Summary
finding no waiver where statute of limitations raised as affirmative defense for first time in motion for summary judgment and plaintiff did not claim prejudice
Summary of this case from Karoun Dairies, Inc. v. Karlacti, Inc.Opinion
No C 00-3230 VRW
October 27, 2003
ORDER
On April 25, 2001, the court issued an order granting defendant United States' motion for summary judgment, — on the grounds that plaintiff had failed to comply with the applicable statute of, limitations (Doc #17). On December 9, 2002, however, the Ninth Circuit vacated the order and remanded the case for reconsideration in light ofWinter v United States, 244 F.3d 1088 (9th Cir 2001), an opinion issued shortly after the court ordered summary judgment (Doc # 24). Subsequently, on August 20, 2003, defendant filed a second motion for summary judgment (Doc # 38). Plaintiff filed a memorandum opposing the motion on September 2, 2003 (Doc # 43). Defendant filed its reply memorandum on September 9, 2003 Doc # 44), and plaintiff filed an additional opposing memorandum on September 11, 2003 (Doc # 46).
The court finds this motion appropriate for decision without oral argument. See Civ LR 7-1(b). Thus, the hearing scheduled for September 25, 2003, at 2:00 pm is VACATED. Because plaintiff has not shown that any genuine issues of material fact are in dispute, the court GRANTS defendant's motion for summary judgment.
I
Plaintiff Christina Petteruti, proceeding in pro per, brings this action under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346, for damages she allegedly sustained as a result of medical services she received at the David Grant Medical Center (DGMC), a United States medical facility in Travis, California. First Sum Jud Ord 1:25-2:1. Plaintiff is originally from Korea and came to the United States in 1962. Decl of Patricia Benton ¶ 3, Deposition of Christina L. Petteruti (Petteruti Depo) 8:23-9:7. Plaintiff's deceased husband was a member of the United States Army. Id at 6:12-24. As such, plaintiff received health benefits from the Army-and received treatment through government hospitals. Id at 6:25-7:1. In August 1991, plaintiff underwent a hepatitis screening at DGMC. Decl of Lue Ann Hunter re Def Mot Sum Judg (Hunter Decl 1) ¶ 2, Doc 66. At that screening, plaintiff tested positive for the hepatitis B core antibody. Id.
In 1994, as part of her application for employment with a child care center, plaintiff underwent a physical at DGMC. Petteruti Depo 10:23-11:2. As part of her physical, plaintiff signed a release form authorizing DGMC to administer a series of three hepatitis B vaccination shots. Id at 23:13-27:12 and Exh B. She received her first vaccination shot in June 1994. Id at 14:4-23. In connection with the first vaccination, plaintiff was tested for hepatitis B, and this time her results were negative. See Hunter Decl 1 ¶ 2, Doc 78. Plaintiff claims that after this first shot, she began to feel ill, and that her friends believed something was wrong with her. Petteruti Depo 13:3-8. Plaintiff received her next shot during the following year. Id at 13:12-16.
Plaintiff received her last vaccination shot in the fall of 1995. See id; Hunter Decl 1 ¶ 2, Doc 89. Laboratory results from that time show that plaintiff again tested positive for hepatitis B. Hunter Decl 1 ¶ 2, Docs 89, 95. Plaintiff also alleges that she knew something was wrong and felt ill at that time. Petteruti Depo 13:9-11. She did not understand why she had tested positive; she also maintains that she had not engaged in any behavior, such as sexual behavior or drug use, that would put her at risk for contracting hepatitis B. Id at 14:12-15, 16:1-3. Plaintiff thus sought an explanation for her illness from several different doctors at DGMC, but she alleges that the doctors all — provided her with different responses. Pl First Am Compl 3:7-17. In May 1996, plaintiff told Dr David Davis at DGMC that she believed she had contracted the virus from her immunization shots". Petteruti "Depo, Exh C. Based on her suspicions about her infection, plaintiff mistrusted the DGMC doctors, and she sought verification for her hepatitis results from hospitals at Stanford University and the University of California, San Francisco (UCSF). Both of those tests also yielded positive results. Petteruti Depo at 14:24-15:14.
Plaintiff continued to seek an explanation of her medical condition from DGMC medical personnel. She contends that the doctors at DGMC continually told her that they were not responsible for her condition. Pl Opp 4:6-7. Eventually, in July 1996, she received a letter from Colonel Terrence O'Neil, Chief of Medical Staff at DGMC. Petteruti Depo at 16:25-18:2 Exh A. The letter stated in relevant part:
Your November 1995 blood tests showed that you are immune to Hepatitis B. You apparently have had Hepatitis B exposure with a mild case likely in the past, and your body's immune system overcame it. The 'positive' Hepatitis B Surface and Core Antibody tests indicate your immunity in November 1995 * * *. When your blood was tested again in April 1996, you still had the 'positive' — antibody to Hepatitis B Core Antigen, indicating once again that you have had Hepatitis B at one time in the past. However, on the April tests, your Antibody to Hepatitis B Surface Antigen had apparently fallen below the limits of 'positive' for the test. This combination of tests still indicates that you are immune to Hepatitis B. You are not a 'hepatitis carrier", nor can you catch Hepatitis B again. If you ever had the Hepatitis vaccine, it would only transiently boost your immunity, which may have been the case in November 1995, if you had a vaccine shot anytime prior to or around that time. The fact that the "Liver Panel" done in April showed no evidence of liver cell inflammation further strengthens the evidence that you do not have active Hepatitis B.
Id at Exh A.
From September 1996 through October 1997, plaintiff had multiple appointments with Dr Gregory Melcher of DGMC. Decl of Lue Ann Hunter re Def Reply Memo (Hunter Decl 2) ¶ 3, Docs 201, 202, 204, 205, 207, 222, 229, 232. As early as September 1996, Dr Melcher attempted to explain plaintiff's illness to her, id at ¶ 3, Docs 201, 202; her medical records show that he reported substantially the same information to her during her 1997 visits as during her 1996 visits. Id at ¶ 3, Doc 222. She, however, did not trust this information and eventually began to do her own research about hepatitis B. Pl Opp 5:16-24.
On February 18, 1999, plaintiff filed a claim with the Department of the Air Force, alleging that she had contracted the hepatitis B virus in June 1994 from the vaccination administered by DGMC. Decl Mark Commerford re Def Sum Judg Mot (Commerford Decl) ¶ 3, Exh A. She filed an amended claim on March 30, 1999. Id at ¶ 4, Exh B. Later, on September 7, 2000, she filed a complaint alleging medical malpractice in federal district court (Doc # 1).
Defendant now moves for summary judgment on two grounds. First, defendant asserts that it is entitled to summary judgment because the applicable statute of limitations had run prior to plaintiff's filing her administrative claim with the Department of Air Force. Def Mot Sum Judg 1:15-17. Second, defendant asserts that it is entitled to summary judgment because plaintiff cannot establish that defendant proximately caused her injuries. Id at 1:18-21.
II
In reviewing a summary judgment motion, the court must determine whether genuine issues of material fact exist, resolving any doubt in favor of the party opposing the motion. "[S]ummary judgment will not lie if the dispute about a material fact is 'genuine,' that is if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v Liberty Lobby, 477 U.S. 242, 248 (1986). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id. And the burden of establishing the absence of a genuine issue of material fact lies with the moving party. Celotex Corp v Catrett, 477 U.S. 317, 322-23 (1986). Summary judgment is granted only if the moving party is entitled to judgment as a matter of law. FRCP 56(c).
The nonmoving party may not simply rely on the pleadings, however, but must produce significant probative evidence supporting its claim that a genuine issue of material fact exists. TW Elec Serv v Pacific Elec Contractors Assn, 809 F.2d 626, 630 (9th Cir 1987). The evidence presented by the nonmoving party "is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson, 477 US at 255. "[T]he judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Id at 249.
Defendant contends that it does not bear the burden of proving either that plaintiff's claims are time-barred by the statute of limitations, or that defendant did not proximately cause plaintiff's injury. See Def Mot Sum Judg 4:27-5:5 ("'Because the defendant does not bear the burden of proof at trial, the defendant need only point to the insufficiency of the plaintiff's evidence to shift the burden to the plaintiff to raise genuine issues of fact as to each claim by substantive evidence'" (quoting Cabo Distrib Co, Inc v Brady, 821 F. Supp. 601, 607 (ND Cal. 1992))). Defendant is only partially correct.
Plaintiff bears the burden of proving that defendant proximately caused her alleged injury, because she would bear that burden at trial. As the court recognized in the first summary judgment order, however, the running of the statute of limitations is an affirmative defense. FRCP 8(c). A defendant raising the statute of limitations as an affirmative defense has the burden of proving the action is time-barred.California Sansome Co v US Gypsum, 55 F.3d 1402, 1406 (9th Cir 1995).
The court must also address another preliminary issue regarding the statute of limitations defense. As the court noted last time, defendant did not assert the statute of limitations in its answer to plaintiff's complaint. See Ans (Doc # 8). Since the statute of limitations is an affirmative defense, it must be raised in the initial pleading tendered by the defendant. FRCP 8(c); United States Postal Serv v American Postal Workers Union, 893 F.2d 1117, 1122 (9th Cir), cert denied, 498 U.S. 820 (1990). Without a showing of prejudice by the plaintiff, however, "an affirmative defense may be raised for the first time at summary judgment." Camarillo v McCarthy, 998 F.2d 638, 639 (9th Cir 1993). In her opposition to the first summary judgment motion, plaintiff did not: claim that she was prejudiced by defendant's failure to plead the statute of limitations defense, nor does she do so now. Accordingly, just as the court recognized in its first summary judgment order, the defense has not been waived. Id.
The court now turns to defendant's two grounds for moving for summary judgment.
III
First, defendant contends that it is entitled to summary judgment because plaintiff failed to comply with the statute of limitations for the FTCA. The United States is "immune from suit save as it consents to be sued * * *." United States v Mitchell, 445 U.S. 535, 538 (1980). The FTCA waives sovereign immunity for certain acts of negligence committed by federal employees. 28 U.S.C. § 1346(b). Under the FTCA, however, a tort claim against the federal government must be presented to the appropriate federal agency "within two years after such claim accrues." 28 U.S.C. § 2401(b); Herrera-Diaz v United States Dept of Navy, 845 F.2d 1534, 1536 (9th Cir 1988). Failure to make a timely presentation of the claim is a jurisdictional defect.Landreth v United States 850 F.2d 532, 533 (9th Cir 1988), cert denied, 488 U.S. 1042 (1989); Augustine v United States, 704 F.2d 1074, 1077 (1983). In medical malpractice actions under the FTCA, a claim does not accrue until the plaintiff discovers both the injury and its cause. Herrera-Diaz, 845 F.2d at 1536; Landreth, 850 F.2d at 533; see also United States v Kubrick, 444 U.S. 111, 120 (1979). An objective standard applies in the Ninth Circuit; the action accrues when the "'plaintiff has discovered, or in the exercise of reasonable diligence should have discovered, both his injury and its cause.'" Herrera-Diaz, 845 F.2d at 1537 (quoting Davis v United States, 642 F.2d 328, 331 (9th Cir 1981), cert denied, 455 U.S. 919 (1982)).When the injury involves an affirmative act, such as the administration of treatment, the existence of the injury will generally be obvious. See Augustine, 704 F.2d at 1078. Thus, the statute of limitations will begin to run immediately on plaintiff's discovery of the injury's cause, or at the point she reasonably should have discovered its cause. See id. Discovery of the cause, however, does not necessarily include knowledge of negligence or knowledge of who is responsible for the injury. Kubrick, 444 US at 122 ("We are unconvinced that for statute of limitations purposes a plaintiff's ignorance of his legal rights and his ignorance of the fact of his injury or its cause should receive identical treatment."); Dyniewicz v United States, 742 F.2d 484, 486 (9th Cir 1984)("Discovery of the cause of one's injury, however, does not mean knowing who is responsible for it."). Rather, plaintiff knows the cause of her injury when she discovers its "immediate physical cause," or at the point she reasonably should have discovered its immediate physical cause.Dyniewicz, 742 F.2d at 486; see also Gibson v United States, 781 F.2d 1334, 1344 (9th Cir 1986). At that point, the statute of limitations begins to run. See Herrera-Diaz, 845 F.2d at 1537.
The cause of action will not accrue when, "plaintiff has relied on statements of medical professionals with respect to his or her injuries and their probable causes." Winter v United States, 244 F.3d 1088, 1090 (9th Cir 2001). This is because the — "assurances [of medical professionals] may be reasonably relied on by a patient."Raddatz v United States, 750 F.2d 791, 796 (9th Cir 1984). In other words, the plaintiff cannot reasonably be expected to know the cause of her injury if her doctor has given her information to the contrary and she relies on such misinformation. See Winter, 244 F.3d at 1091; Rosales v United States, 824 F.2d 799, 804 (9th Cir 1987).
Defendant contends that plaintiff discovered her injury as early as June 1994, when she became sick after the first administration of the hepatitis B vaccine. Def Mot Sum Judg 8:1-2. Additionally, defendant points to the facts that plaintiff knew in 1995 that she had tested positive for hepatitis B and that she told Dr Davis in May 1996 that she believed she had contracted it from her immunizations. Id at 8:3-4, 8:11-12. Plaintiff does not dispute these facts. According to defendant, plaintiff discovered her injury no later than 1995 and knew of its purported cause no later than May 1996.
Defendant also presents the letter sent to plaintiff on July 18, 1996, by Colonel O'Neil (Petteruti Depo, Exh A) to demonstrate that plaintiff had knowledge of both her injury and its alleged cause no later than July of 1996. Plaintiff likewise relies on this letter in support of her contention that the cause of action did not accrue outside the statutory period. Pl Opp 4:23-5:2.
Colonel O'Neil essentially states that the hepatitis B vaccination that plaintiff received in November 1995 caused her no injury. Petteruti Depo, Exh A. Specifically, he wrote:
If you ever had the Hepatitis vaccine, it would only transiently boost your immunity, which may have been the case in November 1995 * * *. The fact that the "Liver Panel-' done in April showed no evidence of liver cell inflammation further strengthens the evidence that you do not have active Hepatitis B.
Id (emphasis in original). Accordingly, the evidence in the record suggests that plaintiff did not suffer any injury from the vaccination. If that were the case, of course, plaintiff likewise would have no claim under the FTCA.
In any event, the court concludes that the letter from Colonel O'Neil demonstrates that plaintiff believed at the time of the letter that she was injured by the vaccination. Clearly, Colonel O'Neil drafted the letter in response to plaintiff's inquiries regarding the injury she believed she had and its cause. Plaintiff could have discovered whether her injury was real at that time through the exercise of reasonable diligence.
Plaintiff contends that her cause of action did not accrue until after her October 1997 consultation with Dr Melcher. It was only then that plaintiff began to conduct her own research into the hepatitis B virus. Pl Opp 5:5-25. Essentially, plaintiff claims that before her October 1997 consultation, she had reasonably relied to her detriment on the statements of the DGMC medical personnel that they had not caused her injury; thus, despite her belief that DGMC had caused her injury, she should not be held responsible for discovering its alleged cause until she began her own research. As such, under Winter, her cause of action would not accrue until late 1997.
The undisputed facts, however, do not afford this interpretation, and plaintiff does not present any further evidence to raise a disputed question. Plaintiff told Dr Davis in May 1996 that she believed her alleged injury was the result of the immunization shots administered by DGMC. Def Mot Sum Judg 8:11-12; Petteruti Depo, Exh C. Additionally, plaintiff never relied on anything that the DGMC medical staff told her. Indeed, plaintiff repeatedly has asserted that she did not believe the DGMC doctors' statements denying responsibility. Petteruti Depo 14:24-15:1; Pl Opp 5:5-27. In spite of the doctors' statements, plaintiff had outside medical centers verify her test results; and she continued to contact DGMC personnel about her perceived connection between her purported injury and the vaccination she had received. Petteruti Depo 14:24-15:14; Pl Opp 4:6-7. Long before plaintiff began her own research in the fall of 1997, plaintiff indisputably believed the cause of her injury to be the immunization administered by DGMC. As noted above, Colonel O'Neil's July 1996 letter also indicates that she contacted him on the basis of this belief. Accordingly, under the Ninth Circuit's objective standard, the court concludes that plaintiff's claim accrued no later than July 1996, the date of the O'Neil letter.
Plaintiff did not file an administrative claim under-the FTCA until February 18, 1999. Commerford Decl ¶ 3, Exh A. By that time, the statute of limitations had run seven months earlier, in July 1998. 28 U.S.C. § 2401(b). Thus, defendant has demonstrated that plaintiff's claim accrued more than two years before she filed her administrative claim, and plaintiff fails to point to evidence indicating otherwise. Accordingly, defendant's motion for summary judgment is GRANTED on the grounds that the statute of limitations — had run.
VI
Second, defendant also contends that it is entitled to summary judgment because plaintiff cannot point to any evidence that defendant proximately caused her injuries; thus, she cannot sustain a professional negligence claim against defendant. California law provides four elements that plaintiff must prove to make a successful claim of medical malpractice: "'(1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional's negligence.'" Hanson v Grode, 76 Cal App. 4th 601, 606 (1999) (quoting Budd v Nixen, 6 Cal.3d 195, 200 (1971)). The third element of professional negligence, proximate causation, contains two basic parts. First, plaintiff must prove causation in fact, which means that she must present evidence that the defendant's negligent conduct was a "substantial factor" in bringing about her injury. Jackson v Ryder Truck Rental, 16 Cal App. 4th 1830, 1847 (1993); see Mitchell v Gonzales, 54 Cal.3d 1041, 1052-54 (1991) (affirming that the substantial factor test is the superior way to characterize the causation in fact inquiry). Second, proximate cause also involves a normative, policy-related analysis that "asks the larger, more abstract question: should the defendant be held responsible for negligently causing the plaintiff's injury?"Jackson, 16 Cal App. 4th at 1847 (internal citations omitted). The former is generally a question of fact given to the jury, while the latter is question of law for the court. See Hoyem v Manhattan Beach City School District, 22 Cal.3d 508, 520 n5 (stating that actual causation is a factual issue); Evan F v Hughson United Methodist Church, 8 Cal App. 4th 828, 835 (1992) (noting that the normative analysis is primarily a question of law).
Defendant does not address the second, normative component of proximate causation. Rather, defendant simply argues that plaintiff cannot prove that defendant was the actual cause in fact of her alleged injury. See Def Mot Sum Judg 10:26-11:14. Plaintiff has the burden of proving that "reasonable men could conclude that it is more probable [than not] that the defendant's conduct was a cause [of the injury] * * *." Valdez v. J D Diffenbaugh Co. 51 Cal App.3d 494, 509 (1975). Plaintiff also must establish actual causation through expert testimony. SeeHanson, 76 Cal App. at 607 ("When a defendant moves for summary judgment and supports his motion with expert declarations that his conduct fell within the community standard of care, he is entitled to summary judgment unless the plaintiff comes forward with conflicting expert evidence."); Barton v Owen, 71 Cal App.3d 484, 506-07 (1977)("Only experts can testify regarding the proximate effect of * * * actions upon the aggravation of [plaintiff's] condition * * *.").
Plaintiff has not met her burden. Plaintiff's only proof that defendant caused her alleged injury of contracting hepatitis B is that she tested positive for the disease subsequent to her vaccination for it, and that she became ill sometime after she received the vaccination. Defendant does not contest these facts but without credible medical evidence, such facts do not support plaintiff s claim.
Defendant, in contrast, has provided the court with the" expert declaration of Dr David Bansberg (Doc # 41) (Bansberg Decl), a professor of medicine at UCSF who researches infectious disease epidemiology. Bansberg Decl 1:21-23. Bansberg's testimony negates plaintiff's claim that defendant caused her to contract hepatitis B. He states that plaintiff likely had been infected perinatally with hepatitis B, which is a common condition in southeast Asia. Id at 2:3-7. Plaintiff's 1994 hepatitis vaccine likely stimulated her "immunological memory" of the perinatal infection, causing her temporarily to test positive for the disease. Id at 2:8-10. Actual infection as the result of a vaccine, Dr Bansberg opines, would require a "gross breach of outline infection control practices; specifically use of a needle contaminated by bodily fluids of a person with active hepatitis B." Dr Bansberg finds no evidence that such a breach has occurred, nor that the vaccine itself was contaminated with infectious hepatitis B. Id at 2:11-14. Thus, Dr Banzberg's opinion is that the illness plaintiff experienced shortly after the vaccine was administered was an unrelated and nonspecific viral syndrome. Id at 2:14-17. Further, Dr Banzberg does not believe plaintiff to have infectious hepatitis B. Id at 2:18-20. This testimony negates plaintiff's allegations that defendant caused her to contract hepatitis B; this testimony seems to explain why plaintiff tested positive for the disease in 1991, prior to her immunization shots in 1994 and 1995.
Plaintiff presents no evidence, expert or otherwise, that puts into issue the testimony of Dr Bansberg. Plaintiff does not present evidence that immunization shots could actually cause her to develop hepatitis B, nor does she present evidence that these shots in particular caused her to contract the disease. Moreover, plaintiff does not present any evidence that her 1991 positive "test results were caused by anything other than a previous infection such as the one described by Dr Bansberg. Based on this lack of evidence, no reasonable jury could find that it is more likely than not that defendant caused plaintiff to contract hepatitis B. Accordingly, the court GRANTS defendant's motion for summary judgment on the grounds that plaintiff presents insufficient proof of proximate causation.
V
The court is sympathetic to plaintiff's plight. No doubt her positive hepatitis test results have been confusing and upsetting, and her experience with hospitals and doctors has obviously been distressing. Plaintiff, however, simply has not presented the court with evidence that defendant caused her to contract hepatitis B. Additionally, even if plaintiff could raise an issue of causation, she has not complied with the FTCA's statute of limitations. The court has no choice but to GRANT defendant's motion for summary judgment.
The clerk is directed to close the file and terminate all pending motions.
IT IS SO ORDERED.