Klos v. United States of America

Filing 20

Memorandum Opinion and Order granting in part and denying in part USA's Motion to dismiss (Related Doc # 18 ). TheCourt DENIES the Motion to Dismiss as it relates to the statute of limitations, and GRANTS the Motion to Dismiss Counts One and Two of the Amended Complaint. Judge Dan A. Polster(C,KA)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

OTTO KLOS,
Plaintiff,
vs.
UNITED STATES OF AMERICA,
Defendant.

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Case No. 1:12 CV 1425
Judge Dan Aaron Polster
MEMORANDUM OF OPINION
AND ORDER

This case involves claims of negligence and lack of informed consent under the Federal
Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b), arising from medical care Plaintiff Otto Klos
received at the Wade Park V.A. Medical Center (Doc. # 15). Before the Court is Defendant
United States of America’s Motion to Dismiss Amended Complaint (“Motion to Dismiss”)
(Doc. # 18). Defendant argues that this action is time-barred, and that Counts I and II should be
dismissed for failure to provide a sum certain. For the reasons stated herein, the Motion to
Dismiss is DENIED in part and GRANTED in part.
I.
On July 20, 2011, Plaintiff filed an administrative claim with the Department of Veterans
Affairs (“V.A.”) for injuries he sustained during his treatment at the Wade Park V.A. Medical
Center (Doc. # 15, Ex. 2). On February 14, 2012, the V.A. denied his claim (Id. at Ex. 3).

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On June 6, 2012, Plaintiff filed the Complaint against Defendant under the FTCA,
28 U.S.C. § 1346(b), alleging the following claims: negligence (Count One), lack or informed
consent (Count Two), an FTCA negligence claim (Count Three), and an FTCA lack of informed
consent claim (Count Four). Plaintiff sought $2,000,000 in damages under Counts One and
Two, and $5,125,000 in damages under Counts Three and Four (Id.). Among the attachments to
the Complaint were (1) a letter from Dr. Mark Shoag stating that the VA’s ongoing prescription
of NSAIDs to Plaintiff, who has been on long-term coumadin therapy for whom NSAIDs are
contraindicated, fell below the minimum standard of care and could well have caused his
permanent renal failure, and (2) a copy of an administrative charge (Doc. #1, Ex. 1, 2).
On August 13, 2012, Defendant filed a Motion to Dismiss, contending the Complaint
was deficient for two reasons: first, because Plaintiff did not attach a proper affidavit of merit in
accordance with Ohio R. Civ. P. 10(D)(2), and second, because Plaintiff failed to allege a sum
certain in the administrative charge (Doc. # 12).
In apparent response to that Motion, Plaintiff filed, on August 16, 2012, a Motion for
Leave to File an Amended Complaint (Doc. # 13). On August 21, 2012, the Court granted
Plaintiff’s Motion and instructed Plaintiff to file an amended complaint that complies with Ohio
R. Civ. P. 10(D)(2) no later than August 30, 2012 (Doc. #14). The Court also directed further
briefing on the “sum certain” question (Id.).
On August 27, 2012, Plaintiff filed the Amended Complaint (Doc #: 15). Attached to the
Amended Complaint are (1) an affidavit of merit which fully complies with Rule 10(D)(2) and
the Court’s August 21st order , and (2) a letter from the Department of Veteran Affairs
acknowledging that Plaintiff filed an administrative FTCA charge on July 20, 2011 setting forth
in the total amount of $1,000,000 (respectively, Doc ##: 15-2, 15-4). Plaintiff also changed the

amount sought under Counts One and Two to $1,000,000, and the amount sought under Counts
Three and Four to $1,000.000.
In short order, Defendant filed the pending Motion to Dismiss Amended Complaint
(Doc #: 18.) It is undisputed that Dr. Shoag’s affidavit complies with Rule 10(D)(2). Now
Defendant argues that the FTCA claims are time-barred, depriving the Court of subject matter
jurisdiction over the complaint. Defendant also argues that the Court lacks subject matter
jurisdiction over Counts One and Two of the Amended Complaint because the administrative
charge supplied by the Plaintiff alleges only $1,000,000 total.
II.
Section 2401(b) of Title 28 of the United States Code provides:
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). Defendant argues, based on this statute, that the Amended Complaint is
time-barred because it was not filed until August 27, 2012, thirteen days after the statute of
limitations expired (Doc. #18). Furthermore, although the original Complaint was filed within
the six month time-frame, it was deficient and as such did not vest this Court with jurisdiction.
(Id.). Therefore, the statute of limitations provided under § 2401(b) was not tolled (Id.).
Defendant thus contends that this Court must now dismiss all of Plaintiff’s claims. The Court
disagrees.
First, Defendant does not cite to any case that mirrors the factual scenario presented in
this case. The Defendant instead points to Ellison v. United States, 531 F.3d 359 (6th Cir. 2008).

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In Ellison, the plaintiff failed to file her complaint within the six month time-frame and her case
was dismissed. Id. This case is factually distinguishable from Ellison: in this case, Plaintiff
timely filed the Complaint within the six month time-frame, but merely failed to include an
affidavit of merit and a sum certain. This Court allowed Plaintiff to amend the Complaint to
correct these deficiencies (Doc. #14). Plaintiff did correct these deficiencies (Doc. # 15). Thus
the issue presented in this case is not as cut and dry as the one posed in the Ellison case.
Second, Defendant’s argument is predicated on the assertion that Plaintiff did not have
the right to remedy its deficient Complaint by an amendment under Ohio R. Civ. Pro.
10(D)(2)(e) (Id.). Defendant does not point to any case that states a plaintiff may not amend his
timely-filed complaint to comply with the requirements of Ohio R. Civ. P. 10(D). The cases
Defendant does cite do not mirror the factual scenario presented in this case. Instead, the
Defendant cites to cases outside this jurisdiction that involve state laws lacking the same
exception under Rule 10(D)(2)(e) that allows the filing of an affidavit of merit through an
amendment. See, e.g., Scarsella v. Pollak, 607 N.W.2d 711 (Mich. 2000). Further, the
Defendant also cites cases in which complaints were dismissed only after plaintiffs were given
multiple opportunities to amend their complaints prior to the expiration of the statute of
limitations. See, e.g., Zappley v. Sharfenberg, No. 2:08-cv-275, 2009 WL 2132727 at *4 (W.D.
Mich. July 13, 2009); Book v. United States, No. 1:CV-07-1960, 2009 WL 90129 (M.D.Pa. Jan.
14, 2009).
Moreover, the issues presented in the cases cited by the Defendant never come into play
in this case: this Court did not dismiss the Plaintiff’s Complaint. Had this Court dismissed the
original complaint, there may be a question as to whether Ohio R. Civ. P. 10(D)(2)(e) would

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operate to toll or extend the six month statute of limitations under 28 U.S.C. § 2401(b). But this
Court did not dismiss the Complaint because federal courts must be liberal in allowing
amendments at early stages of litigation. See, e.g., Hall v. Spencer Cnty. Kentucky, 583 F.3d
930, 934 (6th Cir. 2009). Accordingly, Defendant’s Motion to Dismiss the First Amended
Complaint will not be granted on that basis.
Because this Court did not dismiss the Complaint, but instead allowed the Plaintiff to file
an Amended Complaint, this Motion hinges on whether the amendments relate back to the
original pleading in accordance with Fed. R. Civ. Pro. 15(c). Specifically, Fed. R. Civ. Pro.
15(c)(1)(B) provides that an amendment relates back to the original pleading when “the
amendment asserts a claim or defense that arose out of the conduct, transaction or occurrence set
out--or attempted to be set out--in the original pleading.” Fed. R. Civ. Pro. 15(c)(1)(B).
“Rule 15(c) is ‘based on the notion that once litigation involving particular
conduct or a given transaction or occurrence has been instituted, the parties are
not entitled to the protection of the statute of limitations against the later assertion
by amendment of defenses or claims that arise out of the same conduct,
transaction, or occurrence.’”
See Hall, 583 F.3d at 934 (quoting Bledsoe v. Comm. Health Sys., Inc., 501 F.3d 493, 516 (6th
Cir. 2007)). So long as the original complaint gave the defendant sufficient notice of the nature
and scope of the plaintiff’s claim and was filed prior to the expiration of the statute of
limitations, the argument that it is time-barred will be denied. See id. (citing Bledsoe v. Comm.
Health Sys., Inc., 501 F.3d 493, 516 (6th Cir. 2007); Miller v. Am. Heavy Lift Shipping, 231 F.3d
242, 248 (6th Cir. 2000)).
On June 6, 2012, prior to the expiration of the statute of limitations, Defendant was
placed on notice that it was being sued for negligence and lack of informed consent under the

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FTCA via the original Complaint (Doc. #1). It was also put on notice of the factual allegations
underpinning Plaintiffs claims (Id.). The First Amended Complaint was for the sole purpose of
correcting technical deficiencies of the original complaint, and did not assert new grounds for
relief (Doc. #15). It did not include any new factual allegations stemming from a separate
transaction, but instead included an affidavit of merit and provided a sum certain, both of which
arose out of the same conduct, transaction or occurrence set out in the original pleading. See
Fed. R. Civ. P. 15(c)(1)(B); (Doc. # 1; # 15). Because Defendant was placed on notice of the
nature and scope of Plaintiff’s claim prior to the expiration of the statute of limitations, and the
Amended Complaint merely clarified details of the underlying action, the First Amended
Complaint relates back to the original Complaint and the statute of limitations is inapplicable.
Accordingly, Defendant’s Motion to Dismiss on the basis that the statute of limitations has
expired is denied.
There is, however, some confusion regarding what claims may be brought in this case.
The common law negligence and lack of informed consent claims asserted in Counts One and
Two are duplicative of the FTCA claims asserted in Counts Three and Four. The common law
claims asserted in Counts One and Two are duplicative of the FTCA claims asserted in Counts
Three and Four and, if taken together, allege two million dollars in damages – an amount
exceeding the sum certain Plaintiff has alleged in his administrative complaint. Furthermore,
the common law torts of negligence and lack of informed consent serve only to provide the
substantive law that applies to the FTCA claims, and cannot function as stand-alone counts. As
such, they are dismissed. Because they are dismissed, the prayer for $1,000,000 properly
reflects the sum certain alleged in Plaintiff’s administrative charge.

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III.
For the foregoing reasons, the Court DENIES the Motion to Dismiss as it relates to the
statute of limitations, and GRANTS the Motion to Dismiss Counts One and Two of the
Amended Complaint.
IT IS SO ORDERED.

/s/ Dan A. Polster September 28, 2012
Dan Aaron Polster
United States District Judge

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