Willis v. Veterans Administration

Filing 17

ORDER granting 13 Motion to Dismiss. Signed by Judge James L Graham on 6/20/2013. (ds)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Gregory S. Willis,
v.

Case No. 2:12-cv-867

Plaintiff,

Judge Graham

United States of America,
Department of Veteran’s Affairs
Defendant.
Opinion and Order
This matter is before the court on a motion to dismiss filed by the United States of America.
Plaintiff Gregory S. Willis, proceeding pro se, has not filed a response to the motion, despite having
requested and received an extension of time to file such a response. For the reasons that follow, the
motion to dismiss is granted.
I.

Background
Willis brings this action under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671, et seq.,

for alleged medical malpractice committed by staff at the Veteran Affair’s Medical Centers in
Chillicothe and Columbus, Ohio. The complaint contains few factual allegations, but Willis states
that he is a diabetic and suffers from bipolar mania. He alleges that he went to the VA Medical
Centers in 2006 and 2007 to receive drug and alcohol treatment. He further alleges that he was
given shots of testosterone that altered his mood and increased his sexual drive. According to the
complaint, Willis did not comprehend or appreciate the side effects that the testosterone shots were
having because his perception was impaired by his bipolar disorder and the medication he took for
it. Willis alleges that it was medical malpractice for the staff to give him the testosterone shots.
Finally, the complaint states that Willis filed an administrative claim with the VA relating to the
alleged malpractice and that the claim was denied within six months prior to filing this suit.
The complaint seeks $10 million in damages and alleges that the medical malpractice has
caused Willis to suffer lost wages and reputational harm. The complaint does not contain any
further allegations about the effects of the testosterone shots, and from the face of the complaint it
is not possible to discern how the testosterone shots could have caused such damage to Willis. The
government notes that Willis alleged in his administrative claim with the VA (which the government
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has attached as an exhibit to its motion to dismiss) that the testosterone shots caused him to commit
an “incident” of “sexual acting out” and resulted in his incarceration. The administrative claim
asserts that the VA should be held liable for the damages Willis has suffered from being
incarcerated. The court takes judicial notice that in May 2008 Willis was convicted of rape and
kidnapping by a jury in the Court of Common Pleas of Franklin County, Ohio. See State v. Willis,
No. 07CR-05-3571. The criminal conduct for which Willis was convicted occurred in January 2007.
II.

Standard of Review
This matter is before the court on the government’s motion to dismiss under Federal Rule of

Civil Procedure Rule 12(b). When considering a motion under Rule 12(b)(6) to dismiss a pleading
for failure to state a claim, a court must determine whether the complaint “contain[s] sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at
678. A court should construe the complaint in the light most favorable to the plaintiff and accept all
well-pleaded material allegations in the complaint as true. Iqbal, 556 U.S. at 679; Twombly, 550 U.S.
at 555-56. However, a court need not accept as true legal conclusions and “[t]hreadbare recitals of
the elements of a cause of action.” Iqbal, 556 U.S. at 678; see also Twombly, 550 U.S. at 555, 557.
The plaintiff must provide the grounds of his entitlement to relief “rather than a blanket assertion of
entitlement to relief.” Twombly, 550 U.S. at 556 n.3.
III.

Discussion
The United States, as sovereign, is immune from suit save as it consents to be sued ….”

United States v. Sherwood, 312 U.S. 584, 586 (1941). The FTCA “provides a limited waiver of the
national government’s immunity from suit for torts committed by federal employees.” Ellison v.
U.S., 531 F.3d 359, 361 (6th Cir. 2008). The FTCA permits suits against the government to the
same extent that state law would impose liability on a private individual in similar circumstances.
Myers v. United States, 17 F.3d 890, 899 (6th Cir. 1984) (citing 28 U.S.C. § 2674). The government’s
liability is thus determined by the substantive laws of the state in which the alleged tort occurred.
Huddleston v. United States, 485 Fed. App’x 744, 745 (6th Cir. 2012) (citing Ward v. United States,
838 F.2d 182, 184 (6th Cir. 1988)).

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A.

Ohio’s Statute of Repose

Statutes of repose generally extinguish a cause of action after a fixed period of time,
irrespective of when the action accrued. See Sedar v. Knowlton Const. Co.., 49 Ohio St.3d 193,
195, 551 N.E.2d 938, 941 (Ohio 1990). The Sixth Circuit has held that state statutes of repose apply
to FTCA claims because they are substantive in nature and not “just a procedural hurdle.”
Huddleston, 485 Fed. App’x 745-46; see also Kennedy v. United States, No. 12-3049, 2013 WL
1693965, at **3-4 (6th Cir. Apr. 19, 2013). The government argues that the medical malpractice
claim brought by Willis is untimely under Ohio’s four-year statute of repose for medical malpractice
claims, O.R.C. § 2305.113(C), because the alleged malpractice occurred in 2006 and 2007 but Willis
did not file this suit until September 2012.
At the time the government filed its motion, its argument regarding the statute of repose
appeared to be valid. However, recent decisions by the Ohio Supreme Court and the Sixth Circuit
make clear that the argument fails. In Ruther v. Kaiser, 134 Ohio St.3d 408, 983 N.E.2d 291 (Ohio
2012), the Ohio Supreme Court held that “[Section] 2305.113(C) does not bar a vested cause of
action, but prevents a cause of action from vesting more than four years after the breach of the duty
of care.” 134 Ohio St.3d at 412, 983 N.E.2d at 296. A medical malpractice claim vests “when a
patient discovers or in the exercise of reasonable care and diligence should have discovered the
resulting injury.” 134 Ohio St.3d at 412, 983 N.E.2d at 295. Applying Ruther, the Sixth Circuit in
Kennedy, 2013 WL 1693965, at *4, held that a medical malpractice claim under the FTCA is not
untimely under Ohio’s statute of repose if it vests within four years of the date of actionable
conduct. So long as a “patient discovers . . . the injury within the repose period, the patient has a
vested substantive cause of action under Ohio law.” 2013 WL 1693965, at *4; accord Clemenz v.
United States, No. 1:12-cv-3004, 2013 WL 2367867, at **1-2 (N.D. Ohio May 29, 2013).
Liberally construing the complaint and the underlying administrative claim, of which the
court may take judicial notice, see Greenberg v. Life Ins. Co. of Virginia, 177 F.3d 507, 514 (6th Cir.
1999) (documents attached to a motion to dismiss that are referred to in the complaint and central
to the claim are deemed to form a part of the pleadings); J.P. Silverton Indus. L.P. v. Sohm, 243 F.
App’x 82, 87 (6th Cir. 2007); Embassy Realty Inv., LLC v. City of Cleveland, 877 F.Supp.2d 564,
570-71 (N.D. Ohio 2012) (taking judicial notice of records from underlying administrative
proceedings that were referred to in the complaint), the court finds that Willis’s claim vested within
the four-year period allotted by the statute of repose. Willis alleges in his complaint that he did not
discover his injury at the time the testosterone shots were administered because his bipolar disorder
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(and the medication he took for it) impaired his perceptions. Willis alleged in his administrative
claim that he did not realize “the complete nature and full extent of the injury” until he was
sentenced for his crimes. Willis states that he was sentenced on May 28, 2008, a date that comports
with the judicial records of the Court of Common Pleas. See State v. Willis, No. 07CR-05-3571.
Because Willis discovered his injury well within four years of the alleged malpractice that
occurred in 2006 and 2007, his suit is not untimely under the statute of repose.
B.

The FTCA’s Statute of Limitations

The government next argues that the suit is untimely under the FTCA’s two-year statute of
limitations. See 28 U.S.C. § 2401(b); Kennedy, 2013 WL 1693965, at *4 (noting that once the statute
of repose is satisfied, the applicable statute of limitations thereafter governs the claim); Clemenz,
2013 WL 2367867, at *1 n.1 (noting that a FTCA medical malpractice claim for an injury occurring
in Ohio must satisfy both the state statute of repose and the FTCA’s limitations period).
In order to file suit under the FTCA, a claimant must first present his claim to the
appropriate federal agency, 28 U.S.C. § 2675(a), and he must do so “within two years after such
claim accrues,” 28 U.S.C. § 2401(b). See Ellison v. U.S., 531 F.3d 359, 361 (6th Cir. 2008). He must
then file suit in federal court within six months after the mailing of the notice of final denial of the
claim. Id. (citing § 2401(b)).
The government argues that Willis did not present his claim to the VA within two years of
its accrual, and the court agrees. 1 A claim for medical malpractice under § 2401(b) accrues “when
the plaintiff knows both the existence and the cause of his injury.” U.S. v. Kubrick, 444 U.S. 111,
111 (1979). The complaint alleges that the malpractice took place in 2006 and 2007. And while the
complaint alleges that Willis was not able to perceive the side effects of the testosterone shots at the
time they were administered, he plainly states in his administrative claim that he did appreciate “the
complete nature and full extent of the injury” when he was sentenced on May 28, 2008 for his rape
and kidnaping convictions. Willis did not file his claim with the VA until October 4, 2010, more
than four months after the limitations period had run.

The government has styled its argument as jurisdictional but concedes that the “question whether
§ 2401(b)’s exhaustion provisions constitute jurisdictional requirements divides circuit courts and
even prompts inconsistent rulings within this circuit.” Bazzo v. U.S., 494 Fed App’x 545, 546 (6th
Cir. 2012) (citing cases). If the exhaustion provisions are jurisdictional, then they are not subject to
equitable tolling. Id. The court need not address the question because even if tolling were available,
Willis has stated no grounds in his complaint for why equitable tolling would be justified here.
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Accordingly, the complaint must be dismissed as untimely under the FTCA’s statute of
limitations.
C.

Ohio’s Requirement of an Affidavit of Merit

The government argues that the complaint additionally fails to satisfy the requirement under
Ohio law that the filing of a medical malpractice claim be accompanied by an affidavit of merit.
Under Ohio Rule of Civil Procedure 10(D)(2), a plaintiff filing a medical malpractice claim must
attach to the complaint an affidavit of merit from an expert qualified under Ohio Rules of Evidence
601(D) and 702. The affidavit must state that the affiant (1) “has reviewed all medical records
reasonably available,” (2) “is familiar with the applicable standard of care,” and (3) is of the opinion
that the defendants breached the standard of care and caused the plaintiff’s injury. See Fletcher v.
Univ. Hosps. of Cleveland, 120 Ohio St.3d 167, 169, 897 N.E.2d 147, 149 (Ohio 2008).
There is no dispute that Willis has not filed an affidavit of merit with his complaint. Further,
it is well-established that the affidavit requirement is substantive in nature, such that Willis’s claim
under the FTCA must satisfy it. See Daniel v. United States, 716 F.Supp.2d 694, 698 (N.D. Ohio
2010); Bierbauer v. Manenti, M.D., No. 4:09CV2142, 2010 WL 400835, at * 10 (N.D. Ohio Oct. 12,
2010); Williams v. United States, 754 F.Supp.2d 942, 950-53 (W.D. Tenn. 2010) (holding that
Tennessee malpractice certification requirement was substantive and applied to FTCA claim);
Luckett v. United States, No. 08–CV–13775, 2009 WL 1856417, at *5 (E.D. Mich. June 29, 2009)
(same under Michigan law). See also Hill v. SmithKline Beecham Corp., 393 F.3d 1111, 1117 (10th
Cir. 2004) (holding that a Colorado law requiring a medical malpractice plaintiff to file a certificate of
review with a complaint is substantive and applies in FTCA actions); Chamberlain v. Giampapa, 210
F.3d 154, 161 (3d Cir. 2000) (holding that a New Jersey statute requiring medical-malpractice
plaintiffs to file an affidavit of merit is substantive and applies in diversity actions).
Accordingly, the complaint must be dismissed for failing to satisfy the requirement under
Ohio law that a medical malpractice complaint be accompanied by an affidavit of merit.
IV.

Conclusion
For the reasons stated above, the government’s motion to dismiss (doc. 13) is GRANTED.

s/ James L. Graham
JAMES L. GRAHAM
United States District Judge
DATE: June 20, 2013
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