Certifiably Procedural

McClellan v. Haddock, 2017 VT 13

By Elizabeth Kruska

Ever have it when you just can’t seem to get out of the house? Or the office? Or wherever? You check all your pockets to make sure you’ve got your keys, your phone, your wallet, your whatever, and then you have them or you don’t, or worse yet, you leave and one of the things is left behind? It’s a long, sort of anxiety-filled day when you realize you left your wallet on the kitchen table and you just hope you don’t get pulled over or need to pay for anything before you get home. I don’t know about you, but I feel a little less than whole if I don’t have all the pieces with me.

Unfortunately, some parts of civil procedure are also a little bit like this. You need all the parts in order to make a go of things. For certain kinds of cases, including wrongful death actions, in order to pass go, a plaintiff has to attach certain additional pieces of proof to the complaint at the time it is filed. For a wrongful death case to go forward, it’s got to include a certificate of merit from the attorney certifying that the attorney has consulted with a doctor in the field, that the doc has set forth the necessary standard of care, that the doc accused didn’t meet that standard of care, and that the plaintiff can probably prove it.

This certificate of merit requirement was added to the Vermont statutes back in 2011 in an effort to get a handle on filing frivolous claims. About half the states have this requirement. It’s not terribly onerous, especially considering the fact that a plaintiff is going to have to hire an expert most of the time to testify about the appropriate standard of care anyway. I suppose there are going to be times when the action is so egregious that no expert is needed, but that’s not going to happen very much. If a prospective plaintiff can’t find an expert to consult for the certificate of merit, chances are pretty good the case doesn’t have legs and the plaintiff wouldn’t be in a spot to file it anyway. That’s the whole point of the requirement; don’t file non-meritorious claims. It keeps the courts free of those cases, and it saves prospective defendants from the time and expense of defending them.

There is a two-year statute of limitations for wrongful death actions. If a plaintiff is going to file suit, he or she has two years to make that decision. That’s time enough to track down a lawyer (this isn’t hard to do; we’re all over the place), and for that lawyer to gather information, assess the complaint, and if it seems viable, to go forward with finding an expert to consult for a certificate of merit. Then, within that amount of time, the plaintiff creates this nice package and files it with the appropriate court.

Except things aren’t always that easy. And while two years is a long time, it’s also not necessarily that long. Ask anyone whose infant is suddenly a two-year-old, or someone whose kitchen remodeling project was supposed to take six months but has somehow stretched into four times that. It all depends on your perspective. It seems possible that by the time a prospective plaintiff has met with a lawyer, and all the right investigation has been done, that it’s close to the two-year mark. Never fear! If a plaintiff can’t get their certificate of merit in time, it’s possible to file in the appropriate court to ask for a 90-day extension of the statute of limitations so that the whole package can get filed together.

This all takes us to the McClellan case. Betty Jo McClellan died in May of 2013. Her mom was the administrator of her estate, and filed a wrongful death action on behalf of the estate. She alleged that Betty Jo died as a result of an inappropriate mix of medications prescribed by her doctor. She alleged this combination of drugs was what caused Betty Jo's death. The suit was filed just two days before the statute of limitations ran in May of 2015.

The doctor-defendant responded with a motion to dismiss, saying that the estate failed to file the necessary certificate of merit. The estate responded with a motion to amend the complaint asking for permission to add the certificate. The trial court said, “Nope” and dismissed the case.

The estate appeals, and the SCOV majority agrees with the trial court.

Here are the problems, as the majority sees it. First of all, by the time the plaintiff sought permission to “amend” and to add the certificate of merit, the statute of limitations had actually completely run. Had the plaintiff filed much sooner and the case was dismissed, then plaintiff could get the certificate of merit and re-file.

Second, even though it’s permissible to ask for 90 additional days to be tacked onto the statute of limitations in order to secure a certificate of merit, the majority reads this to mean that the motion to extend must be filed before the complaint. They reason that this is because the statute clearly requires that the certificate and the complaint be filed simultaneously. The majority takes a look at other states that have rules similar to Vermont, and reasons that several require the simultaneous filing.

The majority also points out that this simultaneous filing requirement effectively makes the certificate itself a part of the pleading. Although we have very liberal pleading rules in Vermont, and amendments are allowed, what the plaintiff did here was more than seek to amend. There just wasn’t a certificate of merit. If there had been a certificate filed that needed to be amended, that would have been permissible. The certificate itself is what gets the claim in the door. It’s the golden ticket of the wrongful death case.

The plaintiff also tried to argue that the case should continue to go forward on non-wrongful death grounds. The trial court dismissed that and SCOV agrees. The only injury pled was Betty Jo’s death, not injuries suffered prior to her death. There’s really no grounds to go forward.

The Chief Justice dissents. He feels the “motion to amend” should have been treated as an extension petition, because based on how it was written, that’s effectively what it was. The point of the statute requiring the certificate of merit is to ferret out non-meritorious claims, not to make it easy to toss cases on a motion to dismiss. That’s why we have liberal pleading rules in Vermont—to help with access to courts and to make sure cases get heard rather than thrown out on hyper-specific points. Furthermore, the statute doesn’t actually say anything about the request for an extension of time being made prior to the expiration of the statute of limitations, so the fact that the plaintiff made the motion/petition during the initial pleading stage may actually have been contemplated by the statute.

The dissent also points out that the pleading itself covered what should have been covered in the certificate of merit. It set forth the standard of care, and the alleged acts by the doctor that fell below the standard of care and how that caused the injury. Last, the statute only requires that the certificate of merit cover injuries suffered after February 1, 2013. The initial pleading suggested the doctor’s course of treatment with Betty Jo actually started back in 2009. The dissent takes the position that at the pleading stage the point is not to try the case, but to allege sufficient facts to form the basis of a claim at all. The dissent reasons that this complaint had enough to go forward.