposed by the Tennessee Supreme Court’s post-Myers decisions. See

Stevens, 418 S.W.3d at 554-556; Thurmond, 433 S.W.3d at 519-22.

In fact, since the Myers decision has been rendered, several Tennessee state court decisions

have quickly backed away from the mandatory, strict compliance standard in Myers and have

allowed plaintiff’s claims to survive challenges of technical failures to comply with Tenn. Code

Ann. § 29-26-121. Thurmond, 433 S.W.3d at 519-22; Chambers ex rel. Chambers v. Bradley

County, 2014 Tenn. App. LEXIS 175 (Mar. 28, 2014) (“The hospital received actual notice. It

seems to us that the technical requirements in the statute are intended to provide just that: notice of

the claim. Any arguments regarding the method of giving notice would be relevant where the

defendant asserts no notice was received. They are not, however, where there is no dispute that the

defendant received actual notice.”); Givens v. Vanderbilt Univ., 2013 Tenn. App. LEXIS 695 (Oct.

24, 2013) (“Under the circumstances presented here, where Plaintiffs filed their initial suit prior to

the enactment of the statutory notice requirements and when Defendants had some notice of the

16
potential claim as a result of the initial lawsuit, we conclude that the trial court erred in dismissing

Lawsuit 2 for noncompliance with section 29-26-121.”); Haley v. State, 2013 Tenn. App. LEXIS

634 (Tenn. Ct. App. Sept. 25, 2013) (overturning dismissal for failure to comply with Section 121

when plaintiff exhausted administrative remedies prior to filing suit against the State of

Tennessee); Foster v. Chiles, 2013 Tenn. App. LEXIS 422, at *6 (Tenn. Ct. App. June 27, 2013)

(“We conclude that section 121 does not require a court to dismiss a complaint with prejudice for

noncompliance with the notice requirement of that section.”)

Apart from Thurmond, which is directly on point and holds in favor of

Plaintiffs-Appellants, a different Tennessee Court of Appeals decision is particularly applicable to

the case at bar. Haley v. State, 2013 Tenn. App. LEXIS 634 (Sept. 25, 2013). Haley involved an

almost exact same situation where a claimant exhausted a robust, pre-suit administrative process

under the Tennessee Claims Act (T.C.A. § 9-8-108, et seq.) prior to filing suit, (Id. at 6-9) but, like

Plaintiffs-Appellants here, did not technically comply with the THCLA in almost the exact same

manner as Plaintiffs here: namely its pre-suit notice was not attached to the originating complaint

nor was an expert certificate, although it is clear that both notice and expert vetting was performed.

Id. at 10-11. In fact, the Plaintiff in Haley provided less information than Plaintiffs here, namely

that it never provided a HIPAA-compliant medical release or identified other healthcare providers

that were also sent a notice Id. at 26. The State of Tennessee moved to dismiss on the exact same

grounds as the Defendants here (namely that Plaintiff failed to satisfy the notice and expert

requirements of T.C.A. §§ 29-26-121 and 122), Id. at 11-12, which the Tennessee Claims

Commission granted (claims under the Tennessee Claims Act are not pursued in county court but

17
at the Claims Commission which functions as the “trial court” for purposes of the Tennessee

Claims Act). Id.

The Court of Appeals, however, overturned this decision, finding that by exhausting the

Tennessee Claims Act’s pre-suit, administrative process, the plaintiffs satisfied the pre-suit notice

requirements of the THCLA.8 Specifically, the Court held:

The defendants' argument elevates form over substance and conflates
means with ends. The aim of Tenn. Code Ann. § 29-26-121 is to
make sure that prospective defendants receive adequate and timely
notice of possible claims against them. Similarly, the certificate of
good faith requirement is designed to eliminate lawsuits where the
claims have not been vetted by an expert.

If we were to accept the defendants' argument at face value, we
would be forced to conclude that any deviation from the strict letter
of Tenn. Code Ann. § 29-26-121, no matter how small, would
compel the courts to dismiss any medical malpractice claim asserted,
no matter how meritorious. This would negate the strong preference
of our law to resolve claims on their merits whenever possible.

Id. at 33 (internal citations and quotations omitted).

The situation before the Tennessee Court of Appeals in Haley is the exact situation now

before this Court and Haley compels the conclusion that District Court’s dismissal order must be

reversed.

8
The Tennessee Claims Act requires that a plaintiff, before proceeding against a state institution on a claim
for monetary damages, provide written notice requiring the presentation of certain material. T.C.A. §
9-8-402(a). Although there is a substantial overlap between the requirements of a notice under the
Tennessee Claims Act and that required by T.C.A. § 29-26-121, they are not identical. Haley, 2013 Tenn.
App. LEXIS 634 at 3-5 (discussing differences). The Standard Form 95 used to initiate an administrative
claim under the FTCA requires similar although not identical information to that required by the Tennessee
Claims Act. Compare Doc. 24-2 to T.C.A. § 9-8-402(a). In fact, the requirements of Standard Form 95 are
closer to the requirements of T.C.A. § 29-26-121 than the notice provisions outlined in T.C.A. § 9-8-402(a).
In other words by complying with the FTCA provisions, Plaintiffs here came closer to full compliance with
T.C.A. § 29-26-121 than the plaintiff in Haley. Compare Doc. 24-2 to Haley, 2013 Tenn. App. LEXIS 634
at 4-7 (containing the entire notice sent by the plaintiff that the court found sufficient to satisfy the
requirements of T.C.A. § 29-26-121).

18
Taken together the Stevens, Thurmond, Haley and other decisions hold strict compliance is

not necessary in instances where a party, prior to filing suit, substantially complies with Tenn.

Code Ann. § 29-26-121 and defendants fail to demonstrate actual prejudice resulting from any

technical non-compliance. Stevens, 418 S.W.3d at 554; Thurmond, 433 S.W.3d at 519-21; Haley,

2013 Tenn. App. LEXIS 634 at 32-33.

Accordingly, the District Court’s holding that Plaintiffs-Appellants claims must be

dismissed for failure to strictly comply with all technical requirements of Tenn. Code Ann. §

29-26-121 must be reversed. At a minimum, the Court’s dismissal with prejudice pursuant to

Tenn. Code Ann. § 29-26-121 must be reversed since Stevens makes clear that the proper remedy

for failure to comply with Tenn. Code Ann. § 29-26-121 is a dismissal without prejudice.

Stevens, 418 S.W.3d at 560 (“We reaffirm our general presumption against dismissing cases with

prejudice on procedural grounds, and dismiss Plaintiff's case without prejudice.”)

B. Plaintiff’s Complied With Tenn. Code Ann. § 29-26-122 By Filing With Their
Complaint An Expert Report Establishing That The Claim Had Merit

Similar to the above, the District Court dismissed Plaintiffs-Appellants claims for an

alleged failure to comply with Tenn. Code Ann. § 29-26-122, once again misapplying the standard

in Myers to the case at bar. Specifically, the District Court held that “the requirements of section

[29-26-122] are substantive and mandatory, not procedural and directory. Thus a failure to file a

Certificate of Good Faith results in a case being dismissed with prejudice.” (RE # 61 at PageID

1184 citing Myers, 382 S.W.3d at 310-11 (internal citations omitted)).

“Tennessee Code Annotated section 29-26-122 requires the filing of a certificate of good

faith in all medical malpractice cases requiring expert testimony, confirming that an expert has

signed a written statement that there is a good faith basis to maintain the action.” Myers, 382

19
S.W.3d at 312.

The District Court’s overly simplistic reading of Myers once again ignores the applicable

standard. In Myers, the plaintiff failed to attach any statement to the original complaint resulting

in dismissal of plaintiff’s claims. Id. However, Myers does not stand for the proposition that a

plaintiff must strictly comply with the technical aspects of Tenn. Code Ann. § 29-26-122. Myers,

382 S.W.3d at 310 (“[W]e need not decide whether the statutes' requirements as to the content of

the notice and the certificate of good faith may be satisfied by substantial compliance.”). Rather,

Myers requires only that the complaint be accompanied by some “certificate of good faith” and

does not require that the certificate comply with all technical aspects of Tenn. Code Ann. §

29-26-122. Id.

Here, Plaintiffs filed with their original complaint two expert statements that contain all of

the information required to be provided in the certificate. Compare RE # 1-3 with Tenn. Code

Ann. § 29-26-122(a). Ignoring this fact, the District Court held that:

Section 122 requires that any complaint for medical malpractice
must include a “certificate ofGood Faith” which recites that the
plaintiff or plaintiff’s counsel consulted with at least one expert who
asserts there is a good faith basis to believe that medical malpractice
occurred…In this case plaintiffs’ complaint contains none of the
foregoing…

(RE # 55 at PageID 1137.) This holding ignores the fact that Plaintiffs-Appellants’ complaint

contained the very expert statement contemplated by Tenn. Code Ann. § 29-26-122(a). (RE #

1-3.) In essence, the District Court dismissed Plaintiffs-Appellants claims for failing to file with

the complaint a certificate certifying that it had obtained the very expert statement that the

Plaintiffs-Appellants attached to that complaint.

The District Court reached this odd conclusion because of an unsupported broad reading of

20
the Myers decision that a plaintiff must “strictly comply with the statute.” (RE # 61 at PageID

1185.) Yet, Myers does not require strict compliance with the content of the certificate of good

faith, only that a Plaintiff confer with an expert prior to filing suit and the complaint contains some

evidence thereof. Myers, 382 S.W.3d at 312 (“With respect to Tennessee Code Annotated section

29-26-122, after Mr. Myers's original action terminated, he could not rely on statements made by

experts relative to that action as a substitute for a certificate of good faith filed with his new action

because the statute provides that [i]f the certificate is not filed with the complaint, the complaint

shall be dismissed. The statements upon which Mr. Myers seeks to rely were not filed with his new

complaint.”) (internal citations and quotations omitted) (emphasis added).

Nothing in Myers compels the conclusion, reached here by the District Court, that

Plaintiffs-Appellants’ filing of the actual expert statement contemplated by Tenn. Code Ann. §

29-26-122 cannot be deemed satisfactory compliance with that statute. Indeed, the one

Tennessee Court of Appeals decision to address this very issue concluded that filing of the actual

expert statement with the complaint is sufficient compliance with Tenn. Code Ann. § 29-26-122.

Hinkle v. Kindred Hosp., 2012 Tenn. App. LEXIS 611 at *7, * 15 (Tenn. Ct. App. Aug. 31, 2012).

In Hinkle, the Tennesseee Court of Appeals noted:

One of the purposes of the certificate of good faith is to weed out
frivolous lawsuits before any party incurs substantial litigation
expenses. The filing of a certificate of good faith indicating that an
expert has reviewed the claims and has certified that they are taken
in good faith satisfies the goal of attempting to ensure that suits
proceeding through litigation have some merit.

Id. at * 23 (internal citations and quotations omitted). The Court of Appeals also noted that,

“[p]laintiff’s attorney in the present case did not make use of the standard form, nor did he file with

the complaint any document entitield ‘certificate of good faith.’ Instead, he filed a detailed

21
affidavit by a doctor with whom he had consulted.” Id. The Hinkle Court then held that the

affidavit from the expert satisfied the certificate of good faith requirement and noted that the

affidavit “clearly gives the defendants far more information than is required by the certificate of

good faith.” Id. at * 25.

This is the exact situation now before this Court. Plaintiffs-Appellants, like the plaintiffs

in Hinkle, filed with the complaint the expert statement in lieu of the “standard form” “certificate

of good faith.” (RE # 1-3.) This expert statement detailed the standard of care applicable to the

case at bar and claimed that defendant’s treatment of Mr. Eiswert fell below this applicable

standard of care and thereby “impliedly asserted the existence of a good faith basis to maintain a

medical malpractice claim for [Mr. Eiswert’s] injuries.” Hinkle, 2012 Tenn. App. LEXIS 611, at

*25.

Nothing in Myers changes this central holding of Hinkle, as the subsequent Tennessee

Supreme Court decisions in Stevens and Thurmond make clear. See discussion supra at P.

INSERT; see also Stoval v. UHS of Lakeside, LLC, 2014 Tenn. App. LEXIS 221 (Tenn. Ct. App.

April. 22, 2014) .9

Accordingly, the District Court’s holding that Plaintiffs-Appellants’ claims must be

dismissed for failure to strictly comply with the technical requirements of Tenn. Code Ann. §

29-26-122 must be reversed.

9 At best this remains simply an open question in Tennessee law as the cases from the Tennessee Court of
Appeals decided after Myers but before Stevens and Thurmond make clear. See e.g., Caldwell
v.Vanderbilt University, 2013 Tenn. App. LEXIS 123, at *6, n.8 (Tenn. Ct. App. Feb. 20, 2013) ("We note
that our Supreme Court has not opined as to whether the content requirements of Tenn. Code Ann. §
29-26-122 may be satisfied by substantial compliance.").

22
C. Federal Rule 15(a) Gives Plaintiffs-Appellants the Right to Amend the Complaint To
Correct Technical Failures To Comply With The THCLA

Rule 15(a) confers upon a federal litigant the right to amend a pleading once as a matter of course

either within 21 days of service of the pleading to be amended or within 21 days after the service of

a motion under Rule 12(b). See Broyles v. Corr. Med. Servs., 2009 U.S. App. LEXIS 5494 (6th

Cir. 2009) (citing Pertuso v. Ford Motor Credit Co., 233 F.3d 417, 421 (6th Cir. 2000) (noting that

Rule 15(a) "gives plaintiffs an absolute right to amend their complaint one time before a

'responsive pleading' is served"; Morse v. McWhorter, 290 F.3d 795, 800 (6th Cir. 2002)).

The District Court denied Plaintiffs-Appellants when it held that “that a deficiency in a

complaint by failing to comply with sections 29-26-121 and -122 cannot be cured by amending the

complaint.” (RE # 61 at PageID 1185 citing Vaughn v. Mountain States Health Alliance, 2013

Tenn. App. LEXIS 159 (Tenn. Ct. App., March 3, 2013)).

This holding ignores a body of United States Supreme Court cases which dictate the

applicability of Federal procedural rules when those rules conflict with state substantive law.

Hanna v. Plumer, 380 U.S. 460, 463-64, (1965); see Burlington Northern R. Co. v. Woods, 480

U.S. 1, 4-5 (1987); Shady Grove Orthopedic Assocs. v. Allstate Ins. Co., 559 U.S. 393 (2010);

Davis v. Piper Aircraft Corp., 615 F.2d 606, 611 (4th Cir. 1980) (applying Fed. R. Civ. P. 15(c)

rather than contrary North Carolina law regarding relation back of amended pleadings).

Contrary to the holding of the District Court, the THCLA cannot limit a federal litigants

right to amend a complaint. It is well settled that where a state law conflicts with a Federal Rule

of Civil Procedure, the federal courts must apply the Federal Rule unless that rule exceeds the

mandate embodied in the Rules Enabling Act or transgresses constitutional bounds. Hanna v.

Plumer, 380 U.S. at 463-64; Burlington Northern 480 U.S. at 4-5. Specifically, the United States

23
Supreme Court held in Hanna that:

To hold that a Federal Rule of Civil Procedure must cease to
function whenever it alters the mode of enforcing state-created
rights would be to disembowel either the Constitution’s grant of
power over federal procedure or Congress’ attempt to exercise that
power…

380 U.S. at 473.

The Supreme Court’s decision in Shady Grove is also instructive. Shady Grove, involved

a conflict between Fed. R. Civ. Proc. 23 and N.Y. Civ. Proc. L. § 901(b). Shady Grove, 559 U.S. at

397. New York law precluded class actions suits which sought to recover penalties such as

statutory interest. Id. Although the United States Court of Appeals for the Second Circuit held

that since § 902(b) was a substantive rule under the Erie Rule, the New York law must be applied

and the matter dismiss. The United States Supreme Court disagreed and stated “Rule 23 permits

all class actions that meet its requirements, and a State cannot limit that permission by structuring

one part of its statute to track Rule 23 and enacting another part that imposes additional

requirements.” Id. at 401.

In Shady Grove, the Supreme Court held that § 901(b)’s application in federal court

directly contradicted Rule 23 (which permitted class actions to be filed in all actions) because it

limited the types of claims that could be pursued on a class basis. Id. Such a result (i.e. a state

substantive law trumping a federal procedural right) is impermissible because “the validity of a

Federal Rule depends entirely upon whether it regulates procedure...If it does, it is authorized by §

2072 and is valid in all jurisdictions, with respect to all claims, regardless of its incidental effect

upon state-created rights.” Id. (internal citations omitted).

“Congress has undoubted power to supplant state law, and undoubted power to prescribe

24
rules for the courts it has created, so long as those rules regulate matters ‘rationally capable of

classification’ as procedure.” Id. at 406. As the Supreme Court stated in Shady Grove:

What matters is what the [Federal Rule] itself regulates: If it
govern[s] only the manner and the means by which the litigants’
rights are enforced, it is valid; if it alters the rules of decision by
which [the] court will adjudicate [those] rights, it is not.

Id. at 407 (internal quotations omitted) citing Mississippi Pub. Corp. V. Murphree, 326 U.S. 438

(1946).

In applying this test the Supreme Court noted that it had upheld the application of rules that

had “practical effect on the parties’ rights, but each undeniably regulated only the process for

enforcing those rights; non altered the rights themselves, the available remedies, or the rules of

decision by which the court adjudicated either.” Shady Grove, at 407-08.

The outer reaches of this principal can be seen by comparing two different United States

Supreme Court decisions. First, in Hannah the Supreme Court held that a Massachusetts law

requiring in-hand service of process on an executor or administrator of an estate by any putative

creditor conflicted with Federal Rule of Civil Procedure 4(d)(1). 380 U.S. at 470-71. After

determining that Rule 4(d)(1), which dictated the means of service of a complaint, fell within the

limits prescribed by the Rules Enabling Act, the Court concluded that the "clash" between Rule 4

and the Massachusetts law was "unavoidable.” Id. at 470. After all, "Rule 4(d)(1)

says-implicitly, but with unmistakable clarity-that [personal] service is not required in federal

courts," but the Massachusetts law required such personal service. Id. at 470. Because the state

law imposed service requirements above and beyond those imposed by a valid, constitutional

Federal Rule of Civil Procedure, the Supreme Court held that the state law was in direct collision

with the federal law and therefore could not be given effect in the federal courts. Id. at 470-471.
25
On the other hand, the Supreme Court concluded in Walker v. Armco Steel Corp. that there

was no direct collision between Federal Rule of Civil Procedure 3 and an Oklahoma statute

providing that an action was "commenced" for the purposes of the statute of limitations only upon

service of a summons on the defendant, or, if the complaint was filed within the limitations period,

and the defendant was served within 60 days of that filing, on the date the complaint was filed. 446

U.S. 740, 752 (1980). The Supreme Court found that there was no direct conflict because Rule 3,

which states that an action is "commenced" by the filing of the complaint, and the Oklahoma

statute, because Rule 3 regulated "commencement" of an action only with respect to when various

timing requirements imposed by the Federal Rules begin to run, and does not affect the tolling of

state statutes of limitation. Id. at 750-52. There was thus no conflict between the Oklahoma law,

which established a rule for the tolling of that state's statute of limitations, and Rule 3.

In short, Walker, unlike Hanna, involved a Federal Rule that was not so broad as to cover

the point in dispute and therefore the Court concluded that the state law must be applied by the

federal courts when sitting in diversity. Id. at 750.10

The District Court failed to conduct any of the analysis required by Shady Grove, Hanna,

and Walker and instead simply concluded that because Tenn. Code Ann. § 29-26-121 and -122

were “substantive” that they necessarily controlled Plaintiffs-Appellants’ right to amend their

complaint.11 (RE # 61 at PageID 1185.) This simply misses the point because it does not matter

10 Because the Supreme Court in Walker determined that there was no conflict between state law and
federal procedural law, it then undertook the traditional Erie analysis to determine whether to apply the
state rule in federal court. 446 U.S. at 750. Here, there is a “direct conflict” between Rule 15’s liberal
amendment policy and Tenn. Code Ann. § 29-26-121 and -122 and therefore the Court need not navigate
Erie’s troubled waters.
11 The District Court seemed to only consider the application of Tenn. Code Ann. § 29-26-121 and -122
under the standard Erie analysis, but Hanna and Walker make clear that before an Erie analysis is done, the
26
whether the state law is substantive, but rather whether the Federal Rule and state law are in

unavoidable conflict. Hanna, 380 U.S. at 470-71. If they are, then the Federal Rule must be

applied so long as it is “rationally capable of classification as procedural.” Shady Grove, 559 U.S.

at 406.

Rule 15 unequivocally is a federal procedural rule and its liberal amendment policy is

regularly used by federal litigants to to cure technical deficiencies in a complaint. See Piper

Aircraft, 615 F.2d at, 610-11 (applying Fed. R. Civ. P. 15(c) because it governed a procedural right

and was directly contradicted by a North Carolina law regarding relation back of amended

pleadings); see, e.g., Tefft, 689 F.2d at 638-39 (overturning denial of motion to amend to cure

technical pleading defects where on the face of the original complaint, plaintiff clearly sought to

assert an action for tort and other claims); Berkshire Fashions v. M.V. Hakusan II, 954 F.2d 874,

886-88 (3d Cir. 1992) (allowing plaintiff to amend under Rule 15(a) to drop a non-diverse party in

order to preserve jurisdiction); Stanley v. Central Intelligence Agency, 639 F.2d 1146, 1159-60

(5th Cir. 1981) (granting leave to amend when it appeared that plaintiff may have pleaded a

colorable section 1983 claim in his complaint, rather than the Federal Tort Claims Act cause of

action asserted); May Dep't Store v. Graphic Process Co., 637 F.2d 1211, 1216 (9th Cir. 1980)

(reaching same result as United Steelworkers); United Steelworkers of Am. v. Mesker Bros. Indus.,

Inc., 457 F.2d 91 (8th Cir. 1972) (allowing plaintiff to amend to refashion federal claim that was

improperly pleaded in the first instance); In re Silica Prods. Liab. Litig., 398 F. Supp. 2d 563 (S.D.

Tex.) (permitting party to file amended complaint to cure technical defects as they related to the

court’s subject matter jurisdiction).

Court must first decide whether the federal procedural rule and state law are in conflict.
27
To the extent that Tenn. Code Ann. § 29-26-121 and -122 would operate to prevent and

curtail a federal litigant’s right to amend their complaint, and Vaughn, 2013 Tenn. App. LEXIS

159 suggests that they do, they would be in direct collision with Rule 15’s liberal amendment

policy and therefore could not be given effect in federal courts. See Hanna, 380 U.S. at 471

(“When a situation is covered by one of the Federal Rules, the question facing the court is a far cry

from the typical, relatively unguided Erie choice: the court has been instructed to apply the Federal

Rule, and can refuse to do so only if the Advisory Committee, this Court, and Congress erred in

their prima facie judgment that the Rule in question transgresses neither the terms of the Enabling

Act nor constitutional restrictions

Accordingly, the District Court’s denial of Plaintiffs-Appellants right to amend to cure any

technical deficiencies with its original complaint must be reversed. Hanna, 380 U.S. at 473

(“To hold that a Federal Rule of Civil Procedure must cease to function whenever it alters the

mode of enforcing state-created rights would be to disembowel either the United States

Constitution's grant of power over federal procedure or Congress' attempt to exercise that power in

the Rules Enabling Act, 28 U.S.C.S. § 2072.”); see also Monarch Leasing, 84 F.3d at 207 (“Under

the Court's holding in Hanna, we must follow [Rule 58] unless we find that it is invalid under the

Rules Enabling Act, 28 U.S.C. § 2072, or the Constitution, which we do not.”)

D. The Pre-Suit Notice Requirements of Section 29-26-121 and the Certificate of Good
Faith Requirements Conflict With Rules 8 and 26 Of The Federal Rules Of Civil
Procedure And Are Therefore Inapplicable To The Case At Bar.

Under the Shady Grove and Hanna analysis discussed at length above, several federal

courts have refused to apply other states’ medical malpractice laws which impermissibly attempt

to curtail a federal litigant’s procedural rights. See e.g. Willever v. United States, 775 F. Supp. 2d

28
771, 780-781 (Dist. Md. 2011) (refusing to apply state medical malpractice claims requiring expert

reports be attached to the compliant when they conflicted with Rule 26 of the Federal Rules of

Civil Procedure.); Long v. Adams, 411 F. Supp. 2d 701 (E.D. Mich. 2006) (holding that

Michigan’s medical malpractice pleading requirements were not applicable in federal court

because they conflicted with the pleading requirements of Rule 8); Baird v. Celis, 41 F. Supp. 2d

1358, 1360 (N.D. Ga. 1999) (holding that Rule 8 trumped a state medical malpractice requirement

that an affidavit be filed with a complaint because state substantive law could not alter or amend

the Federal Rules of Civil Procedure); Braddock v. Orlando Reg'l Health Care Sys., Inc., 881 F.

Supp. 580, 584 (M.D. Fla. 1995) (refusing to enforce Florida certificate of merit pleading

requirement that "directly conflicts with Fed. R. Civ. P. 8(a)").

The Middle District of Tennessee has correctly noted that:

The Sixth Circuit has not addressed this issue and district courts
within this circuit, as well other federal courts, have split on whether
state law medical malpractice certificate pleading requirements
constitute (a) "substantive" state law that federal courts must
enforce, or (b) procedural requirements that are trumped by the
Federal Rules of Civil Procedure, particularly Rule 8.

Stinnett v. Untied States, Stinnett v. United States,891 F. Supp. 2d 858, 866 (M.D. Tenn. 2012)

citing Williams v. United States, 754 F. Supp. 2d 942. 948-953 (W.D. Tenn. 2010) (finding that

earlier version of THCLA certification requirement was substantive and, therefore, enforceable in

an FTCA action, but explicitly declining to address whether requirement violated any federal

procedural rules because plaintiff had not raised that argument); and Long v. Adams, 411 F. Supp.

2d 701, 705-709 (E.D. Mich. 2006) (refusing to enforce Michigan pleading certification

requirement in diversity action, on basis that requirement was procedural and conflicted with Rule

8(a).)
29
In Long v. Adams, the Eastern District of Michigan in reliance on the principles articulated

in Hanna held that because there is “no heightened pleading requirements for medical malpractice

cases contained in Rule 8(a), Michigan’s medical malpractice laws requiring that an affidavit of

merit be filed with a complaint was not applicable in federal court. 411 F. Supp. 2d at 706.

Applied to the case at bar, the Long decision necessarily invalidates Tenn. Code Ann. §

29-26-122, which, like the statute at issue in Long attempted to set a heightened pleading standard

for medical malpractice by requiring plaintiffs to file documents attesting to the complaint’s merit.

Further, Tenn. Code Ann. § 29-26-122 also requires a plaintiff to commence expert discovery prior

to the time period proposed by Rule 26(a)(2)(D). Under the Hanna and Shady Grove standards

then Tenn Code Ann. § 29-26-122 should not apply to cases filed in federal court because it

imposes greater burdens on a federal litigant than the Federal Rules require. See Hanna, 380 U.S.

at 471 (“When a situation is covered by one of the Federal Rules…the court has been instructed to

apply the Federal Rule and can refuse to do so only if the Advisory Committee, this Court, and

Congress erred in their prima facie judgment that the Rule in question transgresses neither the

terms of the Enabling Act nor constitutional restrictions.”).

Tenn. Code Ann. § 29-26-121 is equally problematic. It too imposes a heightened

pleading requirement that is inconsistent with Rule 8(a)’s notice pleading standard. Long, 411 F.

Supp. 2d at 706; Braddock, 881 F. Supp. At 584 (refusing to enforce Flrodia’s certificate of merit

pleading requirement that “directly conflicts with Fed. R. Civ. P. 8(a).

Accordingly, the District Court’s dismissal of Plaintiff’s claims pursuant to Tenn. Code

Ann. § 29-26-121 and -122 must be reversed.

E. Defendant-Appellee Waived Arguments For Dismissal Under Tenn. Code Ann.
29-26-121 and -122 For Failure To Raise These Defenses In Its Original Rule 12(b)(6)
30
Motion.

Rule 12(g)(2) is clear: “a party that makes a motion under this rule must not make another

motion under this rule raising a defense or objection that was available to the party but omitted

from its earlier motion.” In other words, if a party choses to make a motion under Rule 12 that

party must include all Rule 12 defenses and objections then available in a single motion. Fed. R.

Civ. P. 12(g); Rauch v. Day & Night Mfg. Corp., 576 F.2d 697, 701 n.3 (6th Cir. 1978).

Successive Rule 12(b)(6) motions are clearly disfavored, as the Sixth Circuit has held:

In considering the operation of Rule 12(g), it is advisable to keep in
mind that Rule 12 was drafted by the Advisory Committee to
prevent the dilatory motion practice fostered by common law
procedure and many of the codes whereby numerous pretrial
motions could be made, many of them in sequence a course of
conduct that often was pursued for the sole purpose of delay. . .
Simply stated, the objective of the rule is to eliminate unnecessary
delay at the pleading stage. Subdivision (g) contemplates the
presentation of an omnibus pre-answer motion in which defendant
advances every available Rule 12 defense and objection he may
have that is assertable by motion. He cannot delay the filing of a
responsive pleading by interposing these defenses and objections in
piecemeal fashion but must present them simultaneously. Any
defense that is available at the time of the original motion but is
not included, may not be the basis of a second pre-answer motion.

Rauch, 576 F.2d at 701 n.3 (emphasis added); see also King v. Taylor, 694 F.3d 650 at 658 (6th

Cir. 2012) (“A defendant is required at some point to raise the issue by motion for the court's

determination. Waiting too long to do so can forfeit the defense.”) (internal citations and

quotations omitted).

In Rauch, the Sixth Circuit held that a party seeking to raise a new, additional grounds for

dismissal under Rule 12(b)(6) had waived that ground by failing to raise such an issue in its

original motion to dismiss. That is the situation now at bar. To the extent that

31
Defendant-Appellee wished to obtain dismissal based on Plaintiffs-Appellants failure to comply

with Tenn. Code Ann. § 29-26-121 and -122, that defense must have been raised in

Defendant-Appellee’s original motion to dismiss. See Rauch, 576 F.2d at 701.

Notwithstanding this clear authority, the District Court permitted Defendant-Appellee to

file a second motion to dismiss almost 10 months after Defendant-Appellee first filed its original

Rule 12(b)(6) motion. (RE # 34 (Motion to File Second Motion to Dismiss) and 38 (Order

Granting Motion)). This was error and the Court must overturn the District Court’s decision to

dismiss the present claim on an improperly filed second motion to dismiss. See Rauch, 576 F.2d at

701.

CONCLUSION

For the reasons set forth above, Plaintiffs-Appellants respectfully request that the District

Court’s Order granting Defendant-Appellee’s motion to dismiss (RE # 61) be reversed in its

entirety, and the case remanded to the United States District Court for the Eastern District of

Tennessee for a full decision on the merits.

32
Respectfully submitted,

TRACY LYNN REECE EISWERT, ET AL

By Attorneys for Plaintiffs

/s/ J. Gerard Stranch, IV
J. Gerard Stranch, IV, Esq.
Benjamin A. Gastel, Esq.
Branstetter Stranch & Jennings, PLLC
227 Second Avenue North, Fourth Floor
Nashville, TN 37201-1631
Tel: (615) 254-8801
Fax: (615) 255-5419
Electronic Mail: gerards@bsjfirm.com
beng@bsjfirm.com

D. Bruce Shine, Esq.
TN BPR No. 000815
Law Office of D. Bruce Shine
433 East Center Street, Suite 201
Kingsport, TN 37660-4858
Tel: (423) 246-8433
Fax: (423) 246-7464
Electronic Mail: bruceshine@chartertn.net

Cristóbal Bonifaz, Esq.
MA BBO 548-405
John C. Bonifaz, Esq.
MA BBO 560-478
Law Offices of Cristóbal Bonifaz
180 Maple Street
PO Box 180
Conway, MA 01341
Tel: (413) 369-4263
Fax: (413) 253-7475
Electronic Mail: cbonifaz@comcast.net

33
CERTIFICATE OF SERVICE

The undersigned hereby certifies that on the 29 day of October, 2014, a copy of the
foregoing was filed electronically. Notice of this filing will be sent by operation of the Court’s
electronic filing system to all parties indicated on the electronic filing receipt. All other parties
may access this filing through the Court’s electronic filing system.

/s/ J. Gerard Stranch, IV
J. Gerard Stranch, IV, Esq.

34