Miller v. US, Civ. A. No. 91-268-N.

• Decision Date: 14 October 1992
• Docket Number: Civ. A. No. 91-268-N.
• Citation: 803 F. Supp. 1120
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Arlington R. MILLER, III, et al., Plaintiffs, v. UNITED STATES, Defendant.

803 F. Supp. 1120

Arlington R. MILLER, III, et al., Plaintiffs, v. UNITED STATES, Defendant.

Civ. A. No. 91-268-N.

United States District Court, E.D. Virginia, Norfolk Division.

October 14, 1992.

COPYRIGHT MATERIAL OMITTED

Mark David Brynteson, Davis, Irwin & Brynteson, Virginia Beach, Va., Walter A. Oleniewski, Shulman, Rogers, Gandal, Pordy & Ecker, P.A., Alexandria, Va., for plaintiffs.

John Phillip Krajewski, Office of U.S. Atty., Alexandria, Va., for defendant.

ORDER AND OPINION

DOUMAR, District Judge.

This case comes before this Court on defendant, United States', motion for summary judgment. Plaintiffs, Arlington R. Miller, III ("Arlington III"), Arlington R. Miller, Jr. ("Mr. Miller"), and Mary D. Miller ("Mrs. Miller") brought this action pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671, et seq., against the United States seeking damages for harm to Arlington III resulting from negligent medical care provided to Mrs. Miller during her pregnancy and Arlington III's delivery at a Naval Regional Medical Center in Oakland, California. Plaintiffs allege that as a result of defendant's negligence, Arlington III suffered pain, mental anguish and became disabled from cerebral palsy and other neurologic injuries. Plaintiffs also allege that Mr. Miller and Mrs. Miller have suffered mental anguish, the destruction of the normal loving relationship between parents and child and have incurred and will continue to incur large medical and custodial expenses for Arlington III.

The issue presented in this case is whether plaintiffs have complied with the applicable time limitation period. Actions under the Federal Tort Claims must be brought within two years of the date when the claim accrues. 28 U.S.C. § 2401(b). Because plaintiffs' claims accrued in the late 1970's, and plaintiffs did not give the Navy notice of their claims until July 1990, plaintiffs have failed to comply with the applicable limitation period. Plaintiffs argue, however, that their claims are not barred because the limitation period has been both equitably tolled and tolled by the Soldiers' Sailors' Civil Relief Act. 50 U.S.C.App. § 525 (1988). Defendant argues that the plaintiff has failed to demonstrate adequate grounds for this Court to equitably toll the limitation period and that the Soldiers' Sailors' Civil Relief Act is not applicable to this case. For the following reasons, the Court will grant defendant's motion for summary judgment with respect to Arlington III's and Mrs. Miller's claims. The Court denies defendant's motion with respect to Arlington Miller, Jr.'s claims.

I. PROCEDURAL HISTORY

Plaintiffs first presented the claims alleged in their complaint to the Department of the Navy on July 31, 1990. After more than six months passed and the Navy failed to make a final disposition of plaintiffs' claims, plaintiffs brought this action on April 30, 1991. Defendant filed a motion to dismiss plaintiffs' claim on July 2, 1991 asserting that this Court lacks subject matter jurisdiction and that plaintiffs' claims are barred by the Federal Tort Claims Act's two year limitations period. On July 29, 1991, plaintiffs filed a response opposing defendant's motion to dismiss. Plaintiffs argued that their claims were not barred because the limitations period was tolled both by equity principles and the Solders' Sailors' Civil Relief Act. Defendants responded to the plaintiffs' brief on August 9, 1991. Both parties subsequently filed additional briefs.

On November 25, 1991, this Court converted defendant's motion to dismiss into a motion for summary judgment. Both parties were notified of the conversion by order and given an opportunity to submit any additional materials or affidavits that they wished the Court to consider. Plaintiffs, on December 10, 1991, filed a supplemental response to defendant's motion to dismiss and on December 12, 1991 filed a supplemental affidavit of Arlington R. Miller, Jr. and affidavits from Mary Miller and Kathryn Kneibert, Mary Miller's sister. On January 21, 1992, this Court held a hearing at which the Court heard testimony from Arlington Miller, Jr. about the circumstances surrounding his son's birth and the alleged events which caused him to delay filing a claim for his son's injuries.

II. FACTS

Arlington III was born on August 10, 1976 at the Naval Regional Medical Center in Oakland, California. Mr. Miller entered the Navy on June 9, 1971 and retired on July 1, 1991. Plaintiffs' allege, and defendant does not dispute, that Mr. Miller was on active duty at the time of Arlington III's birth. Arlington III allegedly was extremely ill immediately after his birth. Mr. Miller claims that military physicians at the Naval Regional Medical Center told himself and Mrs. Miller that Arlington III's medical problems were caused by his being born prematurely. Affidavit of Arlington R. Miller, Jr., at ¶ 3 hereinafter Miller Affidavit. The treating physicians purportedly asked Mr. and Mrs. Miller to consent to the use of a drug to treat Arlington III that would cause nerve deafness. Mr. Miller testified that he signed a certificate consenting to the use of the drug. Mr. Miller also stated that he has no knowledge of where the certificate is today.

When Mr. Miller was transferred to Annapolis, Maryland, Arlington III was evaluated at Bethesda Naval Hospital in January 1978 where military physicians told Mr. and Mrs. Miller that Arlington III had cerebral palsy of unknown origin. Miller Affidavit, at ¶ 4. Mr. Miller testified that he actually first learned that the doctors who cared for Arlington III immediately after his birth may have been negligent when he consulted with a Dr. Copeland at the Kennedy Institute at Johns Hopkins. Copeland allegedly said that the physicians who treated Arlington III after his birth may have allowed Arlington III's bilirubin count¹ to become so high that it caused brain damage resulting in cerebral palsy.

At the hearing, Mr. Miller testified that in June or July 1978, he telephoned an attorney at the Naval Academy in Annapolis to ascertain his, Mrs. Miller's, and Arlington III's legal rights. Mr. Miller did not identify the attorney either in his testimony or his affidavit but did testify that he believed the attorney to be either a commander or a lieutenant commander because he was in the Navy Legal Office or the Navy Legal Officer in charge. According to Mr. Miller, the attorney asked his son's age and told him that there was a two year statute of limitations and there was not sufficient time to prepare a case. Mr. Miller claimed that the attorney told him that the extent of Arlington III's injuries could not be determined until Arlington III was older and that Mr. Miller could and should wait until Arlington III was eighteen when a claim could be filed by Arlington III or on his behalf. Miller testified that it was his understanding after the conversation with the attorney that he could file suit either during a two year period from the date that his son's injuries occurred or within a two year period after his son became eighteen, but that he could not file a suit within the intervening sixteen year period. Upon questioning from the Court, plaintiffs' counsel indicated that Mr. Miller did not testify that the Naval attorney told him that there were two distinct statute of limitations only that such was his belief after the phone call.

Mr. Miller also states in his affidavit and stated in his testimony that the attorney told him that he should not file a claim against the United States because doing so would "ruin" his Navy career. Id. at ¶ 5. According to the affidavit, the attorney implied that a claim brought by Mr. Miller when Arlington III became eighteen would not ruin his career. Id. At the hearing, Mr. Miller admitted on cross-examination that he might have raised the issue with the attorney about whether filing a claim could ruin his career. Mr. Miller also testified that he was relieved that the attorney told him that it was in his best interest to wait to take legal actions until Arlington III was eighteen because it meant that he would not have to take any actions with respect to the matter at that time.

The Millers allegedly relied on the attorney's representations until January 1990 when Mr. Miller responded to a notice in a military newspaper which discussed the right to sue the United States for acts of medical negligence resulting in brain damaged children. Mr. Miller testified that his wife then telephoned the law firm that placed the notice and learned for the first time that the purported statements of the Navy lawyer were incorrect. Mr. Miller's original affidavit stated that he made the telephone call to the law firm. Id. at ¶ 6.

III. ANALYSIS

Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment shall be granted when the court, viewing the record as a whole, and in the light most favorable to the non-moving party, determines that there exists no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-24, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986); Terry's Floor Fashions, Inc. v. Burlington Industries, Inc., 763 F.2d 604, 610 (4th Cir.1985). Once a party files a motion for summary judgment, the non-moving party may not rest upon the pleadings, but must instead set forth specific facts illustrating genuine issues for trial. Celotex Corp., 477 U.S. at 322-24, 106 S.Ct. at 2552-53. A dispute about a material fact is genuine only if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, 477 U.S. at 248, 106 S.Ct. at 2510.

A. Plaintiff's Causes of Action

The Court must first determine the nature and legal viability of each of the plaintiffs' claims. This...