OPINION & ORDER

[Resolving Doc. No. 8]

JAMES S. GWIN, District Judge.

In this action brought under the Federal Tort Claims Act (FTCA), Plaintiff Gerald Thompson sues Defendant United States of America for medical malpractice. Thompson says that Department of Veterans Affairs employees failed to properly treat his right leg, which eventually required amputation.1 The United States now moves to dismiss the complaint.2 It says that Thompson failed to attach an affidavit of merit to his complaint, as required by Rule 10(D)(2) of the Ohio Rules of Civil Procedure. For the following reasons, the motion is DENIED.

I.

In 2005, in response to the Ohio Legislature's passage of so-called "tort reform," the Ohio Supreme Court amended Rule 10 of the Ohio Rules of Civil Procedure.3 Ohio Rule 10, which governs the forms of civil pleadings, now included a requirement that "a complaint that contains a medical claim" shall include an affidavit of merit provided by an expert witness.4 The affiant must aver that she has reviewed the relevant medical records, is familiar with the standard of care, and believes that the named defendants breached that standard.5

The Ohio General Assembly required an affidavit of merit as one of many measures enacted by the Ohio Legislature to reduce medical malpractice actions. In 2004, through House Bill 215, the Ohio Legislature: excepted statements of apology or remorse from malpractice proceedings; made it easier for defendants to exit lawsuits by filing affidavits of noninvolvement; restricted a plaintiff's testifying expert to a person in the same or substantially similar specialty as the defendant; expedited the discovery process in medical liability claims; and required the filing of an affidavit of merit, or "a certificate of expert review," with a medical malpractice complaint.6 Governor Bob Taft, upon signing House Bill 215 into law, said that "[s]igning these bills is a good start to stabilizing the malpractice insurance market and keeping good doctors here in Ohio, but it is only a start."7 Lest the purpose of the rule be misunderstood, the Supreme Court of Ohio has pointed out that

Similar rules have sprung up around the country, often encouraged by federal policies.9

II.

The federal government's liability under the FTCA "is determined in accordance with the law of the state where the event giving rise to liability occurred."10 Under this analysis, this Court applies state substantive law and federal procedural law.11 A law is substantive if it would "significantly affect the result of a litigation for a federal court to disregard a law of a State that would be controlling in an action upon the same claim by the same parties in a State court."12 When attempting to answer this question, the Court must consider "the twin aims of the Erie rule: discouragement of forum-shopping and avoidance of inequitable administration of the laws."13

The United States says that Ohio Rule 10(D)(2) is substantive and applies in these proceedings. Therefore, the United States says, Plaintiff Thompson's failure to file an affidavit of merit requires dismissal of his complaint. The United States's argument puts the cart before the horse. As discussed below, the substantive/procedural distinction is a secondary question; the Court must first resolve whether there are applicable federal rules that occupy the field in question.

A. Hanna and its progeny

Perhaps the best place to start is with the Supreme Court's first foray into the effects of the Erie rule on the Federal Rules of Civil Procedure. In Hanna v. Plumer, 380 U.S. 460 (1965), the Supreme Court held that a federal court sitting in diversity "must determine whether a Federal Rule directly `collides' with the state law it is being urged to apply."14 If such a collision exists, the Federal Rule must be applied so long as it is constitutional and within the scope of the Rules Enabling Act.15 It is only after this analysis, and a finding of harmony as opposed to collision, that the federal court should concern itself with whether the state rule in question is a substantive one.16

So, first, this Court must consider whether Ohio's affidavit of merit rule directly conflicts with one of the Federal Rules of Civil Procedure. The Supreme Court has repeatedly addressed what constitutes a "direct collision," though the terrain is a bit rocky.17

Most recently, the Supreme Court found that Federal Rule 23, the rule governing class actions, conflicted with New York's rule barring class actions for certain statutory penalties.18 Justice Scalia, writing for three other Justices (and with Justice Stevens concurring in the judgment), found that Rule 23:

And, importantly for our purposes, the Court rejected the argument that the New York rule addressed an antecedent issue; that is, that the state rule concerned which types of claims are eligible for class treatment, while the federal rule concerned the certification process for those eligible claims. Justice Scalia found "the line between eligibility and certifiability" to be "entirely artificial."20

Thus, post-Shady Grove, a federal rule that allows an action stops additional state rules that would give a different result. Or, as one commentator says, "because the Court viewed Rule 23 as setting forth sufficient, rather than necessary, criteria for bringing class actions, state laws imposing further duties conflicted with Rule 23 and would not be enforced in federal court."21

Shady Grove added to the previous analysis of direct collision, which includes allowing for use of the state rule if both the state and federal rules "can exist side by side . . . each controlling its own intended sphere of coverage without conflict."22 Importantly, in Ricoh, the Supreme Court expanded the "direct collision" framework to permit use of the federal rule if that rule is "sufficiently broad to control the issue before the Court."23

Against this backdrop, the Court now considers whether relevant Federal Rules of Civil Procedure are so broad.

B. The Federal Rules' Pleading Requirements

The majority of courts have found state affidavit of merit statutes applicable in federal proceedings.24 But, those decisions from this district conduct an Erie analysis and rest on a finding that the Ohio rule is substantive—and thus presume that there is no collision with a federal enactment. The only other court in this district that spoke to the issue found Ohio Rule 10(D)(2) was not incorporated into the federal action, because the rule "states a procedural rule of law that does not apply in this case as a result of a direct conflict with the Federal Civil Rules."25 The United States Court of Appeals for the Sixth Circuit has yet to address the issue.

For the following reasons, the Court finds that the Ohio affidavit of merit requirement conflicts with a number of Federal Rules that occupy their respective spaces. As such, an Erie analysis is unnecessary.

First, the Ohio Rule conflicts with Federal Rules 8 and 9. Under Rule 8, a pleading "that states a claim for relief" must contain three things: a statement of the court's jurisdiction, a "short and plain statement" showing entitlement to relief, and a demand.26 Notice that the plain text of the rule's introductory clause envisions that these three elements are all that is necessary to constitute a "claim for relief." The rule's structure suggests that no more is needed, especially not evidentiary material like that required by the Ohio Rule. The simplicity of Rule 8 is its beauty; "[t]here are no magic words, no requirement that a case fit any particular model or design, and no mandate for specificity of facts, claims, or evidence."27 What Defendant would have this Court do is read the introductory clause out of Rule 8, and allow Rule 8 to set out only necessary, but not sufficient, elements of a cause of action.

But federal enactments are presumed to directly collide with state rules when the federal rule is "sufficiently broad to control the issue."28 Rules 8 and 9 lay out a comprehensive scheme of which types of cases are subject to a notice pleading requirement, and which are subject to a heightened pleading standard.29 And Rule 9, which limits itself to specific types of cases, is the exception to the rule. That is, that all civil litigation is subject to the requirements of Rule 8, except for those specific situations—allegations of fraud or mistake, conditions precedent, special damages, or admiralty claims—that are subject to Rule 9.30 Defendant's position makes Plaintiff's medical malpractice claim subject to neither Rule 8 (because that rule requires less) nor Rule 9 (because that rule requires more).

The tension between the federal pleading rules and Ohio's affidavit of merit requirement mirrors the Shady Grove conflict. And though much of that opinion is fractured, the opinion is clear that New York's limitation on certain types of class actions does not curb Federal Rule 23's certification process. So too here: the federal pleading rules tell a litigant how to plead to survive a motion to dismiss for failing to state a claim. Plaintiff Thompson followed those rules. That his case would be subject to a different outcome in state court is of no relevance at this stage of the inquiry.31

Second, adherence to the Ohio Rule subverts Federal Rule 11(a), which says that "[u]nless a rule or statute specifically states otherwise, a pleading need not be verified or accompanied by an affidavit."32 Now, of course, if the words "rule or statute" refer to both state and federal enactments, Defendant's argument would be stronger. But, Rule 11's advisory committee notes strongly suggest that the words refer to federal enactments alone. To wit: "This rule expressly continues any statute which requires a pleading to be verified or accompanied by an affidavit, such as [28 U.S.C. § 381], [28 U.S.C. 762], [28 U.S.C. § 829]." Courts disagree on the ambit of this rule, though "every case that has considered this question in the context of certificate of merit statutes has found that the exception does include state statutes," while "virtually every other case that has considered the question in other contexts has concludes that state statutes are excluded."33 Judge Easterbrook, writing for Judges Posner and Ripple, analyzed the language of Rule 11(a) as follows:

Moreover, Ohio's rule—a rule that, at its base, seeks to limit frivolous complaints—infringes on the representations element of Federal Rule 11(b). That is, Federal Rule 11 already seeks to ensure that litigants are filing meritorious lawsuits, supported by evidence, and for proper purposes.35 Ohio's rule upsets a finely crafted and comprehensive scheme.36

Finally, the Court notes that the United States makes no argument that any of the rules discussed above are improperly enacted. Upon a finding of a direct collision between a federal enactment and a state rule, this Court "must decide whether application of the federal rule represents a valid exercise of the rule making authority bestowed on [the Supreme Court] by the Rules Enabling Act."37 Should the federal rule "abridge, enlarge or modify and substantive right," it is presumed invalid.38 The Defendant does not make this argument and the Court need not engage in an analysis of whether these rules are consonant with the Rules Enabling Act. Regardless, the Court notes that the rules at issue have been found to be duly enacted.39

III.

Ohio Rule 10(D)(2) seeks to impose additional burdens on medical malpractice plaintiffs that are not required by the applicable federal rules. But, Federal Rules 8, 9, and 11 are "sufficiently broad,"40 so as to control the issue before this Court and preclude the applicability of the Ohio requirement. The United States' motion to dismiss is DENIED.

IT IS SO ORDERED.