Cutting v. U.S.

• Citation: 204 F.Supp.2d 216
• Decision Date: 11 June 2002
• Docket Number: Nos. CIV.A. 99-40065-MAP, CIV.A. 99-30231-MAP, CIV.A. 00-30080-MAP, CIV.A. 99-30232-MAP, CIV.A. 00-30192-MAP, CIV.A. 00-30076-MAP.,s. CIV.A. 99-40065-MAP, CIV.A. 99-30231-MAP, CIV.A. 00-30080-MAP, CIV.A. 99-30232-MAP, CIV.A. 00-30192-MAP, CIV.A. 00-30076-MAP.
• Parties: Nancy CUTTING, as the Administratrix of the Estate of Kenneth Cutting, and Nancy Cutting and Jeffrey Cutting, individually, Plaintiffs, v. UNITED STATES of America, Defendant. Francis B. Rauch, as Administrator of the Estate of Carl F. Rauch, Jr., and Francis B. Rauch, Individually, Plaintiffs, v. United States of America, Defendant. Francis P. Siska, Executor of the Estate of Angelo Vella, Plaintiff, v. United States of America, Defendant. Michael McEwen, Administrator of the Estate of Ralph L. McEwen, Jr., and Michael McEwen, Individually, Plaintiffs, v. United States of America, Defendant. Statia A. Skwira, Administratrix of the Estate of Edward S. Skwira, and Statia A. Skwira, Marsha T. Yarrows, Edward S. Skwira, Jr., and Phillip E. Skwira, Individually, Plaintiffs, v. United States of America, Defendant. Susan Lessard, Administratrix of the Estate of Stanley Jagodowski, Plaintiff, v. United States of America Defendant.
• Court: United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts

Page 216

204 F.Supp.2d 216

Nancy CUTTING, as the Administratrix of the Estate of Kenneth Cutting, and Nancy Cutting and Jeffrey Cutting, individually, Plaintiffs, v. UNITED STATES of America, Defendant.

Francis B. Rauch, as Administrator of the Estate of Carl F. Rauch, Jr., and Francis B. Rauch, Individually, Plaintiffs, v. United States of America, Defendant.

Francis P. Siska, Executor of the Estate of Angelo Vella, Plaintiff, v. United States of America, Defendant.

Michael McEwen, Administrator of the Estate of Ralph L. McEwen, Jr., and Michael McEwen, Individually, Plaintiffs, v. United States of America, Defendant.

Statia A. Skwira, Administratrix of the Estate of Edward S. Skwira, and Statia A. Skwira, Marsha T. Yarrows, Edward S. Skwira, Jr., and Phillip E. Skwira, Individually, Plaintiffs, v. United States of America, Defendant.

Susan Lessard, Administratrix of the Estate of Stanley Jagodowski, Plaintiff, v. United States of America Defendant.

Nos. CIV.A. 99-40065-MAP, CIV.A. 99-30231-MAP, CIV.A. 00-30080-MAP, CIV.A. 99-30232-MAP, CIV.A. 00-30192-MAP, CIV.A. 00-30076-MAP.

United States District Court, D. Massachusetts.

June 11, 2002.

Robert H. Astor, Astor & Minardi, Springfield, MA, for Nancy Cutting, Jeffrey Cutting, Plaintiffs.

Michael T. Truscott, U.S. Dept. of Justice, Torts Branch, Civil Division, R. Todd Ingram, U.S. Department of Justice, Torts Branch, Civil Division, Clay R. Mahaffey, U.S. Department of Justice, Washington DC, for United States of America, Defendants.

MEMORANDUM REGARDING DEFENDANT'S MOTIONS TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION (Civil Action No. 99-40065: Docket No. 28; Civil Action No. 99-30231: Docket No. 17; Civil Action No. 00-30080: Docket No. 19; Civil Action No. 99-30232: Docket No. 17; Civil Action No. 00-30192: Docket 16; Civil Action No. 00-30076: Docket No. 14)

PONSOR, District Judge.

I. INTRODUCTION

This memorandum addresses the court's power to hear to six civil cases that have been filed under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-80 ("FTCA"). Each of the suits seeks damages for the wrongful death of a patient who died while under the care of the Department of Veterans Affairs Medical Center in Leeds, Massachusetts (the "VAMC"), as a result of the criminal conduct of nurse Kristen Gilbert ("Gilbert").

Gilbert, a one-time employee of the VAMC, was indicted in 1998 for murdering four of her patients and attempting to murder three others by injecting them with the heart stimulant epinephrine. All of the current plaintiffs contend that the United States, through the VAMC, was at least partly responsible for the death of their loved ones. In its present motions, the Government does not address that ultimate issue. Instead, it claims that this court has no jurisdiction to hear these six cases because they were brought outside the applicable statute of limitations. In other words, the Government argues, these lawsuits were filed too late.

It is well established under the law that the United States, as an entity, may be sued only to the extent, and in the manner, that it consents to being sued. It has consented to be sued under the FTCA, but only if the claim is brought within two years after the claim "accrued." According to the Government, these six cases were brought more than two years after their accrual dates, and are therefore barred.

As the following discussion will show, this court is compelled to conclude that the Government is correct with regard to five of the six cases; this court has the power to hear only plaintiff Cutting's case (Civil Action No. 99-40065). Binding authority makes it clear that the other five cases were filed with the Department of Veterans Affairs too late to meet congressional statute of limitations requirements.

The court has reached this conclusion reluctantly, in view of the enormity of the loss suffered by these five plaintiffs and their families. It would, however, be false generosity to ignore a jurisdictional defect that is bound to be fatal to these cases eventually. The court's reasoning is set forth below.

II. GENERAL BACKGROUND

"Because federal courts are courts of limited jurisdiction, federal jurisdiction is never presumed. Instead, the proponent —here, the plaintiffs—must carry the burden of demonstrating the existence of federal jurisdiction." Viqueira v. First Bank, 140 F.3d 12, 16 (1st Cir.1998). In deciding a motion to dismiss under Fed. R.Civ.P. 12(b)(1) challenging subject matter jurisdiction, the court may consider materials outside the pleadings. See Gonzalez v. United States, 284 F.3d 281, 288 (1st Cir.2002); Heinrich v. Sweet, 44 F.Supp.2d 408, 415 (D.Mass.1999)(noting that in motion to dismiss for lack of subject matter jurisdiction court "may (1) consider evidence submitted by the parties, such as depositions and exhibits; (2) entertain arguments not raised by the parties' memoranda; and (3) resolve factual disputes, if necessary."). Accordingly, the court has reviewed all the documents submitted in connection with this motion. While the facts particular to each plaintiff will be discussed in Section III below, some general background may be helpful.

The federal investigation into the VAMC began around February 1996. (Civil Action No. 00-30192, Docket 18, Exhibit E at 6). Assistant United States Attorney William Welch ("Welch") was the lead prosecutor, assisted by Special Agent Steven Plante of the Inspector General's Office at the Veterans Administration ("Agent Plante"). Id. In June of 1996, Trooper Kevin Murphy of the Massachusetts State Police ("Trooper Murphy") was recruited to assist Agent Plante. Id. at 5.

The investigation focused on patients who had died of cardiac arrest between January of 1995 and February of 1996. Id. at 7-9. Beginning in the fall of 1996, investigators began approaching families of some of these former patients for permission to exhume the bodies of the deceased. The Skwira family was first, and was approached in October, 1996. Id. at 10. From the exhumed bodies, investigators took tissue samples for analysis. Id. at 75.

The media began coverage of the investigation in July, 1996. For example, on July 17, 1996, an article in the Daily Hampshire Gazette with the headline "VA officials probe deaths" noted that "[a] federal probe into `a higher than usual numbers of deaths' from cardiac arrest on one ward" of the VAMC was underway. (Civil Action No. 99-30231, Docket 17, Exhibit E). On August 1, 1996, an article in the same newspaper with the headline "VA nurse said a focus of the probe," disclosed that "investigators probing deaths at the U.S. Department of Veterans Affairs Medical Center are studying the role a nurse played in the care of those who died." Id., Exhibit F. The article noted that while the unnamed nurse had not yet been charged with a crime, she was placed on leave "at about the same time that the VA's Office of Inspector General was called in to investigate what officials feared was a greater number of deaths due to cardiac arrest occurring on a particular ward during a particular shift than on others." Id. The same article made it known that the nurse in question had been arrested for trespassing, breaking and entering, and possession of burglary tools, and that her name appeared on the medical records of at least one veteran who had unexpectedly died of a cardiac arrest. Id.

In early August, the United States Attorney's Office issued a short press release confirming that, in fact, there was a Grand Jury investigation under way. (Civil Action No. 00-30192, Docket 18, Exhibit D at 25). Around the same time, an August 8, 1996 article in the Daily Hampshire Gazette reported that a Grand Jury had been taking testimony for about a month, that the Government had "sufficient information to (have brought) it to a Grand Jury," and that the investigation was "focusing on all deaths that occurred at the VAMC between fall 1995 and winter 1996." (Civil Action No. 99-30231, Docket 17, Exhibit G).

Gilbert was arrested on October 2, 1996 and charged with phoning in false bomb threats to the VAMC. (Civil Action No. 00-30192, Docket 18, Exhibit D at 45). Her name was made public in connection with that arrest, and she was identified by the papers as the subject of the ongoing investigation into the deaths at the VAMC. Id. at 45-46.

On October 23, 1997, Caroline Brandt ("Brandt") filed an administrative claim with the Department of Veterans Affairs for the death of her husband. (Civil Action No. 99-30231, Docket 22, Exhibit A). The actions of the Brandt family exemplify a course of conduct that fully satisfied the jurisdictional requirements. Brandt alleged that her husband had inexplicably died of cardiopulmonary arrest, but had no heart problems. Id. The claim further alleged that he had a normal pulse and respiratory rate the day of his death, and that "[o]ther suspicious deaths occurred on the same ward at the VA Medical Center from the fall of 1995 to the Spring of 1996." Id. Brandt asserted that her husband's death "was the direct result of negligence and/or intentional acts of agent(s) and/or employee(s) of the VA Medical Center in Leeds, MA." Id. Gilbert was listed as a witness, but no specific allegations were made against her. Id. Following denial of her administrative claim, Brandt filed a timely complaint, which is now pending in this court and which the Government has not sought to dismiss.¹

It is important to emphasize, in fairness to plaintiffs, that the process of proving that the victims had died of epinephrine poisoning was difficult. Epinephrine occurs naturally in the body as adrenaline, and investigators found it difficult to isolate toxicological evidence that a particular patient had been killed with a lethal injection by examining tissue samples exhumed months or years after the patient's death. Moreover, the tissue examination process was unprecedented, new instrumentation was employed for the first time,...