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Sixth Circuit Holds Ohio Rule Requiring Merit Affidavit Inapplicable in BOP Prisoner’s Tort Action

On November 7, 2019, the Sixth Circuit Court of Appeals held that an Ohio rule requiring a person alleging medical negligence to include a medical professional’s affidavit stating the claim has merit cannot be applied to a federal prisoner’s legal action against the federal Bureau of Prisons (BOP) under the Federal Tort Claims Act (FTCA).

While incarcerated at a BOP prison in Ohio, Dennis Gallivan had surgery. It did not go well, and he filed a lawsuit in federal court under the FTCA claiming medical negligence. He did not include a medical professional’s affidavit – a so-called merit affidavit -- stating that the claim had merit. Citing Ohio Civil Rule 10(D)(2), which requires a merit affidavit, the district court dismissed the case.

Aided by Washington, D.C., attorneys William T. Marks, Melina M, Meneguin Layerenza, and Aaron J, Marks, Gallivan appealed. The Sixth Circuit noted that, if the Federal Rules of Civil Procedure do not require such a merit affidavit and those rules are valid under the Constitution and Rules Enabling Act, then federal rules, not Ohio Rule 10(D)(2), must be applied.

The Federal Rules do not require an affidavit to state a medical negligence claim. Rule 8(a) sets out the pleading requirements, which only include a short and plain jurisdictional statement, a short and plain statement of the claim, and an explanation of the relief sought. “By listing these elements, Rule 8 implicitly ‘excludes other requirements that must be satisfied for a complaint to state a claim for relief.’” Likewise, Rule 12 requires only an allegation of facts “sufficient to state a claim to relief that is plausible on its face.” The few instances when heightened pleading is required are listed in Rule 9, but medical negligence is not among them.

The Federal rules are presumptively valid under the Constitution and Rules Enabling Act. There is no challenge to their validity in this case.

In Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393 (2010), the U.S. Supreme Court held that the key issue when state and federal rules conflict is whether the federal rule answers the question in dispute. In this case it did, setting out precise pleading requirements. Therefore, the district court erred when it dismissed the complaint for failing to include the merits affidavit. The district court’s judgment was vacated and the case remanded for further proceedings. See: Gallivan v. United States, 943 F.3d 214 (6th Cir. 2019).  

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Related legal case

Gallivan v. United States