                        NOT RECOMMENDED FOR PUBLICATION
                                File Name: 20a0501n.06

                                          No. 19-6308

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                     FILED
 DEBRA BRUSCH,                                          )                      Aug 26, 2020
                                                        )                  DEBORAH S. HUNT, Clerk
         Plaintiff-Appellant,                           )
                                                        )
 v.                                                     )      ON APPEAL FROM THE
                                                        )      UNITED STATES DISTRICT
 UNITED STATES OF AMERICA, et al.,                      )      COURT FOR THE MIDDLE
                                                        )      DISTRICT OF TENNESSEE
         Defendants-Appellees.                          )
                                                        )


         BEFORE: GILMAN, BUSH, and READLER, Circuit Judges.

         JOHN K. BUSH, Circuit Judge. Debra Brusch, on behalf of her deceased husband

Robert Brusch, brought this medical-malpractice action against the Veteran’s Administration

hospital (“VA”), the Department of Veteran’s Affairs, and the United States. She alleged that

physicians at the VA failed to treat her husband’s enlarged spleen, which ultimately led to his

death.   Mrs. Brusch sued in federal court under the Federal Tort Claims Act, 28 U.S.C.

§ 1346(b)(1) (“FTCA”), alleging a single count of medical malpractice. The district court

dismissed her claim because she failed to file a certificate of good faith with her complaint, as

required by the Tennessee Health Care Liability Act, Tenn. Code Ann. § 29-26-122 (“THCLA”).

After the district court entered judgment against Brusch, but before this appeal, we held that a

similar requirement under Ohio’s Rules of Civil Procedure to file a certificate of good faith in

medical-malpractice actions does not apply in federal court. See Gallivan v. United States, 943

F.3d 291, 294 (6th Cir. 2019). Brusch did not cite Gallivan in her regular briefing or make any
No. 19-6308, Brusch v. United States


argument to the district court similar to the reasoning of Gallivan. She addressed the impact of

Gallivan on this case only in a supplemental brief after being requested to do so by the court.

Plain-error review applies to this issue because it was not raised in the principal briefing or in the

district court. Brusch did, however, properly raise the claim that the good-faith certificate

requirement should not apply in her case and that she should be allowed to amend her complaint,

so we review that argument de novo. For the reasons set forth below, we AFFIRM the judgment

of the district court.

                                                   I.

          Mr. Brusch was under the care of the VA in Nashville, Tennessee from 2008 to 2016. In

2010, he was diagnosed with a moderately enlarged spleen, for which he received no treatment.

In 2014, he was diagnosed with hypersplenism, a condition that can lead to cirrhosis of the liver

and other significant complications. Despite these diagnoses, Mrs. Brusch alleges that her husband

received no treatment and that he died from complications reasonably traceable to his enlarged

spleen.

          Mrs. Brusch originally filed an administrative complaint with the VA on June 4, 2018.

After the VA failed to respond, she filed a complaint in the United States District Court for the

Middle District of Tennessee. In that complaint, she alleged that Dr. Silva-Hale, a physician

employed at the VA, diagnosed but did not treat Robert’s enlarged spleen. Brusch also alleged

that Dr. Silva-Hale’s failure to treat Robert’s enlarged spleen led to the conditions that ultimately

brought about his death.

          Under Tennessee law, “[i]n any health care liability action in which expert testimony is

required by [Tennessee law], the plaintiff or plaintiff’s counsel shall file a certificate of good faith

with the complaint.” Tenn. Code Ann. § 29-26-122(a). Absent some exceptions not relevant here,



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a plaintiff’s failure to file a certificate of good faith requires dismissal with prejudice. Id. § 29-26-

122(c).

          Brusch failed to file such a certificate. Because of this failure, the district court dismissed

Brusch’s complaint, holding that “a health care liability action not accompanied by a certificate of

good faith must, upon motion, be dismissed with prejudice.” Brusch v. United States, No. 3-19-

cv-00415, 2019 WL 5261105, at *1 (M.D. Tenn. Oct. 17, 2019) (citing Tenn. Code Ann. § 29-26-

122(a), (c) and Ellithorpe v. Weismark, 479 S.W.3d 818, 829 (Tenn. 2015)). Brusch filed this

timely appeal.

                                                    II.

          Liability for suits brought under the FTCA is governed by state law. Premo v. United

States, 599 F.3d 540, 545 (6th Cir. 2010). The FTCA directs us to apply the substantive law of

Tennessee to Brusch’s claims because that is where the alleged omission occurred. See 28 U.S.C.

§ 1346(b)(1) (granting jurisdiction to claims against the United States or its employees “under

circumstances where the United States, if a private person, would be liable to the claimant in

accordance with the law of the place where the act or omission occurred”).

          But, as with all federal actions governed by state substantive law, federal law still governs

the procedural aspects of the case. Gallivan v. United States, 943 F.3d 291, 294 (6th Cir. 2019)

(noting that “although substantive state law governs the merits of a FTCA claim, the Federal Rules

govern procedural issues); see also Fed. R. Civ. P. 1 (“These rules govern the procedure in all

civil actions . . . .”). We recently held in Gallivan that a similar Ohio affidavit requirement could

not be applied in federal court in a case brought under the FTCA. See 943 F.3d at 294.

          Brusch failed to raise the argument that the good-faith affidavit requirement should not

apply in federal court in her principal brief, and she presented the argument only at the request of



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No. 19-6308, Brusch v. United States


the panel, so we review for plain error. See Owens Corning v. Nat’l Union Fire Ins. Co., 257 F.3d

484, 493 n.4 (6th Cir. 2001). Under plain-error review, Brusch must show “(1) error (2) that ‘was

obvious or clear,’ (3) that ‘affected [her] substantial rights[,]’ and (4) that ‘affected the fairness,

integrity, or public reputation of the judicial proceedings.’” United States v. Vonner, 516 F.3d

382, 386 (6th Cir. 2008) (en banc) (quoting United States v. Gardiner, 463 F.3d 445, 459 (6th Cir.

2006)).

          “An error is ‘plain’ when, at a minimum, it ‘is clear under current law.’” United States v.

Al-Maliki, 787 F.3d 784, 794 (6th Cir. 2015) (quoting United States v. Olano, 507 U.S. 725, 734

(1993)); see also United States v. Woodruff, 735 F.3d 445, 450 (6th Cir. 2013) (finding no plain

error when “[a]t the time of the district court’s decision, the law in this circuit consisted of [one]

unpublished case”).

          Because the law was not clear at the time that the district court dismissed Brusch’s

complaint, the district court did not commit plain error by dismissing Brusch’s complaint for

failure to comply with the THCLA. The district court dismissed Brusch’s complaint on October

17, 2019, and Gallivan was not decided until November 7, 2019. When the district court dismissed

Brusch’s complaint, the law in the Sixth Circuit was far from clear that the THCLA’s good-faith

affidavit requirement should not apply in federal court. At least three unpublished Sixth Circuit

decisions, issued prior to the district court’s ruling and before Gallivan, had construed the good-

faith certificate requirement as substantive and applied the THCLA. See, e.g., Burns v. United

States, 542 F. App’x 461, 463–64 (6th Cir. 2013) (noting that “Section 29-26-122 is substantive

Tennessee law applicable to FTCA cases which arise in that state”); Southwell v. Summit View of

Farragut, LLC, 494 F. App’x 508, 511–12 (6th Cir. 2012) (stating that “[Plaintiff] asserts no

reason for her failure to follow the [Tennessee notice and good-faith certificate] requirements, and



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No. 19-6308, Brusch v. United States


we cannot find any in the record. As such, we affirm the district court's dismissal of [Plaintiff’s

Tennessee Medical Malpractice Act] claim”); Reed v. Speck, 508 F. App’x 415, 422–23 (6th Cir.

2012) (holding that the “Appellants had the means to timely file a notice requirement and a

certificate of good faith . . . and simply failed to do so” and therefore “[b]ecause Appellants have

failed to demonstrate compliance with the mandatory Tennessee statute or show ‘extraordinary

cause’ to excuse compliance, the district court properly held that Appellants failed to plead a claim

for medical malpractice”). Therefore, it was not plainly erroneous for the district court to apply

the THCLA’s good-faith-certificate requirement to Brusch’s suit.

         Turning to the issues properly raised in Brusch’s appeal, the district could did not err by

dismissing Brusch’s complaint with prejudice for failure to file a certificate of good faith with her

complaint. The language of the THCLA is clear that “[i]f the certificate is not filed with the

complaint, the complaint shall be dismissed.” Tenn. Code Ann. § 29-26-122(a) (emphasis added).

Upon motion, the action is subject to dismissal with prejudice. Id. at § 29-26-122(c). Absent two

exceptions that do not apply here, such a failure to file a good-faith certificate requires dismissal

with prejudice. Myers v. AMISUB (SFH), Inc., 382 S.W.3d 300, 310–12 (Tenn. 2012). Brusch’s

counsel conceded at oral argument that she neglected to file a certificate with the complaint.

Therefore, upon motion, the action was subject to dismissal with prejudice.

         Because the relevant caselaw actually favored the application of the THCLA at the time

the district court dismissed Brusch’s complaint, there was no plain error.1

                                                        III.

         For the foregoing reasons, the judgment of the district court is AFFIRMED.




1
  We do not rule on the issue of whether Tennessee’s good-faith-certificate requirement applies in federal court. That
is a question better left for another day when the panel has the benefit of full briefing on the matter.

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No. 19-6308, Brusch v. United States


       CHAD A. READLER, Circuit Judge, concurring. I concur in the dismissal of Brusch’s

malpractice claims. In reaching that conclusion, the majority opinion understandably references

our recent decision in Gallivan v. United States, which, while addressing an Ohio procedural rule

(not Tennessee law), arguably has some controlling force here. Maj. Opinion at 3; 943 F.3d 291

(6th Cir. 2019). In Gallivan, we used a diversity-jurisdiction framework to determine whether that

Ohio procedural rule should apply in a federal forum. 943 F.3d at 293 (citing Shady Grove

Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 398 (2010)). The parties there

apparently treated the case as one sitting in diversity, and we thus appear to have accepted that

understanding. But as the FTCA served as the basis for our jurisdiction both here and there, the

better approach to these cases seemingly would be to view them through the lens of federal

question jurisdiction. 28 U.S.C. § 1346(b)(1) (granting the district courts exclusive jurisdiction

over cases arising out of federal-government-employee negligence); Luna v. United States, 454

F.3d 631, 635 (7th Cir. 2006) (“The district court had subject-matter jurisdiction because [plaintiff]

brought her claim under the FTCA, which is to say she presented the district court with a federal

question.”); see also Jude v. Comm’r of Soc. Sec., 908 F.3d 152, 158 (6th Cir. 2018) (“State tort

law provides the substance of a claim that gains its jurisdictional basis through the FTCA.”). In

that posture, we need not balance the competing interests between state and federal law like we do

in diversity-jurisdiction cases. Rather, we simply apply federal substantive and procedural law.

       One wrinkle here is the fact that the FTCA, the federal substantive law at issue, commands

that we apply state substantive law in this otherwise federal setting. 28 U.S.C. § 1346(b)(1); see

also Premo v. United States, 599 F.3d 540, 546 (6th Cir. 2010) (characterizing § 1346(b)(1) as a

“choice of law” provision). So if the Tennessee good-faith certificate requirement is substantive,

the FTCA demands we apply it in this proceeding. As the majority opinion again correctly



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observes, however, we appropriately leave that question for another day. See Williams v. United

States, 754 F. Supp. 2d 942, 948–53 (W.D. Tenn. 2010) (finding that Tennessee’s good-faith

certificate requirement is substantive and collecting cases holding that similar requirements are

substantive). But see Ellithorpe v. Weismark, 479 S.W.3d 818, 825 (Tenn. 2015) (“While the 2008

and 2009 amendments to the Tennessee Medical Malpractice Act established new procedural

requirements for plaintiffs seeking to file medical malpractice actions. . . .”) (emphasis added).




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