Lewis v. Womack Army Medical Center
886 F. Supp. 2d 1304
N.D. Fla.2012Background
- Lewis sues under the FTCA for alleged medical negligence at Fort Bragg, NC.
- Lewis submitted his claim to the Army, which denied it, before filing suit in district court.
- Government moves to dismiss under NC Rule 9(j) presuit requirements for medical malpractice.
- Rule 9(j) requires expert review and willingness to testify or a res ipsa claim, or a motion with a complaint.
- This court holds 9(j) presuit conditions apply in FTCA cases, but 9(j) pleading requirements do not, unless raised via 9(c); plaintiff given one last chance to show compliance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does NC Rule 9(j) apply in FTCA federal cases? | Lewis argues 9(j) should apply as a presuit prerequisite | Womack Army Center argues 9(j) applies in FTCA cases | Rule 9(j) presuit conditions apply; the remedy is dismissal if not complied with |
| Must the presuit compliance be pled in the federal complaint? | No explicit pleading of 9(j) compliance is required | 9(j) compliance may be raised via dismissal as in abatement | Pleading of 9(j) compliance not required; complaint must meet Rule 8(a)(2) and 9(c) if necessary |
| How should the court enforce 9(j) when not complied with before filing? | Court should allow cure if possible | Dismissal is proper for failure to exhaust presuit requirements | If noncompliance is shown, dismissal as a motion in abatement with opportunity to cure |
| What is the scope of the presuit requirement in this FTCA case? | Presuit requires expert review for breach of standard of care | Presuit regime is mandatory and enforceable | Presuit requirement applies; res ipsa claims are treated separately |
Key Cases Cited
- Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393 (Sup. Ct. 2010) (federal rules control in conflicts with state practice rules)
- Hanna v. Plumer, 380 U.S. 460 (Sup. Ct. 1965) (federal conflicts resolved in favor of federal rules)
- Ashcroft v. Iqbal, 556 U.S. 662 (Sup. Ct. 2009) (plausibility standard for 12(b)(6) dismissals)
- Alba v. Montford, 517 F.3d 1249 (11th Cir. 2008) (Georgia presuit-like requirement analyzed; state procedural rule relevance)
- Brown v. Nichols, 8 F.3d 770 (11th Cir. 1993) (presuit requirements; procedural posture in federal court)