Matthias v. United States of America
Filing
26
MEMORANDUM and ORDER granting in part and denying in part 19 Motion to Dismiss. For the reasons addressed in the attached Memorandum and Order, the court GRANTS the government's motion to dismiss plaintiff's informed consent claim for la ck of subject matter jurisdiction pursuant to Rule 12(b)(1); plaintiff's wrongful death and loss of services claims for failing to state a claim upon which relief can be granted under Rule 12(b)(6); and plaintiff's negligence and medical ma lpractice claims on behalf of the estate of the deceased infant. The court DENIES the motion to dismiss plaintiffs negligence and medical malpractice claims in her individual capacity. The parties shall confer and jointly advise the court via ECF, no later than one week from the date of this decision, as to how they intend to proceed. Ordered by Judge Kiyo A. Matsumoto on 7/31/2020. (Bose, Rhick)
Case 1:18-cv-03568-KAM-SMG Document 26 Filed 07/31/20 Page 1 of 37 PageID #: 508
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
JANELLE MATTHIAS, individually and
as administratrix1 of the Estate of
KEVON BRIAN MUSTAFA, deceased,
MEMORANDUM AND ORDER
Plaintiff,
18-cv-3568(KAM)(GMJ)
-againstUNITED STATES OF AMERICA;
Defendant.
----------------------------------X
KIYO A. MATSUMOTO, United States District Judge:
On April 27, 2018, Janelle Matthias (“plaintiff”),
individually and as administratrix of the Estate of Kevon Brian
Mustafa, her deceased infant son, filed this action against the
United States (“defendant” or “Government”), pursuant to the
Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671, et
seq., claiming that from May 11, 2015 to September 22, 2015,
plaintiff was the recipient of medical treatment that she
alleges failed to meet the standards of adequate medical care,
and, her allegation continues, such negligence ultimately caused
the death of her infant son, born and deceased on September 22,
2015.
(ECF No. 1, Plaintiff’s Verified Complaint filed 6/19/18
(“Compl.”).)
Plaintiff brings claims of negligent medical
treatment and care, failure to obtain informed consent,
1
Plaintiff’s status as administratrix is questioned and discussed infra.
1
Case 1:18-cv-03568-KAM-SMG Document 26 Filed 07/31/20 Page 2 of 37 PageID #: 509
negligent hiring and retention, and loss of services. (See
Compl.)
On April 25, 2019, plaintiff amended the complaint,
adding another cause of action for wrongful death.
(ECF No. 9,
Plaintiff’s Amended Complaint filed 4/26/19 (“Amended Compl.”)
at 14-15.)2
On June 25, 2019, the United States moved to dismiss
the complaint, claiming this court lacks subject matter
jurisdiction due to plaintiff’s failure to exhaust
administrative remedies pursuant to Federal Rule of Civil
Procedure 12(b)(1), and for failure to state a claim upon which
relief can be granted under Federal Rule of Civil Procedure
12(b)(6).
(ECF No. 21, Gov’t Memorandum in Support of Motion to
Dismiss filed 9/19/19 (“Gov’t Mot.”).)
Government’s motions in their entirety.
Plaintiff opposes the
(ECF No. 24,
Plaintiff’s Memorandum in Opposition of Defendant’s Motion to
Dismiss filed 9/19/19 (“Pl. Mem. in Opp.”).)3
For the reasons stated below, the court finds that
plaintiff exhausted all administrative remedies before bringing
the instant action regarding her individual negligence and
medical malpractice claims.
Plaintiff, however, did not satisfy
Plaintiff’s original complaint is available at ECF No. 1, pp. 1-15.
Plaintiff’s amended complaint is available at ECF No. 9, pp. 1-18. This order
refers only to plaintiff’s amended complaint. See generally, Amended Compl.
3
Plaintiff’s Memorandum in Opposition of Motion to Dismiss was filed
onto the docket twice. Compare ECF No. 17, filed 8/23/19, with ECF No. 24,
filed 9/19/19. The court refers throughout to Pl. Mem. In Opp. located at ECF
No. 24.
2
2
Case 1:18-cv-03568-KAM-SMG Document 26 Filed 07/31/20 Page 3 of 37 PageID #: 510
the exhaustion and presentment requirement for the claims
brought on behalf of the deceased infant’s estate and, as such
the court does not have subject matter jurisdiction over any of
the deceased’s estate’s claims.
The court further holds that
the negligent hiring and retention claim falls within the
discretionary function exception to the Federal Tort Claims Act,
and is denied.
Lastly, the court finds that plaintiff failed to
state a claim upon which relief may be granted with respect to
her claims of wrongful death and loss of services.
Accordingly,
defendant’s motion to dismiss is DENIED in part and GRANTED in
part.
BACKGROUND
The facts, as stated in plaintiff’s amended complaint
and in exhibits4 attached to the plaintiff’s memorandum in
opposition to defendant’s motion to dismiss,5 are as follows.
All exhibits referenced herein are available at ECF No. 24, as
attachments 24-1 to 24-18. Plaintiff’s counsel incorrectly filed a
declaration with each exhibit. Further, Exhibits 12–15 have been incorrectly
filed onto ECF. Thus, ECF No. 24-15, Declaration Exhibit 15, is Plaintiff’s
Exhibit 12; ECF No. 24-12, Declaration Exhibit 12 is Plaintiff’s Exhibit 13;
ECF No. 24-13, Declaration Exhibit 13 is Plaintiff’s Exhibit 14, and ECF No.
24-14, Declaration Exhibit 14 is Plaintiff’s Exhibit 15. For the purpose of
clarity, all exhibits will be referenced by plaintiff’s exhibit designation,
not by their incorrect filing designations onto ECF.
5
“Where subject matter jurisdiction is challenged,...a court may consider
materials outside the pleadings, such as affidavits, documents and
testimony.” Silva v. Farrish, 18-CV-3648 (SJF) (SIL) 2019 WL 117602, at
*4(E.D.N.Y. Jan. 7, 2019)(quoting Forbes v. State Univ. of New York at Stony
Brook, 259 F.Supp.2d 227, 231-32 (E.D.N.Y. 2003) (“In a Rule 12(b)(1) motion,
the Court may consider affidavits and other material beyond the pleadings to
resolve the jurisdictional question.” (citation omitted)).
4
3
Case 1:18-cv-03568-KAM-SMG Document 26 Filed 07/31/20 Page 4 of 37 PageID #: 511
On September 22, 2015, at 8:04 p.m., plaintiff gave
birth to an infant son, Kevin Brian Mustafa, at Brooklyn
Hospital Center.
(See ECF No. 24-14, Plaintiff’s Exhibit 15,
Certificate of Birth – Deceased.)
On the birth certificate,
hospital administrator Collin Ferdinand certified and signed
that the infant was born alive, but tragically passed away three
hours later.
Id.6
An autopsy was performed on the deceased
infant by Patrick E. LeBlanc, M.D., on October 1, 2015, and the
report was later signed by Tiangui Huang, M.D. on October 9,
2015. (Pl. Exh. 16, Autopsy Report, at 3.)
The report stated
that the deceased infant was born via caesarian section “due to
prolonged rupture of membrane, and a non-reassuring fetal heart
tone.” (Id. at 4.)
The deceased infant was noted to have “poor
respiratory affect,” was intubated, and “PPV was initiated.”
(Id.)
Post-intubation, the infant’s condition stabilized, and
he was brought to the NICU to recuperate.
(Id.)
The report
stated that the infant expired approximately three hours after
his birth, at 11:13 p.m. on September 22, 2015. (Id. at 3-4.)
Analysis of the deceased infant’s lung showed “marked hyaline
membrane – a pathological finding for respiratory stress
syndrome – on the background of bacterial overgrowth.”
(Id.)
Plaintiff first alleged that the infant was stillborn, later alleging
that the infant lived for three hours. (Compare Pl. Mem. in Opp. pp. 15 with
pp. 19.) The court finds that the infant was born alive and lived for three
hours, based on review of the birth certificate and the autopsy report. (See
Pl. Exh. 15, 16 (ECF Nos. 24-14, 24-16).)
6
4
Case 1:18-cv-03568-KAM-SMG Document 26 Filed 07/31/20 Page 5 of 37 PageID #: 512
The cause of death was noted as “respiratory distress syndrome
due to immaturity” which was later denoted in parenthesis as
“hyaline membrane disease.”
(Id.)
Plaintiff filed an action alleging medical malpractice
and wrongful death in the Supreme Court of New York, Kings
County under Index No. 514176/2016, against defendants Errol
Byer, M.D., Frederick Stanton, M.D., Alessia Perry, M.D.,
Brooklyn Hospital Center, and Brooklyn Plaza Medical Center
P.C., a health center federally qualified under the Department
of Health and Human Services (“DHHS”). (Pl. Mem. in Opp. at 2.)
Plaintiff filed the summons and verified complaint on August 10,
2016.
(See Pl. Exh. 2.)
Plaintiff lodged similar allegations in her state
court complaint as those at issue here; namely, that the medical
treatment provided by Errol Byer, M.D., Frederick Stanton, M.D.,
and Alessia Perry, M.D., beginning on or about May 11, 2015 and
continuing until September 22, 2015, departed from the accepted
medical standards of care and caused her to suffer grave bodily
injury, complications, additional surgery and treatment, mental
anguish, and led to the wrongful death of her infant son.
Exh. 2 at ¶¶ 16, 28, 40, 52, 69.)
(Pl.
She further claimed that her
alleged injuries were due to the negligent hiring and retention
of aforementioned physicians by the Brooklyn Hospital Center and
Brooklyn Plaza Medical Center, P.C..
5
(Id. at ¶ 74-76.)
Case 1:18-cv-03568-KAM-SMG Document 26 Filed 07/31/20 Page 6 of 37 PageID #: 513
Plaintiff also claimed that her son suffered a wrongful death as
a result of her negligent medical treatment.
(Id. at ¶ 80.)
Lastly, plaintiff asserted her injuries were caused by the
defendants’ failure to obtain her informed consent for the
treatment rendered.
(Id. at ¶ 82-84.)
On April 28, 2017, the United States of America
removed the action to the United States District Court for the
Eastern District of New York, pursuant to the FTCA, 28 U.S.C. §§
1346, 2401, 2671 et seq., which allows the United States of
America to substitute itself as a party defendant where a
federal employee was acting within the scope of employment at
the time the alleged tortious acts or omissions took place.
See
28 U.S.C. § 2679 (d)(1).
In a related action, this court previously held that
because Brooklyn Plaza Medical Center was a federally supported
medical center and deemed eligible by DHHS for coverage under 42
U.S.C. § 233(g)-(h), and defendants Errol Byer, M.D., Frederick
Stanton, M.D., and Brooklyn Plaza Medical Center P.C., were
acting in the course and scope of their employment as federal
employees at the time of the events alleged, Pl. Exh. 4 at 4,
the certification and notice of substitution of the United
States in place of Errol Byer, M.D., Frederick Stanton, M.D.,
and Brooklyn Plaza Medical Center P.C., was proper.
(See Pl.
Exhs. 10-14 (ECF Nos. 24-10, 24-11, 24-15, 24-12, 24-13);
6
Case 1:18-cv-03568-KAM-SMG Document 26 Filed 07/31/20 Page 7 of 37 PageID #: 514
Janelle Matthias, individually and as the administrator of the
Estate of Kevon Brian Mustafa, deceased v. Errol Byer, M.D.,
Frederick Stanton, M.D., Alessia Perry, M.D., Brooklyn Hospital
Center, and Brooklyn Plaza Medical Center P.C., No. 17-cv-02546
2017 WL 4314500 (E.D.N.Y. Aug. 20, 2019) (Irizarry, J.) (Levy,
M.J.)).
In that previous action, defendant United States of
America filed a motion to dismiss, alleging that this court
lacked subject matter jurisdiction, which the other defendants
supported with a memorandum of law in support of defendant’s
motion to dismiss. (Pl. Exh. 3.)
The gravamen of the United
States’ motion was that the plaintiff had not exhausted her
administrative remedies before filing, since she had not
submitted an administrative tort claim to the DHHS for her
alleged injuries.
(Id. at 2; Pl. Exh. 4 at 3.)
The court in 17-cv-2546 granted defendant’s motion to
dismiss, pursuant to a Stipulation and Order of Partial
Dismissal, Modification of Caption and Remand.
(Pl. Exh. 4.)
Pursuant to Fed. R. Civ. P. 41(a)(1)(A)(ii), the claims against
Errol Byer, M.D., Frederick Stanton, M.D., and Brooklyn Plaza
Medical Center P.C. were dismissed with prejudice, and the
claims against the United States of America were dismissed
without prejudice, with the remaining claims remanded to the New
York State Supreme Court, Kings County.
7
(Id. at 6.)
Case 1:18-cv-03568-KAM-SMG Document 26 Filed 07/31/20 Page 8 of 37 PageID #: 515
On August 3, 2017, plaintiff submitted a Standard SF95 Claim Form to the US Department of Health and Human Services
alleging negligence and wrongful death.
(Pl. Exh. 10.)
Under
Item 10, titled “Personal Injury/ Wrongful Death” plaintiff
wrote:
Due to the negligence and carelessness of Errol Byer,
M.D., Frederick Stanton, M.D., and Alessia Perry,
M.D., Janelle Matthias’s son, Kevin Brian Mustafa died
at birth due to an irregular heartbeat and Janelle
Matthias has suffered pain, trauma and emotional
distress.7
Plaintiff added an additional page stating the basis
of her claim as:
On or about May 11, 2015, continuing to, through and
including September 22, 2015, at or near the Brooklyn
Plaza Medical Center P.C., the Brooklyn Hospital
Center, Errol Byer, M.D., Frederick Stanton, M.D., and
Alessia Perry M.D., were negligent, careless and
departed from the accepted standards of medicine by
failing to diagnose Janelle Matthias and treat her
given her medical history, signs and symptoms, and
complaints upon presentation, eventually leading to
the untimely and wrongful death of her son, Kevon
Brian Mustafa; in negligently proscribing medication
that harmed Janelle Matthias; in failing to provide a
prenatal and neonatal consultation; in failing to
properly and timely diagnose Janelle Matthias with
urinary tract infection; in failing to monitor the
effects of the medications given to Janelle Matthias
during childbirth.8
7
8
Pl. Exh. 10 at 3.
Id. at 5.
8
Case 1:18-cv-03568-KAM-SMG Document 26 Filed 07/31/20 Page 9 of 37 PageID #: 516
On August 21, 2017, plaintiff’s counsel received
correspondence from Dorothea P. Koehler, Paralegal
Specialist at DHHS, acknowledging receipt of the
administrative tort claim, filed on August 8, 2017, and
identified as Claim No. 2017-0528a.
(Pl. Exh. 11.)
The
letter requested the necessary documentation to proceed
with the claim. (Id.)
On December 8, 2017, plaintiff’s
counsel sent itemized bills, medical records, and funeral
expenses, pursuant to the DHHS’s request. (Pl. Exh. 12 (ECF
24-15).)
On February 12, 2018,9 plaintiff’s administrative
tort claim was denied in a letter signed by William A.
Bigelow, Deputy Associate General Counsel for the Claims
and Employment Law Branch.
(Pl. Exh. 14 (ECF No. 24-13).)
The letter notified plaintiff that she was entitled to
challenge the agency’s determination by filing an action
against the United States in the appropriate district court
within six months from the date of the mailing of the
agency’s determination.
(See 28 U.S.C. 2401(b); Id. at 4.)
STANDARD OF REVIEW
Defendant brings its motion to dismiss both for lack of
subject matter jurisdiction under Rule 12(b)(1), and for failure
Pl. Exh. 14 (ECF No. 24-13) at 3. The stamped date appears to be
February 12, 2018. This is consistent with plaintiff’s memorandum in
opposition, that also indicates that Pl. Exh. 14 (ECF No. 24-13) is dated
February 12, 2018.
9
9
Case 1:18-cv-03568-KAM-SMG Document 26 Filed 07/31/20 Page 10 of 37 PageID #: 517
to state a claim under Rule 12(b)(6), in the context of the
Federal Tort Claims Act (“FTCA”).
The relevant standards are
set forth below.
I.
Rule 12(b)(1)
“‘A case is properly dismissed for lack of subject
matter jurisdiction under Rule 12(b)(1) when the district court
lacks the statutory or constitutional power to adjudicate
it.’” Roman v. C.I.A., No. 11-CV-5944, 2013 WL 210224, at *4
(E.D.N.Y. Jan. 18, 2013) (quoting Makarova v. United States, 201
F.3d 110, 113 (2d Cir. 2000)).
It is well-settled that the
“plaintiff bears the burden of proving subject matter
jurisdiction by a preponderance of the evidence.”
Aurecchione
v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir.
2005) (citing Luckett v. Bure, 290 F.3d 493, 496 (2d Cir.
2002)).
In reviewing a Rule 12(b)(1) motion to dismiss, the
court “must accept as true all material factual allegations in
the complaint, but [it is] not to draw inferences from the
complaint favorable to plaintiff[].”
J.S. ex rel. N.S. v.
Attica Cent. Sch., 386 F.3d 107, 110 (2d Cir. 2004).
Moreover,
the court “may consider affidavits and other materials beyond
the pleadings to resolve the jurisdictional issue, but [it] may
not rely on conclusory or hearsay statements contained in the
affidavits.”
Id.
10
Case 1:18-cv-03568-KAM-SMG Document 26 Filed 07/31/20 Page 11 of 37 PageID #: 518
II. Rule 12(b)(6)
To survive a Rule 12(b)(6) motion to dismiss, “‘a
complaint must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its
face.’”
Absolute Activist Value Master Fund Ltd. v. Ficeto, 677
F.3d 60, 65 (2d Cir. 2012) (quoting Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009)).
Although the court must “accept as true all
factual statements alleged in the complaint and draw all
reasonable inferences in favor of the non-moving party,”
McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir.
2007), plaintiff’s “[f]actual allegations must be enough to
raise a right to relief above the speculative level,” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007). Indeed,
“[c]onclusory allegations or legal conclusions masquerading as
factual conclusions will not suffice to [defeat] a motion to
dismiss.”
Achtman v. Kirby, McInerney & Squire, LLP, 464 F.3d
328, 337 (2d Cir. 2006) (alterations in original) (internal
quotation marks omitted).
III. Federal Tort Claims Act
The Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671
et seq., waives the sovereign immunity of the United States in
limited circumstances. In relevant part, the FTCA authorizes
suits against the federal government to recover damages:
11
Case 1:18-cv-03568-KAM-SMG Document 26 Filed 07/31/20 Page 12 of 37 PageID #: 519
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, under circumstances where
the United States, if a private person, would be
liable to the claimant in accordance with the law
of the place where the act or omission occurred.
28 U.S.C. § 1346(b)(1).
One of the exceptions to the FTCA’s waiver of
sovereign immunity is the “discretionary function
exception,” (“DFE”) which provides that Congress’s authorization
to sue the United States for damages does not apply to any
claim “based upon the exercise or performance or the
failure to exercise or perform a discretionary function or
duty on the part of a federal agency or employee of the
Government, whether or not the discretion involved be
abused.”
28 U.S.C. § 2680(a).
The discretionary function
exception “‘marks the boundary between Congress’
willingness to impose tort liability upon the United States
and its desire to protect certain governmental activities from
exposure to suit by private individuals.’” Berkovitz v. United
States, 486 U.S. 531, 536 (1988) (quoting United States v. S.A.
Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S.
797, 808 (1984)). Because the FTCA operates as a grant of
subject matter jurisdiction to the federal courts, “a finding
that the discretionary function exception applies is tantamount
12
Case 1:18-cv-03568-KAM-SMG Document 26 Filed 07/31/20 Page 13 of 37 PageID #: 520
to holding that the court lacks jurisdiction.” Caban v. United
States, 671 F.2d 1230, 1235 n.5 (2d Cir. 1982).
The plaintiff bears the burden of establishing, by a
preponderance of the evidence, that the court retains authority
to adjudicate a case. Makarova v. United States, 201 F.3d 110,
113 (2d Cir. 2000); Loew v. U.S. Postal Serv., No. 03-CV-5244,
2007 WL 2782768, at *4 (E.D.N.Y. Feb. 9, 2007).
Generally, a motion to dismiss for lack of subject
matter jurisdiction under Rule 12(b)(1) and a motion to dismiss
for failure to state a claim under Rule 12(b)(6) are reviewed
under the same standard, which requires a court to accept as
true the facts alleged in the complaint, and to draw all
reasonable inferences in favor of the plaintiff. Loew, 2007 WL
2782768, at *4. Where, however, “the jurisdictional challenge is
based on the FTCA, the government receives the benefit of any
ambiguities.” Id.; Moreno v. United States, 965 F. Supp. 521,
524 (S.D.N.Y. 1997) (“Because the FTCA creates a waiver of
sovereign immunity, it is strictly construed and all ambiguities
are resolved in favor of the United States.”). Subject matter
jurisdiction “must be shown affirmatively, and that showing is
not made by drawing from the pleadings inferences favorable to
the party asserting it.” APWU v. Potter, 343 F.3d 619, 623 (2d
Cir. 2003) (internal quotation marks and citation omitted). A
plaintiff bears “the initial burden to state a claim that is not
13
Case 1:18-cv-03568-KAM-SMG Document 26 Filed 07/31/20 Page 14 of 37 PageID #: 521
barred by the DFE.” Molchatsky v. United States, 713 F.3d 159,
162 (2d Cir. 2013); see Wang v. United States, 61 F. App’x 757,
759 (2d Cir. 2003) (“Plaintiffs failed to meet their initial
burden of pleading facts which would support a finding that the
conduct of the investigative agents fell outside the scope of
the exception.”).
DISCUSSION
I.
The FTCA’s Exhaustion and Presentment Requirement
To bring an FTCA claim in federal court, plaintiff
must first present the claim to the appropriate federal agency
and receive a written denial from that agency, or may file an
action sixty days after the claim is presented, if the agency
fails to respond.
See 28 U.S.C. § 2675(a) (no action shall be
instituted “unless the claimant shall have first presented the
claim to the appropriate Federal agency and his [or her] claim
shall have been finally denied by the agency in writing and sent
by certified or registered mail”).
See also 28 U.S.C. §
2679(d)(5) (providing that “[w]henever an action or proceeding
in which the United States is substituted as the party defendant
. . . is dismissed for failure first to present a claim” to the
appropriate federal agency, “such a claim shall be deemed to be
timely presented” if (1) “the claim would have been timely had
it been filed on the date the underlying civil action was
commenced;” and (2) “the claim is presented to the appropriate
14
Case 1:18-cv-03568-KAM-SMG Document 26 Filed 07/31/20 Page 15 of 37 PageID #: 522
Federal agency within 60 days after dismissal of the civil
action”).
FTCA claims:
shall be deemed to have been presented when a Federal
agency receives from a claimant, his duly authorized
agent or legal representative, an executed Standard
Form 95 or other written notification of an incident,
accompanied by a claim for money 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; and the title or legal capacity of the
person signing, and is accompanied by evidence of his
authority to present a claim on behalf of the
claimant as agent, executor, administrator, parent,
guardian, or other representative.
28 C.F.R. § 14.2.
Additionally, though a personal injury claim
“may be presented by the injured person, his duly authorized
agent, or legal representative,” 28 C.F.R. § 14.3(b), a wrongful
death claim may be presented only by “the executor or
administrator of the decedent's estate, or by any other person
legally entitled to assert such a claim in accordance with
applicable State law.”
28 C.F.R. § 14.3(c).
Under New York
state law, a “personal representative,” is defined as someone
that “received letters to administer the estate of a decedent,”
and is the only party who may bring a wrongful death or survival
action.
See N.Y. Est. Pow. and Trst § 5–4.1; id. at § 1–2.13;
see also Fed. R. Civ. P. 17 (b)(3) (requiring federal courts to
look to state law when determining capacity to bring suit).
15
Case 1:18-cv-03568-KAM-SMG Document 26 Filed 07/31/20 Page 16 of 37 PageID #: 523
First, the court addresses defendant’s contention that
plaintiff failed to include evidence of her authority as
personal representative of the estate of the deceased infant
Mustafa, and thus failed to satisfy the presentment requirement
regarding her claims on behalf of the estate.
4.)
(Def. Reply at
Second, the court addresses defendant’s argument that
plaintiff’s individual claim does not satisfy the FTCA’s
presentment requirement.
2675(a).)
(Def. Reply at 3; 28 U.S.C. §
In response to defendant’s arguments, plaintiff
asserts that she has satisfied the presentment requirement for
herself and for the deceased infant’s estate, pointing to the
correspondence between plaintiff’s counsel and DHHS, as well as
the agency’s denial of claim letters.
(Pl. Mem. in Opp. at 16-
17.)
A. Plaintiff’s FTCA Claim Brought as Administratrix of
Deceased Infant’s Estate
Plaintiff has failed to bring a claim on behalf of the
estate of the deceased infant, as she has not been properly
appointed administratrix under New York law.
Although strict compliance with 28 C.F.R. § 14.2 is
not a jurisdictional requirement, a claim must “provide minimal
notice that (1) gives the agency written notice of [the] claim
sufficient to enable the agency to investigate and (2) places a
16
Case 1:18-cv-03568-KAM-SMG Document 26 Filed 07/31/20 Page 17 of 37 PageID #: 524
value on [the] claim.”
Byrne v. United States, 804 F. Supp.
577, 579 (S.D.N.Y. 1992) (internal quotations omitted). See,
e.g., Romulus v. United States (Romulus II), 160 F.3d 131, 132
(2d Cir. 1998); State Farm Mut. Auto. Ins. Co. v. U.S., 326 F.
Supp. 2d 407, 413 (E.D.N.Y. 2004) (“[t]he Second Circuit has not
determined whether a failure to provide further information—
beyond a notice of claim and a sum certain—is fatal to a court's
jurisdiction. This court must, therefore, determine whether the
plaintiff provided the Navy with sufficient information about
the claim to constitute adequate notice required for
jurisdiction.”); Lee v. U.S. Dept. of Army, No. 11-CV-331 (RRM)
(CLP) 2013 WL 4048329, at *4 (E.D.N.Y. Aug. 9, 2013), (“[n]otice
need not meet formal pleading requirements as long as it is
specific enough to serve the purposes underlying § 2675(a)-- ‘to
ease court congestion and avoid unnecessary litigation, while
making it possible for the Government to expedite the fair
settlement of tort claims.’”).
Similar to the instant case, “[i]n Byrne, the court
examined whether the plaintiff established subject matter
jurisdiction where his notice of claim was timely, [yet]
deficient pursuant to 28 C.F.R. § 14.2 because it failed to
present evidence of plaintiff’s authority to present the
claim.”
D’Angelo v. United States, No. 14-CV-482 (SJF) (GRB)
2016 WL 6988807, at *3 (E.D.N.Y. Nov. 15, 2016) (internal
17
Case 1:18-cv-03568-KAM-SMG Document 26 Filed 07/31/20 Page 18 of 37 PageID #: 525
quotations and citations omitted) (discussing Byrne, 804 F.
Supp. at 579); see also 28 C.F.R. § 14.2(a).
The Byrne court
held that the notice of claim was sufficient, despite the
plaintiff not having been appointed as the personal
representative of the estate at the time of the filing of the
claim, because plaintiff
“provided the government with the
minimal notice required under the FTCA so that it could
adequately investigate the claim.” Id. at 582.
Additionally,
the court permitted the claim to proceed because the plaintiff
was the executor at the time the action commenced in federal
court.
Id. at 582 (emphasis added).
Following Byrne, a later case from this court
discussed the manner in which FTCA actions have been allowed to
proceed in court even “when the administrative claim had been
brought by a person not formally authorized under the
regulations to make such a claim” so long as the agency was
given minimal notice.
Genao v. U.S., No. 08-cv-878 (NG) (SMG)
2010 WL 3328017, at *3 (E.D.N.Y. Aug. 19, 2010) (citing Knapp v.
United States, 844 F.2d 376, 380 (6th Cir. 1988) (holding that
even though plaintiff had not “received letters of authority
when she presented [her administrative claim], this circumstance
had no effect on her right to sue under the FTCA once she had
qualified”) (emphasis added).
18
Case 1:18-cv-03568-KAM-SMG Document 26 Filed 07/31/20 Page 19 of 37 PageID #: 526
Unlike the instant case, in Genao the issue presented
was timeliness, as all claimants were appointed personal
representatives after the two-year statutory period expired.
Thus, although the claimant in Genao had not procured the
necessary letters of administration at the time of filing the
administrative claim, and had therefore not provided the
necessary “evidence of authority,” 28 C.F.R. § 14.2, by the time
claimant filed suit in federal court, claimant was officially
appointed as the estate representative.
On these facts the courts have permitted similar
claims to proceed, because the administrative claims provided
sufficient minimal notice, and at the commencement of the
federal actions, the claimants in the cases referenced, supra,
were officially personal representatives.
Knapp, 844 F.2d at
380 (requirements of 28 U.S.C. § 2675(a) were met because Mrs.
Knapp had provided written notice sufficient to enable the
agency to investigate and had placed a value on her claim though
she was only appointed personal representative after the twoyear statute of limitations expired);
Ford, 640 F. Supp. 2d at
1070 (same); Genao, 2010 WL 3328017, at *3 (holding plaintiff is
entitled to equitable tolling of the FTCA limitations periods
due to extraordinary circumstances).
Here, plaintiff’s alleged injuries took place from May
11, 2015 to September 22, 2015, (Amended Compl. at ¶ 7, 17, 30,
19
Case 1:18-cv-03568-KAM-SMG Document 26 Filed 07/31/20 Page 20 of 37 PageID #: 527
46), and the administrative claim form, SF-95, was submitted on
August 3, 2017.
(Id. at ¶ 3; Pl. Exh. 10.)
Unlike the cases
discussed above, plaintiff timely met the requirements of 28
U.S.C. § 2675(a) by filing the claim form prior to the
expiration of the two year statute of limitations, and thus
timeliness is not at issue in this case.
Byrne, 804 F. Supp. at
579 (discussing deficiency of notice regarding 28 C.F.R. § 14.2,
where notice was timely in accordance with § 2675).
Plaintiff’s circumstances however, are also distinct
from Genao, Ford, and Knapp, in that, to the court’s knowledge,
plaintiff has not been appointed as personal representative of
the estate of the deceased infant, and as such, cannot bring
claims on behalf of the estate of the deceased.
See Health v.
Banks, 15-cv-4228 (MDG) 2016 WL 5716817, at *5 (E.D.N.Y. Sep.
30, 2016) (quoting Palladino v. Metro. Life Ins. Co., 590
N.Y.S.2d 601, 602 (App. Div.3d Dep't 1992) (“[o]nly a duly
appointed personal representative may bring suit on behalf of a
decedent” in New York.); Garmon v. Cnty. of Rockland, No. 10
Civ. 7724(ALC)(GW), 2013 WL 541380, at *3 (Feb. 11,
2013)(quoting Palladino, 590 N.Y.S.2d at 602 (“Inasmuch as
letters of administration have not been issued to plaintiff, he
has no standing to sue.”). See also Purcell ex rel. Estate of
Tyree v. City of New York, 18-CV-3979 (PKC)(RLM) 2020 WL
2559796, at *3 (E.D.N.Y. May 19, 2020)(finding plaintiff
20
Case 1:18-cv-03568-KAM-SMG Document 26 Filed 07/31/20 Page 21 of 37 PageID #: 528
initially lacked standing to sue on behalf of the decedent's
estate since she has not received letters of administration, and
only permitting claims to proceed once the deficiency was
cured).
Plaintiff offers no contradictory evidence or argument.
Thus, the court finds that plaintiff failed to satisfy the
presentment requirement with respect to her claims brought on
behalf of the estate of the deceased infant.
For the foregoing reasons, the court dismisses the
claims brought on behalf of the estate of the deceased infant.
B. Plaintiff’s Individual FTCA Claim
Plaintiff’s individual administrative claim meets the
standard for minimal notice.
Plaintiff properly filed the SF-
95, alleged facts sufficient for the agency to investigate the
claim, and provided a claim amount in a sum certain.
First, defendant argues that plaintiff’s counsel
signed the administrative claim form, SF-95, for plaintiff’s
personal injury claim without providing “evidence of his or her
authority to present a claim on behalf of the plaintiff” by
failing to list his or her identity or relationship to the
plaintiff or the estate of the deceased.
(Def. Reply at 3.)
However, a review of Pl. Exh. 13 (ECF No. 24-12), the enclosure
letter attached by plaintiff’s counsel with the DHHS’s requested
documentation, establishes that the fourth listed attachment is
a power of attorney form.
(Pl. Exh. 13.)
21
Defendant concedes
Case 1:18-cv-03568-KAM-SMG Document 26 Filed 07/31/20 Page 22 of 37 PageID #: 529
that “plaintiff’s counsel signed the SF-95.” (Def. Mem. at 8.)
As the power of attorney form provided to the DHHS set forth the
identity of plaintiff’s counsel, the court finds the plaintiff
clearly provided evidence of authority, and properly presented
her individual claims to the agency.
A further showing of
“evidence of authority” is unnecessary.
Byrne, 804 F. Supp. at
579; see also 28 C.F.R. § 14.2(a).
Second, the facts plaintiff provided were sufficient
to investigate a claim.
See Romulus II, 160 F.3d at 132 (“a
notice of claim filed pursuant to the FTCA must provide enough
information to permit the agency to conduct an investigation and
to estimate the claim's worth.”)
Plaintiff provided names of
the physicians under agency employ, the alleged malpractice, and
the cause of death that was the subject of the
suit.
State Farm, 326 F. Supp. 2d at 414 (holding that
plaintiff satisfied presentment where the agency “clearly had a
detailed understanding of the medical evidence regarding the
injury ... indicating a description of the accident and doctors'
findings in detail” and where “plaintiff did not refuse to
cooperate with the [agency's] investigation.”); see also Pl.
Exh. 13 (ECF No. 24-12) (enclosure letter complying with DHHS’s
documentation request).
Third, plaintiff specified a sum certain of
$20,000,000 on the administrative claim form.
22
(Pl. Exh. 10 at
Case 1:18-cv-03568-KAM-SMG Document 26 Filed 07/31/20 Page 23 of 37 PageID #: 530
3. See Keene Corp. v. United States, 700 F.2d 836, 841 (2d Cir.
1983) (holding that failure to state a sum certain in the claim
for damages renders the notice of claim deficient)).
Fourth, plaintiff’s notice of claim was timely,
because it was brought within the two year statute of
limitations.
28 C.F.R. § 14.2(a).
Accordingly, the court finds
that the agency had sufficient notice regarding plaintiff’s
independent claims.10
In summary, as there is no evidence to demonstrate
that plaintiff was the personal representative of the decedent
at that time of filing the administrative claim or the instant
action, the court dismisses the claims brought by the plaintiff
on behalf of the decedent’s estate.
With respect to plaintiff’s
claims brought on her own behalf, the court finds that plaintiff
has satisfied the presentment requirement pursuant to § 2675(a).
Thus, this court has subject matter jurisdiction over this
action.
Defendant's motion to dismiss is DENIED with respect to
the plaintiff’s individual claims and GRANTED with respect to
claims concerning the deceased infant.
The cases cited by defendant to support its contention are
unpersuasive, as they are against the weight of authority in this circuit and
district. See Byrne, 804 F. Supp. at 582 (rejecting the government’s
contention that the court does not have jurisdiction on the basis of Del
Valle as “against the weight of authority.”).
10
23
Case 1:18-cv-03568-KAM-SMG Document 26 Filed 07/31/20 Page 24 of 37 PageID #: 531
II. Plaintiff’s Informed Consent Claim
Defendant next argues that plaintiff’s informed
consent claim cannot stand, because the administrative claim
form originally filed by the plaintiff did not state a distinct
claim for lack of informed consent.
Pl. Exh. 10.)
(Def. Mem. at 9; see also
Plaintiff concedes that she did not allege a
separate claim for informed consent on the SF-95 form, yet
contends that informed consent for medical treatment is
considered part of a medical malpractice claim.
(Pl. Mem. in
Opp. at 17, citing Soriano v. United States, No. 12 Civ. 4752
(VB) 2013 WL 3316132, at *7 (S.D.N.Y. Jul. 1, 2013) (finding
informed consent was considered part of a medical malpractice
claim and thus not barred by failure to assert in administrative
claim form)).
In the instant case, the facts alleged in plaintiff’s
administrative claim failed to put the DHHS on notice of the
informed consent claim.
The FTCA’s exhaustion requirement is
not met where the “initial administrative claim asserted only
medical malpractice and did not include an informed consent
claim,” because, “[i]n this Circuit, a Notice of Claim filed
pursuant to the FTCA must provide enough information to permit
the agency to conduct an investigation and to estimate the
claim’s worth.” Mayes v. United States, 790 Fed. App’x. 338,
339-40 (2d Cir. 2020) (summary order) (quoting Romulus v. United
24
Case 1:18-cv-03568-KAM-SMG Document 26 Filed 07/31/20 Page 25 of 37 PageID #: 532
States, 160 F.3d 131, 132 (2d Cir. 1998) (per curiam)).
The
relevant inquiry is whether the substance of the administrative
claim, not the federal court complaint, put the relevant federal
agency on notice.
Godinez-Torres v. United States, No.
14CV1097CBAPK, 2016 WL 11670284, at *5 n.7 (E.D.N.Y. Mar. 31,
2016).
See also M.A.R. ex rel. Reisz v. United States, No. 09-
CIV-1727 (LTS) 2009 WL 3877872, at *1 (S.D.N.Y. Nov. 18, 2009)
(finding plaintiff’s administrative claim was insufficient to
put the government on notice that she might assert a lack of
informed consent claim); A.Q.C. ex rel. Castillo v. United
States, 715 F. Supp. 2d 452, 457 (S.D.N.Y. 2010), aff'd, 656
F.3d 135 (2d Cir. 2011) (holding informed consent claim was
barred because plaintiff’s administrative claim only alleged
medical malpractice); Hersko v. United States, No. 13-CV-3255
(MHD) 2015 WL 6437561, at *19 (S.D.N.Y. Oct. 20, 2015)(same).
But see Soriano, 2013 WL 3316132, at *7 (citing Frantz v. United
States, 29 F.3d 222, 224 (5th Cir. 1994) (finding an informed
consent claim in FTCA action is necessarily contained within a
medical malpractice claim)).
Plaintiff alleges in the administrative claim form
that the treating physicians failed to diagnose and treat her
given her medical history, signs, symptoms, and complaints;
negligently prescribed medication that harmed her; failed to
diagnose her urinary tract infection in time; failed to provide
25
Case 1:18-cv-03568-KAM-SMG Document 26 Filed 07/31/20 Page 26 of 37 PageID #: 533
a prenatal or neonatal consultation; and failed to monitor the
effects of the medications given to plaintiff during childbirth.
(Pl. Exh. 10.)
Though the claim adequately refers to negligence
in plaintiff’s medical treatment, it provides no detail as to
any alleged failure on the part of the physicians to obtain
informed consent.
(Id.)
Plaintiff also does not produce her
medical records to demonstrate a lack of informed consent, nor
does she explain or discuss where and when this alleged omission
occurred.
Godinez-Torres, 2016 WL 11670284, at *6 (citing
M.A.R., 2009 WL 3877872, at *4 (holding administrative claim
gave no notice of informed consent claim where claim form “was
replete with allegations of various omissions ... during
prenatal care, delivery and neonatal care” but no language
pertaining to consent)).
Accordingly, the court GRANTS the defense’s motion to
dismiss the plaintiff’s informed consent claim on the grounds
that plaintiff did not exhaust her administrative remedies.
III. Plaintiff’s Negligent Hiring and Retention Claim
A. Two-Pronged Discretionary Function Exception Test
Under the Supreme Court’s Berkovitz-Gaubert test, the
discretionary function exception precludes suits against the
United States “only if two conditions are met: (1) the acts
alleged to be negligent must be discretionary, in that they
26
Case 1:18-cv-03568-KAM-SMG Document 26 Filed 07/31/20 Page 27 of 37 PageID #: 534
involve an ‘element of judgment or choice’ and are not compelled
by statute or regulation and (2) the judgment or choice in
question must be grounded in ‘considerations of public policy’
or susceptible to policy analysis.” Coulthurst v. United States,
214 F.3d 106, 109 (2d Cir. 2000) (citing United States v.
Gaubert, 499 U.S. 315, 322-23 (1991) and Berkovitz, 486 U.S. at
536-37)).
Under the first prong of the test, “it is the nature
of the conduct, rather than the status of the actor” that
determines whether a challenged act is discretionary. Gaubert,
499 U.S. at 322. If there exists a mandatory federal statute,
regulation, or policy that “specifically prescribes a course of
conduct for an employee to follow,” the first prong of the test
requiring an element of judgment or choice is not met because
“the employee has no rightful option but to adhere to the
directive.” Berkovitz, 486 U.S. at 536. If there is no
established explicit or implicit governmental policy, or if a
policy allows a government agent to exercise discretion, then
under the second prong of the Berkovitz-Gaubert test, the court
must determine whether the conduct “can be said to be grounded
in the policy of the regulatory regime,” focusing “not on the
agent’s subjective intent . . . but on the nature of the actions
taken and on whether they are susceptible to policy analysis.”
27
Case 1:18-cv-03568-KAM-SMG Document 26 Filed 07/31/20 Page 28 of 37 PageID #: 535
Gaubert, 499 U.S. at 325. If there exists a regulation allowing
employee discretion, the “very existence of the regulation
creates a strong presumption that a discretionary act authorized
by the regulation involves consideration of the same policies
which led to the promulgation of the regulations.” Gaubert, 499
U.S. at 324 (internal citation omitted).
If the challenged conduct involved an element of
judgment or choice, then under the second prong of the
discretionary function exception test, that judgment or choice
must be grounded in considerations of public policy or
susceptible to policy analysis to be protected by the
discretionary function exception. See Coulthurst, 214 F.3d at
109; Gaubert, 499 U.S. at 325-25; Varig Airlines, 467 U.S. at
814 (noting that the discretionary function exception is
intended to shield from “judicial second-guessing” judgments
“grounded in social, economic, and political policy”).
Accordingly, the second prong of the test
distinguishes between discretionary decisions that are grounded
in public policy considerations, and decisions that are made out
of carelessness or laziness. Gaubert, 499 U.S. at 324-25, 325
n.7 (remarking that while a government agent who drives a car
while on a government mission exercises “discretion” in driving
the car, any decisions made to drive the car are not grounded in
28
Case 1:18-cv-03568-KAM-SMG Document 26 Filed 07/31/20 Page 29 of 37 PageID #: 536
public policy, and therefore the discretionary function
exception would not protect negligent driving).
B. Applying the Discretionary Function Test
In her amended complaint, plaintiff alleges in her
fourth cause of action that defendant negligently “granted
and/or renewed” Dr. Byer’s and Dr. Stanton’s employments without
proper consideration of the doctors’ professional qualifications
or competence.
(Amended Compl. at ¶ 61-63.)
Defendant argues
that the discretionary function exception to the FTCA bars
plaintiff’s negligent hiring and retention claim.
10-15.)
(Def. Mem. at
Plaintiff responds that the alleged negligence in
hiring or retaining unqualified physicians does not fall within
the exception, because “scientific or professional judgments,”
especially concerning safety, do not usually implicate policy
decisions.
(Pl. Mem. in Opp. at 21.)
To survive a motion to dismiss, a negligent hiring
claim “must allege facts which would support a finding that the
challenged actions are not the kind of conduct that can be said
to be grounded in the policy of the regulatory regime.” Gaubert,
499 U.S. at 324-25. See also Wang v. United States, 61 Fed.
App’x. 757, 759 (2d Cir. 2003) (finding plaintiffs failed to
meet their burden of demonstrating how investigative agents
conduct fell outside the exception).
Here, plaintiff merely
asserts that defendant failed to properly investigate the
29
Case 1:18-cv-03568-KAM-SMG Document 26 Filed 07/31/20 Page 30 of 37 PageID #: 537
qualifications and competence of their medical personnel before
granting or renewing their employment, but does not allege any
specific facts or details, or suggest that defendants’ negligent
hiring and retention practices fell outside the exception.
(Amended Compl. at ¶ 61-63); see Saint–Guillen v. United States,
657 F. Supp. 2d 376, 387 (E.D.N.Y. 2009) (Irizarry, J.)(stating
that a pleading deficiency regarding negligent hiring or
retention alone is grounds for dismissal)); see generally
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007)(bare factual
allegations will not satisfy Fed. R. Civ. P. 8, the plaintiff’s
pleading standard).
The court finds that plaintiff failed to plead
sufficient facts to state a claim for negligent hiring. The
court nevertheless briefly addresses the two prong analysis of
the discretionary function test.
First, federally qualified health centers (“FQHCs”),
deemed suitable for federal award coverage under the Public
Service Health Act must comply with specific standards set forth
in the Act and its implementing regulations, including review
and verification of the professional credentials of its doctors.
See 42 U.S.C. § 233(h)(2)(the Secretary must determine “that the
entity...has reviewed and verified the professional credentials,
references, claims history, fitness, professional review
30
Case 1:18-cv-03568-KAM-SMG Document 26 Filed 07/31/20 Page 31 of 37 PageID #: 538
organization findings, and license status of its
physicians....”).
See also 42 C.F.R. §§ 51c.101-c.507,
51c.303(p)(stating generally that health centers must “[p]rovide
sufficient staff, qualified by training and experience, to carry
out the activities of the center.”).
The Act and corresponding
protocols do not lay out specific means for professional review
or verification, leaving review and verification up to the
discretion of each health center.
Moreover, “[w]hen established
governmental policy, as expressed or implied by statute,
regulation, or agency guidelines, allows a government agent to
exercise discretion, it must be presumed that the agent’s acts
are grounded in policy when exercising that discretion.” Conyers
v. United States, 16-CV-2816 (JFB) (SIL) 2018 WL 1157754, at *5
(E.D.N.Y. Jan. 31, 2018).
Here, the HRSA Compliance Manual discusses
requirements for demonstrating compliance with the Public
Service Health Act. See HRSA Health Center Program Compliance
Manual, Ch. 5: Clinical Staffing, available at
https://bphc.hrsa.gov/programrequirements/compliancemanual/chapt
er-5.html#5.1.
Under “related considerations,” the manual
describes “areas where health centers have discretion with
respect to decision-making.”
Id.
Hiring decisions typically
involve a great deal of discretion, including weighing, inter
alia, “budgetary restraints, public perception, economic
31
Case 1:18-cv-03568-KAM-SMG Document 26 Filed 07/31/20 Page 32 of 37 PageID #: 539
conditions, individual backgrounds, office diversity, experience
and employer intuition.”
Saint–Guillen, 657 F. Supp. 2d at 387.
Thus, the court finds that because it remains within the
individual FQHC’s discretion to elect to hire their medical
staff, and to determine the ultimate arbiter for review and
verification of the clinical staff, the first prong of the
discretionary function test is satisfied.
Under the second prong, “for a claim of negligent
hiring or supervision to be barred by the discretionary function
exception, the decision to hire or supervise the negligent
employees must be ‘grounded in considerations of public policy
or susceptible to policy analysis.’”
Supp. 2d 449, 455 (S.D.N.Y. 2008).
Gibbons v. Fronton, 533 F.
Hiring and retention of the
employees of an FQHC usually involve policy decisions that
clearly fall within the scope of the discretionary function
exception.
See Burkhart, 112 F.3d at 1217 (stating that hiring
decisions “are surely among those involving the exercise of
political, social, or economic judgment.”).
Thus, the court
finds that the negligent hiring claim “necessarily involves the
permissible exercise of policy judgment” which is precisely what
the exception intends to avoid the litigation of.
Conyers, 2018
WL 1157754, at *9.
Accordingly, the court finds that plaintiff’s
negligent hiring and retention claim would also be barred under
32
Case 1:18-cv-03568-KAM-SMG Document 26 Filed 07/31/20 Page 33 of 37 PageID #: 540
the discretionary function exception. For the foregoing reasons,
defendant’s motion to dismiss plaintiff’s negligent hiring claim
is GRANTED.
IV. Plaintiff’s Loss of Services and Wrongful Death Claims
A. Loss of Services
Plaintiff alleges that she has been “deprived of her
son’s . . . love, services, affection, society, companionship,
and economic support.”
(Amended Compl. at ¶ 75.)
Defendant
contends that plaintiff’s loss of services claim must be
dismissed pursuant to New York law that does not permit recovery
for “loss of consortium” actions generally.
18.)
(Def. Mem. at 16-
Plaintiff broadly responds that “there are no deficiencies
in plaintiff’s wrongful death action that warrant dismissal.”
(Pl. Mem. in Opp. at 19.)
Loss of services is a state law claim, and this court
must apply the relevant state law.
See Martell v. Boardwalk
Enterprises, Inc., 748 F.2d 740, 754 (2d Cir. 1984); I.M. v.
United States, 362 F. Supp. 3d 161, 205 (S.D.N.Y. 2019); Thomas
v. New York City, 814 F. Supp. 1139, 1154 (E.D.N.Y. 1993).
New
York law “denie[s] recovery for grief, loss of society,
affection, conjugal fellowship and consortium” for death of a
minor family member.
Rodriguez v. New York, 10-CV-4661 (JG)
(SMG) 2014 WL 12917808, at *6 (E.D.N.Y. Jan. 24, 2014)
(quoting Gonzales v. New York City Housing Auth., 77 N.Y.2d 663,
33
Case 1:18-cv-03568-KAM-SMG Document 26 Filed 07/31/20 Page 34 of 37 PageID #: 541
667-68 (1991)). See also Gilbert v. Stanton Brewery, 295 N.Y.
270, 273 (1946) (finding no recovery available under New York
law for loss of “minor daughter’s companionship.”); Devito v.
Opatich, 215 A.D. 2d 714 (2d Dep't 1995) (reversing damages
award because loss of minor daughter’s society is not
compensable).
Furthermore, loss of services usually are not
“demonstrable” in the case where a child lived for only an
exceedingly short lifespan, as here, where the evidence
indicates that the decedent only lived for three hours.
Charles
v. Suvannavejh, 907 N.Y.S.2d 362, 365 (N.Y. Sup. Ct. 2009)).
See also Parilis v. Feinstein, 49 N.Y.2d 984, 985-86 (N.Y.
1980)(holding when the decedent was an infant, the damages are
still a question of fact, and often difficult to measure).
“Despite the extensive mental anguish suffered by a family as a
result of the death of a young child, there is rarely adequate
proof of economic circumstances justifying a jury to award
damages.”
In re Estate of Gayden, No. 2007-1489/C 37 Misc.
3d 1213(A), at *3 (Oct. 9, 2012) (citations omitted).
Plaintiff failed to satisfy the necessary showing of a
loss of pecuniary support from the deceased minor at the
pleading stage.
Plaintiff’s complaint states generally that she
was “deprived of . . . economic support,” but does not provide
evidence or facts discussing and detailing services that an
34
Case 1:18-cv-03568-KAM-SMG Document 26 Filed 07/31/20 Page 35 of 37 PageID #: 542
infant who lived for three hours could have provided.
Compl. at ¶ 75.)
(Amended
As plaintiff did not allege sufficient facts
to demonstrate even “possibility” let alone “probability” of her
loss of services claim, the court finds that the claim fails to
meet the pleading standard necessary to show loss of pecuniary
support.
Santoro ex rel. Santoro v. Donnelly, 340 F. Supp. 2d
464, 492-93 (S.D.N.Y. 2004).
Therefore, pursuant to New York
state law, plaintiff’s claim for loss of consortium or mental
anguish is not cognizable and she cannot recover for damages.
Accordingly, the court GRANTS defendant’s motion to dismiss the
loss of services claim due to failure to state a claim upon
which relief can be granted.
B. Wrongful Death
In a wrongful death claim, plaintiff bears the burden
of showing “(1) the death of a human being; (2) a wrongful act,
neglect or default of the defendant that caused the decedent's
death; (3) the survival of distributees who suffered pecuniary
loss by reason of the decedent's death; and (4) the appointment
of a personal representative of the decedent.”
Cerbelli
v. City of New York, 600 F.Supp.2d 405, 429 (E.D.N.Y.
2009) (internal quotation marks omitted) (citing Chong
v. New York City Transit Auth., 83 A.D.2d 546, 441 N.Y.S.2d 24
(2d Dep't 1981)).
35
Case 1:18-cv-03568-KAM-SMG Document 26 Filed 07/31/20 Page 36 of 37 PageID #: 543
Plaintiff fails to allege “pecuniary damages” caused
by the death of her infant son.
See Habrack v. Kupersmith, No.
87 Civ. 4712, 1988 WL 102037, at *2 (S.D.N.Y. Sept. 23, 1988)
(citing Chong, 441 N.Y.S.2d at 26) (dismissing wrongful death
claim for failure to allege “that the[] distributees [of the
Estate] have suffered pecuniary damage by reason of decedent’s
death”).
See also Melvin v. Cnty of Westchester, No. 14-CV-2995
(KMK) 2016 WL 1254394, at *22 (S.D.N.Y. Mar. 29, 2016) (denying
dismissal of wrongful death action where plaintiffs properly
alleged damages for loss of “reasonable expectation of support”
as pecuniary losses); Quinn v. U.S., 946 F. Supp. 2d 267, 277
(N.D.N.Y. 2013)).
In addition, plaintiff did not have the legal
capacity to bring suit on behalf of the deceased infant’s
estate, where she did not produce letters of administration
appointing her as decedent’s personal representative.
N.Y. Est.
Pow. and Trst § 5–4.1; id. at § 1–2.13; N.Y. EPTL § 11–
3.1 (2012); Heath v. Banks, No. 15CV4228CBAMDG, 2016 WL 5716817,
at *5 (E.D.N.Y. Sept. 30, 2016), aff'd, 692 F. App'x 60 (2d Cir.
2017) (quoting Palladino, 590 N.Y.S.2d at 602 (“[o]nly a duly
appointed personal representative may bring suit on behalf of a
decedent” in New York).).
As plaintiff has failed to allege or provide evidence
of her appointment as the personal representative for the Estate
of Mustafa, she lacks the capacity to sue on behalf of the
36
Case 1:18-cv-03568-KAM-SMG Document 26 Filed 07/31/20 Page 37 of 37 PageID #: 544
estate.
Accordingly, defendant’s motion to dismiss plaintiff’s
wrongful death claim is GRANTED.
CONCLUSION
For the foregoing reasons, the court GRANTS the
government’s motion to dismiss plaintiff’s informed consent
claim for lack of subject matter jurisdiction pursuant to Rule
12(b)(1); plaintiff’s wrongful death and loss of services claims
for failing to state a claim upon which relief can be granted
under Rule 12(b)(6); plaintiff’s negligence and medical
malpractice claims on behalf of the estate of the deceased
infant; and DENIES the motion to dismiss for plaintiff’s
negligence and medical malpractice claims in her individual
capacity.
The parties shall confer and jointly advise the court
via ECF, no later than one week from the date of this decision,
as to how they intend to proceed.
SO ORDERED.
Dated: July 31, 2020
Brooklyn, New York
___________/s/________________
KIYO A. MATSUMOTO
United States District Judge
Eastern District of New York
37
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?