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Ipock v. Manor Care of Tulsa Ok, LLC

United States District Court, N.D. Oklahoma

April 4, 2017

BRIAN IPOCK, individually and as Special Administrator of the Estate of Janice Maybeth Ipock, deceased, Plaintiff,
v.
MANOR CARE OF TULSA OK, LLC, d/b/a ManorCare Health Services-Tulsa, Defendant.

          OPINION AND ORDER

          CLAIRE V. LAGAN UNITED STATES DISTRICT JUDGE.

         Now 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 8-16.

         I.

         Janice 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 representatives.” Id.

         On 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.

         II.

         The 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.

         The 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.”).

         The 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 & ...


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