Gess v. US
| Decision Date | 02 October 1995 |
| Docket Number | 94-D-1200-N and 94-D-1201-N.,94-D-0326-N,94-D-1199-N,93-D-1391-N to 93-D-1395-N,93-D-1140-N,Civil Action No. 93-D-0913-N,93-D-1139-N |
| Citation | 909 F. Supp. 1426 |
| Parties | Barbara GESS, et al., John Roberts, Sr., et al., Joseph Givens, et al., Patrick G. Roberts, et al., Steven Fowler, et al., David Barber, et al., Jay Dehaai, et al., Cheryl Pretiger Toms, et al., Alphonso Barnes, et al., Joseph Warrick, et al., Connie Mullen, et al., Donald Gregory Sharpe, et al., Plaintiffs, v. UNITED STATES of America, Defendant. |
| Court | U.S. District Court — Middle District of Alabama |
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Leonard Gilbert Kendrick, Randolph B. Moore, III, George Lamar Beck, Jr., William Terry Travis, Montgomery, AL, for plaintiffs.
Jeffrey Axelrad, Benjamin Franklin Station, Washington, DC, Kenneth E. Vines, Redding Pitt, Leura J. Garrett, U.S. Attorneys Office, Montgomery, AL, Lawrence A. Klinger, Gail K. Johnson, Heather S. Call, U.S. Dept. of Justice, Washington, DC, for defendant.
DE MENT, District Judge.
Before the court are Defendant United States of America's (hereafter "United States") motions to dismiss or, in the alternative, motions for summary judgment and the Plaintiffs' cross-motion for summary judgment.1 Concomitantly, the United States submitted briefs in support of said motions. Plaintiffs filed responses and supporting briefs in opposition to the United States' motions.
Because the motions involve similar issues and arise from the same set of facts, the court will consolidate the motions and address them simultaneously. After careful consideration of the arguments of counsel, the relevant case law and the record as a whole, the court finds that the United States and Plaintiffs' motions for summary judgment are due to be denied.
Plaintiffs predicate liability under 28 U.S.C. § 2401, et seq., the Federal Tort Claims Act (hereafter the "FTCA"). Subject-matter jurisdiction, thus, is proper pursuant to 28 U.S.C. § 1331, which provides that "the district courts shall have original jurisdiction of all civil actions arising under the ... laws ... of the United States." 28 U.S.C. § 1331. Personal jurisdiction and venue are not contested.
This is an action under the FTCA for injuries sustained by eleven newborn infants and one adult while patients on the obstetrics ward at a United States Air Force hospital in Montgomery, Alabama. In these consolidated cases, Plaintiffs seek recovery from the United States for physical complications allegedly caused by a "medical technician's" malicious injection of lidocaine into the newborn infants and one adult, the latter of whom had just undergone a cesarean section.
In urging summary judgment as to eight of the twelve actions, the United States does not challenge the merits of the claims but raises two affirmative defenses. Specifically, the United States asserts that the applicable statute of limitations bars seven of the lawsuits. Plaintiffs counter by arguing that although the applicable limitations statute may have run, equitable tolling should apply and, thus, save their actions. As to the remaining action, the United States contends that the minor's parents signed a release relinquishing all rights to now assert a legal claim against it.
Plaintiffs, on the other hand, have moved for summary judgment on the merits and assert that there is no genuine issue of material fact and that they are entitled to prevail as a matter of law. For clarity and organizational purposes, the court will set forth findings of fact as to each Plaintiff and then make conclusions of law.
On July 29, 1988, Sharon Gess gave birth to Melanie Gess (hereafter "Melanie") while confined to the obstetrics ward of the Air University Regional Hospital (hereafter the "AURH"), Maxwell Air Force Base (hereafter "Maxwell"), Montgomery, Alabama.2 Plaintiffs Lt. Col. William and Barbara Gess (hereafter the "Gess Plaintiffs") contend that while a newborn infant in the AURH nursery, Melanie sustained injuries on or about July 30, 1988. Specifically, the Gess Plaintiffs contend that the United States Air Force acting for the United States allowed the administration of toxic agents into Melanie, which caused apnea, anoxia, acute respiratory distress and other medical problems.
The facts underlying the Gess Plaintiffs' legal assertions are as follows: On or about January 19, 1989, the Gess Plaintiffs met with Dr. Stanford P. Sadick (hereafter "Dr. Sadick"), the Director of Hospital Services at the AURH. Lt. Col. Gess' Dep. at 20. During this meeting, Lt. Col. Gess stated that "we Lt. Col. and Ms. Gess and their daughter Sharon were told of the incident of tampering and that our baby was part of it." Id. at 27. Dr. Sadick also mentioned that it was possible that Melanie had been injected with lidocaine. Id. at 30. Lt. Col. Gess further claims that during this meeting, Dr. Sadick said the lidocaine "had gone right through her blood and that she Melanie was fine— that she would be just fine." Id. Thereafter, the Gess family talked to investigators with the United States Air Force Office of Special Investigations (hereafter the "OSI"), who also informed them that it was possible that Melanie had been injected with lidocaine. Id.
After their meeting with Dr. Sadick and the OSI, the Gess Plaintiffs consulted Steven Schmitt (hereafter "Schmitt"), an attorney who practices law in Tallassee, Alabama, about the possibility of bringing an action against the United States for the injuries Melanie sustained. Id. at 44, 66. The Gess Plaintiffs also articulated concerns about the possible long-term effects of the injection(s). Lt. Col. Gess signed a contingency contract with Schmitt. However, Schmitt later decided not to take the case and stated that the medical records showed no permanent injury. Id. at 67-68. Lt. Col. Gess asserts that as a result of Schmitt's representation, he and his wife decided not to pursue a lawsuit; however, Lt. Col. Gess admits that he was aware that any claim against the United States was subject to a limitations period. Id. Additionally, the Gess Plaintiffs contend that United States doctors assured them that although Melanie had been injected with lidocaine, she would not suffer any adverse health consequences and that the Air Force would take care of the medical expenses. Gess' Br. in Opp. to Mot. to Dis. at 5-6; Ms. Gess' Dep. at 9.
The Gess Plaintiffs also claim that they saw the newspaper article regarding the malfeasance which had occurred at the AURH, but that because of the reassurances received from the OSI and Commander of the AURH that Melanie would suffer no permanent harm, they disregarded the article. Gess' Br. in Opp. to Mot. to Dis.; Ms. Gess' Dep. at 10, 18. Ms. Gess revisited the OSI and was told that Melanie was progressing favorably, despite occasional vomiting. Gess' Br. in Opp. to Mot. to Dis. at 6; Ms. Gess' Dep. at 6.
Subsequently, civilian physicians treated Melanie when she experienced further complications. Dr. Molly Walker (hereafter "Dr. Walker") examined Melanie when her vagina closed and treated Melanie for vomiting. Ms. Gess testifies that she informed Dr. Walker that Melanie had been injected with lidocaine but that Dr. Walker expressed no causal nexus between Melanie's symptoms and the lidocaine injections. Ms. Gess' Dep. at 20, 21. Dr. Wyndell Galyard (hereafter "Dr. Galyard") examined Melanie for stomach problems but opined that nothing was wrong with her. Dr. Galyard did not refer Melanie to other physicians. Id. at 26. Ms. Gess asserts that through the four examinations that Melanie underwent at Monsky Clinic, not one physician stated that lidocaine possibly precipitated Melanie's complications.3 In fact, all the physicians at the Monsky Clinic indicated that Melanie was medically fine. Id. at 30, 39-41. Similar to the testimony given by her husband (Lt. Col. Gess), Ms. Gess states that after informing Schmitt of the United States' reports and preliminary findings, he decided not to take the case "because he could not show enough." Id. at 33.
On July 17, 1992, the Gess Plaintiffs filed a FTCA claim pursuant to 28 U.S.C. § 2401(b).4 Obtaining no relief from the United States as to the administrative claim, the Gess Plaintiffs instituted this action on July 22, 1993, alleging that the United States acted negligently in failing to supervise its agents or implement a program, which would prevent injury to those entrusted to the care of the AURH. The Gess Plaintiffs further aver that the Air Force failed to maintain and administer a quality assurance program in a medically acceptable manner.
On July 20, 1988, Terry Roberts (hereafter "Ms. Roberts") gave birth by cesarean section to Emily Roberts (hereafter "Emily") at the AURH. On July 22, 1988, Ms. Roberts allegedly was informed by Dr. Carol Green, a pediatrician at the AURH, that Emily experienced a cessation in breathing and turned blue twice. Roberts' Aff. at 1. Following this incident, Emily remained at the AURH four days. Id.
Emily's parents testify that since birth, Emily has endured ear infections that required surgical tubes, has undergone several ear operations and may have a permanent 35% hearing loss in one of her ears. Id. Other complications experienced by Emily and allegedly attributable to the care received at the AURH include the following: a urinary tract infection, which is purportedly an uncommon phenomenon in children; equilibrium problems; and frequent colds and viruses. Id. at 1-2.
After a family member read a news article in February 1989, regarding investigations underway at the AURH, the Roberts contacted the AURH Commander and communicated with the United States Air Force Office of Special Investigations (hereafter the "OSI"). At that time, the Roberts allegedly were informed that Emily was one of several children...
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