Meadows et al v. United States of America

Filing 16

ORDER granting 13 Motion to Dismiss for Lack of Jurisdiction. Signed by Honorable Timothy D. DeGiusti on 2/22/2013. (mb)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
DEKOVEN MEADOWS, individually and
as Personal Representative of the Estate of
DA’MARRION MONTEZ MEADOWS,

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Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.

Case No. CIV-12-367-D

ORDER
Before the Court is Defendant United States’ Motion to Dismiss [Doc. No. 13], filed
pursuant to Fed. R. Civ. P. 12(b)(1). The federal government asserts its sovereign immunity from
suit in this action brought under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346, 2671-80.
Plaintiff DeKoven Meadows has responded in opposition to the Motion, and the government has
filed a reply brief. The Motion is thus at issue.
Factual and Procedural Background
Plaintiff brings suit individually and as personal representative of the estate of his infant
child, Da’Marrion Montez Meadows, for alleged medical malpractice that occurred during the
child’s cesarean-section delivery on November 13, 2007. Plaintiff was then a member of the United
States Army allegedly “stationed in Fort Campbell, Montgomery County, Tennessee,” but he alleges
the negligent medical and surgical treatment occurred at Blanchfield Army Community Hospital
(BACH) located in “Montgomery County, Kentucky.” See Compl. [Doc. No. 1], ¶¶ 2, 5. The
location of the hospital is a key to the government’s Motion, which asserts that BACH is located in
Tennessee and therefore Plaintiff’s FTCA claim is governed by Tennessee law.

The Motion seeks a dismissal for lack of subject matter jurisdiction because the doctrine of
sovereign immunity precludes a suit against the United States without its consent and “the terms of
its consent define the extent of the court’s jurisdiction.” See In re Franklin Savings Corp., 385 F.3d
1279, 1287 (10th Cir. 2004) (internal quotation omitted). The FTCA “is a limited waiver of
sovereign immunity, making the Federal Government liable to the same extent as a private party for
certain torts of federal employees acting within the scope of their employment.” United States v.
Orleans, 425 U.S. 807, 813 (1976); see also 28 U.S.C. § 1346(b)(1). Specifically, the FTCA
mandates that the government’s liability for a negligent act or omission of a federal employee is
determined by “the law of the place where the act or omission occurred.” See 28 U.S.C.
§ 1346(b)(1); see also id. § 2674(a). Accordingly, state law governing the site of the alleged
medical malpractice – BACH – determines the extent of the waiver of sovereign immunity in this
case.
Standard of Decision
Because sovereign immunity is a matter of subject matter jurisdiction, the defense may
properly be asserted by a motion to dismiss under Rule 12(b)(1). See Holt v. United States, 46 F.3d
1000, 1002 (1995); see also E.F.W. v. St. Stephen’s Indian High Sch., 264 F.3d 1297, 1302-03 (10th
Cir. 2001). “Motions to dismiss for lack of subject matter jurisdiction ‘generally take one of two
forms: (1) a facial attack on the sufficiency of the complaint’s allegations as to subject matter
jurisdiction; or (2) a challenge to the actual facts upon which subject matter jurisdiction is based.’”
City of Albuquerque v. United States Dep’t of Interior, 379 F. 3d 901, 906 (10th Cir. 2004) (quoting
Ruiz v. McDonnell, 299 F. 3d 1173, 1180 (10th Cir. 2002)). If the motion challenges only the
sufficiency of the plaintiff’s jurisdictional allegations, a district court must confine itself to the
complaint and accept the allegations as true. See Holt v. United States, 46 F.3d at 1002. Where,
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however, the motion challenges the underlying factual basis for subject matter jurisdiction, the court
“may not presume the truthfulness of the complaint’s factual allegations” and “has wide discretion
to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed
jurisdictional facts.” Id. at 1003; see also Paper, Allied-Industrial, Chemical & Energy Workers
Int’l Union v. Continental Carbon Co., 428 F. 3d 1285, 1292-93 (10th Cir. 2005); Sizova v. National
Inst. of Standards & Tech., 282 F.3d 1320, 1324 (10th Cir. 2002).1
In this case, Defendant’s Motion challenges the underlying factual basis for Plaintiff’s
assertion of subject matter jurisdiction, and thus, Plaintiff’s allegations need not be accepted as true.
Further, because the jurisdictional issues are not intertwined with the merits of Plaintiff’s tort claim,
Defendant’s Motion may properly be decided under Rule 12(b)(1) by considering matters outside
Plaintiff’s complaint.
Analysis
As previously stated, it is well established that an FTCA claim is governed by the substantive
law of the state in which the alleged tortious act occurred. See Hoery v. United States, 324 F.3d
1220, 1222 (10th Cir. 2003); Ayala v. United States, 49 F.3d 607, 611 (10th Cir. 1995); Franklin v.
United States, 992 F.2d 1492, 1495 (10th Cir. 1993). In this case, the government invokes a
requirement of the Tennessee Medical Malpractice Act that a complaint in a negligence action
requiring expert testimony must be accompanied by a certificate of good faith, stating that one or
more experts have found a good faith basis to maintain the action. See Tenn. Code Ann. § 29-26122(a).

The Tenth Circuit has squarely held that a similar statutory certificate-of-review

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A court must convert a Rule 12(b)(1) motion to a Rule 56 motion for summary judgment “when
resolution of the jurisdictional question is intertwined with the merits of the case.” See Holt, 46 F.3d at 1003.
The jurisdictional question is intertwined with the merits of the case if “resolution of the jurisdictional
question requires resolution of an aspect of the substantive claim.” See Continental Carbon, 428 F. 3d at
1292; see Sizova, 282 F.3d at 1324-25; Pringle v. United States, 208 F.3d 1220, 1223 (10th Cir. 2000).

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requirement of Colorado law “is a substantive rule of law” and “applicable to professional
negligence claims brought against the United States under the FTCA.” See Hill v. SmithKline
Beecham Corp., 393 F.3d 1111, 1117 (10th Cir. 2004); see also Van Dyke v. United States, 457 F.
App’x 721, 726-27 (10th Cir. 2012) (affirming dismissal of FTCA claims based on Wyoming law
requirement of filing pre-suit claim with state medical review panel).
It is undisputed in this case that Plaintiff has not filed the good-faith certificate required by
Tennessee law.2 Plaintiff instead maintains that none is required because BACH, where the alleged
medical malpractice occurred, is located in Kentucky and not Tennessee. Each party presents an
affidavit and evidentiary materials to support the position asserted in their respective briefs
regarding the location of BACH in relation to state boundaries.
Defendant presents the declaration of Keith Shumate, a senior law enforcement officer for
Fort Campbell, regarding the geographical and jurisdictional boundaries of the installation and the
location of BACH. He attests that Fort Campbell is split between the states of Kentucky and
Tennessee and that BACH is located on the Tennessee side. His declaration is accompanied by
maps showing the location of BACH in relation to the boundary line between the two states. With
its reply brief, the government also presents a published history of the Army post, which explains
its official designation as Fort Campbell, Kentucky, although the majority of the land is located in
Tennessee. The explanation includes that the “U.S. Post Office building was located on the
Kentucky side of the state line.” See Reply Br., attach. 1 [Doc. No. 15-1] at 1. In addition, the

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The Court notes that the government relies on the current version of the Tennessee Medical
Malpractice Act, which requires that the certificate be filed with the complaint. Prior to its amendment in
2009, a certificate was required within 90 days after filing a complaint. See Williams v. United States, 754
F. Supp. 2d 942, 947 n.1 (W.D. Tenn. 2010). Because Plaintiff does not seek the benefit of the earlier
version, and because the additional 90-day filing period has also expired, the Court need not decide which
version of the statute applies in this case.

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government submits a death certificate issued for Da’Marrion Montez Meadows by the State of
Tennessee.
Plaintiff presents his own affidavit that he was assigned to Fort Campbell, Kentucky, that
BACH was considered part of the military installation in Kentucky, and that the address for BACH
was in Kentucky. Plaintiff also presents published materials about BACH that list its address as
“650 Joel Drive, Fort Campbell, KY 42223.” See Pl.’s Resp. Br., Exs. 2 & 3 [Doc. Nos. 14-2 and
14-3]. Plaintiff asserts that he properly filed suit in compliance with the laws of Kentucky rather
than Tennessee.
Upon consideration of the materials submitted by the parties, the authenticity of which are
unchallenged, the Court finds that Fort Campbell spans two states but that BACH is itself located
entirely within Tennessee. Plaintiff’s materials are fully consistent with the Army’s designation of
the installation as Fort Campbell, Kentucky, and BACH’s assigned address bearing a Kentucky
postal service code. However, Mr. Shumate’s personal knowledge of the geographical boundaries
of Fort Campbell and the location of BACH, together with maps plainly showing that BACH is
situated on the Tennessee side of the state boundary, establish that BACH is located in Tennessee.
Therefore, the Court finds that Plaintiff’s claim of medical malpractice allegedly committed during
surgery at BACH is governed by Tennessee law.3

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Although the Court reaches this conclusion based solely on the record presented in this case, the
Court notes that other federal judges have also applied Tennessee law to malpractice claims arising from
medical treatment at BACH. See Jones v. United States, 789 F. Supp. 2d 883, 887 (M.D. Tenn. 2011); Cloer
v. United States, No. 3:09-cv-1119, 2011 WL 2218104, *4 (M.D. Tenn. June 7, 2011); Carver v. United
States, No. 3:04-0234, 2005 WL 2230025, *2 (M.D. Tenn. Aug. 30, 2005) (stating BACH “is located in the
state of Tennessee on the Ft. Campbell Army Post”).

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Conclusion
For these reasons, Plaintiff’s failure to comply with the certification requirement of the
Tennessee Medical Malpractice Act deprives the Court of subject matter jurisdiction of an FTCA
claim against the United States.
IT IS THEREFORE ORDERED that Defendant United States’ Motion to Dismiss [Doc.
No. 13] is GRANTED, as set forth herein. Judgment shall be entered accordingly.
IT IS SO ORDERED this 22nd day of February, 2013.

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