344 F.3d 64 (1st Cir. 2003), 02-1988, Skwira v. U.S.

Docket Nº:02-1988
Citation:344 F.3d 64
Party Name:Skwira v. U.S.
Case Date:September 15, 2003
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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344 F.3d 64 (1st Cir. 2003)

Statia A. SKWIRA, as Administratrix of the Estate of Edward S. Skwira, and Individually; Marsha Yarrows; Edward S. Skwira, Jr.; Philip E. Skwira, Plaintiffs, Appellants,

v.

UNITED STATES, Defendant, Appellee.
No. 02-1988.

United States Court of Appeals, First Circuit

September 15, 2003

        Heard Feb. 7, 2003.

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[Copyrighted Material Omitted]

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        John M. Callahan, with whom Stephen R. Kaplan, David C. Kuzmeski, and Growhoski & Callahan were on brief, for appellants.

        Richard A. Olderman, with whom Robert D. McCallum, Jr., Assistant Attorney General, Michael J. Sullivan, United States Attorney, and Robert S. Greenspan were on brief, for appellee.

        John Corey, Judge Advocate, Erik Lund, George A. Berman, Susan S. Riedel, and Posternak, Blankstein & Lund LLP

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for amicus curiae American Legion, in support of appellants.

        Before BOUDIN, Chief Judge, TORRUELLA and LIPEZ, Circuit Judges.

        LIPEZ, Circuit Judge.

        In unusual and tragic circumstances, this case requires us to apply a "discovery rule" to the issue of claim accrual under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671-2680.

        I.

        On February 15, 1996, Edward Skwira, a decorated World War II veteran, entered the Veterans Affairs Medical Center ("VAMC") near Northampton, Massachusetts, for the treatment of chronic alcoholism. Three days later, Skwira unexpectedly died, apparently of natural causes. Five years later, on March 14, 2001, a federal jury convicted Kristin Gilbert, a former nurse at the VAMC, of murdering Skwira and three other VAMC patients. Prosecutors claimed that Gilbert killed her victims by injecting them with lethal doses of the stimulant epinephrine to simulate a natural death. Investigators believe that Gilbert may be responsible for several other deaths at the VAMC, apart from the four for which she was convicted.

        As a result of the deaths at the VAMC, Skwira's wife and children, along with the survivors of five other alleged victims of Gilbert, sued the United States under the FTCA seeking compensation for the loss of their loved ones. 1 The district court consolidated the six cases for the purposes of pretrial management, 2 and the government eventually moved to dismiss the lawsuits on statute of limitations grounds. The district court granted the motion to dismiss with respect to five of the cases, including the Skwira family's, holding that these five sets of plaintiffs had failed to file compulsory administrative claims within two years after their claims had accrued. See 28 U.S.C. § 2401(b). The Skwira family now appeals the dismissal of their complaint. 3 After a careful review of the record and controlling case law, we conclude, as did the district court, that the Skwira family's claim is time-barred.

        II.

        In early February 1996, Skwira was admitted to an inpatient substance abuse treatment facility in Worcester, Massachusetts, for the treatment of chronic alcoholism. On February 15, he was transferred to the VAMC and placed in the hospital's Ward C, where Gilbert was working. Later that day Skwira took a drastic turn for the worse, suffering from an apparent catastrophic cardiac event. He was transferred for further tests to the Baystate Medical Center in Springfield, Massachusetts. Doctors at Baystate told the Skwira family that he was dying of natural causes--including a heart attack and dissecting aneurysm--and that no medical or surgical intervention could save him. Skwira was returned to the VAMC where he died on February 18. The immediate causes of death were listed on his death certificate as "dissecting aneurysm," "inferior wall myocardial infarction," and "arrythmia"

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[sic]. No autopsy was performed.

        Later that spring, the Department of Veterans Affairs Office of the Inspector General, assisted by the U.S. Attorney's Office and the Massachusetts State Police, began a criminal investigation into the unusually high number of deaths on Ward C during late 1995 through early 1996. By summer 1996, articles had started to appear in local newspapers describing an ongoing inquiry into suspicious deaths at the VAMC. In its opening sentence, one article identified "[a] federal probe into 'a higher than usual number of deaths' from cardiac arrest on one ward." The article quoted the hospital's acting director as refusing to rule out "foul play or malpractice." Another published account mentioned an investigation into the untimely death of a thirty-five-year-old patient in Ward C. That same article indicated that a nurse was a focus of the government's probe. In early August, the U.S. Attorney's office issued a short press release confirming that, in fact, there was a grand jury investigation underway. The local press reported that the grand jury had been taking testimony for about a month, and that the investigation was "focusing on all deaths that occurred at the VAMC between fall 1995 and winter 1996."

        Beginning in September or October 1996, investigators started to approach the families of individuals who had unexpectedly died in Ward C and asked permission to exhume the bodies of the deceased and to perform autopsies. Skwira's family was the first to be approached. Assistant United States Attorney William Welch and Massachusetts State Trooper Kevin Murphy met with them. "We advised them," according to Murphy, "that we were looking into deaths at the Veterans Hospital. We advised them that we had some suspicions that we would like to clear up by exhuming Edward Skwira." Welch and Murphy sought and obtained permission from Statia, Skwira's widow, to exhume Skwira's body and perform an autopsy. Welch explained that his office was "looking at a number of deaths at the VA Medical Center," and that "there had been an increase in the number of deaths and there was some question as to why that increase had occurred." Skwira's family responded that they were familiar with the press reports concerning an investigation into suspicious deaths at the VAMC, but that this was their first actual indication that Skwira's death was one that the government was investigating.

        The family gave consent to exhume Skwira's body on November 7. The body was disinterred and immediately autopsied, with the heart and other internal organs removed for safekeeping and further testing. The day after the autopsy, Welch attended Skwira's reinterment with Statia and Yarrows. When Statia asked Welch about the results of the autopsy, he informed them that "the death certificate as printed was incorrect." He told them that Skwira "didn't die of a heart attack," although he then added that this "did not mean that he did die of unnatural causes." Welch promised to keep the family informed about the progress of the investigation.

        Over the next two years, the government continued its investigation and built its criminal case against Gilbert who had already been arrested in October 1996, before Skwira's autopsy, and charged with phoning bomb threats to the VAMC. 4 Statia would call Welch and other investigators regularly--approximately every four

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to six months--to check on the status of the investigation into Skwira's death. In response to these calls, Welch would tell her that he "couldn't really tell her other than what [he] had already told her in the past."

        In July 1997 Welch scheduled a meeting with the family to inform them that the chemical ketamine had been inexplicably found in Skwira's body. Skwira's medical records contained no indication that ketamine--a powerful anaesthetic--had ever been ordered for him. Welch asked the family about any medical history not reflected in the hospital's records. He explained that further investigation was necessary to determine whether ketamine had been lawfully administered, or if it had been administered "out of error, oversight, or negligence." At this meeting, Statia brought up the November 1996 autopsy. Welch explained once again that the death certificate was not correct as stated. He again added, however, that simply because the death certificate was not correct did not mean that Skwira had died of unnatural causes. He told them that the investigation would continue.

        During the months that followed, the government continued to test the heart and tissue samples removed during the autopsy. Investigators suspected that Gilbert had used epinephrine to kill her victims, but the forensic technology and protocols necessary to measure epinephrine toxicity in dated tissue samples had yet to be perfected. As the district court noted in its opinion, "[e]pinephrine 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." Cutting, 204 F.Supp.2d at 220. Hence the government was obliged to invest significant resources to develop adequate epinephrine testing protocols and research methodologies which, if used at trial, would ultimately have to withstand Daubert scrutiny. 5

        The government's investment was eventually fruitful. On June 8, 1998, Welch and Murphy met with the family and informed them for the first time that Skwira had not died of natural causes. Toxicological tests had conclusively determined that Skwira had died of epinephrine poisoning. Welch and Murphy also expressed their belief that Gilbert had murdered Skwira, and they indicated that they would present evidence of Skwira's murder to a grand jury in seeking an indictment for first degree murder. Finally, Welch told the Skwira family that investigators had excluded the possibility of a legitimate administration...

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