Cyrus-Barker et al v. Optimus Health Care Inc. et al

Filing 89

RULING: The 80 Motion for Reconsideration, or in the Alternative Articulation, is DENIED with respect to the request for reconsideration, and GRANTED to the extent it seeks further articulation on the issue of accrual. See attached ruling. Signed by Judge Holly B. Fitzsimmons on 5/5/2014. (Katz, Samantha)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
MMC PPA,
VONETTA CYRUS-BARKER
JONATHAN MORA-ALPIZAR, AND
VONETTA CYRUS-BARKER, INDIV.
v.
BRIDGEPORT HOSPITAL AND
UNITED STATES OF AMERICA

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CIV. NO. 3:11CV1733(HBF)

RULING ON PLAINTIFFS’ MOTION FOR RECONSIDERATION,
OR IN THE ALTERNATIVE, ARTICULATION [DOC. #80]
Plaintiffs MMC ppa Vonetta Cyrus-Barker, and Jonathan MoraAlpizar and Vonetta Cyrus-Barker, Individually,1 assert claims of
medical malpractice against defendants Optimus HealthCare, Inc.,
Brenda Kulikowski and Bridgeport Hospital arising out of the
prenatal care and delivery of Vonetta Cyrus-Barker’s daughter.
The United States of America was substituted for defendants
Optimus Health Care, a community health center in Bridgeport,
and Brenda Kulikowski, a midwife at Optimus.

On September 18,

2013, the Court granted defendant United States of America’s
motion to dismiss for lack of subject matter jurisdiction
pursuant to Rule 12(b)(1). [Doc. #78]. Plaintiffs now seek
reconsideration, or in the alternative, articulation of that
decision as it pertains to the issue of accrual. [Doc. #80].
Defendant opposes plaintiffs’ motion. [Doc. #88].

For the

reasons stated below, plaintiffs’ motion for reconsideration, or
in the alternative, articulation [Doc. #80] is DENIED with
1

Vonetta Cyrus-Barker brings this action on behalf of her minor child, MMC,
and Vonetta and Jonathan Mora-Alpizar, the child’s parents, assert individual
claims as well.

respect to the request for reconsideration, and GRANTED to the
extent it seeks further articulation on the issue of accrual.
I.

BACKGROUND
The Court presumes familiarity with the factual background

of this matter, which is set forth in its ruling on defendant’s
motion to dismiss. [Doc. #78, 2-4].

However, in light of the

arguments raised in the motion for reconsideration, the Court
will briefly address the background of the ruling granting
dismissal.
On May 15, 2013, defendant United States of America moved
to dismiss the complaint for lack of subject matter
jurisdiction. [Doc. #66].

Defendant2 argued that the Court

lacked jurisdiction because plaintiffs failed to file their
administrative claim with the appropriate federal agency, the
Department of Health and Human Services, within the two (2) year
statute of limitations required by the Federal Torts Claims Act
(“FTCA”).

Pertinent to our discussion below, plaintiffs made

several arguments to sustain the Court’s jurisdiction, including
that their claims are not untimely under the FTCA’s diligence
discovery rule of accrual.3 [Doc. #74].

2

Unless stated otherwise, all references to defendant in this ruling refer to
the defendant United States of America.
3
Plaintiffs also argued that their claim was constructively filed on December
15, 2010 when Optimus was served with two SF-95 forms. Although the
substance of plaintiffs’ motion for reconsideration only addresses the issue
of accrual, by way of footnote plaintiffs also request that the Court
reconsider each of the arguments opposing the motion to dismiss. [Doc. #80, 2
n.1]. The Court declines this request because plaintiffs have failed to
point to any specific law or fact that would change the Court’s conclusion
with respect to these arguments. See Silva v. Town of Monroe, No. 071246(TLM), 2010 WL 1537901, at *2 (D. Conn. Apr. 16, 2010) (denying motion
for reconsideration where moving party failed to identify any law or fact
“that might reasonably be expected to alter the conclusions that [the Judge]
reached in her [] [d]ecision.”).
2

In granting the motion to dismiss, the Court found that
plaintiffs’ claims against defendant accrued on June 11, 2009,
namely the date on which Vonetta Cyrus-Barker (“Cyrus-Barker”)
learned the basic facts of her daughter’s injury from her
pediatrician, Dr. Leonida. Because plaintiffs filed their claims
with the Department of Health and Human Services on August 19,
2011, a little over two months after the expiration of the
statute of limitations applicable to FTCA claims, the Court
dismissed plaintiffs’ claims against defendant.
II.

STANDARD OF REVIEW
The Second Circuit has held that “[t]he standard for

granting [a motion for reconsideration] is strict, and
reconsideration will generally be denied unless the moving party
can point to controlling decisions or data that the court
overlooked – matters, in other words, that might reasonably be
expected to alter the conclusion reached by the court.” Shrader
v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995) (citations
omitted).

“There are three grounds that justify granting a

motion for reconsideration: (1) an intervening change in
controlling law; (2) the availability of newly discovered
evidence; and (3) the need to correct clear error or prevent
manifest injustice.” Whitserve, LLC v. GoDaddy.com, Inc., 3:11CV-948 JCH, 2013 WL 1442449, at *1 (D. Conn. Apr. 9, 2013)
(citing Virgin Atl. Airways, Ltd. v. Nat’l Mediation Bd., 956
F.2d 1245, 1255 (2d Cir. 1992)).

“That the court overlooked

controlling law or material facts may also entitle a party to
succeed on a motion to reconsider.” Whitserve, 2013 WL 1442449,
3

at *1 (citing Eisemann v. Greene, 204 F.3d 393, 395 n. 2 (2d
Cir. 2000)).

However, it is not “appropriate to use a motion to

reconsider solely to re-litigate an issue already decided.”
Conn. Com’r of Labor v. Chubb Grp. of Ins. Companies,
3:11CV00997 AWT, 2013 WL 836633, at *1 (D. Conn. Mar. 6, 2013)
(quoting SPGGC, Inc. v. Blumenthal, 408 F. Supp. 2d 87, 91 (D.
Conn. 2006)); see also Lego A/S v. Best-Lock Const. Toys, Inc.,
No. 3:11cv1586 CSH, 2013 WL 1611462, at *2 (D. Conn. Apr. 15,
2013) (citation omitted) (“A motion for reconsideration is not
simply a second bite at the apple for a party dissatisfied with
a court’s ruling…”).
III. DISCUSSION
In this instance, plaintiffs seek reconsideration to
correct clear error and prevent manifest injustice.

Plaintiffs

argue that in determining the claims’ accrual date against
defendant, the Court erroneously attributed the acts and
omissions of Bridgeport Hospital to Optimus.

Specifically,

plaintiffs argue that, “the Court failed to draw a distinction
between the two defendants and, more importantly, between the
pre-natal care, which was provided by Optimus, and the care at
delivery, which was provided by Bridgeport Hospital.” [Doc. #80,
1]. Therefore, plaintiffs maintain their argument that the
earliest date plaintiffs’ claims could have accrued against
Optimus is October 7, 20094, and therefore, plaintiffs’ claims
against defendant are not barred by the FTCA’s statute of
limitations. Defendant argues that the challenged ruling
4

At a follow-up visit on this date, Dr. Leonida suggested that Cyrus-Barker
contact a lawyer in light of MMC’s injuries.
4

reflects the distinction between Optimus and Bridgeport Hospital
and that the Court correctly determined the accrual date of June
11, 2009.
As an initial matter, the Court did not “overlook[] the
distinction between Bridgeport Hospital and Optimus and between
the separate and independent claims made against each.” [Doc.
#80, 7].

The Court’s ruling reflects the different roles played

by Optimus and Bridgeport Hospital in the alleged medical
malpractice.

For example, in setting forth the applicable

background, the Court notes that Cyrus-Barker received prenatal
care at Optimus and, thereafter, delivered her baby at
Bridgeport Hospital. [Doc. #78, 2].

The Court also carefully

reviewed the parties’ briefs, which extensively detailed the
different roles of the defendants. [See, e.g., Doc. #74, 1-3].
The Court’s ruling, moreover, concludes that, “The case can
proceed against the remaining defendant Bridgeport Hospital.”
[Id. at 16].
Next, plaintiffs argue that in determining the claims’
accrual date against defendant, the Court erroneously attributed
the acts and omissions of Bridgeport Hospital to Optimus.
basis of plaintiffs’ argument is flawed.

In determining the

claims’ accrual date, the Court found that,
Cyrus-Barker became aware of the basic facts of the
injury after the first visit with her daughter’s
pediatrician, Dr. Leonida, on June 11, 2009. But see,
Valdez ex rel. Donely, 518 F.3d 173, 179 (2d Cir.
2008) (remanding to district court for further
development of record on accrual date where “nothing
in the hospital records indicate that Elon’s mother
had any understanding that there was a potential
doctor-related cause of Elon's injury”). Cyrus-Barker
5

The

said so herself at her deposition, testifying that at
that visit, Dr. Leonida explained that when babies are
overweight they can get stuck, requiring the doctors
to execute a maneuver to help deliver the baby, during
which sometimes the doctors break the shoulder. She
further testified that she learned that at times
doctors pull so hard that they injure the baby,
failing to do “the maneuver [like] they supposed to
do”. Notably, she testified that at the visit she
learned that her daughter would never recover 100% and
she realized that her daughter’s injuries occurred
during the delivery. Specifically, she testified, “So
that is the time when we like get like, like the
reality of what happened in the delivery.”
It was at this visit that Cyrus-Barker learned the
“what” and the “who” of her daughter’s injury; namely
that her daughter was permanently injured at birth by
the doctors during delivery. See Barrett, 689 F.2d at
330 (calculating date of accrual by application of
diligence-discovery rule where both the what element
of causation and the who element are present). It was
on June 11, 2009 that plaintiff’s claim against the
United States accrued.
[Doc. #80, 9-10].
Dr. Leonida’s June 11, 2009 explanation of the injury
provided notice of the “critical facts” of the iatrogenic harm.
At this visit, Cyrus-Barker acquired the “knowledge that could
lead to [] the basic facts of the injury[,]” and moreover, she
knew, or should have known, “enough of the critical facts of
injury and causation to protect [herself] by seeking legal
advice.” See Kronisch v. United States, 150 F.3d 112, 121 (2d
Cir. 1998) (emphasis added).

Indeed,

The plaintiff need not have knowledge of fault in the
legal sense for the statute to begin to run, but she
must 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 treatment and injury. It is important to note
that a plaintiff does not have to know the full extent
6

of his or her injury, nor must he know the cause of
his injury in exhaustive detail.
Mendez v. United States, 732 F. Supp. 414, 423 (S.D.N.Y. 1990)
(citations omitted; emphasis added).
Although “[a] claim does not accrue when a person has a
mere hunch, hint, suspicion, or rumor of a claim,”

“such

suspicions do give rise to a duty to inquire into the possible
existence of a claim in the exercise of due diligence.” See
Kronisch, 150 F.3d at 121 (internal citations omitted).
Therefore, the statute of limitations begins to run “when the
government cause is known or when a reasonably diligent person
(in the tort claimant’s position) reacting to any suspicious
circumstances of which he might have been aware would have
discovered the government cause – whichever comes first.” Valdez
ex rel. Donely v. U.S., 518 F.3d 173, 178 (2d Cir. 2008)(quoting
Drazen v. U.S., 762 F.2d 56, 59 (7th Cir. 1985) (Posner, J.))
(emphasis added).

“The issue of reasonable diligence is

determined by an objective standard that measures the actions of
a reasonable person in plaintiff’s position armed with the same
information.” Mendez, 732 F. Supp. at 424 (compiling cases).
Here, Dr. Leonida’s explanation of the sustained injury
provided enough information that a reasonably diligent person
should have conducted an inquiry into the claim and pursued it
diligently.

The doctor’s explanation of MMC’s injury provided

the “suspicious circumstances” that should have prompted
plaintiffs to seek legal advice and, therefore, discover the
government’s involvement in the claim.
7

See Valdez, 518 F.3d at

178 (“[I]t would be inaccurate to say that the statute of
limitations begins to run only when the government cause is
known.”)
To the extent plaintiffs argue that it took counsel nearly
a year to appreciate the connection between MMC’s injury and the
prenatal care, “medical malpractice claims brought under the
FTCA can, and often will, accrue before a plaintiff actually
retains counsel and before counsel requests, let alone receives,
the relevant medical records.” A.Q.C. ex rel. Castillo v. U.S.,
656 F.3d 135, 141 (2d Cir. 2011) (emphasis in original).
Plaintiffs’ admission that it only took one year to appreciate
the connection between MMC’s injury and Cyrus-Barker’s prenatal
care further shows that there was enough time to file a
complaint within two (2) years of June 11, 2009.

Indeed,

plaintiffs timely filed SF-95 forms on December 15, 2010, albeit
under the unfortunate circumstance that plaintiffs filed the
forms in the wrong location.
Finally, plaintiffs allege for the first time that Dr.
Leonida “is not even qualified to offer such an opinion [i.e.,
that MMC’s injury was caused by something Optimus employees did
or failed to do in the course of providing prenatal care]
against an obstetrical group.” [Doc. #80, 13 n. 5].

The Court

will not consider this argument where it is being raised for the
first time on reconsideration. See Chubb Group of Ins. Cos.,
2013 WL 836633, at *1 (citations omitted)(“A motion for
reconsideration may not be used to advance new facts, issues or
arguments not previously presented before the Court, nor may it
8

be used as a vehicle for relitigating issues already decided by
the Court.”); see also Nat’l Union Fire Ins. Co. of Pittsburg v.
Stroh Cos., Inc., 265 F.3d 97, 115 (2d Cir. 2001)(noting
arguments raised for the first time on a motion for
reconsideration may be rejected as untimely).
While it might have been clearer for the Court to expand
upon its reasoning in finding the June 11, 2009 accrual date,
the Court finds no reason to reconsider its prior ruling. In
fact, and despite plaintiffs’ protestations, the Court did not
“overlook[] the distinction between Bridgeport Hospital and
Optimus and between the separate and independent claims made
against each.”

Reconsideration of this ruling is not required

to correct clear error or prevent manifest injustice. Therefore,
the Court adheres to its prior ruling that plaintiffs’ claims
accrued against defendant on June 11, 2009.
IV.

CONCLUSION
For the reasons stated, the Motion for Reconsideration, or

in the Alternative, Articulation [Doc. #80] is DENIED with
respect to the request for reconsideration, and GRANTED to the
extent it seeks further articulation on the issue of accrual.5
SO ORDERED at Bridgeport this 5th day of May, 2014
_______/s/
______________
HOLLY B. FITZSIMMONS
UNITED STATES MAGISTRATE JUDGE

5

This is not a recommended ruling. The parties consented to proceed before a
United States Magistrate Judge [Doc. #49] on October 4, 2012 with appeal to
the Court of Appeals.
9