Substance v.

Procedure Problem
Federal Courts—Class 11 In-Class Problem
Priscilla Patient was involved in a serious car accident while traveling on
U.S. I-95 in New Jersey and was transported to Newark Regional Medical Center
for treatment. While there, she was in the care of Dr. Debra Dennis, who performed
surgery to remove Priscilla’s spleen and repair a tear in her large intestine.
Priscilla suffered serious complications during the surgery, which required the
further removal of parts of both her large and small intestines.
Priscilla, who is a Florida citizen, brought a state-law medical malpractice
claim against Dr. Dennis, a citizen of New Jersey, in the U.S. District Court for the
District of New Jersey. She alleged diversity jurisdiction under 28 U.S.C. § 1332.
Under New Jersey law, to pursue a malpractice claim against certain
licensed professionals, including doctors, the plaintiff must file an expert affidavit to
support her claim—called an “Affidavit of Merit”—within 60 days of the defendant’s
answer. See N.J. Stat. Ann. §§ 2A:53A-26 et seq. The affidavit must state “that
there exists a reasonable probability that the care, skill or knowledge exercised or
exhibited in the treatment, practice or work that is the subject of the complaint, fell
outside acceptable professional or occupational standards or treatment practices.”
N.J. Stat. Ann. § 2A:53A–27. The Affidavit of Merit requirement was enacted “as
part of a tort reform package ‘designed to strike a fair balance between preserving a
person’s right to sue and controlling nuisance suits.’” Natale v. Camden Cnty. Corr.
Facility, 318 F.3d 575, 579 (3d Cir. 2003) (quoting Palanque v. Lambert–Woolley,
774 A.2d 501, 505 (N.J. 2001)).
If an Affidavit of Merit is not filed within 60 days after the filing of an
answer, the consequences are severe. Absent a showing of four limited exceptions
(not relevant here), the failure to file the affidavit “shall be deemed a failure to state
a cause of action.” N.J. Stat. Ann. § 2A:53A-29.
Priscilla failed to file an Affidavit of Merit within 60 days after the filing of
Dr. Dennis’s answer, and Dr. Dennis moved to dismiss the complaint on that basis.
In opposition, Priscilla argued that the New Jersey requirement conflicted with the
federal pleading standard as set forth in Rule 8 of the Federal Rules of Civil
Procedure, the construction of that Rule in Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009), and Rule 12, which governs dismissal for failure to state a claim.
Section X:
You are the Court that resolves the motion. Is this governed by Hanna Part
1 or Hanna Part 2? (That is, is there a federal rule on point?) If it’s Hanna Part 2,
how is this a requirement that might influence forum choice or lead to the
inequitable administration of laws? Are there countervailing federal policy
considerations? Does Byrd apply?
Section Y:
You represent Dr. Dennis. Strategically, what’s your lead argument—and
why? What’s your fallback position? What’s your biggest worry and/or weakness?

Section Z:
You represent Priscilla. What arguments can you make to defeat Dr.
Dennis’s motion? What is your strongest argument—and why?