Webb v. U.S.

• Decision Date: 26 February 2008
• Docket Number: Civil No. 05-0427(RJL).
• Citation: 535 F.Supp.2d 54
• Parties: Gregory WEBB, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Columbia

535 F.Supp.2d 54

Gregory WEBB, Plaintiff, v. UNITED STATES of America, Defendant.

Civil No. 05-0427(RJL).

United States District Court, District of Columbia.

February 26, 2008.

Michael E. Wildhaber, The Law Office of Wildhaber & Associates PLLC, Washington, DC, for Plaintiff.

Andrea McBarnette, Beverly Maria Russell, U.S. Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION

RICHARD J. LEON, District Judge.

Plaintiff, Gregory Webb ("Webb") brought this tort claim against defendant, the United States, pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2401(b) ("FTCA"). Before the Court is Defendant's Motion for Judgment on the Pleadings, or Alternatively, for Summary Judgment. After consideration of the parties' pleadings, the relevant law and the entire record herein, the Court GRANTS defendant's motion.

BACKGROUND

Webb brought this FTCA claim for injuries arising from a November 17, 1998, arthroscopic "Bankart" repair surgery performed at the Veterans Affairs Medical Center ("VAMC") in Washington, DC ("DC VAMC"). (Def.'s Statement of Material Facts to Which There Is No Genuine Dispute¹ ("Def.'s Stmt.") ¶ 1.) The surgery was performed to treat a prior shoulder injury Webb suffered while serving in the military and for which he was medically discharged on November 21, 1985. (Compl. ¶¶ 6-7.)

After the surgery, Webb continued to experience pain in his shoulder for which he sought treatment on multiple occurrences at the DC VAMC. (Def.'s Stmt. ¶¶ 2-7.) He reported feeling as if "something [was] moving in his shoulder" (id. ¶ 2) and experiencing "decreased range of motion" (id. ¶ 4). Sometime around November 1998, a technician told Webb that his problems might be associated with the pin inserted in his shoulder during the surgery. (Pl.'s Stmt. ¶ 12.) When Webb "asked his physician about this possibility [he was] told that it could not be an issue." (Pl.'s Stmt, ¶ 2.)

On April 27, 1999, Webb sought a second opinion at the Baltimore VAMC Orthopedic Clinic. (Pl.'s Stmt. ¶ 1.). The Baltimore VAMC recommended additional CT scans "to check the position of the Mitek [suture anchor] and general posture of the shoulder." (Pl.'s Stmt. ¶ 1.) In a follow-up report on June 16, 1999 a VAMC medical professional indicated that the CT scan "show[ed] no gross abnormalities." (Compl. ¶ 17; Def. Mot. to Dismiss, Ex. 10.)

Webb then returned to the DC VAMC for further treatments. Medical records from August 1999 indicate that "[s]ince his [November 1998] procedure he has had progressively worsening range of motion and pain" and that his "pain is at the site of the surgical scar." (Def.'s Mot for J. on the Pleadings, or Alternatively, for Summ. J. ("Def.'s Mot."), Exs. 1, 2; Def.'s Stmt, ¶¶ 5-6.) By September 30, 1999, the VAMC told Webb his options were limited. He was informed that no additional conservative treatment options remained, but that other options, such as fusion, were a possibility. (See Pl.'s Opp'n to Def.'s Mot. to Dismiss, Ex. 12-13; see also Pl.'s Opp'n to Def.'s Mot. for J. on the Pleadings or Alternatively, for Summ. J. ("Pl.'s Opp'n") at 3 (citing Pl.'s Opp'n to Def.'s Mot. to Dismiss, Exs. 1-18).)

Nevertheless; Webb continued to seek treatment from the VAMC. The medical records indicate that Webb was again "told the same information about the [potential problem with the pin in his] shoulder that the technician had related over one year earlier" at his January 18, 2000 appointment. (Def.'s Reply to Pl.'s Opp. to Def.'s Mot. at 3 (citing Pl.'s Consent Mot. to File Exhibits Under Seal, Ex. 13, Progress Notes.))

On March 27, 2001, Webb visited an orthopedist at the West Haven, Connecticut VAMC who informed him that he would need surgery to remove an "inferior suture anchor from the 1998 `Bankart' procedure." (Pl.'s Stmt. ¶ 3). The summary of the procedure was stated as follows: "It was decided in consultation with [Webb] that the best thing to do would be to arthroscopically evaluate the joint and remove the hardware if that proved to be the offending agent.... Intraoperatively there was noted that there was a metal suture that was plowed into the inferior glenoid and causing significant irritation and erosion on the inferior portion of the articular humeral head. The screw was removed as planned and postoperatively he was stable." (Pl.'s Stmt, ¶ 4.) This procedure took place on May 1, 2001. (Id.) On May 10, 2001, an orthopedic physician summarized the May 1 procedure and noted that "[p]atient intraoperatively found to have significant decrease in ROM [range of motion] with palpable locking and catching." (Id. ¶ 5.)

On March 13, 2003, less than two years after Webb's surgery at the West Haven, Connecticut VAMC, the Department of Veteran's Affairs ("VA") received the plaintiff's administrative claim. (Def.'s Stmt. ¶ 8). After responding to defendant's March 19, 2003 request for additional information, Webb heard nothing further. (Compl. ¶ 26.) Subsequently, he filed the present action on March 2, 2005.

The United States filed a motion to dismiss on the grounds that the Court lacked subject matter jurisdiction due to Webb's failure to comply with the statute of limitations, (Def.'s Mot to Dismiss.) The Court denied the United States' motion on January 3, 2006. Now, after completion of fact discovery, the United States moves for judgment on the pleadings, or alternatively for summary judgment, on similar grounds.

DISCUSSION

I. Legal Standards²

Summary judgment is appropriate when the pleadings and the record demonstrate that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party bears the initial burden of demonstrating the absence of a genuine dispute of material fact, Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), and the Court draws all reasonable inferences regarding the assertions made in a light favorable to the non-moving party, Biodiversity Conservation Alliance v. U.S. Bureau of Land Mgmt., 404 F.Supp.2d 212, 216 (D.D.C.2005) (citing Flynn v. Dick Corp., 384 F.Supp.2d 189, 192-93 (D.D.C.2005)). "[W]hen ruling on cross-motions for summary judgment, the Court shall grant summary judgment only if one of the moving parties is entitled to judgment as a matter of law upon material facts that are not genuinely disputed." Barr Labs., Inc. v. Thompson, 238 F.Supp.2d 236, 244 (D.D.C.2002) (citing Rhoads v. McFerran, 517 F.2d 66, 67 (2d Cir.1975)). Whether a genuine issue exists is, in essence, "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, 477 U.S. 242, 252-52, 106 S.Ct. 2505, 91 L.Ed.2d 202. Whether a fact is material will depend on the substantive law. Id. at 248, 106 S.Ct. 2505.

II. Statute of Limitations

The United States and its agencies are shielded from tort actions for damages unless the United States waives its sovereign immunity. See United States v. Kubrick, 444 U.S. 111, 117-18, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979). Congress has waived sovereign immunity for tort cases via the FTCA, which provides, in relevant part:

A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.

28 U.S.C. § 2401(b) (emphasis added). Thus, the waiver of sovereign immunity is premised on the plaintiff complying with the two-year statute of limitations, which begins to run when the "claim accrues." See id. (emphasis added). This waiver of sovereign immunity is purposely limited. The Supreme Court has cautioned courts that "in construing the [FTCA's] statute of limitations, which is a condition of that, waiver, we should not take it upon ourselves to extend the waiver beyond that which Congress intended." Kubrick, 444 U.S. at 117-18, 100 S.Ct. 352. Courts must take care not to "undermine the purpose of the limitations statute, which is to require reasonably diligent presentation of tort claims against the Government," despite the possibility of seemingly harsh results. Id. at 123, 100 S.Ct. 352.

The statute of limitations begins to run when the claim first accrues. Federal law governs when a claim "accrues" under the FTCA. See Sexton v. United States, 832 F.2d 629, 633 n. 4 (D.C.Cir. 1987). What constitutes accrual of a cause of action is a question of law, even though the specific moment when accrual occurs is generally a question for the jury. See Smith v. Brown & Williamson Tobacco Corp., 3 F.Supp.2d 1473, 1475 (D.D.C.1998) (citing Diamond v. Davis, 680 A.2d 364, 370 (D.C.1996)). Accordingly, a court may dismiss a FTCA claim on statute of limitation grounds only if "no reasonable person could disagree on the date" on which the cause of action accrued. Kuwait Airways Corp. v. Am. Security Bank, N.A., 890 F.2d 456, 463 n. 11 (D.C.Cir.1989).

Under the FTCA, a claim accrues when the plaintiff "has discovered both his injury and its cause," regardless of whether the plaintiff knows the injury was negligently inflicted. Sexton, 832 F.2d at 633 (citing Kubrick, 444 U.S. at 120, 100 S.Ct. 352). Courts measure discovery of the injury by "when the claimant has discovered, or in the exercise of reasonable diligence should have discovered, the act constituting the alleged malpractice." Kubrick, 444 U.S. at 115, 100 S.Ct. 352. Thus, a plaintiff needs to only be "armed with the facts about the harm done to him" such that he can "protect himself by seeking advice in the medical and legal community." Id. at 123, 100 S.Ct. 352. This standard confers upon the plaintiff "a duty to inquire into the unknown cause of a known injury."...