Page v. U.S.
| Decision Date | 13 March 1984 |
| Docket Number | No. 82-1218,82-1218 |
| Parties | Darrell R. PAGE, Appellant, v. UNITED STATES of America. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeal from the United States District Court for the District of Columbia (Civil Action No. 81-02327).
Darrell R. Page, pro se.
Stanley S. Harris, U.S. Atty., Washington, D.C., at the time the brief was filed, Royce C. Lamberth, R. Craig Lawrence and Judith Bartnoff, Asst. U.S. Attys., Washington, D.C., were on the brief for appellee.
Before ROBINSON, Chief Judge, and TAMM, Circuit Judge and MacKINNON, Senior Circuit Judge.
Opinion for the Court filed by Chief Judge SPOTTSWOOD W. ROBINSON, III.
In 1981, Darrell R. Page, a Korean-era Army veteran, instituted this litigation pro se in the District Court against the United States under the Federal Tort Claims Act. 1 The gravamen of Page's case is that the Veterans Administration (VA) subjected him to harmful drugs during a course of treatment extending from 1961 to 1980. 2 Page charges that VA personnel caused him "severe damage and addiction" by "wrongfully mix[ing] dangerous drugs which do not mix, wrongfully prescrib[ing] too heavy a load of dangerous drugs, and wrongfully [failing to] properly monitor the drugs and [his] medical condition and drug caused injuries." 3 Specifically, Page asserts that VA doctors routinely mailed to him the drugs Mellaril, Darvon, Artane and ProBanthine for months and sometimes years without adequately monitoring his condition. 4 Page claims severe physical and mental injury as a result of the alleged addiction, but informs us that the drugs were removed and the addiction "broken" about March, 1980. 5
Page's 1981 lawsuit is not his first challenge to the treatment administered by VA. In 1972, he brought a similar action, which the District Court dismissed, apparently on the ground that it was statutorily time-barred. 6 Subsequently, this court granted the Government's unopposed motion for summary affirmance. 7
Page's 1981 case also was dismissed by the District Court, on grounds of both res judicata and statutory time limitations. 8 On this appeal, he contends that even if the dismissal of the first suit extinguished any cause of action then existing, it cannot be res judicata as to any that may have accrued subsequently. Page also argues that he advanced his present claims, both administrative and judicial, well within the legislatively-prescribed period if measured from termination of drug treatments in 1980. We conclude that neither res judicata nor any applicable statutory time restraint completely forecloses this litigation. Accordingly, we reverse and remand for further proceedings.
The doctrine of res judicata is that "the parties to a suit and their privies are bound by a final judgment and may not relitigate any ground for relief which they already have had an opportunity to litigate--even if they chose not to exploit that opportunity--whether the initial judgment was erroneous or not." 9 The judgment bars any further claim based on the same "nucleus of facts," for "it is the facts surrounding the transaction or occurrence which operate to constitute the cause of action, not the legal theory upon which a litigant relies." 10
We agree with the District Court that the order dismissing Page's 1972 suit, whether sound or not, is res judicata as to VA's treatment activities between 1961 and 1972. That order, however, cannot frustrate Page's current effort entirely. As the District Court duly noted, Page avers that the allegedly wrongful prescription of injurious drugs continued until 1980. 11 Since Page's 1972 action obviously could not have asserted claims based on facts that were not yet in existence, the dismissal of that action cannot be res judicata of Page's complaint respecting VA's conduct from 1972 to 1980. 12
Congress has specified that
[a] tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented. 13
The question whether these conditions have been met is one of federal law. 14 On March 5, 1981, Page submitted his claim to VA, 15 which denied it by letter dated March 26, 1981, 16 after which, on September 21, 1981, Page filed his complaint in the District Court. 17 On this predicate, Page insists that his cause of action is timely because the onset of the statutory time limitations should be measured from termination of drug therapy in 1980. 18
In United States v. Kubrick, 19 however, the Supreme Court held that when a tort action against the Government charges malpractice, the statutory limitations begin to run "when the plaintiff knows both the existence and the cause of his injury." 20 The Government contends that the Kubrick rule demolishes Page's present lawsuit on the ground that the cause of action accrued and set the limitation periods into motion in December, 1971, when Page brought his first administrative claim and thereby demonstrated actual knowledge "of his alleged injury and its alleged cause." 21
We note initially that regardless of when Page learned that he had reason to sue, the limitation periods could not have expired on any malpractice within the two years immediately prior to Page's 1981 submission to VA. Just as res judicata cannot bar a claim predicated on events that have not yet transpired, knowledge acquired in 1972 that one has a claim could not trigger time limitations on allegedly tortious conduct that had not then occurred. Thus, at least to the extent that Page charged malpractice taking place less than two years before his administrative presentation, the District Court erred in dismissing his case on grounds of untimeliness.
Page seeks damages, however, for the entire course of his VA treatment, which spanned almost two decades. As we already have said, relitigation of his claim of pre-1972 malpractice is precluded by res judicata. 22 The remaining issue, therefore, is whether the statutory time limitations ban action by Page for assertedly continuing treatment and injury from 1972 until 1980.
It is well-settled that "[w]hen a tort involves continuing injury, the cause of action accrues, and the limitation period begins to run, at the time the tortious conduct ceases." 23 Since usually no single incident in a continuous chain of tortious activity can "fairly or realistically be identified as the cause of significant harm," 24 it seems proper to regard the cumulative effect of the conduct as actionable. Moreover, since "one should not be allowed to acquire a right to continue the tortious conduct," 25 it follows logically that statutes of limitation should not run prior to its cessation.
The continuing-tort doctrine has been applied in cases various invoking several federal statutes. It has been held that a cause of action for permanent physical injury sustained by operation of a jackhammer over a period of 28 years did not accrue under the Federal Employers' Liability Act 26 until the employee was assigned to new and lighter duties. 27 An employee, barred from recovering damages for an initial on-the-job injury, under the same legislation, was allowed to recover for continued assignment to the injury-producing post by the employer despite the employee's and his physician's attempts to secure a transfer. 28 A prisoner, time-barred from maintaining an action for an assault and battery committed while he was in prison, was deemed to have a cause of action under civil rights legislation 29 for a continuing failure to provide necessary post-injury medical attention. 30 Of particular note is a recent decision under the Federal Tort Claims Act applying the continuing-tort doctrine in a suit alleging that for 20 years the Department of Agriculture intentionally inflicted emotional distress by wrongfully denying the plaintiff participation in certain federal programs. 31 The continuing character of the Government's conduct led the court to conclude that the time limitations applicable to tort claims against the Government did not become operable at the time the plaintiff knew or should have known of his injury; 32 rather, the court held that "[w]here the tortious conduct is of a continuing nature, the Kubrick rule does not apply." 33 The court declared that the activity alleged constituted a continuing tort, and that the limitation applicable therefore "[ran] from the date of the last tortious act," 34 and remanded for additional factfinding as to when that final act occurred. 35
We view the injury claimed by Page as gradual, resulting from the cumulative impact of years of allegedly tortious drug treatment. To us it seems unrealistic to regard each prescription of drugs as the cause of a separate injury, or as a separate tortious act triggering a new limitation period. Page charges precisely the sort of continuous conduct accreting physical and mental injury that justifies characterization as a continuing tort. Resultingly, the cause of action Page stakes on continuous drug treatment did not accrue, and the statutory limitations did not come into play, until the allegedly tortious conduct came to a halt in 1980. Furthermore, Page's awareness since at least 1972 of his addiction and the attendant harm does not defeat application of the continuing-tort doctrine 36 since its very purpose would be to deny VA an open-ended license to continue the drug program that assertedly caused and maintained Page's addiction. 37
We hold that Page's claim that VA wrongfully prescribed addictive drugs without proper monitoring did not accrue for purposes...
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