NOT RECOMMENDED FOR PUBLICATION File Name: 24a0338n.06
No. 23-5965
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
CORRENIA J. PROFITT, individually and as ) FILED Administratrix of the Estate of Corbin Raie Hill; ) Aug 01, 2024 SHAWN D. HILL, ) KELLY L. STEPHENS, Clerk ) Plaintiffs-Appellants, ) ) ON APPEAL FROM THE v. ) UNITED STATES DISTRICT ) COURT FOR THE EASTERN HIGHLANDS HOSPITAL CORPORATION, et al., ) DISTRICT OF KENTUCKY Defendants, ) ) OPINION UNITED STATES OF AMERICA, ) ) Defendant-Appellee. )
Before: KETHLEDGE, THAPAR, and DAVIS, Circuit Judges.
KETHLEDGE, J., delivered the opinion of the court in which THAPAR and DAVIS, JJ., joined. THAPAR, J. (pp. 13–15), delivered a separate concurring opinion.
KETHLEDGE, Circuit Judge. Correnia J. Profitt received an emergency caesarean with
only local anesthesia. Her newborn son, Corbin Raie Hill, died two days later. Profitt and Corbin’s
father, Shawn Hill, sued the hospital and the United States, alleging claims of medical negligence.
After a bench trial, the district court found that Profitt’s obstetrician was not negligent. We affirm.
I.
A.
On January 2, 2017, plaintiff Correnia Profitt was 38 weeks pregnant with her son, Corbin
Raie Hill. Profitt received prenatal care at Physicians for Women and Families, a federally funded No. 23-5965, Profitt, et al., v. Highlands Hosp. Corp., et al.
medical center in Floyd County, Kentucky. Profitt’s midwife at Physicians for Women, Krissy
Marcum, had previously designated Profitt’s pregnancy as “high risk” because Profitt used
methadone.
At around 5:00 p.m. on January 2, Profitt arrived at the Highlands Regional Medical Center
complaining of severe abdominal pain, decreased fetal movement, and potential fluid leakage.
Two nurses, Nurse Tiffany Burke and Nurse Andrea Hopson, treated Profitt. Burke first performed
a vaginal examination on Profitt to confirm that she was not going into labor, checked the softness
of Profitt’s abdomen between contractions, and placed an external fetal monitor on Profitt to track
Corbin’s fetal heart rate. She also regularly asked Profitt about her symptoms. Burke’s notes
indicate that Profitt told Burke she had no vaginal bleeding or fluid leakage.
At 6:25 p.m., Burke called Dr. Sammie Gibson, Highlands’ on-call obstetrician, to report
Profitt’s symptoms. Gibson worked for Physicians for Women but had never met Profitt. Gibson
told Burke to continue monitoring Profitt for “a couple hours.”
At 7:00 p.m., Hopson took over monitoring Profitt. About an hour later, according to
Hopson’s notes, Profitt said she was no longer feeling any abdominal pain. Hopson called Gibson
at 9:00 p.m. and told her that Profitt’s cervix had not changed, that Corbin had a normal heart rate
(130 beats per minute), and that she had noticed no fluid leakage or blood during Profitt’s most
recent vaginal examination. Hopson also relayed that Corbin was so active that she had needed to
move the fetal monitor several times. Gibson reviewed Profitt’s fetal heart strips, which tracked
Corbin’s heart rate, from home. After speaking with Hopson, Gibson told her to discharge Profitt.
The hospital staff discharged Profitt at 9:28 p.m.
Sometime after Profitt left the hospital, she experienced a concealed placental abruption,
which occurs when the placenta separates from the uterine wall before the baby is born. Placental
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abruptions block the transportation of oxygen through the placenta, preventing the baby from
receiving oxygen.
Profitt returned to the hospital just a few hours later, at 2:32 a.m. She again complained of
abdominal pain, fluid leakage, and no fetal movement. A nurse noted that Profitt’s abdomen was
“rock hard.” At 2:53 a.m., Corbin’s heart rate was in the 90s and decelerating, which meant that
he was oxygen deprived and at risk of brain damage or death.
Hopson called Gibson at 2:58 a.m. to report Profitt’s symptoms. Gibson concluded that
Profitt was likely experiencing a placental abruption and ordered the nurses to prepare Profitt for
an emergency caesarean. Gibson also told Hopson to contact an anesthesia provider and the on-
call pediatrician. The nursing staff contacted a Certified Registered Nurse Anesthetist (CRNA),
Brenda Watson, to assist. Staff also attempted to reach the on-call anesthesiologist, Dr. Raymond
Monaco, but he did not answer the phone.
Gibson then began driving to the hospital. On the drive, she called the hospital again to
tell the staff to call Monaco; Gibson wanted both the CRNA and the anesthesiologist present for
the caesarean.
Gibson’s operating notes say that she “arrived” at approximately 3:20 a.m., though the
parties dispute whether that means she arrived at the hospital or the operating room. She ran from
the parking lot to the operating room, at which point she realized that neither Watson nor Monaco
were present. Corbin’s heart rate was 74 beats per minute when Gibson arrived—which meant
that he was suffocating and beginning to experience brain damage.
Once in the operating room, Gibson rolled Profitt on her side to find Corbin’s heart rate,
but it was no longer detectable. Gibson then rolled Profitt onto her back and told Profitt that she
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needed to perform an emergency caesarean with only local anesthesia. Profitt told Gibson to “do
whatever you have to do to save my baby.”
Gibson asked Hopson to get lidocaine, a local anesthetic. As Hopson went to remove the
lidocaine from the Pyxis machine, which stores medication, Gibson squirted antiseptic on her
hands and put on gloves and a gown. By the time Gibson stepped back to the operating table,
Hopson had retrieved the lidocaine. Gibson then injected Profitt with lidocaine and, without
waiting for it to become fully effective, began the caesarean. According to Gibson’s notes, Corbin
was delivered at approximately 3:25 a.m. Gibson said that Corbin was delivered within one minute
of starting the caesarean; Hopson said that Corbin was delivered “just a few minutes” after Gibson
arrived in the operating room.
At birth, Corbin had no heartbeat, so hospital staff immediately began chest compressions
on him. Once CRNA Watson arrived at 3:30 a.m., Gibson directed her to care for Corbin. Watson
intubated Corbin at 3:32 a.m. The pediatrician, Dr. Leslieann Dotson, arrived a few moments after
Watson arrived.
After Corbin was intubated, Watson asked if Gibson wanted Watson to give Profitt
something to “put her to s[l]eep or give her some Pitocin” (a synthetic oxytocin). Gibson said
“no.” Gibson implored the staff to once again call Monaco, the anesthesiologist on call, since
Watson was still tending to Corbin. During this conversation, Profitt was conscious and without
pain relief. Monaco finally arrived at the hospital around 4:00 a.m., at which point he administered
anesthesia and Gibson completed the caesarean.
Corbin’s doctors later determined that Corbin’s right lung had collapsed, which the
plaintiffs allege was the result of improper intubation. Corbin was airlifted to the University of
Kentucky Medical Center, where he died two days later.
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B.
In 2019, Profitt and Corbin’s father, Shawn Hill, sued the United States, alleging claims of
medical negligence under the Federally Supported Health Centers Assistance Act and the Federal
Tort Claims Act. 42 U.S.C. §§ 233, et seq.; 28 U.S.C. § 2671. Those Acts make the United States
liable for the medical negligence of its agents or employees. All parties agree that Gibson, who
received federal funding, was an agent or employee of the United States. The plaintiffs also
brought claims against the hospital and Monaco, the on-call anesthesiologist who failed to show
up until 4:00 a.m. The parties settled those claims.
At the start of litigation, the district court set a scheduling order that gave the parties a
deadline of October 1, 2019, to file any motions to join additional parties or amend the pleadings.
The parties then proceeded to discovery. The plaintiffs took ten depositions, as permitted by
Federal Rule of Civil Procedure 30, and then moved to depose two more witnesses—one of whom
was Dotson, Corbin’s pediatrician. The district court granted the plaintiffs’ motion to depose
Dotson, and the plaintiffs did so on April 8, 2021. The parties completed all fact discovery by
January 29, 2021.
On June 18, 2021—two months after Dotson’s deposition and twenty months after the
deadline for amendments—the plaintiffs moved to amend their complaint, alleging claims against
the United States based on Dotson’s alleged negligence. The district court denied the motion,
reasoning that the plaintiffs knew about Dotson’s involvement in Corbin’s care well before the
October 1, 2019 amendment deadline and thus had not been diligent in pursuing their claim.
In June 2022, the district court held a bench trial. Over the course of four days, the court
heard testimony from nine witnesses, including two expert witnesses: Dr. Ronald Jacobs for the
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plaintiffs and Dr. Mary D’Alton for the government. The district court also considered the
deposition transcripts of eleven medical providers, including two more plaintiffs’ experts.
After hearing all the evidence, the district court issued a 28-page opinion rejecting each of
the plaintiffs’ negligence claims. At the outset, the district court found that the plaintiffs’ expert,
Dr. Jacobs, had lacked “a firm understanding of the concept of the standard of care” during his
testimony and that he had sometimes conflated his personal standards with the more objective
standard of care. The district court concluded that the government’s expert, Dr. D’Alton, by
contrast, “displayed an understanding of the standard of care.”
The court next concluded that Gibson had not breached the standard of care by discharging
Profitt on January 2 without personally examining her. Specifically, the court found that Profitt’s
symptoms had resolved before Gibson discharged her; that Gibson had no reason to think Profitt
was at risk for a placental abruption; and that Profitt had not displayed any symptoms of a placental
abruption during her first visit. Next, the district court concluded that Gibson had not breached
the standard of care in performing the emergency caesarean. Specifically, the court made findings
as to the sequence of events between Gibson’s arrival and Corbin’s birth, and held that the
plaintiffs lacked evidence that Gibson had “wasted any time” in performing the procedure or
otherwise deviated from the standard of care. Finally, the district court rejected the plaintiffs’
post-trial theory that Gibson had breached the standard of care by waiting for Monaco to arrive
before administering anesthesia; to the contrary, the court found, the only person who could have
administered anesthesia—Watson—was tending to Corbin until Monaco finally arrived at 4 a.m.
This appeal followed.
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II.
The plaintiffs argue that the district court should have granted them leave to amend the
complaint after the scheduling deadline expired. We review that decision for an abuse of
discretion. Leary v. Daeschner, 349 F.3d 888, 904 (6th Cir. 2003).
The district court set an October 1, 2019, deadline by which parties could move to amend
their pleadings. Profitt filed her motion to amend on June 18, 2021, “long after” that deadline,
“which means the court’s discretion to allow [the amendment] was limited by Civil Rule 16(b).”
In re Nat’l Prescription Opiate Litig., 956 F.3d 838, 843-44 (6th Cir. 2020). That rule requires
the district court to issue a scheduling order that sets a deadline for amending pleadings and thus
“ensure[s] that at some point both the parties and the pleadings will be fixed.” Leary, 349 F.3d at
906 (internal quotation marks omitted). When a party misses that deadline, the court may grant
leave to amend only if the party shows “good cause” for its failure to make the amendments before
the deadline. See Fed. R. Civ. P. 16(b)(4). That requires parties to show that “despite their
diligence they could not meet the original deadline.” Leary, 349 F.3d at 907.
Here, to show “good cause,” the plaintiffs argue that Dotson’s deposition revealed new
facts regarding her involvement in Corbin’s care, as well as evidence that Dotson breached the
standard of care. But a party cannot show diligence when it is “aware of the basis of [a] claim for
many months” and fails to pursue that claim. Id. at 908. And here the medical records—which
the plaintiffs possessed well before October 1, 2019—repeatedly identified Dotson as Corbin’s
pediatrician, attending doctor, and “infant care provider.” For example, Gibson’s notes direct the
reader to see “Dr. Dotson’s documentation concerning the infant, Apgars, resuscitation, etc.”
Corbin’s medical records, in turn, note that Dotson was intimately involved in Corbin’s care after
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she arrived at the hospital at 3:30 a.m. Staff placed Corbin’s umbilical catheter “per Dr. Dotson.”
Staff gave Corbin “epi” (epinephrine) and “NS” (saline) “per Dr. Dotson.” Corbin was placed
under a radiant warmer “per Dr. Dotson,” though the warmer was later “turned off per Dr.
[D]otson’s order.” The “STAT CXR” (chest X-Ray) to check the “placement of ET tube” was
ordered “per Dr. Dotson.” Profitt’s proposed amendments to her pleadings concern Dotson’s
“allegedly negligent supervision of Corbin’s care.” Order at 8, R. 258, PageID 3557. Given the
information plainly available in those records, she could have developed her claim against Dotson
much sooner than she did. Profitt therefore cannot show that her claim of Dotson’s negligence
“was unavailable prior to [Dotson’s] deposition.” Garza v. Lansing Sch. Dist., 972 F.3d 853, 879
(6th Cir. 2020).
The plaintiffs counter that whether Dotson deviated from the standard of care is a “complex
medical question” that a layperson could not reasonably assess “absent the assistance of a qualified
medical expert.” But most claims of medical malpractice are complicated—and Rule 16(b) applies
to them nonetheless. The plaintiffs also say that the “medical records were so vague and scarce in
details” that even their medical expert could not be certain that Dotson committed medical
malpractice before reviewing Dotson’s deposition. But pleading standards have never required
certainty on behalf of litigants. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The district court
had ample grounds for its conclusion that the plaintiffs could have asserted a claim based on
Dotson’s actions before the deadline.
Nor do we have any basis to reject the court’s conclusion that an untimely amendment
would have prejudiced the defendants, given that (as the court found) the amendment would have
required “re-opening discovery” and “extensive further legal briefing.” Order at 10, R. 258,
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PageID 3559. The district court did not abuse its discretion in denying plaintiffs’ untimely motion
to amend.
Despite that denial, the plaintiffs moved for partial summary judgment against the United
States based on Dotson’s alleged negligence. We review the district court’s denial of that motion
de novo. Messing v. Provident Life & Accident Ins. Co., 48 F.4th 670, 682 (6th Cir. 2022).
The plaintiffs assert that, when a defendant receives “sufficient notice and opportunity to
defend against a theory or claim not pleaded in the complaint, the theory or claim may be
considered on summary judgment.” But the United States had no opportunity to defend against
the claim regarding Dotson. Plaintiffs raised it after the close of fact discovery, denying the United
States the ability to “investigate [it] when [it] conducted its own discovery.” Tucker v. Union of
Needletrades, Indus. & Textile Emps., 407 F.3d 784, 788 (6th Cir. 2005) (cleaned up). Moreover,
though the plaintiffs say that the United States had “ample time and opportunity to retain an
opinion witness to address Dotson’s conduct,” the United States had no reason to do so—since the
court had correctly denied the plaintiffs’ motion to amend their complaint to include that claim.
The plaintiffs sought summary judgment on a claim that was not part of the case; the district court
was right to deny it.
C.
The plaintiffs also challenge certain of the district court’s findings and conclusions after its
four-day bench trial regarding their claims that Dr. Gibson was negligent. We give the district
court’s factual findings “considerable deference” and review them only for clear error. Atkins v.
Parker, 972 F.3d 734, 739 (6th Cir. 2020).
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Kentucky law governs this action. Ward v. United States, 838 F.2d 182, 184 (6th Cir.
1988). Here, under Kentucky law, the plaintiffs needed to prove (among other things) that Gibson
violated the relevant standard of care. Reams v. Stutler, 642 S.W.2d 586, 588 (Ky. 1982).
The plaintiffs first challenge the court’s conclusion that Gibson complied with the standard
of care when, on January 2, she relied on two nurses’ reports to decide whether to discharge Profitt.
The court found that Corbin’s fetal-monitoring strips—whose data Gibson reviewed from home—
were “normal” and “did not indicate any problem” that would require Gibson to go to the hospital;
that the two nurses who treated Profitt, Burke and Hopson, accurately relayed Profitt’s symptoms
and statements to Gibson; and that Profitt’s symptoms (abdominal pain and reduced fetal
movement) had resolved before Gibson discharged her.
Plaintiffs dispute none of these facts, but instead point to Jacobs’ testimony that relying on
information conveyed by “inexperienced” nurses—like, they say, Burke and Hopson—violates the
standard of care. As the district court observed, however, Jacobs “conceded that he does not
personally inquire about the experience of the nurses on a delivery team.” And D’Alton testified
that relying on a nurse’s statement for patient information does not violate the standard of care—
to the contrary, doctors do it “all the time” because nurses are their “eyes and ears.” Moreover,
the district court’s decision to credit D’Alton over Jacobs was not clearly erroneous, given that
Jacobs sometimes confused his own standards with the standard of care. As Jacobs himself
admitted, he “confused sometimes being furious with falling below the standard of care.” The
district court’s conclusion that Dr. Gibson did not violate the standard of care by relying on the
nurses’ reports is thus “plausible in light of the record viewed in its entirety.” Atkins, 972 F.3d at
739.
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The plaintiffs next challenge the court’s conclusion that Gibson complied with the standard
of care when performing Profitt’s caesarean. Both experts agreed that when dealing with an
oxygen-deprived baby like Corbin, “every second counts.” The district court, for its part, found
that Gibson pulled into the hospital parking lot and raced up two flights of steps to the operating
room, where she realized that no anesthesia provider had arrived. Gibson tried to detect Corbin’s
heartbeat but found nothing, so she told Profitt that that an emergency caesarean—without
anesthesia—was necessary. Once she obtained Profitt’s consent, she sent the nurse to get lidocaine
as Gibson washed and dressed for surgery, administered the lidocaine when the nurse returned,
and immediately proceeded with the emergency caesarean. Thus, the court concluded, Gibson had
not “wasted any time” before completing the caesarean.
The plaintiffs contend that Gibson wasted five minutes waiting for an anesthesia provider.
As evidence, they point to an order log for the lidocaine, which they say shows that Gibson did
not order lidocaine until 3:25 a.m. (after arriving at 3:20 a.m.). But the district court found that
Gibson was busily engaged in an unbroken “sequence” of specific events from the time of her
arrival in the “OR” to Corbin’s delivery minutes later. Moreover, nearly all relevant evidence
indicates that Corbin was delivered at approximately 3:25 a.m., a “few minutes” after Gibson
arrived at the hospital.
The plaintiffs likewise contend that Gibson should not have taken time to administer
lidocaine to Profitt before the caesarean. But Jacobs (the plaintiffs’ expert) testified that he had
never performed a caesarean without anesthesia and that doing so would increase the time the
procedure takes. The district court did not clearly err in finding that Dr. Gibson wasted no time in
performing the caesarean.
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Finally, the plaintiffs challenge the district court’s finding that Gibson provided Profitt with
pain relief as soon as Gibson was able to do so. Specifically, the court found that Gibson repeatedly
tried to summon Dr. Monaco before and after the caesarean. Moreover, the court found, the record
was “clear that Dr. Gibson observed that CRNA Watson was attending to Corbin after his birth
until the arrival of Dr. Monaco.” True, Watson testified in her deposition that she had offered to
administer anesthesia to Profitt after Corbin was delivered. But we have no basis to reject the
district court’s conclusion that “Dr. Gibson needed to prioritize the resuscitation of Corbin.”
Dr. Gibson, Correnia Profitt, and Corbin alike were dealt a dreadful hand in the OR during
the early morning of January 3, 2017. The district court concluded that the plaintiffs had not
proved that Gibson violated the standard of care in addressing that situation. We have no lawful
basis to set aside that conclusion.
* * *
The district court’s judgment is affirmed.
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THAPAR, Circuit Judge, concurring. I agree with the majority’s thoughtful opinion. I
write separately to flag a Seventh Amendment concern that I’ve raised elsewhere. See Bray v. Bon
Secours Mercy Health, Inc., 97 F.4th 403, 418–21 (6th Cir. 2024) (Thapar, J., concurring).
Correnia Profitt originally sued private doctors and health centers in state court. There, she
had a right to try her medical-malpractice suit in front of a Kentucky jury. See Ky. Const. § 7.
And the Seventh Amendment ensured that her jury-trial right remained intact when Highlands
removed her case to federal court. U.S. Const. amend. VII. Yet Profitt received a bench trial.
Why? Because the U.S. government substituted itself as the defendant under the Federally
Supported Health Centers Assistance Act (FSHCAA) and the Federal Tort Claims Act (FTCA).
Together, these statutes preclude jury trials and prevent Profitt from seeking remedies against the
private parties she initially sued. See 42 U.S.C. § 233(a); 28 U.S.C. §§ 2402, 2679(b)(1).
How can this be squared with the Seventh Amendment? Historically, the answer was
sovereign immunity. See McElrath v. United States, 102 U.S. 426, 440 (1880); Wilson v. Big
Sandy Health Care, Inc., 576 F.3d 329, 333 (6th Cir. 2009). After all, a plaintiff had no right to
sue the government. Thus, she isn’t guaranteed a jury trial when the government consents to being
sued. See Lehman v. Nakshian, 453 U.S. 156, 161 (1981). This makes sense when you have a
government agent—like a VA doctor—who is clearly from the government. But here, Profitt went
to a private hospital to see a private doctor. Absent FSHCAA’s unique statutory scheme, the
doctor wouldn’t be considered a government employee, so Profitt would have a right to try her
medical-malpractice case before a jury.
The Supreme Court recently reminded us that when it comes to the Seventh Amendment,
“what matters is the substance of the suit, not where it is brought, who brings it, or how it is
labeled.” SEC v. Jarkesy, 144 S. Ct. 2117, 2136 (2024). The Seventh Amendment applies to all
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claims that are “legal in nature.” Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 53 (1989); see
Jarkesy, 144 S. Ct. at 2128 (“The Amendment . . . embraces all suits which are not of equity or
admiralty jurisdiction.”) (quoting Parsons v. Bedford, Breedlove & Robeson, 28 U.S. 433, 447
(1830)). The cause of action’s nature and remedy determine whether a suit is legal in nature, and
thus, whether the jury trial right attaches. See Jarkesy, 144 S. Ct. at 2129. That means litigants
bringing claims that resemble common-law actions and seeking legal remedies are entitled to a
jury.
Under Jarkesy’s framework, it looks like the Seventh Amendment should apply here.
Profitt’s tort claims are the paradigmatic example of a “Suit at common law.” U.S. Const. amend.
VII. The FSHCAA and FTCA don’t create public rights—the acts don’t fashion “a new cause of
action . . . unknown to the common law.” Id. at 2137 (quoting Atlas Roofing Co., Inc. v.
Occupational Safety & Health Rev. Comm’n, 430 U.S. 442, 461 (1977)). Rather, the FTCA
expressly “borrow[s] its cause of action” from Kentucky’s medical-malpractice law. Id.; 28 U.S.C.
§ 1346(b)(1). And the founding generation litigated medical malpractice in common-law courts
before a jury. Bray, 97 F.4th at 421 (Thapar, J., concurring); see, e.g., Cross v. Guthery, 2 Root
90, 91 (Conn. Super. Ct. 1794). Moreover, Profitt seeks money damages, the “prototypical
common law remedy.” Jarkesy, 144 S. Ct. at 2129; see also Wooddell v. Int’l Bhd. of Elec.
Workers, Loc. 71, 502 U.S. 93, 98-99 (1991) (“A personal injury action is of course a prototypical
example of an action at law, to which the Seventh Amendment applies.”). Yet the FTCA denied
Profitt a jury trial.
The plaintiffs didn’t raise this issue, so we need not resolve it today. But the FSHCAA and
FTCA pose grave Seventh Amendment issues. “The Constitution deals with substance, not
shadows.” Cummings v. Missouri, 71 U.S. (4. Wall) 277, 325 (1867). And Jarkesy instructed us
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to look at the substance of the claims, not who’s on either side of the “v.,” to determine whether
the Seventh Amendment applies. Although Profitt is suing the government, the substance of her
claim is Kentucky medical-malpractice law. Future plaintiffs would be wise to raise their Seventh
Amendment rights.
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