United States District Court, W.D. Pennsylvania
DELANI J. STEWART-WILSON, Plaintiff,
UNITED STATES OF AMERICA, Defendant.
R. Hornak, United States District Judge.
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.
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 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.
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.)
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.
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.
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.
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.
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
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).
argues that the second situation applies in this case-that
she "in some extraordinary way has been prevented from
asserting" her rights, 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. ...