Calvin S. Uretsky v. UNITED STATES OF AMERICA On Appeal from the United States District Court for the…

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 22-3016
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CALVIN S. URETSKY,
Appellant
v.
UNITED STATES OF AMERICA
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On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 2-20-cv-16086)
District Judge: Honorable Evelyn Padin
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Argued: July 14, 2023
Before: PHIPPS, MONTGOMERY-REEVES, and McKEE, Circuit Judges.
(Filed: July 15, 2024)
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Daniel S. Bretzius [ARGUED]
DAN B LAW PLLC
75 South Main Street
Concord, NH 03301
Counsel for Appellant
Catherine M. Padhi [ARGUED]
Mark B. Stern
UNITED STATES DEPARTMENT OF JUSTICE
CIVIL DIVISION
950 Pennsylvania Avenue NW
Washington, DC 20530

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Angela Juneau
OFFICE OF UNITED STATES ATTORNEY
970 Broad Street
Newark, NJ 07102
J. Andrew Ruymann
OFFICE OF UNITED STATES ATTORNEY
402 East State Street
Suite 430
Trenton, NJ 08608
Counsel for Appellee
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OPINION*
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PHIPPS, Circuit Judge.
As a tort reform measure, New Jersey requires an affidavit of merit to bring a
medical malpractice claim. See N.J. Stat. § 2A:53-A-27. Such an affidavit must be from
a licensed medical professional, must attest that a reasonable probability exists that the
medical care received was deficient, and must be provided within 60 days of the answer in
a civil case. See id.; see also Meehan v. Antonellis, 141 A.3d 1162, 1169 (N.J. 2016)
(explaining that the purpose of the affidavit of merit is “to weed out frivolous claims against
licensed professionals early in the litigation process” (citing Ferreira v. Rancocas
Orthopedic Assocs., 836 A.2d 779, 780 (N.J. 2003))); Benjamin Grossberg, Comment,
Uniformity, Federalism, and Tort Reform: The Erie Implications of Medical Malpractice
Certificate of Merit Statutes, 159 U. Pa. L. Rev. 217, 225 (2010) (reporting similar
affidavit-of-merit requirements in about half of the states).
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

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At the federal level, the Federal Tort Claims Act, ubiquitously abbreviated as the
‘FTCA,’ allows tort claims, including medical malpractice claims, against the United
States. Under the terms of that statute, the United States is “liable . . . in the same manner
and to the same extent as a private individual under like circumstances.” 28 U.S.C. § 2674.
In contrast with New Jersey law, the FTCA does not require an affidavit of merit to sue for
medical malpractice.
In this case, a pro se veteran, Calvin Uretsky, invoked the jurisdiction of the United
States District Court for the District of New Jersey to bring four claims against the United
States under the FTCA related to the medical treatment he received at a Veterans Affairs
Hospital in New Jersey in 2016.1 Uretsky did not file an affidavit of merit in connection
with his claims.
On the premise that an affidavit of merit was required for Uretsky’s claims to
proceed, the Government moved to dismiss his claims. After converting the Government’s
motion to one for summary judgment, see Fed. R. Civ. P. 12(d), the District Court granted
it and rejected all of Uretsky’s claims because he had not submitted an affidavit of merit.
Uretsky v. United States, 2022 WL 4466635, at *8 (D.N.J. Sept. 26, 2022).
Through a timely notice of appeal, Uretsky invoked this Court’s appellate
jurisdiction over final decisions. See 28 U.S.C. § 1291. He now argues that the basis for
the judgment against him – the failure to submit an affidavit of merit – is invalid.
While this appeal was pending, this Court resolved a similar challenge to
Pennsylvania’s certificate-of-merit requirement. See Pa. R. Civ. P. 1042.3(a)(1) (requiring
1 See 28 U.S.C. § 1331 (granting subject-matter jurisdiction to federal courts over “civil
actions arising under the . . . laws . . . of the United States”); id. § 1346(b)(1) (vesting
federal district courts with exclusive jurisdiction over FTCA claims); see also CNA v.
United States, 535 F.3d 132, 140 (3d Cir. 2008) (“[T]he FTCA itself is the source of federal
courts’ jurisdiction to hear tort claims made against the Government.”).

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a certificate of merit from a medical professional as a prerequisite to a medical malpractice
claim). That case, Wilson v. United States, 79 F.4th 312 (3d Cir. 2023), held that
Pennsylvania’s certificate-of-merit requirement did not apply to claims brought in federal
court against the United States under the FTCA. Id. at 316. That was so because “[t]he
FTCA’s incorporation of state law is limited in scope and reaches only a subset of
potentially relevant state legal rules” – only those “govern[ing] liability in tort.” Id. at 317
(emphasis added). And by reasoning that a certificate of merit “does not determine
liability,” Wilson concluded that a requirement for a certificate of merit was “not
incorporated by the FTCA.” Id. at 318.
New Jersey’s affidavit-of-merit statute is “analogous” to Pennsylvania’s certificate-
of-merit requirement. Schmigel v. Uchal, 800 F.3d 113, 120 (3d Cir. 2015). In particular,
neither determines tort liability.2 Accordingly, the Wilson rationale applies to New Jersey’s
affidavit-of-merit statute, and the failure to submit an affidavit of merit is not grounds to
reject an FTCA claim for medical malpractice based on New Jersey tort law.3
2 Compare N.J. Stat. § 2A:53-A-27 (“In any action for damages for personal injuries . . .
resulting from an alleged act of malpractice or negligence by a licensed person in his
profession or occupation, the plaintiff shall, within 60 days following the date of filing of
the answer to the complaint by the defendant, provide each defendant with an affidavit of
an appropriate licensed person that there exists a reasonable probability that the care, skill
or knowledge exercised or exhibited in the treatment, practice or work that is the subject
of the complaint, fell outside acceptable professional or occupational standards or
treatment practices.”), with Pa. R. Civ. P. 1042.3(a)(1) (“In any action based upon an
allegation that a licensed professional deviated from an acceptable professional
standard . . . the plaintiff . . . shall file with the complaint or within sixty days after the
filing of the complaint, a certificate of merit signed by the attorney or party that . . . an
appropriate licensed professional has supplied a written statement that there exists a
reasonable probability that the care, skill or knowledge exercised or exhibited in the
treatment, practice or work that is the subject of the complaint, fell outside acceptable
professional standards and that such conduct was a cause in bringing about the harm.”).
3 The Government argues that the New Jersey Supreme Court has characterized the
affidavit-of-merit requirement as an ‘element’ of a medical malpractice claim. See
Meehan, 141 A.3d at 228 (“The submission of an appropriate affidavit of merit is
considered an element of the claim.”). But another New Jersey Supreme Court case
articulates the substantive elements of a medical-malpractice claim without reference to an

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Because Uretsky’s medical malpractice claims failed on that basis, we will vacate
the judgment of the District Court and remand the case for further proceedings.
affidavit of merit. See Komlodi v. Picciano, 89 A.3d 1234, 1246 (N.J. 2014) (“In a
medical-malpractice action, the plaintiff has the burden of proving the relevant standard of
care governing the defendant-doctor, a deviation from that standard, an injury proximately
caused by the deviation, and damages suffered from the defendant-doctor’s negligence.”
(citation omitted)). And New Jersey’s intermediate appellate court has not interpreted the
affidavit-of-merit requirement as a substantive element of a medical-malpractice claim
after Meehan. See, e.g., Smith v. Datla, 164 A.3d 1110, 1122 (N.J. Super. Ct. App. Div.
2017) (citing Komlodi, 89 A.3d at 1246). Regardless, the FTCA analysis under Wilson did
not proceed along the substantive-procedural dividing line as it does in diversity cases, see
generally Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938), but rather on the scope of the
FTCA’s incorporation of state law, and the analogous nature of New Jersey and
Pennsylvania’s requirements dictates the same outcome for FTCA claims under both
provisions. See Wilson, 79 F.4th at 319 (“[Pennsylvania’s certificate-of-merit
requirement] is therefore not a rule of tort liability incorporated by the FTCA, even if it
may be ‘substantive’ for the purposes of Erie.”).

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