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

Filing 48

ORDER DENYING DEFENDANT SUSMAN'S MOTION TO DISMISS 36 (Illston, Susan) (Filed on 5/20/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JEANNIE ALDERSON, et al.,

Case No. 14-cv-03564-SI

Plaintiffs,
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v.

ORDER DENYING DEFENDANT'S
MOTION TO DISMISS

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UNITED STATES OF AMERICA, et al.,

Re: Dkt. No. 36

Defendants.

United States District Court
Northern District of California

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Now before the Court is defendant Susman's motion to dismiss the complaint on statute of

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limitations grounds. After careful consideration of the parties' briefing and the arguments of

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counsel at the hearing, the Court DENIES defendant's motion.

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The Court finds that it is appropriate to resolve the issue of the timeliness of plaintiffs'

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claims on a fuller factual record at summary judgment rather than on the pleadings. Plaintiffs

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assert, inter alia, that when defendant Susman operated on plaintiff Jeannie Alderson in May

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2012, he informed plaintiffs that the foreign object removed from her body was a wound VAC

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sponge. Plaintiffs claim that as a result, they believed that Jeannie Alderson's injury was caused

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by the Redwood Coast Medical Services nurses who performed home dressing changes on

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plaintiff with the wound VAC. Plaintiffs assert that they did not have reason to believe that they

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could bring a claim against Susman until after their federal tort claim was denied in 2014 due to

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questions regarding the provenance of the sponge, including whether the sponge was actually a

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surgical sponge and not a wound VAC sponge.

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At the hearing, defense counsel argued, inter alia, that plaintiffs were on notice regarding

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the factual basis for their claims against Susman as early as 2012 because the pathology report

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stated that the sponge may have been a surgical sponge. These arguments raise factual questions

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that are not suitable for resolution at this stage of litigation. The Court also notes that other

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defendants have asserted the statute of limitations as a defense in their answers, and thus that this

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issue will be litigated in any event. Accordingly, the Court DENIES defendant Susman's motion

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without prejudice to renewal on a fuller factual record.

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IT IS SO ORDERED.

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Dated: May 20, 2015

________________________
SUSAN ILLSTON
United States District Judge

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United States District Court
Northern District of California

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