Magdalenski v. U.S. Government

• Decision Date: 05 September 1997
• Docket Number: Civil Action No. 95-30124-MAP.
• Citation: 977 F.Supp. 66
• Parties: James MAGDALENSKI, Administrator of the estate of Walter J. Magdalenski, Plaintiff, v. UNITED STATES GOVERNMENT, Defendant.
• Court: U.S. District Court — District of Massachusetts

Page 66

977 F.Supp. 66

James MAGDALENSKI, Administrator of the estate of Walter J. Magdalenski, Plaintiff, v. UNITED STATES GOVERNMENT, Defendant.

Civil Action No. 95-30124-MAP.

United States District Court, D. Massachusetts.

September 5, 1997.

Walter Magdalenski, Easthampton, MA, pro se.

Stephen Ferrarone, Springfield, MA, for Walter J. Magdalenski, James Magdalenski.

Karen L. Goodwin, U.S. Atty.'s Office, Springfield, MA, for U.S. Government.

POSNOR, District Judge.

Upon de novo review, this Report and Recommendation is hereby adopted and defendant's motion is ALLOWED. Despite counsel's vigorous arguments, it is clear that the complaint is untimely. The clerk will enter judgment for defendant. So ordered.

REPORT AND RECOMMENDATION WITH REGARD TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (Docket No. 10)

August 18, 1997

NEIMAN, United States Magistrate Judge.

I. INTRODUCTION

Pursuant to Fed.R.Civ.P. 56(b), the United States Government ("Defendant") has moved for summary judgment on the complaint of James Magdalenski ("Plaintiff"), Administrator of the Estate of Walter J. Magdalenski ("Magdalenski"), on grounds, among others, that Plaintiff's claim is barred by the statute of limitations. Defendant's motion has been referred for a report and recommendation pursuant to Rule 3 of the Rules of the United States Magistrates in the United States District Court for the District of Massachusetts. 28 U.S.C. § 636(b)(1)(B). For the reasons set forth below, the Court recommends that Defendant's motion be allowed.

II. STANDARD OF REVIEW

The role of summary judgment in civil litigation is to pierce the boilerplate of the pleadings and assay the parties' proof in an effort to determine whether trial is actually required. McIntosh v. Antonino, 71 F.3d 29, 33 (1st Cir.1995) (citing Wynne v. Tufts Univ. Sch. of Med., 976 F.2d 791, 794 (1st Cir.1992)). Summary judgment is appropriate where the record reveals no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). A disputed fact is genuinely at issue if "the evidence about the fact is such that a reasonable jury could resolve the point in favor of the non-moving party." Rivera-Muriente v. Agosto-Alicea, 959 F.2d 349, 352 (1st Cir.1992) (citation and internal quotation marks omitted). "A fact is material if it `carries with it the potential to affect the outcome of the suit under applicable law.'" One Nat'l Bank v. Antonellis, 80 F.3d 606, 608 (1st Cir.1996) (quoting Nereida-Gonzalez v. Tirado-Delgado, 990 F.2d 701, 703 (1st Cir.1993)). Once the moving party has demonstrated that no genuine issue of material fact exists, the burden shifts to the non-moving party to point "to specific facts demonstrating that there is, indeed, a trialworthy issue." National Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 735 (1st Cir.1995). The facts, and all reasonable inferences that may be drawn from them, must be viewed in the light most favorable to the non-moving party. See Guzman-Rivera v. Rivera-Cruz, 29 F.3d 3, 4 (1st Cir.1994).

III. FACTUAL AND PROCEDURAL BACKGROUND

On January 19, 1977, Magdalenski underwent a cholecystectomy to remove his gallbladder at the Boston Veteran's Administration ("V.A.") hospital. Approximately two weeks after the operation, Magdalenski developed salmonella and, over the next two months, underwent five T-tube cholangiograms, with the final one indicating an air pocket. An endoscopic retrograde cholangiopancreatography ("ERCP") was not performed, although the procedure was available. Thereafter, Magdalenski was admitted to the same hospital in 1980, 1981 and 1983 with abdominal pain. Examinations did not reveal a cause for the pain. He believed that the pain was a normal result of the removal of his gallbladder.

In April of 1988, Magdalenski again experienced severe abdominal pain and sought treatment at the V.A. hospital in Leeds, Massachusetts. The attending physician diagnosed the problem as ethanol-induced hepatitis. On October 26, 1988, Magdalenski underwent an ERCP and sphincterotomy at the Boston V.A. hospital, during which a one-centimeter stone was removed from his common bile duct. This procedure was repeated in April of 1989, and two stones were found. On May 24, 1991, a third ERCP was performed and more stones were removed.

On November 27, 1989, Magdalenski requested in writing that the Disabled American Veterans ("DAV") organization file a claim for him under 38 U.S.C. § 351 ("section 351"). Section 351, now codified as 38 U.S.C. § 1151, treats as a service-connected injury a veteran's disability caused by hospital, medical or surgical treatment furnished a veteran by a V.A. employee or in a V.A. facility. On January 5, 1990, a National Service Officer with the DAV, filed Magdalenski's claim with an adjudication officer of the V.A.'s Boston office.

Several years later, on December 22, 1993, Magdalenski filed an administrative claim under the Federal Tort Claims Act ("FTCA") arising out of the same medical treatment. An FTCA claim seeks money damages against the United States for personal injury caused by the negligent or wrongful act or omission of a Government employee while acting within the scope of his office. The claim was denied on January 5, 1995. Acting pro se, Magdalenski then filed a complaint with this court. Magdalenski's earlier section 351 claim was not acted upon until July 17, 1995, at which time it was also denied.

Following Magdalenski's death on June 11, 1996, his son James Magdalenski retained an attorney and became the administrator of his father's estate. The estate was substituted as plaintiff on February 11, 1997. A hearing on Defendant's motion for summary judgment was held on July 29, 1997.

IV. DISCUSSION

Defendant contends that Plaintiff's claim is barred by the statute of limitations because (i) the claim accrued in 1977, long before Magdalenski's FTCA claim was filed; (ii) Magdalenski's letter of November 27, 1989 was not itself an FTCA claim; (iii) even if the November 27, 1987, letter were an FTCA claim, it did not satisfy FTCA requirements; and (iv) there are no grounds for equitable tolling with reference to the FTCA claim filed by Magdalenski on December 22, 1993.¹ The Court addresses Defendant's claims seriatim.

1.

Defendant first asserts that Plaintiff's claim accrued in 1977 once he was "in possession of the critical facts that he ha[d] been injured and who ha[d] inflicted the injury." United States v. Kubrick, 444 U.S. 111, 122, 100 S.Ct. 352, 359, 62 L.Ed.2d 259 (1979). Accord Nicolazzo v. United States, 786 F.2d 454, 457 (1st Cir.1986) Specifically, Defendant contends that Magdalenski had an obligation to investigate the cause of his abdominal pain immediately following his cholecystectomy earlier that year. Since a tort claim against the United States must be presented in writing to the appropriate agency within two years after such claim accrues, 28 U.S.C. § 2401(b), Defendant asserts that Magdalenski's claim needed to be filed no later than January 19, 1979, two years after his surgery. Since Plaintiff filed his FTCA claim in 1993, long past the statutory period, Defendant claims, Plaintiff's suit is barred.

Defendant's arguments to the contrary, the Court cannot state, as a matter of law, that Plaintiff's claim accrued in 1977. Instead, the Court believes it likely that the accrual date arose only after stones were discovered in Magdalenski's common bile duct in October of 1988, not when he first experienced pain following his cholecystectomy in 1977. Magdalenski attempted to find the source of the abdominal pain and was admitted to the V.A. hospital on numerous occasions for that purpose. However, no examining physician performed an ERCP or correctly diagnosed the cause of his pain until October 26, 1988, when a stone was found in his common bile duct. See Nicolazzo, 786 F.2d at 456 (claim accrues only when plaintiff is correctly diagnosed, not when he is injured.) Thus, for purposes here, the Court assumes that the date of accrual was October 26, 1988. Plaintiff accepted this date at oral argument.²

2.

The essence of Plaintiff's opposition is that Magdalenski filed an FTCA claim in a timely manner, i.e., by October 26, 1990. There is no question that an FTCA claim on a standard form ("Form 95") was filed by Magdalenski on December 24, 1993, obviously well after the statutory period had ended. Nonetheless, Plaintiff claims that Magdalenski's letter of November 27, 1989, which he mailed to the DAV, was sufficient to meet FTCA prerequisites. In this regard, Plaintiff now contends that the Form 95 form he filed on December 24, 1993, was merely a supplement to his 1989 letter. Plaintiff's arguments fail.

As the documents themselves clearly demonstrate, Magdalenski knew the difference between an FTCA claim and a claim for benefits under section 351. Not only did his November 27, 1989, letter specifically request that a section 351 claim be filed, his Form 95 request for FTCA benefits was made only because he had not yet received a decision on his section 351 claim.³ Moreover, there is no indication that Magdalenski intended his form 95 to supplement any earlier claim with information he may have neglected to provide.

3.

Even if Magdalenski's letter of November 27, 1989, could be construed as an FTCA claim, it does not satisfy certain claim requirements, most particularly, the requirement to state a sum certain. The FTCA mandates that a claim must be presented to the appropriate federal agency. 28 U.S.C. § 2675(a).⁴ In turn, implementing regulations require that the claim be accompanied by a demand for a sum certain. 28 C.F.R. § 14.2(a).⁵ Here, there is little argument that Magdalenski's 1989 letter does not make a claim for a sum certain.

Plaintiff asserts, however, that it is only necessary for a claim to provide information sufficient for the federal agency to initiate an investigation. Plaintiff relies on ...