Bryant ex rel. Bryant v. U.S.

• Decision Date: 11 January 2000
• Docket Number: No. CIV 98-1495 PCT RCB.,CIV 98-1495 PCT RCB.
• Citation: 147 F.Supp.2d 953
• Parties: Marilyn BRYANT, individually and on behalf of Vincent Jay Bryant; Tom Bryant; Joshua Homer Bryant; Sonny Bryant; and Teancum Bryant, Plaintiffs, v. THE UNITED STATES of America; Barbara Franc, Defendants.
• Court: U.S. District Court — District of Arizona

147 F.Supp.2d 953

Marilyn BRYANT, individually and on behalf of Vincent Jay Bryant; Tom Bryant; Joshua Homer Bryant; Sonny Bryant; and Teancum Bryant, Plaintiffs, v. THE UNITED STATES of America; Barbara Franc, Defendants.

No. CIV 98-1495 PCT RCB.

United States District Court, D. Arizona.

January 11, 2000.

COPYRIGHT MATERIAL OMITTED

John D. Everroad, Kim Seibert Alvarado, Fennemore Craig, PC, Phoenix, AZ, for Plaintiff.

John Robert Mayfield, U.S. Atty's Office, Phoenix, AZ, Madeline Henley, U.S. Dept. of Justice, Washington, DC, Vincent John Montell, Teilborg, Sanders & Parks, PC, Phoenix, AZ, for Defendant.

ORDER

BROOMFIELD, District Judge.

Plaintiffs have brought this action against the United States pursuant to the Federal Tort Claims Act ("FTCA") based on injuries sustained by Vincent Bryant during a dental procedure performed at a federal hospital in Window Rock, New Mexico. Plaintiffs have filed a motion requesting certification of several questions of law to the Navajo Supreme Court or, alternatively, a single question of law to the New Mexico Supreme Court. The government has filed a memorandum in opposition to this request and also a motion to dismiss the Plaintiffs' loss of consortium claims. Having carefully considered the arguments raised, the court will now rule on these matters.

I. BACKGROUND

On October 9, 1997, Vincent Bryant entered the Northern Navajo Medical Center ("Medical Center"), located in Shiprock, New Mexico, to have his wisdom teeth extracted. The Medical Center is a federal hospital operated by Indian Health Services ("IHS") and is located on the Navajo reservation. During the dental procedure, Vincent suffered irreversible brain damage, allegedly due to the negligence of the oral surgeon and the nurse anesthetist. He remains in a persistent vegetative state and currently resides in a long-term rehabilitation facility in St. George, Utah.

At the time of his injury, Vincent was nineteen-years, two-months old and lived with his parents and three brothers. Vincent's brothers were the following ages at the time of his injury: Sonny Bryant was fifteen-years, ten-months old; Teancum Bryant was thirteen-years, eight-months old; and Joshua Homer Bryant was eleven-years, ten-months old.

In their Complaint, Plaintiffs seek loss of consortium damages against the United States under their FTCA claim. Both Vincent's parents, Marilyn and Tom Bryant,¹ and his siblings seek such damages.

II. DISCUSSION

In their motion seeking certification of certain questions of law, Plaintiffs assert that this court must apply Navajo law in determining the United States' liability under the FTCA. Based on this assertion, they move the court to certify the following three questions of law to the Navajo Nation Supreme Court:

1. Under Navajo law, does the New Mexico Medical Malpractice Act, N.M. Stat. Ann. § 41-5-1 to 41-5-29, apply to a medical malpractice cause of action that occurred within the jurisdiction of the Navajo Nation?

2. Under Navajo law, may parents recover damages for loss of consortium resulting from catastrophic injuries to a nineteen-year-old child who lived with his parents since minority?

3. Under Navajo law, may minor siblings recover damages for loss of consortium resulting from catastrophic injuries to another sibling?

Alternatively, if this court determines that New Mexico state law and not Navajo law applies in this FTCA action, Plaintiffs ask the court to certify the following question to the New Mexico Supreme Court:

1. Under New Mexico law, may minor siblings recover damages for loss of consortium resulting from catastrophic injuries to another sibling?

In response, the government maintains that New Mexico state law, not Navajo law, governs its liability under the FTCA in this case. It further argues that certification to the New Mexico Supreme Court of the proposed question of law is improper because this court lacks jurisdiction over the siblings' loss of consortium claims due to their failure to exhaust administrative remedies and because New Mexico law gives ample indication regarding the propriety of loss of consortium claims brought by siblings of an adult. The government also moves to dismiss the siblings' loss of consortium claims due to their failure to exhaust administrative remedies and to dismiss all of the Plaintiffs' loss of consortium claims for failure to state a claim upon which relief can be granted.

The first issue the court must resolve is the identity of the law governing the United States' liability in this action. Only after this question is resolved can the court properly address issues relating, first, to the propriety of certifying questions of law and, second, to the United States' motion to dismiss.

A. Law Governing Liability of United States under FTCA in this Action

Under the FTCA, the United States has waived its sovereign immunity to the following extent:

for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

28 U.S.C. § 1346(b)(1). Since the enactment of this provision in 1948, courts have operated under the rule that the phrase the "law of the place" refers to the law of the state where the negligent act or omission occurred. See, e.g., F.D.I.C. v. Meyer, 510 U.S. 471, 478, 114 S.Ct. 996, 1001, 127 L.Ed.2d 308 (1994) ("[W]e have consistently held that § 1346(b)'s reference to the `law of the place' means law of the State — the source of substantive liability under the FTCA."); Miree v. DeKalb County, 433 U.S. 25, 29 n. 4, 97 S.Ct. 2490, 2494 n. 4, 53 L.Ed.2d 557 (1977); Rayonier Inc. v. United States, 352 U.S. 315, 318-19, 77 S.Ct. 374, 376, 1 L.Ed.2d 354 (1957); Kruchten v. United States, 914 F.2d 1106, 1107 (8th Cir.1990); Brown v. United States, 653 F.2d 196, 201 (5th Cir.1981); United States v. English, 521 F.2d 63, 65 (9th Cir.1975). Courts have consistently reached this same conclusion even when the negligent act or omission occurred on Indian land located within a state. See Red Lake Band of Chippewa Indians v. United States, 936 F.2d 1320 (D.C.Cir. 1991); Seyler v. United States, 832 F.2d 120 (9th Cir.1987); Bryant v. United States, 565 F.2d 650 (10th Cir.1977). Consistent with this traditional rule regarding the meaning of the "law of the place," the parties agreed in the joint case management plan filed with the court that New Mexico substantive law applies in determining the United States' liability in this case. In their motion requesting certification of questions of law to the Navajo Supreme Court, however, Plaintiffs now assert that Navajo law applies because the alleged negligent acts or omissions occurred in a hospital located on Navajo tribal land. They base this new assertion on a recent case decided by the U.S. District Court for the District of New Mexico. Cheromiah v. United States, 55 F.Supp.2d 1295 (D.N.M.1999).

In Cheromiah, the plaintiffs' son died due to complications arising from a bacterial infection. The plaintiffs brought an FTCA claim against the United States based on the alleged negligence of doctors at an IHS hospital in failing to diagnose and treat the infection. The hospital was located on Acoma tribal land within the State of New Mexico and was operated by IHS pursuant to a lease agreement with the Acoma Tribe. See id. at 1297.

The plaintiffs in Cheromiah sought a ruling from the district court that the New Mexico Medical Malpractice Cap ("NMMMC") did not protect the government because the law of the Acoma Tribe and not New Mexico law governed the liability of the United States under the FTCA. The plaintiffs argued that because the alleged negligence occurred within the boundaries of the Acoma Tribe, its law was the "law of the place" where the negligent acts or omissions occurred. See id. at 1301. Finding the logic of the plaintiffs' argument "compelling," the district court ruled that the law of the Acoma Tribe was the applicable law under 28 U.S.C. § 1346(b) and that, therefore, the NMMMC did not apply. See id. at 1302, 1309.

In reaching its decision, the district court in Cheromiah first determined that courts had never held that the "law of the place" simply and always means the "law of the state." In support of this conclusion, the district court cited decisions holding that in the District of Columbia, the law of the District applies, and that in U.S. territories, such as Puerto Rico and Guam, the law of the territory applies. See id. at 1302. The primary support offered by the district court for its conclusion, though, was an analysis demonstrating that a private person in like circumstances to the United States would be subject to the jurisdiction of the Acoma Tribal Court. The court found that based on Supreme Court precedent a private individual would be subject to such jurisdiction because the United States had entered into a consensual relationship with the Acoma Tribe through the lease agreement and because the United States' conduct had a significant impact on the health and welfare of the tribe. See id. at 1303-05. From this conclusion, the court found that the Acoma Tribe was the relevant political entity that controlled the jurisdiction in which the alleged tort occurred. See id. at 1305 (citing Hess v. United States, 361 U.S. 314, 319, 80 S.Ct. 341, 345, 4 L.Ed.2d 305 (1960) ("[T]he term `place' in the [FTCA] means the political entity ... whose laws shall govern the action against the United States `in the same manner and to the same extent as a private individual under like circumstances.'")). The court determined that it was "therefore compelled to conclude that the law of the Acoma Tribe is the `law of the place' within the meaning of the...