Cascone v. U.S., 03-2164.

Citation370 F.3d 95
Decision Date27 May 2004
Docket NumberNo. 03-2164.,03-2164.
PartiesNancy CASCONE, Executrix of the Estate of Michele Cascone, Plaintiff, Appellant, v. UNITED STATES of America, Defendant, Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

David A. Mech for appellant.

Richard A. Olderman, Attorney, Appellate Staff, with whom Peter D. Keisler, Assistant Attorney General, Michael J. Sullivan, United States Attorney, Jeffrey S. Bucholtz, Deputy Assistant Attorney General, and Robert S. Greenspan, Attorney, Appellate Staff, were on brief, for appellee.

Before TORRUELLA, LYNCH, and LIPEZ, Circuit Judges.

LYNCH, Circuit Judge.

An intensive-care nurse at the Veterans Affairs Medical Center in the Leeds section of Northampton, Massachusetts (the Leeds VAMC) was convicted of murdering four patients and attempting to murder three others between August 1995 and February 1996 by injecting them with epinephrine, a stimulant that in large doses can trigger heart attacks. See Skwira v. United States, 344 F.3d 64, 67 (1st Cir.2003) (describing the conviction in the context of another case); United States v. Gilbert, 229 F.3d 15, 17-18 (1st Cir.2000) (interlocutory appeal from the nurse's trial). An extensive federal criminal investigation starting in February 1996 had led to the nurse's indictment on November 19, 1998. Some of the estates of her alleged victims have since sued the United States for wrongful death under the Federal Torts Claims Act (FTCA), 28 U.S.C. § 2671 et seq. See Skwira, 344 F.3d at 67; Cutting v. United States, 204 F.Supp.2d 216, 218 (D.Mass.2002).

The cases have raised the issue, under the FTCA discovery rule, of when the estate, through the family members, discovered, or in the exercise of reasonable diligence should have discovered, the factual basis for the cause of action. Gonzalez v. United States, 284 F.3d 281, 288 (1st Cir.2002). The FTCA requires a plaintiff to file an administrative claim with the appropriate federal agency within two years after that point. 28 U.S.C. § 2401(b); Skwira, 344 F.3d at 70. In Skwira, this court concluded that the plaintiffs' October 21, 1999 administrative claim for the wrongful death of Leeds VAMC patient Edward Skwira on February 18, 1996 was not timely. 344 F.3d at 67.

The instant case was brought by the estate of another patient, Michele Cascone, who died on January 28, 1996. The theory of the case is that the nurse, Kristen Gilbert, wrongfully caused Cascone's heart attack and eventual death by injecting him with epinephrine. Here, the administrative claim was filed on November 10, 2000. Applying the principles of Skwira to the different facts of this case, we conclude that the administrative claim was timely because it accrued on or after November 10, 1998. See 28 U.S.C. § 2401(b).

There are at least two salient differences from Skwira that lead us to our conclusion. First, there was nothing inherently suspicious in Cascone's reported death of an apparent heart attack because Cascone had a long history of heart disease, including congestive heart failure, and at the time of admission to the hospital showed heart irregularities. Indeed, the death certificate said he died of, inter alia, "[c]hronic atrial fibrillation" (emphasis added). Second, the considerable publicity, of which the Cascones were not in fact aware, about the investigation at the Leeds VAMC focused on other patient deaths that were identified as inherently suspicious because those patients had no preexisting heart conditions, and no one from the government or the media publicly drew a connection between the nurse's misdeeds and Cascone's death before the November 10, 1998 cut-off date. Government investigators never contacted Cascone's family and never sought to exhume Cascone's body for further testing, and Gilbert was never indicted for Cascone's murder. We reverse the dismissal of the plaintiff's claim.

I.

The following facts, presented in the light most favorable to the plaintiff, are drawn from the complaint and materials submitted to the district court on the motion to dismiss. See McIntyre v. United States, 367 F.3d 38, 42 (1st Cir.2004); Muniz-Rivera v. United States, 326 F.3d 8, 11 (1st Cir.2003).

On January 26, 1996, Michele Cascone, age 74, was admitted to the Leeds VAMC with a case of pneumonia. He was placed in the intensive-care unit, Ward C. The hospital records indicate that he had a medical history "significant for atrial fibrillation, wide complex tachycardia, and congestive heart failure" and that he suffered from "insulin dependent diabetes mellitus" and "multiple cerebrovascular accidents." Upon his admission to the hospital, a physical examination showed that his "[h]eart was irregular, with ... a soft systolic murmur," and a heart monitor revealed "atrial fibrillation with rapid ventricular response." The treating physician also noted that Cascone's heart rate had increased because of "his hypoxemia and general condition."

Two days later, during the evening of January 28, 1996, Cascone suffered a series of heart attacks and died. He was pronounced dead at 11:25 p.m. The death certificate listed ventricular tachycardia, bilateral pneumonia, chronic obstructive pulmonary disease, and chronic atrial fibrillation as the causes of death. None of Cascone's family members was at the hospital when he died, as best we can tell from the record. Cascone's daughter, Janice Kenyon, called the hospital that afternoon, learned of Cascone's first heart attack, and relayed the message to his wife Nancy Cascone. A Leeds VAMC doctor then called Nancy and said that her husband had had another heart attack. He called again later in the evening to say that her husband had passed away. The doctor asked if Nancy wanted an autopsy done. He did not state any reason why she might want one, and Nancy said that she did not. Michele Cascone was survived by Nancy, three sons (Leonard, Michael, and William), two daughters (Sandra Herk and Janice Kenyon), a sister (Romilda Dow), and a brother (Joseph) (collectively, the Cascones). At the time, none of the Cascones inquired further into the cause of Michele Cascone's death.

From Cascone's death until November 10, 1998 (the cut-off date for accrual), the Cascones lived in various towns in Massachusetts. Although the estate, through Nancy Cascone as executrix, is the only plaintiff, the location of various family members is pertinent. Nancy lived in Rowe; Leonard moved a lot but identified his hometown as Greenfield; Michael lived in Shelburne Falls; William was incarcerated at a state prison in the city of Norfolk; Sandra Herk lived in Athol; Janice Kenyon lived in Leominster; Romilda Dow lived in Newburyport from June to December and in Florida for the other months of the year; and Joseph, who passed away in December 2002, lived in North Andover. The Cascones appear to be in communication with one another. Michael and William said in their depositions that they corresponded regularly with Nancy, and deposition testimony indicated that several of the others had communicated with Nancy both after Cascone's death and after Nancy received a telephone call from a reporter on April 25, 2000 raising the possibility that Gilbert might have killed Cascone.

The government's argument on appeal is not that the Cascones actually knew of any information or read any news coverage before November 10, 1998 that would have given them a reasonable basis to suspect that the government was responsible for Cascone's death. Nancy, William, Sandra, Janice, Leonard, and Romilda testified in their depositions that they had not read any of the articles or seen any of the television coverage relied upon by the government. Michael testified that his mother's phone call to him after she spoke with the reporter on April 25, 2000 was the first that he had heard of the Leeds VAMC investigation. Joseph was not deposed because he passed away in December 2002. The government's contention is instead that before November 10, 1998, the Cascones should have, in the exercise of reasonable diligence, suspected a causal link between Cascone's death and government misconduct based on the quantity of news coverage. For present purposes, we assume arguendo the validity of the government's approach: that a plaintiff who wishes to pursue an FTCA claim may not remain in total ignorance of the pertinent press and media reports. We therefore examine several factors: the geographical scope of the coverage vis-a-vis the family members, the content of the stories, and the degree of press and media saturation.

In June and July of 1996, articles began to appear in various newspapers reporting that a federal investigation had been launched by the VA's Inspector General's Office after an internal probe at the Leeds VAMC revealed an unusually high number of heart attack deaths at the hospital. Several reported that suspicious deaths had occurred between late 1995 and early 1996 and that investigators had discovered discrepancies in the inventory of epinephrine, a stimulant that could cause cardiac arrest in high doses. In August of 1996, the story broke that the investigation had led to a grand jury probe focusing on Kristen Gilbert, a nurse who worked the 3 p.m. to 11 p.m. shift1 on Ward C, the intensive-care unit. Some sporadic coverage of the story continued through 1997.

The story regained some prominence in January 1998 when Gilbert stood trial for allegedly calling in a bomb threat to the Leeds VAMC to retaliate against co-workers and a former boyfriend who worked at the hospital for their participation in the investigation, and again in April 1998 when she was convicted of that crime. United States v. Gilbert, 181 F.3d 152 (1st Cir.1999) (affirming Gilbert's conviction on appeal). The articles covering the bomb threat story often mentioned the string of suspicious heart attacks at the Leeds VAMC but tended to provide few details about them, such as the time frame or the ward...

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