Eiswert v. United States

• Decision Date: 18 June 2018
• Docket Number: No. 2:11–CV–304,2:11–CV–304
• Citation: 322 F.Supp.3d 864
• Parties: Tracy Lynn Reece EISWERT, etc., et al., Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Eastern District of Tennessee

322 F.Supp.3d 864

Tracy Lynn Reece EISWERT, etc., et al., Plaintiffs,

v.UNITED STATES of America, Defendant.

No. 2:11–CV–304

United States District Court, E.D. Tennessee, At Greeneville.

Filed June 18, 2018

Benjamin A. Gastel, J. Gerard Stranch, IV, Branstetter, Stranch & Jennings, PLLC, Nashville, TN, Cristobal Bonifaz, Pro Hac Vice, John C. Bonifaz, Law Offices of Cristobal Bonifaz, Conway, MA, D. Bruce Shine, Law Office of D. Bruce Shine, Kingsport, TN, for Plaintiffs.

Kenny L. Saffles, Loretta S. Harber, Leah Walker McClanahan, US Department of Justice, Office of US Attorney, Knoxville, TN, for Defendant.

MEMORANDUM OPINION AND ORDER

J. RONNIE GREER, UNITED STATES DISTRICT JUDGE

This matter is before the Court on the Sixth Circuit's remand to decide unresolved issues with defendant's Motion to Dismiss, [Doc. 14], and its Supplement, [Doc. 39]. The defendant moved to dismiss the case pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). For the reasons that follow, the motion is GRANTED IN PART and DENIED IN PART.

I. BACKGROUND

To review, Mr. Scott Walter Eiswert was honorably discharged from the military on November 29, 2005. He applied for service-connected disability benefits with the United States Department of Veterans Affairs ("VA") in May 2006 for Post Traumatic Stress Disorder

("PTSD"). The VA denied the application in September 2006. Mr. Eiswert applied for reconsideration on August 24, 2007, and the VA once again denied his request on February 4, 2008. During this process, Mr. Eiswert was unable to obtain treatment for PTSD. On March 25, 2008, Mr. Eiswert declined the VA's attempts to schedule an appointment with the VA's PTSD Auerback Clinic. Tragically, Mr. Eiswert committed suicide on May 16, 2008. In sum, Mr. Eiswert received no treatment from the VA for PTSD from July 28, 2006, through March 25, 2008.

Mr. Eiswert's wife, Tracy Lynn Eiswert, the plaintiff, continued to pursue the benefits. The VA granted PTSD-related disability benefits on August 13, 2008, retroactive March 28, 2007. The VA increased this amount and the effective date on August 26, 2008, due to error. The VA did so again in April 2009 and May 2010.

On April 20, 2010, Ms. Eiswert filed an administrative claim pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2675 (2011),¹ seeking compensation for damages resulting from her husband's suicide. The VA denied the claim on November 5, 2010. She sought reconsideration on February 1, 2011. The VA notified Ms. Eiswert that the reconsideration was denied on April 19, 2011, and informed her she had six months to pursue her claim in federal court.

Ms. Eiswert and her children ("plaintiffs") filed the instant action alleging medical malpractice on October 11, 2011. Plaintiffs' counsel attached expert statements from board-certified psychiatrists to the Complaint, [Doc. 1]. These experts opined that within a reasonable degree of medical certainty, the VA's failure to recognize and treat Mr. Eiswert's PTSD contributed to his untimely death. One expert stated that the VA's treatment fell below the applicable standard of care. Plaintiffs' counsel also attached the experts' Curriculum Vitae. However, the Certificate of Good Faith as required by Tennessee Code Annotated section 29–26–122 was not attached.

The defendant then filed a Motion to Dismiss, [Doc. 14], and Supplement, [Doc. 39]. The defendant raised several arguments: that (1) Title 38 United States Code section 511(a) precluded the Court's review of any benefit determination; (2) Tennessee Code Annotated section 29–26–116(a)(3), the statute of repose, barred the plaintiffs' action; (3) plaintiffs failed to file a certificate of good faith and the action should be dismissed pursuant to Tennessee Code Annotated section 29–26–122 ; and (4) plaintiffs failed to properly demonstrate and plead compliance with Tennessee Code Annotated section 29–26–121 and the action should be dismissed.

The Court granted the defendant's motion because the plaintiffs did not strictly comply with section 122 in filing a Certificate of Good Faith. [Doc. 61]. The Court did not address the section 511(a)² or section 121 arguments. The Court addressed, but did not decide, the statute of repose issue. The plaintiffs then filed a Motion to Alter or Amend the Judgment and supplements, [Docs. 63, 68 and 70]. The Court denied the plaintiffs' motion, [Doc. 72], and the plaintiffs appealed.

After oral arguments, the Sixth Circuit certified the question of whether section 122 could be satisfied with substantial compliance to the Tennessee Supreme Court. Eiswert v. U.S. , 619 F. App'x 483, 488–89 (6th Cir. 2015). The Tennessee Supreme Court declined to answer the question because the section 121 argument had not been addressed and might be determinative of the case. See Eiswert v. U.S. , 639 Fed. App'x 345, 347 (6th Cir. 2016). As such, the Sixth Circuit remanded the case to this Court to determine whether the Complaint satisfies section 121 and address "any unresolved issues." Id. In a footnote, the Sixth Circuit noted that the statute of repose issue "may also be dispositive." Id. at 348 n. 2.

The issues before the Court after remand were whether (1) Tennessee Code Annotated section 29–26–116(a)(3), the statute of repose, bars the plaintiffs' action; (2) plaintiffs failed to file a certificate of good faith and the action should be dismissed pursuant to Tennessee Code Annotated section 29–26–122 ; and (3) plaintiffs failed to properly demonstrate and plead compliance with Tennessee Code Annotated section 29–26–121 and the action should be dismissed. Upon briefing these remanded issues, however, the defendant stated that section "121 is no longer an unresolved issue that needs to be resolved by the Court." As such, the parties agree that there are only two issues this Court needs to address. See [Doc. 84 at 7] (stating plaintiffs' issues for the Court to decide). They are whether the statute of repose, Tenn. Code Ann. § 29–26–116(a)(3), bars the plaintiffs' action, and whether plaintiffs' action should be dismissed for failing to file a certificate of good faith, Tenn. Code Ann. § 29–26–122.³ The Court will discuss each issue in turn after setting forth the standard of review.

II. STANDARDS OF REVIEW

A Rule 12(b)(1) motion to dismiss an action for lack of subject matter jurisdiction may be premised on a facial attack or a factual attack. See Abdelkhaleq v. Precision Door of Akron , No. 5:07-cv-3585, 2008 WL 3980339, at *2 (N.D. Ohio Aug.21, 2008) (O'Malley, J.). A facial attack tests the adequacy of the complaint, Scheuer v. Rhodes , 416 U.S. 232, 235–37, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), overruled on other grounds by Davis v. Scherer , 468 U.S. 183, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984), while a factual attack evaluates the actual existence of subject matter jurisdiction, Ohio Hosp. Ass'n v. Shalala , 978 F.Supp. 735, 739 (N.D. Ohio 1997). The importance of this distinction has to do with the nature of the Court's consideration of the facts and allegations presented in connection with the Rule 12(b)(1) motion. If the motion presents a facial attack, the Court must construe the pleadings in the light most favorable to the plaintiff and may not consider extrinsic materials. Abdelkhaleq , 2008 WL 3980339 at *2 (citing United States v. Ritchie , 15 F.3d 592, 598 (6th Cir. 1994) ). In contrast, if the motion presents a factual attack, the Court is free to consider extrinsic evidence and may weigh the evidence of its own jurisdiction without affording the plaintiff the presumption of truthfulness that is the hallmark of the Rule 12(b)(6) standard. Id. ; Rogers v. Stratton Indus., Inc. , 798 F.2d 913, 915 (6th Cir. 1986) ; see also Ernst v. Rising , 427 F.3d 351, 372 (6th Cir. 2005).

Dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6) eliminates a pleading or portion thereof that fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). Moreover, Federal Rule of Civil Procedure 8(a)(2) requires the complaint to contain a "short plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). A motion to dismiss under Rule 12(b)(6) requires the Court to construe the allegations in the complaint in the light most favorable to the plaintiff and accept all the complaint's factual allegations as true. Meador v. Cabinet for Human Res. , 902 F.2d 474, 475 (6th Cir. 1990). The Court may not grant a motion to dismiss based upon a disbelief of a complaint's factual allegations. Lawler v. Marshall , 898 F.2d 1196, 1199 (6th Cir. 1990). The Court must liberally construe the complaint in favor of the party opposing the motion. Miller v. Currie , 50 F.3d 373, 377 (6th Cir. 1995). However, the plaintiff must allege facts that, if accepted as true, are sufficient "to raise a right to relief above the speculative level," Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), and to "state a claim to relief that is plausible on its face," id. at 570, 127 S.Ct. 1955 ; see also Ashcroft v. Iqbal , 556 U.S. 662, 678–79, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937. Moreover, this Court need not " ‘accept as true a legal conclusion couched as a factual allegation.’ " Twombly , 550 U.S. at 555, 127 S.Ct. 1955 (quoting Papasan v. Allain , 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) ); see also Iqbal , 556 U.S. at 678, 129 S.Ct. 1937. Lastly, this Court may consider documents central to the plaintiff's claims to which the complaint refers and incorporates as exhibits. Amini v. Oberlin College , 259 F.3d 493, 502 (6th Cir. 2001).

III. ANALYSIS

A. 12(b)(1) claim

The defendant moves to dismiss pursuant to Rule 12(b)(1) and argues that this Court...