Jeannie Alderson et al v. Redwood Coast Medical Services, Inc.

Filing 48


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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JEANNIE ALDERSON, et al., Case No. 14-cv-03564-SI Plaintiffs, 8 v. ORDER DENYING DEFENDANT'S MOTION TO DISMISS 9 10 UNITED STATES OF AMERICA, et al., Re: Dkt. No. 36 Defendants. United States District Court Northern District of California 11 12 13 Now before the Court is defendant Susman's motion to dismiss the complaint on statute of 14 limitations grounds. After careful consideration of the parties' briefing and the arguments of 15 counsel at the hearing, the Court DENIES defendant's motion. 16 The Court finds that it is appropriate to resolve the issue of the timeliness of plaintiffs' 17 claims on a fuller factual record at summary judgment rather than on the pleadings. Plaintiffs 18 assert, inter alia, that when defendant Susman operated on plaintiff Jeannie Alderson in May 19 2012, he informed plaintiffs that the foreign object removed from her body was a wound VAC 20 sponge. Plaintiffs claim that as a result, they believed that Jeannie Alderson's injury was caused 21 by the Redwood Coast Medical Services nurses who performed home dressing changes on 22 plaintiff with the wound VAC. Plaintiffs assert that they did not have reason to believe that they 23 could bring a claim against Susman until after their federal tort claim was denied in 2014 due to 24 questions regarding the provenance of the sponge, including whether the sponge was actually a 25 surgical sponge and not a wound VAC sponge. 26 At the hearing, defense counsel argued, inter alia, that plaintiffs were on notice regarding 27 the factual basis for their claims against Susman as early as 2012 because the pathology report 28 stated that the sponge may have been a surgical sponge. These arguments raise factual questions 1 that are not suitable for resolution at this stage of litigation. The Court also notes that other 2 defendants have asserted the statute of limitations as a defense in their answers, and thus that this 3 issue will be litigated in any event. Accordingly, the Court DENIES defendant Susman's motion 4 without prejudice to renewal on a fuller factual record. 5 6 IT IS SO ORDERED. 7 8 Dated: May 20, 2015 ________________________ SUSAN ILLSTON United States District Judge 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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