Faura Cirino v. U.S., No. CIV. 01-1912(SEC).

• Decision Date: 27 June 2002
• Docket Number: No. CIV. 01-1912(SEC).
• Parties: Gisela FAURA CIRINO, et al. Plaintiffs v. UNITED STATES of America Defendant
• Court: U.S. District Court — District of Puerto Rico

210 F.Supp.2d 46

Gisela FAURA CIRINO, et al. Plaintiffs v. UNITED STATES of America Defendant

No. CIV. 01-1912(SEC).

United States District Court, D. Puerto Rico.

June 27, 2002.

COPYRIGHT MATERIAL OMITTED

Ricardo Ruiz-Diaz, Ruiz & Reyees Law Offices, Fajardo, PR, Ramón L. Walker-Merino, San Juan, PR, for Plaintiffs.

Lisa E. Bathia-Gautier, U.S. Attorney's Office, San Juan, PR, for Defendants.

OPINION AND ORDER

CASELLAS, District Judge.

Before the Court is the United States of America's ("Defendant") motion to dismiss the complaint. (Docket # 11). Gisela Faura Cirino and Gregorio Fuentes Fuentes ("Plaintiffs") have filed an opposition to the motion to dismiss (Docket# 15), and Defendant has filed a reply (Docket# 18). After careful review of the arguments of counsel, the relevant law, and the record, the Court finds that Defendant's motion should be DENIED.

Jurisdiction

The Court's subject matter jurisdiction is invoked pursuant to 28 U.S.C. § 1331 (federal question) as Plaintiffs bring a cause of action under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2761, et seq. The parties do not dispute that this is the proper venue.

Background

1. Factual Background

Plaintiffs assert a tort claim for wrongful death, utilizing Puerto Rico law.¹ Specifically, Plaintiffs allege that the medical treatment provided to their son/decedent Edison Fuentes Faura by Edwin Perez Perez, M.D., and the Concilio de Salud Integral de Loiza (CSILO)² on August 5, 1998, was below the applicable standard of care. Defendant asserts that Plaintiffs did not adequately exhaust the administrative remedies before filing the above-captioned matter, and as such, the Court lacks subject matter jurisdiction.

2. Procedural Background

This procedural background, which is not disputed by the parties, is critical to our analysis, and is set forth chronologically:

a. The factual scenario giving rise to this matter occurred on August 5, 1998.

b. On November 5, 1999, Plaintiffs filed a claim against CSILO, the Municipal Government of Loiza, the Commonwealth of Puerto Rico, and the University of Puerto Rico, Case No. FDP 1999-0702(407) in the Court of First Instance, Carolina Part. In that case, Plaintiffs asserted claims against all Defendants for professional negligence allegedly committed by employees of CSILO.

c. On April 27, 2000, CSILO moved to dismiss the complaint filed in the Commonwealth court because it is a federal institution that could only be sued under the Federal Tort Claims Act.

d. Upon this realization, Plaintiffs moved for a dismissal of that action on May 25, 2000.

e. Plaintiffs then filed an administrative claim with the Department of Health and Human Services on September 13, 2000, as a prerequisite to filing this suit.

f. On January 16, 2001, the Commonwealth court dismissed the claims against CSILO.

g. Plaintiffs filed the above-captioned matter on July 9, 2001.

Applicable Law/Analysis

1. Motion to Dismiss Standard

Fed.R.Civ.P. 12(b)(1) permits a defendant to assert a claim that the Court lacks subject matter jurisdiction to entertain the action. As the First Circuit Court of Appeals has cogently stated, "federal courts are not at liberty to overlook limitations on their subject matter jurisdiction." A.M. Francis v. Goodman, 81 F.3d 5, 8 (1st Cir.1996). Thus, if the Court determines, as a threshold matter, that subject matter jurisdiction does not exist, it must dismiss the case and not make any determination on the merits of the same.

The First Circuit has noted that rule 12(b)(1) "... is a large umbrella, overspreading a variety of different types of challenges to subject-matter jurisdiction." Valentin v. Hospital Bella Vista, 254 F.3d 358, 362-63 (1st Cir.2001). One type of challenge occurs when the defendant controverts "the accuracy (rather than the sufficiency) of the jurisdictional facts asserted by the plaintiff and proffering materials of evidentiary quality in support of their position." Id. This type of challenge (which is termed a "factual challenge"), unlike a motion for summary judgment, "permits (indeed, demands) differential factfinding. Thus, the plaintiff's jurisdictional averments are entitled to no presumptive weight; the court must address the merits of the jurisdictional claim by resolving the factual disputes between the parties." Id. When the Court makes a determination on a factual challenge, it "enjoys broad authority to order discovery, consider extrinsic evidence, and hold evidentiary hearings in order to determine its own jurisdiction." Id.

Another 12(b)(1) challenge "accepts the plaintiff's version of jurisdictionally-significant facts as true and addresses their sufficiency, thus requiring the court to assess whether the plaintiff has propounded an adequate basis for subject-matter jurisdiction." Id. at 363 (citations omitted). In making this determination, the court is obliged to "credit the plaintiff's well pleaded factual allegations (usually taken from the complaint, but sometimes augmented by an explanatory affidavit or other repository of uncontested facts), draw all reasonable inferences from them in her favor, and dispose of the challenge accordingly." Id. (citations omitted). This type of challenge has been dubbed a "sufficiency challenge." In this case, Defendant presents a sufficiency challenge, and the Court will therefore, credit Plaintiffs' version of the procedural facts as set forth above.

2. The Administrative Exhaustion Requirement of the FTCA

The Federal Tort Claims Act provides that, "a tort claim against the United States is `forever barred' unless it is presented within two years after the claim accrues." Gonzalez v. United States, 284 F.3d 281, 288 (1st Cir.2002) (citing 28 U.S.C. § 2401(b)). Section 2401(b) provides 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.

28 U.S.C. § 2401(b). It is thus clear that an "... FTCA claim must be dismissed if plaintiff fails to file a timely administrative claim." Gonzalez, 284 F.3d at 288 (citation omitted). Finally, the administrative filing requirement is a "jurisdictional prerequisite to suit that cannot be waived." Id. (citations omitted). Notwithstanding these stringent requirements, there is a savings clause that can resurrect an otherwise untimely claim. "This provision excuses a plaintiff's failure to exhaust administrative remedies where: (1) the tort claim accrued within two years of the state court action and (2) the plaintiff presents the claim to the appropriate federal agency within sixty days after the dismissal of the action." Id., citing 28 U.S.C. § 2679(d)(5).

In the case at bar, much of the parties' arguments concern the accrual date of Plaintiffs' claim. Plaintiffs seek to invoke the "discovery rule" to push the accrual date of their cause of action to February 9, 1999, the day they received the coroner's autopsy report detailing the cause of their son's death. While Defendant argues that Plaintiffs' claim accrued on August 5, 1998, the date of their son's death.

The general rule in the law of tort is that a claim accrues on the date of the plaintiff's injury. See United States v. Kubrick, 444 U.S. 111, 120, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979); Gonzalez, 284 F.3d at 288. Under this rule, the Plaintiffs' claim accrued on August 5, 1998, the date of their son's death. Plaintiffs filed their Commonwealth claim on November 5, 1999, and filed their administrative claim on September 13, 2000. Thus, pursuant to the two-year statute of limitations set forth in Section 2401(b), the claim would be time-barred, without taking into account the possible application of the afore-mentioned savings clause.

Plaintiffs however, seek to invoke the "discovery rule," which provides that "a claim accrues when the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, the factual basis for the cause of action." Gonzalez, 284 F.3d at 288, citing Kubrick, 444 U.S. at 121-24, 100 S.Ct. 352 (citations omitted). The discovery rule utilizes an objective standard, which means that "in order to toll the statute of limitations ... the factual basis for the cause of action must have been `inherently unknowable' at the time of the injury." Gonzalez, 284 F.3d at 289 (internal citation omitted). The factual basis for a plaintiff's injury is inherently unknowable if it is "incapable of detection by the wronged party through the exercise of reasonable diligence." Geo. Knight & Co. v. Watson Wyatt & Co., 170 F.3d 210, 213 (1st Cir.1999).

The discovery rule requires diligence on the part of plaintiff, for "[o]nce a plaintiff knows of the injury and its probable cause, he/she bears the responsibility of inquiring among the legal communities about whether he/she was wronged and should take legal action." Gonzalez, 284 F.3d at 289, citing Kubrick, 444 U.S. at 123, 100 S.Ct. 352. In other words, "[w]hen the facts [become] so grave as to alert a reasonable person that there may have been negligence related to the treatment received, the statute of limitations [begins] to run against the [plaintiff]." Hau v. United States, 575 F.2d 1000, 1003 (1st Cir.1978). Finally, the limitations period will commence, "regardless of whether plaintiffs make inquiries, and regardless of whether they are correctly advised." Gonzalez, 284 F.3d at 289, citing Kubrick, 444 U.S. at 124, 100 S.Ct. 352.

Under the discovery rule, Plaintiffs argue that their claim did not accrue until February 9, 1999, the day they received the coroner's autopsy report detailing the cause of their son's death. We reject this argument, and hold that Plaintiffs' cause of action accrued on August 5, 1998, the date of their...