Duval v. Burwell

Filing 22

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendant's motion to dismiss is GRANTED. (Doc. No. 14 .)A separate Order of Dismissal shall accompany this Memorandum and Order. Signed by District Judge Audrey G. Fleissig on November 16, 2016. (BRP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

MARILYN DUVAL,

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Plaintiff
v.
UNITED STATES OF AMERICA,
Defendant.

Case No. 4:15CV01508 AGF

MEMORANDUM AND ORDER
This medical malpractice action brought under the Federal Tort Claims Act
(“FTCA”), is before the Court on Defendant’s motion to dismiss for lack of subject
matter jurisdiction, based on Missouri’s ten-year statute of repose. For reasons set forth
below, Defendant’s motion shall be granted.
BACKGROUND
On May 16, 2002, Plaintiff underwent a surgical hysterectomy performed by Dr.
Michael Johnson. On July 26, 2012, Plaintiff underwent surgical removal of her right
kidney. On August 24, 2012, Plaintiff filed a petition in Missouri state court against Dr.
Johnson, Betty Jean Kerr-People’s Health Centers, and Forest Park Hospital, alleging
medical malpractice during Plaintiff’s May 16, 2002 hysterectomy. The action was
removed to this court on November 15, 2012. Plaintiff voluntarily dismissed the suit.
On September 10, 2013, Plaintiff submitted an administrative claim to the United
States Department of Health and Human Services, claiming that Dr. Johnson, acting in

the course and scope of his employment of the United States, provided improper
treatment during the 2002 hysterectomy causing her to lose her right kidney in 2012. The
claim was denied on May 16, 2014. (Doc. No. 1-5.) Plaintiff filed the complaint in the
present case on October 1, 2015, 13 years after the alleged malpractice.
Defendant argues that Plaintiff’s complaint should be dismissed with prejudice
because the claim is time-barred by the Missouri statute of repose, which provides in
pertinent part, as follows: “In no event shall any action for damages for malpractice,
error, or mistake be commenced after the expiration of ten years from the date of the act
of neglect complained of.” Mo. Rev. Stat. § 516.105(3). In response, Plaintiff asserts
that 28 U.S.C. § 2401(b) preempts the Missouri statute of repose in this action because
the two statutes conflict. Section 2401(b) provides in pertinent part:
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.
DISCUSSION
The function of a motion to dismiss a claim for lack of subject matter jurisdiction
pursuant to Federal Rule of Civil Procedure 12(b)(1) is to allow the court to address the
threshold question of jurisdiction, as “judicial economy demands that the issue be
decided at the outset rather than deferring it until trial.” United States. v. Osborn, 918
F.2d 724, 729 (8th Cir. 1990).
The FTCA waives the United States’ sovereign immunity for certain torts
committed by federal employees while acting within the scope of their employment. 28
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U.S.C. § 1346(b)(1). The Act specifies that the United States “shall be liable” with
respect to tort claims “in the same manner and to the same extent as a private individual
under like circumstances.” Id. § 2674. Thus, liability under the FTCA attaches only
where state law would impose liability on a private individual in similar circumstances.
First Nat’l Bank in Brookings v. United States, 829 F.2d 697, 700 (8th Cir. 1987). To
this end, the law of the state in which the negligence arises – here, Missouri – “provides
the source of substantive liability under the FTCA.” Sorace v. United States, 788 F.3d
758, 763 (8th Cir. 2015); Bagley v. United States, ___ F. Supp. 3d ___, 2016 WL
6082023, at *2 (D. Neb. Oct. 18, 2016) (explaining that the FTCA’s two-year statute of
limitations for medical malpractice actions preempts a state’s statute of limitations, which
is procedural, but not a state statute of repose that is substantive).
Missouri courts construe the ten-year limit in Mo. Rev. Stat. § 516.105(3) as a
substantive statute of repose. See Ambers-Phillips v. SSM DePaul Health Ctr., 459 S.W.
3d 901, 910 (Mo. 2015). Although the Eighth Circuit has not yet decided whether Mo.
Rev. Stat. § 516.105(3) operates as a jurisdictional bar to claims brought under the
FTCA, other circuits have answered this question in the affirmative where the state
involved construed its statute of repose as substantive law. See, e.g., Augutis v. United
States, 732 F.3d 749, 754 (7th Cir. 2013) (holding that the Illinois four-year statute of
repose was a substantive limit on liability and therefore barred the plaintiff’s FTCA
medical malpractice claim that was filed after the four-year period elapsed); Smith v.
United States, 430 F. App’x 246, 246 (5th Cir. 2011) (same as to the Texas statute of
repose); Huddleston v. United States, 485 F. App’x 744, 745 (6th Cir. 2012) (“Because
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federal law incorporates state substantive law for the purposes of FTCA claims, applying
Tennessee’s statute of repose to FTCA plaintiffs does not run afoul of the Supremacy
Clause.”); Simmons v. United States, 421 F.3d 1199, 1201-02 (11th Cir. 2005) (same as
to the Georgia statute of repose).
This Court agrees with the reasoning in these cases and holds that the Missouri
ten-year statute of repose is a substantive law and applies to Plaintiff’s claim brought
under the FTCA. Here, it is undisputed that Plaintiff did not file her state court action
until more than ten years after the alleged malpractice. Plaintiff’s administrative claim
was filed 11 years after the alleged malpractice, and the instant action was filed 13 years
after the alleged malpractice. As such, Plaintiff’s FTCA action claiming medical
malpractice is barred under Mo. Rev. Stat. § 516.105(3).
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Defendant’s motion to dismiss is GRANTED.
(Doc. No. 14.)
A separate Order of Dismissal shall accompany this Memorandum and Order.

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AUDREY G. FLEISSIG
UNITED STATES DISTRCIT JUDGE
Dated this 16th day of November, 2016

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