United States District Court, N.D. Oklahoma
BRIAN IPOCK, individually and as Special Administrator of the Estate of Janice Maybeth Ipock, deceased, Plaintiff,
MANOR CARE OF TULSA OK, LLC, d/b/a ManorCare Health Services-Tulsa, Defendant.
OPINION AND ORDER
V. LAGAN UNITED STATES DISTRICT JUDGE.
before the Court are defendant's motion to dismiss (Dkt.
# 10) and, in the alternative, defendant's motion to
compel arbitration and stay these proceedings (Dkt. # 8).
Defendant argues that plaintiff's suit should be
dismissed for failure to attach an affidavit of merit to his
petition as required by Okla. Stat. tit. 12, § 19.1.
Dkt. # 8, at 9-10. Defendant also argues that plaintiff is
bound by an arbitration agreement and that the arbitration
agreement compels arbitration of plaintiff's claims. Dkt.
# 8, at 7-8. Plaintiff responds that his suit should not be
dismissed for failure to comply with § 19.1 for three
alternate reasons: (1) plaintiff does not need to comply with
§ 19.1 because it is a state procedural requirement that
conflicts with federal pleading requirements; (2) the
investigative report he attached fulfills § 19.1; and
(3) § 19.1 violates the Oklahoma Constitution. Dkt. #
12. Plaintiff also argues that, because he did not sign the
arbitration agreement, he is not bound by it. Id. at
Maybeth Ipock was a resident at ManorCare Health
Services-Tulsa (ManorCare), a nursing home in Tulsa,
Oklahoma, from December 2014 until her death on February 10,
2015. Dkt. # 8-1, at 1. In late December 2014, Mrs.
Ipock's husband, Duncan Ipock, signed an arbitration
agreement as Mrs. Ipock's legal representative in his
representative capacity. Dkt. # 8-2. The arbitration
agreement states that all claims arising out of or relating
to Mrs. Ipock's time at ManorCare, including claims for
malpractice, would be submitted to arbitration. Id.
at 1. The arbitration agreement also states that the parties
intend the agreement to “benefit and bind [ManorCare],
its parent, affiliates, and subsidiary companies, and [to]
benefit and bind [Mrs. Ipock], [her] successors, spouses,
children, next of kin, guardians, administrators, and legal
February 9, 2017, plaintiff Brian Ipock, individually and as
special administrator of Mrs. Ipock's estate, filed this
suit against defendant Manor Care of Tulsa OK, L.L.C. Dkt. #
8-1. Plaintiff asserts that defendant acted recklessly and/or
negligently in its care and treatment of Mrs. Ipock.
Id. at 2. Plaintiff alleges two causes of action,
negligence and wrongful death. Id. Plaintiff
attached to his petition a 2015 investigative report written
by the Oklahoma State Department of Health, which found that
defendant “neglected to assess, monitor and intervene,
” “failed to provide therapeutic diets and
accommodate residents' dietary needs, ” and
“failed to ensure residents received medications and
treatments as ordered by the physician.” Dkt. # 2-3, at
6. Defendant now moves to dismiss, or in the alternative, to
compel arbitration and stay these proceedings.
Court will first consider defendant's motion to dismiss.
Defendant argues that this case should be dismissed due to
plaintiff's failure to comply with Okla. Stat. tit. 12,
§ 19.1. Dkt. # 8, at 9-10. Section 19.1 provides that:
In any civil action for negligence wherein the plaintiff
shall be required to present the testimony of an expert
witness to establish breach of the relevant standard of care
and that such a breach of duty resulted in harm to the
plaintiff, . . . the plaintiff shall attach to the petition
an affidavit attesting that:
a. the plaintiff has consulted and reviewed the facts of the
claim with a qualified expert,
b. the plaintiff has obtained a written opinion from a
qualified expert that clearly identifies the plaintiff and
includes the determination of the expert that, based upon a
review of the available material including, but not limited
to, applicable records, facts or other relevant material, a
reasonable interpretation of the facts supports a finding
that the acts or omissions of the defendant against whom the
action is brought constituted negligence, and
c. on the basis of the review and consultation of the
qualified expert, the plaintiff has concluded that the claim
is meritorious and based on good cause.
Okla. Stat. tit. 12, § 19.1. Plaintiff argues that this
suit should not be dismissed for failure to comply with
§ 19.1 for three reasons: (1) plaintiff does not need to
comply with § 19.1 in a diversity case in federal court;
(2) the investigative report he attached fulfills §
19.1; and (3) § 19.1 violates the Oklahoma Constitution.
Dkt. # 12.
Tenth Circuit has not decided whether § 19.1 applies in
diversity cases, and district courts are split on the issue.
Compare Sanders v. Glanz, 138 F.Supp.3d 1248, 1261
(N.D. Okla. 2015) (compliance with § 19.1 not required
in diversity cases), and Doe v. Defendant A, No.
12-CV-392-JHP-TLW, 2012 WL 6694070, at *8 (N.D. Okla. Dec.
21, 2012) (same), and Horsechief v. U.S. ex rel.
Dep't of Health & Human Serv. ex rel. Indian Health
Serv., No. 10-CV-614-JHP-TLW, 2012 WL 5995691, at *2
(N.D. Okla. Nov. 30, 2012) (same), and Spottedcorn v.
Advanced Correctional Healthcare, Inc., No.
CIV-11-1096-C, 2011 WL 6100653, at *1 (W.D. Okla. Dec. 7,
2011) (same), with Martin v. U.S. ex rel. Dep't of
Health & Human Serv., 15-CV-487-CVE-TLW, 2016 WL
3566863, at *4 (N.D. Okla. June 24, 2016) (plaintiff must
comply with § 19.1 in diversity cases), and Norman
v. U.S. ex rel. Veteran's Admin. Med. Ctr., No.
CIV-12-663-C, 2013 WL 425032, at *1-2 (W.D. Okla. 2013)
(same), and Flud v. U.S. ex rel. Dep't of Veterans
Affairs, No. 10-CV-725-GFK-TLW, 2011 WL 2551535, at *2
(N.D. Okla. June 27, 2011), rev'd on other
grounds, 528 F. App'x 796 (10th Cir. 2013) (same).
Moreover, this issue is not unique to Oklahoma; many states
have statutes requiring affidavits of merit, and federal
courts have been conflicted over their applicability in
diversity suits for decades. See Jones v. Corr. Med.
Serv., Inc., 845 F.Supp.2d 824, 854 n.11 (W.D. Mich.
2012) (collecting cases); see also State Auto. Mut. Ins.
Co. v. Dunhill Partners, Inc., No. 3:12-cv-03770-P, 2013
WL 11821466, at *5 (N.D. Tex. May 28, 2013) (“In the
past three years alone, at least two district courts have
analyzed whether section 150.002 applies in federal court and
each reached a different conclusion. . . . Stated mildly,
this is an area where there are reasonable grounds for
differences in opinion.”).
first step in determining whether § 19.1 applies in a
diversity suit is to conclude whether § 19.1 is in
“direct collision” with any federal procedural
rule. Hanna v. Plumer, 380 U.S. 460, 472 (1965);
see also Scottsdale Ins. Co. v. Tolliver, 636 F.3d
1273, 1276-77 (10th Cir. 2011). “The question is not
whether the federal and state rules overlap. Rather, it is
‘whether, when fairly construed, the scope of [the
Federal Rule] is sufficiently broad' to cause a direct
collision with the state law or, implicitly, to control the
issue before the court, thereby leaving no room for operation
of [the state] law.'” Trierweiler v. Croxton