Day on Torts
Judge Aleta Trauger has ruled that, given a recent decision of the Sixth Circuit Court of Appeals looking at Michigan law, “it is clear that the presuit notice requirement set forth in Tenn. Code Ann. § 29-26-121(a)(1) and the certificate of good faith requirement in Tenn. Code Ann. § 29-26-122(a) conflict with the Federal Rules of Civil Procedure. As such, they must give way to the Federal Rules and, therefore, do not apply to health care liability claims filed in federal court.”
The Sixth Circuit ruled in Albright v. Christensen, 24 F.4th 1039 (6th Cir. 2022) that “held that requirements under Michigan state law that an affidavit-of-merit signed by a health care professional be filed with a medical malpractice complaint and that presuit notice be provided to the defendant in a medical malpractice action did not apply to a diversity lawsuit filed in federal court. Albright, 24 F.4th at 1045–49.”
This is how Judge Trauger summed up the Sixth Circuit’s opinion in Albright:
the court found that the state statutes conflicted with the Federal Rules of Civil Procedure and, therefore, did not apply in federal court. Regarding the affidavit of merit, the court reiterated and reaffirmed its prior holding in Gallivan v. United States, 943 F.3d 291 (6th Cir. 2019), which addressed the “almost-identical Ohio affidavit-of-merit requirement,” stating:
In Gallivan, we explained that Rules 8(a), 9, and 12(b)(6) [of the Federal Rules of Civil Procedure] do not require that plaintiffs file affidavits with their complaints in order to state a claim and held that these Federal Rules exclude other requirements that must be satisfied for a complaint to state a claim…. We reach the same conclusion in the present case. Our decision is bolstered by Rule 11, which states outright that “a pleading need not be verified or accompanied by an affidavit.” Fed. R. Civ. P. 11(a). Because § 600.2912d collides with Rules 8(a), 9, 11, and 12(b)(6), we hold that Michigan’s affidavit-of-merit requirement does not apply in federal court.