Tuck v. United States

• Decision Date: 21 March 2022
• Docket Number: Civil Action 21-cv-02889-NYW
• Court: U.S. District Court — District of Colorado
• Parties: JESSICA TUCK, Plaintiff, v. THE UNITED STATES OF AMERICA, Defendant.

JESSICA TUCK, Plaintiff, v. THE UNITED STATES OF AMERICA, Defendant.

Civil Action No. 21-cv-02889-NYW

United States District Court, D. Colorado

March 21, 2022

ORDER ON MOTION TO DISMISS

NINA Y. WANG, MAGISTRATE JUDGE

This matter is before the court on the United States' Motion to Dismiss Amended Complaint Pursuant to Rule 12(b)(1) (the “Motion” or “Motion to Dismiss”). [Doc. 26]. The court considers the Motion pursuant to 28 U.S.C. § 636(c) and the Order of Reference for all purposes dated February 2, 2022. [Doc. 25]. Upon review of the Motion, the related briefing, and the applicable case law, the Motion to Dismiss is respectfully DENIED.

BACKGROUND

The court draws the following facts from the Amended Complaint, [Doc. 22], and presumes they are true for purposes of the Motion to Dismiss. Plaintiff Jessica Tuck (“Plaintiff” or “Ms. Tuck”) was seen by Dr. Melanie Metcalf at the Salud Family Health Center for an examination on October 3, 2017, at which time Dr. Metcalf was an employee and/or agent of Defendant, the United States of America. [Id. at ¶¶ 8, 11]. During a breast examination, Dr. Metcalf noted a lump in Ms Tuck's right breast, but told Ms. Tuck that it was likely “just fibroadenoma.” [Id. at ¶¶ 12-13]. Dr. Metcalf ordered ultrasound imaging but failed to make arrangements for the imaging or contact Ms. Tuck to schedule the ultrasound. [Id. at ¶¶ 15-16].

When Ms. Tuck was seen by Dr. Metcalf again on November 21 2017, Ms. Tuck asked Dr. Metcalf about the lump; Dr. Metcalf told her it was nothing to worry about and did not follow up with ultrasound imaging. [Id. at ¶ 19]. Ms Tuck never received a breast ultrasound. [Id. at ¶ 17].

Approximately one year later, Ms. Tuck was seen by another physician for an annual checkup. [Id. at ¶ 20]. The other physician discovered a two- to three-centimeter mass in Plaintiff's breast, which demonstrated a doubling or tripling of the size of the mass in the year following Dr. Metcalf's examination. [Id. at ¶¶ 22-23]. The physician ordered a mammogram and breast ultrasound, which confirmed on December 18, 2018 a solid mass that was “highly suspicious for malignancy.” [Id. at ¶¶ 24-25]. After a biopsy on December 19, 2018, Ms. Tuck was diagnosed with stage IIIA breast cancer with lymph node involvement. [Id. at ¶¶ 28, 30]. Ms. Tuck alleges that had Dr. Metcalf properly treated and diagnosed her cancer a year earlier, the cancer likely would have been evaluated at stage IA and would have been treated with less invasive measures. [Id. at ¶ 31]. Instead, Plaintiff was required to undergo “extensive neoadjuvant therapy, ” a “radical double mastectomy, ” and a double breast reconstruction. [Id. at ¶ 32]. Ms. Tuck continues to undergo treatment and “will require future medical care for the rest of her life.” [Id. at ¶ 33].

Plaintiff initiated this action on October 27, 2021 against Dr. Metcalf, Plan de Salud Del Valle, Inc., doing business as Salud Family Health Centers, and the United States of America. See [Doc. 1 at 1]. The case was directly assigned to the undersigned Magistrate Judge, [Doc. 3], and the Parties consented to this court's jurisdiction on January 31, 2022. [Doc. 20]. Plaintiff filed the Amended Complaint on February 1, 2022, which named only the United States as a Defendant in this matter and which raised one claim of medical negligence under the Federal Tort Claims Act (“FTCA”). [Doc. 22 at 1, 4]. On February 15, 2022, Defendant filed the instant Motion to Dismiss, arguing that Plaintiff's claim should be dismissed for lack of subject matter jurisdiction because the claim is barred by Colorado's statute of repose for medical negligence claims. [Doc. 26]. That same day, Defendant moved to stay discovery based on the jurisdictional issues raised in the Motion to Dismiss. [Doc. 27]. After expedited briefing, see [Doc. 31; Doc. 33], the court stayed discovery pending resolution of the Motion to Dismiss. [Doc. 35]. Plaintiff has since responded to the Motion to Dismiss, [Doc. 36], and Defendant has filed a reply. [Doc. 37]. The matter is thus ripe for disposition, and I consider the Parties' arguments below.

LEGAL STANDARD

I. Rule 12(b)(1)

Federal courts are courts of limited jurisdiction. As such, courts “are duty bound to examine facts and law in every lawsuit before them to ensure that they possess subject matter jurisdiction.” Wilderness Soc. v. Kane Cty., 632 F.3d 1162, 1179 n.3 (10th Cir. 2011) (Gorsuch, J., concurring). Attacks on subject matter jurisdiction may take two different forms-a facial attack or a factual attack-which implicate different analytical frameworks. The Tenth Circuit has explained that

[m]otions to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) may take one of two forms. First, a party may make a facial challenge to the plaintiff's allegations concerning subject matter jurisdiction, thereby questioning the sufficiency of the complaint. In addressing a facial attack, the district court must accept the allegations in the complaint as true. Second, a party may go beyond allegations contained in the complaint and challenge the facts upon which subject matter depends. In addressing a factual attack, the court does not presume the truthfulness of the complaint's factual allegations, but has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1).

United States v. Rodriquez Aguirre, 264 F.3d 1195, 1203 (10th Cir. 2001) (quotation omitted)).

The party invoking federal jurisdiction has the burden of establishing said jurisdiction. Merida Delgado v. Gonzales, 428 F.3d 916, 919 (10th Cir. 2005).

II. The Federal Tort Claims Act

Generally, the United States is immune from suit pursuant to the doctrine of sovereign immunity, which precludes federal jurisdiction. See United States v. Mitchell, 463 U.S. 206, 212 (1983) (“It is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction.”). But “[t]hrough 28 U.S.C. § 1346(b)(1), the FTCA waives sovereign immunity for certain state law tort claims against the United States.” Garling v. EPA, 849 F.3d 1289, 1294 (10th Cir. 2017). More specifically, the FTCA operates to waive sovereign immunity “with respect to certain injuries caused by government employees acting within the scope of their employment.” Tippett v. United States, 108 F.3d 1194, 1196 (10^th Cir. 1997). The FTCA provides that the United States may be sued

for money damages . . . for injury or loss or property, or 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.

28 U.S.C. § 1346(b)(1) (emphasis added). “Put another way, the FTCA incorporates the substantive law of the state where the tortious act or omission occurred.” Augutis v. United States, 732 F.3d 749, 752 (7th Cir. 2013) (quotation omitted); see also Feres v. United States, 340 U.S. 135, 142 (1950) (the FTCA “recognizes and assimilates into federal law the rules of substantive law of the several states.”). “[A] waiver of the Government's sovereign immunity will be st rictly construed, in terms of its scope, in favor of the sovereign.” Lane v. Pena, 518 U.S. 187, 192 (1996).

Relevant here, the FTCA “contains an interconnected statute of limitation and administrative adjudication requirement.” Halvorson v. United States, 381 F.Supp.3d 1115, 1118 (D.S.D. 2019). The law includes a six-year statute of limitations, providing that any civil action against the United States is barred unless the complaint is filed “within six years after the right of action first accrues.” 28 U.S.C. § 2401(a). Moreover, the FTCA requires that all claims must be “presented in writing to the appropriate Federal agency within two years after such claim accrues.” 28 U.S.C. § 2401(b). After administrative adjudication of the claim, any subsequent federal lawsuit must be filed “within six months after the date of mailing . . . of notice of final denial of the claim by the agency to which it was presented.” Id. An agency's failure to render a final disposition of an administrative claim within six months after it is filed is “deemed a final denial of the claim.” 28 U.S.C. § 2675(a).

ANALYSIS

Defendant argues that this court lacks jurisdiction over Plaintiff's medical negligence claim because the claim is barred by Colorado's statute of repose. See [Doc. 26 at 1]. While the statute of repose has limited exceptions, Defendant maintains that no such exceptions apply to this case, [id. at 5-8], and thus, this case should be dismissed for lack of subject matter jurisdiction. [Id. at 1]. Ms. Tuck disagrees, asserting that state statutes of repose “do not apply in federal FTCA medical malpractice cases.” [Doc. 36 at 1, 5]. In the alternative, she argues that even if Colorado's statute of repose does apply here, the Motion to Dismiss should nevertheless be denied because under Colorado law, the repose period began to run when she discovered her injury in December 2018; because she filed this lawsuit within three years of that date, her claim is not barred by the statute of repose. [Id. at 12].

I. The Statute of Repose

“A statute of repose . . . puts an outer limit on the right to bring a civil action, ” which limit is measured “from the date of the last culpable act or omission of the defendant.” CTS Corp. v. Waldburger, 573 U.S. 1, 8 (2014). Although a statute of repose is related to a statute of limitations the two differ in...