Medical malpractice “certificate of merit” statutes are pieces of state legislation designed to reduce frivolous malpractice lawsuits and associated costs. Although the statutes vary in the requirements they place on litigants and in the breadth of lawsuits to which they apply, they all require the plaintiff in a malpractice action to consult with an expert either before the suit is filed or within a fixed period of time thereafter.

This Comment addresses whether, under the Erie doctrine, these statutes are applicable in federal court. It then considers the policy implications of the answer. This Comment concludes that the statutes are not applicable in federal court. A faithful application of Hanna and its progeny—including the Supreme Court’s recent decision in Shady Grove—shows that the vast majority of the statutes conflict with one or more of the Federal Rules of Civil Procedure. The few that are not clearly in conflict are not outcome determinative when that test is applied as Hanna instructs. As to the policy question, this Comment observes that Hanna tends to require the subordination in federal court of certain state laws designed to regulate specific areas of policy. Questioning whether reform is needed to provide greater protection, this Comment analyzes both radical and moderate suggestions for reforming the Erie doctrine, incorporating where appropriate the three main viewpoints represented in Shady Grove. The policy discussion concludes by analyzing how a moderate adjustment to Hanna might affect the certificate of merit issue.

Part I contains a brief discussion of the timeliness of this issue, followed by an overview of the statutes currently enacted, a survey of past decisions, and a review of other scholarly works. In order to determine whether these statutes conflict with the Federal Rules, Section II.A analyzes the decisions in which the Supreme Court has indicated whether or not a state statute and a Federal Rule conflict. To the extent possible, that Section extracts the legal principles animating those decisions and uses them as a framework to analyze whether various state statutes conflict with Rules 8, 9, 11, 12, 26, and 37. Concluding that conflicts do exist, the discussion in Section II.A points out errors in the reasoning of the courts that have concluded otherwise. Section II.B discusses the modified outcome determination test and how its application reveals a paradox built into Hanna, which favors the application of federal law. Part III discusses policy implications.

Uniformity, Federalism, and Tort Reform: The Erie Implications of Medical Malpractice Certificate of Merit Statutes