Hammond v. United States

• Decision Date: 31 January 1975
• Docket Number: No. 74C 847.,74C 847.
• Citation: 388 F. Supp. 928
• Parties: Henry HAMMOND, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Eastern District of New York

388 F. Supp. 928

Henry HAMMOND, Plaintiff, v. UNITED STATES of America, Defendant.

No. 74C 847.

United States District Court, E. D. New York.

January 31, 1975.

Paul D. Rheingold, New York City, for plaintiff.

David G. Trager, U. S. Atty., USDC, EDNY by Thomas A. Illmensee, Asst. U. S. Atty., and Arthur N. Levine, Atty. — Food and Drug Division U. S. Dept. of Health, Education and Welfare, for defendant.

Memorandum and Order

PLATT, District Judge.

This case was filed under the Federal Tort Claims Act, Title 28 U.S.C. §§ 1346(b), 2671-2680, to recover $5,000,000 damages for injuries to plaintiff, Henry Hammond, allegedly caused by the negligence of the Government.

Plaintiff claims that the employees of the Division of Biologics Standards of the National Institute of Health, Department of Health, Education and Welfare negligently administered certain safety regulations pertaining to the manufacture and release of Sabin Oral Poliovirus Vaccine resulting in plaintiff's having contracted paralytic poliomyeliti and thereafter negligently misrepresented that the vaccine did in fact meet the requirements of these regulations. Specifically plaintiff complains that on or about June 14, 1962 a mobile truck unit employed by said Department of Health furnished plaintiff with a Type III Sabin Oral Poliovirus Vaccine, identified as Lot 18, manufactured by Wyeth Laboratories, Inc. which had been approved for release by the United States Government. As a result of the ingestion of said vaccine plaintiff sustained the injury for which he now seeks recovery.

On July 19, 1965, plaintiff commenced an action in the Supreme Court of the State of New York, County of Kings, against the manufacturer of the vaccine, Wyeth Laboratories, Inc., for alleged negligence in its production and testing of Lot 18, seeking recovery for the same injuries complained of here.

On September 8, 1966, in preparation for trial, plaintiff participated in the taking of depositions of Dr. Roderick Murray, then Director of the Division of Biologics Standards, and Dr. Ruth Kirschstein, then Chief of the Pathology Section of the Laboratory of Viral Immunology, Divisions of Biologics Standards, U. S. Department of Health, Education and Welfare, which depositions described, in seventy-seven (77) pages of transcript, the involvement of the Government in the testing and releasing of the vaccine in question.

Finally, on June 13, 1973, eleven years after plaintiff contracted paralytic poliomyelitis, and eight years after plaintiff filed suit against the manufacturer, Wyeth Laboratories, plaintiff filed an administrative claim with the Department of Health, Education and Welfare, and on June 4, 1974, plaintiff filed the suit which is presently before us.

As a threshold defense, the Government has moved for an order dismissing the action on the grounds that the Court lacks jurisdiction over the subject matter, and that the complaint fails to state a claim upon which relief can be granted. Both of these grounds are based upon the assertion that plaintiff's alleged claim is barred by the two-year statute of limitations provided for in the Federal Tort Claims Act, 28 U.S.C. § 2401(b). Since, however, the Court has considered matters outside the pleadings which were presented by the parties, the Court will treat this motion as one for summary judgment and dispose of it as provided by Rule 56 of the Federal Rules of Civil Procedure.

DISCUSSION

The statute of limitations applicable to the Federal Tort Claims Act is a jurisdictional requisite to suit in the federal courts. If an action is not begun within the prescribed period, a federal district court is without jurisdiction to entertain it. Ashley v. United States, 413 F.2d 490, 492 (9th Cir. 1969); Turkett v. United States, 76 F.Supp. 769, 770 (N.D.N.Y.1948). See Best Bearings Co. v. United States, 463 F.2d 1177, 1179 (7th Cir. 1972); Bialowas v. United States, 443 F.2d 1047, 1048-1049 (3d Cir. 1971); Crown Coat Front Co. v. United States, 363 F.2d 407, 411 (2d Cir. 1966), rev'd on other grounds, 386 U.S. 503, 87 S.Ct. 1177, 18 L.Ed.2d 256 (1967); Isthmian Steamship Co. v. United States, 302 F.2d 69, 70 (2d Cir. 1962).

The Supreme Court has ruled that this limitation period as well as any other limitation upon which the Government consents to be sued "must be strictly observed and exceptions thereto are not to be implied." Soriano v. United States, 352 U.S. 270, 276, 77 S.Ct. 269, 273, 1 L.Ed.2d 306 (1957); United States v. Sherwood, 312 U.S. 584, 61 S. Ct. 767, 85 L.Ed. 1058 (1941).

Suits against the United States can only be brought in the manner prescribed. The extent of the Government's consent to be sued under 28 U.S. C. § 1346 is jurisdictional and where there has been so specific authority granted, a court has no power to hear the matter raised. United States v. Carey Terminal Corp., 209 F.Supp. 385, 386 (E.D.N.Y.1962); Pargament v. Fitzgerald, 391 F.2d 934 (2d Cir. 1968), affirming, 272 F.Supp. 553 (S.D.N.Y.1967).

The Statute

The Federal Tort Claims Act statute of limitations in effect when the plaintiff contracted polio, and also in effect when plaintiff first commenced his action against Wyeth Laboratories provided:

28 U.S.C. § 2401

Time for commencing action against the United States (applicable to claims accruing on or before January 18, 1967)

* * * * * *

(b) A tort claim against the United States shall be forever barred unless action is begun within two years after such claim accrues . . .

A tort claim which accrued after January 18, 1967 is barred "unless it is presented in writing to the appropriate Federal agency within two years after such action accrues . . ." 28 U.S. C. § 2401(b).

Thus, the only relevant difference between the old version of § 2401(b) and the present Section is that under the old, an action had to be begun, whereas under the present the filing of an administrative claim will prevent the running of the statute. It will be shown later that under either statute the ruling of this Court upon this motion would be the same.

"When a Claim Accrues"

We next come to the question of when the two year period begins to run under the factual situation of the present case. The statute itself states that the period commences when a claim "accrues." 28 U.S.C. § 2401(b). The standard for determining when a claim accrues is governed by federal rather than state law. Kossick v. United States, 330 F.2d 933, 935 (2d Cir. 1964), cert. den., 379 U.S. 837, 85 S.Ct. 73, 13 L.Ed.2d 44; Ciccarone v. United States, 486 F.2d 253, 256 (3d Cir. 1973); Hungerford v. United States, 307 F.2d 99, 101 (9th Cir. 1962); Quinton v. United States, 304 F.2d 234, 235-240 (5th Cir. 1962).

Where the injury coincides with the negligent act and some damage is discernible at that time, the two-year statute of limitations begins to run immediately. Beech v. United States, 345 F.2d 872 (5th Cir. 1965); United States v. Reid, 251 F.2d 691 (5th Cir. 1958). Where the injured party is not constrained to investigate, then a claim accrues when the injury is apparent, diagnosed, or discernible. Under the federal rule, the injured party is charged with diligent discovery of the negligent acts. Ciccarone v. United States, supra; Mendiola v. United States, 401 F.2d 695 (5th Cir. 1968); Pittman v. United States, 341 F.2d 739 (9th Cir. 1965), cert. den., 382 U.S. 941, 86 S.Ct. 394, 15 L.Ed.2d 351 (1965); Kossick v. United States, supra, 330 F.2d at 936.

In contrast to this traditional, stricter standard, where the limitation period commences to run with the occurrence of the act or omission giving rise to the claim, the federal courts have held that in medical malpractice actions against the Government the limitation period does not begin to run until "the claimant has discovered, or in the exercise of reasonable diligence should have discovered, the acts constituting the alleged malpractice." Toal v. United States, 438 F.2d 222, 225 (2d Cir. 1971); Quinton v. United States, 304 F.2d 234 (5th Cir. 1962).

Defendant contends that the stricter standard should be applied as "plaintiff has pleaded no special facts of undetectable injury or the like that would toll the statutory limitation." (Gov's br. #1, p. 9). Unquestionably, claimant was aware of his injury which followed only several days from the time he ingested the live polio vaccine in June of 1962. "As a matter of federal law, where the injury coincides with the negligent act and some damage is discernible at the time" the statute of limitations begins to run. Mendiola v. United States, supra, 401 F.2d at 697. The injury itself clearly should have alerted Mr. Hammond that his affliction may have been caused by the negligent manufacture, testing or releasing of the live polio vaccine which he had taken several days previously.

". . . Thus, the trial court properly concluded that . . . there came knowledge of facts sufficient to alert a reasonable person that there may have been negligence related to the grievance for which the complaint was subsequently made. The tragedy itself, unusual and unexpected, would ordinarily be expected to have alerted the plaintiffs to take steps to ascertain whether rights had accrued and if so, to protect those rights." (Emphasis added). Brown v. United States, 353 F.2d 578, 580 (9th Cir. 1965).

Therefore, to apply the traditional standard to the present case, plaintiff's claim would be time-barred. By 1962 Mr. Hammond's injury was apparent, diagnosed, and discernible, yet, plaintiff did not bring an administrative claim until June 13, 1973, nor did he bring this suit until June 4, 1974.

However, this Court is manifestly aware of the potential hardship to Mr. Hammond if it should rule that his claim is time-barred. Under such circumstances, the Court has reviewed the facts as set forth in the pleadings, motion papers, affidavits, and briefs of counsel in light of the less stringent standard set by the Federal courts in malpractice c...