UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

Deborah C. Aumand, Executor

of the Estate of Katherine

Coffey, and Francis Coffey,

Individually

v. Case No. 06-cv-434-PB

Opinion No. 2007 DNH 095

Dartmouth Hitchcock Medical

Center

MEMORANDUM AND ORDER

Deborah Aumand and Francis Coffey bring claims for medical

malpractice, loss of consortium, and negligent infliction of

emotional distress against Dartmouth Hitchcock Medical Center

(“DHMC”), seeking recovery for injuries caused by the alleged

medical negligence of DHMC and/or its employees. DHMC now moves

to have the case referred to a screening panel pursuant to the

requirements of N.H. Rev. Stat. Ann. (“RSA”) § 519-B. Plaintiffs

object to the instant motion on the grounds that the New

Hampshire screening panel requirement does not apply in federal

court under Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938), 

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because it is procedural rather than substantive. See N.H. RSA §

519-B:9, I(a) (“The panel process is a preliminary procedural

step through which malpractice claims proceed.”).

“Under the Erie doctrine, federal courts sitting in

diversity apply state substantive law and federal procedural

law.” Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 427

(1996). Distinguishing between substantive and procedural law,

however, is often challenging. Id.; Correia v. Fitzgerald, 354

F.3d 47, 53 (1st Cir. 2003). It is not the language of the

statute that is determinative, but whether its application will

have a significant impact on the outcome of the litigation. 

Gasperini, 518 U.S. at 427; Guar. Trust Co. v. York, 326 U.S. 99,

109 (1945)); Feinstein v. Mass. Gen. Hosp., 643 F.2d 880 (1st.

Cir. 1981). This test “must be guided by the twin aims of the

Erie rule: discouragement of forum-shopping and avoidance of

inequitable administration of the law.” Gasperini, 518 U.S. at

428 (quoting Hanna v. Plumer, 380 U.S 460, 468 (1965)).

In Feinstein, the First Circuit held that a Massachusetts

screening panel statute was substantive for purposes of Erie

because it provided for “a prompt determination of the likely

merits of a claim and requir[ed] that a plaintiff who is

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unsuccessful before the malpractice tribunal post a bond to cover

the defendant’s costs and fees in the event he ‘does not prevail

in the final judgment.’” 643 F.2d at 885 (quoting Mass. Gen.

Laws ch. 231, s. 60B). Faced with the identical issue and

similar arguments as the instant case, another judge on this 

court, relying on Feinstein, recently concluded that N.H. RSA § 

519-B is substantive for Erie purposes. Plumb v. Lavery and N.H.

Cardiology Consultants, P.C., 2007 DNH 066. The only contrary

ruling cited by the plaintiff is Wheeler v. Shoemaker, 78 F.R.D.

218 (D.R.I. 1978), whose reasoning has been rejected by numerous

courts, including the First Circuit. See, e.g., Feinstein, 643

F.2d at 887-90; DiFilippo v. Beck, 520 F.Supp. 1009, 1014 (D.

Del. 1981) (“both holdings of Wheeler were effectively overruled

in Feinstein”).

Although § 519-B does not require a plaintiff who is

unsuccessful before the panel to post a bond before proceeding

with her lawsuit, it nevertheless is likely to have a significant

impact on the outcome of the class of cases to which it applies

because it specifies that the panel’s findings will be admissible

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1 It is likely that such findings would be admissible under

Fed. R. Evid. 803(8) as “factual findings resulting from an

investigation made pursuant to authority granted by law.” 

However, I need not determine whether N.H. RSA § 519-B:8 either

is in conflict with the Rules of Evidence or violates plaintiffs’

Seventh Amendment right to a trial by jury because plaintiffs do

not rest their opposition to the current motion either on a claim

that the applicability of state law is in conflict with the

Federal Rules of Evidence, see, e.g., Hanna, 380 U.S. at 471, or

an argument that the application of the law at trial would

violate their Seventh Amendment right to a jury trial. See,

e.g., Byrd v. Blue Ridge Rural Elec. Coop., Inc., 356 U.S. 525,

538 (1958).

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at trial in certain circumstances. See N.H. RSA § 519-B:8I.1

This aspect of the law is likely to have a significant impact on

the outcome of cases referred to the panel and encourage forum

shopping. Plaintiffs, who generally will not favor the panel

process because of the panel’s composition, are likely to forum

shop if doing so will allow them to avoid the screening

requirement. Under Gasperini, this is a sufficient basis to

apply the state law in federal court. See Woods v. Holy Cross

Hosp., 591 F.2d 1164, 1168 (5th Cir. 1979). 

For the reasons stated, I grant defendant’s motion (Doc. No.

8) to refer the case to the screening panel. To that end, within

twenty days from the date of this order, counsel for the

defendants shall contact counsel for the plaintiffs as required 

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under N.H. RSA § 519-B:4. Thereafter, the parties shall follow

the procedures provided in N.H. RSA § 519-B:4 for the panel

proceedings. The case will be stayed pending the resolution of

the proceedings before the screening panel. 

SO ORDERED.

/s/Paul Barbadoro 

Paul Barbadoro

United States District Judge

August 14, 2007

cc: Gary Richardson, Esq.

Heather M. Burns, Esq.

Thomas V. Laprade, Esq.

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