Jones v. U.S.

• Decision Date: 15 August 2011
• Docket Number: No. 3:09–0986.,3:09–0986.
• Citation: 789 F.Supp.2d 883
• Parties: Jennifer JONES and Omar Jones, each individually and each on behalf of Tysai Jones, a minor child, Plaintiffs,v.UNITED STATES of America, Defendant.
• Court: U.S. District Court — Middle District of Tennessee

789 F.Supp.2d 883

Jennifer JONES and Omar Jones, each individually and each on behalf of Tysai Jones, a minor child, Plaintiffs,

v.UNITED STATES of America, Defendant.

No. 3:09–0986.

United States District Court,M.D. Tennessee,Nashville Division.

April 25, 2011.Order Denying Reconsideration Aug. 15, 2011.

OPINION TEXT STARTS HEREWest CodenotesLimited on Preemption GroundsWest's T.C.A. § 29–26–116(a)(3) John W. Caldwell, Fairacres, NM, Cynthia T. Lawson, Bond, Botes & Lawson, P.C., Knoxville, TN, for Plaintiffs.

Sam Delk Kennedy, Jr., Office of the United States Attorney, Nashville, TN, for Defendant.

MEMORANDUM

WILLIAM J. HAYNES, JR., District Judge.

Plaintiffs, Jennifer and Omar Jones, individually, and on behalf of Tysai Jones, a minor, New Jersey citizens, filed this action under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b)(1), against the Defendant, the United States of America, for medical negligence in its failure to diagnose and treat Jennifer Jones and her unborn child, Tysai, in a timely manner.

Before the Court is the Defendant's motion to dismiss (Docket Entry No. 37), contending that Plaintiffs' claims are barred by Tennessee's three-year statute of repose for medical malpractice actions. In their response (Docket Entry No. 43), Plaintiffs assert that they timely filed their administrative claims within the FTCA's applicable statute of limitations and timely filed this action after their administrative claims were denied.

For the reasons set forth below, the Court concludes that Plaintiffs' claims are not barred by Tennessee's medical malpractice statute of repose because the state statute of repose is preempted by the federal statute giving rise to Plaintiffs' claims and that statute expressly permits Plaintiffs to await a final agency decision before filing this action.

I. ANALYSIS OF COMPLAINT

On or about October 8, 1999, Plaintiff Jennifer Jones called the Labor and Delivery department at Blanchfield Army Community Hospital (“BACH”), in Fort Campbell, Kentucky,¹ reporting unusual movement from her unborn baby. (Docket Entry No. 1, at ¶ 6). Defendant's employees instructed Jones “to lie on her side, drink some cold water, and come to the hospital the next morning if normal movement had not returned.” Id. Jones decided not to wait until morning and went to the hospital that night. Id. Jones was then connected to a fetal heart monitor. Id. at ¶ 7.

Thereafter, Tysai Jones suffered “fetal distress incurring anoxic injury to his brain and body.” Id. According to the complaint, Defendant's employees delayed the delivery of Tysai Jones until sometime after 10:00 a.m. the following morning and at the time of delivery, “Tysai Jones was in severe respiratory distress and required multiple intubations, blood transfusions, and transfer to Vanderbilt University Hospital.” Id. at ¶¶ 7–8. Plaintiffs allege that Defendant's delay in recognizing the fetal distress and timely delivering Tysai Jones caused him to suffer severe physical and mental impairment as a result. Id. at ¶ 9.

Plaintiffs timely filed their claims in writing to the United States Department of Army. Id. at ¶ 5. The Army did not take any action for over six months, and Plaintiffs filed this action before this Court on October 20, 2009. Id. The Army subsequently denied Plaintiffs' claims on January 28, 2010. (Docket Entry No. 44, Attachment 1).

II. CONCLUSIONS OF LAW

Fed.R.Civ.P. 12(b)(1) provides for dismissal of a claim for lack of subject matter jurisdiction that may consist of either a “facial attack” or a “factual attack.” O'Bryan v. Holy See, 556 F.3d 361, 375 (6th Cir.2009).

“A facial attack on the subject-matter jurisdiction alleged in the complaint questions merely the sufficiency of the pleading.” And, “[w]hen reviewing a facial attack, a district court takes the allegations in the complaint as true.... If those allegations establish federal claims, jurisdiction exists.” However, “conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss.”

Id. at 375–76 (citations omitted). “A factual attack, on the other hand, is not a challenge to the sufficiency of the pleading's allegations, but a challenge to the factual existence of subject matter jurisdiction.” United States v. Ritchie, 15 F.3d 592, 598 (6th Cir.1994). On a factual attack, “no presumptive truthfulness applies to the factual allegations, and the court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case.” Id. (citation omitted). “[A] trial court has wide discretion to allow affidavits, documents and even a limited evidentiary hearing to resolve disputed jurisdictional facts.” Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir.1990). The plaintiff bears the burden of proof that jurisdiction exists under 12(b)(1). RMI Titanium Co. v. Westinghouse Elec. Corp., 78 F.3d 1125, 1134 (6th Cir.1996).

Defendant contends that the Court lacks subject matter jurisdiction because Plaintiffs' claims are barred by Tennessee's statute of repose applicable to medical malpractice actions. Plaintiffs argue that they timely filed their claims with the U.S. Army on February 2, 2001, that is within the FTCA's two-year statute of limitations from the date their claims accrued on October 8, 1999, and that the Army did not take final action until January 28, 2010. Plaintiffs assert that the filing of their administrative claims perfected their tort claims against the United States and the date of that filing controls the determination of whether a private person in Tennessee would have been liable to plaintiffs under Tennessee law.

Under the FTCA, an injured person can file an action against the United States for the negligent acts or omissions of a government employee acting within the scope of his or her official duties. 28 U.S.C. §§ 2674 and 2679(b)(1). See also Ward v. United States, 838 F.2d 182, 184 (6th Cir.1988); Henson v. NASA, 14 F.3d 1143, 1147 (6th Cir.1994). The FTCA provides that:

civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, 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). The FTCA also provides that the United States “shall be liable ... in the same manner and to the same extent as a private individual under like circumstances.” 28 U.S.C. § 2674; Young v. United States, 71 F.3d 1238, 1244 (6th Cir.1995) (The FTCA “is a limited waiver of immunity. The extent of that waiver (i.e. the United States' amenability to suit and substantive tort liability) is determined by analogizing the United States to a private actor in a similar situation under the appropriate state law.”).

For tort claims, 28 U.S.C. § 2401(b) provides:

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.

Id. Federal law determines when a claim accrues within the meaning of the two-year limitations period. Chomic v. United States, 377 F.3d 607, 610 (6th Cir.2004).

An agency's failure “to make final disposition of a claim within six months after [the claim] is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim for purposes of this section.” 28 U.S.C. § 2675(a). The six-month period within which an action must be filed is tolled so long as the claim is not finally denied by the agency. Conn v. United States, 867 F.2d 916, 920 (6th Cir.1989). The requirements in 28 U.S.C. § 2675(a) and 28 U.S.C. § 2401(b) that an administrative claim be presented to the appropriate federal agency within the two-year statute of limitations as prerequisites to filing a civil action “are valid conditions under which suits may be maintained under the statute. These conditions are jurisdictional requirements, not capable of waiver or subject to estoppel.” Garrett v. United States, 640 F.2d 24, 26 (6th Cir.1981). “Courts are not at liberty to ‘take it upon [them]selves to extend the waiver beyond that which Congress intended.’ ” Chomic, 377 F.3d at 615 (quoting United States v. Kubrick, 444 U.S. 111, 118, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979)).

The FTCA applies the substantive state law where the alleged tort occurred Ward, 838 F.2d at 184. Here, the parties do not dispute that Tennessee substantive law governs the Plaintiffs' claims. For medical malpractice claims, Tennessee law provides a three-year statute of repose that “sets an absolute limit on the time in which a plaintiff may bring a medical malpractice action.” Mills v. Wong, 155 S.W.3d 916, 920 (Tenn.2005); Tenn.Code Ann. § 29–26–116(a)(3).² In Mills, the Tennessee Supreme Court stated:

In no event shall any such action be brought more than three (3) years after the date on which the negligent act or omission occurred except where there is fraudulent concealment on the part of the defendant[,] in which case the action shall be commenced within one (1) year after discovery that the cause of action exists.Id. (citing Tenn.Code Ann. § 29–26–116(a)(3)) (emphasis in original).³

The Tennessee Supreme Court explained that “the emphasized language expresses a legislative intent to place an absolute three-year bar beyond which no medical malpractice right of action may survive.” Id.; Calaway ex rel. Calaway v. Schucker, 193 S.W.3d 509, 516 (Tenn.2005) (“The statute of repose itself—by its words ‘[i]n no...