Del Valle-Cruz v. United States of America (Department of Veterans Affairs)

Filing 62

OPINION AND ORDER re 55 MOTION to Dismiss/Lack of Jurisdiction Second Amended Complaint and Consolidated Complaint as to Yinnaris Otero-Del Valle and Consolidated Complaint as to the Estate of Angel Otero-Ortiz as to United States of Ame rica, Department of Veterans. GRANTED IN PART AND DENIED IN PART. The consolidated complaint in Civ. No. 15-2280, ECF No. 1, is hereby DISMISSED. The Clerk of the Court is to enter judgment in Civil 15-2280 accordingly. Signed by Chief Judge Aida M. Delgado-Colon on 3/31/2017.(wm)

THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

DORIS N. DEL VALLE CRUZ, et al.,
Plaintiffs,
v.

Civil No. 14-1443 (ADC)

UNITED STATES OF AMERICA, et al.,
Defendants.

ESTATE OF ANGEL OTERO ORTIZ, et
al.,

Consolidated with:

Plaintiffs,
v.

Civil No. 15-2280 (ADC)

UNITED STATES OF AMERICA, et al.,
Defendants.

OPINION AND ORDER
The family members and Estate of Angel Otero-Ortíz (“Otero- Ortíz”) filed this medical
malpractice action against the United States and its Department of Veteran Affairs (“VA”)
(collectively, “the government” or “defendants”). 1 Plaintiffs seek compensatory damages under

Plaintiffs’ complaint also includes allegations against John Doe codefendants, as well as their respective insurance
companies. ECF No. 19 at 3. To this date, plaintiffs have neither identified nor requested authorization to substitute
named parties for these John Does.
1

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the Federal Torts Claim Act (“FTCA”), 28 U.S.C. § 1346(b)(1), for the suffering caused by
defendants’ alleged misdiagnosis of Otero-Ortíz’s Non-Hodgkin Lymphoma and his eventual
death. Plaintiffs also bring an inherited action for the suffering that Otero-Ortíz endured before
his death. See ECF No. 19.
Before the Court is the government’s motion to dismiss Otero-Ortíz’s daughter, Yinnaris
Otero-Del Valle’s, claims for failing to timely exhaust administrative remedies. ECF No. 55. The
government also moves the Court to apply the ad damnum limitation to limit plaintiffs’
remaining claims to the sums that they claimed in their original administrative complaint before
the VA. Id.
Plaintiffs oppose the government’s motion. ECF No. 59. For the reasons explained below,
the government’s motion to dismiss, ECF No. 55, is hereby GRANTED IN PART and DENIED
IN PART. Yinnaris Otero-Del Valle’s personal claims are hereby DISMISSED.
I.

Factual Background
The Court draws the allegations summarized below from the amended complaint, ECF

No. 19, and treats all its well-pleaded facts as true, drawing all the reasonable inferences that
can be drawn from them in plaintiffs’ favor. See Martin v. Applied Cellular Technology, Inc., 284
F.3d 1, 6 (1st Cir. 2002); Valentin v. Hospital Bella Vista, 254 F.3d 358, 363 (1st Cir. 2001).
On or about February 12, 2002, Otero-Ortíz visited the Veterans Affairs Medical Center
for persistent hiccups. A computerized tomography (CT) scan showed soft tissue filling the
posterior of the nasopharyngeal airway at the base of his skull. ECF No. 19 at 4. On April 19,

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2002, a VA otorhinolaryngologist performed a nasal endoscopy on Otero-Ortíz. The endoscopy
showed the same soft tissue as the CT scan, and a biopsy was performed. The pathology results
were not definitive, and the pathology report recommended a repeat biopsy. However, the
second biopsy was not performed until ten years later, on January 12, 2012.
In the ten years between the two biopsies, Otero-Ortíz visited the VA Medical Center’s
emergency department and VA specialists on several occasions, for the following symptoms:
continuous suffocation, lack of air, asphyxia, dysphagia, and choking while eating. Because of
these symptoms, Otero-Ortíz suffered from pain and anxiety; spent many days in bed due to
physical pain and body weakness; was disabled; suffered sleep disturbances; and lacked an
appetite for fear of choking. Id. at 5. His family members, including plaintiffs, also suffered
throughout Otero-Ortíz’s illness, and provided him with the care he required. Id. at 9-11.
On January 9, 2012, a CT scan showed Otero-Ortíz had an ill-defined soft-tissue mass
density in his upper airway. A tracheotomy was performed to secure his airway. On January 12,
2012, an otorhinolaryngologist performed a biopsy, and, on the same date, Otero-Ortíz was
diagnosed with Non-Hodgkin Lymphoma. Otero-Ortíz received chemotherapy and
radiotherapy, but died on October 25, 2012. The immediate cause of death was advanced-stage
Non-Hodgkin Lymphoma and cardiac complications caused by the chemotherapy. ECF No. 19
at 7.

Civil No. 14-1443 (ADC)
II.

Page 4

Procedural Background
On June 29, 2012, Otero-Ortíz, his wife Doris Del Valle-Cruz, and his sons—Angel Otero-

Del Valle and Randy Otero-Del Valle—filed administrative claims under the FTCA against the
Department of Veteran Affairs. The VA denied the administrative claims, and the claimants
asked for reconsideration. On January 23, 2014, the VA denied their request for reconsideration
and issued a final decision, denying the administrative claims and notifying the claimants of
their right to sue. See ECF No. 19 at 9; ECF No. 59-7.
On March 30, 2014, Otero-Ortíz’s wife and sons, in their personal capacities and as
members of his Estate, filed the present action against defendants. ECF No. 1. The complaint
also named Otero Ortiz’s daughter, Yinnaris Otero-Del Valle (“Yinnaris”), as co-plaintiff, both
individually and as a member of his estate. 2
On September 19, 2014, defendants moved the Court to dismiss the complaint as to
Yinnaris for failure to exhaust administrative remedies inasmuch as she had not filed an
administrative claim before the VA. See ECF No. 13 at 7. 3
On October 14, 2014, Otero-Ortíz’s estate and Yinnaris filed an administrative claim
before the VA. Consequently, on April 20, 2015, plaintiffs requested leave to file an amended
complaint, ECF No. 18, which the Court granted. ECF No. 23. The amended complaint names

2 On June 5, 2014, plaintiffs amended the complaint, as a matter of course, to include in its caption the Estate of
Otero-Ortíz. ECF No. 6.
3 Defendants also moved to dismiss the estate’s claims because the remaining plaintiffs had filed administrative
claims in their individual capacity and not as representatives or members of the estate. ECF No. 13 at 9. However,
as discussed later in this Opinion and Order, the motion to dismiss currently before the Court, ECF No. 55, does
not challenge the estate’s claims.

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Otero-Ortíz’s wife, his two sons, his daughter Yanniris, and his estate as plaintiffs. ECF No. 19.
It also increased the damages that plaintiffs claim, in excess of the sums claimed in their
administrative complaints. The Estate raised its claims from $5,000,000 to $6,000,000, and OteroOrtíz’s wife and sons each increased their claims from $500,000 to $1,000,000. 4 ECF No. 19 at 912. After plaintiffs amended their complaint, the Court mooted defendant’s initial motion to
dismiss, and ordered defendants to submit a new motion to dismiss, if they believed one was
warranted. ECF No. 27.
Now, defendants move the Court to dismiss Yinnaris’ claims from the amended
complaint because she failed to timely exhaust administrative remedies under the FTCA. ECF
No. 55 at 5. They argue that plaintiffs’ claims accrued in January 2012, when Otero-Ortíz learned
that the medical staff had failed to diagnose his cancer. Thus, pursuant to the FTCA’s 2-year
statute of limitations, 28 U.S.C. § 2401(b), plaintiffs had until January, 2014 to file an
administrative claim before the VA. Because Yinnaris filed her administrative claim on October
2014, defendants argue that her claim failed to timely exhaust administrative remedies, and,
thus, that the Court lacks jurisdiction over her claim. See ECF No. 55.
Defendants also ask the Court to apply the ad damnum limitation, 28 U.S.C. § 2675(b), to
limit plaintiffs’ claims to the amounts they had originally claimed in their administrative claim.
ECF No. 55 at 13.

4

Yinnaris Otero-Del Valle does not claim more than she had claimed in her administrative complaint.

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Plaintiffs oppose the motion to dismiss. ECF No. 59. They argue that Yinnaris timely
exhausted administrative remedies because her cause of action accrued on October 25, 2012,
when Otero-Ortíz died. ECF No. 59. Therefore, the two-year limitations period had not yet
expired when Yinnaris filed her claim on October 14, 2014. Id. at 7. As to the ad damnum
limitation, plaintiffs point out that Otero-Ortíz died after plaintiffs filed their administrative
complaint on June 28, 2012. Thus, Otero-Ortíz’s death is an intervening fact that justifies
increasing the sums that plaintiffs claim. Id. at 12.
III.

Legal Standard
Federal courts are courts of limited jurisdiction, and they must narrowly construe their

jurisdictional grants. López-Muñoz v. Triple-S Salud, Inc., 745 F.3d 1, 5 (1st Cir. 2014). Federal Rule
of Civil Procedure 12(b)(1) allows a defendant to move the Court to dismiss a complaint for lack
of subject-matter jurisdiction. When reviewing a complaint for lack of subject-matter
jurisdiction, the Court must accept its well-pleaded facts and draw all reasonable inferences in
the plaintiff’s favor. Martínez-Rivera v. Puerto Rico, 812 F.3d 69, 73 (1st Cir. 2016) (citing McCloskey
v. Mueller, 446 F.3d 262, 266 (1st Cir. 2006)).
IV.

Discussion
a.

Plaintiff Yinnaris Otero-Del Valle failed to timely exhaust administrative
remedies.

“Absent a waiver, sovereign immunity (which is jurisdictional in nature) shields the
United States from suit.” Villanueva v. United States, 662 F.3d 124, 126 (1st Cir. 2011) (citing Fed.

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Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 475 (1994)). The FTCA expressly waives the
government’s sovereign immunity and allows individuals to sue the government “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.”
28 U.S.C. § 1346(b). However, an FTCA 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.” 28 U.S.C. § 2401(b); Litif v. United States, 670 F.3d 39, 43 (1st Cir. 2012). This statute
of limitations is a condition of the FTCA’s waiver of sovereign immunity that must be strictly
construed. Skwira v. United States, 344 F.3d 64, 73 (1st Cir. 2003).
At issue in this case is the date on which plaintiffs’ claims accrued. Federal law establishes
the accrual date of an FTCA claim, without regard to state law. Rakes v. United States, 442 F.3d 7
n.7 (1st Cir. 2006); see Surén-Millán v. United States, 38 F.Supp.3d 208, 219 (D.P.R. 2013 ) (DRD);
Morales-Melecio v. United States, No. 13-cv-1311 (SEC), 2016 WL 3129419, at *2 (D.P.R. June 3,
2016). “The general rule, within the meaning of the FTCA, is that a tort claim accrues at the time
of the plaintiff’s injury.” Skwira, 344 F.3d at 73 (citing United States v. Kubrick, 444 U.S. 111, 120
(1979)). However, the discovery rule delays accrual of an FTCA claim “where the fact or cause
of an injury is unknown to (and perhaps unknowable by) a plaintiff for some time after the
injury occurs.” Rakes, 442 F.3d at 19. Thus, under the discovery rule, “a claim accrues under the
FTCA once a plaintiff knows, or in the exercise of reasonable diligence should know, (1) of her
injury and (2) sufficient facts to permit a reasonable person to believe that there is a causal

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connection between the government and her injury.” Skwira, 344 F.3d at 78. “The inquiry is an
objective one—it includes not only what was actually known but what a reasonable person, once
fairly prompted to investigate, would have discovered by diligent investigation.” Litif v. United
States, 670 F.3d 39, 44 (1st Cir. 2012) (citing Rakes, 442 F.3d at 20, 23).
In this case, Otero-Ortíz did not learn that the VA had allegedly misdiagnosed his cancer
until January 2012. Plaintiffs also identified January 2012 as the “date of the accident” in their
June 2012 administrative claims before the VA. ECF Nos. 55-2, 59-3. In addition, defendants
argue that plaintiff’s claims accrued in January 2012. See ECF No. 55. Accordingly, the Court
finds that plaintiffs’ claims accrued in January 2012. Therefore, the FTCA’s 2-year limitations
period ended in January 2014, before Yinnaris filed her administrative complaint in October
2014. It would be disingenuous for the Court to accept plaintiffs’ argument that Yinnaris’s claim
accrued in October 25, 2012, when Otero-Ortíz died. After all, all other family members—
including Otero-Ortíz himself—had filed their administrative claims in June 2012. Thus,
Yinnaris’s administrative claim is untimely, and the Court lacks subject-matter jurisdiction over
her personal claim. Accordingly, Yanniris’s personal claim is DISMISSED. 5
b.

Otero-Ortíz’s death warrants a complaint for sums in excess of those claimed in
the administrative complaint.

The FTCA’s statute of limitations is not a jurisdictional requirement and is subject to equitable tolling. United States
v. Kwai Fun Wong, 135 S. Ct. 1625, 1633 (2015). In its motion to dismiss, the government preemptively argued that
Yanniris is not entitled to equitable tolling. ECF No. 55 at 11. However, plaintiffs have not argued that Yanniris is
entitled to equitable tolling. See ECF No. 59. The Court finds plaintiffs waived any argument for equitable tolling of
Yanniris’s claims. Delaney v. Matesanz, 264 F.3d 7, 14 (1st Cir. 2001) (holding that the party that invokes equitable
tolling bears the burden of establishing that it is entitled to it).
5

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“An essential element of [an FTCA] claim is ‘notification of the incident,’ via ‘an executed’
SF 95 [form] or ‘other written’ document, ‘accompanied by’ a demand ‘for money damages in a
sum certain.’” Holloway v. United States., No. 16-1402, slip op. at 2 (1st Cir. Jan. 11, 2017) (quoting
28 C.F.R. § 14.2(a)). The purpose of the notification requirement is “to let the government know
what it is likely up against: mandating that a claimant propound a definite monetary demand
ensures that '[t]he government will at all relevant times be aware of its maximum possible
exposure to liability and will be in a position to make intelligent settlement decisions”. Reilly v.
United States, 863 F.2d 149, 173 (1st Cir. 1988) (quoting Martínez v. United States, 780 F.2d 525, 530
(5th Cir. 1986)). However, courts “’approach . . . the notice requirement leniently, ‘recognizing
that individuals wishing to sue the government must comply with the details of the law, but
also keeping in mind that the law was not intended to put up a barrier of technicalities to defeat
their claims.’” Holloway, slip. op. at 2 (quoting Santiago–Ramírez v. Sec’y of Dept. of Def., 984 F.2d
16, 19 (1st Cir. 1993)).
Consonant with the FTCA’s notice requirement, § 2675 of the FTCA bars a claimant from
suing for damages that exceed the sum that he or she previously claimed in the administrative
complaint, unless: (1) “the increased amount is based upon newly discovered evidence not
reasonably discoverable at the time of presenting the claim to the federal agency, or [(2)] upon
allegation and proof of intervening facts, relating to the amount of the claim.” 28 U.S.C. § 2675.
In explaining §2675’s ad damnum limitation for FTCA claims, the Court of Appeals for the First
Circuit has expressed that:

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Because the statute itself renders the state of a claimant’s knowledge (actual
or constructive) at the time of presentment of the claim of decretory significance,
the mechanics of a § 2675(b) inquiry must be double-barrelled: What should the
party have known? When should she have known it? To be binding in this context,
knowledge need not be certain. In the same vein, intelligence which serves only to
bear out earlier suspicions cannot unlock the FTCA’s narrow escape hatch.
Diagnoses which are no more than cumulative and confirmatory of earlier
diagnoses are neither newly discovered evidence nor intervening facts for the
purposes of § 2675(b). . . . [T]he statute demands a showing that some new and
previously unforeseen information came to light between the time of filing the
administrative claim and the trial on damages. And, the newly-emergent datum
must be material.
Reilly, 863 F.2d at 171 (quotations and citations omitted). See Lowry v. United States, 958 F. Supp.
704, 719 (D. Mass. 1997).
In this case, defendants argue that plaintiffs have not shown any newly discovered
evidence or intervening fact to justify increasing the sums they claim. ECF No. 55 at 14. In other
words, they argue that Otero-Ortíz’s death was foreseeable when plaintiffs filed their
administrative claims, or, in the alternative, that his death is merely cumulative or confirmatory
of their original claim, the alleged cancer misdiagnosis. Id.
The Court rejects the government’s argument. In this case, Otero-Ortíz’s death is
precisely the type of “new evidence” or “intervening circumstance” that justifies a suit for an
amount in excess of the sum plaintiffs claimed before the VA. Accordingly, defendants’ request
to reduce the sums claimed in the complaint is DENIED.
c.

Additional issues raised in defendants’ motion.

On September 15, 2015, the Estate of Angel Otero-Ortíz and Yinnaris Otero-Del Valle
commenced a separate action against the government for the wrongful death of Otero-Ortíz. See

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Civ. No. 15-02280 (ADC). By plaintiffs’ motion, ECF No. 35, the Court ordered both cases
consolidated, pursuant to Local Civil Rule 41, ECF No. 36. See ECF No. 38. Now, the government
requests that the Court dismiss the consolidated complaint as duplicitous and unnecessary
because the amended complaint includes the claims of Otero-Ortiz’s estate. ECF No. 55 at 2.
Plaintiffs consent to dismiss the Estate’s claims in Civ. No. 15-02280 and continue their claims
in the instant complaint, inasmuch as the government has recognized that the estate exhausted
administrative remedies. ECF No. 59 at 8. However, plaintiffs oppose the dismissal of the
consolidated complaint as it pertains to Yinnaris’s claims. Id.
By this order, the Court finds that Yinnaris’s claims accrued in January 2012 and
dismisses her personal claims as untimely. Accordingly, her personal claims are DISMISSED
for lack of subject-matter jurisdiction. Thus, the complaint in Civ. No. 15-02280, ECF No. 1, is
DISMISSED.
The amended complaint also alleges that Otero-Ortíz would have received a full
disability pension since 2002. ECF No. 19 at 8. Defendants move to dismiss this claim because it
falls under the exclusive jurisdiction of the Board of Veteran Affairs. ECF No. 55 at 2. Plaintiffs
consent to dismissal and withdraw their claims regarding the pension. ECF No. 59 at 13.
Accordingly, plaintiffs’ claim to Otero-Ortiz’s veteran’s pension is DISMISSED.
V.

Conclusion
In light of the above, defendants’ motion to dismiss, ECF No. 55, is GRANTED IN PART

AND DENIED IN PART. Yinnaris Otero-Del Valle’s personal claims are hereby DISMISSED.

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Plaintiffs’ claims for the unpaid benefits of Otero-Ortiz’s disability pension are hereby
DISMISSED, inasmuch as the matter remains within the jurisdiction of the Board of Veteran
Affairs. Respondents’ request to limit the sums claimed by plaintiffs to the sums claimed in the
administrative complaints is DENIED. The Court will allow the personal claims of Doris Del
Valle-Cruz, Angel Otero-Del Valle, and Randy Otero-Del Valle, to move forward, as well as
plaintiffs’ claims as members of Angel Otero-Ortiz’s Estate.
Furthermore, the consolidated complaint in Civ. No. 15-2280, ECF No. 1, is hereby
DISMISSED. The Clerk of the Court is to enter judgment in Civ. No. 15-2280 accordingly.
SO ORDERED.
At San Juan, Puerto Rico, on this 31st day of March, 2017.
S/AIDA M. DELGADO-COLÓN
Chief United States District Judge