WILLIAMSON v. UNITED STATES OF AMERICA

Filing 16

ORDER - For the reasons stated within, Defendant's Motion for Summary Judgment [Dkt. No. 9 ] is GRANTED. Final Judgment shall enter accordingly. Signed by Judge Sarah Evans Barker on 2/24/2017. (JD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

JB WILLIAMSON,

)
)
)
)
)
)
)
)
)

Plaintiff,
vs.
UNITED STATES OF AMERICA,
Defendant.

No. 1:16-cv-00642-SEB-MJD

ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
This cause is now before the Court on Defendant’s Motion to Dismiss, or in the
alternative, for Summary Judgment [Docket No. 9], filed on July 11, 2016, pursuant to
Federal Rules of Civil Procedure 12(b)(6) and 56, respectively. Plaintiff JB Williamson
filed this lawsuit against Defendant United States of America alleging a claim under the
Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2401. For the reasons detailed below, we
GRANT Defendant’s Motion for Summary Judgment.
Factual and Procedural Background
On August 16, 2011, Williamson underwent a total left hip replacement at a
facility operated by the United States Department of Veteran Affairs (the “VA”). During
a follow-up appointment on January 6, 2012, Williamson complained of pain in his left
leg, and X-rays revealed that he had what is referred to as a “heterotopic bone.”1 See

Heterotopia is “the formation of tissue in a part where its presence is abnormal.” Heterotopia Definition,
DICTIONARY.COM, http://www.dictionary.com/browse/heterotopia?s=t (last visited Feb. 17, 2017).
1

1

Def.’s Br. at 2. Williamson received revision surgery on February 2, 2012 to resolve the
femoral stem loosening causing him pain, and on February 14, 2012, he filed his first
Notice of Tort Claim with the VA claiming that he had been in pain ever since his August
16, 2011 surgery and that he was being offered a “corrected” surgery. See Def.’s Br. at 23; Docket No. 9-1 at 2; Docket No. 9-10.
During a post-operative appointment on February 17, 2012, X-rays were taken of
Williamson’s left leg which revealed something deemed “suspicious.” See Def.’s Br. at
2-3. As a result, more X-rays and a femoral CT scan were performed later that day, which
disclosed a possible femoral fracture. See Def.’s Br. at 3. On February 24, 2012,
Williamson was informed that he had sustained a femoral fracture apparently as a result
of his hip surgery. See Pl.’s Br. Resp. at 1, 7. On February 28, 2012, Williamson filed a
second Notice of Tort Claim regarding this femoral fracture. See Def.’s Br. at 3; Docket
No. 9-12 at 1.
On August 3, 2012, the VA denied both his February 14 and February 28, 2012
tort claims, and Williamson took no further action on either claim. See Def.’s Br. at 3;
Docket No. 9-11; Docket No. 9-13.
Eighteen months later, on February 24, 2014, Williamson filed the Notice of Tort
Claim now in dispute, alleging that both of his surgeries were not performed correctly.
See Def.’s Br. at 3; Docket No. 9-14. The VA denied this claim on September 22, 2015,
and Williamson filed this lawsuit on March 22, 2016. See Def.’s Br. at 4; Docket No. 915; Docket No. 1.

2

Legal Standard
Defendant has submitted materials outside the pleadings that are germane to our
discussion, and both parties have addressed the summary judgment standard in their
briefing; therefore, pursuant to Fed. R. Civ. P. 12(d), we treat Defendant’s motion as a
motion for summary judgment.
Summary judgment is appropriate when the record shows that there is “no genuine
issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law.” Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Disputes concerning material facts are genuine where the evidence is such that a
reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). In deciding whether genuine issues of material
fact exist, the court construes all facts in a light most favorable to the non-moving party
and draws all reasonable inferences in favor of the non-moving party. See id. at 255.
However, neither the “mere existence of some alleged factual dispute between the
parties,” id. 477 U.S. at 247, nor the existence of “some metaphysical doubt as to the
material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986), will defeat a motion for summary judgment. Michas v. Health Cost Controls of
Illinois, Inc., 209 F.3d 687, 692 (7th Cir. 2000).
Discussion
Defendant raises two arguments in support of the motion now before us: (1) that
Williamson did not timely file the February 24, 2014 tort claim within the two-year
3

statutory window which ended on February 17, 2014, and (2) that the February 24, 2014
tort claim is nothing more than an attempt to resurrect the February 14 and February 28,
2012 tort claims, which were denied by the VA but never appealed in a lawsuit. We
discuss these issues in turn below.
I.

Untimely filing of February 24, 2014 Notice of Tort Claim
Plaintiff brought this action against Defendant pursuant to the FTCA, 28 U.S.C. §

2401(b). The FTCA is a limited waiver of sovereign immunity that subjects the federal
government to liability for certain torts committed by federal employees acting within the
scope of their employment. 28 U.S.C. §§ 2671-2680; United States v. Orleans, 425 U.S.
807, 9 S.Ct. 1971, 48 L.Ed.2d 390 (1976). The FTCA, however, limits this waiver of
immunity by providing strict timelines for the filing of such claims:
[a] 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 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).
A claim accrues when a plaintiff has “knowledge of the injury and that the
defendant or an employee of the defendant acting within the scope of his or her
employment may have caused the injury.” Arteaga v. United States, 711 F.3d 828, 831
(7th Cir. 2013) (citing Arroyo v. United States, 656 F.3d 663, 668-69 (7th Cir. 2011);
Massey v. United States, 312 F.3d 272, 276-77 (7th Cir. 2002); Skwira v. United States,
344 F.3d 64, 74 (1st Cir. 2003)). However, “complete knowledge of the cause of …
4

injury” is not required to start the clock; it begins running “‘either when the government
cause is known or when a reasonably diligent person (in the tort claimant’s position)
reacting to any suspicious circumstances of which he might have been aware would have
discovered the government cause—whichever comes first.’” Arroyo v. United States, 656
F.3d 663, 669 (7th Cir. 2011) (quoting Drazan v. United States, 762 F.2d 56, 59 (7th Cir.
1985) (emphasis added)).
Defendant contends that Williamson’s February 24, 2014 tort claim is untimely
because it accrued no later than February 17, 2012, when he learned “he had likely
incurred a femoral facture [sic] during his February 2, 2012 surgery.” See Def.’s Br. at 6.
Both the Defendant’s and Plaintiff’s briefs state that on February 17, 2012, Williamson’s
X-rays turned up “suspicious” indicators of a femoral fracture. Williamson counters that
his claim did not accrue until February 24, 2012, when his femoral fracture was
confirmed and reported to him. See Def.’s Br. at 3; Pl.’s Br. Resp. 1.
While it is clear that the fracture became definitively known on February 24, 2012,
there remain genuinely disputable facts as to whether the X-rays taken on February 17,
2012, provided Williamson with enough notice to raise a suspicion that he had suffered
an injury that would trigger his accrual period. Regardless, because we hold below that
Williamson’s February 14, 2014 tort claim is duplicative of his previously-filed claims,
we need not determine the precise date on which the two-year accrual period began.
II.

Resurrection of Williamson’s Previous Tort Claims
Defendant has also moved for summary judgment on grounds that: (1) the current

claim is duplicative of Plaintiff’s February 14 and February 28, 2012 tort claims, which
5

were not timely appealed, see Def.’s Br. at 6; and (2) he cannot resurrect previous tort
claims by subsequently filing a duplicative claim.
Pursuant to the FTCA, “a suit must be filed within six months of a denial of the
claim by the federal agency charged with a tort,” Charlton v. United States, 743 F.2d 557,
558 (7th Cir. 1984) (citing 28 U.S.C. § 2401(b)), and “failure to file within six months of
the denial divests the federal district court of jurisdiction.” Charlton, 743 F.2d at 558
(citing Stewart v. United States, 655 F.2d 741 (7th Cir. 1981); Best Bearings Co. v.
United States, 463 F.2d 1177 (7th Cir. 1972)). Based on the August 3, 2012 denials from
the VA with regard to his February 14 and February 28, 2012 tort claims, Williamson’s
filing deadline in the district court was six months thereafter, on April 3, 2013. See Def.’s
Br. at 3. Defendant argues that because Williamson failed to timely file suit in this Court
to challenge the denial of his previous claims, he is now barred from proceeding on the
February 24, 2014 tort claim because it seeks redress for the same claims and is therefore
duplicative. See Def.’s Br. at 6-7.
Defendant relies on Roman-Cancel v. United States, 613 F.3d 37 (1st Cir. 2010),
which holds that a later-filed tort claim cannot resurrect previously denied tort claims that
were not appealed. Though the Seventh Circuit has not yet directly addressed this issue,
“we give most respectful consideration to the decisions of the other courts of appeals and
follow them whenever we can.” Colby v. J.C. Penny Co., 811 F.2d 1119, 1123 (7th Cir.
1987) (citing Richards v. Local 134, Int’l Brotherhood of Electrical Workers, 790 F.2d
633, 636 (7th Cir. 1986)). Pursuant to Roman-Cancel’s test for duplicative FTCA claims,
the Court “can regard the second [duplicative] claim in one of two ways: as either an
6

attempt to re-file the original claim or an attempt to have the agency reconsider its
disposition of the original claim.” 613 F.3d at 42.
If Plaintiff’s February 24, 2014 tort claim is viewed as an attempt to re-file his
previous claims, the FTCA timelines remain in place with regard to the originally-filed
claims and do not restart simply because a new claim has been made. Id. Accordingly,
Williamson’s deadlines for the February 14 and February 28, 2012 tort claims would
have expired on April 3, 2013, making an attempted re-file impossible. Alternatively, a
duplicative claim may be viewed as a request for the VA to reconsider its decision. Id. at
42-43. This, though, requires that the claims be filed with the VA within six months of
their denial, based on the guidelines established by 28 U.S.C. § 2401(b). Id. at 43. Thus,
under either view, Plaintiff’s February 14 and February 28, 2012 tort claims had a
reconsideration deadline of April 3, 2013—a deadline Williamson did not meet. See
Def.’s Br. at 3.
Williamson rejoins that the February 24, 2014 tort claim is not duplicative because
it differs in material fashion from the first two tort claims, stating that the claim in this
litigation concerns post-operative care whereas the former concerned his two surgeries.
Defendant rejects this distinction, stating that post-operative care was part of the rejected
February 28, 2012 claim. See Def.’s Reply at 1.
When reviewing the record, Plaintiff’s purported distinction is not apparent:
1. From the “Basis of Claim” portion of his complaint on February 14, 20122:

2

Transcribed as accurately as possible.

7

During sergure [sic] Dr. Meldrum stated he countered a
condition that he evidently wasnt [sic] prepared to deal. Some
with bone. Leave condition knowing the parallices [sic] it
would cause. Put the hip inplant [sic] knowing the parallics
[sic] cause sent me home. Like it was all good. For next 6
months nothing but pain and suffering. When I couldnt [sic] in
dure [sic] pain as [sic] him for strong med. to combat pain, He
offer corrected surgary I want to get well.
Docket No. 9-10.
2. From the “Basis of Claim” portion of his complaint on February
28, 20123:
Due to over tighten [sic] of replacement hip parts did cause
thigh bone [unknown] spintter [sic] [unknown] causing
abundance pain and suffer left to see [unknown] will fill crack
in thigh bone.
Docket No. 9-12 at 1.
3. From the “Basis of Claim” portion of his complaint on February 24, 2014:
I went into surgery twice, and they did not do it right. I am not
a doctor or nurse, and I don’t know everything a doctor or nurse
is supposed to do. However, I believe they did not do my
surgeries right, they did not tell me things that could go wrong,
or what could be done differently.
Docket No. 1-1 at 2 (emphasis added).
Contrary to Plaintiff’s current argument, his February 24, 2014 tort claim makes
no mention of his post-operative care. Rather, Williamson’s own statements clearly
indicate that all three claims allege wrongdoing during his surgeries. Therefore,
Williamson’s February 24, 2014 claim is not independent from the two previously-filed
claims and is simply an untimely attempt to re-file those claims.

3

Transcribed as accurately as possible.

8

Conclusion
By failing to timely file suit within six months of the VA’s denial on his February
14 and February 28, 2012 tort claims, Williamson failed to satisfy the statutory
requirements of 28 U.S.C. § 2401(b), thereby divesting this court of jurisdiction to hear
them. Because his February 24, 2014 claim is materially duplicative of those prior claims,
we also lack jurisdiction to hear this appeal. For this reason, we GRANT Defendant’s
Motion for Summary Judgment [Docket No. 9]. Final Judgment shall enter accordingly.

IT IS SO ORDERED.

_______________________________

02/24/2017
Date: _____________

SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana

Distribution:
Robert M. Oakley
DILLEY & OAKLEY PC
[e-mail]
Daniel Kyle Dilley
DILLEY & OAKLEY, P.C.
[e-mail]
Jill Z. Julian
UNITED STATES ATTORNEY'S OFFICE
[e-mail]
Kathryn E. Olivier
UNITED STATES ATTORNEY'S OFFICE
[e-mail]

9