Stinnett v. United States

• Decision Date: 04 September 2012
• Docket Number: Civil No. 3:12–cv–00114.
• Citation: 891 F.Supp.2d 858
• Parties: Kerry STINNETT, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Middle District of Tennessee

891 F.Supp.2d 858

Kerry STINNETT, Plaintiff,

v.UNITED STATES of America, Defendant.

Civil No. 3:12–cv–00114.

United States District Court,

M.D. Tennessee,

Nashville Division.

Sept. 4, 2012.

Jessie Ray Akers, Jr., Nashville, TN, for Plaintiff.

Michael L. Roden, Office of the United States Attorney, Nashville, TN, for Defendant.

MEMORANDUM

ALETA A. TRAUGER, District Judge.

The government has filed a Motion to Dismiss (Docket No. 5), with respect to which the plaintiff filed a Response in opposition (Docket No. 11), the government filed a Reply (Docket No. 15), the plaintiffs filed a Sur–Reply (Docket No. 22), and the government filed a Sur–Sur–Reply (Docket No. 25). For the reasons set forth herein, the Motion to Dismiss will be granted and Stinnett's case will be dismissed without prejudice.

BACKGROUND¹

Plaintiff Kerry Stinnett, a Tennessee resident, is a Vietnam veteran who underwent a colonoscopy at the United States Department of Veterans Affairs (“VA”) Alvin C. York Tennessee Valley Healthcare System Hospital in Murfreesboro, Tennessee (“York VA Hospital”), on April 14, 2003. During the colonoscopy procedure, unspecified York VA Hospital staff membersutilized “flexible sigmoidoscopy [colonoscopy] equipment and tubing to complete the exam procedure as ordered.” (Am. Compl. ¶ 7.) Stinnett alleges that this equipment had previously been utilized on other veterans, whose bodily wastes and fluids had come into contact with the equipment. He alleges that “the VA Hospital” failed to maintain sanitary equipment— i.e., that its staff members did not sanitize the equipment after it was used on other patients—and that, as a result of this failure, he was exposed to several forms of the hepatitis virus.² Due to this exposure, Stinnett allegedly contracted hepatitis and suffered a host of serious medical and psychological conditions from the disease and his (apparently unsuccessful) efforts to treat it.

Stinnett alleges that the VA issued a general press release on April 3, 2009, in which the VA announced that, “because of improperly reprocessed endoscopy equipment,” it was investigating possible cross-contamination of patients who underwent colonoscopies at the York VA Hospital (among other VA facilities) between April 2003 and December 2008. ( See Am. Compl., Ex. B.) He alleges that the VA never informed him directly that it had potentially infected him with hepatitis during the April 2009 procedure, as it had done with other veterans.³ Stinnett's Sur–Reply adds that he did not learn about the potential link between his hepatitis and the colonoscopy until he “saw a news report on television” at an unspecified time. (Docket No. 22 at p. 2.)

In conclusory terms, Stinnett also states that “the VA Hospital remained silent about the possibility of infection through his colonoscopy, and that such silence constitutes a breach of the duty a medical provider owes to its patient” ( id. ¶ 17), that “the VA Hospital knew of the possibility that the plaintiff could have been infected with hepatitis C as a result of the colonoscopy procedure, and did not inform the plaintiff” ( id. ¶ 18), and that “[t]he actions of the VA in this case demonstrate an improper response to hazards through its lack of protection for its patients generally, and the Plaintiff in particular, from deadly infectious diseases” ( id. ¶ 21).

Stinnett states that the VA's actions reflect “gross negligence, negligence per se, and general negligence in providing medical care” ( id. ¶ 10), and that “[t]he actions of the VA represent a breach of the duty to warn of potential danger ....” ( Id. ¶ 22). He brings his claims pursuant to the Federal Tort Claims Act (“FTCA”), §§ 1346(b) and 2671–80 (2012).

The defendants assert that Stinnett's claims should be dismissed for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6) or, in the alternative, for a lack of subject matter jurisdiction pursuant to Fed. R. Civ. 12(b)(1).

STANDARD OF REVIEW⁴

I. General Motion to Dismiss Standard

In deciding a motion to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6), the court will “construe the complaint in the light most favorable to the plaintiff, accept its allegations as true, and draw all reasonable inferences in favor of the plaintiff.” Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir.2007); Inge v. Rock Fin. Corp., 281 F.3d 613, 619 (6th Cir.2002). The Federal Rules of Civil Procedure require that a plaintiff provide “ ‘a short and plain statement of the claim’ that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) (quoting Fed.R.Civ.P. 8(a)(2)). The court must determine whether “the claimant is entitled to offer evidence to support the claims,” not whether the plaintiff can ultimately prove the facts alleged. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)).

The complaint's allegations, however, “must be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). To establish the “facial plausibility” as required to “unlock the doors of discovery,” the plaintiff cannot rely on “legal conclusions” or “[threadbare] recitals of the elements of a cause of action,” but, instead, the plaintiff must plead “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949–50, 173 L.Ed.2d 868 (2009).

II. Standard as to the Statute of Limitations and Fraudulent Concealment Doctrine

The government argues that Stinnett's claims, which were filed at least seven years after the underlying incident, are barred by the Tennessee three-year statute of repose applicable to medical malpractice claims. Tenn.Code. Ann. § 29–26–116(a). In response to the government's argument, Stinnett filed an Amended Complaint that added allegations purporting to justify equitable tolling of the statute of repose based on fraudulent concealment. ( See Am. Compl. ¶¶ 15–22.) As discussed further herein, Tennessee does recognize a narrow exception to the statute of repose, where a defendant fraudulently concealed material facts from the plaintiff before the statute of repose had otherwise expired. Accordingly, the court must determine the pleading standard applicable to allegations relating to the fraudulent concealment exception.

Under Fed.R.Civ.P. 9(f), “[a]n allegation of time or place is material when testing the sufficiency of a pleading.” Hoover v. Langston Equip. Assocs., Inc., 958 F.2d 742, 744 (6th Cir.1992). Thus:

Under the normal rules of pleading, the statute of limitations is an affirmative defense and must be raised in the answer. Since Rule 9(f) makes allegations of time material, however, the defense of the statute [of limitations] may be raised on a motion to dismiss under Rule 12(b)(6) when it is apparent from the face of the complaint that the time limit for bringing the claim has passed. Thus, although Rule 9(f) apparently was designed simply to require a higher level of information in the pleadings, the federal courts have employed the rule as a screening device for time-barred claims and this seems consistent with general policies set forth in Rule 1 of achieving a just, speedy, and inexpensive adjudication of complaints.

Id. at 745 (quoting 5 Wright & Miller, Fed. Prac. & Proc., § 1308, p. 695 (West 1990)). Therefore, “in cases where the complaint discloses a failure to file within the time allowed, ... the plaintiff may come forward with allegations explaining why the statute of limitations should be tolled.” Id. Where “the face of the complaint affirmatively indicates that the time limit for bringing the claim has passed,” the plaintiff cannot “escape the statute [of limitations] by saying nothing.” Id. (upholding dismissal of claims governed by Ohio statute of limitations for failure to sufficiently plead fraudulent concealment requirements).

Accordingly, “it is not enough for plaintiffs to argue that the complaint, because it is silent as to when they first acquired actual knowledge, must be read in the light most favorable to them and construed as not precluding the possibility that they will be able to prove facts establishing their entitlement to relief. The obligation to plead facts in avoidance of the statute of limitations defense is triggered by the fact that ‘it is apparent from the face of the complaint that the time limit for bringing the claim[s] has passed.’ ” Bishop v. Lucent Techs., Inc., 520 F.3d 516, 520 (6th Cir.2008) (quoting Hoover, 958 F.2d at 744) (brackets in original). Under those circumstances, the Twombly standard applies to the plaintiff's complaint as it relates to potential tolling of the statute of limitations. Id. Thus, where “defendants have highlighted the apparent untimeliness of the complaint, plaintiffs may not simply rely on the bare assertion that they were unaware of the facts underlying their cause of action.” Id. (citing LRL Properties v. Portage Metro. Hous. Auth., 55 F.3d 1097, 1107 (6th Cir.1995)).

In its Sur–Sur–Reply, the government argues, without reference to the Federal Rules of Procedure or Sixth Circuit case law, that Stinnett failed to plead fraudulent concealment with the requisite particularity. (Docket No. 25 at p. 4.) The government appears to suggest that, instead of the Rule 8 standard, the court should apply the heightened pleading standard of Fed.R.Civ.P. 9(b), under which allegations of fraud must be pleaded with particularity. Having conducted its own analysis, the court has located two decisions in which, with respect to state law claims subject to potential tolling on the basis of fraudulent concealment, the Sixth Circuit has analyzed the...