When You Fall Out of Bed and Land in the Supreme Court

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:00 Clip: Thank you.

0:00:03 Jenessa: When you come to federal court, you're going to follow our rules. Supremacy clause. We win. Is dismissed because I can't find a doctor willing to sign this thing before discovery.

0:00:34 Thomas: And welcome to opening arguments this is episode 1250 that's a fun number so I guess it's 250 of the new regime well it's kind of a milestone anyway don't get too excited though uh thomas that over there is the way too excitable Jenessa how you doing sorry

0:00:43 Jenessa: Something like that. Good. The weather, I don't want to jinx it. Warmed up around here after like the longest winter ever, it feels like. So doing good. I

0:01:04 Thomas: For your loss oh Oh, wait, you want it to be warm. Yeah, I always forget.

0:01:09 Jenessa: Completely how depressed I was like five minutes ago. So that's good.

0:01:12 Thomas: We're over here getting ready for Mad Max -like type weather. Going to get my electric guitar going. Let's set up because it just becomes just a desert of 110 degrees soon, you know. It switches on a dime, too. That's the most disorienting thing. But I feel like we got a nice, longer, like, cool period than normal this year. So, you now, not bad. Anyway people do come here for weather talk but we also talk about law sometimes what video game are we breaking down this time damn it you're fired no

0:01:41 Jenessa: Not a video game this time. We are hitting deep legal nerdery today.

0:01:54 Thomas: Normal law stuff guys

0:01:56 Jenessa: Federal civil procedure dork stuff. Year law students, this may benefit you significantly um of course yeah

0:02:04 Thomas: The video game thing was a trick uh was like she was doing airplane to get us to eat our vegetables and now we're gonna listen to some hardcore law breakdown down uh

0:02:14 Jenessa: It's not just totally digging into our history book we do Have some modern implications so decision that just came out that will affect some things around medical malpractice and state law versus federal law and because I've seen some conflicting opinion pieces on like how big a deal this will be so um just a nice chill like going on when things are have no particular political bent what the court would be up to if they weren't trying to ruin everything fighting about legal stuff that is nerd language stuff yeah

0:02:56 Thomas: Okay so not not a political I actually kind of like when we've done the not political ones because it's just kind of an opportunity to talk about law without the feeling that like well I can't even listen to one side because it'S just going to be like trump's a king and the other side's gonna be like no he's not you know so that's fun I always love when we do this but

0:03:12 Jenessa: Reasonable people can disagree about the potential impacts of this and unanimous decision about yeah the laws that currently stands this is the way it's gotta go here oh we've got just a pretty standard medical malpractice case. And we're going to decide to use the federal rules of civil procedure and not a Delaware law that had a pretty burdensome requirement on the plaintiff. So we're gonna get rid of that when we're in federal court.

0:03:39 Thomas: Awesome right well we'll get the full breakdown after the break here uh patreon.com/law if you'd like to support the show a lot awful movies is out that was a lot of fun oh my gosh really enjoyed that a lot off of movies you and you can get that of course full a lot alpha movies uh and all the goodies over there a lot fun on patreon .com slash law thanks to our supporters uh take a break and get to it all got my pencil sharpened um got stuffed in a locker I'm ready to do nerd stuff I've

0:04:09 Jenessa: Sounds good. All right. So if I say eerie doctrine, I know the law students have run screaming, I don't know how much that will mean to you.

0:04:20 Thomas: Definitely heard of that I be fair that's me with most things and names and people someone will be you know your mom I'll be like god that sounds sounds familiar I think I think uh I think once you start talking about who that is I'll know I'll

0:04:34 Jenessa: Yeah. OK. Talked a ton about the general idea. Federal courts are courts of limited jurisdiction that, your state court, your your state trial court in particular, the vast majority of them can hear any case. They can do federal questions, whatever. Federal courts can only hear a state law question in two situations. So jurisdiction, we've talked a bunch about this. If the plaintiff and the defendant are from different states, you could go to federal court, even though you have a purely early state question, you know, tort, a contract, whatever. Would you want to do that? The first thing would be, you let's say you're from California, I'm in New York, you want to sue me. And let's Say we have to go to New York. We're in federal court, your California lawyer would need to know the federal rules of civil procedure and not learn New New York civil procedure, which is like a whole other beast. Other advantage, especially think about, you these rules came about way back in the day, small towns, if you went to New York, tiny little trial court and like where they draw their jury pool from, you don't want the jury of my peers to be literally my friends and neighbors. The judge could be my friend or neighbor.

0:05:52 Jenessa: We go up to federal trial court, we're just pulling things from a way bigger neighborhood. So really advantage the out -of -state person to go up to federal court. Other option, supplemental jurisdiction. In federal court for a federal question, the thing thing you're supposed to be there for, if the same exact incident also has a state law question, we're not going to make you do a second trial about the exact same thing in the state court. Were suing over a violation of the Federal Voting Rights Act and also this violated California voting law, we might as well just knock this whole thing out in one place, right? Problem that can arise, you're in federal court, some state laws have to get decided. What are we going to do if there is a conflict between these laws? The federal law tells you to do one thing. The state law tells you To do another thing, the judge is trying to figure out, oh, what do I do? A whole bunch of case law about how we're supposed to to handle this. So for example, if the federal law said you have to file this within 30 days and the state law said 45 days, like, ah, shit, what am I going to do? Of the big cases on this was Erie Railroad Company v. Tompkins. And the plaintiff, a resident of Pennsylvania, gets hit by a train in Pennsylvania. He loses his arm. The train is operated by Erie Railroad Company incorporated in New York. So you can go to federal court on diversity jurisdiction. Was trespassing on the railroad's property at the time. So if you went to Pennsylvania State Court, the rule there was, what caution did the railroad company owe to a trespasser? Not a lot the negligence rule would be for a trespasser your level of negligence would have to be wanton or willful kind of rare like how often are you intentionally

0:06:20 Thomas: Right yeah yeah

0:08:02 Jenessa: It's almost the opposite of

0:08:03 Thomas: I'm almost never wanton like some sometimes but you know I guess last Thursday but that was a weird exam like it just happened to be then before that I can't remember the last time I was wanton right

0:08:14 Jenessa: Just such a high standard like you could think of it kind of like gross negligence, like reckless, over -the -top, ridiculous behavior, or willful. I mean, that's almost the opposite of what we think of when we think negligence. How often are you intentionally not bothering to deal with, if you know about it, is it even negligent anymore, you know? Would be really hard for him to win in Pennsylvania court because he was was trespassing. Basic common law principles on negligence wouldn't apply that rule. They would just say regular old negligence. So did they properly warn? Did they have the signals of like, oh, a train is coming? Did They put up a fence? You know, whatever. That's going to be a lot easier to win if they didn't do those things. Are pretty dangerous, right? Right? You should be careful that people don't get hit by trains. Goes to the federal court and says, you should not be applying that Pennsylvania law. I'm in federal court. That's why I'm here. The Fed is going to say, no, actually, we are going to apply Pennsylvania law, you're not here because you have some federal question. You're not saying this is federally unconstitutional. We don't have like a federal statute on the books about this. You're just here because of like kind of luck of diversity that doesn't give us the authority to make federal tort law that what they come out and say is there is no federal common law we don't do that uh

0:09:50 Thomas: So weird because like in the name you would think that's what it would be like you'd think there'd be like well there's really specific state law. And then there's like common law that we all have, you

0:10:00 Jenessa: Like common law is more the idea of that something's not written down so

0:10:05 Thomas: Yeah, no, I know. I'm just saying in the name, it's kind of counterintuitive, but yeah, I

0:10:08 Jenessa: Exactly so have their statutes and they have their own common law that kind of has emerged out of case law and that kind of thing but the fed government imposing mostly not going to have that um not going to say well here's how most states do it on average so we'll just like hold on to that Like, no, Pennsylvania made a law. We're going to give them that authority to, in some ways it would be the federal government imposing their will on Pennsylvania. And like, that's why. Why? What comes out of this, there when is a substantive right built into a law, we're going to apply the state law. If it's just some procedural thing, we'll go with the federal law. You know, if it's juste like, oh, you know, you got to do this thing by this date, you gotta use this font, you have to file it with the clerk. That's just procedural stuff that doesn't affect your civil rights. But when they're trying to create something substantive to affect the rights of their state citizens or people who are harmed on their state land, we should respect that as the federal government. Example would be like a statute of limitations. That feels kind of procedural, right? Oh, it's just a deadline. But actually, that's creating somebody's substantive rights of, starts to go cold past a certain point and shouldn't have this just hanging over your head your whole life. If somebody has a contract dispute, why do they wait 20 years? That doesn't make sense. That kind of test, we're going to say that is not procedural. That is substantive. If for some reason there was a federal thing that feels like federal common law or even a federal sort somewhere, we're going to respect the state law and let that override. We'll go with the state statute of limitations. So the classic case. Um, start to build on that of like, okay, the federal rules of civil procedure, those will almost always win. Um. Federal Rules Enabling Act was passed by Congress. It gave the Supreme Court the authority to create the federal rules of civil procedure. The goal was to have uniform rules across the courts. It's basically supremacy clause. Laws. We set our court procedures. Now, they have to be procedural. They shouldn't be some big But when that happens, we're going to stick to the federal rules of civil procedure. So that answers our question. It's substantive, you could sometimes have the state still lose, but most of the time they're going win. If it's procedural only, most of of the time will go with the federal rules, but the could still win if it really affects the outcome of the case. Start building off this with a lot of different cases. Comes up more often than you'd think, but we start to establish a whole bunch of rules for of this. If anybody wants, I'll share my flow chart from when

0:13:28 Jenessa: I did this in CivPro if you need it. To the modern day and we have a case that just came up about this exact question. Are we going to apply a state rule here? In Delaware. In Delaware, there are too many medical malpractice cases, and we have to cut back on this.

0:13:50 Thomas: Just stop doing malpractice don't practice mali yeah

0:13:54 Jenessa: I that's always an option right is to just not just to be better at it you know what's really interesting there's um cool research on this that of the I think the best predictor of medical malpractice suits like the count over a career is bedside manner it's not not actually the number of incidents where you arguably committed malpractice. Know, a doctor who has a good relationship with a patient can come in and say, I screwed up. I'm sorry. And have the patient be like, hey, man, mistakes happen. But when the relationship is really negative, it's just more likely that somebody is going to be like yeah, you know, if you sat here and listened to me and took me seriously, maybe this wouldn't have happened, and that's where the lawsuits emerge. Lesson in general. Obviously, that doesn't explain 100 % of cases, but it's a larger trend. Bedside manner, one of the best predictors. In the case is not, do we have a problem with too too much medical malpractice, or did Delaware do a good thing here? Not the official question. I think unofficially that is lingering in the background of this case. Super worried about that, would the judges maybe take a different tact? If If they think this is really harming plaintiffs, I think that kind of comes out here that they're worried this is making things too hard for plaintiffs.

0:14:16 Thomas: Sorry what's making too hard for this thing we haven't done yet okay they

0:15:28 Jenessa: Did Delaware Do Here? Yeah. Okay. So Delaware is going to try to address this by making a rule where they say, in order to file a MedMal case, you have to first give an affidavit of merit. Have to get a medical doctor to affirm there are, quote, reasonable grounds to believe that kind of reasonable grounds, to believe there has been health care medical negligence committed by each defendant.

0:15:53 Thomas: Have to narc on their their colleague I don't like that huh

0:16:05 Jenessa: Will be filed under seal. So the defendants are not going to get to see this. You can request in -camera review by a judge. Is really going to harp on this in oral arguments that, why did Delaware do that? Can we get, you know some info? And we don't really get a good answer. It doesn't come up in the decision. Seems like maybe the issue is if had to be public, nobody would do it.

0:16:04 Thomas: Yeah

0:16:32 Jenessa: Yeah, they don't want to narc on their colleagues, just like you said. Um the lawyer for the plaintiff says in closing that he he really struggled he got doctors in private to say to him I agree this was malpractice but they wouldn't sign anything and a perception especially among lawyers of like well if you won't sign an affidavit that must mean you don't really believe it right and don't know how true that is. I think a lot of people are just scared of getting dragged into court, you scary to say, I affirm under penalty of perjury, everything in here is true. Like, you don't have to be lying for that to be scary, I

0:16:30 Thomas: Exactly you think hmm right well and I think in this case I I imagine it could be more reputational, too. It's like you're in a community of sort imagine if you were trying to get anything like with police misconduct and you had to get like another officer to like sign off. Like that's going to be really, really difficult and no one would do it.

0:17:29 Jenessa: Even under seal, Even knowing no one will know. I mean, do you know that? Do you trust that? Do you feel comfortable? You there might just be a feeling among colleagues of like, I just am not comfortable doing this to a colleague, even if I do think they were negligent. I am sympathetic to the idea that this is a big burden. You can't really get anywhere without this first. Is saying this is, you know, the legislators when they write this, this prevents frivolous claims. In order to file, a doctor says, I agree this is negligence, not just some plaintiff with no expertise who just feels harmed. The plaintiff's lawyer is going to say, like, this a huge barrier and we should get discovery first. How am I supposed to know as their representative if it was negligent, if I can't get discovery, ifI can't ask, are there any records where somebody, you know perhaps admits that oh shit we screwed up oh oh um so would have to file that and basically what you would do is you either file that with your lawsuit or file with the lawsuit a request for a 60 -day extension with good cause so you you don't get to just ask for it defendant doesn't need to respond until 20 days after that affidavit is submitted normal lawsuit the second you file the clock starts ticking on the defendant to respond to your pleadings so this affidavat is really crucial to get the ball rolling at all they can can ignore you until you have it. Plaintiff, Burke, he goes on a vacation. He is a citizen of Florida. He's vacationing in Delaware. Falls out of bed, hurts his ankle, really hurts his angle. Goes to the hospital, gets an x -ray. There's a fracture. Doctor recommends fitting with a protective boot hospital employees force his foot into the boot and it

0:19:41 Jenessa: Twists his fractured ankle yeah doctor does not immediately order another x -ray even though you know this patient is like uh yikes dude ouch um says keep weight off it two -week follow -up, come back to me. At the follow - up, the second x -ray shows severe deformity, requires a surgery to fix it.

0:19:43 Thomas: Ouch. Jeez.

0:20:05 Jenessa: Lawsuit is going to allege, if you had not forced my foot into this boot, maybe I would have healed with just a cast, maybe it needed to be set, maybe I would not need this surgery. We kind of need discovery to know some some of this, right? He can't get that affidavit. Our question. He's in federal court. That is a Delaware law. Does he need that affIDAVIT? Technically, the question is not, is it constitutional to request this? Is it fair to ask for this? It's just, does he need it because he's in federal court? So we're not going to say when Delaware residents sue in Delaware court, they can still do this. That is just not an issue here, which I think is going to have a pretty big impact on how much of an impact this case really has, right? Right. This is only affecting federal court lawsuits, people who are in federal court undiversity. A couple of questions we have to ask. First of all, is there a conflict with these laws? Kavanaugh is going to just harp on this in a way that really killed me in the oral argument. He's the question was like, there's an absolute conflict. Right. Right. You know, if one law said you have to file your brief in Arial font and the other one said Times New Roman, like it would be physically impossible to comply with both. It said, oh, this one wants you to do ABC and this other one wants to do D .E .F., that's like just additional requirements that doesn't conflict. Right. He's going to sign on to the majority that says this is in conflict. So like I just could not for the life of me figure out what he was getting at. There are cases where that's relevant, but does not appear relevant here. Was really dragging it out and nobody else was taking the bait. The other judges were not getting into that question. So, step one of this analysis, are these laws in conflict? Pretty much yes, because the federal rules of civil procedure say you need a short and plain statement of the claim showing that you are entitled to relief. Leaf. It. Don't need all this other stuff. And really what they're going to get at is you're kind of asking for evidence at step one.

0:22:35 Jenessa: You're not normally supposed to do that, you step one is, here's my allegation of the facts, and I might need discovery to get more, but here's some basics. And here's my legal arguments. If those facts are true, this is medical malpractice. And that's pretty much what you need. Will have affidavits that say, to the best of my knowledge, these facts are truth. You're going to affirm that you're not lying in the pleading. Attorney is going to confirm that they have done their due diligence to check that you're not lying, but there's not a requirement to give anything like evidence or proof yet. Defense will open and I think make what feels like a a very convincing case, and then Kagan's going to rip it apart about five minutes later.

0:23:34 Clip: Thank you, Ms. Chief justice, and it may please the court. Rather than identify one federal rule that applied here, in fact collided with the Delaware statute, Petitia identifies separate, seven separate rules and manufactures conflicts with all of them. All of those conflicts are entirely hypothetical. The trial court did not hold and respondents did not argue below that this case could not be commenced under Rule 3. Respondents never challenged the pleadings under Rule 12 or otherwise. Respondants didn't argue the affidavit had to be filed with the complaint under Rule 11 or disclosed in discovery under Rule 26. What this Court held in HANA is that trial courts in the federal system must enforce State laws using federal modes of enforcement, even though the federal rules are not identical to State court procedures. Here, the trial court held, and respondents argued only, that the Delaware affidavit of merit requirement had to be satisfied to maintain a cause of action for medical negligence under Delaware law, and because petitioner couldn't obtain that affidivit, this case had to been dismissed. The only question in dispute under Hanna is whether the affidaviut of merit requirements can be enforced in federal court at all. It can. It can be enforced through dismissal under Rule 41, as courts have held, or it can be enforced through early summary judgment, as both the Seventh Circuit and Third Circuit have held. Petitioner takes the extreme position that a federal court must ignore the entirety of a state statute if any part of it might conflict with a federal rule in some case. This Court has rejected that approach, which is why Petitioners, in the briefing, effectively effectively concedes that to prevail, he has to convince the Court to overrule at least three of its decisions, Cohen, Woods, and Gasparini. That intrusion on the jurisprudence of Hanna is both unnecessary and would interfere with federalism. I welcome the Court's questions.

0:25:49 Jenessa: I think if you hear just that, I think it's a great illustration. Lawyers can make a real convincing argument. This guy's is going to lose hard. He's going to lose unanimously. Pretty reasonable, right? Like, there's these rules that, oh, they don't really conflict. You can resolve this where he still does this affidavit, but he also follows all the federal rules, and you can reconcile this. It doesn't have to conflict with each other. You know? The lower courts have have agreed with me so far? What's the big deal?

0:26:26 Thomas: This kind of what you're saying with the like a abc and then df kind of thing like is he trying to present it that way okay I

0:26:34 Jenessa: He's trying to say the federal rules of civil procedure require ABC. We just require D. What's The Big Deal? Doesn't Kagan is not happy about this.

0:26:45 Clip: Said, you know, this notice -pleading stuff, we're really a little bit tired of it, and we want to go back to code pleading. And so we're going to enact a requirement, and it says it's going to say for some category of suits or for all suits, who knows, you have to do code pleating. We're not going to insist you do it in a complaint. You can just do it on a separate document. Call it an affidavit of merit. Call it a non -pleading if you want to. But it's got to be filed very early in the lawsuit. Would that be all right?

0:27:21 Clip: If it's an affidavit that's separate from the pleadings, it can be enforced. That's what we're calling it. We're calling an affidavit of merit. Of course, my position is you can enforce that. I think the question is – So you can reinforce that. I mean, that is like exactly what Rule 8 and, indeed, the entire structure of the federal rules was designed to prevent. You know, if there was one thing that the federal laws did, it was to say no displeading uniformly throughout the nation in federal courts. And this is not a rule of pleading, which is our point. The pleading is itself. But the hypothetical I'm giving you is all we do is call it something different and we're back to a code pleading system. Understood. And if that's the case, Your Honor, Erie, of course, is going to kick in. And that's The Second Step. I don't know how we get – why do we have to get to Erie? I mean, it's just got to be the case under Hanna, et cetera, that you look at Rule 8, you look a Rule 9, you look in Rule 12, and the whole package of it says, No code pleading in federal courts. Well, and if it in fact conflicts with Rules 8, 9, and 12, which the affidavit requirement here does not. Well, I guess the question is why it does not? Okay, I'll give you some more examples. Suppose there was a state that said too many darn contract suits. So we're going to make people come up with affidavits from an economist denoting all the different damages that apply. And we're gonna do this also. You gotta do it within the first 10 days. I think the key question in all of those cases, Your Honor, is how do the parties bring those issues to the trial court and present them through the rules of civil procedure? Procedure. There are mechanisms. Well, I guess what I'm suggesting is that you don't do that through the rules of civil procedure because the rules of civil procedure, although they don't say you cannot apply additional requirements like that, the rules mean, in the same way that they meant in Hanna, in the same way that they meant in Shady Grove, that no, if you try to impose requirements that make medical malpractice claims, contract claims, trade secret claims, you know, on and on and on, if you make them subject to special requirements whereby the plaintiff has to come forward with some sort of proof that their claim is good before anything starts, that that's inconsistent with the entire structure of the federal rules. Sure. So a couple of responses. One, the affidavit here is a separate requirement apart from the proof and the evidence in the case. I mean, we're going to label all of these affidavits. You have to file

0:30:15 Clip: Your trade secret. You have to file your economist's report. You have the file an affidave if you're in a car accident from one of those accidentologists saying that the thing was your fault. I think they're called reconstruction accidents. It was the defendant's fault. Sure. I mean, every kind of suit has something that you have to prove, and we're going to make you file something before the suit gets started about why it is that you're going to be able to show in the end that you meet the elements of the suit. And

0:30:51 Jenessa: I just love the accidentologist, especially, oh, God, don't correct them. Why are you chiming in to say reconstruction expert? Let it go.

0:31:00 Thomas: My god that was so weird yeah do

0:31:03 Jenessa: So not relevant here. Don't bother. Rather. She's getting at here is like, think about all these other examples that are very similar to previous cases or something very extreme. You know, she says, she chimes in later to say, what if it required four doctors to file these affidavits? Under your argument, can you possibly deny that this would be like Delaware's allowed to do whatever it wants, right? And it's really hard for him to try to say no to that. Like, no, they could require four, five, six, ten affidavits. The federal rules are trying to say there's one procedure across all of the federal courts. You don't have to learn these special procedures. Don't have to get to this eerie, is it substantive? Is it procedural? What are your rights? The federal rules of civil procedure win. It's a supremacy clause thing. So argument here is kind of what's going to win the day.

0:31:05 Thomas: Not bother it seems like this is putting a huge burden on on plaintiffs to say like you have before you even, what, what is code pleading? What is that?

0:32:19 Jenessa: Notice pleading, that's what we have now, at least in federal courts. Notify the opposing party and the court of just generally what is going on. Here are the facts I am alleging. Here arethe violations I am alledging. You violated my rights in this way or whatever. Here's what I'm suing about. And the types of affidavits we talked about. That is our notice notice pleading. We went to notice pleating we were trying to get rid of this like hyper technical following the codes, like as if you had to know every single law. Now, realistically, you still need a lawyer, right? This idea is, like we recited earlier, a short and plain statement of the claim. That's kind of what we're going for, that there's not like this regimented, you have to write this and then this and this, and you have have to follow this and then this. Super detailed, all of the facts like this. Just giving notice to everybody. When we get to the, you know, actually filing all our briefs, that's when we're going to get super detailed. But your very first pleading is notice to everybody. Giving people enough enough information to be able to respond to you, to be able to start getting ready to say, oh, this is frivolous. Like, yeah, I guess I'll still get a lawyer. But like, come on, this ist super simple. Or, oh God, lock everything down, start preserving evidence. You definitely have to give that level of notice, right? But they were trying to get rid of this idea, at least on the federal level, that it was going to be just unbelievably unbelievably onerous, hyper -technical, following a bunch of codes that were written into the law. Unfortunately, I would still say, realistically, yeah, you need an attorney who knows a lot of really detailed rules to nail this stuff. But I mean, pro se litigants pull it off sometimes,

0:34:17 Jenessa: And I don't think under those old rules that would be nearly as simple.

0:34:21 Thomas: It's making it a little slightly more accessible.

0:34:24 Jenessa: Think so. I would definitely say it's more accessible. That is for sure true. Mm

0:34:29 Thomas: So this kind of law, I guess they decided let's help out all the doctors. Wonder Cause if you the, know, you say this wasn't political and, uh, it does seem like if if you're saying this was like unanimous or whatever, but, um, there's the, Republican the talking point a, an you excuse to not give people health insurance is, well, It's too expensive because, you know. There's too much malpractice.

0:34:48 Thomas: You Bogus malpractices. So, I wouldn't be surprised if this was something related to that.

0:34:52 Jenessa: Yeah. I distinctly when were trying to pass the Affordable Care Act, there was a huge response among the congressional Republicans of like, oh, well, we'll do we have because we've got to have some alternative, right? Right. We're going to do tort reform.

0:35:07 Thomas: Tort reform.

0:35:08 Jenessa: We're going to make it so much harder to sue for medical torts. And that that's the real reason that that medicine costs so much more in the United States. And like that is just not an evidence based claim. Certainly medical malpractice insurance is expensive. Like, I don't want to deny that. But, as the explanation or the primary explanation for like Americans sue that much more than other countries.

0:35:09 Thomas: I remember that. Right.

0:35:37 Jenessa: Mean, no, that's not why we are paying so much more for our health care. It's certainly not why poor people can't get access to healthcare. Kind of what I was getting at that like officially that's not the question is like, is this right? Unofficially, I think that's dangling in the background of like, God, this is so onerous that guy's case is pretty sympathetic. Like, you did something that seems like it really exacerbated my injury, and I can't even get to discovery. Is dismissed because I can't find a doctor willing to sign this thing before discovery. I can't show that doctor the record of some other doctor saying, oh, God, why did you do that, you know?

0:36:27 Thomas: Hmm.

0:36:27 Jenessa: Think you can hear the tone in this of Kagan really getting at you're asking someone to effectively submit evidence in advance, and that is just not supposed to happen in federal court. Court. We made these uniform rules for a reason. It shouldn't be that different in Delaware versus some other state. To be fair, a lot of states have a rule very similar to Delaware trying yeah, yeah. I don't have a number in front of me, but a lot of the reporting on this was saying big impact is like, let's say this is a way to reduce frivolous medical malpractice. Not in federal court, not anymore, and that quite a few states have similar laws, not just for medical malpractice, but for other kinds of torts as well. And will not work if there's diversity. Many people will get that? You always your doctor is in state, right? I mean, that's almost a requirement with like insurance and everything. Thing. Really only people on vacation. I'm trying to think what's another incident where I would have a doctor who's out of state. As a New York State resident, my doctors are licensed to practice in New York state, I'm pretty sure they, you know, would have to go get licensed in New Jersey, Connecticut, whatever, to practice across state lines I think so they're not going to have regular patients who are out of state which is how you would get into federal court otherwise they have to go to new york state court

0:38:10 Jenessa: Yeah

0:38:10 Thomas: I was going to say unless there's any federal laws they're violating but then I guess that wouldn't matter because for this case has to a conflict between state and federal procedure right uh

0:38:21 Jenessa: The whole issue here is we have this delaware law the federal laws don't require this the delaware law does require this should we do it when we go to federal court so yeah if it was a federal law we would definitely apply it in federal court and state court because the federal laws would supersede all of the state laws under the supremacy clause so would you have a doctor treat an out-of-state person vacation like this guy and I'm trying to think of any other example oh

0:38:55 Thomas: I mean often often people just go to another state to get like if you're gonna have a surgery or something often it's like this surgeon literally hayley's doing that right now yeah

0:39:04 Jenessa: Yeah when there's like the best surgeon for whatever so certainly those could if there was malpractice involved end up in federal court um specialized surgeries you know your average like oh I need a cyst removed that's that's just gonna happen been, half of that can be just like easy little outpatients, right? But like major heart surgery or whatever, I have no idea. I'm not a doctor.

0:39:36 Jenessa: Certainly, we all know about examples of that, where there's something very big and serious, and there's the person who's so good at it, and you go out of state. Yeah. Real question, and that's where I saw mixed reporting. There was a thing, what originally tuned me into this, Lydia sent me a Bloomberg Law article where somebody was like, this is a big deal. This could open the door to so many more lawsuits because Because it means this thing that is a barrier to medical malpractice lawsuits is just not allowed. And it's not allowed in not only Delaware, but all these other states that do it. Then I went and read SCOTUS blog reporting on this. And they were like, yeah, I it's only in federal court. Like, big a deal could it be? So we would need an estimate of how many people, how frequently see an out -of -state doctor and then like how often could that reasonably result in medical malpractice to know now often did these state laws prevent a malpractic suit and how often Could they have been in federal court? Like, that seems low to me, but I don't know. And I didn't see anybody giving me, like, an actual calculation on that. I mean, these were law blogs, so, you know, they're somewhat allergic to that.

0:41:06 Thomas: It's also like you the right answer regardless of if it affects three people or a hundred people or whatever right

0:41:11 Jenessa: Absolutely. Right. You're right, regardless of whether it's like the right thing to do, the question was not that. The question was, what do we do in federal court? But I think you are right that hanging in the background is this feeling of like, this guy should really be able to sue. I mean, he should at least get discovery first. And this really preventing illegitimate medical malpractice or is this preventing lawsuits that the court, the door is supposed to be open to people who were harmed? And I think you might be shutting it very artificially. Going to write our decision here. We are going to get a concurrence from Jackson, but it's pretty much all the same thing. Are we going to say here? Year. Barrett's going to adopt some language that Sotomayor used in the oral argument and say defendants are really trying to rewrite Delaware's law. Delaware's Law is going to say you have to file this with your complaint and you can get an extension for good cause and otherwise like the defendant would not even need to respond. Here they're kind of like oh well you know it it doesn't have to conflict with the federal rules of civil procedure if you just require that they submit it early in the lawsuit and she's like this is just stretching the limits completely of like there'd be no enforcement mechanism because the point is if you don't do it it's supposed to get dismissed but now under the federal laws we don't dismiss dismiss things because of an affidavit that's not even required under the federal rules and you're to say that they they have to submit this thing that kind of feels like evidence but is it going to be under seal or is it not like what it what is supposed to happen here this can't try to rewrite it we have to apply exactly what the law says this is is a place where being a little textualist is probably pretty helpful to say, no, no. Let's do what the law says. And what it says is you have to submit this thing. And what the federal rules of civil procedure say under 8A, a short and plain statement of the claim showing you're entitled to relief, no evidence required. There have been many cases where the lower courts tried to adopt requirements or accept requirements from state law. And we have rejected it, the Supreme Court, over and over again on appeals. This is a ceiling on your requirements. It's not just, oh, this is ABC and you can add D.

0:43:50 Jenessa: No, ABC and only ABC. Short and plain statement of the claim. Under rule 12 there is one ground for dismissal on the merits that is failure to state a claim upon which relief can be granted so that thing of even if all the facts were true, I would still win this is not illegal whatever 12b6 so the one and only dismissal that's related to the merits. You know, other 12B motions are like subject matter jurisdiction and personal jurisdiction. But when you go through the list for the ones that are because the case isn't good enough, that's it. That's all we got. And so you want to add more. Just not allowed. We have a federal statute that allows us to write these rules. We wrote these rules, supremacy clause. Clause, no. when you come to federal court, you're going to follow our rules. And that's the end of it. We don't have to do this. Oh, is it substantive? Is it not? Supremacy clause. We win.

0:44:10 Thomas: Classic motion to dismiss stuff yeah that whole floor versus ceiling thing pretty important because when it's like the federal government granting us rights of some kind it's pretty important that that's a that's like floor and then and then in this case it's okay this is a ceiling on how onerous this certain thing can be uh pretty important. The distinction between those two things.

0:45:06 Jenessa: Extremely. Yes, Yeah. So that that in this decision is it's going to be really important for this defendant, of course, but I think it's gonna be really really important that she made that crystal clear statement here for any case going forward. Rule 8a is a ceiling. You cannot require anything else if we're in federal court on diversity jurisdiction. You in the state courts, you guys do what you want. If somebody wants to try to challenge it as unconstitutional, that would be a separate question. But for now, federal court, that's what we're doing. Wrote a concurrence where she said, like, I don't know why you guys went this far with all this other stuff. Rule three just says a civil action is commenced by filing a complaint with the court. That's the end of it. If you file the complaint, the action starts. You can't say, oh, the defendant doesn't have to answer until this other thing gets filed like rule three also set a ceiling for what is required to start the whole process so thought it was interesting that she didn't sign the main opinion she only wrote this concurrence yeah somehow she felt very strongly about like need to go to rule 8 and 12 and 11, like, just stop at rule 3?

0:46:26 Thomas: Interesting. Really? I think she's going to end up being one of the most interesting Supreme court justices because could be wrong but my read of it is that I think she's often trying to use things like originalism and textualism but in a good way and to try to like no nonsense it into granting us kind of more rights like it's interesting I think this is her saying hey skip all that other crap this thing says this is when it starts that's that That means this is when it starts. You can't impose some other additional requirement. And I think that's been her project. And it's really interesting. Anyone else sign on with her? Is it just her?

0:47:18 Jenessa: Just her, all by herself. I, a lot of people smarter than me are on the court, so what do I know?

0:47:19 Thomas: Yeah, that sounds right. Sure.

0:47:24 Jenessa: But I do often find, I agree, she writes in a way that's very accessible, it's very very straightforward. And she is often giving us something that should tempt the conservatives of very textualist kind of thing of like, we don't have to make this 12 layers deep. We can just say some really basic stuff. And it's lowercase c conservative. It's very like, I don't need to reach for all this other stuff. I don't need to say things that could come back to bite me later if there's some other case that I'm going to have to distinguish. Like, why don't I just say the least I need to say to decide this? A really interesting one. Think Matt and I talked about it a while back. There was a disability case where she did that in a concurrence where she said that we've had this habit of dismissing cases on the basis of this One thing, we should really be dismissing it this other way. And that would be far more lowercase c conservative to just dismiss things in a very simple way that doesn't actually start talking about the merits because we're not supposed to be talking about the merits at this stage. She does that a lot. Will be really interested to see in the future how people approach what she's it's unfortunate how often she ends up in concurrence or dissent because I think what she says is really important and unique

0:48:49 Jenessa: Um

0:48:50 Thomas: How often does she ever get to write a full-ass opinion?

0:48:53 Jenessa: Truly tragic because like especially as a young justice you know we're seeing like barrett writes this one it's unanimous it's not going to you know change the planet or anything it's a good way to get experience to start writing something and like yeah jackson is because she's so often in the minority just not getting that opportunity to write the majority opinion um a bummer hopefully someday she will be writing those majority opinions more and more often um believe it was 4730, she's going to talk about this docketing and dismissal issue.

0:49:32 Clip: You just help me to understand why, and this is kind of particular. You say the case has to be dismissed if the affidavit isn't filed, but when I look at the actual language of the statute, it says the clerk of the court shall refuse to file the complaint, and it should not be docketed with the court, that is actually technically a different dynamic than having accepted it and it being dismissed. And so what I don't understand is why we don't just have a plain conflict with Rule 3, which is the rule that tells us in federal court when a case is commenced, when you file it, when it's docketted. This says you can't, the clerk has to refuse to docket the case. Not that the judge has to dismiss it, and I think that's a relevant distinction. Am I wrong about that? I don't think it's irrelevant, but first let me say the statute also doesn't tell you what to do if more time is given and the plaintiff never actually produces the affidavit. Case law does. It's very clear under Delaware law that the case has to be dismissed.

0:50:43 Clip: Second, to the extent there is a conflict with Rule 3, I think Walker, This is the court's decision in the Walker case, which is about commencing a case under Rule 3 and whether commencing a case under Rule 3 conflicted with a State requirement that said you have to commence a case for purposes of a State law cause of action through service. And what the Court said is Rule 3 is the mechanism by which you start the Federal case for Federal deadlines. But it doesn't do away with other State law requirements that have to be satisfied in order for a particular plaintiff to maintain a cause of action. So there's no conflict here. Under the terms of the statute, you can get more time. So clearly, you Can commence a case without filing the affidavit. But that's not what it says. I mean, if you look at the statute I'm looking now, it says that the court may, upon timely motion, grant a 60-day extension for the time of filing the affidavit. But we know that if the affidavit isn't filed, the complaint isn't docketed with the Court. Well, it doesn't say quite that. It says you can seek the motion. Clearly, it has to be on the docket for the Court to grant the motion, and you're given more time while that motion is pending with the court. So even the plain terms of it don't actually prevent docketing of the case absent filing of the affidavit. But I do agree with you, Justice Jackson. You know, rule three governs commencement in the federal system. And then the question is, what do you do with this requirement? Petitioner's position is it can never be enforced ever in any federal case for all time. Our position is if it can be enforced using the federal modes of enforcement without conflict, then you need to give it effect.

0:52:36 Jenessa: Does a good job there I I'd be very curious uh I strongly suspect that justice jackson has not in fact misread the text of that law um that

0:52:46 Thomas: Then again I mean the other liberals didn't sign on so I don't know maybe maybe there's room for disagreement on that interpretation

0:52:52 Jenessa: Possibly yeah and we always have to grant the possibility you know these are are generally people who practice in state court coming to justices who don't do not know Delaware law so uh there's quite a few places in here where you hear the justices asking questions about like it seems like a more genuine like I wait what how does how does that work I'm so confused um and it might be more of a genuine confusion compared to Jackson's usual like I don't understand and she completely understands um think other justices might have been tempted to get the last word here and dive on him about like no it doesn't and jackson does not do that almost ever she will let it hang in the air that she disagrees like like Alito will never let you do that.

0:53:45 Thomas: She She rhetorically does all the stuff that signals to dumb people that she's dumb, but it's actually substantive, you know, like she doesn't do any of the like debate tricks to appear smart to dumb people. And so a lot of dumb people think she's not smart.

0:54:00 Jenessa: He, will let it just be there that she's like, okay, yeah that's, that's what you say. The law says I'm I've been where you are and it's, this is not fun for any of us so I'm going to just let let that go. And Alito, Gorsuch, they would never just let this end without them having been the last one to say something. Think she just does a really gentle but good job there of I understand the documents are in a filing cabinet in the court, but the case doesn't... It's not docketed. It's not getting a case number it's not even real nobody has to respond yet doesn't that matter isn't that different um interesting approach yeah

0:54:43 Thomas: Imagine if we could somehow win some elections and pack the court to the point where she's writing majority opinions on making stuff good. That would be fun. That'd be, that'd be some interesting, fun analysis we could do. That'd be cool.

0:54:53 Jenessa: Wouldn't that be lovely yeah and

0:54:58 Thomas: In the end give us that kind of overall summary where this went and what you think this means going forward. Does that have any big implications or is it pretty specific to like this, state law? And then you mentioned there might be some other states.

0:55:11 Jenessa: If you are a like nerd for federal civil procedure This is right up your alley. You are studying federal civil procedure right now, this is a good one. They are citing every case you need to know. Go read this. Click on the citations. Read all of it. You will understand this very well. I think Barrett wrote this in a way that is just clear and concise. It's really nice. For implications, it means when your state tries to write a law that is going to make it harder to submit your case, harder to get something on the docket because they are worried about frivolous stuff. Stuff is probably not going to work in federal courts so saw some implication that maybe for anti -slap suits this could be a problem you know you're trying to say oh you sued me for defamation here's my state anti -SLAPP statute and maybe that's that's an extra burden that's not in federal law. So

0:56:17 Thomas: Makes me nervous.

0:56:19 Jenessa: Yeah. That's our biggest possible implication is, oh man, states cannot protect their residents anymore from almost anything frivolous. Our smallest implication is sticking around medical medical malpractice, sticking around these really onerous upfront evidentiary burdens, and really diversity jurisdiction is so much less common. So really runs the gamut of how big a deal this could be. And I think time will tell on

0:56:55 Thomas: Right. Well, very interesting stuff. Thanks for the breakdown. And thanks to everyone for listening. Thanks for sharing the show. Jenessa, until next time.

0:57:03 Jenessa: Talking to you.

0:57:07 Clip: This has been Opening Arguments, produced by Thomas and Lydia Smith, with editing help from Peter Baird. The intro is by Thomas Smith. This outro is by Matt Cameron. Support the show at patreon.com/law. Contact us through Patreon or openarguments@gmail.com. Make sure to follow our blue sky at OpenArgs. But most of all, please share the show. Thanks for listening.

0:57:39 Thomas: Almost never wanton like I guess last Thursday but that was a weird exam like it just happened to be then before that I can't remember the last time I was wanton right going to have to play the Wayne's world. Look, we're in Delaware.

0:57:53 Jenessa: So, yes, we are in fact in Delaware now.