Butcher et al v. United States of America

Filing 55

MEMORANDUM OPINION AND ORDER granting the United States 46 MOTION for Summary Judgment. Signed by Judge John T. Copenhaver, Jr. on 3/14/2016. (cc: counsel of record; any unrepresented parties) (tmh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
LISA BUTCHER,
individually and as natural
guardian of Jaron A. Butcher,
an infant,
Plaintiff,
v.

Civil Action No. 14-28979

UNITED STATES OF AMERICA,
Defendant.

MEMORANDUM OPINION AND ORDER
Pending is the motion for summary judgment filed by
the United States of America on January 25, 2016.
I. Background
Jaron Butcher was born on August 16, 2003, after
doctors induced labor in his mother, plaintiff Lisa Butcher.
Jaron suffers from brain damage, and Ms. Butcher alleges that
Jaron’s brain damage was caused during Jaron’s delivery and
birth.

Specifically, Ms. Butcher alleges that the complications

which led to Jaron’s brain damage were the result of the
negligence of Dr. Christopher Wiltcher, an obstetrician employed
by the New River Women’s Health and Birth Center (“the Center”).

The parties agree that the Center -- and through it,
Dr. Wiltcher -- was at all relevant times “a Health Center
Program grantee under 42 U.S.C. § 254b and a deemed Public
Health Service employee under 42 U.S.C. § 233(g)-(n)).”

See

Plaintiff’s Exhibit (“Pl. Ex.”) # 5, at pp. 268-72.
Consequently, under the Federal Tort Claims Act (the “FTCA”), 28
U.S.C. §§ 1346, 2671, et seq., the proper defendant in this
civil action is the United States of America, through the
federal Department of Health and Human Services (“HHS”).
Mrs. Butcher presented a claim for damages to HHS on
April 17, 2014.

Meanwhile, Ms. Butcher commenced this action on

November 25, 2014.

On December 3, 2014, HHS denied the claim.

Her complaint consists of a single count of negligence against
the United States.

The United States moved for summary judgment

on January 25, 2016, contending that the claim is time-barred.
Jurisdiction over this case is proper inasmuch as the
district courts of the United States “shall have exclusive
jurisdiction of civil actions on claims against the United
States[] for money damages. . . .”

28 U.S.C. § 1346(b)(1).

II. Summary judgment standard
Summary judgment is appropriate only “if the movant
shows that there is no genuine dispute as to any material fact
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and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a).

“Material” facts are those necessary to

establish the elements of a party’s cause of action.

Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also News
& Observer Publ’g Co. v. Raleigh-Durham Airport Auth., 597 F.3d
570, 576 (4th Cir. 2010) (same).
When examining the record, the court must neither
resolve disputes of material fact nor weigh the evidence,
Russell v. Microdyne Corp., 65 F.3d 1229, 1239 (4th Cir. 1995),
nor make determinations of credibility, Sosebee v. Murphy, 797
F.2d 179, 182 (4th Cir. 1986).

Instead, the party opposing the

motion is entitled to have his or her version of the facts
accepted as true and, moreover, to have all internal conflicts
resolved in his or her favor.

Charbonnages de France v. Smith,

597 F.2d 406, 414 (4th Cir. 1979).

Along those lines,

inferences that are “drawn from the underlying facts . . . must
be viewed in the light most favorable to the party opposing the
motion.”

United States v. Diebold, Inc., 369 U.S. 654, 655

(1962).
III. Discussion
The United States contends that Ms. Butcher’s claim is
barred by the two year statute of limitations applicable to
suits brought under the FTCA.

Ms. Butcher, in response,
3

maintains that West Virginia statutory law provides the
applicable limitations period, although the parties agree that
the FTCA applies generally.

In the alternative, she contends

that equitable tolling is appropriate in this case.
A. Background
On November 19, 2003, doctors at West Virginia
University performed an MRI on Jaron, which showed clear signs
of brain damage.
Report, at p. 166.

See Defendant’s Exhibit (“Def. Ex.”) # 1, MRI
During her deposition, Ms. Butcher testified

that she knew that Jaron’s brain damage had occurred at some
point before the November MRI.
Dep. 62:10-66:24.

See Def. Ex. # 1, Lisa Butcher

Jeffrey Butcher, Jaron’s father, also

testified that he learned Jaron had brain damage through the
November MRI.

Moreover, during Mr. Butcher’s deposition, the

following exchange occurred:
Q. At some point though at about that time in 2003 or
2004, it was your understanding that the brain damage
was due to the events at birth; is that correct?
A. Yes.
Def. Ex. # 1, Jeffrey Butcher Dep. 17:6-18:6.
This testimony is borne out by other evidence in the
record, and nowhere contradicted.

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Thus, for instance, at an

appointment on January 19, 2004, an audiologist examining Jaron
made the following report:
His mother reported that she had a full-term pregnancy;
however, Jaron had a traumatic delivery, which involved
the umbilical chord [sic] wrapped around his neck on two
occasions. She also reported that he had a bacterial
infection. Jaron has been diagnosed with brain damage in
areas affecting his vision, speech, and language.
Def. Ex. # 1, Audiology Report, at p. 167.

On January 20, 2004,

Lisa Butcher applied for treatment at Children’s Specialty Care
in Charleston, West Virginia.
Care, at pp. 12-13.

See Def. Ex. # 1, Application for

In the application, Mrs. Butcher specified,

under the section titled “Concerns/Medical Issues,” that “Jaron
ha[d] brain damage and seizure disorder.”

Id. at p. 12.

Further, the Butchers claim to have spoken to a lawyer in 2004
about bringing a claim for Jaron’s brain injuries.
4, Lisa Butcher Dep. 118:3-119:11.

See Pl. Ex.

The lawyer to whom they

first spoke recommended that they consult a medical malpractice
lawyer.

Id. at 119:4-8.

The Butchers decided not to do so.

Id. at 119:21-120:3.
The record is clear that the Butchers were aware by
late 2003 or early 2004 that Jaron suffered from brain damage,
and that it was apparently caused during his delivery and birth.
Ms. Butcher first presented her claim to HHS, however, on April
17, 2014.
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B. The applicable statute of limitations
The parties agree that the Center is, in fact, a
federally supported healthcare facility, and therefore that Ms.
Butcher’s negligence claim is governed by the FTCA, 28 U.S.C. §§
1346, 2671, et seq.

See Def. Mem., at p. 1; Pl. Resp., at p. 1

(both describing the Center as a “federally supported health
clinic”).

Nevertheless, Ms. Butcher maintains that West

Virginia law governing medical malpractice actions, rather than
the FTCA, provides the applicable statute of limitations in this
case, as well as the relevant substantive law.

See Pl. Resp.,

at pp. 3-5 (citing W. Va. Code § 55-7B-6).
To be sure, state law -- here, the West Virginia
Medical Professional Liability Act (the “MPLA”), W. Va. Code §
55-7B-1, et seq. -- governs the substantive aspects of Ms.
Butcher’s claim.

See 28 U.S.C. §§ 1346(b)(1), 2674; see also

Miller v. United States, 932 F.2d 301, 303 (4th Cir. 1991) and
Portis v. United States, 483 F.2d 670, 672-73 (4th Cir. 1973)
(both observing same).

In other words, if the plaintiff would

have a claim under state law against a similarly situated
private person, the plaintiff usually has a claim against the
United States.

See United States v. Muniz, 374 U.S. 150, 153

(1963) (citing 28 U.S.C. § 2674).

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The

West

Virginia

MPLA’s

statute

of

limitations,

however, does not apply to actions under the FTCA.1 Instead,
although state law governs the underlying claim, “federal law
defines the limitations period[.]” Miller, 932 F.2d at 303 (citing
Washington v. United States, 769 F.2d 1436, 1437-38 (9th Cir.
1985)); see also Anderson v. United States, 669 F.3d 161, 164 (4th
Cir. 2011) (same) (quoting Miller, 932 F.3d at 303).

Indeed,

Congress specifically enacted a statute of limitations applicable
to

FTCA

claims.

See

28

U.S.C.

§

2401(b).

Accordingly,

notwithstanding Ms. Butcher’s contention to the contrary, tort
claims brought under the FTCA are subject to the statute of
limitations provided by 28 U.S.C. § 2401(b).

Section 2401(b)

provides as follows:
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.

1

The MPLA provides, in pertinent part, as follows:
(b) A cause of action for injury to a minor, brought by
or on behalf of a minor who was under the age of ten
years at the time of such injury, shall be commenced
within two years of the date of such injury, or prior to
the minor's twelfth birthday, whichever provides the
longer period.

W. Va. Code § 55-7B-4(b).
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28 U.S.C. § 2401(b).
Where

the

federal

government

waives

its

sovereign

immunity, as by the FTCA, suits brought pursuant to such waiver
must proceed in strict compliance with the terms of the waiver,
and consequently the FTCA is in turn construed strictly.

See

United States v. Kubrick, 444 U.S. 111, 117-118 (1979) (citing
Soirano v. United States, 353 U.S. 270, 276 (1957)); see also id.
at 117 (“Section 2401(b) . . . is the balance struck by Congress
in the context of tort claims against the Government[,] and we are
not free to construe it so as to defeat its obvious purpose [--]
the

prompt

presentation

of

claims.”)

Haverhill, 155 U.S. 610, 617 (1985)).

(citing

Campbell

v.

Accordingly, any provisions

of state law that purport to toll the FTCA’s statute of limitations
-- for instance, on the grounds of infancy -- do not have that
effect when the claim is brought under the FTCA.

See Jastremski

v. United States, 737 F.2d 666, 669 (7th Cir. 1984) (citing
Leonhard v. United States, 633 F.2d 599, 624 (2d Cir. 1980)
(parents must bring minor's claim in a timely fashion because
minority does not toll the FTCA statute of limitations), cert.
denied, 451 U.S. 908 (1981)).

Rather, claims must be presented in

strict compliance with 28 U.S.C. § 2401(b).
at 117.

8

See Kubrick, 444 U.S.

Accrual, like the statute of limitations itself, is a
question of federal, not state, law.

Under federal law, “‘the

standard rule [is] that [a claim accrues] when the plaintiff has
a complete and present cause of action.’”

Wallace v. Kato, 549

U.S. 384, 388 (2007) (quoting Bay Area Laundry and Dry Cleaning
Pension Tr. Fund v. Ferbar Corp. of Cal., 522 U.S. 192, 201
(1997)); see also Kubrick, 444 U.S. at 115 (medical malpractice
claim brought under the FTCA accrues when the plaintiff first
knows, or reasonably should know, of both the injury and its
cause); Nasim v. Warden, Md. House of Corr., 64 F.3d 951, 955
(4th Cir. 1995) (A claim accrues “when the plaintiff possesses
sufficient facts about the harm done to him that reasonable
inquiry will reveal his cause of action.”).

Once a plaintiff

knows of the facts of the harm allegedly done, she has a duty to
exercise due diligence in investigating its cause and commencing
any potential cause of action.

Osborn v. United States, 918

F.2d 724, 731 (8th Cir. 1990); see also T.L. ex rel. Ingram v.
United States, 443 F.3d 956, 962-63 (8th Cir. 2006) (“Ingram had
a duty under the law to seek advice about possible legal action
at the time she knew of T.L.’s brain injury, not only after the
full effects of the brain damage were manifested.”).
Here, the Butchers’ knowledge of the existence and
likely or apparent cause of Jaron’s brain damage triggered the

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accrual of Ms. Butcher’s claim against the United States.

At

that point, she was required to exercise due diligence to timely
file an administrative claim under the FTCA, and to otherwise
comply with 28 U.S.C. § 2401(b).

See McKewin v. United States,

No. 92-1770, 1993 WL 389568 (4th Cir. Oct. 4, 1993) (claim
accrued approximately 8 months after child was born because
parents admitted they knew at least by that date that their
child had brain damage caused during delivery); see also T.L. ex
rel. Ingram, 443 F.3d at 962-63 (8th Cir. 2006) (plaintiff’s
claim accrued when she learned that her child had experienced
brain damage during delivery).

But it is not disputed that Mrs.

Butcher did not present her claim for damages to HHS until April
2014.

The record shows, as discussed above, that this was

approximately ten years after the claim accrued.

The remaining

question, then, is whether she can be said to have acted
diligently in investigating and prosecuting her claim.
C. Due diligence and equitable tolling
1.
As previously noted, Ms. Butcher contends that
equitable tolling of the statute of limitations in this case is
appropriate.

Specifically, she asserts that she reasonably

relied on the apparent “private status” of the Center, as

10

opposed to its actual “federal status,” and that she otherwise
exercised due diligence in proceeding with this civil action.
The Supreme Court has held that “equitable tolling
applicable to suits against private defendants should also apply
to suits against the United States.”

John R. Sand & Gravel Co.

v. United States, 552 U.S. 130, 137 (2008) (quoting Irwin v.
Dep’t of Veterans’ Affairs, 498 U.S. 89, 95-96 (1990)); see also
United States v. Wong, --- U.S. ---, 135 S. Ct. 1625, 1638
(2015) (equitable tolling appropriate only if “circumstances
warrant”) (citing Irwin, 498 U.S. 89).

Generally, equitable

tolling will stop the running of the statutory clock where the
party seeking tolling demonstrates “(1) that he has been
pursuing his rights diligently, and (2) that some extraordinary
circumstance stood in his way.”
408, 418 (2005).

Pace v. DiGuglielmo, 544 U.S.

Equitable tolling has thus been applied “where

the defendant has wrongfully deceived or misled the plaintiff in
order to conceal the existence of a cause of action,” Kokotis v.
United States, 223 F.3d 275, 280-81 (4th Cir. 2000), and where
“extraordinary circumstances beyond [a plaintiff’s] control made
it impossible to file the claims on time.”

Harris v.

Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000) (citing AlvarezMachain v. United States, 107 F.3d 696, 700 (9th Cir. 1996)).
On the other hand, equitable tolling has been denied where the

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plaintiff’s failure to file on time is his or her own fault,
even if it is the product of mere “blameless ignorance.”

See

Gould v. United States Dept. of Health and Human Svcs., 905 F.2d
738, 745-46 (4th Cir. 1990) (“The burden is on plaintiffs to
show that due diligence was exercised and that critical
information, reasonable investigation notwithstanding, was
undiscoverable.”); see also Schappacher v. United States, 475 F.
Supp. 2d 749, 755-56 (S.D. Ohio 2007) (no equitable tolling
based on ignorance of hospital’s federal status where plaintiff
made no inquiry and there was no evidence that doctor
affirmatively misled the plaintiff).
2.
Here, as discussed above, the Butchers were aware by
early 2004 that Jaron had suffered brain damage during birth.
Among other things, Mr. and Mrs. Butcher provided medical
history and filled out documents in 2004 demonstrating that they
possessed such knowledge.2

See Def. Mem., p. 6.

The evidence

further indicates that the plaintiffs were advised in 2004 -quite soon after learning about Jaron’s brain damage -- to seek
the advice of a medical malpractice lawyer.

They decided not to

2 While it may be the case, as the plaintiffs assert, that Dr.
Wiltcher did not inform them that Jaron’s complicated delivery
carried a risk that he suffered brain damage, this does not explain
the plaintiffs’ failure to initiate this action before 2014. Cf.
Gould, 905 F.2d at 745-46.
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do so.

Subsequently, they did not investigate or pursue their

potential claim until ten years after it had accrued.
To begin, the fact that the plaintiffs claim to have
received erroneous legal advice regarding the applicability of
the MPLA’s statute of limitations does not warrant equitable
tolling.

See Pl. Resp., at p. 6.

The record is devoid of any

objective evidence of this assertion -- instead, the record
unequivocally shows that the Butchers decided to forego a
medical malpractice claim against the Center because Jaron’s
condition appeared to be improving.

See Def. Ex. # 1, Lisa

Butcher Dep. 118:19-120:3, Ex. # 2, Jeffrey Butcher Dep. 18:1320:19.

But even if the Butchers did receive such advice,

erroneous legal advice is not an independently sufficient basis
for applying equitable tolling.

See Kubrick, 444 U.S. at 124

(holding that “incompetent” or “mistaken” legal advice does not
justify tolling); Harris v. Hutchinson, 209 F.3d 325, 331 (4th
Cir. 2000) (same).

Ms. Butcher has provided no reason for

concluding that it ought to be sufficient here.
Nor does Ms. Butcher’s assertion that the Center
misrepresented its federal status justify equitable tolling.
According to Ms. Butcher, the Center’s website states that the
Center is a “private, nonprofit organization[.]”
5, at pp. 268-72.

See Pl. Ex. #

Ms. Butcher points to this statement as
13

evidence of their assertion that the Center concealed its
federal status.

However, those same pages contain the following

statement, albeit towards the bottom:
This health center is a Health Center Program grantee
under 42 U.S.C. 254b and a deemed Public Health Service
employee under 42 U.S.C. 233(g)-(n).
Pl. Ex. # 5, at pp. 268-72.

It is difficult to see, and Ms.

Butcher does not explain, how her failure to investigate the
meaning of this sentence squares with her claim to have
proceeded with due diligence.

Cf. Bohrer v. City Hospital,

Inc., 681 F. Supp. 2d 657, 678-79 (N.D. W. Va. 2010) (no
equitable tolling where plaintiff could have discovered federal
status simply by asking clinic).
“The statute of limitations under the FTCA commences
to run from the date of accrual and does not wait until a
plaintiff is aware that an alleged tort-feasor is a federal
employee.”

Gould v. United States Dep’t of Health and Human

Svcs., 905 F.2d 738,745 (4th Cir. 1990), cert. denied, 498 U.S.
1025 (1991).

The tort-feasor need not unequivocally announce

its federal status, Gould, 905 F.2d at 745-46, although here it
comes close to doing so by the announcement on its website cited
by the plaintiff.

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In sum, although Ms. Butcher claims that she exercised
due diligence in this case, the record belies that claim.

She

has not adequately explained the failure to investigate, nor has
she asserted any plausible basis for concluding that the Center
misrepresented or disguised its status as a federal entity.
Regrettably, these deficiencies preclude the application of
equitable tolling in this case.

Consequently, the plaintiff’s

claim is time-barred, and the United States is entitled to
judgment as a matter of law.
IV. Conclusion
For the foregoing reasons, it is ORDERED that the
United States’ motion for summary judgment be, and it hereby is,
granted.
The Clerk is requested to transmit copies of this
order to all counsel of record and any unrepresented parties.
DATED: March 14, 2016

John T. Copenhaver, Jr.
United States District Judge

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