Calvin Uretsky v. United States

NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________ No. 22-3016 ____________ CALVIN S. URETSKY, Appellant v. UNITED STATES OF AMERICA ____________ On Appeal from the United States District Court for the District of New Jersey (D.C. No. 2-20-cv-16086) District Judge: Honorable Evelyn Padin ____________ Argued: July 14, 2023 Before: PHIPPS, MONTGOMERY-REEVES, and McKEE, Circuit Judges.

(Filed: July 15, 2024) ___________

Daniel S. Bretzius [ARGUED] DAN B LAW PLLC South Main Street Concord, NH 03301 Counsel for Appellant Catherine M. Padhi [ARGUED] Mark B. Stern UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION Pennsylvania Avenue NW Washington, DC 20530 Angela Juneau OFFICE OF UNITED STATES ATTORNEY Broad Street Newark, NJ 07102 J. Andrew Ruymann OFFICE OF UNITED STATES ATTORNEY East State Street Suite 430 Trenton, NJ 08608 Counsel for Appellee ___________ OPINION* ___________ PHIPPS, Circuit Judge.

As a tort reform measure, New Jersey requires an affidavit of merit to bring a medical malpractice claim. See N.J. Stat. § 2A:53-A-27. Such an affidavit must be from a licensed medical professional, must attest that a reasonable probability exists that the medical care received was deficient, and must be provided within 60 days of the answer in a civil case. See id.; see also Meehan v. Antonellis, 141 A.3d 1162, 1169 (N.J. 2016) (explaining that the purpose of the affidavit of merit is “to weed out frivolous claims against licensed professionals early in the litigation process” (citing Ferreira v. Rancocas Orthopedic Assocs., 836 A.2d 779, 780 (N.J. 2003))); Benjamin Grossberg, Comment, Uniformity, Federalism, and Tort Reform: The Erie Implications of Medical Malpractice Certificate of Merit Statutes, 159 U. Pa. L. Rev. 217, 225 (2010) (reporting similar affidavit-of-merit requirements in about half of the states).

At the federal level, the Federal Tort Claims Act, ubiquitously abbreviated as the ‘FTCA,’ allows tort claims, including medical malpractice claims, against the United States. Under the terms of that statute, the United States is “liable . . . in the same manner and to the same extent as a private individual under like circumstances.” 28 U.S.C. § 2674.

In contrast with New Jersey law, the FTCA does not require an affidavit of merit to sue for medical malpractice.

In this case, a pro se veteran, Calvin Uretsky, invoked the jurisdiction of the United States District Court for the District of New Jersey to bring four claims against the United States under the FTCA related to the medical treatment he received at a Veterans Affairs Hospital in New Jersey in 2016.1 Uretsky did not file an affidavit of merit in connection with his claims.

On the premise that an affidavit of merit was required for Uretsky’s claims to proceed, the Government moved to dismiss his claims. After converting the Government’s motion to one for summary judgment, see Fed. R. Civ. P. 12(d), the District Court granted it and rejected all of Uretsky’s claims because he had not submitted an affidavit of merit.

Uretsky v. United States, 2022 WL 4466635, at *8 (D.N.J. Sept. 26, 2022).

Through a timely notice of appeal, Uretsky invoked this Court’s appellate jurisdiction over final decisions. See 28 U.S.C. § 1291. He now argues that the basis for the judgment against him – the failure to submit an affidavit of merit – is invalid.

While this appeal was pending, this Court resolved a similar challenge to Pennsylvania’s certificate-of-merit requirement. See Pa. R. Civ. P. 1042.3(a)(1) (requiring a certificate of merit from a medical professional as a prerequisite to a medical malpractice claim). That case, Wilson v. United States, 79 F.4th 312 (3d Cir. 2023), held that Pennsylvania’s certificate-of-merit requirement did not apply to claims brought in federal court against the United States under the FTCA. Id. at 316. That was so because “[t]he FTCA’s incorporation of state law is limited in scope and reaches only a subset of potentially relevant state legal rules” – only those “govern[ing] liability in tort.” Id. at 317 (emphasis added). And by reasoning that a certificate of merit “does not determine liability,” Wilson concluded that a requirement for a certificate of merit was “not incorporated by the FTCA.” Id. at 318.

New Jersey’s affidavit-of-merit statute is “analogous” to Pennsylvania’s certificate- of-merit requirement. Schmigel v. Uchal, 800 F.3d 113, 120 (3d Cir. 2015). In particular, neither determines tort liability.2 Accordingly, the Wilson rationale applies to New Jersey’s affidavit-of-merit statute, and the failure to submit an affidavit of merit is not grounds to reject an FTCA claim for medical malpractice based on New Jersey tort law.3

Because Uretsky’s medical malpractice claims failed on that basis, we will vacate the judgment of the District Court and remand the case for further proceedings.

affidavit of merit. See Komlodi v. Picciano, 89 A.3d 1234, 1246 (N.J. 2014) (“In a medical-malpractice action, the plaintiff has the burden of proving the relevant standard of care governing the defendant-doctor, a deviation from that standard, an injury proximately caused by the deviation, and damages suffered from the defendant-doctor’s negligence.” (citation omitted)). And New Jersey’s intermediate appellate court has not interpreted the affidavit-of-merit requirement as a substantive element of a medical-malpractice claim after Meehan. See, e.g., Smith v. Datla, 164 A.3d 1110, 1122 (N.J. Super. Ct. App. Div. 2017) (citing Komlodi, 89 A.3d at 1246). Regardless, the FTCA analysis under Wilson did not proceed along the substantive-procedural dividing line as it does in diversity cases, see generally Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938), but rather on the scope of the FTCA’s incorporation of state law, and the analogous nature of New Jersey and Pennsylvania’s requirements dictates the same outcome for FTCA claims under both provisions. See Wilson, 79 F.4th at 319 (“[Pennsylvania’s certificate-of-merit requirement] is therefore not a rule of tort liability incorporated by the FTCA, even if it may be ‘substantive’ for the purposes of Erie.”).