Wilkins v. Alice Peck Day Mem Hosp

2009 DNH 173

• Court: District Court, D. New Hampshire
• Decided: November 9, 2009
• Docket: CV-09-114-PB
• Status: Published

Opinion

Wilkins v. Alice Peck Day Mem Hosp CV-09-114-PB 11/09/09

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Mary Jane Wilkins, et a l .

v. Case No 09-cv-114-PB Opinion No. 2009 DNH 173 Alice Peck Day Memorial Hospital

O R D E R

Mary Jane and Walter Wilkins have filed a motion to both

strike Alice Peck Day Memorial Hospital's fourth affirmative

defense and declare that N.H. Rev. Stat. Ann. § 519-B, the

state's law requiring screening panels for medical malpractice

claims, is inapplicable in this case.

As a preliminary matter, I note that the hospital's fourth

affirmative defense is merely an assertion that the case must be

reviewed by a medical malpractice screening panel. This is not

an affirmative defense. Accordingly, plaintiffs' request to

strike the defendant's fourth affirmative defense is granted.

Plaintiffs' additional request for a declaration that

Chapter 519-B is inapplicable in this case is meritless to the

extent that it seeks to bar a referral to a medical malpractice

screening panel and premature to the extent that it seeks to bar

the court from admitting the panel's findings into evidence. In Feinstein v. Mass. Gen. Hosp., 643 F.2d 880, 882-83 (1st

Cir. 1981), the First Circuit ruled that the district court was

required by the Erie doctrine to refer a medical malpractice

action to a screening panel pursuant to Mass. Gen. Laws Ch. 231,

§ 60B. Plaintiffs have failed to demonstrate that Chapter 519-B

differs materially from section 60B, nor do plaintiffs have a

credible claim that a referral for screening violates plaintiffs'

Seventh Amendment right to a jury trial. Thus, I am obligated to

refer this case for screening pursuant to Chapter 519-B. See

Plumb v. Lavery, 2 007 DNH 0 66; Aumand v. Dartmouth-Hitchcock Med.

Ctr., 2007 DNH 095.

Plaintiffs also request a ruling barring any finding by the

panel from being admitted into evidence. This request is

premature. In postponing consideration of this matter, I do not

mean to leave the plaintiffs with false hope. The First Circuit

has rejected a similar challenge based on Erie grounds and has

expressed skepticism as to the viability of a challenge based on

the Seventh Amendment. See Daigle v. Maine Med. Ctr., 14 F.3d

684, 688 n.3, 689-90 (1st Cir. 1994). Moreover, challenges based

on Byrd v. Blue Ridge Rural Elec. Co-op., 356 U.S. 525 (1958) and

the Seventh Amendment have been uniformly unsuccessful, at least

at the circuit court level. See Gronne v. Abrams, 793 F.2d 74,

78 (2d Cir. 1976); Seoane v. Ortho Pharm., Inc., 660 F.2d 146,

- 2 - 148-49 (5th Cir. 1981); DiAntonio v. Northampton-Accomack Mem.

Hosp., 628 F.2d 287, 290-91 (4th Cir. 1980); Edelson v.

Soricelli, 610 F.2d 131, 136-37 (3d Cir. 1979); Hines v. Elkhart

Gen. Hosp., 603 F.2d 646, 647-49 (7th Cir. 1979).

Plaintiffs' motion to strike (Doc. No. 10) is granted in

part and denied in part. Defendant's fourth affirmative defense

is stricken. The case shall be referred for screening pursuant

to Chapter 519-B. In all other respects, the motion is denied

without prejudice.

SO ORDERED.

/s/Paul Barbadoro___________ Paul Barbadoro United States District Judge November 9, 200 9

cc: W. Kirk Abbott, Jr., Esg. Michael F. Hanley, Esg.

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