Mitchell S. Goldberg, J.
In this Federal Tort Claims Act (FTCA) lawsuit, Plaintiff alleges that his treatment at a veteran’s hospital was substandard, causing him significant and permanent injuries. The Government has filed a motion to dismiss raising an issue that has split District Courts, and for which there appears to be no definitive guidance from the Circuit Courts. The issue is: Does Pennsylvania's statute of repose extinguish an FTCA lawsuit where the plaintiff's administrative claim was filed with the appropriate agency within the state repose period (seven years), but the subsequent lawsuit filed in District Court was not.
We conclude that dismissal based on the state repose statute would result in significant impairment to the quick and cost-effective administrative resolution of claims against the United States that is a cornerstone goal of the FTCA. Accordingly, we find that under the circumstances present here, Pennsylvania’s statute of repose is preempted by the FTCA’s administrative exhaustion requirements.
I. Factual Background and Procedural History
According to Plaintiff’s complaint, on June 29, 2005, he was treated in the emergency department of the Philadelphia Veteran’s Hospital, and given intravenous calcium chloride. Plaintiff alleges that this treatment should not have been administered because he had “known IV access difficulties, ” and in fact the treatment caused tissue damage to his arm, along with compartment syndrome. As a result, Plaintiff was forced to undergo surgery, and claims “permanent impairments” in the use of his right arm. (Compl. ¶¶ 8-17.)
On June 25, 2007, less than two years later, and in compliance with the FTCA, 28 U.S.C. § 2401(b), Plaintiff submitted an administrative complaint to the Department of Veterans Affairs (VA). The VA acknowledged receipt of the claim on June 29, 2007, and requested additional information. In addition, the VA notice indicated that: “The Federal Tort Claims Act provides that the Agency has six months from receipt of the claim to investigate the claim and either deny or allow the claim, unless an extension beyond six months is granted by Claimant’s counsel.” According to Plaintiff, what followed was over five years of delay on the part of the VA. (Compl. Ex. A; Pl.’s Opp. Ex. B.)
Specifically, on September 18, 2008, the VA sent Plaintiff’s counsel a letter indicating that the claim had yet to be processed because of the “delay in receipt of the requested medical records and the press of my caseload.” The letter requested an extension to December 18, 2008, which Plaintiff’s counsel granted. (Pl.’s Opp. Ex. C-D.)
On December 18, 2008, the VA sent another letter requesting an extension, this time because “I have this date received an expert medical opinion necessary to complete my investigation.” Plaintiff’s counsel again granted the request for a thirty to sixty day extension. (Pl.’s Opp. Ex. E-F.)
The next correspondence between Plaintiff and the VA came about two years later when, on December 28, 2010, Plaintiff’s counsel wrote to the VA asking for an update on the status of the claim. The VA responded on December 30, 2010, indicating that “no action was taken to complete my investigation” since 2008, and apologizing for the delay. The letter requested a ninety day extension, and also requested that Plaintiff’s counsel submit any expert reports he had obtained. Plaintiff’s counsel granted the request for an extension. On July 15, 2011, Plaintiff forwarded an expert report to the VA, and also requested a decision within forty-five days. The letter continued: “In the event we are unable to reach an amicable resolution of this matter, I would ask that you issue a denial in this matter so that we may proceed accordingly.” (Pl.’s Opp. Ex. G-J.)
Notwithstanding the forty-five day deadline in counsel’s letter, on September 27, 2011, the VA sent Plaintiff’s counsel another request for an extension, this time indicating that while Plaintiff’s expert report had been forwarded to the VA’s expert, the reviewer had not yet been able to discuss the case with his expert. The letter did not specify a length of time for the extension, but simply indicated that the VA hoped to follow up with its expert “in the next few weeks.” The letter also included yet another “apology for the delay in investigating this claim.” The record does not include a written response to this request from Plaintiff, but on July 17, 2012, the VA issued its final decision denying the claim and advising that the investigation “did not reveal evidence of any negligent or wrongful act or omission.” The denial letter stated that Plaintiff had the right to file a lawsuit in federal court “within six (6) months, ” but also that “[s]ome state laws may limit or bar a claim or law suit.” (Pl.’s Opp. Ex. K-L.)
Plaintiff filed suit on December 28, 2012, and the Government responded with this motion to dismiss on March 11, 2013. It now argues that Pennsylvania’s statute of repose bars Plaintiff’s lawsuit.
A. Motion to Dismiss Standard
The FTCA confers jurisdiction on District Courts through 28 U.S.C. § 1346(b)(1), which waives sovereign immunity only “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.” CNA v. United States, 535 F.3d 132, 145 (3d Cir. 2008). The Government’s Rule 12(b)(1) motion amounts to a factual attack on this Court’s jurisdiction, because it challenges not merely “an alleged pleading deficiency, but rather the actual failure of [Plaintiff’s] claims to comport with the jurisdictional prerequisites” of the FTCA. United States ex rel. Atkinson v. Pa. Shipbuilding Co., 473 F.3d 506, 514 (3d Cir. 2007). The consequence of this is that Plaintiff bears the burden of establishing jurisdiction, and unlike other familiar motions, no presumptive truthfulness attaches to the allegations in the Complaint. Mortensen v. First Federal Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977). In addition, because the court is ...