Hanflik v. Ratchford

• Decision Date: 25 February 1994
• Docket Number: Civ. No. 1:91-cv-2601-JEC.
• Citation: 848 F. Supp. 1539
• Parties: Robert D. HANFLIK and wife Susan E. Hanflik, Plaintiff, v. Walter J. RATCHFORD, M.D., Ratchford and McDaniel, P.C., and Its Employees, Agents and Servants, Defendant.
• Court: U.S. District Court — Northern District of Georgia

848 F. Supp. 1539

Robert D. HANFLIK and wife Susan E. Hanflik, Plaintiff, v. Walter J. RATCHFORD, M.D., Ratchford and McDaniel, P.C., and Its Employees, Agents and Servants, Defendant.

Civ. No. 1:91-cv-2601-JEC.

United States District Court, N.D. Georgia, Atlanta Division.

February 25, 1994.

COPYRIGHT MATERIAL OMITTED

Eugene R. Kiser, Atlanta, GA, for plaintiff.

Judson Graves, Holly B. Barnett, Atlanta, GA, for defendant.

ORDER

CARNES, District Judge.

This case is before the Court on defendants' Motion for Summary Judgment 29-1 and defendants' Motion for Leave to Amend Answer 32-1. The Court has reviewed the record and the arguments of the parties and, for the reasons set out below, concludes that both of defendants' motions should be granted.

BACKGROUND

This case arises out of defendants' alleged medical malpractice in the treatment of plaintiff Susan E. Hanflik. Plaintiffs allege that defendants' negligence caused plaintiffs' baby to be stillborn due to defendants' failure to perform a cesarian section in time to save the baby. All of the acts complained of took place on September 25, 1984. On September 15, 1986, plaintiffs filed suit for medical malpractice, in which plaintiffs alleged that defendants caused the wrongful death of their son, in the State Court of Fulton County, Georgia. On April 29, 1991, plaintiffs dismissed their state court action, pursuant to O.C.G.A. § 9-2-61.¹ On October 25, 1991, plaintiffs filed their complaint in this Court.

DISCUSSION

I. Introduction.

In support of their Motion for Summary Judgment, defendants argue that plaintiffs' claim is barred by Georgia's statute of repose applicable to medical malpractice cases. See O.C.G.A. §§ 9-3-71(b)-(c) (Supp.1993). In response, plaintiffs argue that defendants waived their statute of repose defense by failing to raise such defense in their answer to plaintiffs' Complaint. (Pls.' Br. in Resp. to Defs.' Mot. for Summ. J. at 12). Alternatively, plaintiffs argue that, even if defendants' statute of repose defense were properly before the Court, it would be unconstitutional to apply Georgia's medical malpractice statute of repose to plaintiffs' case, as such application would constitute an impermissible retroactive application. Id. at 9. Additionally, plaintiffs argue that the application of Georgia's medical malpractice statute of repose to any wrongful death case is unconstitutional on equal protection grounds. Id. at 3.

Defendants' response to plaintiffs' arguments rests on three alternative grounds. Defendants first argue that application of Georgia's medical malpractice statute of repose to plaintiffs' case is constitutional and does not constitute an unconstitutional retroactive application of a substantive law. (Defs.' Reply in Supp. of Defs.' Mot. for Summ. J. at 1-7). Secondly, defendants argue that plaintiffs were on notice that their Complaint was untimely and that it would be disingenuous of them now to assert that they were not, given that defendants had expressly raised statute of limitation, but not repose, as the fourth defense in their Answer. Id. at 7. Additionally, defendants argue that any failure to plead statute of repose in the Answer "is now an irrelevant and moot point, since the Pre-Trial Order required by the local rules, on its face supersedes the original pleadings. (LR, NDGa, 235-4)." Id. at 8. Defendants have also sought leave to amend their answer in order to resolve any ambiguity with respect to the appropriateness of the statute of repose arguments in their Motion for Summary Judgment.

II. Defendant's Motion for Leave to Amend Answer.

Defendants have moved to amend their answer pursuant to Rule 15 of the Federal Rules of Civil Procedure. Defendants' proposed amendment expressly includes, as defendants' third affirmative defense, reliance on the statute of repose. In their original answer, defendants had asserted that plaintiffs' claims were barred by the applicable statute of limitation, but included no express reference to the applicable statute of repose.

Rule 15(a) of the Federal Rules of Civil Procedure ("Rule 15(a)") provides that a party may amend its pleading as a matter of course within twenty days after the pleading is served, if no responsive pleading is necessary. If the party waits longer than twenty days, the party may amend only by leave of the court or by written consent of the adverse party. Id. Because plaintiff has not consented to defendants' amendment and because more than twenty days have passed since defendants filed their original answer², defendants have moved for leave to amend.

Rule 15(a) provides that leave to amend a pleading shall be "freely given when justice so requires." "Courts have interpreted amendment provisions liberally, in line with the Federal Rules' overall goal of resolving disputes, insofar as possible, on the merits and in a single judicial proceeding." Spartan Grain & Mill Co. v. Ayers, 517 F.2d 214, 220 (5th Cir.1975).³ In explaining the amendment standard, the Eleventh Circuit has observed that "unless a substantial reason exists to deny leave to amend, the discretion of the district court is not broad enough to permit denial." Shipner v. Eastern Air Lines, Inc., 868 F.2d 401, 407 (11th Cir.1989). In determining whether a substantial reason exists to deny leave to amend, the district court should consider the following factors: (1) undue delay, bad faith, or dilatory motive on the part of the movant, (2) repeated failure to cure deficiencies by amendments previously allowed, (3) undue prejudice to the opposing party by virtue of the allowance of the amendment, and (4) futility of amendment. Nolin v. Douglas County, 903 F.2d 1546, 1550 (11th Cir.1990).

In opposing amendment, plaintiffs have focused on the "delay" and "prejudice" factors. With regard to the issue of undue delay, plaintiffs argue that defendants waived any possible statute of repose defense by failing to move to amend their answer until approximately twenty months after filing the original answer. Plaintiffs also appear to argue that defendants' motion to amend is not properly before the Court at this time as defendants' raised the defense of repose in the proposed Consolidated Pre-Trial Order and because defendants' Motion for Summary Judgment "may dispose of the necessity of their late Motion to Amend." (Pls.' Opp'n to Defs' Mot. for Leave to Amend at 1). The Court finds plaintiffs' arguments unpersuasive.

Plaintiffs correctly note that defendants waited approximately twenty months to move for leave to amend. Defendants counter, however, that a defense based on the statute of repose constitutes an argument that a claim is time-barred and that plaintiffs were on notice that defendants were asserting that plaintiffs' claim was time-barred at the time defendants filed their original Answer, because, in that Answer, defendants raised the statute of limitation as an affirmative defense. Defendants' argument is bolstered by the confusion that has existed with respect to Georgia's statutes of limitation and repose for medical malpractice claims.

Both the applicable statute of limitation and statute of repose are codified at O.C.G.A. § 9-3-71. Although this code section is entitled "General limitation", subsection "(a)" contains the two year statute of limitation while subsections "(b)" and "(c)" contain the five year statute of repose and abrogation. O.C.G.A. § 9-3-71 (1982, Supp.1993) (emphasis added). In addition, prior to the Georgia Supreme Court's decision in Wright v. Robinson, 262 Ga. 844, 426 S.E.2d 870 (1993), it was unclear whether the tolling provisions of O.C.G.A. § 9-2-61 would operate to toll the limitation provision of § 9-3-71(a), only, or would also toll the repose provisions of §§ 9-3-71(b) & (c), as well. As defendants' amendment does no more than clarify their reliance on subsections "(b)" and "(c)", rather than solely on subsection "(a)", of § 9-3-71, the Court finds defendants' arguments regarding notice to plaintiffs persuasive.

Moreover, defendants expressly raised their statute of repose defense in Attachment "D" of the Proposed Consolidated Pretrial Order, filed approximately eleven months after the original Answer and approximately twelve months after the Complaint. While the Court finds defendants' arguments that the Consolidated Pre-Trial Order "supersedes all of the pleadings in this case"⁴ misplaced, as the Order was never signed, it does find that plaintiffs were on notice of the repose defense and failed to raise any objection to such defense.⁵ Accordingly, the Court does not find that substantial reason exists to deny defendants' Motion for Leave to Amend due to any delay in making the motion.

Plaintiffs also argue that defendants' Motion for Leave to Amend should be denied because of undue prejudice to plaintiffs. In their opposition to defendants' Motion for Leave to Amend, plaintiffs never explain, however, how they would be prejudiced by the amendment. To the extent that plaintiffs are prejudiced because they are less likely to ultimately prevail in their lawsuit, this type of "prejudice" does not appear to the Court to be the type that would warrant the disallowance of the amendment, pursuant to Eleventh Circuit precedent. Because plaintiffs have failed to demonstrate how they would be prejudiced by defendants' proposed amendment, the Court concludes that plaintiffs have not made a sufficient showing of prejudice. See generally Drexel Burnham Lambert, Inc. v. Edwards, 100 F.R.D. 422, 425 (N.D.Ga.1983) (Forrester, J.) (holding that amendment that would require reopening of discovery and impose upon party additional expense and delay in action that had been pending for nearly four years would not be allowed).

The Court finds plaintiffs' arguments that defendants' Motion for Leave to Amend is not properly before the Court equally unavailing. Plaintiff argues that there is no need for the Court to address defendants' motion, as the Court's...