Cole v. Greene
A court can find that defendants who fail to timely assert a claim that the plaintiff did not comply with C.G.S. §52-190a can waive the right to assert that defense. On April 6, 2011, the plaintiff inmate, Leona Cole, filed a complaint against the defendant doctor, Robert Greene, and Danbury corrections officials, alleging that Cole's infant passed away because Cole did not receive proper prenatal care. In August 2011, the District Court construed the plaintiff's complaint as alleging a violation of the Federal Tort Claims Act, and it substituted the U.S. as the defendant. On Dec. 1, 2011, the defendant filed an answer and affirmative defenses that omitted any mention of good-faith certificates, which are required pursuant to C.G.S. §52-190a. On Sept. 7, 2012, the defendant filed a motion to dismiss and argued for the first time that the plaintiff failed to comply with C.G.S. §52-190a. Failure to file a good-faith certificate may constitute grounds to dismiss a complaint, and the government asserted that the court lacked subject-matter jurisdiction. The 2nd Circuit has not yet decided whether the requirement of a certificate of good faith constitutes a substantive, as opposed to a procedural, requirement in a medical-malpractice suit. Assuming, arguendo, that the requirement is substantive, failure to comply with C.G.S. §52-190a affects personal jurisdiction. The District Court denied the defendant's motion to dismiss. "Because the defendant failed to include that defense in its first responsive pleading, see Fed. R. Civ. P. 12(h)(1)," wrote the court, "the defense has been waived."