to that rule requires the plaintiff in a medical malpractise action to file with the complaint an affidavit from an expert witness attesting to the plaintiff's ability to prove the elements of a medical malpractise claim the district court determined that the ohio rule applied in actions under the f t c a because the rule was substantive in nature but that reasoning skips over a crucial step in the analysis and is wrong even on its own terms in particular the district court failed to ask whether application of the ohio about coexistence and aimed for coexistence is that case wrong or what do you make of that we think the case is distinguishable and on the grounds that the court they're both looks to the illinois law  question and the only courts they are had said that the affidavit of merit requirement the affidavit of merit itself was not actually part of the complaint and did not relate specifically to pleading whereas here the the ohio supreme court has specifically stated that the imposes a heightened pleading see why that's significant because if it's a procedural rule in illinois and under your analysis the federal rules don't require an affidavit because right attaching it to the complaint ok so it's not part of the complaint but you have to attach it in essence we know that under federal rules anything attached to the complaint becomes part of the complaint right well so i'm not sure i follow your argument there may be explain explain to me why that's a meaningful distinction yes your honor so i think the initial answer is that state courts are responsible specifically state supreme courts for construing the effect of their own laws and so we think the way that a state supreme court here the ohio supreme court has construed the ohio rule is at least relevant for helping to frame the question in dispute here and i agree with that but in the illinois right in the th circuit they point now and they're quoting the illinois supreme court they say section sixty two is a pleading requirement designed to reduce lawsuits so to me why shouldn't i accept the all noise supreme court at their word it's a pleading requirement the th circuit says it's a pleading requirement how is it any different than what's going on here well your honor we think to the extent you don't find those distinctions meaningful we would submit that the whoniverse as was case is incorrect and we would  why well the st initial reason is that the court relied heavily on the purposes of the federal rules that issue and the state law and we think there are a couple of problems with that as the supreme court noted in and shady  grove pages four of four dollars to four dollars or five of that opinion and that's where justice scalia was writing for a majority of the court the court said it doesn't make sense to decide whether a federal rule governs an issue by looking to the purpose of state law for a couple of reasons st you have the oddity that one state law could apply in an action in federal court whereas an identical action identical worded statute would not apply in an action in federal court merely because the state purposes are different there's also the concern that it can be quite difficult to discover state purpose especially if you have to look to state legislative history is substantive and there's a cause for what do we do we just at that point do we go to using the terms substantive and procedural for those terms can obviously have different meanings and have meanings in the erie context for purposes of the f t c a and then ultimately for the rules enabling act so i think what you're saying if i understand your question is don't we have to determine what happens if we determine that a state law is substantive for purposes of section one thousand three hundred and forty six dollars b of the f t c a such that it would be incorporated into state law what do we do in the event of a conflict there and our primary submission is that and not substantive outcome like but a substantive law you agree i hate to use the word co exist because i'm not using co exist with walker but if it was if you had your federal procedural requirements and then in the absence it was an element of the offense you agree they both would apply yes your honor that's correct if it was an element of the offense and i think we would ok so now i think to get back to judge now mandaeans question if that somehow if this substantive there's no way for the substantive lot of conflict with a procedural requirement right is that i mean in essence would that is there any way you could imagine that  think that would be i think that could be a difficult proposition but i think statute a medical claim is here by defined as you know failing a standard of care resulting in damage and where an expert has previously reviewed the case and and said you know it was meritorious all in the statute and you are hereby required to set these elements out in your complaint just like you would any elements of any claim you are i think that would be a different case but i don't think there's any way you can construe the ohio rule in that way and i give four reasons why i asked though that case would answer would be fine right because then they would be defining subset of law but you would use the federal to plead it and you would just have to plead under it vaults wildly or whatever you'd have to plead under that there was sufficient facts to meet each of advisory committee in ohio specifically said that the affidavit of merit only goes to the adequacy of the complaint and importantly cannot be used for any other purpose which means that you couldn't use the affidavit itself to prove its subsequent steps in the case say that summary judgment or a trial they would actually file the affidavit we also know from the pattern jury instructions for medical negligence and this is chapter four hundred and seventeen of the ohio pattern jury instructions and that there is no jury instruction on the issue of whether an a required what about fletcher that's part of the crime of the case or so i think there are a couple ways you can understand the term crime a fashion case i think the way fletcher is using it is to say there is a certain set of things that you need to put in your complaint in order to survive dismissal at the pleading stage and go into discovery but i don't think that means what the government is saying it means which is that it's part of the initial burden of production that the that the plaintiff must prove say to avoid a motion for s ultimately to avoid a rule fifty motion at trial and so i think it's not inconsistent to read fletcher's prima fashioned case language as comporting with our position but i think to the extent you would read it further you would into the problem of the ohio supreme court having effectively violated its own state constitution because under article four section five b of the ohio constitution the supreme court cannot probably get rules that change or modify the substantive law the language there is essentially identical to the rules enabling act now to get back to your question about coexistence i think the i think it's important to understand exactly what the court is doing when it's doing this coexistence framework and the rules enabling a context and so i would point the court specifically to footnote seven of justice scalia's opinion and that is also a part of the opinion in shin shady grove that was joined by a majority of the justices and what the court said there is that we do construe to be harmonious with and not display state law but we only do it when the language issue is and the us we don't actually go into the initial analysis and start trying to figure out how to twist the language of the statue of the rule in order to the statute but your honor i think your question assumes that the statute says not state law but says state court and i don't think that's what the statute says when you look to both the language of one thousand three hundred and forty six b when you look to the legislative history and the supreme court's cases interpret ng section one thousand three hundred and forty six dollars b there's no indication that congress was considering the relevant comparison between a private party and the government to be what would happen in state court what they seem to be doing i would point the court to cases would be why will to the claimant in accordance with the wall of the place where the act or omission occurred so you're right it doesn't say state ward but i would say that if i go over to hamilton county common pleas court or i'm here and i looking at the state wall how and why why i will in accordance with the law of ohio if i don't have an affidavit of merit attached to the complaint you could reach a different outcome then it's a problem under richard so what do you make of richards in light of judge now banyan question sure we don't think richards is particularly on point the richards decision  essentially said the the f t c a does not speak directly to the question of whose choice of law issues apply and so what we're going to do is look to the whole statute and we think that the best outcome would be to have the choice of law the rules of the state who there could actually be a difference in outcome between a suit against a private party and the government and what it was focusing on is the federal venue statute and it was using as a comparative what would happen in an action in federal court against a private party and so i think that's just further evidence that the analysis of whether you look to state law is actually the right approach what we think the cause of the congress meant when using the like circuit i see my time is out your honor may i finish the question briefly yes well we think congress meant is that it's simply that  laws that apply to private parties as opposed to to the united states specifically or to the federal local governments that's what's incorporated not that there's a comparison between state and federal court thank you but i think you waves the united states is sovereign immunity for tort claims only under the circumstances where the private person would be liable in accordance with the law of the place where the acclimation occurred and under this same circumstances into the same star in the same manner and to the same extent as a private individual under like circumstances for these reasons the federal tort claims act into is a pace and expressly incorporates the state law of the place where the actor emission occur well the richards case would answer that question your honor the united states would contend that the richards case not only is on point it is more on point than the shady grove analysis because it actually construed as the statute in question in this case the federal tort claims act statutes honor the supreme court's articulated a bit the whole lot of the state means the internal law of the state and you don't but i understood that i mean the internal substantive law of the state and many courts have but when you're looking at substantive law you're also looking at the federal tort claims act itself which looks at the tort law of the state and here well tended to is part of the medical malpractise law in the state of ohio as if your friends brief points out is he incorrect when he said this was part passed once or twice by the legislature in this room quirk up striking it down and saying you can't do that it has to be procedural and is incorrect when he says the supreme court threw procedural rules can impact substantive that opinion is a separation of powers issue and right that's because they're saying it's procedural rather and substantive right but also in the sense that procedural means that this mechanism needs to be legislated by the courts not legislated by the legislature don't legislate right they pass rules for how things are done in courts i apologize your honor i misspoke that has to be imposed by the courts however that does not necessarily make it procedural rule and not a substantive rule for the purposes of the federal tort claims act it was passed at the request of the legislature or a request that was contained in a piece of legislation that also modified  tort law so could the supreme court of ohio say negligence is typically whatever bru duty breach causation damage we're going to get rid of causation if that is the the state of ohio and in theory the ohio supreme court capacitor ruled that gets rid of causation when i have to be a separation of powers problem in ohio is ohio the house supreme court to find it in the very case you're talking about that may be the case your honor but that would not be the case here and then what about fletcher which just says this is a heightened pleading requirement bludger not only says that this is a heighten pleading requirement but fletcher says that the affidavit  occasionally be without prejudice this is a different analysis than whether a particular requirement is substantive parts of the state tort law and then whether it's merely a procedural mechanism which doesn't impact state tort law in any way but i'm just saying that yours if you're saying it substantive and i'm saying the fact that the dismissal is deemed to be not on the merits suggests that it's not substantive more wrong and that's that's not good evidence for you right of whether it's substantive i'm not saying it solves the question i'm just saying if a lining up whether it's substantive or whether it's a nod that one's not in your call  your honor certainly my colleague would argue that however the question of whether a dismissal is with her is on or not on the merits is a different question entirely than whether requirement is substantive or procedural for the purposes of is it part of ohio tort law and here we're looking at a requirement that only applies to medical malpractise to chiropractic claims we're looking at something that appears to be part and parcel with the tort law of ohio that is not is your friend points out it's not in their pattern instructions there's nothing about the affidavit once you get past the pleading requirement you don't have to show up at trial with an affidavit i mean there's nothing about the affidavit that goes to ultimately negligence claim without alleging a breach i mean like that's to me that's just a pleading requirement like ok it can't exist without pleading certain facts or providing certain evidence like in a fraud case you have to provide certain evidence why why is that any different well this is slightly different because in the state of ohio medical malpractise must be proved by experts evidence that's a requirement in ohio that doesn't exist and necessarily in other states this is the higher all tended to but i agree with that but that's the substance of the evidence and what you're talking about with the pleading or an affidavit i'm sorry is you're talking about the former and so the way i think about those issues and maybe i'm wrong but i think about it as ok you could have to prove an element in a certain way you know but that doesn't change the federal pleading requirements in other words what you're asking is that we change the federal pleading requirements to add an affidavit requirement and that seems to me what this is getting at which is why i think shady grove upon your honor i would respectfully disagree ohio  an extension of the ohio common law and now codified law that expert that medical malpractise must be proof to the expert testimony this is merely the affidavit requirement merely says that in order for you to have a viable claim in the st instance you need to have consulted with that expert and that expert needs to be able to swear to the fact that the standard of the duty of the standard of care in this case has been breached and that can be filed contemporaneously with the complaint at some time after the complaint under the provisions of the rule and it need not necessarily be attached to the complaint now if we accept your argument w  so we're not talking about different pleading requirements the federal tort claims act anticipates that a tort claim is going to look a little bit different in ohio verses texas versus illinois that is anticipated are you saying if we're not talking about pleading requirements he didn't have to attach an affidavit we would know your honor we're saying that he does have to produce an affidavit and file it with the court because he's alleging a medical malpractise claim under the law of ohio and the federal tort claims act so would produce to answer judge close question it would produce different pleadings in essence with their attachments in different states only to the extent that the f t c ai anticipates this possibility which it does by incorporating the state law of the place where the actor emission occurred and we don't i'm sure it interrupt you would if we don't buy your argument that tore the this is part of the tort law do you lose our here bill your honor yes the united states would call back that certainly and that you have a case that applied richard's in the way you're asking me to acquire i can certainly provide additional briefing on that but i think if you look at the report it's circa cases that do look at affidavits of merit in the context of the f t c not in the context of diversity and none of them apply the shady grove analysis site richards i do not have that information and in front of me your honor that's fine i'm happy to provide it notably in those cases construe statutes there mechanically the same as ohio's affidavit of marriage with carmen and that they require an affidavit by an expert of varying that the standard of care has been breached that is the difference for example in pennsylvania or new jersey or texas or some of these states where you where you have to file an affidavit of marriage but it doesn't have to be filed with the complete and i don't know what their state supreme courts have said you know our supreme court says this is a high pleading for it i mean when you start looking at what ohio has said you have to file a contemporaneously it's a heightened pleading requirement akin to rule of law and that's a different case th days but also the role is more similar to ohio and one would eventually thinks that the ohio statute does allow for a plaintiff to have extra time to file an affidavit of merit and again it says a company accompanying the complaint so doesn't necessarily have to be attached this is similar to the tennessee statute which again uses they were accompanying the a complaint which this court has in the past applied to f t c eight cases and filings that it is a requirement that dollars specifically requires that the law of the state where the tort arose or where the act or mission occurred be applicable to cases under the f t c a shady grove simply does not speak to that situation she did grove talks about a case where you're comparing a federal rule and a state rule here we have a federal statute dictating that state law apply and have the force of federal law versus a federal rule for those reasons i  thank you on our i'd like to make three quick points st with respect to the comparison between shady grove in this case which judge now being and in you raised at the end of my time during my opening argument i would say that it's not the right way to think about shady grove as an eerie case an eerie case is a case where you're performing the substance versus procedure analysis under the rules of decision act and i would also know contrary to my friends suggestion that in the context there is also a federal statute that is requir ing the application of state law and that's the rules of decision act in any event i think the the analysis here the appropriate way to think about this is under the standard rules of comparing what to do when you have a federal rule and a federal statute potentially conflict and what this court and others have said is that we do not presume that congress intended to displace the civil rules without a clear statement to that effect and i think when you look to the context of the text in the history of the f t c a there's simply no clear statement that congress was thinking about displacing the federal rules that's potential it's especially true because in the original version of the act as we know it in our supplemental brief congress said that it expressly one of the federal rules to apply  what do we make of that so i would say a couple things your honor st of all we know from the supreme court's decision in united states versus yellow cab and in subsequent decisions that we don't actually assume congress intended to make a substantive change when it defied title twenty eight dollars and so we presume that the laws simply act as they normally do i did it disappear well as the supreme court noted in a footnote congress believed that it was unnecessary to include now the legislative fighting a senate report or yeah i know i would i would know eleven dollars inference that i think you can certainly draw as the least the original congress and acting this it would have understood that it's specific reference to the federal rules would presumably govern over the general and corporat state law and the last thing i would note is that i would note that the language that congress used to incorporate the federal rules is specifically drawn from the original version of the rules enabling act showing that they were in tending the those rules to apply in all cases but no i do not have any authority but i would also note that the authority that the government sites in this context none of those cases involve a situation where the appellant actually in most of them argued but in one case properly raised the question of whether the state law applied inaction into the f t c a rather they raised different arguments as to why that statute didn't apply to their specific circumstances so i don't think you can take those cases to mean much given that this court has called for supplemental briefing on the specific issues we would ask the