Nemmers v. U.S., Nos. 85-2360

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtBefore BAUER and EASTERBROOK, Circuit Judges, and SWYGERT; EASTERBROOK
Citation795 F.2d 628
PartiesRonald J. NEMMERS and Sarah L. Nemmers, parents and next friends of Eric P. Nemmers, Plaintiffs-Appellants--Cross-Appellees, v. UNITED STATES of America, Defendant-Appellee--Cross-Appellant.
Decision Date11 July 1986
Docket Number85-2486,Nos. 85-2360

Page 628

795 F.2d 628
Ronald J. NEMMERS and Sarah L. Nemmers, parents and next
friends of Eric P. Nemmers,
Plaintiffs-Appellants--Cross-Appellees,
v.
UNITED STATES of America, Defendant-Appellee--Cross-Appellant.
Nos. 85-2360, 85-2486.
United States Court of Appeals,
Seventh Circuit.
Argued June 2, 1986.
Decided July 11, 1986.

Page 629

Edward R. Durree, Strodel, Kingery & Durree, Assoc., Peoria, Ill., for plaintiffs-appellants--cross-appellees.

Mark D. Stuaan, Asst. U.S. Atty., Peoria, Ill., Gerald D. Fines, U.S. Atty., for defendant-appellee--cross-appellant.

Before BAUER and EASTERBROOK, Circuit Judges, and SWYGERT, Senior Circuit Judge.

EASTERBROOK, Circuit Judge.

Eric Nemmers was born in July 1973, more than three weeks late. His mother had a difficult labor. Her physicians at a naval hospital told her to go home and stay there until she had regular pains, five minutes apart. They performed no tests and prescribed no medicine other than a suppository. When Mrs. Nemmers called to inquire about intense but irregular pains, a nurse told her to stop calling until she had regular pains. After more than two days of irregular pains, Mrs. Nemmers was taken to the naval hospital, where a physician performed a Caesarean section. Eric survived but is retarded (IQ of 45) and has cerebral palsy. The district judge concluded after a bench trial that Eric's problems were caused by negligent medical treatment at and before his birth. 612 F.Supp. 928, 933 (C.D.Ill.1985). The case presents three problems: the statute of limitations, the extent of compensation for a reduction in the ability to enjoy life, and the rate of change of the cost of Eric's care.

I

The Federal Tort Claims Act allows two years within which to file a claim. 28 U.S.C. Sec. 2401(b). The time starts to run in a medical malpractice case when the plaintiff has the information necessary to discover "both his injury and its cause." United States v. Kubrick, 444 U.S. 111, 120, 100 S.Ct. 352, 358, 62 L.Ed.2d 259 (1979) (footnote omitted); Green v. United States, 765 F.2d 105, 107 (7th Cir.1985); Drazan v. United States, 762 F.2d 56, 58-59 (7th Cir.1985); Stoleson v. United States, 629 F.2d 1265, 1269-70 (7th Cir.1980). By the time Eric was 18 months old, his parents knew that he had cerebral palsy or muscular dystrophy. But they did not file a claim until October 1981, more than eight years after Eric's birth. If they discovered, or in the exercise of reasonable diligence could have discovered, the role of the naval hospital in Eric's defects before October 1979, this suit is barred by Sec. 2401(b).

Between 1973 and 1976 Eric's treating physician expressed puzzlement about the cause of his affliction, stating "these

Page 630

things just happen". 612 F.Supp. at 930. In May 1977 the Nemmers took Eric to a new physician, Steven Copps, who wrote a report principally designed to tell the Nemmers how to care for their son. The first page of the report contains this language:

Eric has evidence that indicates to us that he experienced some mild brain damage prior to his birth. As is often the case, we can't explain to you the exact reason for this occurrence but we do not find evidence in this particular case to suggest any genetic implications.... Such insults that occur before birth can be from any number of reasons, one of which is the possibility of the youngster contracting a viral illness in the mother's uterus prior to birth. From the [medical] history you had a relatively severe influenza-like high fever illness at about the 3rd month of your pregnancy. It is possible that this illness could have affected young Eric in the formative stages of embryological development; the fetal distress experienced during labor merely being a reflection of the pre-existent problem and not because of the trauma of delivery although that might have also contributed to his present condition somewhat. Ordinarily youngsters who have cerebral palsy on the basis of brain damage that occurs just before, at, or just after birth have different expressions at this time which Eric doesn't demonstrate. If they have had lack of oxygen to the brain substance they develop tightness or spasticity of muscles more marked in the lower than the upper extremities. If they have had bleeding into the brain substance, they usually develop spasticity or tightness of muscles on one side of the body. This is not the case in Eric's situation.

The government maintains that Dr. Copps's remark that the trauma of delivery "might have contributed somewhat" to Eric's problem would have alerted a reasonable person to the need for further investigation, particularly when coupled with the fact that Eric's mother had only a cold, and not a "severe influenza-like high fever illness", during her pregnancy. Dr. Copps did not pin the blame on the naval physicians. But if the letter had read: "There is an 80% chance that the mother's severe influenza caused the affliction, and a 20% chance that the trauma of delivery did so", and if the mother knew that she had not had influenza, then the 20% chance assumes greater significance. So, the government concludes, the time started to run in May 1977, when Mrs. Nemmers was in a position to put this letter together with her knowledge that Eric had been born three weeks late after a difficult labor and little medical attention. The Nemmers, who had some of the medical records from 1973, never asked Dr. Copps what their significance might be.

The district court concluded that the statute did not begin to run until 1981, when the Nemmers read a newspaper article about a child with a similar problem caused by poor care at the time of delivery. The court's opinion does not discuss the significance (if it has any) of the fact that in May 1977 Mrs. Nemmers knew that she had had a difficult delivery but had not had influenza during her pregnancy. Instead the district court concluded that the advice the Nemmers received before 1977 (that the cause of Eric's problems was unknowable) "effectively diverted [them] from the import of those [medical] records" (612 F.Supp. at 930) and Dr. Copps's report. The court said this about the report (id. at 931):

There was in the letter a reference to "the trauma of the birth" and "fetal distress," but again, [the Nemmers's] attention was diverted by [Dr. Copps's] asserted belief that influenza was the cause. Clearly, the Nemmers could have challenged the statements with respect to the nature of the disease, but there was no reason to have done so. Their goal was the rehabilitation of their son, not the determination of the cause or the assessment of blame. The Court does not believe that it can reasonably be said that, at the time, they knew or should have known that fetal distress or Mrs. Nemmers' difficult labor and delivery could have caused Eric's condition. The Court

Page 631

accepts the testimony of Eric's parents that they believed that "trauma of birth" meant that Eric "had a hard time being born," not that he had developed an injury occasioned by lack of oxygen because of delay in the baby's delivery.

The court's inquiry was subjective. When did Mr. and Mrs. Nemmers know enough to fix blame? This appears in the remark that they were not concerned with cause because they wanted to achieve rehabilitation and in the comment that they (personally) interpreted "trauma of birth" in a particular way. The court assessed the Nemmers's personal decisions, not those of the "reasonable man" of tort law. Doubt about whether the court took a subjective approach was dispelled later in the opinion (id. at 933, emphasis in original):

[T]he test for determining when the statute of limitations begins to run is focused on Plaintiffs and on that time when they reasonably knew or should have known of the existence of a cause of action.... The Court is convinced that, by the time the Nemmers received the letter from Dr. Copps, they had moved beyond the stage of seeking causes and assessing blame and were primarily concerned with effecting whatever improvements they could in Eric's condition and preparing him to live a life as close to normal as possible. Therefore, their attitude, coupled with Dr. Copps' diversion of their attention to the alleged influenza and its possible impact, as well as their understandable failure to understand the significance of the term "trauma of birth," rendered the substance of Dr. Copps' report insufficient to create the type of notice which would trigger the running of the statute of limitations.

The observation that the Nemmers had "moved beyond the stage of seeking causes and assessing blame" shows that the judge thought the question was when the Nemmers subjectively knew enough to trigger their action. To this the judge joined the remark that the time starts when they knew "of the existence of a cause of action"--meaning not only causation but also negligence. Kubrick holds, to the contrary, that the time does not depend on knowledge that the government's acts might have been negligent.

Our question, then, is whether the running of the statute of limitations depends on the plaintiffs' personal knowledge and reactions or whether it depends on the reactions of the objective, "reasonable" man. The answer is the latter, an answer reflected in the formula "knew or should have known". The first part is actual knowledge, the second is an objective inquiry. A person "should have known" enough when a reasonable man--"a reasonably diligent person (in the tort claimant's position)", Drazan, 762 F.2d at 59--would have known enough. And what the reasonable man had to know is not a certain cause--for "truth" is not within human reach, and even after trial there may be much uncertainty--but a potential cause. In Kubrick the plaintiffs claimed that an infusion of an antibiotic into a wound had caused deafness. The question whether the antibiotic caused the deafness was hotly disputed through the appeal, but this did...

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78 practice notes
  • US v. Mendez, No. 88 Cr. 78 (MBM).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • June 16, 1988
    ...v. Allen, 344 U.S. 443, 496-97, 73 S.Ct. 397, 440-41, 97 L.Ed. 469 (1953) (separate opinion of Frankfurter, J.); Nemmers v. United States, 795 F.2d 628, 634-35 (7th Cir. 1986). Hence this I. A. History and Background The Sentencing Reform Act of 1984 (the "Act") was passed as Chapter II of ......
  • Reilly v. US, Civ. A. No. 85-0748 P.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Rhode Island
    • July 28, 1987
    ...(supp. op.) and case manager services, Nemmers v. United States, 612 F.Supp. 928, 935 (C.D. Ill.1985), vacated on other grounds, 795 F.2d 628 (7th Cir.1986). Some of the other requested items have not been specifically addressed by the available authorities; where such items are less clearl......
  • Monarch v. Southern Pacific Transp. Co., No. A081178
    • United States
    • California Court of Appeals
    • March 25, 1999
    ...Transp. Co. (7th Cir.1990) 909 F.2d 1092, 1096; Albert v. Maine Cent. R. Co., supra, at p. 544; Nemmers v. U. S. (7th Cir.1986) 795 F.2d 628, 631-632; Williams v. Southern Pacific Transp. Co., supra, at p. 1232.) Thus, in accordance with the objective test, "definite knowledge" that the inj......
  • Reilly v. U.S., No. 88-1442
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • September 16, 1988
    ...have entered the labor force). This assertion draws whatever vitality it may possess from a footnote in Nemmers v. United States, 795 F.2d 628, 633-34 n. 2 (7th Cir.1986). There, the trial judge's present value calculation required further adjustment because it had not been discounted to ta......
  • Request a trial to view additional results
78 cases
  • US v. Mendez, No. 88 Cr. 78 (MBM).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • June 16, 1988
    ...v. Allen, 344 U.S. 443, 496-97, 73 S.Ct. 397, 440-41, 97 L.Ed. 469 (1953) (separate opinion of Frankfurter, J.); Nemmers v. United States, 795 F.2d 628, 634-35 (7th Cir. 1986). Hence this I. A. History and Background The Sentencing Reform Act of 1984 (the "Act") was passed as Chap......
  • Reilly v. US, Civ. A. No. 85-0748 P.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Rhode Island
    • July 28, 1987
    ...(supp. op.) and case manager services, Nemmers v. United States, 612 F.Supp. 928, 935 (C.D. Ill.1985), vacated on other grounds, 795 F.2d 628 (7th Cir.1986). Some of the other requested items have not been specifically addressed by the available authorities; where such items are less clearl......
  • Monarch v. Southern Pacific Transp. Co., No. A081178
    • United States
    • California Court of Appeals
    • March 25, 1999
    ...Transp. Co. (7th Cir.1990) 909 F.2d 1092, 1096; Albert v. Maine Cent. R. Co., supra, at p. 544; Nemmers v. U. S. (7th Cir.1986) 795 F.2d 628, 631-632; Williams v. Southern Pacific Transp. Co., supra, at p. 1232.) Thus, in accordance with the objective test, "definite knowledge" th......
  • Reilly v. U.S., No. 88-1442
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • September 16, 1988
    ...have entered the labor force). This assertion draws whatever vitality it may possess from a footnote in Nemmers v. United States, 795 F.2d 628, 633-34 n. 2 (7th Cir.1986). There, the trial judge's present value calculation required further adjustment because it had not been discounted to ta......
  • Request a trial to view additional results

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