rebuttal time very well thank you honorable judges we are before this court today about a case on a case about a man who proudly served his country in the marine corps during the vietnam war who was who enlisted in was not drafted and during that service was exposed to chemicals including but not limited to agent orange and the contaminated water at camp was and that would cause him pain and suffering at the end of his life he turned to the v a for treatment and help it is also about a wife the appellant deborah brush who took care of her husband was at every visit in the room with him at the v a advocating and fighting against the system for his care and even continued to fight after his passing and how the policies of those caring for her husband caused him to suffer until his death from the ailments on the chart that mrs brush herself created that was included in the response brief mrs brush filed her file the claim with the veterans administration to address the mishandling of his care which the veterans administration need their dismissed nor denied in fact they never responded to it period at that point she filed her lawsuit under the federal tort claims act her case was dismissed because the co to mend her complaint to include a certificate nor agree that any law should not apply to federal cases involving the vid excuse me the veterans administration it is a substantive issue in tennessee and under tennessee code and a cadence section tw and twenty two if the certificate is not filed with the complaint then the suit must be dismissed with prejudice we are arguing that this requirement should not apply in federal cases involving the v a because the requirements for filing a complaint had a description of the complaint all of the scenes medical records from two thousand and eight until his death provided by the appellant and ample time to review those records and fact it was over a year between the time that the claim was filed with the veterans administration and the time in which the lawsuit was filed which is pursuant to the time limits under the federal tort claims act they did not deny the claim before the lawsuit was ever filed in the case before this honorable court they did not respond in the time allotted under the law and the suit was filed because ample time was given to review and declare the claimants frivolous tennessee code annotated requiring a good face to it stating that a doctor has reviewed the medical records and that there is a basis for the claim should not have been applied we are also arguing to tennessee law should not have barred the fight from being brought because it is also about the policy of the way in the treatment of its patients policies that doctors must follow such as only being allowed to fifteen minutes per patient regardless of whether more time is needed but they are not in the best interest of those patients therefore it was more than just a wrongful death due to medical malpractise and it could face it if it would not have shown that is the complaint against the policies of the veterans administration themselves and therefore the to the statute should not have been applied now and that's it if that if that scenario is right and i don't know that we would sort of look to federal procedural rules and to see if they're in conflict with state procedural or does so differently a federal procedural rules or answers the question then we don't need  law i would think we go to state law and state law as of what seems to be pretty substantive requirement it creates are the cause of action you have to have someone medically valid to claim essentially yes and that's like i said we you know are going to that because the v a had so long they could have experts review the medical records they could have denied the claims that really the tennessee good faith requirement is unnecessary and i believe in gallup are you ar uing that that i'm sorry counsel i'm sorry no arguing that under as a matter of state law it was not necessary to have a good faith certificate here because of the circumstances of your case i believe you are to be under both federal and state law i believe you know if applying the federal law the federal tort claims act applies to see state law to the merits of the case it does not specifically set forth that it applies the procedural rules and laws of the state to the federal i know what i'm getting at is the particular statute is tennessee statute is there are you making an argument that under the statute itself that you do not have to file a certificate of good faith because of exceptions that i know of under cases with the to see law is where the records have been requested and the plaintiff could not get the records in time from a medical professional and it shows  a leave a district court to amend your complaint or you could file write a certificate one that your argument yes it was that and that it should not have applied because they had had the records and that there really was no reason to have is just procedural and therefore not binding on the federal court you've got to you know you don't you have to show that there's plain error involved in the district court's decision yes your honor and so i mean at believe that our argument saying that the because they had had the records that it goes to the procedural issue of the federal the federal issue also that it's that it even though it's specifically did not say that it was a procedural not a based on the merits  give all the parties the opportunity to say that yes there is a there's a reason for this case here the v a had all that information back they had multiple years they had over a year to review those records and to determine their own whether or not and had they dismissed it as frivolous that i could see that in a good face if you get on our car may have been necessary but at the time you know it it because they had already had all the records they never responded that you know it's we feel that that that requirement should not have been applied in this case  i don't know about an admission your honor but at least that there is something they are and that you know that there was some type of argument to be made there there was something that could have been brought forth before the court to be you know fleshed out more in discovery  d in the court proceedings and in your rule your rule as of yet they only rule in other words if there is a claim against each h s for some kind of malpractise because it doesn't have the same preview requirements of the v a does that tennessee law would apply there but it doesn't apply in the special context of the v a and its pre filing review procedures yes sure at this point yes because it's you know it that we're dealing with the a there is such a massive amount of information that they're given they do have ample time to review their claim have experts review it the other cases you know not being familiar with them and they would have to be reviewed on a case by case basis that as i said that the main thing what to say is that you're wanting to prevent somebody just coming in and saying oh i've had a medical malpractise lawsuit but i don't have any medical records i don't have any kind of proof so we're going to take you to court and then you find honorable court's recent opinion in gallivan there are at least three reasons why prior to going into those three reasons the government does reiterate its position that sendings returning to the three reasons that i mentioned judge ray brewer touched on this in his questions the f t c a contains jurisdiction within itself it's a specific waiver of the united states sovereign immunity and exposure of the government to the jurisdiction of the courts the two important portions of the f t c eight for the purposes of this discussion are that united states would be liable as a private person here section one hundred and twenty two has been interpreted as a substantive state law as a mandatory directive that has an  effect of dismissing a case with prejudice if section one thousand and use not complied with a private person can't be liable and therefore under the f t c a the united states has not waived sovereign immunity and there is no use the word procedural more colloquially but the tennessee supreme court when it acted analyzed is this statute required what's its effect it said substantial compliance isn't enough it has to be strictly complied with it is a mandatory requirement and failure to comply with the court's ice letters of the statute requires dismissal with prejudice i understand i mean it could be but it could be mandatory and procedure  as a mandatory procedures opposed to a mandatory substance or are many mandatory done automatically mean it's it's no you're on a mandatory and self i don't think we can substitute substantive for the word mandatory but the other indicators that are helpful are the effect of the statute which again is dismissal with prejudice it removes all liability and returning to the  is only to the extent though that the united states is liable only to the extent of a private person that seems to specifically or or that seems a direct enough incorporation that if a statute dismisses a case with prejudice the f t c a says the united states can't be liable there can't be jurisdiction the other indication sub that the statute is substantive is if you look at gal an that was an ohio procedural rule adopted into the ohio rules of procedure by the ohio supreme court this is a law passed by the tennessee legislature for the specific purpose of outlining a burden that must be met in order to sustain a claim for medical malpractise i think the effect of the statute the legislature's in tant speak to the substantive nature of the law there's also although i'm published and not binding on this court there are also tennessee district court decisions directly characterizing the statute as substantive in the  opposed tendencies to actually with the a fact is a democrat and then i'm in the same room there was the same requirement of filing a good faith certificate with a medical malpractise so i mean aside from the technicalities is i you think we you know one panel clearly cannot overrule the decision of another panel if it's on point so i mean you think we can distinguish gala manner we ballin by gallup and whether we agree with you know the court's absolutely balanced by gallup and in this context and the reason for that the the fact that the tennessee law was passed by the legislature as opposed to an ohio procedural rule is an indicator but there are other aspects that distinguish the tennessee law from the rule of procedure analyzed galloping on and if we look to the text of gallup and this honorable court seem to recognize yes substantive law must be applied and yes there may be other situations other state laws that are similar the court seem to forecast that this conflict could arise that may be distinguishable here distinguishable from the ohio procedural and it referenced the th circuits decision and haun where which was followed up by young but in that case the th circuit said yeah rules like this that aren't part of a procedural rule tennessee statutes x who won twenty two incidents procedure yes your honor respectively respectfully we have to disagree with that case entirely for one reason is that it that issue when you have other tennessee supreme court cases that look more directly at the effect and the substance of the law secondly the west virginia case directly to the question is there a conflict here between section one hundred and twenty two in federal procedural law and it wholeheartedly adopted gallivan but the west virginia district court didn't seem to acknowledge that that looking directly at the conflicts skips over the step of asking them what is the f t c a require the courts to do the f t c is as a jurisdictional mandate requires that the courts adopt substantive law or else there can be no jurisdiction by adopting a gallop and didn't have to do that gallup and was confronted with a law that was procedural in the rules of procedure it didn't have to ask what if what if we're looking at a law that substantive under the f t c what do we stand and so by adopting that it is another way to say this amount aren't the starting points different than it and that controls of any state procedural rule but in a federal question jurisdiction context we apply federal law which here says to apply state law we still get sort of back to the same point which is judge gomez asking a lot of questions about when in fact how does view this is if you go to substitute a procedural but we don't do the direct conflict with a federal rule analysis correct we just go look more to the heart of state law and see all state laws that this write your driver i couldn't agree more that's e another point i'd like to make is that the certificate analyzing gallivan going to get into this procedural question is express lee incorporated into the complaint it becomes a part of the same legal operator that's not again that's not the case with the tennessee statute but the tennessee law explicitly says this isn't part of the complaint the in this case it's necessary because if it's not part of the complaint the complaints technically still stands on its own and the certificate of good faith is a different legal operator and rd point that i'd like to make is even if there were a procedural aspect of this rule the substance of the rule the th circuit explained in young that the substance still has to be honored according to the f t c a and here that can be done if a court were to say yes the complaint survives on its own for violation of section one hundred and twenty two dollars but the lawsuit must still be dismissed with prejudice that summary judgment honor to answer that i think it may be that the certificate of good faith has to be filed with the complaint not necessarily attached to but to answer your question more directly th circuit said it's possible for these laws to have procedural and substantive elements and i'm not going to correct that court in this case that the there are certainly ways to read the yeah there are parts of this that go to the procedure that go to steps that must be taken as a as a from a procedural viewpoint to bring a lawsuit but the dismissal with prejudice aspect of it the the the fact that it all women ates entirely the liability that substantive so yes your honor he answer your question if you can have procedural and substantive the last point i'd like to make in my final minute is to sue the agency has no obligation to respond and that's why the f t c has a triggering mechanism that after six months of the agency hasn't responded it's permission to sue the government what the appellant asks for i believe is for the v a to have said we're not going to respond to your lawsuit that you haven't brought that there is no way the v a could have affected the ultimate bringing or not bringing up a lawsuit at administrative level your honor just thank you very much i believe my time is expired thank you counsel  and there is a conflict there that needs to be resolved also we feel that the v a could if not stop a lawsuit before it is filed because they have reviewed the records you already have a large chunk of discovery that this been done which is part of the reason to prevent evillest losses from bring brought to court to save parties time in the money and of course to save the courts valuable time i think at that point had if the v a came back and said at this point we feel that this is frivolous we don't see a basis for  denying the claim we're not responding to the claims then maybe you do need to go out and find a doctor that will you go take their records to a doctor find out is there something here to proceed on with it again it's i feel that this is a procedural rule more than a substantive rule because it is saying that if this could face certificate is not filed with the complaint then the whole lawsuit is dismissed and i don't feel that it would be dismissed on salary judgments for  know it should be more of a proceed found more of a procedural issue than a substantive issue we thank you your honors for your time and consideration on this matter thank you mr i want and thank you both counsel i will take the