Thompson v. United States

• Citation: 642 F. Supp. 762
• Decision Date: 12 August 1986
• Docket Number: No. 86 C 1416.,86 C 1416.
• Parties: Gregory THOMPSON, etc., Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Northern District of Illinois

642 F. Supp. 762

Gregory THOMPSON, etc., Plaintiff, v. UNITED STATES of America, Defendant.

No. 86 C 1416.

United States District Court, N.D. Illinois, E.D.

August 12, 1986.

Gerald M. Sachs & Associates, Richard J. Aronson, Chicago, Ill., for plaintiff.

Anton Valukas, U.S. Atty., Linda Wawzenski, Asst. U.S. Atty., Chicago, Ill., for defendant.

MEMORANDUM OPINION AND ORDER

SHADUR, District Judge.

Gregory Thompson ("Gregory") sues the United States¹ under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b) ("Section 1346(b)") and 2674 ("Section 2674"), claiming:

1. $2.5 million for Toni's wrongful death (Count I);

2. $5,000 for funeral bills and expenses on Toni's behalf (Count II) 3. $2.5 million in a survival action for Toni's pain and suffering (Count III); and

4. $750,000 for Gregory's loss of consortium (Count IV).

At the threshold the United States has moved to dismiss for lack of subject-matter jurisdiction. For the reasons stated in this memorandum opinion and order, the motion is denied.

Facts²

In 1983, while Gregory was a member of the United States Army, his wife Toni was admitted to the Tripler Army Medical Center ("Tripler") in Hawaii (¶¶ 1, 4; Gregory Aff. ¶ 2). Doctors and nurses there told Gregory Toni was suffering from lupus³ (Gregory Aff. ¶ 2). Toni died at Tripler November 26, 1983 (¶ 8; Gregory Aff. ¶ 2). Gregory Aff. ¶ 2 says the Tripler staff told him lupus was the sole cause of Toni's death.

During December 1983 Gregory (Aff. ¶ 4):

read some materials about lupus and wondered whether the examination, diagnosis and treatment of his wife had met proper medical standards.

That same month Gregory spoke to an attorney, who agreed to look into the matter (id. ¶ 5). In April 1984 Tripler told Gregory Toni's autopsy report had just been completed (id. ¶ 6). He wrote immediately for the complete medical records but did not receive them until August 24, 1984 (id. ¶ 7).

On November 29, 1984 Gregory submitted an administrative claim to the Army (the "First Claim") (¶ 10). "Individually and as parent of" Children, he sought $3 million for Toni's wrongful death (see Complaint Ex. 2,⁴ the claim form). Gregory had been appointed Children's guardian November 7, 1984.⁵

On December 20, 1985 Gregory was appointed administrator of Toni's estate by the Circuit Court of Cook County, Illinois (see Complaint Exs. 4, 5). On the same day he submitted an amended claim, seeking an additional $3 million for "personal injury" (the "Second Claim") (Complaint Ex. 3).

On February 5, 1986 the Army denied both the First and Second claims (¶ 13). Gregory filed this action February 23, 1986.

Timeliness: Wrongful Death Claim

Every FTCA claim must be presented to the appropriate federal agency "within two years after such claim accrues" (28 U.S.C. § 2401(b), "Section 2401(b)"). That two-year period is jurisdictional (Crawford, 796 F.2d at 927). Gregory's First Claim was filed just over a year after Toni's death and was thus prima facie timely.

Despite that the United States argues the First Claim was inadequate, for Gregory had not yet been appointed administrator of Toni's estate. To that end the United States relies on 28 C.F.R. § 14.3(c):

A claim based on death may be presented by the executor or administrator of the decedent's estate, or by any other person entitled to assert such a claim in accordance with applicable State law.

But even on its face that regulation does not require an FTCA plaintiff to be either the executor or administrator. Instead it looks to "applicable State law."

Section 1346(b) dictates the state-law reference for FTCA claims (emphasis added):

The district courts ... shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, ... for ... personal injury or death caused by the negligent or wrongful act or omission of any employee of the government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

Toni's death occurred in Hawaii, and (Hess v. United States, 361 U.S. 314, 318, 80 S.Ct. 341, 345, 4 L.Ed.2d 305 (1960)):

liability must therefore be determined in accordance with the law of that place.

Wrongful death actions were unknown at common law and are defined by statute (Prosser & Keeton, The Law of Torts § 127, at 945 (5th ed. 1984)). Such statutes have been drafted essentially along two different lines:

1. Some define the cause of action as analogous to any personal injury, and when the victim dies the cause of action accrues to his or her estate.

2. Others characterize the injury as a loss to specific categories of persons related to or dependent upon the decedent, and those persons may prosecute the action in their own right.

Under the first type of statute the action must be prosecuted by the executor or administrator of the estate (see, e.g., Addison v. Health and Hospital Governing Commission of Cook County, 56 Ill.App.3d 533, 535, 14 Ill.Dec. 7, 9, 371 N.E.2d 1060, 1062 (1st Dist.1977)). But Hawaii's statute is of the latter sort (Hawaii Rev.Stat. § 663-3 ("Section 663-3")):

Death by wrongful act. When the death of a person is caused by the wrongful act, neglect, or default of any person, the deceased's legal representative, or any of the persons hereinafter enumerated, may maintain an action against the person causing the death or against the person responsible for the death. The action shall be maintained on behalf of the persons hereinafter enumerated, except that the legal representative may recover on behalf of the estate the reasonable expenses of the deceased's last illness and burial.

In any action under this section, such damages may be given as under the circumstances shall be deemed fair and just compensation, with reference to the pecuniary injury and loss of love and affection, including (1) loss of society, companionship, comfort, consortium, or protection, (2) loss of marital care, attention, advice, or counsel, (3) loss of filial care or attention, or (4) loss of parental care, training, guidance, or education, suffered as a result of the death of the person by the surviving spouse, children, father, mother, and by any person wholly or partly dependent upon the deceased person. The jury or court sitting without jury shall allocate the damages to the persons entitled thereto in its verdict or judgment, and any damages recovered under this section, except for reasonable expenses of last illness and burial, shall not constitute a part of the estate of the deceased. Any action brought under this section shall be commenced within two years from the date of death of the injured person, except as otherwise provided.

Thus each of Gregory and Children has an independent right of recovery for the relevant specified heads of damage under Hawaiian law (Hun v. Center Properties, 63 Hawaii 273, 626 P.2d 182, 187 (1981)). No appointment as administrator being a necessary precondition under Hawaiian law, Gregory's First Claim was both timely and sufficient for 28 C.F.R. § 14.3(c) purposes.⁶ Gregory and Children are therefore entitled to proceed in this action for recovery up to the $3 million claimed in the First Claim (see 28 U.S.C. § 2675(b)). Without further inquiry into Hawaiian tort law (a matter briefed by neither party), that would appear to cover the sorts of damage claimed in Counts I and IV.

Timeliness: Survival Action

Gregory's Second Claim, filed more than two years after Toni's death, asked an additional $3 million for "personal injury" to Toni. That sort of claim equates to the survival action advanced in Count III. Conceptually, survival actions closely resemble the first type of wrongful death statute discussed earlier, under which damages for injuries, pain and suffering experienced by a decedent before death accrue to the decedent's estate. Hawaii Rev.Stat. § 663-7 ("Section 663-7") provides for such actions:

Survival of cause of action. A cause of action arising out of a wrongful act, neglect, or default, except a cause of action for defamation or malicious prosecution, shall not be extinguished by reason of the death of the injured person. The cause of action shall survive in favor of the legal representative of the person and any damages recovered shall form part of the estate of the deceased.

See Greene v. Texeira, 54 Hawaii 231, 505 P.2d 1169, 1172 (1973):

Under HRS § 663-7 there survives in favor of the decedent's legal representative only such cause of action as the decedent himself had at the moment of his death.

Actions under Section 663-7 must be brought by an executor or administrator, and Gregory was neither at the time he filed his First Claim. Because he had become administrator of Toni's estate only when he filed the Second Claim, Count III cannot stand unless that filing occurred within the two-year jurisdictional limitation period.⁷ And under Section 2401(b) that in turn depends on when the survival action "accrued": Unless accrual took place on or after December 20, 1983, the Second Claim was out of time.

For that purpose, though FTCA actions are based on state substantive law, federal law governs when a claim "accrues" (Green v. United States, 765 F.2d 105, 107 (7th Cir.1985)). Nemmers v. United States, 795 F.2d 628, 629 (7th Cir.1986) states the operative rule:

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)....

By definition Gregory knew when the injury—Toni's death—occurred. Thus the key inquiry centers on his knowledge of causation. As to that the cases establish three essential principles:

1. What matters is knowledge of the actual or probable cause of the injury, not knowledge of

...