CARPENTER v. FRANCHINI et al

Filing 30

ORDER ON THE GOVERNMENT'S MOTION TO DISMISS granting 19 Motion to Dismiss for Lack of Jurisdiction By JUDGE JON D. LEVY. (akr)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
DOUGLAS CARPENTER,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.

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ORDER ON THE GOVERNMENT’S MOTION TO DISMISS
This case arises from allegedly negligent medical treatment that Dr. Thomas
Franchini, a former Veterans Administration podiatrist at the Togus Veterans
Administration Medical Center (“VAMC”) in Augusta, Maine, provided to the
Plaintiff, Douglas Carpenter. The Government moves to dismiss Carpenter’s claim,
which is brought under the Federal Tort Claims Act (“FTCA”), 28 U.S.C.A. § 2671 et
seq. (West 2019),1 for lack of subject-matter jurisdiction under Federal Rule of Civil
Procedure 12(b)(1) (ECF No. 19). The Government argues that Carpenter’s claim is
barred because he failed to comply with Maine’s statute of repose for professional
negligence actions, 24 M.R.S.A. § 2902 (Westlaw through Ch. 112, and 114 to 169 of
2019 1st Reg. Sess. of 129th Leg.). ECF No. 19 at 7-9. Carpenter, who is proceeding
pro se, responds by asserting that § 2902 does not bar his claim because VAMC
fraudulently concealed Franchini’s malpractice. ECF No. 24.

1 As the Government notes in its motion, Carpenter does not cite to the FTCA in his complaint, but the FTCA
is the proper vehicle by which to bring this type of claim. ECF No. 19 at 1 n.1. I therefore infer that Carpenter’s
claim is brought pursuant to the FTCA.

In an order dated February 28, 2019 (ECF No. 27), I deferred ruling on the
Government’s motion to dismiss and authorized Carpenter to amend his complaint
and to perform limited discovery on the issue of fraudulent concealment. The order
established deadlines for Carpenter to file an amended complaint and to serve the
Government with interrogatories and requests for production. ECF No. 27 at 4. On
April 26, 2019, the Government filed a status report (ECF No. 28) informing the Court
that those deadlines had passed, and that Carpenter had not filed an amended
complaint or served the Government with interrogatories or requests for production.
ECF No. 28 ¶¶ 3-4. Therefore, I now address the merits of the Government’s motion
to dismiss for lack of subject-matter jurisdiction.
I. FACTUAL BACKGROUND
The complaint alleges that Franchini committed medical malpractice against
Carpenter when he performed surgery on Carpenter’s foot at the VAMC.

The

complaint contains no other details about Franchini’s medical treatment of
Carpenter.

Records from the administrative proceeding, however, show that

Franchini performed two surgeries on Carpenter’s foot, one on July 22, 2005, and one
on February 3, 2006. The first surgery was an “L Chevron bunionectomy with screw
fixation,” and the second was a “percutaneous left plantar fascia release.” ECF No.
18-2 at 1. On an administrative form titled “Claim for Damage, Injury, or Death,”
Carpenter describes his injury and claim as follows:
As a result of Dr. Franchini’s failure to perform the correct surgery, my
left foot pain persisted. Although he eventually performed the left
plantar facial release surgery, he negligently did so and entrapped an/or
injured the nerve. Despite ongoing treatment, I now suffer from ongoing
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chronic pain. This has limited my physical activities. It has caused me
great discomfort and distress.
ECF No. 18-1 at 1.
II. LEGAL ANALYSIS
“When a district court considers a Rule 12(b)(1) motion, it must credit the
plaintiff’s well-pled factual allegations and draw all reasonable inferences in the
plaintiff’s favor.” Merlonghi v. United States, 620 F.3d 50, 54 (1st Cir. 2010).2 “[A]
federal court generally may not rule on the merits of a case without first determining
that it has jurisdiction over the category of claim in suit (subject-matter
jurisdiction)[.]” Sinochem Int’l Co. v. Malay. Int’l Shipping Corp., 549 U.S. 422, 43031 (2007). The plaintiff, as “the party invoking the jurisdiction of a federal court[,]
carries the burden of proving its existence.” Skwira v. United States, 344 F.3d 64, 71
(1st Cir. 2003) (quoting Murphy v. United States, 45 F.3d 520, 522 (1st Cir. 1995)).
Documents that are filed by pro se litigants are, however, “to be liberally construed.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); see also Foley v. Wells Fargo
Bank, N.A., 772 F.3d 63, 75 (1st Cir. 2014).
Under the FTCA, the United States is liable “for injury or loss of property, or
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,” but only “under circumstances where the United States, if a private

2

The court may also “consider materials outside the pleadings[,]” Groden v. N&D Transp. Co., 866 F.3d 22, 24
n.3 (1st Cir. 2017), including “whatever evidence has been submitted, such as the depositions and exhibits
submitted.” Merlonghi, 620 F.3d at 54 (quoting Aversa v. United States, 99 F.3d 1200, 1210 (1st Cir. 1996)).
Therefore, in evaluating the motion, I have considered the affidavit (ECF No. 18) of a staff attorney at the
Department of Veterans Affairs and copies of several records submitted in the administrative action that preceded
this lawsuit, which are attached as exhibits to the affidavit.
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person, would be liable to the claimant in accordance with the law of the place where
the act or omission occurred.” 28 U.S.C.A. § 1346(b)(1). To survive a motion to
dismiss, “an FTCA claim must successfully surmount the jurisdictional hurdle
erected by 28 U.S.C. § 1346(b).” McCloskey v. Mueller, 446 F.3d 262, 266 (1st Cir.
2006). Here, the jurisdictional hurdle is Maine’s three-year statute of repose for
professional negligence claims, 24 M.R.S.A. § 2902.
Separate from this action, six FTCA cases have been filed with this Court since
2014 against the Government by veterans alleging that they were negligently treated
by Franchini at the VAMC.3 In February of 2016, I issued an order on a motion to
dismiss filed by the Government in four of those cases, in which I ruled that “Maine’s
three-year limitations period for bringing claims against health care providers is a
statute of repose and not a statute of limitations,” and that the statute, 24 M.R.S.A.
§ 2902, “is not preempted by the Federal Tort Claims Act.” Mansir v. United States,
299 F. Supp. 3d 203, 205 (D. Me. 2018). “Unlike a statute of limitations, which is
procedural, a statute of repose is the substantive law of the state[.]” Wood v. United
States, No. 1:14-cv-00399-JDL, 2016 WL 11580579, at *5 (D. Me. Feb. 2, 2016).
Because the FTCA incorporates the substantive law of the jurisdiction where the
injury occurred by waiving the United States’ sovereign immunity only to the extent
a private person would be liable in that jurisdiction, see 28 U.S.C.A. § 1346(b)(1), a
statute of repose may bar a plaintiff’s FTCA claim. See Wood, 2016 WL 11580579, at

3 Of those six cases, four are still pending before the Court: Wood v. United States, 1:14-cv-00399-JDL; Mansir
v. United States, 1:14-cv-00503-JDL; Prescott v. United States, 1:14-cv-00551-JDL; and Downs v. United States,
1:15-cv-00525-JDL. One case, Myrick v. United States, 1:15-cv-00045-JDL, was dismissed by stipulation of the
parties. The other, Korsiak v. United States, was dismissed in 2018 for lack of subject-matter jurisdiction. No.
1:15-cv-00220-JDL, 2018 WL 1037640, at *2 (D. Me. Feb. 23, 2018).
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*9 (concluding that plaintiffs’ FTCA claims were “time-barred, just as they would be
if they had initiated an action in state court for medical negligence” under Maine
law).
“A statute of repose . . . puts an outer limit on the right to bring a civil action.
That limit is measured not from the date on which the claim accrues but instead from
the date of the last culpable act or omission of the defendant.”

CTS Corp. v.

Waldburger, 573 U.S. 1, 8 (2014). Maine’s statute of repose for medical malpractice
actions requires a plaintiff to bring an “action[] for professional negligence” within
three years of “the date of the act or omission giving rise to the injury.” 24 M.R.S.A.
§ 2902. Here, the three-year repose period for the medical negligence that Carpenter
alleges began to run when the last negligent act or omission allegedly occurred: the
February 3, 2006 surgery. ECF No. 18-1; ECF No. 18-2. Thus, Carpenter’s claim is
time-barred under Maine’s statute of repose; to be timely, the claim would need to
have been brought before February 3, 2009.
In his response to the Government’s motion to dismiss, Carpenter asserted that
the Government fraudulently concealed Franchini’s malpractice from him, which I
construed as asserting that the statutory tolling provision in 14 M.R.S.A. § 859
(Westlaw through Ch. 112, and 114 to 169 of 2019 1st Reg. Sess. of 129th Leg.) related
to fraudulent concealment4 applies to his claim.
4

See ECF No. 27 at 3.

Section 859 provides, in relevant part:
If a person, liable to any action mentioned, fraudulently conceals the cause thereof from the
person entitled thereto, or if a fraud is committed which entitles any person to an action, the
action may be commenced at any time within 6 years after the person entitled thereto discovers
that he has just cause of action[.]

14 M.R.S.A. § 859.
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The

Government raised two arguments in response: first, that the Court should not
consider Carpenter’s fraudulent concealment theory because it was raised for the first
time in response to the motion to dismiss and is not included in the complaint; and
second, that even if the Court were to consider the fraudulent concealment theory,
the allegations set forth in Carpenter’s response are insufficient to satisfy the
pleading requirements of Federal Rules of Civil Procedure 8 and 9(b).5 Though
Carpenter was granted leave to amend his Complaint to add a claim for fraudulent
concealment, he has not done so. See ECF No. 27 at 4; ECF No. 28 ¶¶ 3-4.
Even if Carpenter had amended his complaint to add the allegations set forth
in his response, I would conclude that those allegations are not sufficient to
demonstrate that § 859 applies to Carpenter’s claim. “Rule 9 imposes a heightened
pleading requirement for allegations of fraud,” Doyle v. Hasbro, Inc., 103 F.3d 186,
194 (1st Cir. 1996), requiring that a plaintiff “state with particularity the
circumstances constituting fraud[.]”

Fed. R. Civ. P. 9(b).

“The particularity

requirement means that a complaint must specify ‘the time, place, and content of an
alleged false representation.’” United States ex. rel. Kelly v. Novartis Pharm. Corp.,
827 F.3d 5, 13 (1st Cir. 2016) (quoting Doyle, 103 F.3d at 194).

“Conclusory

allegations and references to ‘plans and schemes’ are not sufficient.” Id. (quoting
Doyle, 103 F.3d at 194). In his response to the Government’s motion, Carpenter
alleges:
I believe Fraudulent Concealment exists as a phenomena within the
Institutionalized culture at [VAMC].
I also believe Fraudulent
5 Rule 8 requires that a pleading contain “a short and plain statement of the claim showing that the pleader is
entitled to relief[.]” Fed. R. Civ. P. 8(a)(2). Rule 9(b) provides: “In alleging fraud or mistake, a party must state
with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other
conditions of a person’s mind may be alleged generally.”
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Concealment exists to protect jobs and [VAMC] itself as an Institution.
I believe the phenomena of Institutionalization and subsequent
protection of jobs at [VAMC] has given liberty to some employees to bend
truths and embed the untruths within the documenting protocols. I
believe these are some of the practices intentionally overlooked by some
middle and upper management.
ECF No. 24 at 1.

Carpenter also relays that he did not discover the alleged

malpractice until a meeting on October 2, 2014, when officials at the VAMC informed
him of “the results of a review of sub standard care” of his foot by Franchini. Id.
Even construed liberally in Carpenter’s favor, the allegations set forth in the
response are not sufficient to satisfy the heightened pleading standard of Rule 9(b).
The allegations do not specify “the time, place, and content of an alleged false
representation[,]” but rather set forth conclusory references to a plan or scheme at
VAMC. Novartis Pharm. Corp., 827 F.3d at 13. Carpenter was given the opportunity
to perform discovery, which may have provided him access to more detailed facts
regarding any fraudulent concealment of Franchini’s alleged malpractice, but he
failed to do so. I therefore conclude that the six-year limitations period set out in
§ 859 does not apply to Carpenter’s claim and that the three-year statute of repose
for professional negligence actions, 24 M.R.S.A. § 2902, requires the dismissal of
Carpenter’s complaint.
III. CONCLUSION
For the reasons stated above, it is ORDERED that the Government’s Motion
to Dismiss for Lack of Jurisdiction (ECF No. 19) is GRANTED and Carpenter’s
Complaint is accordingly dismissed.

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SO ORDERED.
Dated this 3rd day of July, 2019.
/s/ JON D. LEVY
CHIEF U.S. DISTRICT JUDGE

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