connecticut statute why why is this something that is a matter of substance that goes to who is liable for malpractise under connecticut law yes  and this is what you told us about that statute and i'm referring to page four hundred and fifty seven the court discussed the purpose of the statute and noted the purpose was not well i'm sorry the purpose was to deter frivolous actions but whatever  the purposes didn't the court also characterize this as a defective service yes your honor it may be inforced to a procedural mechanism such as attaching the opinion letter to the complaint however the court did quoting here it's just as well served by viewing the requirement as a pleading to ceci akin to an essential allegation to support the cause of action but even that too isn't that a pleading requirement not a substantive requirement for what needs to be proven that's a question of what needs to be asserted at the beginning of the case in order for the pleading to be sufficient is that not so yes  substantive filing condition that connecticut has deemed necessary to state a medical malpractise cause of action the argument under the under federal rule and eight even as interpreted in tuam plea all that's necessary is that the claim be plausible there's no pleading requirement under federal law that in a malpractise case one needs to plead with specificity that there what you have to say in order to satisfy to get past the pleading stage you would need to make this allegation of good faith that i've done a investigation which is a little bit different than even levon it's requiring a specific allegations i've done this investigation and the upshot of the investigation was i got this affidavit which is attached from a medical expert and your required to attach the af their claim of be subject to dismissal but the connecticut legislature and supreme court has said is if the plan to fail to take this additional preliminary something to review by a like dr the claim is subject to dismissal and without that the united states is deprived of the statutory defense that would be available to all other defendants in connecticut which one but a felony wouldn't the same be true if the connecticut procedural code required all kinds of elaborate allegations to be made that aren't required under the rules if the if they're not applicable in federal court then the federal government has deprived of a defense that might have been valid or might have gotten rid of the case instead understood understood except that here we have a connecticut legislature making a specific decision to revisit in two thousand and five to bend the statute to give defendants does remedy in the public prejudice so the plaintiff could come back the next day the lawyer could say i had this happen i just didn't realize i was supposed to plead it so here's a new amended complaint and here's your affidavit and here we are statue imitations issues if it's like another couple of weeks to find a doctor that he didn't have at the time he filed the original complaint if he finds a doctor gets an affidavit and files now an amended complaint again subject to the statue limitations that would be ok with it i guess yes your honor so then i'm still having trouble understanding why this is a condition of liability that is a substantive matter isn't it also the case that if at trial the plaintiff never produce is the same doctor who provided that affidavit at the pleading stage and attempts to prove malpractise using a different malpractise by the normal standards of proof according to the normal standards of liability that will apply in the federal tort claims act case as well as would in connecticut state court your libel or your not depending on what your evidence is and whether it meets the connecticut standards for professional negligence in both cases that is correct you have to meet your burden of proof with an expert at trial but i would have to be the same expert that provides the affidavit in the beginning it does not your out of the out in a david at the beginning is soley about what you need to plead in order to go forward if at and that it by the way that affidavit is not necessarily an opinion that in my professional opinion the defendant committed malpractise is it's just an affidavit that there is reasonable cause to believe or good cause to believe that so doctor says in my professional opinion i've reviewed all the records every viewed all the evidence that's available at this point and i think it's not a practice it's something short of that right detailed requirement of connecticut procedure that the any malpractise claim the complaint has to be typed out on blue legal sized paper where the complaint gets dismissed if that were the requirement the case wouldn't go forward although just as in this case that would be a dismissal without prejudice and the plaintiff would be perfectly entitled to come back the next day with legislature has a substantive purpose we want there to be fewer frivolous malpractise claims and therefore we are applying an enhanced pleading standard to malpractise claims any such an enhanced to say that because the federal rules by their own terms apply in all civil actions in federal court that's correct however it's our position that this requirement is substantive in nature goes to the it's not a procedure and you say this is a different issue then the routine eerie issue that would come up if this were not a tort claims act case but were simply a case in which the plaintiff lived on one side of the new york border and went to a dentist in connecticut and had to sue the dentist in connecticut to get in for some time jurisdiction susan federal court we don't we have a body of law about what substance and what's procedure under erie you're saying though that body of law is of no use to us and not relevant in considering the tort claims act issue that's correct your honor obviously from your ear we've got a we're going something to be procedural distinction yeah it's not so nice actually because the very question we're asking i think is a rather difficult one under eerie in light of the fact that the most recent supreme court decision shady the state intended it to be substance it's substance the official plurality and i never understand why the chief justice gets to say who gets the plurality when it's forty four but the floor of the opinion by justice scalia says you go by the federal rules and justice stevens says well sometimes you go by i want to sometimes you go by the other and in this case i side with with scalia so i'm not sure the erie case law is all that helpful but why why is it in the united states has said we're to mute in less you check all these boxes and the key box in this case is that the united states must be accountable in the same manner and same extent as a private individual in that state and so he requires you to look at the nature of the opinion that goes the other way yes your honor there's the i have a strong slate my brief there's the gol of then decision which is the th circuit going against my position in that case they cite very heavily the shady grove analysis