Whose Law is it Anyway? The Erie Doctrine, State Law Affidavits of Merit, and the Federal Tort Claims Act

Abstract

In the wake of the tort reform movement of the 1970s, more than half of the states aimed to curb frivolous medical malpractice claims. Many states accomplished that goal by enacting statutes imposing pleading requirements on medical malpractice cases. The statutes require plaintiffs to file with their complaints an affidavit from a medical expert stating that the claim has merit. But because the Federal Rules of Civil Procedure do not impose a similar requirement, there is an ostensible conflict between the state law the Federal Rules when these claims are brought in federal court. Federal courts have been inconsistent in their analysis of this conflict. Some conclude that the state laws are substantive and should therefore apply in actions in federal court. Others conclude that there is an irreconcilable conflict between the state law and federal law, and thus federal law must prevail. And when the basis of a federal court’s jurisdiction is the Federal Tort Claims Act, another wrinkle emerges: should a court engage in an Erie analysis at all? This article addresses two distinct issues. First, it addresses whether a federal court exercising federal question jurisdiction should engage in an Erie analysis to determine whether a federal law should trump a conflicting state law. Second, it addresses whether there is a conflict between the state laws and the Federal Rules of Civil Procedure. The article concludes that a federal court should engage in an Erie analysis, and that the state statutes conflict with the Federal Rules and thus should not apply in an action brought in federal court. The article further offers a middle ground whereby the states’ substantive goal of dealing with frivolous medical malpractice claims expeditiously can, in some circumstances, still be vindicated.