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Stewart-Wilson v. United States

United States District Court, W.D. Pennsylvania

August 3, 2018



          Mark R. Hornak, United States District Judge.

         Plaintiff, now an eight-year-old minor, brought this medical malpractice action after she sustained a serious and permanent shoulder and nerve injury during her birth, allegedly due to negligent care provided by her mother's doctor. (Compl., ECF No. 1.) Because that doctor is "deemed" to be a federal employee for the purposes of the Federal Torts Claims Act, 28 U.S.C. § 2671, et seq. ("FTCA"), the United States filed a Motion to Dismiss this case as untimely under the FTCA's two-year statute of limitations. (Defi's Mot. to Dismiss, ECF No. 5.) Plaintiff asserts that the FTCA's statute of limitations should be equitably tolled because Plaintiff, unaware that the doctor was to be treated as a federal employee, relied (erroneously) on the Pennsylvania Minors' Tolling Statute to timely bring her claim in state court. For the reasons that follow, Defendant's Motion is denied.

         I. Background

         On November 9, 2009, D'Ericka Stewart gave birth to Plaintiff, Delani J. Stewart-Wilson, at Sharon Regional Hospital in Mercer County, Pennsylvania. (Compl., ECF No. 1, ¶ 11.) Plaintiff suffered a brachial plexus injury[1] during birth, which has left her injured arm several inches shorter than her uninjured arm and has required multiple surgeries and types of physical therapy. (Id. ¶¶ 43-45.) The Complaint alleges that Plaintiff sustained this injury due to negligent medical treatment provided by John Gallagher, M.D. ("Dr. Gallagher"), to D'Ericka Stewart before and during the birth of Plaintiff, her minor daughter. (Id. ¶ 9.)

         Plaintiff originally filed suit against Sharon Regional Hospital (then known as Christian H. Buhl Legacy Trust) and Dr. Gallagher in the Court of Common Pleas of Mercer County, Pennsylvania, on January 9, 2017. (Id. ¶ 3.) Asserting that Dr. Gallagher was a federal employee acting within the scope of his employment for purposes of the FTCA, the United States removed the action to this Court on January 26, 2017. See Notice of Removal, Stewart-Wilson v. Christian H. Buhl Legacy Trust, No. 17-cv-113 (W.D. Pa. Jan. 24, 2017), ECF No. 1. The United States then filed a motion to substitute itself as Defendant for Dr. Gallagher, which was granted, and a motion to dismiss on the basis that Plaintiff failed to exhaust her administrative remedies, which was also granted. (Def.'s Mem. of Law in Supp. of Mot. to Dismiss, ECF No. 6, at 2.) Plaintiff then filed an administrative tort claim with the Department of Health and Human Services on or about February 14, 2017, as required under the FTCA, before filing the instant Complaint at this docket number on October 17, 2017. (Id.)

         The United States filed the present Motion to Dismiss, ECF No. 5, on December 4, 2017, on the basis that Plaintiff failed to timely file her claim as is required under the FTCA. (Def.'s Mot. to Dismiss, ECF No. 5, at 1.) The Motion was fully briefed, oral argument was held on February 22, 2018, and the Motion is ripe for disposition.

         II. Analysis

         The FTCA provides a limited waiver of sovereign immunity for claims against the United States "for injury or loss of 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." 28 U.S.C. § 1346(b); see also Santos ex rel. Beato v. United States, 559 F.3d 189, 193 (3d Cir. 2009) (describing the FTCA). A plaintiff pursuing a claim under the FTCA must first file her claim with the administrative agency allegedly responsible for her injuries within two (2) years of the date the claim accrued, and then file suit within six (6) months of an administrative denial. 28 U.S.C. § 2401(b); Sconiers v. United States, No. 17-3440, 2018 WL 3543462, at *2 (3d Cir. July 24, 2018); Santos, 559 F.3d at 193. In this case, it is undisputed that Plaintiffs claim accrued on the date she was born: November 9, 2009.

         Plaintiff acknowledges that she filed her claim in state court more than two years after her birth, but she argues that the FTCA's statute of limitations should be equitably tolled because she did not know that Dr. Gallagher was a federal employee for FTCA purposes. When filing her claim in state court, Plaintiff relied on the Pennsylvania Minors' Tolling Statute, 42 Pa. C. S. § 5533(b)(1), which tolls the state's statute of limitations for minors' claims until the claimant reaches the age of majority. If Plaintiff had been correct in her belief that Dr. Gallagher was not a federal employee, her claim would have been timely under state law; however, state law tolling statutes do not apply to the FTCA's limitations period, and thus the Pennsylvania tolling statute alone cannot save Plaintiffs claim. Santos, 559 F.3d at 193 (citing Zeleznik v. United States, 110 F.2d 20, 22 (3d Cir. 1985); Sexton v. United States, 832 F.2d 629, 633 n.4 (D.C. Cir. 1987) (citing Zeleznik)). Accordingly, in the absence of equitable tolling, the FTCA would bar Plaintiffs claim as untimely.

         Equitable tolling, where available, "can rescue a claim otherwise barred as untimely by a statute of limitations when a plaintiff has 'been prevented from filing in a timely manner due to sufficiently inequitable circumstances.'" Santos, 559 F.3d at 197 (quoting Seitzinger v. Reading Hosp. & Med. Ctr., 165 F.3d 236, 240 (3d Cir. 1999)). Supreme Court and Third Circuit case law is clear that in certain circumstances, the FTCA's limitations period can be equitably tolled. United States v. Kwai Fun Wong, 135 S.Ct. 1625, 1638 (2015); Santos, 559 F.3d at 196-97 ("[W]e cannot in all circumstances preclude equitable tolling of the statute of limitations in FTCA actions because if we did so we unjustifiably would take upon ourselves the authority to narrow the congressional waiver of the sovereign immunity of the United States."). Because the limitations period under the FTCA is not jurisdictional, the Court believes that it is appropriate to treat the Defendant's Motion as one filed pursuant to Fed.R.Civ.P. 12(b)(6).[2]

         In the Third Circuit, a plaintiff may face "sufficiently inequitable circumstances" that justify equitably tolling a statute of limitations in three situations: "(1) where the defendant has actively misled the plaintiff respecting the plaintiffs cause of action; (2) where the plaintiff in some extraordinary way has been prevented from asserting his or her rights; or (3) where the plaintiff has timely asserted his or her rights mistakenly in the wrong forum." Id. at 197 (quoting Hedges v. United States, 404 F.3d 744, 751 (3d Cir. 2005)). However, the burden for a plaintiff seeking to equitably toll a statute is a heavy one, as our Court of Appeals cautioned in Santos:

But a plaintiff will not receive the benefit of equitable tolling unless she exercised due diligence in pursuing and preserving her claim. The principles of equitable tolling thus do not extend to "garden-variety claims of excusable neglect." The remedy of equitable tolling is extraordinary, and we extend it "only sparingly." It is especially appropriate to be restrictive with respect to extension of equitable tolling in cases involving the waiver of the sovereign immunity of the United States. The Supreme Court made that point clear when it indicated that inasmuch as the FTCA "waives the immunity of the United States, ... 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," and the Court should not "assume the authority to narrow the waiver that Congress intended."

559 F.3d at 197-98 (citing Irwin v. Dep't of Veteran Affairs, 498 U.S. 89, 96 (1990); Hedges, 404 F.3d at 751; United States v. Kubrick, AAA U.S. 111, 117-19 (1979)) (internal citations omitted).

         Plaintiff argues that the second situation applies in this case-that she "in some extraordinary way has been prevented from asserting" her rights, [3]Santos, 559 F.3d at 197- because of the difficulty in ascertaining Dr. Gallagher's status as a federal employee. The crux of Plaintiffs argument is as follows: Dr. Gallagher, although apparently employed by the Primary Health Network (a federally qualified health center), outwardly appeared to be a non-federal employee because he delivered Plaintiff at Sharon Regional Hospital (a non-federal facility) and he was listed as an Obstetrics and Gynecology doctor on Sharon Regional Hospital's website. (Pl.'s Br. in Opp'n to Def.'s Mot., ECF No. 12, at 8.) Due to Plaintiffs counsel's experience with medical malpractice cases, he was aware that Sharon Regional Hospital was a non-federal facility, and because nothing else tipped him off that Dr. ...

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