Saofaigaalii v. Tripler Army Medical Center et al

Filing 55

ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT re 42 - Signed by JUDGE SUSAN OKI MOLLWAY on 6/23/2016. Motion terminated: 42 MOTION for Summary Judgment filed by Tripler Army Medical Center, Depar tment of the Army. Status Conference set for 7/18/2016 09:00 AM before JUDGE SUSAN OKI MOLLWAY. (emt, )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). Toatuga M. Saofaigaalii served by first class mail at the address of record on June 23, 2016.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
TOATUGA M. SAOFAIGAALII,
Plaintiff,
vs.
UNITED STATES,
Defendant.

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CIVIL NO. 14-00455 SOM/KSC
ORDER DENYING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT

ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
I.

INTRODUCTION.
Before the court is Defendant United States’ Motion for

Summary Judgment on Plaintiff Toatuga Saofaigaalii’s claim
asserting medical negligence under the Federal Tort Claims Act
(“FTCA”).

The United States argues that Saofaigaalii’s claim is

barred by the FTCA’s two-year statute of limitations.

The United

States also contends that it is entitled to summary judgment
because Saofaigaalii has not identified any medical expert
opinion regarding the relevant standard of care or causation
relevant to his medical negligence claim, as required by Hawaii
law.
Although Saofaigaalii, who is proceeding pro se from
his home in American Samoa, filed no opposition to the United
States’ motion, this court denies the motion on the ground that

the United States has not met its burden as the movant of showing
entitlement to summary judgment.
II.

BACKGROUND.
Saofaigaalii is a fifteen-year veteran of the United

States Army who served during the Vietnam era.
PageID # 40.

See ECF No. 1-19,

He lives in American Samoa but travels to Hawaii

periodically to receive medical treatment at Tripler Army Medical
Center, a hospital run by the Department of the Army.

See ECF

No. 1-1, PageID # 7.
On March 12, 2007, Saofaigaalii sought medical
treatment at Tripler to remove a kidney stone.
PageID # 195.

See ECF No. 43,

After a first surgery proved unsuccessful, the

doctors allegedly recommended a second surgery.

See id.

According to a reviewing physician at Tripler, complications
arose as the treating physicians tried to administer spinal
anesthesia, and spinal anesthesia ended up being attempted six or
seven times.

See ECF No. 43-4, PageID # 245.

After the second surgery, Saofaigaalii, although
allegedly in “excruciating” pain, was discharged by Tripler.
id.; see also ECF No. 1-16, PageID #s 33-34.

See

When the pain did

not subside, he went to Tripler’s emergency room, but was
allegedly only given pain medication and told that the surgery
had been a success.

See ECF No. 1-18, PageID # 38; see also ECF

No. 1-16, PageID #s 33-34.

Saofaigaalii then returned to his

2

home in American Samoa.

See ECF No. 1-16, PageID # 34.

Still in pain, Saofaigaalii came back to Oahu and was
readmitted to the Tripler emergency room on May 4, 2007.
No. 43, PageID # 197.

See ECF

On May 12, 2007, Saofaigaalii met with a

Tripler physician, who explained that Saofaigaalii had a spinal
infection likely caused by the Tripler urological procedures or
the “introduction of skin flora with the spinal anesthesia
attempts.”

See ECF No. 43-4, PageID # 246.

The physician’s

attending note states:
Had long counselling [sic] session with
patient and his son today about the likely
etiology of the infection in his back, his
current treatment, and what the future will
hold for his treatment. He demonstrates
excellent insite [sic] into the process and
understands where we think he is currently.
All of their questions were answered to their
satisfaction.
See id., PageID #s 197-98.
Saofaigaalii met with a Veteran Affairs counselor on
September 26, 2007, who provided him with a “21-4138” form for
disability compensation benefits pursuant to 38 U.S.C. § 1151.
See ECF No. 1–15, PageID # 32.

Saofaigaalii filed his claim for

disability compensation benefits that same day.

See id.

As part

of his claim, Saofaigaalii submitted letters by family members
alleging that his treating physicians had been negligent.

See

ECF No. 1-17, PageID # 37 (“My father has suffered enough and the
doctors should be disciplined for their negligence to his

3

case.”); ECF No. 1-16, PageID # 35 (“The whole point of my
statement is that justice must be carried out and these doctors
should be questioned for their negligence [sic] acts because if
they had taken precautions then I think nothing would happen at
all.”); id., PageID # 34 (“After the surgery, [Saofaigaalii] was
released right away instead of being admitted to a recovery ward
to see how he was reacting to the procedure they did.

I think

that this was an act of negligence because it seems that the life
of patients were not the priority at this time; the surgeons just
wanted to get over it and authorized that he was well enough to
go back to the hotel.”).
On March 21, 2008, the VA denied Saofaigaalii’s claim
for disability compensation benefits.
40.

See ECF No. 1–19, PageID #

The decision stated:
Although Tripler treatment records noted
complications resulted from spinal anesthesia
for a urological procedure, VA care or lack
thereof did not cause your chronic headaches,
numbness and pain to both lower extremities,
lower back pain, and bacterial infection to
the vertebra as a result of spinal anesthesia
for kidney stone surgery.
For your information, claims under 38 U.S.C.
[§] 1151 apply only to facilities over which
the Secretary of the Veterans Affairs has
direct jurisdiction. Tripler Army Medical
Center is not considered to be a VA facility
for purposes of 38 U.S.C. [§] 1151.

ECF No. 1-20, PageID # 41.

The VA’s denial letter invited

Saofaigaalii to appeal the decision, stating, “If you do not

4

agree with our decision, you should write us and tell us why.
You have one year from the date of this letter to appeal the
decision.”

ECF No. 54-4, PageID # 318.

Saofaigaalii, relying on

these instructions, filed an appeal with the VA.
On August 12, 2010, when Saofaigaalii was in Hawaii for
a medical check up, he stopped by the VA to check on the status
of his appeal and was told by a counselor that it had been
denied.

See ECF No. 1-12, PageID # 27.

Saofaigaalii claims that

the “V.A. advised me to put my Claim straight to Tripler
Hospital.”

See id.
On October 7, 2010, Saofaigaalii mailed to a Brigadier

General assigned to Tripler a letter that summarized his
negligence claim against Tripler.
22-25.

See ECF No. 1-10, PageID #s

When Saofaigaalii received no response, he sent another

letter on November 15, 2010.

See ECF No. 43, PageID # 198.

On

March 16, 2011, Saofaigaalii wrote to the VA requesting
assistance because he “stilled [sic] not heard of anything from
Tripler Army Medical Center.”

ECF No. 1-9, PageID # 21.

On March 23, 2011, Katharyne Clark,1 a Judge Advocate
assigned to Tripler, wrote a letter to Saofaigaalii, stating that
his letters to Tripler had been forwarded to her.
43-3, PageID # 233.

See ECF No.

Her letter further stated, “In reading your

1

Her declaration indicates that she later changed her name
to “Katharyne Proudfoot Morphis.” See ECF No. 54-11.
5

letters, it appears you wish to file a tort claim against the
United States.

I have enclosed several blank copies of Standard

Form SF-95, Claim for Damage, Injury, or Death.”

See id.

The

letter was allegedly mailed to Saofaigaalii’s address in American
Samoa sometime around March 23, 2011.

Saofaigaalii’s position in

this case, including during the hearing on the present motion, is
that he never received the letter.
Saofaigaalii alleges that he continued to suffer from
the injuries caused by the Tripler procedure and was in a coma
from February to March 2013.

See ECF No. 1-4, PageID # 12.

According to Saofaigaalii,
I was in COMA for two (2) months in Tripler
Army Medical Center from February thru March
2013. I was in ICA, and than PROGRESSIVE
CARE UNIT, and than to the ward, and than
after that, I was transferred to the CFA. I
was Discharged from CFA on October 03, 2013.
I returned to Home in American Samoa on
October 09, 2013 on Special Flight. I am not
still fully recover for my situations since I
was in Hospital. My conditions is come very
slowly to recover from COMA.
Id. (grammar and spelling as in the original).
In September 2013, Saofaigaalii met with a Tripler
Medical Claims Judge Advocate, Yvette Soto.
PageID # 204.

See ECF No. 43-1,

After discussing the claim with Saofaigaalii, Soto

provided him with an SF-95 form.

See id.

Saofaigaalii allegedly

mailed the completed SF-95 form to Tripler on September 27, 2013.
See ECF No. 43, PageID # 198.

Saofaigaalii backdated the form to

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October 7, 2010, the date on which he had mailed his first letter
to the Brigadier General at Tripler.
198.

See ECF No. 43, PageID #

He hand-delivered another copy of the completed SF-95 form

to an employee at Tripler on September 30, 2013.

See ECF No. 43,

PageID # 198.
On March 14, 2014, the Tort Claims Division of the
Department of the Army denied Saofaigaalii’s FTCA claim.
No. 1-3, PageID # 10.

See ECF

The basis for the denial was that his

claim was barred by the two-year statute of limitations pursuant
to 28 U.S.C. § 2401(b).

See id.

Saofaigaalii filed a motion for

reconsideration by the Army that was denied on August 19, 2014.
See ECF No. 1-2, PageID # 8.
Saofaigaalii filed his Complaint in this court on
October 9, 2014, suing Tripler and the Department of the Army.
See ECF No. 1.

His Complaint alleges that the two medical

procedures at Tripler were negligently performed and resulted in
his suffering severe injuries, including headaches, numbness and
pain in both lower extremities, lower back pain, bacterial
infection in his vertebrae, a broken piece of metal left in his
kidney or stomach, inability to maintain an erection and painful
urination, stress, and emotional distress to himself as well as
his family members.

See id., PageID # 196.

As the United States has previously noted, see ECF No.
25-1, PageID # 111, individual federal agencies cannot be sued

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under the FTCA.

Instead, the proper defendant in an FTCA case is

the United States.

Indeed, as explained later in this order, the

analysis of whether Saofaigaalii’s claims have been timely filed
may also implicate actions by the VA, which is under the United
States’ umbrella.
During the present litigation, the United States served
a Request for Admissions on Saofaigaalii on September 10, 2015.
See ECF No. 43, PageID # 199.

The United States agreed to extend

the deadline for Saofaigaalii to respond to November 13, 2015.
See id.

On or about November 18, 2015, the United States

received a letter from Saofaigaalii, which stated in relevant
part:
I would like to Thank You for your letter was
send to me dated on October 06, 2015. To be
honestly to you that I stilled have those two
Boxes you had send me. I have been read and
read to understand about all these documents,
but stilled no experienced to know anything
about Law or Justice System. That is the
reasons why I have not send any respond.
I would like to apologized about my part it
is incompleted. I have seek for someone to
help me but I could not find anyone.
Sir, I do not know what else can I do?
me know if I can do anything else.

Let

Id., PageID # 200 (grammar and spelling as in the original).
Despite further extensions of the deadline, Saofaigaalii has not
responded to the United States’ RFAs.

See id.

The expert disclosure deadline also passed on January

8

6, 2016.

Saofaigaalii has not filed or served on the United

States any expert disclosures pursuant to Rule 26(a)(2) of the
Federal Rules of Civil Procedure.
III.

See id.

STANDARD OF REVIEW.
Summary judgment shall be granted when “the movant

shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.”
R. Civ. P. 56(a) (2010).

Fed.

See Addisu v. Fred Meyer, Inc., 198

F.3d 1130, 1134 (9th Cir. 2000).

A movant must support his

position that a material fact is or is not genuinely disputed by
either “citing to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations (including
those made for the purposes of the motion only), admissions,
interrogatory answers, or other materials”; or “showing that the
materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.”

Fed. R. Civ. P. 56(c).

One of the principal purposes of summary judgment is to identify
and dispose of factually unsupported claims and defenses.
Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986).

Summary

judgment must be granted against a party that fails to
demonstrate facts to establish what will be an essential element
at trial.

See id. at 323.

A moving party without the ultimate

9

burden of persuasion at trial--usually, but not always, the
defendant--has both the initial burden of production and the
ultimate burden of persuasion on a motion for summary judgment.
Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102
(9th Cir. 2000).
The burden initially falls on the moving party to
identify for the court those “portions of the materials on file
that it believes demonstrate the absence of any genuine issue of
material fact.”

T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors

Ass’n, 809 F.2d 626, 630 (9th Cir. 1987) (citing Celotex Corp.,
477 U.S. at 323).

“When the moving party has carried its burden

under Rule 56(c), its opponent must do more than simply show that
there is some metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586 (1986) (footnote omitted).
The nonmoving party must set forth specific facts
showing that there is a genuine issue for trial.
Serv., Inc., 809 F.2d at 630.

T.W. Elec.

At least some “‘significant

probative evidence tending to support the complaint’” must be
produced.

Id. (quoting First Nat’l Bank of Ariz. v. Cities Serv.

Co., 391 U.S. 253, 290 (1968)).

See Addisu, 198 F.3d at 1134 (“A

scintilla of evidence or evidence that is merely colorable or not
significantly probative does not present a genuine issue of
material fact.”).

“[I]f the factual context makes the non-moving

10

party’s claim implausible, that party must come forward with more
persuasive evidence than would otherwise be necessary to show
that there is a genuine issue for trial.”

Cal. Arch’l Bldg.

Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468
(9th Cir. 1987) (citing Matsushita Elec. Indus. Co., 475 U.S. at
587).

Accord Addisu, 198 F.3d at 1134 (“There must be enough

doubt for a ‘reasonable trier of fact’ to find for plaintiffs in
order to defeat the summary judgment motion.”).
All evidence and inferences must be construed in the
light most favorable to the nonmoving party.
Inc., 809 F.2d at 631.

T.W. Elec. Serv.,

Inferences may be drawn from underlying

facts not in dispute, as well as from disputed facts that the
judge is required to resolve in favor of the nonmoving party.
Id.

When “direct evidence” produced by the moving party

conflicts with “direct evidence” produced by the party opposing
summary judgment, “the judge must assume the truth of the
evidence set forth by the nonmoving party with respect to that
fact.”
IV.

Id.
ANALYSIS.
A.

FTCA Statute of Limitations.

Under 28 U.S.C. § 2401(b), a claimant has two years
from when the FTCA claim accrued to present it to the appropriate
agency.

See 28 U.S.C. § 2401(b) (“A tort claim against the

United States shall be forever barred unless it is presented in

11

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.”).
An FTCA claim accrues “when a plaintiff knows that he
has been injured and who has inflicted the injury.”

Winter v.

United States, 244 F.3d 1088, 1090 (9th Cir. 2001); see also
Hensley v. United States, 531 F.3d 1052, 1057 (9th Cir. 2008)
(stating that FTCA claim accrues when plaintiff “knew both the
fact of injury and its immediate physical cause” (quoting
Dyniewicz v. United States, 742 F.2d 484, 487 (9th Cir. 1984)).
The United States contends that Saofaigaalii’s
negligence claim was time-barred by the FTCA’s statute of
limitations.

See ECF No. 42, PageID # 171.

According to the

United States, Saofaigaalii’s claim accrued, at the latest, in
May 2007, when he was admitted to Tripler for a spinal infection.
In support, the United States submits the attending note of a
Tripler physician, dated May 12, 2007, which stated that
Saofaigaalii was told that his injuries were likely caused by the
March 2007 procedures.

See ECF No. 43-4, PageID #s 244-50.

The

attending note stated, “Had long counselling session with patient
and his son today about the likely etiology of the infection in
his back, his current treatment, and what the future will hold

12

for his treatment.

He demonstrates excellent insite into the

process and understands where we think he is currently.
their questions were answered to their satisfaction.”

All of
ECF No.

43-4, PageID # 240 (grammar and spelling as in the original).
Saofaigaalii does not dispute that he knew of his injuries and
knew who had inflicted the injuries by at least May 12, 2007.
The United States thus argues that the two-year statute of
limitations expired on May 12, 2009, well before Saofaigaalii
properly presented his claim to the appropriate agency in
September 2013.
On the present record, this court cannot conclude that
the United States is entitled to judgment as a matter of law
based on the FTCA’s statute of limitations.

Genuine issues of

material fact exist as to whether Saofaigaalii’s claim was
equitably tolled until September 2013, when he says he first
received the SF-95 form, filled it out, and returned it to
Tripler.
Until recently, Ninth Circuit case law “ha[d] come to
contradictory results” regarding whether the statute of
limitations in 28 U.S.C. § 2401(b) was jurisdictional and
therefore could not be equitably tolled.

Compare Alvarez-Machain

v. United States, 107 F.3d 696, 701 (9th Cir. 1996) (holding that
“[e]quitable tolling is available for FTCA claims in the
appropriate circumstances”), with Marley v. United States, 567

13

F.3d 1030, 1032 (9th Cir. 2009), overruled by Kwai Fun Wong v.
Beebe, 732 F.3d 1030 (9th Cir. 2013) (holding “that the statute
of limitations in 28 U.S.C. § 2401(b) is jurisdictional and,
consequently, equitable doctrines that otherwise could excuse a
claimant’s untimely filing do not apply”).2
However, in Kwai Fun Wong v. Beebe, 732 F.3d at 1038,
the Ninth Circuit held that, because the two-year statute of
limitations was merely a “claims-processing” provision and not a
jurisdictional factor, “equitable adjustment of the limitations
period in

§ 2401(b) is not prohibited.”

The Ninth Circuit’s

holding was affirmed by the United States Supreme Court last year
in United States v. Kwai Fun Wong, 135 S.Ct. 1625, 1638 (2015).
Equitable tolling thus is an available defense to the FTCA’s
statute of limitations.
“Because the FTCA’s statute of limitations is not
jurisdictional, failure to comply with it is merely an
affirmative defense which the defendant has the burden of
establishing.”

Schmidt v. United States, 933 F.2d 639, 640 (8th

2

The Ninth Circuit explained that Marley dismissed
Alvarez–Machain as having “no precedential value” because the
panel opinion in that case was vacated and the case was taken en
banc. Kwai Fun Wong, 732 F.3d at 1035 n.1. But the
Alvarez–Machain opinion that was vacated by the en banc decision
was a different opinion in the same case. Kwai Fun Wong, 732
F.3d at 1035 n.1. Therefore, the Alvarez–Machain ruling in issue
here “was still good law when Marley was decided,” and “[t]he
result was an intracircuit conflict.” Kwai Fun Wong, 732 F.3d at
1035 n.1.
14

Cir. 1991).

See also Houghton v. South, 965 F.2d 1532, 1536 (9th

Cir. 1992); Fed. R. Civ. P. 8(c).

As the movant for summary

judgment on its affirmative defense, the United States must
“establish the absence of a genuine issue of fact on each issue
material to [the] affirmative defense.”

Id. at 1537.

The United States argues, “At summary judgment, if the
defendant has established that the claim appears time-barred, the
burden shifts to the plaintiff ‘to establish that there is a
genuine issue for trial because equitable tolling may apply.’”
See ECF No. 53, PageID # 291 (citing Martin v. GMAC Mortgage
Corp., Civ. No. 11-00118 LEK, 2011 WL 6002617, at *7 (D. Haw.
Nov. 30, 2011)).

See also Gross v. Hous. Auth. of the City of

Las Vegas, No. 2:11-CV-1602 JCM CWH, 2014 WL 7014466, at *4 (D.
Nev. Dec. 11, 2014) (“Once the moving party provides [evidence in
support of its affirmative defense], the burden shifts to the
nonmoving party to set forth specific facts showing the existence
of genuine issues of material fact on the affirmative defense.”).
The United States further contends that, “Where, as here, the
plaintiff entirely fails to respond to the motion for summary
judgment, the plaintiff fails to establish a genuine issue for
trial, and summary judgment in favor of the defendants is
appropriate.”

See ECF No. 53, PageID # 291.

“Although the failure of a party to respond to a
summary-judgment motion may leave uncontroverted those facts

15

established by the motion, the moving party still must show that
the uncontroverted facts entitle the party to a judgment as a
matter of law.”

10A Charles Alan Wright & Arthur R. Miller,

Federal Practice & Procedure § 2725 (3d ed. 1998).

See, e.g.,

Maryland v. Universal Elections, Inc., 862 F. Supp. 2d 457 (D.
Md. 2012), aff’d on the merits, 729 F.3d 370 (4th Cir. 2013);
Custer v. Pan Am. Life Ins. Co., 12 F.3d 410, 416 (4th Cir.
1993).

“[T]hus, the court, in considering a motion for summary

judgment, must review the motion, even if unopposed, and
determine from what it has before it whether the moving party is
entitled to summary judgment as a matter of law.”
Practice & Procedure § 2725.

10A Federal

In other words, the lack of

opposition by itself does not automatically entitle a movant to
summary judgment.
Saofaigaalii did not file a written opposition to the
United States’ motion, but he did attempt to oppose the motion
orally at the hearing.

Although he did not expressly refer to

“equitable tolling,” he did identify issues of fact as to whether
the United States was entitled to judgment as a matter of law
regarding its statute of limitations defense.

See Martin, 2011

WL 6002617, at *7 (holding that burden shifts to plaintiff “to
establish that there is a genuine issue for trial because
equitable tolling may apply”).
This court’s review of the record, particularly

16

Saofaigaalii’s submissions regarding his communications with the
VA and the Army, also indicated the existence of factual issues
regarding whether Saofaigaalii could or should have presented his
FTCA claims sooner than he did.

It was those matters in the

record that caused the court to inquire into whether federal
regulatory obligations imposed on the United States in dealing
with claimants like Saofaigaalii had been met.

Although

Saofaigaalii, proceeding pro se, did not identify these
regulations himself, “A court is not confined to the particular
propositions of law advanced by the parties on a motion for
summary judgment” in deciding whether a movant is entitled to
summary judgment.

See, e.g., Smith v. Freland, 954 F.2d 343, 348

(6th Cir. 1992) (quoting Ware v. Trailer Mart, Inc., 623 F.2d
1150, 1154 (6th Cir. 1980)).

See also 10A Federal Practice &

Procedure, § 2725.
This court gave the United States an opportunity to
present arguments and evidence relating to the United States’
compliance or noncompliance with certain regulatory obligations.
See ECF No. 52.

The United States used this opportunity, filing

a supplemental memorandum and a supplemental concise statement of
facts that addressed the issue of equitable tolling.
Nos. 53, 54.

See ECF

Even with the new evidence submitted by the United

States, this court concludes that the evidence submitted by
Saofaigaalii raises genuine issues of material fact regarding

17

equitable tolling that preclude an award of summary judgment to
the United States.
1.

An Agency’s Failure to Satisfy Regulatory
Requirements May Justify Equitable Tolling.

“Generally, a litigant seeking equitable tolling bears
the burden of establishing two elements:

(1) that he has been

pursuing his rights diligently, and (2) that some extraordinary
circumstances stood in his way.”

Credit Suisse Sec. (USA) LLC v.

Simmonds, 132 S.Ct. 1414, 1419 (2012) (quoting Pace v.
DiGuglielmo, 544 U.S. 408, 418 (2005)).

“Equitable tolling

focuses primarily on the plaintiff’s excusable ignorance of the
limitations period.”

Lehman v. United States, 154 F.3d 1010,

1016 (9th Cir. 1998).

A statute of limitations is equitably

tolled until the plaintiff knew or reasonably should have known
of the limitations period.

See, e.g., U.S. ex rel. Hyatt v.

Northrop Corp., 91 F.3d 1211, 1216 (9th Cir. 1996).
Relevant to the issue of equitable tolling in this case
are two federal regulations that govern the VA’s handling of a
potential FTCA claim.

Under 38 C.F.R. § 14.604(a):

Each person who inquires as to the procedure
for filing a claim against the United States,
predicated on a negligent or wrongful act or
omission of an employee of the Department of
Veterans Affairs acting within the scope of
his or her employment, will be furnished a
copy of SF 95, Claim for Damage, Injury, or
Death. The claimant will be advised to
submit the executed claim directly to the
Regional Counsel having jurisdiction of the
area wherein the occurrence complained of
18

took place. He or she will also be advised
to submit the information prescribed by 28
CFR [§] 14.4 to the extent applicable. If a
claim is presented to the Department of
Veterans Affairs which involves the actions
of employees or officers of other agencies,
it will be forwarded to the Department of
Veterans Affairs General Counsel, for
appropriate action in accord with 28 CFR
[§] 14.2.
38 C.F.R. § 14.604(a).
The “very purpose” of section 14.604(a) is “to ensure
that a non-lawyer such as the plaintiff is informed, when
appropriate, of timing and filing requirements for claims against
the VA.”

Jackson v. United States, 488 F. Supp. 2d 191, 195-96

(N.D.N.Y. 2007) (citation omitted).
Section 14.604(a) refers in the above-quoted language
to 28 C.F.R. § 14.2, which provides:
When a claim is presented to any other
Federal agency, that agency shall transfer it
forthwith to the appropriate agency, if the
proper agency can be identified from the
claim, and advise the claimant of the
transfer. If transfer is not feasible the
claim shall be returned to the claimant. The
fact of transfer shall not, in itself,
preclude further transfer, return of the
claim to the claimant or other appropriate
disposition of the claim.
28 C.F.R. § 14.2.
There is a considerable body of cases in which an FTCA
claim has been equitably tolled because of the VA’s, or another
federal agency’s, failure to comply with its legal duties under
38 C.F.R. § 14.604 or 28 C.F.R. § 14.2.
19

In Glarner v. United States, Department of Veterans
Administration, 30 F.3d 697, 699 (6th Cir. 1994), the federal
district court recognized that an FTCA action against the VA was
equitably tolled when the VA failed in its duty to provide a copy
of the SF-95 form to Glarner, who instead was directed to file a
disability benefits claim under 38 U.S.C. § 1151.

However, the

district court ultimately dismissed the FTCA claim, finding that,
more than two years before he filed his FTCA claim, Glarner had
known or should have known that he needed to file an SF-95, given
the VA’s denial of his disability compensation benefits claim.
Id. at 699-700.

The Sixth Circuit reversed, explaining:

Contrary to the district court, we believe
that the denial letter did not give Glarner,
a non-lawyer, notice that he needed to fill
out an SF95 (or equivalent) to make out a
tort claim. While a skilled lawyer should
have known as much, Glarner reasonably
believed that all the claims he could make
were being processed. Proceeding pro se,
Glarner wrongly assumed that he had filed the
appropriate claims, but 38 C.F.R. § 14.604(a)
mandates that veterans not remain so
uninformed.
Id. at 702.
This court notes that other district courts have
examined VA actions analogous to those before this court.

In

James v. United States, No. 99 CIV. 4238 BSJ, 2000 WL 1132035
(S.D.N.Y. Aug. 8, 2000), the district court held that the statute
of limitations was equitably tolled because the VA had not given
the plaintiff an SF-95 form or instructed him on how to properly
20

file his claim.

See id., at *3 (finding that “the VA had a duty

to provide plaintiff with an SF 95 when VA officials learned of
his claims and that their failure to do so tolled the statute”
(citing Glarner, 30 F.3d at 701)).
The United States argued in James that “plaintiff’s
allegations are that he merely told his ‘story’ to two VA
officials and that such allegations fall short of triggering
§ 14.604(a) because plaintiff does not specifically allege that
he inquired as to the procedure for filing a claim against the
United States.”

2000 WL 1132035, at *3.

The district court

rejected this argument, explaining,
I do not read § 14.604(a) to require
plaintiff to utter any magic words when
alerting the VA to his claims. Such an
overly technical application of the
regulation would defeat its very purpose,
which is to ensure that a non-lawyer such as
the plaintiff is informed, when appropriate,
of timing and filing requirements for claims
against the VA. I find that implicit in
plaintiff’s complaints to various VA
officials was an expression by plaintiff of
his desire to learn what his options were,
and plaintiff’s numerous interactions with VA
officials should have indicated to the VA his
desire to file a claim.
Id.

“As a matter of fairness,” the court concluded “that the

VA’s failure to furnish plaintiff with an SF 95 and instructions
on how to file his claim, in light of § 14.604(a), constitutes
extraordinary circumstances sufficient to entitle plaintiff to
the benefit of the equitable tolling doctrine.”

21

Id., at *4.

Similarly, in Jackson, a veteran and his wife contacted
the VA to file a claim regarding injuries the veteran allegedly
suffered as a result of VA medical care.

488 F. Supp. 2d at 192.

The VA provided the plaintiffs with a claim form for disability
compensation benefits under 38 U.S.C. § 1151, but never informed
them about the existence of the FTCA or the SF-95 form.
193.

Id. at

The United States argued that the VA had no duty under 38

C.F.R. § 14.604 to provide the plaintiffs with an SF-95 form
because they had not expressly stated their intention to file a
negligence claim against the United States.

This argument was

rejected by the court, which explained:
As the district court stated in James: “I do
not read § 14.604(a) to require plaintiff to
utter any magic words when alerting the VA to
his claims. Such an overly technical
application of the regulation would defeat
its very purpose, which is to ensure that a
non-lawyer such as the plaintiff is informed,
when appropriate, of timing and filing
requirements for claims against the VA.” Id.
at *3. This Court agrees that claimants . .
. should not be required to recite some
special incantation prior to being informed
of the proper procedure for seeking relief
pursuant to the statutes and regulations.
Indeed, there should be no shibboleth to
identify FTCA claimants in cases like the one
at bar. See Glarner, 30 F.3d at 702
(“Proceeding pro se, [Plaintiff] wrongly
assumed that he had filed the appropriate
claims, but 38 C.F.R. § 14.604(a) mandates
that veterans not remain so uninformed.”
Jackson, 488 F. Supp. 2d at 195-96.

The court ruled that

equitable tolling applied because the plaintiffs “had neither

22

actual nor constructive knowledge of the filing requirement
(until meeting with [an attorney]).”

Id. at 197.

The court

considered the plaintiffs’ ignorance of the filing requirements,
including the statute of limitations, to have been “reasonable
given the duty of the VA to inform [them]--and the VA’s
subsequent failure to so notify.”

Id.

The court also noted that

the plaintiffs had been “diligent in prosecuting [their] claim
and rights,” and that the United States faced no prejudice by the
tolling of the claim.

Id.

Casey v. United States, 161 F. Supp. 2d 86 (D. Conn.
2001), is another case in which the statute of limitations for
filing an FTCA claim was equitably tolled given a VA benefits
counselor’s failure to provide proper guidance about the FTCA’s
filing requirements.

The court noted, “At no point during [its]

discussions with the plaintiff did any VA employee tell him how
to file a claim against the government, provide the proper forms
to him, or direct him to available resources to help him file
suit against the United States.”

Id. at 89.

The court agreed

with the reasoning in Glarner and James “that when VA officials
knew that a claimant wanted to file a tort claim against the
government, the failure to provide SF 95 to him violated a duty
owed to the claimant.”

The statute of limitations in Casey was

therefore tolled “until plaintiff reasonably became aware of the
filing requirements.”

Id. at 95-96.

23

In Bartus v. United States, 930 F. Supp. 679 (D. Mass.
1996), the United States filed a motion to dismiss on the basis
that the veteran plaintiff had failed to timely file an
administrative claim pursuant to the FTCA.

The court noted that

“Bartus intended to file a negligence claim for damages under the
FTCA.

But heeding the benefit counselor’s instructions, Bartus

instead filled out a § 1151 form for disability benefits” that
was denied twenty-two months later.

Id. at 680.

Realizing then

that he had filed the wrong form, Bartus tried to proceed with
the proper FTCA form, but the VA denied his claim as time-barred.
Id.

The court denied the motion to dismiss, holding that the

statute of limitations for Bartus’s FTCA claim was equitably
tolled from the date he filed a disability benefits claim form
based on the advice of the VA benefits counselor until the date
of the denial, which finally put him on notice that he should
have filed an FTCA claim.

Id. at 683.

The court observed that

“the VA arguably holds a duty to train its benefits counselors to
provide, or at least refer parties to someone who can provide,
the appropriate form to veterans contemplating a negligence suit
against the Government.”

Id. at 682.

“At the very least, this

regulation, taken in light of all the facts, which must be
construed in plaintiff’s favor, is a factor to be considered in
the decision to apply equitable tolling here.”

Id.

The court

added, “It would be distinctly unfair to allow this bureaucratic

24

snafu to foreclose plaintiff’s claim” when he did not have actual
or constructive knowledge of the FTCA’s filing requirements, he
diligently pursued his rights, he reasonably remained unaware of
proper FTCA procedures until the VA denied his § 1151 claim, and
the VA was not prejudiced by his being allowed to move forward
with his case.

Id. at 682-83.

The VA regulations evidence a policy of assisting
veterans who seek to make claims.
confined to the VA.

That federal policy is not

In Perez v. United States, 167 F.3d 913 (5th

Cir. 1999), a belly dancer sued the United States under the FTCA
for injuries she sustained when a Texas National Guard’s armored
personnel carrier struck a pole that knocked her unconscious.
Perez filed a state court action, but was later advised that the
guardsmen had been acting as employees of the federal government
when the incident happened.

Id. at 915.

When Perez later filed

a claim with the United States Army, it denied the claim, citing
the two-year statute of limitations under 28 U.S.C. § 2401(b).
Id.

The district court refused to apply equitable tolling and

dismissed her suit, finding that she “had failed to investigate
the nature of her claim diligently, and thus failed to recognize
that the Texas National Guard has a dual nature, sometimes
serving the federal government and sometimes serving the state.”
Id.
The Fifth Circuit reversed, explaining that the

25

National Guard, like the VA in Glarner, had failed to satisfy its
legal duty to the claimant to furnish the appropriate form and
forward an improperly presented claim if necessary.

Id. at 918.

The court explained that, because “there is a clear causal
connection between the government’s failure to follow its
regulations and the plaintiff’s filing of an improper complaint,”
equitable tolling was appropriate to “prevent [Perez] from
unjustly losing a claim vigorously pursued.”

Id. at 919.

With the above cases in mind, this court turns to the
issue of whether there is a genuine issue of fact in the present
case concerning the VA’s discharge of its legal duty under 38
C.F.R. § 14.604 to provide Saofaigaalii with an SF-95 form and
appropriate guidance regarding the filing of an FTCA claim.

See

Glarner, 30 F.3d at 701; see also 38 C.F.R. § 14.604(a) (“Each
person who inquires as to the procedure for filing a claim
against the United States, predicated on a negligent or wrongful
act or omission of an employee of the Department of Veterans
Affairs acting within the scope of his or her employment, will be
furnished a copy of SF 95, Claim for Damage, Injury, or Death.”).
2.

There Are Questions of Fact About Whether
and/or When the VA and/or the Army Satisfied
Their Regulatory Obligations.

The United States does not dispute that, when
Saofaigaalii met with a VA counselor about a claim, he was
provided with a “21-4138” form and advised to file a claim for

26

disability compensation benefits under 38 U.S.C. § 1151.
No. 1-4, PageID # 12.

See ECF

The United States contends that no duty

under 38 C.F.R. § 14.604(a) was triggered because Saofaigaalii’s
“claim for disability benefits includes no allegations or
implications of negligence or wrongdoing.”

See ECF No. 53,

PageID # 293.
The record, taken in the light most favorable to
Saofaigaalii, raises a factual question about whether the VA
should have discussed a negligence claim in Saofaigaalii’s
submissions.

Saofaigaalii’s claim included statements by family

members complaining that his treating physicians had been
negligent.

See ECF No. 1-17, PageID # 37 (“My father has

suffered enough and the doctors should be disciplined for their
negligence to his case.”); ECF No. 1-16, PageID # 35 (“The whole
point of my statement is that justice must be carried out and
these doctors should be questioned for their negligence [sic]
acts because if they had taken precautions then I think nothing
would happen at all.”); id., PageID # 34 (“After the surgery,
[Saofaigaalii] was released right away instead of being admitted
to a recovery ward to see how he was reacting to the procedure
they did.

I think that this was an act of negligence because it

seems that the life of patients were not the priority at this
time; the surgeons just wanted to get over it and authorized that
he was well enough to go back to the hotel.”).

27

These statements,

combined with Saofaigaalii’s statement that he “endured multiple
punctures into my spine for anesthesia purposes” that resulted in
a bacterial infection, chronic headaches, and numbness and pain
to his lower extremities, create a question of fact as to whether
the VA was or should have been on notice of Saofaigaalii’s
potential negligence claim under the FTCA.
Saofaigaalii’s response to the VA’s denial decision
could also be read as indicating that his claim was predicated on
negligence.

In a letter to the VA dated September 2, 2008, he

wrote,
The Reasons for all of these, because I am
getting Sicking tired of People being coverUp on all these Doctors’ Mistakes and UnProfessional Practice on my body. Also, I
will request this High Court of Veterans
Appeal to send me to the Specialist Doctors
to take my Complete Physical Examination and
check all these faults cause by Doctors.
ECF No. 54-5, PageID # 321 (grammar and spelling as in the
original).
Although the United States is correct that not all
disability benefits claims under § 1151 give rise to a legal duty
to provide an SF-95 form, the plain language of 38 C.F.R.
§ 14.604 does not limit the VA to furnishing an SF-95 form only
when a claimant expressly states an intent to file a negligence
claim against the United States.
very argument.

Jackson in fact rejected this

See 488 F. Supp. 2d at 195-96.

Like the court in

Jackson, this court reads 38 C.F.R. § 14.604 as imposing a duty
28

on the VA to furnish a claimant with an SF-95 form when the VA
knows or should know that a claim is or may be predicated on the
alleged negligence of a United States employee, even when this is
only implied or can only be inferred from the claimant’s
inquiries to the VA.

This is consistent with the VA’s own

assurance to Saofaigaalii that it considered “all claims we
understood to be specifically made, implied, or inferred in that
claim.”

See ECF No. 54-4, PageID # 318.

Given the allegations

and evidence that Saofaigaalii included when he filed his
disability benefits claim, and the VA’s own acknowledgment that
it had to consider all implied claims, a triable issue of fact
exists as to whether the VA should have known that Saofaigaalii
was attempting to assert a claim predicated on VA negligence.
The United States argues, “At the earliest, Plaintiff
presents facts which suggest a claim of negligence in his August
25, 2008 letter, but here too he does not request any information
about filing procedures.”

ECF No. 53, PageID # 293.

But the VA

may have contributed to Saofaigaalii’s silence about FTCA filing
procedures in his August 2008 letter.

In a letter dated March

21, 2008, the VA explained its denial of his claim, stating, “If
you do not agree with our decision, you should write us and tell
us why.

You have one year from the date of this letter to appeal

the decision.”

ECF No. 54-4, PageID # 318.

Arguably, it was

reasonable for Saofaigaalii to rely on the VA’s guidance by

29

proceeding with an appeal from the VA’s denial of disability
compensation benefits.

Because the record can be viewed as at

least suggesting that the VA’s own advice led Saofaigaalii to not
affirmatively inquire about how to proceed with a negligence
claim, summary judgment is not warranted.
James provides further support for recognizing that
questions of fact exist.

The James court noted that section

14.604(a) does not require the plaintiff “to utter any magic
words when alerting the VA to his claims.

Such an overly

technical application of the regulation would defeat its very
purpose, which is to ensure that a non-lawyer such as the
plaintiff is informed, when appropriate, of timing and filing
requirements for claims against the VA.”

2000 WL 1132035, at *3.

The James court concluded that “implicit in plaintiff’s
complaints to various VA officials was an expression by plaintiff
of his desire to learn what his options were, and plaintiff’s
numerous interactions with VA officials should have indicated to
the VA his desire to file a claim.”

Id.

This court also notes that the VA’s duty under 38
U.S.C. § 14.604(a) was not negated by any mistake by Saofaigaalii
as to whether it was a VA employee who had allegedly provided
negligent medical care.

The duty under 38 U.S.C. § 14.604(a) is

triggered when a claimant inquires about asserting a claim
predicated on the alleged negligence of a VA employee; the duty

30

does not evaporate when the VA concludes that any negligence is
attributable to someone outside the VA.

In Saofaigaalii’s

statement in support of his claim, he made clear that he believed
his injuries resulted from VA care.
32.

See ECF No. 1-15, PageID #

The VA’s position that any negligence was attributable to

the Army, not the VA, does not mean the VA owed Saofaigaalii no
duty.
The VA owed an additional duty under 38 C.F.R.
§ 14.604(a), if it became clear to the VA that Saofaigaalii was
seeking to assert a claim that “involve[d] the actions of
employees or officers of other agencies.”

38 C.F.R. § 14.604(a).

Such a claim was required to “be forwarded to the Department of
Veterans Affairs General Counsel, for appropriate action in
accord with 28 CFR [§] 14.2.”

Id.

The VA took the position that

it had no liability for disability compensation benefits under
§ 1151 because Tripler is “not considered to be a VA facility for
the purposes of 38 U.S.C. § 1151,” and, therefore, Saofaigaalii’s
injuries “were not actually the result of VA care.”
19, PageID # 41.

ECF No. 1-

If the VA determined that what Saofaigaalii was

claiming “involve[d] the actions of employees or officers of
other agencies,” the VA had a legal duty to either furnish
Saofaigaalii with an SF-95 form, or to forward his claim to the
appropriate agency.

Nothing in the record indicates that the VA

did either.

31

Given the evidence in the record regarding the VA’s
conduct, questions of fact exist about whether the United States
satisfied its obligations to Saofaigaalii.

There is evidence in

the record suggesting that Saofaigaalii neither knew nor should
have known of the FTCA’s filing requirements before September
2013.

See, e.g., U.S. ex rel. Hyatt v. Northrop Corp., 91 F.3d

1211, 1216 (9th Cir. 1996) (“Under equitable tolling, courts toll
the running of the statute of limitations until the plaintiff
knew or reasonably should have known of the facts underlying his
cause of action.”).
Thus, for example, nothing in the record suggests that
Saofaigaalii knew or should have known that he had to file an
FTCA claim when the VA denied his disability compensation
benefits claim.

In this respect, Saofaigaalii is unlike the

veteran in Bartus, who, according to the Massachusetts federal
district court, “realized he had filed the wrong claim form” when
he learned that the VA had denied his disability benefits claim.
930 F. Supp. at 680.

Bartus had been told that the VA was

writing new regulations, given a decision by the Court of
Veterans Appeals voiding existing VA regulations “concerning tort
claims for claims filed as a result of a disability which was
incurred or aggravated during VA-authorized medical examinations,
treatment or vocational rehabilitation.”

Id.

Saofaigaalii had

no equivalent suggestion that a tort claim might be in issue.

32

On August 12, 2010, Saofaigaalii met with a VA
counselor, who informed him that his appeal had been denied and
allegedly “advised [Saofaigaalii] to put [his] Claim straight to
Tripler Hospital.”

See ECF No. 1-12, PageID # 27.

However, the

VA counselor’s statement was not sufficient to satisfy the VA’s
duty under 38 C.F.R. § 14.604(a).

There is no indication that

the counselor provided Saofaigaalii with an SF-95 form or
explained the requirements for asserting an FTCA claim.

The

record suggests otherwise, as Saofaigaalii appears to have
attempted to follow the counselor’s threadbare advice by sending
a letter to the Brigadier General at Tripler that did not comply
with the FTCA’s presentment requirements.

See ECF No. 1-10,

PageID # 22.
The United States argues that, even if tolling applies,
it must end on or around March 24, 2011, when the Medical Claims
Judge Advocate at Tripler mailed an SF-95 form to Saofaigaalii’s
American Samoa address.

See ECF No. 53, PageID # 293.

According

to the United States, “the March 24, 2011 letter satisfied the
government’s obligation, in that it gave clear instructions on
how to file an FTCA claim and provided blank SF-95 forms to
Plaintiff.”

Id., PageID # 294.

If, as the United States argues,

Saofaigaalii received the form in late March or early April of
2011, the statute of limitations would have run from then to late
March or early April of 2013.

This would mean that

33

Saofaigaalii’s presentment of his completed SF-95 to Tripler in
September 2013 would have been untimely.

See ECF No. 43, PageID

# 198.
To establish that Saofaigaalii received the letter and
therefore knew of the FTCA’s limitations period, the United
States urges this court to apply the common law “mailbox rule.”
The common law mailbox rule provides that “proof that a letter
properly directed was placed in a post office creates a
presumption that it reached its destination in usual time and was
actually received by the person to whom it was addressed.”
Hagner v. United States, 285 U.S. 427, 430 (1932).
Even if the mailbox rule were applicable, it would not
establish that Saofaigaalii knew or reasonably should have known
of the FTCA’s limitations period because of the Judge Advocate’s
letter.

The mailbox rule only creates a presumption of receipt.

However, Saofaigaalii has rebutted this presumption.

At the

hearing on the present motion, he stated clearly that he never
received the letter.

While his unsworn statement is not in

admissible format, this court may consider the statement at
summary judgment.

The Ninth Circuit has held that a district

court may consider an unsworn statement if the same statement
could obviously be presented in admissible form at trial.

See

Fraser v. Goodale, 342 F.3d 1032, 1036-37 (9th Cir. 2003); see
also Block v. City of Los Angeles, 253 F.3d 410, 418-19 (9th Cir.

34

2001) (“To survive summary judgment, a party does not necessarily
have to produce evidence in a form that would be admissible at
trial, as long as the party satisfies the requirements of Fed. R.
Civ. P. 56.” (citation omitted)).

At trial, Saofaigaalii himself

could testify to what he says is his nonreceipt of the letter.
In addition, the record taken in the light most
favorable to Saofaigaalii supports his statement that he never
received the March 2011 letter.

There is no certified mail

receipt signed by Saofaigaalii evidencing his actual receipt of
the letter.

The record also shows that, around the time the

letter was mailed, Saofaigaalii was traveling back and forth from
American Samoa to Hawaii for treatment and spending significant
periods of time at Tripler and other hospitals on Oahu.
No. 1-4, PageID # 12.

See ECF

It is not clear whether the certified

letter could have been left in his mailbox in American Samoa in
his absence, or whether the mail carrier might have held it at
the post office.

In addition, the Judge Advocate who met with

Saofaigaalii in 2013 regarding his claim stated that “Plaintiff
clarified that he had first received the SF-95 in September
2013.”

ECF No. 43-1, PageID # 205.

The United States in fact

cited this statement in its own separate and concise statement of
facts.

See ECF No. 43, PageID # 199.

Given this evidence, a

genuine issue of material fact exists as to whether Saofaigaalii
received the letter and the blank SF-95 form in late March or

35

early April 2011.
Even if Saofaigaalii did receive the letter, this by no
means establishes that Saofaigaalii should have reasonably known
how to adequately and timely file his FTCA claim.

Like the VA,

the Department of the Army must adhere to federal requirements
regarding its handling of claims.

See 32 C.F.R. § 536 et seq.

One such regulation, 32 C.F.R. § 536.28, provides:
Claims personnel will acknowledge all claims
immediately upon receipt, in writing, by
telephone, or in person. A defective claim
will be acknowledged in writing, pointing out
its defects. Where the defects render the
submission jurisdictionally deficient based
on the requirements discussed in DA Pam
27–162, paragraphs 2–5 and 2–6, the claimant
or attorney will be informed in writing of
the need to present a proper claim no later
than two years from the date of accrual.
32 C.F.R. § 536.28.

In her letter, the Judge Advocate did not

inform Saofagaalii of the need to present a proper claim within
two years.

She did include the SF-95 form, which refers to

“DAMAGES IN A SUM CERTAIN FOR INJURY TO OR LOSS OF PROPERTY,
PERSONAL INJURY, OR DEATH ALLEGED TO HAVE OCCURRED BY REASON OF
THE INCIDENT.”

The SF-95 form also says, “THE CLAIM MUST BE

PRESENTED TO THE APPROPRIATE FEDERAL AGENCY WITHIN TWO YEARS
AFTER THE CLAIM ACCRUES.”

(Emphasis and bold in the original).

But the fine print would not necessarily have placed Saofaigaalii
on notice to timely file his claim.

Indeed, had Saofaigaalii

read and understood the SF-95 form, he could have logically

36

assumed that it was too late in 2011 to file a claim based on
injuries he allegedly suffered in 2007.

That is, the fine print

in the SF-95 form could have put him on notice that filing the
claim at that point was futile.
Nothing else in the form indicated that he could still
present a viable claim outside this two-year window.

Nor did the

Judge Advocate provide any further guidance in her letter to
Saofaigaalii that would have notified him of how to properly file
his FTCA claim, or the possibility that he could still file a
valid claim.
The United States submits that any duty any federal
agency had was satisfied by the mailing of the Judge Advocate’s
letter, regardless of whether or not Saofaigaalii ever received
it.

According to the United States,
the equitable basis of the tolling is that
the VA failed in a legal duty to plaintiff.
Glarner, 30 F.3d at 701. Even assuming that
Plaintiff did not receive the March 24, 2011
letter by some unknown misfortune, the legal
duty owed to Plaintiff was satisfied on March
24, 2011 when Ms. Morphis sent by Certified
Mail instructions to file a claim and the
blank SF-95. As a result, the basis for the
equitable tolling no longer existed as of
March 24, 2011, and all delay thereafter is
chargeable to Plaintiff.

ECF No. 53, PageID # 295.

The United States provides no legal

authority in support of this argument.

The regulatory

requirements are intended to ensure that a claimant unfamiliar
with the filing requirements is able to receive the proper
37

guidance and forms from the appropriate agencies, which are
charged with being knowledgeable about the FTCA.

See Jackson,

488 F. Supp. 2d at 195-96 (The “very purpose [of 38 C.F.R.
§ 14.604] is to ensure that a non-lawyer such as the plaintiff is
informed, when appropriate, of timing and filing requirements for
claims against the VA.” (citation omitted)).
Moreover, because the Judge Advocate was a Department
of Army employee, not a VA employee, the applicable regulation
governing her letter was 32 C.F.R. § 536.28, not 38 C.F.R.
§ 14.604.

The focus of 32 C.F.R. § 536.28 is the need for Army

claims personnel to ensure that a claimant recognizes FTCA
requirements.

The regulation is not aimed at the mere

transmission of notice.

After all, 32 C.F.R. § 536.28 requires

claims personnel to “acknowledge all claims immediately upon
receipt, in writing, by telephone, or in person,” to acknowledge
a defective claim in writing, and to “inform” a claimant or
attorney in writing when the defects in a claim render its
submission jurisdictionally deficient.

Of course, the Army had

no duty to acknowledge a claim or a claim’s defects before the
claim was filed, but the clear spirit of 32 C.F.R. § 536.28 is to
actively inform a claimant, not just to mail forms.
There is a further reason this court cannot rule as a
matter of law that Saofaigaalii’s September 2013 presentment of
his claim was time-barred, even if he received the Judge

38

Advocate’s letter in March 2011.

The record shows that

Saofaigaalii fell into a coma just before the two-year statute of
limitations would have lapsed had it been triggered by the letter
dated March 23, 2011.

According to Saofaigaalii,

I was in COMA for two (2) months in Tripler
Army Medical Center from February thru March
2013. I was in ICA, and than PROGRESSIVE
CARE UNIT, and than to the ward, and than
after that, I was transferred to the CFA. I
was Discharged from CFA on October 03, 2013.
I returned to Home in American Samoa on
October 09, 2013 on Special Flight. I am not
still fully recover for my situations since I
was in Hospital. My conditions is come very
slowly to recover from COMA.
ECF No. 1-4, PageID # 12 (grammar and spelling as in the
original).
Other courts have understandably found a coma to be an
“extraordinary circumstance” that can equitably toll a
limitations period.

See, e.g., Moses v. Westchester County Dept.

of Corr., 951 F. Supp. 2d 448, 454 (S.D.N.Y. 2013); Eber v.
Harris County Hosp. Dist., 130 F. Supp. 2d 847, 867 (S.D. Tex.
2001) (“Under the circumstances, equitable tolling would appear
to be appropriate for the time period Eber was in a coma.”);
Clifford v. United States, 738 F.2d 977, 980 (8th Cir. 1984)
(tolling statute of limitations when alleged malpractice caused
coma).
The record indicates that Saofaigaalii was transferred
to different care facilities after his coma and only discharged

39

in October, 2013.

It is unclear on the present record whether

Saofaigaalii’s medical condition justifies tolling the
limitations period until the date he filed his claim.
The United States may find evidence that Saofaigaalii
was indeed able to file his claim at some point before his
September 2013 presentment.

But on the present record, this

court concludes that, even assuming the limitations period began
to run in late March or early April 2011, there is a genuine
issue of material fact as to whether “extraordinary
circumstances” prevented Saofaigaalii from timely filing his
claim by late March or early April 2013.
The record shows that Saofaigaalii routinely acted with
promptness to comply with instructions and meet deadlines when
informed of them.

When provided with a disability compensation

benefits form on September 26, 2007, Saofaigaalii completed it
that very day.

He timely appealed the VA’s denial of benefits.

Informed on August 12, 2010, by the VA to file any claim with
Tripler, he sent a letter to the Brigadier General within less
than sixty days, and followed up with another letter a month
later.

He was given an SF-95 form during a meeting with Judge

Advocate Soto in September 2013 and mailed the completed form on
September 27, 2013, delivering another copy of the completed form
in person on September 30, 2013.

Ignoring a letter mailed in

March 2011 for two years would have been a departure from his

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practice.
In summary, the court concludes that the evidence,
viewed in the light most favorable to Saofaigaalii, raises
genuine issues of material fact as to whether Saofaigaalii’s
claim should be equitably tolled until September 2013.
Saofaigaalii has provided some evidence that he “exercis[ed] due
diligence” in attempting to file a claim with the VA within a few
months of the medical procedure on March 12, 2007.
Wong, 732 F.3d at 1052.

See Kwai Fun

See ECF No. 1-19, PageID # 40.

Indeed,

he continued to communicate with the VA and later with Tripler
about his concerns.

This court cannot say that there is no

factual issue as to whether Saofaigaalii had actual or
constructive knowledge of the filing requirement before his
meeting with the Judge Advocate in September 2013.

See Jackson,

488 F. Supp. 2d at 197. There is a triable issue as to whether
Saofaigaalii’s ignorance of the filing requirements, including
the statute of limitations, “was reasonable given the duty of the
VA to inform him--and the VA’s subsequent failure to so notify.”
Id.

Similarly unclear on the present record is whether the

United States’ failure to properly advise Saofaigaalii of the
FTCA’s requirements contributed to the timing of his submission
of his FTCA claim.
This court also notes that the tolling of the claim
does not appear to impose any prejudice on the United States.

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Saofaigaalii raised his medical concerns promptly with the VA,
which was able to properly investigate Saofaigaalii’s condition
with his full cooperation.
Even if there is potential prejudice to the United
States, it could arguably have been avoided if the VA had
promptly forwarded the claim to the Department of the Army, or
counseled Saofaigaalii early on to fill out and send an SF-95
form to the Department of the Army, and if the Department of the
Army had then investigated Saofaigaalii’s claim earlier.
As this court has already noted, the “very purpose [of
38 C.F.R. § 14.604] is to ensure that a non-lawyer such as the
plaintiff is informed, when appropriate, of timing and filing
requirements for claims against the VA.”
2d at 195-96 (citation omitted).

Jackson, 488 F. Supp.

The existence of regulations

such as 38 C.F.R. § 14.604 underscores the VA’s own recognition
of the complexity and potential confusion facing a person who
wants to assert a tort claim against the United States.

These

regulations require federal agencies and their counselors to be
familiar with the basic requirements of the FTCA and to be
responsible for notifying claimants when it appears that they are
trying to file claims under the FTCA.

If, as Saofaigaalii

alleges, the United States was negligent in treating him, it
would work a serious injustice if a possible failure by the
United States to comply with its regulatory duties prevented

42

Saofaigaalii from seeking fair compensation for the allegedly
negligent medical care.
B.

The United States’ Remaining Arguments.

The United States asserts two other arguments in favor
of summary judgment.

First, the United States argues that all

the statements in its First Request for Admissions must be deemed
admitted by Saofaigaalii because he failed to respond to the RFA.
See ECF No. 42-1, PageID #s 183-84.

Second, the United States

notes that Saofaigaalii has failed to identify a medical expert
for his medical negligence claim, and, therefore, cannot prove
the essential element of causation.

See id., PageID #s 191-93.

The FTCA provides that the United States is subject to
suit “in accordance with the law of the place where the
act or omission occurred.”

28 U.S.C. § 1346(b)(1).

Hawaii law on medical negligence is controlling.

Accordingly,

The United

States is correct that “the question of negligence must be
decided by reference to relevant medical standards of care, for
which the plaintiff carries the burden of proving through expert
medical testimony.”

See ECF No. 42-1, PageID # 191.

See, e.g.,

Craft v. Peebles, 78 Haw. 287, 298, 893 P.2d 138 (1995) (“It is
well settled that in medical malpractice actions, the question of
negligence must be decided by reference to relevant medical
standards of care for which the plaintiff carries the burden of
proving through expert medical testimony.”); Carr v. Strode, 79

43

Haw. 475, 485 n.6, 904 P.2d 489 n.6 (1995) (same).

“Under

Hawaiian law, the plaintiff in a medical malpractice action must
show causation through expert testimony.”

Domingo v. T.K., 289

F.3d 600, 607 (9th Cir. 2002).
The deadline for expert disclosures was December 7,
2015, but Saofaigaalii has not served on the United States any
initial disclosures pursuant to Fed. R. Civ. P. 26(a)(1), or any
expert disclosures pursuant to Fed. R. Civ. P. 26(a)(2).

Nor has

Saofaigaalii sought an extension of either deadline.
With regard to the issue of the RFA, the United States
gave Saofaigaalii numerous opportunities to provide responses,
and it extended the deadline more than once, but Saofaigaalii
could only respond, “I would like to apologized about my part it
is incompleted.
not find anyone.”

I have seek for someone to help me but I could
See ECF No. 42-1, PageID # 180.

At the

hearing, Saofaigaalii represented that he contacted several
attorneys, but none would accept his case because they believed
that the statute of limitations had expired.

The United States

also stated at the hearing that there would be no prejudice to
allowing Saofaigaalii time to seek and disclose a medical expert
and respond to its request for admissions.

Given these

circumstances, this court declines to grant summary judgment
based on these two grounds.

The present order may assist

Saofaigaalii in obtaining an attorney, and this court will allow

44

Saofaigaalii to seek an attorney who may be able to advise him
regarding his negligence claim and argue for an extension of the
relevant deadlines.
Court staff contacted a Honolulu attorney who
advertises Samoan language ability, but that attorney
unfortunately did not agree to represent Saofaigaalii.

This

court is in the process of trying to establish a formal program
in which pro bono counsel will represent parties who otherwise
proceed pro se.

That program is months away from commencing so,

in the meantime, Saofaigaalii himself should consider reaching
out to attorneys in light of this order.

This court sets a

status conference for July 18, 2016, at 9:00 a.m., to discuss the
situation.
V.

Saofaigaalii may participate by telephone.
CONCLUSION.
For the reasons set forth above, the court denies the

United States’ motion for summary judgment.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, June 23, 2016.

/s/ Susan Oki Mollway
Susan Oki Mollway
United States District Judge

Saofaigaalii v. Tripler Army Medical Center, et al., Civ. No. 14-00455 SOM/KSC; ORDER
DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

45