Grant et al v. USA et al

MOTION to Dismiss For Failure to State a Claim

W.D. La.August 19, 2016

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA ALEXANDRIA DIVISION CLIFTON GRANT JR., ET AL ) CIVIL ACTION NO. 16-0089 ) VERSUS ) JUDGE DRELL ) USA, ET AL ) ) MAGISTRATE JUDGE PEREZ- MONTES MOTION TO DISMISS NOW INTO COURT, through undersigned counsel, comes the Defendant, the United States of America and respectfully moves this Court to dismiss the loss of consortium claims of Plaintiffs Beverly Ann Levy Grant, Markita Grant, Sharrell Ne’Cole Grant, Clifton Grant, III, Ja’Nee Iberia Grant, Rondrick Lavon Grant and Ken Grant pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. Plaintiffs did not file individual administrative claims for loss of consortium within two years from the accrual of their claims, as required by the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2401(b). No administrative claims for loss of consortium have been filed to date, and it has been over three years since these claims accrued. Section 2401(b) operates as a two-year statute of limitations, and Plaintiffs’ failure to comply results in their claims being time-barred. The United States respectfully requests dismissal of all of claims asserted by Plaintiffs Beverly Ann Levy Grant, Markita Grant, Sharrell Ne’Cole Grant, Clifton Grant, III, Ja’Nee Iberia Grant, Rondrick Lavon Grant and Ken Grant against the United States pursuant to Fed.R.Civ.P. 12(b)(6). Case 1:16-cv-00089-DDD-JPM Document 26 Filed 08/19/16 Page 1 of 2 PageID #: 98 The basis for this motion is set forth in the attached Memorandum in Support and the attached exhibits. Respectfully submitted, STEPHANIE A. FINLEY United States Attorney BY: s/ Andolyn R. Johnson ANDOLYN R. JOHNSON #ky95189 Assistant United States Attorney Western District of Louisiana United States Courthouse 300 Fannin Street, Suite 3201 Shreveport, Louisiana 71101-3068 (318) 676-3610 / Fax: (318) 676-3642 andolyn.johnson@usdoj.gov CERTIFICATE OF SERVICE I certify that on August 19, 2016 a copy of the above and foregoing pleading, supporting memorandum and attached exhibits were filed electronically with the Clerk of Court using the CM/ECF system. Notice of this filing will be sent to all counsel of record by operation of the Court’s electronic filing system. By: s/Andolyn R. Johnson ANDOLYN R. JOHNSON #ky95189 Assistant United States Attorney Case 1:16-cv-00089-DDD-JPM Document 26 Filed 08/19/16 Page 2 of 2 PageID #: 99 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA ALEXANDRIA DIVISION CLIFTON GRANT JR., ET AL ) CIVIL ACTION NO. 16-0089 ) VERSUS ) JUDGE DRELL ) USA, ET AL ) ) MAGISTRATE JUDGE PEREZ- MONTES MEMORANDUM IN SUPPORT OF MOTION TO DISMISS In this medical malpractice action, Plaintiff Clifton Grant, Jr. alleges negligent medical care by the staff at the Alexandria VA Medical Center (hereinafter “VAMC”). The United States seeks dismissal of the claims filed by Clifton Grant, Jr.’s family members, Beverly Ann Levy Grant, Markita Grant, Sharrell Ne’Cole Grant, Clifton Grant, III, Ja’Nee Iberia Grant, Rondrick Lavon Grant and Ken Grant (hereinafter “Consortium Plaintiffs”), pursuant to Federal Rule of Civil Procedure 12(b)(6). They did not file administrative claims for loss of consortium within two years from the accrual of their claims, as required by the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2401(b). As a result, the United States did not have the opportunity to resolve these claims administratively, and the Consortium Plaintiffs’ claims are time-barred. I. FACTUAL BACKGROUND Plaintiffs’ claims are asserted against the United States pursuant to the limited waiver of sovereign immunity provided by the FTCA, 28 U.S.C §§ 1346(b), 2671, et seq. (Doc. 1, Complaint ¶ 1). According to Plaintiffs’ Complaint, Clifton Grant, Jr. presented to the VAMC for exploration of a mass in his abdomen on March 8, 2013. A surgeon at the VAMC, Fernando Kiok, M.D., Case 1:16-cv-00089-DDD-JPM Document 26-1 Filed 08/19/16 Page 1 of 8 PageID #: 100 2 performed an exploratory surgery, and repaired a hernia during the procedure. Following the surgery, Mr. Grant was discharged from the VAMC in stable condition. (See id. at ¶¶ 9-10). During the night of March 8, 2013, Mr. Grant presented to the emergency room of Dauterive Hospital (non-VA facility) complaining of abdominal discomfort. Mr. Grant was treated by co-defendant Frank Brinkman, M.D. and discharged home. (Id. at ¶¶ 10-12). On the morning of March 9, 2013, Mr. Grant presented to Lafayette General Medical Center with complaints of abdominal pain, and he was diagnosed with a small bowel perforation. (Id. at ¶ 13). The perforation was surgically repaired that same day. Mr. Grant alleges he required additional medical treatment for ongoing infection thereafter. (See id.). Plaintiffs allege Dr. Kiok negligently perforated Mr. Grant’s bowel during the hernia repair on March 8, 2013, causing post-operative infection and complications. (Id. at ¶ 9). According to the Complaint, Plaintiff Beverly Ann Levy Grant, as the wife of Clifton Grant, Jr., and Plaintiffs Markita Grant, Sharrell Ne’Cole Grant, Clifton Grant, III, Ja’Nee Iberia Grant, Rondrick Lavon Grant and Ken Grant, as the adult children of Clifton Grant, Jr., allege loss of consortium. (Id. at ¶¶ 21-22). On March 7, 2014, Clifton Grant, Jr. filed an administrative claim with the Department of Veteran Affairs. (Id. at ¶ 24). His SF-95 listed his injuries to include: As a result of Dr. Kiok’s substandard care or lack of skill or knowledge, Clifton Grant, Jr. has and continues to endure extreme personal pain and suffering, mental anguish and anxiety, lengthy hospitalizations, additional medical procedures, past, present, and future doctor, pharmaceutical and medical expenses, physical scarring and disability, and loss of enjoyment of life. Mr. Grant’s medical malpractice claims against Dr. Kiok may be capped at $500,000 as per Louisiana law. (SF-95, Exhibit A). Mr. Grant did not assert any claims or injuries on behalf of his wife or adult children. The Consortium Plaintiffs did not file any separate administrative claims. (Declaration of Patrick A. Keen, Exhibit B). The Department of Veteran Affairs initiated a review of Mr. Case 1:16-cv-00089-DDD-JPM Document 26-1 Filed 08/19/16 Page 2 of 8 PageID #: 101 3 Grant’s claim, and a final agency denial was issued on January 21, 2015. A request for reconsideration followed in July 2015. The United States was not put on notice that any of Mr. Grant’s family members had claims or intended to file suit. (Id.). Mr. Grant and the Consortium Plaintiffs filed a Complaint against the United States pursuant to the FTCA on January 20, 2016. II. ARGUMENT The FTCA bars tort claims against the United States if the claim is not filed with the appropriate federal agency within two years after the claim accrues. 28 U.S.C. § 2401(a); see also 28 U.S.C. § 2675. Plaintiff Clifton Grant, Jr. filed an administrative claim, but to date, the Consortium Plaintiffs have not. The two-year time limitation to file such a claim has passed. Id. Therefore, Consortium Plaintiffs are barred from pursuing their FTCA claims pursuant Fed.R.Civ.P. 12(b)(6). The United States, as sovereign, is immune from suit unless it consents to be sued. “Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit.” F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994) (citing Loeffler v. Frank, 486 U.S. 549, 554 (1988); Federal Housing Administration v. Burr, 309 U.S. 242, 244 (1940)). The FTCA provides a limited waiver of sovereign immunity for plaintiffs to pursue tort claims against the United States. The FTCA also sets forth specific prerequisites for filing an FTCA claim. In particular, the time limit to bring a tort claim against the United States is set forth in 28 U.S.C. § 2401(b), which states: A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented. (emphasis added). Case 1:16-cv-00089-DDD-JPM Document 26-1 Filed 08/19/16 Page 3 of 8 PageID #: 102 4 The Consortium Plaintiffs did not present their claims to the Department of Veteran Affairs within two years after their claims accrued. In fact, over three years have lapsed since the accrual of their consortium claims, and still no administrative claims have been filed. A. The Consortium Plaintiffs failed to file individual administrative claims as required by the FTCA. It is well-established that the FTCA requires each individual plaintiff to properly exhaust his or her claims, including loss of consortium claimants. “Each person seeking damages under the FTCA must file an individual claim with the appropriate administrative agency.” Poynter v. United States, 55 F.Supp.2d 558 (W.D. La. 1999, opinion by J.Walter) (citing Bryant v. United States, 1992 WL 67811 (E.D.La.1992)). In Poynter, the patient-wife filed an SF-95 with the VA which on its face did not present any loss of consortium claims for her husband; the husband did not file any individual administrative claims. The Court held that a spouse’s failure to file an administrative claim for loss of consortium barred that claim. Id. at 564. The Court noted that even though the wife’s SF-95 form listed her husband as a witness, it did not specifically identify his separate claim for loss of consortium. Id. Failing to do so was a complete bar to recovery. Id. The Poynter Court cited Walker v. United States, 471 F.Supp. 38 (D.C. Fla. 1978), aff'd 597 F.2d 770 (5th Cir. 1979), which determined that “one spouse may not rely on the administrative claim of another spouse” to properly exhaust his or her claim under the FTCA. Id. The same has been found to apply to loss of consortium claims by children. See Green v. United States, 2003 WL 21500553, No. 02-616 (E.D. La. June 24, 2003). The only SF-95 filed in this case was on behalf of Clifton Grant, Jr., and it did not list any of his family members as having potential claims. The SF-95 did not identify loss of consortium damages. There is nothing in Mr. Grant’s administrative claim which would give notice to the United States of loss of consortium claims by his wife or adult children. Thus, the Consortium Case 1:16-cv-00089-DDD-JPM Document 26-1 Filed 08/19/16 Page 4 of 8 PageID #: 103 5 Plaintiffs did not properly exhaust their administrative claims. They cannot attempt to file administrative claims now, because it has been well over two years since their claims accrued. B. The Consortium Plaintiffs’ claims are barred by the FTCA’s time limitation in § 2401(b). The FTCA allows plaintiffs two years from the date their claims accrue to file an administrative claim. 28 U.S.C. § 2401(b). The Supreme Court defined “accrual” for purposes of 28 U.S.C. § 2401(b) in United States v. Kubrick, 444 U.S. 111, 113 (1979). The general rule under the FTCA is that a tort action accrues at the time of a plaintiff’s injury. Kubrick, 444 U.S. at 120. For FTCA medical malpractice cases, Kubrick adopted a “discovery rule” for accrual. The time starts to run when the plaintiff has the information necessary to discover “both his injury and its cause.” Id. The FTCA limitations period begins to run when the plaintiff discovers, or reasonably should discover, the injury and cause. MacMillan v. United States, 46 F.3d 377 (5th Cir. 1995) (citing Harrison v. United States, 708 F.2d 1023, 1027 (5th Cir. 1983). It is not necessary that the plaintiff perceive negligence as the cause of the injury in order for an action to accrue. Instead, the plaintiff need only have “knowledge of facts that would lead a reasonable person (a) to conclude that there was a causal connection between the treatment and injury or (b) to seek professional advice, and then with that advice, to conclude that there was a causal connection between the treatment and injury.” Id. (quoting Harrison, 708 F.2d at 1027). According to Plaintiffs’ Complaint, this case involves a surgical procedure with almost immediately recognizable complications. The Consortium Plaintiffs’ claims against the VAMC most likely accrued on March 9, 2013, the day after the procedure. Plaintiffs’ Complaint alleges that Dr. Kiok caused a perforated bowel during Mr. Grant’s March 8th surgery, and the injuries manifested that same night, with the diagnosis of bowel perforation the following day. As of March Case 1:16-cv-00089-DDD-JPM Document 26-1 Filed 08/19/16 Page 5 of 8 PageID #: 104 6 9, 2013, all Plaintiffs should have been aware of the alleged injury and cause, based upon the information presented in the Complaint. Even if the Consortium Plaintiffs discovered their loss of consortium injuries at some later point in Mr. Grant’s hospitalization, or after his discharge home, their claims would still be time- barred. In fact, there are no plausible facts which would permit accrual or “discovery” of their claims within two years preceding an administrative claim (which has still not been filed). It has been over three years since the procedure at issue. If the Consortium Plaintiffs argue that their claims accrued in the months following the March 2013 procedure, the claims still cannot be timely exhausted with the appropriate administrative agency. Moreover, Mr. Grant had sufficient knowledge of his injury and its cause to timely file his own administrative claims with the VA. Any reasonable claimant should have also been aware of his or her loss of consortium claim when Mr. Grant filed his own administrative claim for damages. C. The Consortium Plaintiffs’ claims should be dismissed with prejudice pursuant to Fed.R.Civ.P. 12(b)(6). Historically, a plaintiff’s failure to timely exhaust administrative remedies was a jurisdictional issue, subject to dismissal pursuant to Fed.R.Civ.P. 12(b)(1). However, a recent Supreme Court case deemed the FTCA’s time limitations akin to statutes of limitations, making dismissal pursuant to Fed.R.Civ.P. 12(b)(6) appropriate. See U.S. v. Kwai Fun Wong, 135 S.Ct. 1625 (2015). In Wong, the Court addressed two cases in which plaintiffs missed the deadline to file their FTCA claims and sought equitable tolling. The Court determined the FTCA’s two-year time limitation is akin to a statute of limitations – a bar to recovery but not jurisdictional in nature. Id. Thus, Wong held that the appropriate basis for dismissal for missing the two-year FTCA time limit is Fed.R.Civ.P. 12(b)(6), not 12(b)(1) on jurisdictional grounds. Id. In following with Wong, Case 1:16-cv-00089-DDD-JPM Document 26-1 Filed 08/19/16 Page 6 of 8 PageID #: 105 7 Defendant seeks dismissal of the Consortium Plaintiffs’ claims pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted.1 The standard for dismissal pursuant to 12(b)(6) is whether the plaintiff has “alleged enough facts to state a claim to relief that is plausible on its face or has failed to raise its right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)”. Raj v. La. State Univ., 714 F.3d 322, 330 (5th Cir.2013) (quoting Bass v. Stryker Corp., 669 F.3d 501, 506 (5th Cir.2012)). The Consortium Plaintiffs’ have not presented plausible claims, because their claims were not filed with the appropriate agency within the requisite two-year time limitation required by the FTCA. This deficiency is fatal to Plaintiffs’ loss of consortium claims. III. CONCLUSION Assuming all facts most favorably to the Consortium Plaintiffs, their claims are time- barred. 28 U.S.C. § 2401(b). According to the facts alleged in their Complaint, the Consortium Plaintiffs claims accrued at the latest in May of 2013. No administrative claims have been filed to date, and it has been over three years since the Consortium Plaintiffs’ claims accrued. They cannot 1 Because the Consortium Plaintiffs failed at any point to present their administrative claims to the VA pursuant to 28 U.S.C § 2675(a), precedent would suggest that their claims also require dismissal for lack of subject matter jurisdiction notwithstanding the Wong opinion. See Flory v. United States, 138 F.3d 157, 158 (5th Cir. 1998) (holding that the presentment requirement in 28 U.S.C. § 2675(a) is jurisdictional); McNeil v. United States, 508 U.S. 106 (1993); see also Barber v. United States, 2016 WL 1253819, No. 15–60614 (5th Cir., Mar. 30, 2016) (affirming, in an unpublished decision following Wong, a district court’s dismissal of an FTCA action under Rule 12(b)(1) where a plaintiff failed to show that he presented an administrative tort claim to the appropriate federal agency). In Wong, the claimants presented their claims to the proper agency in accordance with § 2675(a), but failed to do so in a timely manner pursuant to § 2401(b). In this case, the Consortium Plaintiffs did not present their claims to the agency, and any attempt to do so now would be untimely. In short, Wong did not address the presentment requirement of the FTCA, and it presumably remains a jurisdictional prerequisite. Defendant recognizes that courts are ordinarily tasked with considering jurisdictional issues prior to ruling on the merits of claims. See Ramming v. United States, 281 F.3d 158, 161 (2001). Defendant seeks dismissal pursuant to Rule 12(b)(6) because the FTCA two-year time limitation ultimately bars the Consortium Plaintiffs claims, even if they attempted to properly present their claims to the VA now. Defendant defers to the Court if it prefers dismissal pursuant to Rule 12(b)(1). Either is conceivably appropriate based upon current precedent. Case 1:16-cv-00089-DDD-JPM Document 26-1 Filed 08/19/16 Page 7 of 8 PageID #: 106 8 satisfy the two-year time limitation required by the FTCA, and dismissal with prejudice is warranted. Respectfully submitted, STEPHANIE A. FINLEY United States Attorney BY: s/ Andolyn R. Johnson ANDOLYN R. JOHNSON #ky95189 Assistant United States Attorney Western District of Louisiana United States Courthouse 300 Fannin Street, Suite 3201 Shreveport, Louisiana 71101-3068 (318) 676-3610 / Fax: (318) 676-3642 andolyn.johnson@usdoj.gov Case 1:16-cv-00089-DDD-JPM Document 26-1 Filed 08/19/16 Page 8 of 8 PageID #: 107 CLAIM FOR DAIIIAGE, INJURY, OR DEATH INSTRUCTTONS: ptease read car€tuly th6 insirucdons on rhe rsvcrso sire and supply informalion requEeted on both sUes of lhts brm. Use addilional sheet(s) il necessary. Sss rsverse sid€ for additional lnstuctions. FORMAPPROVED oiiB No. 1105-0q)8 1 . Subml to Approp.tato t*""1 Agencr Office of General Counsel, Region 14 Andree A. Boudreaux 6900 Almeda Road Houston, TX 77030 2. Narllo, address of chlrlant and daimanfs porsonal t3p'es.nts[vs f any. (56€ in3h,,ctims on renr.rss). Nun$er, Sbe€|. Ciiy, Stab and Ap ede. Clifion Grant, Jr. J. E. Culbns, Jr. 966 St. Peter Steet Walters, Papillion, Thomas, Cullens, Jeanerette, l.A 70544 12345 Perkins Rd., Bldg. One Baton Rouge, LA 70810 3. TYPE OF AIPLOYMEIIII ! ururanv fl crvrr-r,nn r, OA]E OF BIRTH xt1a1958 5.IIARTTAI. STAruS Married 6, DATE AND DAY OF ACCIOE}IT 4310812013 Fridav 7. nME (Alr. OR P.M.) Aoorox. 1:00 o.m. 8. BAslsoFctAlM(sbtoindehilth€knownhctsando:rdJmsl@aaeaur nencaand lh6 csusa her6of. Ura addilbnd pagas if nec*sary). On March 8, 2013, Fernando C. Kiok, M.D. ("Dr. KioK') performed surgery upon Clifton Grant at the Department of Veterans fffairs Medical Center, Alexandria, LA (\/A Hospital") to repair a hernii. Ouring this incisional hemia repair surgery, because of Dt' KioKs lack of skill or knowledge and/or because of his substandard conduct, Ctifion Grant, Jr. sustained perinanent person-al injuries, including but not limited to a perforated or otheuise damaged bowel, which caused him to need emergency life-saving, medical treatment. 9. PROPERIY DAUAGE }IAME At'tD ADORESS OF Ol,lrt{ER, tF OTHER THAN ClAl[itANT (Number, Sreettity, star. ano zip cooer. BRIEFLY OESCRIBE THE PRoPERTv, MTURE AND EXTENT oF rHE oAMAGE AND THE LocATtoN oF wxene rni paopeary l/ny BE rHspecreo. (See inslrucllono on ,evem€ side). N/A PERSOilAL INJURYA'WOIiIGFUL DEATH10. srATE THE NATURE AND EXTENT oF EACH INJURY oR cAUsE oF DEATH. wHrcH FoRMs THE BAsls or ixe ct,rlla. r orHER TIIAN ct tMAHr, sreie rse xaue . OF THE INJURED PERSON OR OECEDENT. As a result of Dr. Kiok's substandard care or lack of skill or knowledge, Clifton Grant, Jr. has and continues to endure el*reme personal pain and suffering, menlal anguish and anxiety, lengthy hospitalizations, additional medical procedures, past, present, and future doctor, pharmaceutical and rredicalexpenses, physical scarring and disability, and loss of enjgyment of life. Mr. Qglt's medical malpractice claims against Dr. Kiok may be capped at $50b,000 as perLouisiana taw. fr) $nilEssEs1' l{A,t{E ADDRESS (ilur$er, Street City, Stato, and Zb Code) 12. (Seo Inrtructlons on r6vece). AMOUIiIT OF Cl-AlU (h dotlers) 12a. PROPERTY DAtitAGE 12b. PERSO}IAL 'NJURY 2.000,000 12c. t /ROI'IGFUL DEATH t2d. TOTAL (Failuro b specily may caus€ brteltu.! of youf rbhb). 2,o0o,oo0 (h (ttgu,ooo cea 1cERnFYTHA?IHEAMo{,NToFct.Altcol/ERsol{LYoA}tAGE8AllBlxuunresciuceo8YIl{ElllcloEtlT$oveAxffi FULL SATISFACNOil AXD FII{AL SETILETE'{T OF ITIIS CLAlll. f*z- on reverse dde). v(d 13b, PHOI"E i{UMBER OT PERSON SIGNING FORM 225-236-36fi 14. DATE OF SIGMTURE 0310712014 "*"ffiSIs[ffiffi*n ThE dairnanr lE fiabre b the united statcs Goycrnrnenl for a civil penatty of not l€ss thao $5,000-and not more tlran 010,000, plus 3 times the arrount of dimages susAtned by lhe Government (Se€ gl U.S.C. Oza). CRITII{AL PEiIALTY FOR PRESEifiING FRAUOULEHT CI.AIT OR TIAXOIG FALSE 9TATEMEilTS Fine, i.nprlsonment, orbofi. (See tS U.S.C.2E7, 1001.) Authorized for Local Reproduction NSil Previous Edition is not Usable 95-109 r FoRii 35 (REV.2A007) ) BY DEPT. OF JUSTICEIf PRESCRIBEI28 CFR 14.2 Case 1:16-cv-00089-DDD-JPM Document 26-2 Filed 08/19/16 Page 1 of 2 PageID #: 108 lilstRANcEcovER GE '15. Do you catrY .ccident lnBuranco? fl Ya! It yca, give oame ard ad