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Rettig v. United States

United States District Court, W.D. Pennsylvania

August 24, 2017



          Joy Flowers Conti, Chief United States District Judge

         I. Introduction

         Pending before the court is a motion for summary judgment filed by the United States (the “government” or “United States”) against plaintiff Dewayne Rettig (“Rettig” or “plaintiff”). (ECF No. 34.) In his complaint, Rettig alleges that the United States negligently exposed him to Legionella bacteria through the potable water system at the Veterans Affairs University Drive hospital (the “VA Hospital”) in 2010. Rettig seeks monetary damages pursuant to the Federal Tort Claims Act (the “FTCA”), 28 U.S.C. §§2671 and 1346(b)(1). Because plaintiff's claim is time barred, the government's motion for summary judgment will be granted.

         II. Factual Background

         In his complaint, Rettig alleges that he visited the VA Hospital for routine medical care on August 10, 2010, August 17, 2010, and August 30, 2010. (Compl. (ECF No. 1) ¶ 21.) During each of these visits, Rettig drank from the hospital's water fountains and filled a water bottle from those fountains to drink while he was waiting. (Id.)

         On September 16, 2010, Rettig awoke with a 104 degree temperature and began coughing up blood. (Id. ¶ 23.) He sought treatment for his symptoms at the VA Hospital, where he was admitted to the intensive care unit and quarantined for approximately eight days. (Id.) His physicians informed him that he was suffering from Legionnaires' disease and speculated that he might have contracted the disease while on a recent vacation in Mexico. (Deposition of Dewayne Rettig (“Rettig Depo.”) (ECF No. 38-2) at 74.)

         Between January 2011 and October 2012, there was a highly-publicized outbreak of Legionnaires' disease associated with VA Hospitals in the Pittsburgh area. (Joint Statement of Material Facts (“J.S.M.F.”) ¶ 2 (ECF No. 43).[1] See, e.g., Schultz v. United States, No. 15-454, 2017 WL 635289, at *5 (W.D. Pa. Feb. 16, 2017) (discussing the Legionnaires' disease outbreak at the VA Hospital in Pittsburgh). Between November 2012 and May 2013, the Pittsburgh media ran over one hundred stories reporting on the number of patients who had contracted Legionnaires' disease after receiving treatment at area VA hospitals. (J.S.M.F. (ECF No. 43) ¶ 4.) The press widely reported that the Center for Disease Control (“CDC”) and a Congressional panel were conducting investigations to determine the source of the outbreak. (Id.) These stories also discussed the possibility that VA personnel had taken steps to cover up the outbreak. (Id.)

         According to Rettig, he never considered the possibility that he might have contracted Legionnaires' disease at the VA Hospital until a reporter from the Pittsburgh Tribune Review telephoned him in 2014 and asked him to do an interview. (Rettig Depo. (ECF No. 38-2) at 74.) The reporter explained that he had received an anonymous phone call from someone at the VA Hospital asking him to check into Rettig's situation because Rettig had “caught Legionnaires over there and they swept [him] so far under the carpet that they forgot about [him].” (Id. at 76.) Prior to that conversation, Rettig “didn't have any doubt” that he had contracted Legionnaires' disease while in Mexico, as his doctors had informed him. (Id. at 74.) He admitted that he heard reports in 2011 and 2012 about the Legionella outbreak at the VA Hospital but “didn't pay a whole lot of mind to it because it was two years after [he had contracted Legionnaires']” and so he “didn't put two and two together.” (Id. at 81.) He also testified that he did not regularly read the newspaper or watch the news. (Id. at 74.)

         Rettig's wife, Mary, learned about the Legionella outbreak at the VA Hospital in late fall of 2011 - about “one year” after her husband was diagnosed. (Deposition of Mary Rettig (“M. Rettig Depo.”) (ECF No. 35-2) at 60.) She recalled seeing news stories on television and in the local press reporting that the VA Hospital was firing employees because they had covered up a Legionella outbreak at the hospital. (Id.) She characterized the outbreak as a “huge” story in the area. (Id.) At some point in late 2011, Mary told her husband that: “[T]he VA is hiding the fact that people have Legionnaires. They try to tell you you got it in Mexico. If you look at the gestation period of when it starts to peak, there is no way that happened.” (Id. at 61.) According to Mary, neither she nor her husband had ever believed the hospital's explanation because it “did not make sense that he got it in Mexico.” (Id. at 143.)[2]

         Throughout 2011 and 2012, Rettig frequently debated the potential source of his exposure to Legionella with his friends and family. A close friend, Robert Lane (“Lane”), stated that Rettig and he discussed the source of Rettig's disease “all the time.” (Deposition of Robert Lane (“Lane Depo.”) (ECF No. 35-4) at 36.) Lane recalled Rettig speculating that it “was at the VA's, could have been a water fountain, could have been ductwork, all kind of stuff.” (Id.)

         Rettig's brother recalled that the family “started to have a better handle” on how Rettig might have contracted the disease after the stories about the Legionella outbreak at the VA Hospital appeared on the news in 2011 and 2012. (Deposition of David Rettig (“D. Rettig Depo.”) (ECF No. 35-5) at 56.) David described the outbreak as “a land mine going off around here with all the news reports and the Legionnaires' disease that was being contracted by veterans in the VA Hospital, the hospital that [Rettig] was in.” (Id. at 56-57.)

         Rettig's son, Karl, stated that “once the stuff [about Legionella at the VA Hospital] started coming out on the news, ” the family “kind of had the idea” that his father “may have got it from the VA Hospital considering there were so many cases of it.” (Deposition of Karl Rettig (“K. Rettig Depo.) (ECF No. 35-6) at 26-27.) He spoke to his dad “a few times” in 2011 and 2012 about the Legionella outbreak at the VA and what might have caused it. (Id. at 28.) Karl stated that he thought it was “very damning” that “a lot of guys from the VA Hospital were coming up saying, hey, I have Legionnaires disease . . . .” (Id. at 28.) Karl told his dad, “hey, you were at the VA before you . . . took your trip [to Mexico] and all that other stuff.” (Id.) Rettig responded that it “could very quite possibly be that way.” (Id. at 29.)

         Rettig's daughter Nicole also discussed with him the possibility that his Legionnaires' disease might have stemmed from the VA Hospital. (Deposition of Nicole Rettig (“N. Rettig Depo.”) (ECF No. 35-7) at 32.) She said that these conversations happened in 2010, when he first contracted the disease. (Id. at 33.)

         On June 4, 2015, Rettig submitted an administrative claim for $750, 000 to the VA Office of General Counsel for “Legionnaire's Disease contracted at the VA Hospital in Pittsburgh.” J.S.M.F. (ECF No. 43) ¶ 1.) He cited “8/30/2010” as the “date and day of accident” and alleged that he “was diagnosed with Legionnaire's Disease ...

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