Hal Love v. United States

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0689n.06
No. 11-6313 FILED
Jul 29, 2013
UNITED STATES COURT OF APPEALS DEBORAH S. HUNT, Clerk
FOR THE SIXTH CIRCUIT
HAL G. LOVE, )
)
Plaintiff-Appellant, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE WESTERN
UNITED STATES OF AMERICA, ) DISTRICT OF TENNESSEE
)
Defendant-Appellee. )
)
BEFORE: GIBBONS, SUTTON, and KETHLEDGE, Circuit Judges.
PER CURIAM. Hal G. Love, a Tennessee citizen, appeals through counsel a district court
judgment granting the government’s motion for judgment on the pleadings in an action he filed
under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671 et seq.
Love filed this complaint in 2010, alleging that the treatment he received from the Veterans
Administration amounted to medical malpractice. Specifically, he alleged that he was not treated
for a condition that caused his intestines to collapse one of his lungs and paralyze his diaphragm,
rendering him chronically short of breath.
The government filed a motion for judgment on the pleadings pursuant to Federal Rule of
Civil Procedure 12(c), pointing out that Love had failed to file a certificate of good faith, as required
by Tennessee Code Annotated § 29-26-122. That statute requires a plaintiff in a medical malpractice
No. 11-6313
Love v. United States
action to state that he has consulted with an expert who has reviewed the medical records and
believes that there is a good faith basis for maintaining the action. The district court twice, on
February 22, 2011 and April 22, 2011, granted Love thirty-day extensions to file a certificate of good
faith or explain why he could not do so. On September 21, 2011, Love filed an affidavit from a
nurse practitioner who had been practicing in Tennessee since 2001. The district court thereafter
granted the government’s motion for judgment on the pleadings, concluding that Love had failed to
timely file a certificate of good faith, and that the expert’s affidavit he submitted did not comply with
Tennessee Code Annotated § 29-26-115(b), which requires that the expert have practiced during the
year preceding the alleged wrongful acts. Love alleged that the VA was aware of his condition and
failed to treat him since 1994.
On appeal, Love argues that the government waived the defense of the lack of a certificate
of good faith because it did not raise the issue as an affirmative defense in its answer. Alternatively,
he argues that the affidavit of the nurse practitioner was sufficient to comply with the statute.
Finally, he complains that the district court failed to hold a hearing on the motion for judgment on
the pleadings. We review a judgment on the pleadings de novo. Tucker v. Middleburg-Legacy
Place, LLC, 539 F.3d 545, 549 (6th Cir. 2008).
Love’s first argument is that the government waived the defense of failure to file a certificate
of good faith by not raising it as an affirmative defense in its answer. The government contests this
interpretation, asserting that it alleged that Love failed to state a claim, an allegation sufficient to
raise the defense. We need not resolve the dispute, however, as a defense is not necessarily waived
if it is raised by motion, the plaintiff has the opportunity to respond, and no prejudice results. See
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No. 11-6313
Love v. United States
Smith v. Sushka, 117 F.3d 965, 969 (6th Cir. 1997). Here, the district court provided Love with
ample opportunity to respond to the defense motion. Moreover, Love did not argue below that the
government had waived this defense by failing to raise it in its answer. Absent exceptional
circumstances not present here, we do not consider arguments raised for the first time on appeal. See
United States v. Isaiah, 434 F.3d 513, 522 (6th Cir. 2006).
Love next argues that the affidavit he submitted was sufficient to comply with the statute.
However, he fails to note that he did not submit the affidavit timely. The district court also found
that Love’s expert was not qualified under the statute. Finally, Love complains that no hearing was
held. However, he admits that there is no requirement for a hearing in the statute and, again, he did
not request a hearing below.
Accordingly, we affirm the district court’s judgment.
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