Romero v. United States
| Decision Date | 15 March 2018 |
| Docket Number | No. CIV 17-0130 JB\KBM,CIV 17-0130 JB\KBM |
| Parties | TIMOTHY ABEITA ROMERO, Plaintiff, v. UNITED STATES OF AMERICA, Defendant. |
| Court | U.S. District Court — District of New Mexico |
THIS MATTER comes before the Court on Defendant's Motion to Dismiss for Lack of Subject Matter Jurisdiction, filed May 3, 2017 (Doc. 8)("MTD"). The primary issue is whether the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680 ("FTCA"), which waives Plaintiff United States' sovereign immunity in circumstances where a private person would be liable, means that New Mexico Medical Malpractice Act's statute of repose, N.M. Stat. Ann. § 41-5-13, applies to FTCA claims. The Court concludes that New Mexico's statute of repose does not apply to FTCA claims, because the FTCA's sovereign immunity waiver looks to state law to determine whether an event renders the United States liable and not to determine whether a particular claim is timely filed. Accordingly, the Court concludes that the FTCA waives the United States' sovereign immunity in this case and denies the MTD.
On June 28, 2010, Romero, a member of the Laguna Tribe, see Complaint Under the Federal Tort Claims Act for Damages Caused by Negligence ¶ 16, at 3, filed January 27, 2017 (Doc. 1)("Complaint"), checked into Acoma Canoncito Laguna Hospital ("Laguna Hospital")complaining of abdominal pain, nausea, and vomiting, see Complaint ¶ 18, at 3. Laguna Hospital gave Romero pain medication and released him. See Complaint ¶ 18, at 3. Romero returned to Laguna Hospital two days later reporting identical symptoms. See Complaint ¶ 19, at 3. This time, Laguna Hospital diagnosed Romero with possible sepsis, and Romero was airlifted to a "tertiary facility" in Albuquerque, New Mexico. Complaint ¶ 19, at 3. The tertiary facility diagnosed Romero with septic shock "from an intra-abdominal catastrophe, ultimately due to a perforated appendix with feculent peritonitis." Complaint ¶ 20, at 3. Over the next several weeks, Romero was kept on full ventilator support, underwent multiple surgeries, and "was left with an ileostomy drainage bag." Complaint ¶ 20, at 3-4.
Romero was incarcerated "in late 2010, until 2012, and then he was incarcerated again within a matter of about 4-5 months." Response at 2. Romero filed a claim with the Department of Health and Human Services ("HHS") on March 21, 2012. See Complaint ¶ 10, at 2. HHS denied Romero's claim in writing on or about April 27, 2016. See Complaint ¶ 11, at 2. Romero filed a request with HHS for reconsideration on June 29, 2016, see Complaint ¶ 13, at 3, while he was incarcerated in Towaoc, Colorado, see Response at 2. HHS denied the request in writing on July 27, 2016. See Complaint ¶ 13, at 3. Romero was released from jail on September 16, 2016. See Response at 2.
Romero filed his Complaint pursuant to the FTCA on January 27, 2017, alleging that Laguna Hospital staff members negligently misdiagnosed his condition. See Complaint ¶ 27, at 4-5. Romero seeks compensatory damages for Laguna Hospital's employee's negligence. See Complaint ¶¶ 1, 32, at 1, 6. Romero asserts that the Court has federal-question jurisdiction, because he brings claims under the FTCA. See Complaint ¶ 2, at 1.
In its MTD, the United States asserts that Romero must file a notice of claim within both the FTCA's statute of limitations and within the New Mexico Medical Malpractice Act's ("NMMMA"), N.M. Stat. Ann. §§ 41-5-1 to -29 statute of repose. See MTD at 4. The United States argues that the Court should dismiss the Complaint for lack of subject-matter jurisdiction, because Romero did not file his Complaint within the New Mexico statute of repose's time limit. See MTD at 4-10. The United States contends that the FTCA waives sovereign immunity only under circumstances where state laws would hold a private individual liable for comparable acts. See MTD at 6-7. According to the United States, a statute of repose MTD at 6 (citing Alexander v. Beech Aircraft Corp., 952 F.3d 1215, 1223 (10th Cir. 1991)). Consequently, the United States asserts, the Court lacks subject-matter jurisdiction on this case unless Romero's claims satisfy the statute of limitations and the statute of repose. See MTD at 7. The United States then argues that Romero's claims do not satisfy New Mexico's statute of repose. See MTD at 8-10
Romero filed a response on May 30, 2017. See Response to Defendant's Motion to Dismiss (Doc. 8), filed May 30, 2017 (Doc. 12)("Response"). First, Romero argues that the statute of repose does not bar his FTCA claims, because New Mexico's statute of repose applies only to claims brought under the NMMMA, against "healthcare providers who actively opt to buy into the act's funding and other provisions." Response at 1-2.
Second, Romero argues that the FTCA implicitly preempts New Mexico's statute of repose, because the statute of repose "stands as a significant impediment to the federal scheme."Response at 6. For instance, Romero notes that the FTCA provides that, if more than six months have passed without an agency resolution, a claimant may take his or her claim to federal court "at any time thereafter," Response at 6 (quoting 28 U.S.C. § 2675); he adds that New Mexico's three-year statute of repose "significantly limit[s] this option," Response at 6. Romero outlines some scenarios that underscore the problems with applying New Mexico's statute of repose to FTCA claims:
[U]nder the facts of this case, plaintiff could have filed his Form 95 at any time up to the second anniversary of the claimed harm. If he took the full amount of available time, he could have presented his tort notice until June 28, 2012, at which time the federal statute of limitations would bar his claim. He could not have filed his lawsuit at any time prior to six months after he submitted his Form 95, so if the state statue is applied, he would have had only six months within which to file a federal court lawsuit. The FTCA gives him the option of continuing the administrative process and not having to be rushed into litigation. In another example, let's say plaintiff did not discover his injury and what might have caused it for a few years, and thus filed his lawsuit shortly after the third anniversary of the negligence, even though he filed his administrative claim before the repose period ended. His claim would be wiped out, he would never have an opportunity to pursue his claim, and the purpose of the FTCA defeated. He would have complied with the FTCA, but due to no fault on his part his legal right would be wiped out.
Response at 6-7. Romero states that the Tenth Circuit has not considered whether the FTCA preempts state statutes of repose, see Response at 5, but one United States Circuit Courts of Appeal and federal district courts have concluded that it does, see Response at 7-10 (citing Kennedy v. United States, 526 F. App'x 450, 458 (6th Cir. 2013)(White, J., concurring); McKinley v. United States, 2015 WL 5842626, at *13 (M.D. Ga. Oct. 5, 2015)(Lawson, J.); Cooper v. United States, 2013 WL 6845988 at *5 (E.D. Penn. Dec. 30, 2013)(Goldberg, J.); Blau v. United States, 2013 WL 704762, at *1 (M.D. Fla. Feb. 26, 2013)(Lazzara, J.); Abila v. United States, 2012 WL 4711952 at *4 (D. Nev. Oct. 3, 2012)(Dawson, J.); Mamea v. United States, 2011 WL 4371712 at *10 (D. Haw. Sept. 16, 2011)(Kobayashi, J.); Jones v. UnitedStates, 789 F. Supp. 2d 883, 892 (M.D. Tenn. 2011)(Haynes, Jr., J.); Zander v. United States, 786 F. Supp. 2d 880, 885-86 (D. Md. 2011)(Williams, Jr., J.)). Romero contends that most cases applying the statute of repose do not address FTCA preemption. See Response at 10 n.3 (); Simkins v. United States, 2011 WL 9368972, at **2-3 (C.D. Cal. Feb. 17, 2011)(Wright, II, J.).
Third, Romero contends that 28 U.S.C. § 2674 does not help the United States in this case. See Response at 10. Romero contends that although § 2674 limits liability against the United States "in the same manner and to the same extent as a private individual under like circumstances," the United States is not in a comparable position as an private individual defendant would be. Response at 10 (quoting 28 U.S.C. § 2674). Romero contends, for example, that a plaintiff proceeding under the FTCA has "distinct obligations that a plaintiff in state court does not have," like a requirement to exhaust administrative remedies. Response at 10-11. Romero also contends that applying a state's statute of repose to an FTCA lawsuit would mean that an FTCA plaintiff would have to file an administrative claim earlier than a plaintiff suing an individual would have to file a complaint, which means that "the circumstances are not alike." Response at 11.
Fourth, Romero contends that the United States would not be prejudiced if the Court does not apply the statute of repose, because the United States received notice of his lawsuit within two years of the alleged harm and possess relevant documentary records pertaining to Romero's claim. See Response at 11. Consequently, Romero concludes that applying New Mexico's statute of repose "serves no valid purpose." Response at 11-12.
The United States filed a reply on June 13, 2017. See Reply to Plaintiff's Response to Motion to Dismiss, filed June 13, 2017 (Doc. 13)("Reply"). First, the United States argues that the Tenth Circuit has determined that NMMMA applies to the federal government. See Reply at 2 (citing Haceesa v. United States, 309 F.3d 722, 728 (10th...
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