Ancilla Veronica Gittens as Personal Representative of the Estate of Leopold Gittens v. Jacqueline P. Butler as of the Estate of Frank Bishop, M.D.

• Court: Superior Court of The Virgin Islands
• Decided: December 29, 2022
• Docket: SX-05-CV-566
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST CROIX ANCILLA VERONICA GITTENS as Personal Representative of the Estate of LEOPOLD GITTENS CIVIL NO SK 2005 CV 00566 Plaintiff, ACTION FOR MALPRACTICE AND vs DAMAGES

JACQUELINE P BLTLER as Executrix of 2022 VI SUPER 100 the Estate of FRANK BISHOP M D Defendant

MEMORANDUM OPINION AND ORDER

1] 1 THIS MATTER is before the Court on Defendant 3 Rule 12(b)(1) Motion to Dismiss and Motion for an Order to Show Cause ( Motion to Dismiss”), filed June 28, 2022, and Defendant’s Motion for Summary Judgment and Motion for an Order to Show Cause (‘ Motion for Summary Judgment ) filed July 1 2022 ' By Order entered August 5 2022 the Court instructed Plaintiff to provide evidence of compliance with the jurisdictional prerequisites of the Medical Malpractice Act 27 V I C § l66i(b)( MMA ) Plaintifffiled her Response on August 16 2022 and Defendant filed a Reply on September 13 2022 The Court heard oral argument at the September 22 2022 status conference For the reasons set forth below Defendant 5 Motion to Dismiss and Motion for Summary Judgment will be denied

BACKGROUND

1| 2 This case stems from the alleged medical malpractice of Dr Frank Bishop, now deceased, against Leopold Gittens, also now deceased 2 The Complaint alleges that Plaintiff, who had prostate cancer, was prescribed injections of Zolardex by his physician on the U S mainland, and that Dr Bishop, his physician on St Croix, failed to provide him with the prescribed medication, despite charging him for doing so First Amended Complaint, 11] 5 12 (Mar 3, 2009)

1 Both Motions seek the same relief dismissal with prejudice, on the same grounds, and both are similar in form and substance Citation in this Opinion to one Motion and not to the other, or to both, is without legal significance Leopold Gittens died January 18, 2009 The Superior Court appointed Ancilla Veronica Gittens as Personal Representative of the Estate of Leopold Gittens on February 20, 2009 Plaintiff‘s original Verified Complaint, filed September 8, 2005, was amended by First Amended Complaint deemed filed April I 2009 by Order of that date reflecting that appointment but including no other substantive changes Gtttens v Bishop SX 2005 CV 00566 Memorandum Opinion and Order 2022 VI SUPER 100 Page 2 of l 1

1] 3 By sua sponte Order of May 21, 2007,3 Plaintiff was ordered to submit proof of compliance with the requirements of 27 V I C § 166i, confirming that he had provided a copy of the proposed complaint to the Medical Malpractice Action Review Committee ( Committee”) prior to filing this action 4 On June 5 2007 Plaintiff filed his Response, providing a copy of counsel’s letter dated May 18, 2005 addressed to the Committee ‘ VIA U S MAIL,” enclosing a copy of the proposed Verified Complaint ‘

1] 4 Defendant did not respond or object to Plaintiff’s filing as defective until filing the present Motions in June and July 2022, 15 years after Plaintiff provided proof of statutory compliance in response to the trial court’s Order Defendant argues that in those 15 years, Plaintiff has failed to

3 In pertinent part, the Order stated Pursuant to territorial law, the Superior Court cannot assume jurisdiction over a malpractice action until a proposed complaint is filed with the Office of the Commissioner of Health and reviewed by a Medical Malpractice Action Review Committee See V I Code Ann tit 27, § 166i (2006), MISSGI‘ v Backer, 46 V l 15 (Terr Ct 2004) Under subsection c of Section 166i, a proposed complaint shall be deemed filed when a copy is delivered or mailed by registered or certified mail to the Commissioner of Health V I Code Ann tit 27 § 166i(c) (2006) Nothing within the file demonstrates that Plaintiff complied with the requirements of Title 27 Section 166i(b) and (c) of the Virgin Islands Code Accordingly, it is hereby ORDERED that Plaintiff submit proof of filing with the Department of Health the proposed complaint in this matter within Thirty (30) Days, failing which the Court shall issue an Order to Show Cause and impose the appropriate sanctions Order May 2| 2007 (Doc No 35) 4 The relevant requirements of the statute are set forth in subsections (b) and (c), as follows (b) No action against a health care provider may be commenced in court before the claimant‘s proposed complaint has been filed with the Committee and the Committee has received the expert opinion as required by this section provided that if said opinion is not received by the Committee within ninety days from the date the complaint was filed with the Committee, the claimant may commence his action against the health care provider in court, Provided further That the commencement of the court action shall not prevent the Committee from obtaining the expert opinion (0) The proposed complaint shall be deemed filed when a copy is delivered or mailed by registered or certified mail to the Commissioner of Health, who shall immediately forward a copy to each health care provider named as a defendant at his last and usual place ofresidence or his office and said health care provider may file a proposed answer to the complaint to the committee within twenty (20) days The proposed answer shall be deemed filed when a copy is delivered or mailed by registered or certified mail to the Commissioner of Health who shall immediately forward a copy to the plaintiff 5 The proposed Verified Complaint sent to the Committee, dated May 18, 2005, contains only Plaintiff‘s allegations of medical malpractice against Defendant Response to Court Order Dated May 21 2007 (Jun 5 2007) (Doc No 42) The Verified Complaint filed with the Superior Court to initiate the instant action contains the allegation of malpractice against Defendant, as well as four other counts breach of contract, fraud, negligent infliction of emotional distress and punitive damages Verified Complaint(Sept 8,2005) (Doc No l) The First Amended Complaint, which includes the appointment ofAncilla Veronica Gittens as Personal Representative is currently the operative Complaint, including for purposes of the Motions currently before the Court First Amended Complaint (Mar 3, 2009) (Doc No 49) Gtttens v Bishop SX 2005 CV 00566 Memorandum Opinion and Order 2022 VI SUPER 100 Page 3 of 11

‘ meet his burden to prove subject matterjurisdiction in fact, his filings definitively show that he failed to submit a proposed complaint via certified or registered mail as required ” Motion for Summary Judgment, at 3 Defendant claims that because the prefiling requirements of the MMA are jurisdictional and thus non waivable, and because the Complaint was “(1) not sent via certified mail, and was instead sent by ‘U S MAIL’, and (2) is unaccompanied by any certified mail receipts of mailing or delivery to the necessary parties as required under the Act, ’ this matter must be dismissed Id at 3, 6

15 On August 5. 2022, in light of the issues raised by Defendant’s Motions, the Court again ordered Plaintiff to provide evidence of compliance with 27 V I C § 166i, “by proof of mailing of the proposed complaint to the [Committee] and delivery to and/or receipt by the Office of the Commissioner on behalf of the [Committee] ” Order (Aug 1, 2022) In response, Plaintiff provided affidavits of two employees of Plaintiff‘s counsel, both of whom have been so employed since before this case was filed Response to Court 5 August 5, 2022 Order Regarding Jurisdiction (“Response Re Jurisdiction )(Aug 16, 2022)

16 Diane Rawlins, who has been employed by Plaintiff’s counsel since January 2002, was the legal secretary assigned to this case in 2005 Affirmation of Diane Rawlins ( Rawlins Affirmation ) 111 2 4 (Aug 16 2022) Rawlins attested that she personally drafted the letter to the Committee and ‘ per established procedure, [] placed the signed letter in the tray labeled ‘outgoing mail’ so that Michael Williams, the copy clerk/messenger can then follow the following procedure scan the letter into our electronic filing system, place the letter in an envelope, place a stamp on it then take it to [USPS] [d at 1|1| 5 6 Rawlins further attested that if a letter sent regular U S mail could not be delivered, [USPS] has always, since 2002 when I began working with Rohn’s firm, sent the letter back to our office with ‘Return to Sender’ and an explanation of why the letter was not delivered ’ Id at 1| 7 Lastly, Rawlins provided two examples of such returned mail as Exhibits B and C, and attested that USPS never returned the letter she drafted to the Committee as undelivered Id at 111] 8 9

1| 7 Michael Williams, who has been employed by Plaintiff’s counsel since September 2003, was the copy clerk/messenger at the time this case was filed and continues to hold that position to this day Affirmation of Michael Williams (“Williams Affirmation ), 111] 2, 4 (Aug 16, 2022) Williams attested that “any letter placed in the tray labeled ‘outgoing mail’ would be personally Omens v Bishop SX 2005 CV 00566 Memorandum Opinion and Order 2022 VI SUPER 100 Page 4 of l l

processed by me based on the mailing instructions contained in the letter ” Id at 11 6 Williams also attested that letters which could not be delivered would be returned by USPS, and ‘ it would be my job to scan the envelope with the USPS return explanation into the firm’s electronic filing system ’ Id at 1111 9 10 Williams also provided examples of returned mail as exhibits, and attested that USPS never returned the letter he mailed to the Committee, and a “Return to Sender” envelope regarding the letter was never sent back to counsel’s office 1d at 1111 ll 13

LEGAL STANDARD

11 8 Defendant seeks dismissal pursuant to Virgin Islands Rule of Civil Procedure 12(h)(l) and summary judgment pursuant to Rule 56, arguing that the Superior Court lacks subject matter jurisdiction over this action ‘ Where a statute establishes a specific procedure for invoking the Superior Court’s Jurisdiction the failure to follow that procedure deprives the Superior Court of its jurisdiction ” Public Emples Rel Bd v Umted Indus Workers Seafarers Int I Union, 56 V I 429 434 (V I 2012) (quoting In re Guardlanshtp of szth 54 V I 517 526 (VI 2010)) The plaintiff “always bears the burden of convincing the court, by a preponderance of the evidence, that the court has jurisdiction Lynch v Juan F Lats Hosp & Med Ctr 2018 V I LEXIS 25 at *2 (V I Super Feb 20, 2018) (internal citations omitted) Lack of subject matter jurisdiction can be raised at any time throughout a judicial proceeding, and “if the court determines at any time that it lacks subject matterjurisdiction, the court must dismiss the action ’ VI R Civ P 12(h)(3) (emphasis added)

11 9 However, even the violation of a specific procedure for invoking the Superior Court’s jurisdiction” does not end the inquiry See Public Emples Rel Bd , 56 V l at 434 “As the United States Supreme Court has [] reiterated, a statute is ‘jurisdictional’ if ‘it governs a court’s adjudicatory capacity, that is, its subject matter or personal jurisdiction,’ while a statute is claims processing if it ‘seeks to promote the orderly progress of litigation by requiring that the parties take certain procedural steps at certain specified times ’ but it does not intend to limit a court’s authority to heara case FtrstAm Dev Group/Cartb LLC v WestLBAG 55 V I 594 611 (VI 2011) (quoting Henderson v Shmsekl 562 U S 428 429 (2011) When analyzing whether a statute is jurisdictional or claims processing, courts consider legislative intent szera Moreno v Gov tofthe Virgin Islands 61 V I 279 300 (V I 2014) (intemal citations omitted) Importantly Glttens v Bishop SX 2005 CV 00566 Memorandum Opinion and Order 2022 VI SUPER 100 Page 5 of 11

there must be a ‘clear’ sign of the Legislature’s intent to make a statutory requirement Jurisdictional Id (citing Brooks v Gov t ofthe Virgin Islands 58 V I 417 426 (V I 2013))

1} 10 Title 27 V I C § 166i, which established the Committee, requires that before a malpractice claimant is permitted to file an action in the Superior Court, they must first file their complaint with the Committee, and “the proposed complaint shall be deemed filed when a copy is delivered or mailed by registered or certified mail to the Commissioner of Health ” 27 V I C § 166i(b) (c) (emphasis added)

1] 11 The Supreme Court of the Virgin Islands has held that the pre filing requirements of the MMA are non waivable jurisdictional conditions that must be satisfied in order to vest the Superior Court with subject matter jurisdiction to hear an individual’s medical malpractice claims Brady v Cmtron 55 VI 802 820 (VI 2011) In Brady the plaintiff argued that her failure to wait the statutorily required 90 days afier filing her complaint with the Committee to file with the Superior Court was a “technical deficiency ” Id at 812 In holding that the plaintiff’s failure was a Jurisdictional defect, the Supreme Court drew a distinction between Jurisdictional requirements and claims processing rules, the latter which “can be equitably tolled or even waived Id at 815 818 see Bryan v Gov tofthe Virgin Islands 56Vl 451 455 56 (VI 2012) (“a claims processing rule is a procedural requirement that ‘is not jurisdictional [and] as with other judicially created doctrines, is subject to waiver”) (quoting Vazquez v Vazquez, 54 V I 485, 489 n 1 (V I 2010) see also Kontrick v Ryan 540 U S 443 456 (2004) (a claims processing rule can be “forfeited if the party asserting the rule waits too long to raise the point )

DISCUSSION

1] 12 Here, unlike in Brady, Plaintiff’s claim is not properly barred for lack of subject matter jurisdiction While the statutory prerequisite of notice to the Committee is jurisdictional, the procedural method by which that notice is accomplished, including the means by which the complaint is delivered, is claims processing in that it simply ‘ seeks to promote the orderly progress of litigation by requiring that the parties take certain procedural steps at certain Specified times Guerra v Consol Rail Corp , 936 F 3d 124, 132 (3d Cir 2019) (internal citations omitted) The purpose of the MMA, which is to eliminate claims lacking merit, demonstrates that the Legislature did not intend the method of delivery to be a jurisdictional bar to the judiciary, which Gittens v Bishop SX 2005 CV 00566 Memorandum Opinion and Order 2022 VI SUPER 100 Page 6 of 1 1

prefers to reach decisions on the merits, rather than “dismissals on mere technicalities ’ Romano v V] Gov t Hosps & Health Faczlzties Corp 2017 V I LEXIS 180 at *4 (V I Super Dec 6 2017) (internal citations omitted) I Plaintiff’s Complaint ts Deemed Ftied Pursuant to the Mailbox Rule

1] 13 Plaintiff concedes that the proposed complaint was sent to the Committee via regular U S mail rather than registered or certified mail Defendant thus argues that Plaintiff’s failure to use registered or certified mail is a failure of compliance with the Court’s 2007 Order and a failure of compliance with the pre filing requirements of 27 V I C § 166i, mandating dismissal Motion to Dismiss, at 1

1| 14 The Court finds, however, that Plaintiff has provided enough evidence to raise a presumption of delivery of the proposed complaint to the Committee, by the application of the common law doctrine of the ‘ mailbox rule That rule provides that if a mailing “properly directed is proved to have been either put into the post office or delivered to the postman, it is presumed that it reached its destination at the regular time, and was received by the person to whom it was addressed ” Lupyan v Cormthzan Colleges Inc , 761 F 3d 314, 319 (3d Cir 2014) (citing Rosenthal v Walker 111 U S 185 193 (1884)) To determine whether to apply the mailbox rule in the absence of binding precedent, the Court must conduct a Banks analysis to decide whether its application represents the soundest rule for the Virgin Islands If so, we must determine how the rule affects the issue whether Plaintiff‘s counsel’s May 18, 2005 letter to the Committee was delivered” in compliance with the pre filing requirements of the MMA

1] 15 When confronted with an issue of common law that has yet to be addressed by the Virgin Islands Supreme Court, the Court conducts a Banks analysis to determine the applicable law See Banks v Int 1 Rental & Leasmg Corp , 55 V I 967 (V I 2011) This analysis requires balancing of three non dispositive factors “(1) whether any Virgin Islands courts have previously adopted a particular rule; (2) the position taken by a majority ofcourts from other jurisdictions; and (3) most importantly, which approach represents the soundest rule for the Virgin Islands ” Thomas v V 1 Bd of Land Use Appeals 60 VI 579 591 (VI 2014) (internal citations and quotation marks omitted) GltthS v sthop SX 2005 CV 00566 Memorandum Opinion and Order 2022 VI SUPER 100 Page 7 of 11

T 16 As to the first factor, there is only one Virgin Islands case that mentions the mailbox rule as defined above 6 See AA Supplies ofSt Thomas v Sugar Bay Club & Resort Corp , 2019 V I LEXIS 167 at *19 (VI Super Nov 21 2019) (citing Lupyan 761 F 3d at 319) It states The mailbox rule sanctions the formation or completion of a contractual undertaking upon the act of sending where the use of the mail is authorized by the other party as the medium for response In fact, a presumption of receipt derives fiom the longstanding common law mailbox rule Under its precepts, if mail is properly directed [and] proved to have been either put into the post office or delivered to the postman, it is presumed that it reached its destination at the regular time and was received by the person to whom it was addressed Id (internal citations and quotations omitted)

f 17 The foregoing constitutes the entire discussion of the mailbox rule in that case, which included no Banks analysis See Gov t ofthe Virgin Islands v Connor, 60 V I 597, 603 (V I 2014) (the first step in the Banks analysis “requires the Superior Court to ascertain whether any other local courts have considered the issue and rendered any reasoned decisions upon which litigants have grown to rely”) Still, although the case does not expressly adopt the mailbox rule and despite the lack of Virgin Islands caselaw, AA Supplzes relies upon and implicitly adopts the rule as one of longstanding common law 2019 VI LEXIS 167 at *19

f 18 Regarding the second factor, both state and federal courts outside the Virgin Islands have accepted the mailbox rule as a well established principle of common law 7 It was first described by the Supreme Court of the United States in Rosenthal v Walker in 1884 1 11 U S at 193 It has also been adopted by the RESTATEMENT (SECOND) OF CONTRAC rs § 63 (generally acceptance of a contract is effective when mailed, regardless of whether it reaches the offeror) According to Lexis, this proposition taken from Rosenthal has been cited 156 times, only three of which were to distinguish the rule 8 Citing Rosenthal, the Supreme Court later held that “the rule is well settled

6 Two Virgin Islands Supreme Court cases mention the prisoner s mailbox rule Virgin Islands Rule of Appellate Procedure 5(c) which provides that a notice of appeal filed by an inmate confined in an institution is timely filed if it is deposited in the institution’s internal mail system on or before the last day for filing ”’ Montgomery v Vngm Grand Villas St John Owners Ass n 71 V I 1119 1127 n 5 (V I 20191529 also szth 1. Turnbull 54 V I 369 377 n 6 (V I 2010) See Bryan v Fawkes 61 VI 201 224 (VI 2014) (internal citation omitted) ( Although the tenets of statutory construction applied to federal statutes by the U S Supreme Court may be highly persuasive, they do not bind [the Virgin Islands Supreme] Court in its interpretation of statutes passed by the Virgin lslands Legislature ) 3 See Pondexter 1 Allegheny Count) Haas Auth 2012 U S Dist LEXIS 142400 (W D P A 2012) (requnring that plaintiff allege more than just a presumption of delivery for the court to hear a motion for reconsideration) Lavallee v Med I Sols LLC 2017 U S Dist LEXIS 162508 (S D 1nd 2017) (presumption inapplicable to web based email Gtttens v Bishop SX 2005 CV 00566 Memorandum Opinion and Order 2022 V1 SUPER 100 Page 8 of 11

that proof that a letter properly directed was placed in a post office, creates a presumption that it reached its destination in usual time and was actually received by the person to whom it was addressed Hagner v United States, 285 U S 427, 430 (1932) According to Lexis, this proposition taken from Hagner has been cited 197 times, only three of which were to distinguish the rule 9

1] l9 Lastly, and most importantly, the Court finds that the mailbox rule represents the soundest rule for the Virgin Islands as a commonsense principle of common law It allows courts to infer by a preponderance of the evidence where no direct evidence is available due to circumstances including but not limited to the passage of time, natural disaster, or human error that mail sent in its normal course has been received

1| 20 In Lynch, the court noted that ‘ in order to plead a plausible claim under the MMA, [the plaintiff] was required to plead facts demonstrating the date she timely filed a proposed complaint 2018 V I LEXIS at *4 (citations omitted) (brackets in original) The Third Circuit has held that in the absence of actual proof of delivery, a sworn statement by an affiant with mpersonal knowledge’ of the procedures in place at the time ofthe mazlmg” further bolsters the presumption under the mailbox rule Lupyan 761 F 3d at 320 (citing Kyhn v Shmsekz 716 F 3d 572 574 (3d Cir 2013)) (emphasis added)

1| 21 Plaintiff here has presented facts upon which the Court presumes the timely delivery of notice to the Committee by proposed complaint Specifically, Plaintiff provides two affidavits, both from individuals employed by Plaintiff‘s counsel at the time of the filing of this action See Response Re Jurisdiction; Rawlins Affirmation; Williams Affirmation Both affiants certify that the May 18, 2005 letter to the Committee with attached proposed Verified Complaint was deposited in the mail pursuant to the office’s normal practice and routine Both affiants further stated that if a letter sent via regular mail was undeliverable, the United States Post Office would

attachments) Payan v Aramark Mgmt Semis L P , 495 F 3d 1119 (9th Cir 2007) (mailbox rule presumption applies only where receipt is in diSpute) 9 See Eddington v United States DOD 35 F 4th 833 (DC Cir 2002) (the mailbox rule presumption is inapplicable to FOIA requests) Kempfv State I81 Ohio App 3d 623 (Ohio Ct App 2009) (weighing the presumption against the state 8 exercise of governmental fimctions such as administering the prison system); Chrysler Motors Corp v Schnezderman, 940 F 2d 91 l, 914 (3d Cir 199 l) (distinguishing between “service of papers among parties and the filing of papers with the court ) Omens v Bishop SX 2005 CV 00566 Memorandum Opinion and Order 2022 VI SUPER 100 Page 9 of 1 1

return it with a Return to Sender stamp/label that said ‘undeliverable’ and provide the reason that the letter was not delivered Rawlins Affimiation, 1[ 7; Williams Affirmation, 1} 9 Both timber attested that no such returned mail was received regarding the May 18, 2005 letter to the Committee Rawlins Affirmation, 11 9, Williams Affirmation, 111 12 13

1[ 22 Defendant’s proffered evidence falls short ofrebutting the presumption raised by Plaintiff’s affirmations that the proposed complaint was delivered to the Committee with counsel s May 18, 2005 letter Lupyan, 761 F 3d at 320 (“the presumption of receipt ‘imposes the burden of production on the party against whom it is directed”) (internal citations omitted) Defendant offers only an eight sentence affidavit from the current custodian of records for the Committee, stating that it is the Committee’s ‘ ordinary practice” to keep all records of proposed medical malpractice complaints, and stating that “there is no record that the Committee or the Commissioner received any proposed complaint from Leopold Gittens, the estate of Leopold Gittens, or their counsel prior to the commencement of this action ” Reply, Affidavit of Raphael Joseph, 1“} 5 8

1| 23 There are myriad reasons why the present custodian may have been unable in 2022 to locate the record of Plaintiff‘s proposed complaint mailed to the Committee 17 years earlier Unlike Plaintiff‘s affiants, Defendant’s affiant records custodian has not stated that he was at the Committee in 2005 or otherwise affirmatively stated that the letter was never received Defendant s evidence that “there is no record that the Committee or the Commissioner received any proposed complaint” prior to the filing of this action fails to rebut Plaintiff‘s circumstantial proof of timely mailing on May 18, 2005 and presumed delivery and receipt of the proposed complaint by the Committee See Defendant 5 Reply in Support of Her Rule 12(b)(1) Motion to Dismiss and Motion for an Order to Show Cause, 2 (Aug 1, 2022)

1, 24 Defendant’s counsel suggested at oral argument that even if the Committee had timely received delivery of Plaintiffs proposed complaint, the Court would nonetheless still be divested ofjurisdiction because the complaint was delivered by regular, rather than registered or certified U S mail Such an argument borders on the nonsensical, promoting form over substance to an absurd degree, and renders a nullity of the purpose of the notice requirement to avoid needless litigation on matters that should be readily resolved or dismissed Defendant’s urging that the Court elevate form over substance is dismissed out of hand 12/29/2022 IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS District of St. Croix

LEOPOLD GITTENS, Case Number: SX-2005-CV-00566 Plaintiff Action: Damages v.

FRANK BISHOP, Defendant.

NOTICE of ENTRY of Memorandum Opinion and Order To: Lee J. Rohn, Esq. Robert L. King, Esq.

Please take notice that on December 29, 2022 a(n) Memorandum Opinion and Order dated December 29, 2022 was/were entered by the Clerk in the above-titled matter.

Dated: December 29, 2022 Tamara Charles Clerk of the Court By:

Iris Cintron Court Clerk Supervisor