Dennis Gallivan v. United States
943 F.3d 291
| 6th Cir. | 2019Background:
- Plaintiff Dennis Gallivan, while incarcerated in federal prison in Ohio, underwent surgery and alleges the Bureau of Prisons (BOP) was negligent, causing permanent disability.
- Gallivan sued the United States under the Federal Tort Claims Act (FTCA); the BOP had previously found no wrongdoing.
- The district court dismissed Gallivan’s complaint for failure to attach an Ohio affidavit-of-merit required by Ohio Civ. R. 10(D)(2) for medical-negligence claims.
- Gallivan appealed, arguing the Federal Rules of Civil Procedure do not require an affidavit of merit and thus preempt Ohio Rule 10(D)(2).
- The Sixth Circuit held the Federal Rules govern pleading requirements in FTCA suits, Rule 8/12/9 do not require such an affidavit, and a valid Federal Rule displaces conflicting state procedural rules; the court vacated and remanded.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Ohio Civ. R. 10(D)(2) affidavit-of-merit is required in federal FTCA suit | Gallivan: No; federal pleading standards (Rule 8, 12, 9) control and do not require an affidavit | U.S.: FTCA incorporates state law; Ohio’s affidavit rule applies and is procedural/substantive for FTCA suits | Federal Rules govern; no affidavit required; district court erred |
| Whether the Federal Rules answer the same question and are valid | Gallivan: Rule 8/12/9 answer the pleading question; valid under Rules Enabling Act & Constitution | U.S.: Did not contest validity but argued state rule may still apply in FTCA context | Court: Federal Rules answer the question and are presumptively valid; government did not challenge validity |
| Whether FTCA requires applying state procedural rules or exposes U.S. to greater liability if federal rules applied | Gallivan: Applying Federal Rules does not change substantive liability under state law | U.S.: Applying Federal Rules could subject the United States to greater liability than a private person | Court: Applying Federal Rules affects procedure only; elements and extent of liability remain governed by state substantive law; no conflict with FTCA’s liability limits |
Key Cases Cited
- Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393 (2010) (test for whether Federal Rules displace state law: do the Federal Rules answer the question in dispute?)
- Hanna v. Plumer, 380 U.S. 460 (1965) (valid federal procedural rules displace inconsistent state rules under Supremacy Clause)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (plausibility standard for surviving Rule 12(b)(6) motion)
- Leatherman v. Tarrant Cty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163 (1993) (Rule 8’s relaxed pleading standards limit heightened state pleading requirements)
- Burlington N. R.R. Co. v. Woods, 480 U.S. 1 (1987) (Federal Rules presumptively valid)
- United States v. Yellow Cab Co., 340 U.S. 543 (1951) (historical recognition that FTCA suits proceed under Federal Rules)
- Richards v. United States, 369 U.S. 1 (1962) (FTCA requires application of a state’s choice-of-law rules)
- United States v. Reynolds, 345 U.S. 1 (1953) (reference to Federal Rules applying in FTCA context)