Plumb v. Lavery & NH Cardiology

2007 DNH 066

• Court: District Court, D. New Hampshire
• Decided: May 14, 2007
• Docket: 06-CV-278-JD
• Status: Published

Opinion

Plumb v . Lavery & NH Cardiology 06-CV-278-JD 5/14/07 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Robert and Priscilla Plumb

v. Civil N o . 06-cv-278-JD Opinion N o . 2007 DNH 066 Robert Lavery and New Hampshire Cardiology Consultants, P.C.

O R D E R

Robert and Priscilla Plumb brought claims of medical

malpractice, "informed consent," and loss of consortium against

Dr. Robert Lavery and his employer, New Hampshire Cardiology

Consultants, P.C., alleging that the treatment of Robert's atrial

fibrillation was below the standard of care and caused stomach

bleeding and permanent lung damage. The defendants move to have

the case referred to a screening panel pursuant to New Hampshire

Revised Statutes Annotated ("RSA") chapter 519-B. The Plumbs

object, arguing that the screening panel system does not apply in

federal court under Erie R.R. C o . v . Tompkins, 304 U.S. 64

(1938), because it is procedural, rather than substantive, and

that use of the panel here would interfere with the federal jury

system.

Before reaching the merits of the parties' arguments, the

court notes that certain matters are not in dispute in this case. First, the parties agree that New Hampshire law governs the

plaintiffs' claims. Second, the parties do not dispute that RSA

chapter 519-B is mandatory for all medical malpractice cases

brought under New Hampshire law. Third, neither the plaintiffs

nor the defendants asked to have RSA 519-B interpreted by the New

Hampshire Supreme Court.

A. Erie Doctrine

"A federal court sitting in diversity jurisdiction is

obliged to apply federal procedural law and state substantive

law." Alternative Sys. Concepts, Inc. v . Synopsys, Inc., 374 F.3d

2 3 , 32 (1st Cir. 2004) (citing Hanna v . Plumer, 380 U.S. 4 6 0 , 465

(1965); Erie, 304 U.S. at 7 8 ) . Distinguishing between

substantive and procedural law can be challenging. Correia v .

Fitzgerald, 354 F.3d 4 7 , 53 (1st Cir. 2003). With respect to the

question of a state law mandating review of medical negligence

claims by screening panels, however, the First Circuit has

determined that the Massachusetts screening panel statute

provides a substantive rule that must be applied in federal

court. Feinstein v . Mass. Gen. Hosp., 643 F.2d 8 8 0 , 885-87 (1st

Cir. 1981).

To avoid the holding in Feinstein, the plaintiffs assert

that language in the New Hampshire screening panel statute states

2 that the system is procedural. RSA 519-B:9 provides mandatory

instructions to be given to a jury considering panel findings to

put the findings into an appropriate context. Subsection I(a)

requires the jury to be instructed that "[t]he panel process is a

preliminary procedural step through which malpractice claims

proceed." That statement, however, does not establish that the New Hampshire screening panel process is procedural under the

Erie doctrine. Guar. Trust C o . of N.Y. v . York, 326 U.S. 9 9 , 109

(1945).

The plaintiffs assert that "[t]he Massachusetts Screening

Panel statute is very different from New Hampshire's." P l . Mem.

at 3 . The plaintiffs provide no explanation or argument to show

that material differences exist between the Massachusetts and New

Hampshire statutes. Therefore, in the absence of developed

argumentation, the court will not guess at what the plaintiffs may have intended on this issue. See Universal Commc'n Sys.,

Inc. v . Lycos, Inc., 478 F.3d 413, 421 n.4 (1st Cir. 2007).

Relying on Wheeler v . Shoemaker, 78 F.R.D. 218 (D.R.I.

1978), the plaintiffs argue that requiring the New Hampshire

screening panel process here would deprive this court of

jurisdiction and would undermine the federal jury system. The

court in Wheeler considered those issues, along with others, and

concluded that "federal interests in controlling both the

3 character, quality and cost of the adjudicatory process in

federal court" outweighed state interests in referring federal

medical liability cases to Rhode Island's medical liability

mediation panel. Id. at 229. Consequently, the court decided

not to refer the case to the Rhode Island mediation panel. Id.

at 220. The plaintiffs in Feinstein raised the same issues in

objecting to referral of their medical malpractice case to the

Massachusetts screening panel. On appeal, the First Circuit

considered each of the Wheeler issues and rejected them as

grounds to avoid the Massachusetts screening panel. Feinstein,

643 F.2d at 887-89. The First Circuit's decision in Feinstein is

binding precedent in this court unless it was overturned by a

subsequent decision of the Supreme Court or the circuit. See,

e.g., Eulitt ex rel. Eulitt v . M e . Dep't of Educ., 386 F.3d 3 4 4 , 349 (1st Cir. 2004). The plaintiffs point to no such changes in

the law. As is noted above, although the plaintiffs assert that

the Massachusetts statute analyzed in Feinstein is "very

different from New Hampshire's," they provide nothing to

demonstrate that any differences in the two statutes are material

to the analysis in Feinstein.

Therefore, based on Feinstein, this case will be referred to

a screening panel, pursuant to RSA 519-B. To that end, twenty

4 days from the date of this order, counsel for the defendants

shall contact counsel for the plaintiffs as required under RSA

519-B:4,II. Thereafter, the parties shall follow the procedures

provided in RSA 519-B:4 for panel proceedings.

Conclusion

For the foregoing reasons, the defendants' motion to refer

the case to a screening panel under New Hampshire law (document

n o . 8 ) is granted. The parties shall initiate that proceeding as

provided in this order. The case will be stayed pending the

resolution of the proceedings before the screening panel.

SO ORDERED.

(JJoseph )Joseph A. A. DiClerico, DiClerico, Ji__ Ji__ .. United States District Judge

May 14, 2007

cc: Michael A. Pignatelli, Esquire Gary B. Richardson, Esquire