Mamea et al v. United States of America

Filing 215

ORDER DENYING DEFENDANT'S 181 MOTION FOR RECONSIDERATION FOR LACK OF SUBJECT MATTER JURISDICTION. Signed by JUDGE LESLIE E. KOBAYASHI on 9/16/2011. ~ Defendants Motion forReconsideration for Lack of Subject Matter Jurisdiction, f iled March 24, 2011, is HEREBY DENIED. As to the portion of the Motion addressing Haw. Rev. Stat. § 657-7.3. On May 31, 2011, the Court issued an order which, inter alia, denied the other argument in the Motion. (ecs, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on 9/19/2011

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
FELISE MAMEA and SIUILA
MAMEA,

)
)
)
Plaintiffs,
)
)
vs.
)
)
UNITED STATES OF AMERICA,
)
)
Defendant.
)
_____________________________ )

CIVIL NO. 08-00563 LEK-RLP

ORDER DENYING DEFENDANT’S MOTION FOR RECONSIDERATION
FOR LACK OF SUBJECT MATTER JURISDICTION

Before the Court is Defendant United States of
America’s (“Defendant”) Motion for Reconsideration for Lack of
Subject Matter Jurisdiction (“Motion”), filed on March 24, 2011.1
[Dkt. no. 181.]

Plaintiffs Felise Mamea and Siuila Mamea

(collectively “Plaintiffs”) filed their memorandum in opposition
on April 21, 2011.
April 27, 2011.

[Dkt. no. 186.]

[Dkt. no. 187.]

Defendant filed its reply on

Plaintiffs filed a supplemental

memorandum on June 22, 2011, and Defendant filed its opposition
to the supplemental memorandum on July 6, 2011.
204.]

[Dkt. nos. 203,

On July 20, 2011 and July 25, 2011, pursuant to this

Court’s order, Defendant filed declarations setting forth the

1

Only the portion of the Motion addressing Haw. Rev. Stat.
§ 657-7.3 is currently before the Court. On May 31, 2011, the
Court issued an order which, inter alia, denied the other
argument in the Motion. 2011 WL 2160492.

additional authority it intended to rely upon at the hearing on
the Motion.

[Dkt. nos. 208, 210.]

Plaintiffs filed their

declaration regarding additional authority on July 20, 2011.
[Dkt. no. 209.]
This matter came on for hearing on July 25, 2011.
Appearing on behalf of Defendant were Bridget Bailey Lipscomb,
Esq., United States Department of Justice, and Assistant United
States Attorney Harry Yee.

Appearing on behalf of Plaintiffs

were Mark Kamitomo, Esq., Judith Ann Pavey, Esq., Mark Bennett,
Esq., and Shyla Cockett, Esq.

After careful consideration of the

Motion, the parties’ supporting and opposing submissions, and the
arguments of counsel, Defendant’s Motion is HEREBY DENIED for the
reasons set forth below.
BACKGROUND
I.

Relevant History
The parties and the Court are familiar with the factual

and legal history of this case, and the Court will only repeat
the history that is relevant to the instant Motion.
This action consists of allegations of medical
negligence under the Federal Tort Claims Act, 28 U.S.C. §§ 1346,
2671, et seq. (“FTCA”), against Tripler Army Medical Center
(“TAMC”) in Honolulu, Hawai`i.

Plaintiffs allege that various

physicians at TAMC failed to diagnose and treat Plaintiff Siuila
Mamea (“Mrs. Mamea”) in a timely and appropriate manner in 1997
2

and 1998.

Plaintiffs allege that the TAMC physicians’ negligent

acts and omissions caused Mrs. Mamea severe and permanent
injuries, specifically end stage renal disease (“ESRD”) and
kidney failure, forcing her to undergo dialysis for the rest of
her life unless she has a kidney transplant.

Plaintiffs also

allege that, as a direct and proximate result of Defendant’s
conduct, Plaintiff Felise Mamea (“Mr. Mamea”) suffered the loss
of his wife’s companionship and society.
This Court conducted a bench trial in this case from
October 5 to 8, 2010, and October 12 to 15, 2010.

The Court

issued its Decision on November 15, 2010, outlining its rulings
in the case and ordering supplemental documentation regarding
damages.

[Dkt. no. 164.]

After receiving the parties’

supplemental filings, the Court issued its Findings of Fact and
Conclusions of Law and Order (“FOF/COL”) on February 18, 2011.
2011 WL 718806.

The Clerk of Court entered the final judgment

later that day.

[Dkt. no. 176.]

In the FOF/COL, this Court ruled in Plaintiffs’ favor
as to the majority of their claims and ordered that judgment be
entered in Plaintiffs’ favor in the amount of $7,378,872.57 to
Mrs. Mamea and $150,000.00 to Mr. Mamea.

FOF/COL, 2011 WL 718806

at *29.
II.

Motion and Related Memoranda
In the instant Motion, Defendant argues that

3

reconsideration of the FOF/COL is warranted because Mrs. Mamea
failed to file a medical malpractice action prior to the
expiration of the six-year statute of repose for medical torts
set forth in Haw. Rev. Stat. § 657.7-3.2

Defendant therefore

argues that this Court does not have subject matter jurisdiction
over the instant case.

The instant Motion was the first time

that Defendant raised the statute of repose argument in this
case.
In their memorandum in opposition, Plaintiffs first
argue that the Court should not consider the Motion because it is
untimely pursuant to Fed. R. Civ. P. 59(e) and because Defendant
waived the right to argue that the six-year limitation period in
§ 657-7.3 applies.

2

Even if Defendant did not waive its § 657-7.3

Section 657-7.3 states, in pertinent part:
No action for injury or death against a . . .
physician or surgeon . . . duly licensed or
registered under the laws of the State, or a
licensed hospital as the employer of any such
person, based upon such person’s alleged
professional negligence, or for rendering
professional services without consent, or for
error or omission in such person’s practice, shall
be brought more than two years after the plaintiff
discovers, or through the use of reasonable
diligence should have discovered, the injury, but
in any event not more than six years after the
date of the alleged act or omission causing the
injury or death. This six-year time limitation
shall be tolled for any period during which the
person has failed to disclose any act, error, or
omission upon which the action is based and which
is known to the person.
4

argument, Plaintiffs contend that the six-year limitation period
in § 657-7.3 is not a statute of repose and, even if it is a
statute of repose, 28 U.S.C. § 2401 preempts it.

Further, even

if the six-year limitation period applies, Defendant’s failure to
disclose its negligence tolled the statute of repose.
In its reply, Defendant emphasizes that a lack of
subject matter jurisdiction cannot be waived, and a court can
address the issue at any time.

Defendant argues that § 657-7.3’s

statute of repose is not preempted by the FTCA.

Defendant also

contends that the tolling provision in § 657-7.3 does not apply
because TAMC did not know of any act, error, or omission that
caused Mrs. Mamea’s injury, and therefore there was no failure to
disclose.
III. Supplemental Memoranda
In their supplemental memorandum, Plaintiffs argue that
this Court need not consider Defendant’s § 657-7.3 argument at
all.

First, under the FTCA, the United States is liable “in the

same manner and to the same extent as a private individual under
like circumstances[.]”

28 U.S.C. § 2674.

Plaintiffs argue that

§ 657-7.3 only applies to certain licensed or registered
healthcare professionals or to a “licensed hospital as the
employer of any such person[.]”

Plaintiffs sued Defendant merely

as the employer of the physicians who committed malpractice, not
as a hospital that employed such persons.

5

Further, federal law

does not allow suits against government hospitals, see 28 U.S.C.
§ 2679(b)(1), and Defendant is not analogous to a hospital in
this case.

Section 657-7.3 therefore does not apply.
Plaintiffs next contend that the Court need not

consider § 657-7.3 because it is merely a state rule of
substantive liability, not a limit on the federal courts’
jurisdiction.

Defendant therefore waived the § 657-7.3

affirmative defense by failing to assert it in a timely manner.
In fact, although Defendant affirmatively pled the FTCA’s statute
of limitations as a defense in its answer, it made no mention of
§ 657-7.3 and, in its other filings, Defendant consistently
referred to the FTCA’s statute of limitations as the applicable
law for the determination of whether Plaintiffs’ claims were
time-barred.

Further, Plaintiffs assert that Defendant’s failure

to raise the § 657-7.3 defense in a timely manner was prejudicial
to Plaintiffs.

Had they known at trial that § 657-7.3 tolling

was at issue, they would have presented evidence and argument
directly addressing it.
Even if the Court considers § 657-7.3, Plaintiffs note
that there is no case in either the Hawai`i state appellate
courts or the United States District Court for the District of
Hawai`i describing § 657-7.3 as a statute of repose.

The cases

consistently refer to the six-year limitation period within §
657-7.3 as a statute of limitations.

6

Further, § 657-7.3 cannot

be a statute of repose because it contains a tolling provision
and, under both Hawai`i and Ninth Circuit law, statutes of repose
cannot be tolled.

For example, Plaintiffs state that the only

statute that the Hawai`i courts refer to as a statute of repose
is Haw. Rev. Stat. § 657-8, which contains similar language to §
657-7.3 but does not contain a tolling provision.
Plaintiffs also argue that, even if § 657-7.3 is a
statute of repose, the FTCA statute of limitations controls.
Plaintiffs emphasize that Congress did not incorporate state
statutes of repose and did not intend for a different statute of
limitations period to apply in each state.

If the Court accepted

Defendant’s argument that the Court does not have subject matter
jurisdiction over Plaintiffs’ claim because Mrs. Mamea failed to
file her action within the statute of repose period, it would
mean that each state could determine the scope of the federal
courts’ jurisdiction over FTCA claims.

Under Defendant’s

proposed analysis, a plaintiff’s claim could be barred under a
state’s statute of repose, and the federal courts would not have
jurisdiction over it, even if the plaintiff complied with the
deadlines in the FTCA.

Plaintiffs argue that such a result would

be contrary to Congress’ intent in adopting a statute of
limitations for the FTCA that preempts all state statutes of
limitations.

Applying § 657-7.3’s six-year limitation period to

the FTCA would also frustrate Congress’ intent because it would

7

lead to a harsher result than provided for under the FTCA.
Although Congress granted claimants two years from the accrual of
their claim to bring suit, application of § 657-7.3 could bar a
claim before the claim accrues.
Finally, Plaintiffs argue that, even if § 657-7.3 is a
statute of repose and the FTCA does not preempt it, Plaintiffs
still filed their claims prior to the expiration of the statute
of repose.

Plaintiffs contend that the tolling provision applies

because the TAMC physicians never informed her that the treatment
they administered to her, and their failure to implement a
treatment plan upon her discharge, injured her kidneys.
According to Plaintiffs, no one from TAMC or anyone else from the
government, told them that TAMC gave Mrs. Mamea nephrotoxic
substances - including Gentamicin and contrast, that those
substances harmed her kidneys, or that TAMC was not going to
implement a follow-up treatment plan, which was required under
the standard of care.

[Pltfs.’ Suppl. Mem., Decl. of Siuila

Mamea at ¶¶ 3-6, 8-10, Decl. of Felise Mamea at ¶¶ 2(a)-(c), (e)(g).3]

In the alternative, Plaintiffs argue that Defendant’s

3

The Court notes that, in light of Defendant’s failure to
raise the § 657-7.3 statute of repose issue earlier in this case,
the parties were not aware at the time of trial that they should
present evidence on the applicability of the tolling provision in
§ 657-7.3. The Court therefore expressly authorized the parties
to submit post-trial declarations addressing only the issue of
whether the tolling provision of § 657-7.3 applies. [Minute
Order, filed 6/8/11 (dkt. no. 194), at 2.]
8

tort is a continuing one, and therefore the six-year limitation
period has not expired.

Defendant’s negligent acts and

omissions, in particular the failure to implement a follow-up
plan for the ongoing treatment of Mrs. Mamea’s condition,
continued daily until Mrs. Mamea learned of her injuries.
Insofar as this Court has found that this occurred, at the
earliest on May 16, 2006, the six-year limitation period was
tolled until then, and Plaintiffs’ claims were timely.
In its opposition to Plaintiffs’ Supplemental
Memorandum, Defendant argues that the Court must consider the
applicability of the § 657-7.3 statute of repose.

Defendant

contends that the statute applies, even if the TAMC physicians
were not licensed in Hawai`i, because the United States must be
held liable in the same manner as private individuals in like
circumstances.

Moreover, many other courts have held that the

United States is entitled to the benefits of tort reform laws
even if it does not comply with state requirements, such as
licensing.

Defendant reiterates its position that the expiration

of a statute of repose deprives the federal courts of
jurisdiction over the claim, and counsel cannot waive subject
matter jurisdiction.
Defendant acknowledges that no Hawai`i case law
expressly identifies § 657-7.3 as a statute of repose.
Defendant, however, argues that Yamaguchi v. Queen’s Medical

9

Center, 65 Haw. 84, 648 P.2d 689 (1982), effectively declared it
a statute of repose by stating that it absolutely bars a claim
six years from the date of the allegedly tortious act or
omission.

[Opp. to Pltfs.’ Suppl. Mem. at 2 (some citations

omitted) (quoting Yamaguchi, 648 P.2d at 692-93; Blair v. Ing, 21
P.3d 452, 472 n.17 (Haw. 2001) (implicitly referencing § 657-7.3
as a statute of repose)).]

Defendant also argues that the

legislative history of § 657-7.3 indicates that it is a statute
of repose because the legislative intent behind it was the same
as the intent behind other states’ statutes of repose, to control
the costs of medical malpractice insurance by setting end dates
for the filing of medical malpractice actions.

Further, the

tolling provision in § 657-7.3 does not prevent it from being a
statute of repose because many other state statutes of repose for
medical malpractice actions also include a tolling provision.
[Id. at 6 (citing Robin Miller, Annotation, 14 A.L.R. 6th 301
n.12 (2006) (citing thirty-two states with statutes of repose;
list does not include New Mexico’s and Oklahoma’s statutes of
repose)).]

Defendant also argues that the Hawai`i courts refer

to statutes of repose and statutes of limitations
“interchangeably”.

[Id. at 7 (citing Savini v. University of

Hawaii, 153 P.3d 1144, 1151 (Haw. 2007); State v. Timeteo, 952
P.2d 865, 879 (Haw. 1997) (Ramil, J., dissenting)).]
Defendant argues that the FTCA does not preempt § 657-

10

7.3’s statute of repose because the FTCA only preempts state
statutes of limitations.

Finally, Defendant contends that the

statute of repose was not tolled in this case because Plaintiffs
cannot show that the TAMC physicians knew, at the time they
treated Mrs. Mamea, and failed to disclose that they caused harm
to her kidneys that would lead to kidney failure or ESRD.

The

evidence at trial indicates that the TAMC physicians believed
that they helped her and that she was “stone free” upon her final
discharge in 1998.

Defendant acknowledges that the physicians

knew that administering Gentamicin and contrast in connection
with an intravenous pyelogram (“IVP”) could have a nephrotoxic
effect, but Defendant contends that those were the best
treatments available under the circumstances, and the TAMC
physicians administered them with care and monitored Mrs. Mamea’s
condition after the treatments.

Further, the alleged negligent

treatment was not a continuing tort.

Defendant contends that, if

the tolling provision applies here, it could be applied in
virtually any case, rendering the statute of repose a nullity.
STANDARD
Local Rule 60.1 states, in pertinent part: “Motions
seeking reconsideration of case-dispositive orders shall be
governed by Fed. R. Civ. P. 59 or 60, as applicable.”

Defendant

seeks reconsideration of the FOF/COL pursuant to Fed. R. Civ. P.
60(b)(6).

[Reply at 5 (arguing that the Motion was timely

11

because “it was filed pursuant to Fed. R. Civ. P. 60(b)(6) and LR
60.1” (footnote omitted)).]

In general, “[a] motion for

reconsideration must ‘[f]irst . . . demonstrate some reason why
the court should reconsider its prior decision.

Second, a motion

for reconsideration must set forth facts or law of a strongly
convincing nature to induce the court to reverse its prior
decision.’”

In re O’Kelley, CV No. 10-00356 DAE-LEK, 2010 WL

4176540, at *4 (D. Hawai`i Oct. 19, 2010) (quoting White v.
Sabatino, 424 F. Supp. 2d 1271, 1274 (D. Haw. 2006) (some
alterations in O’Kelley)).

In particular, “Rule 60(b)(6) . . .

grants federal courts broad authority to relieve a party from
final judgment ‘upon such terms as are just,’ provided that the
motion is made within a reasonable time and is not premised on
one of the grounds for relief enumerated in clauses (b)(1)
through (b)(5).”

Liljeberg v. Health Servs. Acquisition Corp.,

486 U.S. 847, 863 (1988).
DISCUSSION
I.

Whether the Court Must Consider the § 657-7.3 Argument
At the outset, Plaintiffs contend that the Court need

not consider Defendant’s § 657-7.3 argument.

As noted in this

Court’s May 31, 2011 order, the § 657-7.3 statute of repose
argument attacks this Court’s subject matter jurisdiction over
the instant case.

Subject matter jurisdiction cannot be waived,

and therefore the lack of subject matter jurisdiction can be
12

raised at any time.

2011 WL 2160492, at *3 (citing Embassy of

the Arab Republic of Egypt v. Lasheen, 603 F.3d 1166, 1171 n.3
(9th Cir. 2010) (citing Am. Fire & Cas. Co. v. Finn, 341 U.S. 6,
18 n.17, 71 S. Ct. 534, 95 L. Ed. 702 (1951))).

The Court,

however, emphasizes that the mere fact that the Court has
considered the merits of Defendant’s argument attacking the
existence of subject matter jurisdiction does not constitute a
finding that the purported statute of repose in § 657-7.3 is
jurisdictional.

The Court also emphasizes that, while subject

matter jurisdiction cannot be waived, Defendant did itself, and
Plaintiffs, a great disservice by failing to raise this argument
in a timely manner.

Defendant could have, and should have,

raised the argument far earlier in this litigation.
Plaintiffs next argue that the Court need not consider
whether § 657-7.3 is a statute of repose because it does not
apply to Defendant in this case.

Plaintiffs argue that § 657-7.3

only applies to actions against certain health care providers
“duly licensed or registered under the laws of the State, or a
licensed hospital as the employer of any such person”, and
Defendant is neither a health care provider nor a hospital.
Under the FTCA, the United States is generally liable for tort
claims “in the same manner and to the same extent as a private
individual under like circumstances[.]”

28 U.S.C. § 2674.

Plaintiffs argue that Defendant “is in ‘like circumstances’ with

13

a private employer” other than a hospital and therefore § 657-7.3
does not apply.

[Pltfs.’ Suppl. Mem. at 13 (citation omitted).]

Plaintiffs’ argument is misplaced.

Defendant faced

potential liability in this case based on the actions and
omissions of physicians, who themselves are immune from suit, in
the scope of their employment at TAMC.
1346(b)(1), 2679(b)(1).4

See 28 U.S.C. §§

Thus, Defendant stands in the place of

the TAMC physicians who treated Mrs. Mamea, and is in “like
circumstances” to Hawai`i physicians in analogous circumstances,
even if the TAMC physicians were not licensed in the State of
Hawai`i.

4

See Xue Lu v. Powell, 621 F.3d 944, 947-48 (9th Cir.

Section 1346(b)(1) states, in pertinent part:
the district courts . . . shall have exclusive
jurisdiction of civil actions on claims against
the United States, for money damages, accruing on
and after January 1, 1945, for . . . personal
injury or death caused by the negligent or
wrongful act or omission of any employee of the
Government while acting within the scope of his
office or employment, under circumstances where
the United States, if a private person, would be
liable to the claimant in accordance with the law
of the place where the act or omission occurred.

Section 2679(b)(1) states, in pertinent part:
The remedy against the United States provided by
section[] 1346(b) . . . is exclusive of any other
civil action or proceeding for money damages by
reason of the same subject matter against the
employee whose act or omission gave rise to the
claim or against the estate of such employee. Any
other civil action or proceeding for money damages
arising out of or relating to the same subject
matter against the employee or the employee’s
estate is precluded without regard to when the act
or omission occurred.
14

2010) (“‘Like circumstances’ are not ‘identical circumstances.’
. . .

Analogy not identity of circumstance is key.”); Taylor v.

United States, 821 F.2d 1428, 1431-32 (9th Cir. 1987) (holding
that a California statute limiting non-economic damages, which
applied to persons licensed or certified under California law,
also applied to the United States even though the army hospital
and its staff were not licensed by the State of California).
This Court therefore rejects Plaintiffs’ argument that § 657-7.3
does not apply to Defendant in the instant case.

The Court now

turns to the merits of Defendant’s § 657-7.3 statute of repose
argument.
II.

Statute of Repose or Statute of Limitations
The parties agree that, to the extent § 657-7.3

requires that plaintiffs bring medical tort claims against the
specified defendants within “two years after the plaintiff
discovers, or through the use of reasonable diligence should have
discovered, the injury,” it is a statute of limitations and it is
preempted by the FTCA’s statute of limitations.

Under the FTCA,

a plaintiff must bring a claim against the United States “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.”

28 U.S.C. § 2401(b) (emphasis added).
15

A claim

“accrues” when the plaintiff knows, or has reason to know, of
both the existence and the cause of his or her injury.

See

United States v. Kubrick, 444 U.S. 111, 119–22 (1979); Hensley v.
United States, 531 F.3d 1052, 1056 (9th Cir. 2008).

Defendant,

however, argues that the six-year limitation period in § 657-7.3
is not a statute of limitations, but a statute of repose, and,
because the FTCA does not have a statute of repose, the § 657-7.3
statute of repose still applies and it extinguishes medical tort
actions that are not brought within six years after the act or
omission that allegedly caused the injury.
In FTCA actions, federal courts apply the substantive
law of the state where the act or omission which allegedly caused
the injury occurred.

See 28 U.S.C. §§ 1346(b)(1), 2674.

The

Ninth Circuit has recognized that:
Statutes of limitations and repose are
distinct legal concepts with distinct effects. “A
statute of limitations requires a lawsuit to be
filed within a specified period of time after a
legal right has been violated. . . . On the other
hand, statutes of repose are designed to bar
actions after a specified period of time has run
from the occurrence of some event other than the
injury which gave rise to the claim.” Raithaus v.
Saab-Scandia of America, Inc., 784 P.2d 1158, 1160
(Utah 1989). Statutes of limitations
preclude[ ] the plaintiff from proceeding,
. . . the right (moral or legal) goes on, but
the plaintiff simply cannot go to court in
order to enforce it. . . . A statute of
repose, however, has a more substantive
effect because it can bar a suit even before
the cause of action could have accrued, or,
for that matter, retroactively after the
cause of action has accrued. In proper
16

circumstances, it can be said to destroy the
right itself. It is not concerned with the
plaintiff’s diligence; it is concerned with
the defendant’s peace.
Underwood Cotton Co., Inc. v. Hyundai, 288 F.3d
405, 408-09 (9th Cir. 2002) (internal citations
omitted) (referring to the distinctions between
the two types of statute as “arcane”).
McDonald v. Sun Oil Co., 548 F.3d 774, 779-80 (9th Cir. 2008)
(alterations in McDonald) (emphasis added); see also Fields v.
Legacy Health Sys., 413 F.3d 943, 952 n.8 (9th Cir. 2005) (“The
general weight of authority accepts the characterization of
statutes of repose as substantive provisions in a choice of law
context.” (citing cases)).

Insofar as statutes of repose are

generally considered to be part of state substantive law, this
Court turns to Hawai`i law to determine whether the six-year
limitation period in § 657-7.3 is a statute of repose.
No Hawai`i appellate court opinion has expressly
characterized the six-year limitation period in § 657-7.3 as a
statute of repose, nor has any case in this district court
applying Hawai`i law.

The Court therefore looks to other Hawai`i

cases discussing statutes of repose to determine whether the sixyear limitation period in § 657-7.3 meets the description of a
statute of repose.

In recognizing that Haw. Rev. Stat. § 657-5

is a statute of repose, the Hawai`i Supreme Court stated § 657-5
“compels the exercise of a right within the statutorily defined
period of time.”

Int’l Sav. & Loan Ass’n v. Wiig, 82 Hawai`i

197, 199, 921 P.2d 117, 119 (1996) (citing Cochran v. Pflueger
17

Automobiles, Inc., 72 Haw. 460, 464, 821 P.2d 934, 936 (1991)
(“the primary purpose of a statute of limitation is to compel the
exercise of a right of action within a reasonable time.”); 51 Am.
Jur. 2d Limitations of Actions §§ 16 and 17 (1985)).

The Hawai`i

Supreme Court also discussed the distinction between statutes of
limitations and statutes of repose in the context of the
“discovery rule”.
In Yoshizaki v. Hilo Hospital, 50 Haw. 150,
433 P.2d 220 (1967), a medical malpractice case,
this court adopted what has become known as the
“discovery rule,” which states that, under the
statute of limitations currently codified in HRS §
657-7, a cause of action does not “accrue,” and
the limitations period therefore does not begin to
run, until the plaintiff knew or should have known
of the defendant’s negligence. The Yoshizaki
court noted:
The basic policy underlying statutes of
limitation is to require prompt assertion of
claims.
They [statutes of limitation] are
founded upon the general experience of
mankind that claims, which are valid,
are not usually allowed to remain
neglected. The lapse of years without
any attempt to enforce a demand creates,
therefore, a presumption against its
original validity, or that it has ceased
to subsist. This presumption is made by
these statutes a positive bar; and they
thus become statutes of repose,
protecting parties from the prosecution
of stale claims, when, by loss of
evidence from death of some witnesses,
and the imperfect recollection of
others, or the destruction of documents,
it might be impossible to establish the
truth. Riddlesbarger v. Hartford Ins.
Co., 74 U.S. (7 Wall.) 386, 390, 19 L.
Ed. 257 (1868).
But by the same token, the plaintiff in this
18

case asserts another important policy, that
favoring adjudication of claims on the merits
and ensuring that a party with a valid claim
will be given an opportunity to present it.
. . . .
We conclude that the statute does not
begin to run until the plaintiff knew or
should have known of the defendant’s
negligence. This conclusion is consistent
with the legislative prescription to avoid
constructions which would lead to absurd
results. The injustice of barring the
plaintiff’s action before [he or] she could
reasonably have been aware that [he or] she
had a claim is patent. A basic reason
underlying statutes of limitation is
nonexistent; the plaintiff has not delayed
voluntarily in asserting [his or] her claim.
We realize that added burdens are placed on
defendants by forcing them to defend claims
with evidence that may be stale. We should
not overlook the fact that the plaintiff must
produce evidence sufficient to establish a
prima facie case before the defendant is
obliged to produce any evidence . . . .
We conclude that the conflicting
policies are best reconciled by permitting
the plaintiff the opportunity to prove that
[he or] she neither knew nor could reasonably
have been expected to know of the defendant’s
alleged negligence until the date alleged in
[his or] her complaint.
Id. at 154-55, 433 P.2d at 223-24 (footnote
omitted).
Hays v. City & Cnty. of Honolulu, 81 Hawai`i 391, 393, 917 P.2d
718, 720 (1996) (alterations in Hays).

Thus, under Hawai`i law,

as under federal law, the primary characteristic of a statute of
repose is that it sets an outer time limit that is an absolute
bar to a claim, regardless of whether the claim has accrued.
Accord Albano v. Shea Homes Ltd. P’ship, 634 F.3d 524, 537 (9th
Cir. 2011) (“[T]he purpose of a statute of repose is to demarcate
19

a period in which a plaintiff must place a defendant on notice of
his or her injury, regardless of whether the plaintiff himself is
aware that he has suffered an injury.” (alteration in original)
(citation and block quote format omitted)).
The Hawai`i Supreme Court discussed § 657-7.3 in
Yamaguchi v. Queen’s Medical Center, 65 Haw. 84, 648 P.2d 689
(1982).

Although Yamaguchi does not use the term “statute of

repose”, it does state that § 657-7.3
impose[s] a six-year outer limitation on all suits
computed from the date of the alleged act or
omission regardless of whether the injury caused
thereby had or should have been discovered by that
time, which period would be tolled only by the
defendant’s withholding of information of alleged
negligent conduct known or which should have been
known to him.
65 Haw. at 89, 648 P.2d at 692-93.

Yamaguchi also states that §

657-7.3 “extinguishes a right of action six years after the date
of the injurious act regardless of whether the right of action
has accrued.”

Id. at 92 n.11, 648 P.2d at 694 n.11.

The supreme

court’s discussion of the six-year limitation period in § 657-7.3
indicates that it is a statute of repose.
Plaintiffs, however, argue that the six-year limitation
period in § 657-7.3 cannot be a statute of repose because § 6577.3 contains a tolling provision, and statutes of repose are not
subject to tolling.

Section 657-7.3 states, in pertinent part:

“This six-year time limitation shall be tolled for any period
during which the person has failed to disclose any act, error, or
20

omission upon which the action is based and which is known to the
person.”

It also contains additional tolling provisions,

inapplicable to the instant case, regarding actions based upon
alleged wrongful acts against minors.

It is true that the two

statutes of repose that the Hawai`i Supreme Court has recognized
do not contain a tolling provision.

See Haw. Rev. Stat. §§ 657-5

(recognized as a statute of repose in Wiig, 82 Hawai`i at 199,
921 P.2d at 119), 657-8 (recognized as a statute of repose in
Ass’n of Apartment Owners of Newtown Meadows ex rel. Board of
Directors v. Venture 15, Inc., 115 Hawai`i 232, 283 & n.42, 167
P.3d 225, 276 & n.42 (2007)).5

Although this Court did not find

5

Section 657-5 addresses domestic judgments and decrees.
It states:
Unless an extension is granted, every judgment and
decree of any court of the State shall be presumed
to be paid and discharged at the expiration of ten
years after the judgment or decree was rendered.
No action shall be commenced after the expiration
of ten years from the date a judgment or decree
was rendered or extended. No extension of a
judgment or decree shall be granted unless the
extension is sought within ten years of the date
the original judgment or decree was rendered. A
court shall not extend any judgment or decree
beyond twenty years from the date of the original
judgment or decree. No extension shall be granted
without notice and the filing of a non-hearing
motion or a hearing motion to extend the life of
the judgment or decree.
Section 657-8 addresses damages actions based on
construction to improve real property. Subsection (a) states:
No action to recover damages for any injury to
property, real or personal, or for bodily injury
or wrongful death, arising out of any deficiency
(continued...)
21

an express statement of the principle in Hawai`i case law, “it is
generally accepted that [s]tatutes of repose are not subject to
equitable tolling[.]”

Albano, 634 F.3d at 535 (some alterations

in original) (citation and internal quotation marks omitted).
“‘Equitable tolling’ is defined as ‘[t]he doctrine that the
statute of limitations will not bar a claim if the plaintiff,
despite diligent efforts, did not discover the injury until after
the limitations period had expired.’”

Narmore v. Kawafuchi, 112

Hawai`i 69, 75 n.15, 143 P.3d 1271, 1277 n.15 (2006) (quoting
Black’s Law Dictionary 579 (8th ed. 2004)), superceded by statute
on other grounds as stated in, Aregger v. State, Dep’t of
Taxation, 124 Hawai`i 325, 328, 243 P.3d 285, 288 (Ct. App.
2010).

The tolling provisions applicable to the six-year

limitation period in § 657-7.3 are statutorily imposed and are
not equitable doctrines.

Thus, they would not prevent this Court

from finding that the six-year limitation period is a statute of
repose.
Although this Court could reasonably conclude that the
six-year limitation period in § 657-7.3 is a statute of repose

5

(...continued)
or neglect in the planning, design, construction,
supervision and administering of construction, and
observation of construction relating to an
improvement to real property shall be commenced
more than two years after the cause of action has
accrued, but in any event not more than ten years
after the date of completion of the improvement.
22

based on the Hawai`i Supreme Court’s description in Yamaguchi,
this Court ultimately need not reach a decision on this issue.
Whether the six-year limitation period in § 657-7.3 is a statute
of repose or a statute of limitations is a distinction without a
difference because 28 U.S.C. § 2401(b) preempts state statutes of
repose as well as state statutes of limitations.
III. Preemption
The United States Supreme Court has stated that, in
considering FTCA statute of limitations issues:
We should also have in mind that the [FTCA]
waives the immunity of the United States and that
in construing the statute of limitations, which is
a condition of that waiver, we should not take it
upon ourselves to extend the waiver beyond that
which Congress intended. See Soriano v. United
States, 352 U.S. 270, 276, 77 S. Ct. 269, 273, 1
L. Ed. 2d 306 (1957); cf. Indian Towing Co. v.
United States, 350 U.S. 61, 68-69, 76 S. Ct. 122,
126, 100 L. Ed. 48 (1955). Neither, however,
should we assume the authority to narrow the
waiver that Congress intended. Indian Towing Co.
v. United States, supra.
United States v. Kubrick, 444 U.S. 111, 117-18 (1979).

Although

the United States is generally liable under the FTCA for tort
claims “in the same manner and to the same extent as a private
individual under like circumstances,” 28 U.S.C. § 2674, the rule
is not absolute.

“In enacting a federal statute of limitations,

Congress decided to allow suits against the United States that
might be barred against a private defendant by a shorter state
limitations period, and to cut off suits that might be allowed

23

against a private defendant by a longer state limitations
period.”

Poindexter v. United States, 647 F.2d 34, 36 (9th Cir.

1981).
A statute of repose extinguishes a claim after a
certain period of time, even if the claim has not yet accrued.
Insofar as Congress expressly defined the statute of limitations
for the FTCA in terms of accrual, applying state statutes of
repose can effectively shorten the FTCA limitations period.

By

defining the statute of limitations as two years after accrual,
Congress chose to allow suits against the United States that
might be barred in states with shorter limitations periods,
whether by statute of limitation or statute of repose.

This

Court will not presume to narrow the scope of Congress’ waiver of
the United States’ sovereign immunity by applying § 657-7.3’s
six-year limitation period to shorten the time within which an
injured party may bring an FTCA medical negligence claim against
the United States.
Assuming the six-year limitation period in § 657-7.3 is
a statutes of repose, Defendant argues that it applies to FTCA
actions because the FTCA does not have a statute of repose.

Even

though Congress chose not to preempt state statutes of repose by
including an express statute of repose in § 2401(b), this does
not necessarily mean that state statutes of repose are applicable
to FTCA actions.

State statutes must yield to federal law, even

24

without explicit preemption, in at least two circumstances, one
of which is “‘[w]hen Congress intends federal law to occupy the
field[.]’”

United States v. Arizona, 641 F.3d 339, 345 (9th Cir.

2011) (some citations and quotation marks omitted) (quoting
Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 372 (2000)).
In this Court’s view, Congress’ decision to define the FTCA’s
statute of limitations in terms of accrual is a clear indication
that it intended to occupy the field of both statutes of
limitations and statutes of repose, which would bar claims
without regard to accrual, as they apply to tort claims against
the United States based on acts and omissions by its employees
acting in the course of their official duties.
As further evidence that Congress intended to occupy
the field of state statutes of repose, the Court notes that both
the preempted statute of limitations and the purported statute of
repose in Haw. Rev. Stat. § 657-7.3 require that the “action for
injury or death” against the medical care provider or hospital be
brought within a specified time.

(Emphasis added.)

In contrast,

the FTCA’s statute of limitations requires, inter alia, that the
“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 . . . .”
U.S.C. § 2401(b) (emphases added).

28

Applying state statutes of

repose, which do not take into account the filing of the required
25

FTCA administrative claim, could bar claims that Congress has
deemed timely.

The Ninth Circuit has acknowledged a similar

problem, albeit in the context of preemption of a state statute
of limitations:
We would create even greater procedural
anomalies in Federal Tort Claims actions if we
held that Ariz. Rev. Stat. § 23-1023 B applies
insofar as it operates as a statute of
limitations. Section 23-1023 B requires the
injured worker to file an “action” within one
year. A claimant may not immediately bring a
court action against the United States under the
FTCA. He or she must first file an administrative
claim with the appropriate agency, and may not
file an action until the agency has denied the
claim or has not acted on it within six months.
28 U.S.C. §§ 2401(b), 2675(a).
Poindexter, 647 F.2d at 37.

The Ninth Circuit therefore held

that Ariz. Rev. Stat. § 23-1023 B was preempted by § 2401(b).
Id.

The potential conflict between the time requirement for the

filing of a civil action pursuant to the purported § 657-7.3
statute of repose and the time requirement for the filing of an
administrative claim pursuant to § 2401(b) indicates that
Congress intended § 2401(b) to occupy the field of both statutes
of limitations and statutes of repose.
The Court also notes that, if it accepted Defendant’s
argument that the purported § 657-7.3 statute of repose deprives
the federal courts of subject matter jurisdiction over FTCA
claims, this would allow each state to define the federal courts’
subject matter jurisdiction by adopting statutes of repose.

26

Those statutes would divest the federal courts of jurisdiction
over some claims that Congress has authorized under the FTCA.
The Ninth Circuit has
rejected the argument that exclusivity provisions
in state workers’ compensation laws, like those in
California’s Workers’ Compensation Act, could
divest federal courts of subject matter
jurisdiction:
[S]tate law may not control or limit the
diversity jurisdiction of the federal courts.
The district court’s diversity jurisdiction
is a creature of federal law under Article
III and 28 U.S.C. § 1332(a). Pursuant to the
supremacy clause, section 1332(a) preempts
any contrary state law.
[Begay v. Kerr–McGee Corp.,] 682 F.2d [1311,] 1315
[(9th Cir. 1982)]. Here, as in Begay, “[t]he
question is whether the . . . complaint stated a
claim for relief under [state] law pursuant to
[Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.
Ct. 817, 82 L. Ed. 1188 (1938)], rather than
whether the district court lacked subject matter
jurisdiction.” Id. Thus, even if we were to hold
that the exclusivity provisions applied, they
would not operate to divest the federal court of
subject matter jurisdiction.
U.S. Fid. & Guar. Co. v. Lee Invs. LLC, 641 F.3d 1126, 1133 (9th
Cir. 2011) (some alterations in Lee Invs.) (footnote omitted).
Similarly, state statutes of repose should not control
or limit the subject matter jurisdiction of the federal courts
over FTCA claims.

Even if § 657-7.3 contains a statute or repose

and a federal court considering a FTCA claim based on actions
occurring in Hawai`i must apply it as part of the substantive
“law of the place”, that application is a separate and distinct
issue from the question whether the federal court has subject

27

matter jurisdiction over the claim.

See id. at 1132-33 n.5

(“This jurisdictional allegation is distinct from the Employer’s
claim that exclusivity provisions in California law required the
district court, in the proper exercise of diversity jurisdiction,
to dismiss the action so that it could be decided by the State
Board.”).

The issue of § 657-7.3’s six-year limitation period is

before this Court only insofar as Defendant argues it deprives
this Court of subject matter jurisdiction over this case.6
Finally, the Court notes that the Ninth Circuit has
recognized that the FTCA’s statute of limitations preempts any
“state period of limitations”.

Poindexter, 647 F.2d at 36

(citing Kossick v. United States, 330 F.2d 933 (2d Cir. 1964);
United States v. Westfall, 197 F.2d 765 (9th Cir. 1952); Young v.
United States, 184 F.2d 587 (D.C. Cir. 1950); Maryland ex rel.
Burkhardt v. United States, 165 F.2d 869 (4th Cir. 1947)).
Whether the six-year limitation period in § 657-7.3 is called a

6

To the extent that the six-year limitation period in §
657-7.3 presents a non-jurisdictional defense, it is an
affirmative defense that Defendant waived or forfeited by failing
to raise in a timely manner. See In re Cellular 101, Inc., 539
F.3d 1150, 1155 n.2 (9th Cir. 2008) (“Although, consistent with
our prior decisions, we use the term waiver here to describe the
loss of an affirmative defense through the failure to raise it in
a timely manner, a more accurate term may be forfeiture.” (citing
United States v. Olano, 507 U.S. 725, 731, 113 S. Ct. 1770, 123
L. Ed. 2d 508 (1993) (holding that “a constitutional right, or a
right of any other sort, may be forfeited in criminal as well as
civil cases by the failure to make timely assertion of the right
before a tribunal having jurisdiction to determine it”) (internal
quotations and citations omitted))).
28

statute of repose, a statute of limitations, or something else,
it is clearly a “state period of limitations”.

See Haw. Rev.

Stat. § 657-7.3 (referring to “[t]his six-year time limitation”).
The Court acknowledges that Poindexter did not address
statutes of repose, but at least one other district court within
the Ninth Circuit has recently applied Poindexter and ruled that
§ 2401(b) preempts state statutes of repose.

See Abila v. United

States, No. 2:09–CV–01345–KJD–LRL, 2011 WL 3444166, at *4-5 (D.
Nev. Aug. 8, 2011).7

The court in Abila stated that it was aware

of only two district court cases where the parties raised the
issue whether § 2401(b) preempted state statutes of repose, and
both of those cases concluded that preemption applied.

Id. at *4

(citing Zander v. United States, 2011 WL 345884 (D. Md. 2011);8

7

The Court acknowledges that Abila is factually
distinguishable from the instant case because, in Abila, the
plaintiff filed her administrative claim within the statute of
repose period but did not file her civil action until after the
expiration of the statute of repose. 2011 WL 3444166, at *1, *3.
In contrast, Plaintiffs did not file either their administrative
claim or their civil action prior to the expiration of § 6577.3’s six-year limitation period. The legal analysis of the
preemption of state statutes of repose, however, is applicable to
the instant case.
8

The court in Abila recognized that another decision from
the District of Maryland applied Maryland’s statute of repose and
reached a different conclusion from Zander. 2011 WL 3444166, at
*4 n.1 (citing Anderson v. United States, 2010 WL 1346409 (D. Md.
2010)). The Court in Abila pointed out that “[t]he Zander court
explained its opposite holding by noting that the Anderson court
was not presented with the question of whether the statute of
limitations in the FTCA preempted Maryland’s statute of repose.”
Id.
29

Jones v. United States, 2011 WL 1565734, at *9 (M.D. Tenn.
2011)).9

The court in Abila, noting that Zander and Jones were

consistent with Poindexter, rejected some of the same arguments
that Defendant presents in the instant case.

Id. at *4-5.

Although Poindexter dealt with preemption of
Arizona’s statute of limitations, the Ninth
Circuit expressly noted that “a court must look to
state law for the purpose of defining the
actionable wrong for which the United States shall
be liable, but to federal law for the limitations

9

The Court notes that another district judge from the
Middle District of Tennessee disagreed with Jones and ruled that
Tennessee’s statute of repose extinguished the FTCA medical
malpractice claim. Huddleston v. United States, No. 3–11–0223,
2011 WL 2489995, at *2-3 (M.D. Tenn. June 22, 2011). As with
Zander and Anderson, Jones squarely addressed the preemption
issue, while Huddleston did not. Further, the Court notes that
the court in Huddleston did not base its ruling on jurisdictional
grounds and ultimately concluded that the FTCA medical
malpractice claim and the derivative loss of consortium claim
were “not actionable and should be dismissed.” Id. at *3. As
this Court has previously noted, how a statute of repose applies
to a FTCA claim as part of a the substantive law of the place is
a separate issue from whether the statute of repose can define
the federal courts’ subject matter jurisdiction over FTCA claims.
The court in Huddleston attempted to distinguish Jones by
stating, inter alia, that the court in Jones did not have the
benefit of Smith v. United States, No. 10–41085, 2011 WL 1533432
(5th Cir. Apr. 22, 2011) (per curiam). Huddleston, 2011 WL
2489995, at *2. Smith, however, also applied the statute of
repose as part of “the substantive law of the state in which the
alleged conduct occurred.” 2011 WL 1533432, at *1 (some
citations omitted) (citing 28 U.S.C. § 1346(b)(1)). It did not
address preemption or subject matter jurisdiction. In addition,
on August 15, 2011, after the filing of the Huddleston order, the
court in Jones issued an order denying the government’s motion
for reconsideration in light of the Fifth Circuit’s decision in
Smith. Jones, 2011 WL 1565734, at *9-10.
As this Court has previously emphasized, the issue of § 6577.3’s six-year limitation period is only before this Court in the
instant Motion to the extent that Defendant argues it deprives
this Court of subject matter jurisdiction.
30

of time within which the action must be brought.”
Poindexter v. U.S., 647 F.2d at 36. (emphasis
added). While a statute of repose may be
different than a statute of limitations, it
certainly is a “limitation of time within which an
action must be brought.” Indeed, the Nevada
statute itself uses the term “time limitation” to
describe the three-year period for purposes of
tolling. N.R.S. 41A.097(3).
The Government argues that, since suit
against a private party would be barred by the
statute, failure to apply the Nevada statute
prevents the government from being held liable “in
the same manner and to the same extent as a
private individual under like circumstances,” as
required by 28 U.S.C. § 2674. This contention was
raised by the Government in Poindexter and the
court found the argument “unpersuasive” and noted
that “[i]n enacting a federal statute of
limitations, Congress decided to allow suits
against the United States that might be barred
against a private defendant by a shorter state
limitations period, and to cut off suits that
might be allowed against a private defendant by a
longer state limitations period.” Id. at 37.
Here, the same reasoning applies.
Finally, the Government makes much of the
distinction between the supposedly substantive
nature of statutes of repose and the supposedly
procedural nature of statutes of limitations.
According to the Government, “[t]he FTCA is based
on well-established Erie principles wherein state
substantive law is adopted to federal procedure.”
(# 40 at 9–10.) Nevada courts have not
specifically held that N.R.S. 41A.097(2) is a
statute of repose or that it creates a substantive
right. But even if it had, the Supreme Court has
noted that state court determinations of those
distinctions are “immaterial” to federal courts
and stated “[p]lainly enough, a statute that would
completely bar recovery in a suit if brought in a
[s]tate court bears on a [s]tate created right
vitally and not merely formally or negligibly.”
Guaranty Trust Co. of N.Y. v. York, 326 U.S. 99
(1945) (holding that a state statute of
limitations is substantive state law in diversity
actions under the Eire (sic) doctrine). Even
though a statute of limitations is substantive law
31

under Eire (sic) principles, the Court in
Poindexter held that Congress’s intent was to
allow FTCA suits otherwise barred by Arizona’s
statue of limitations. The Government’s argument
that the three-year limitation in N.R.S.
41A.097(2) bars this claim because it is
substantive law is therefore unavailing.
Id. (alterations in Abila).

The Court finds the reasoning in

Abila to be persuasive, and it supports this Court’s analysis of
the portion of § 657-7.3 that Defendant contends is a statute of
repose.
For all of the foregoing reasons, this Court CONCLUDES
that, for jurisdictional purposes, the six-year limitation period
in Haw. Rev. Stat. § 657-7.3 is preempted by the FTCA’s statute
of limitations in 28 U.S.C. § 2401(b).

The Court emphasizes that

it would conclude that § 657-7.3’s six-year limitation period is
preempted regardless of whether the six-year limitation period is
or is not a statute of repose.

Thus, even if Mrs. Mamea failed

to file her civil action within six years after the acts and
omissions causing her injury occurred, this did not deprive the
Court of subject matter jurisdiction over the instant case.
Defendant’s Motion is therefore DENIED.
Plaintiffs have argued that, even if the six-year
limitation period in § 657-7.3 is a statute of repose and it is
not preempted, it would not bar their recovery because the
tolling provision applies.

In light of this Court’s ruling on

the preemption issue, the Court need not reach this argument.

32

This Court therefore makes no findings or conclusions on how it
would apply the § 657-7.3 six-year limitation period to the
instant Motion.

The Court, however, believes that the parties

would both acknowledge the possibility that the tenor and course
of this entire litigation might have been very different if
Defendant had raised the § 657-7.3 argument before trial
commenced.
CONCLUSION
On the basis of the foregoing, Defendant’s Motion for
Reconsideration for Lack of Subject Matter Jurisdiction, filed
March 24, 2011, is HEREBY DENIED.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, September 16, 2011.

/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

FELISE MAMEA, ET AL. V. UNITED STATES OF AMERICA; CIVIL NO. 0800563 LEK-KSC; ORDER DENYING DEFENDANT’S MOTION FOR
RECONSIDERATION FOR LACK OF SUBJECT MATTER JURISDICTION

33