Bennett v. United States

BETTE BENNETT, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.

CASE NO. C20-5382 BHS

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA

June 8, 2021

ORDER ON DEFENDANT'S MOTION TO DISMISS

This matter comes before the Court on Defendant the United States of America's ("the Government") motion to dismiss for lack of subject matter jurisdiction. Dkt. 6. The Court has considered the briefings filed in support of and in opposition to the motion and the remainder of the file and hereby denies the motion for the reasons stated herein.

I. FACTUAL & PROCEDURAL BACKGROUND

Plaintiff Bette Bennett is the civilian wife of a Navy service member who had a history of chronic sinusitis and underwent sinus surgery at Naval Hospital Bremerton ("NHB") on May 18, 2009. Dkt. 1, ¶¶ 4.1-4.2. Following surgery, Doyle splints were placed to keep her airway open. Id. ¶ 4.2. On May 25, 2009, Bennett alleges that she experienced significant bleeding from her nose and was taken to the NHB emergency room by ambulance. Id. ¶ 4.3. She further alleges that the on-call ENT physician, Dr. Kristina Hart, removed the Doyle splints and inserted nasal packing into her nasal cavity. Id. ¶¶ 4.4-4.5. When Dr. Hart inserted the nasal packaging, Bennett alleges that she "heard a noise that sounded like cracking, felt acute pain, and passed out." Id. ¶ 4.6. Bennett states that she was then operated on and was subsequently discharged from NHB. Id. ¶¶ 4.7-4.8.

Bennett alleges that following the May 18, 2009 incident she developed symptoms including migraines, malaise, light sensitivity, memory loss, and other neurocognitive impairment. Id. ¶ 4.9. She states that she saw a series of neurologists and other specialists who were unable to diagnose the cause of her symptoms and that it was not until August 2017 that she was treated by a neuropsychologist who found that she suffered deficits consistent with a traumatic brain injury. Id. ¶¶ 4.10-4.11. She was ultimately referred to the University of Washington Medical Center to see a specialist in brain injuries and alleges that she was diagnosed in December 2017 with a traumatic brain injury to her prefrontal cortex caused by the nasal pack insertion in 2009. Id. ¶¶ 4.12-4.13.

On approximately August 3, 2018, Bennett filed a federal tort claim with the Department of Navy, Office of the Judge Advocate General, Tort Claims Unit Norfolk in Norfolk, Virginia. Id. ¶ 3.1. Bennett alleges that the Department of the Navy denied her tort claim on October 23, 2019 and informed her that she had six months to file suit. Id. ¶ 3.3.

On April 22, 2020, Bennett filed her complaint alleging that the Government, through the actions of personnel at NHB, negligently inserted the nasal pack and failed todiagnose and treat her brain injury in violation of the Federal Tort Claims Act ("FTCA"). Id. ¶ 5.1. On July 13, 2020, the Government filed a motion to dismiss for lack of subject matter jurisdiction. It argues that Washington State's statute of repose, RCW 4.16.350, extinguishes medical malpractice claims eight years after the act or omission and, because Bennett's claims were filed more than eight years after her surgery, they are barred as a matter of law. Dkt. 6. On August 3, 2020, Bennett responded, arguing that the FTCA preempts Washington law. Dkt. 8. On August 7, 2020, the Government replied. Dkt. 9.

On October 1, 2020, the Court deferred ruling on the Government's motion, finding that there was no controlling Washington Supreme Court precedent on the statute of repose's constitutionality under the Washington State Constitution. Dkt. 11. After the parties responded to the Court's proposed certification questions, see Dkts. 12, 13, the Court certified two questions to the Washington Supreme Court, Dkt. 14. The Washington Supreme Court, however, declined the Court's request to answer the certified questions because it did not appear from the record that the Court ruled on the question of federal preemption. Dkt. 18. The question of whether the FTCA preempts the state statute of repose is now before the Court.

II. DISCUSSION

The Government's motion to dismiss for lack of subject matter jurisdiction argues that this Court does not have subject matter over Bennett's FTCA claims because the statute of repose applies to her claims and because she did not file her claim within the statutorily-mandated eight years. Dkt. 6 at 4.

A. Standard

Federal courts are presumed to lack jurisdiction, and on a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) the burden of proof is on the plaintiff to establish subject matter jurisdiction. Stock West, Inc. v. Confederated Tribes, 873 F.2d 1221, 1225 (9th Cir. 1989). Motions to dismiss brought under Rule 12(b)(1) may challenge jurisdiction factually by "disputing the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction," or facially by "asserting that allegations in the complaint are insufficient on their face to invoke federal jurisdiction." Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). Here, the Government asserts a facial challenge. For facial challenges, a plaintiff's allegations are assumed as true and the complaint is construed in her favor. Id. However, the plaintiff bears the burden of alleging facts that are legally sufficient to invoke the court's jurisdiction. Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014).

B. Merits

The FTCA is a limited waiver of the Government's sovereign immunity for certain negligent acts or omissions of government employees. 28 U.S.C. § 1346(b)(1) confers jurisdiction upon district courts for certain tort claims against the Government where "a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 2674 provides that "the United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances." The Government's "liability is determined under the law of the state where the act oromission occurred." Will v. United States, 60 F.3d 656, 659 (9th Cir. 1995) (citation omitted).

The FTCA has its own limitations period, which preempts any state statute of limitations. See Poindexter v. United States, 647 F.2d 34, 36-37 (9th Cir. 1981). The FTCA's limitations period provides that a claimant may file an administrative complaint with the relevant agency within two years of the accrual of the cause of action.¹ 28 U.S.C. § 2401(b). If the agency denies the administrative claim, the claimant may file an action in district court within six months of the denial. Id. If the agency fails to address the claim within six months, the claimant may consider the claim denied and file suit in district court "at any time" thereafter. 28 U.S.C. § 2675(a).

The FTCA does not, however, explicitly address whether it preempts state statutes of repose. A statute of repose differs from a statute of limitations in that statues of repose are not subject to equitable tolling. Munoz v. Ashcroft, 339 F.3d 950, 957 (9th Cir. 2003); see also 4 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1056 (3d ed. 2002). "A statute of repose is a fixed, statutory cutoff date, usually independent of any variable, such as claimant's awareness of a violation." Munoz, 339 F.3d at 957. After the expiration of the time limit, a statute of repose "can be said to destroy the right itself." Underwood Cotton Co., Inc. v. Hyundai Merchant Marine (American), Inc., 288 F.3d 405, 409 (9th Cir. 2002). "It is not concerned with theplaintiff's diligence; it is concerned with the defendant's peace." Id. Washington law provides that an action for injuries resulting from health care "in no event shall be commenced more than eight years after said act or omission[.]" RCW 4.16.350(3).

The Government thus argues that Washington's statute of repose applies because the time limit imposed by the statute determines when a private person can no longer face liability under state law for challenged conduct. Dkt. 6 at 7. The statute of repose should apply to FTCA claims, according to the Government, because it determines the existence of a claim at the time a lawsuit is filed. Id. (citing Winn v. United States, 593 F.2d 855 (9th Cir. 1979)). Bennett argues that the FTCA does not look to state statutes for whether a claim is timely filed—that the FTCA only looks to state law to determine whether the event creates liability. Dkt. 8 at 14.

The Ninth Circuit has not explicitly addressed whether the FTCA preempts a state statute of repose, and the parties' briefing largely relies on persuasive authority from district courts and circuits around the country. Notably, there is division among the courts on whether the FTCA preempts state statutes of repose. Compare Romero v. United States, No. CVI 17-0130 JB\KBM, 2018 WL 1363833 (D.N.M. March 15, 2018) (FTCA preempts New Mexico statute of repose), Mamea v. United States, No. 08-00563 LEK-RLP, 2011 WL 4371712 (D. Haw. Sept. 16, 2011) (Hawaii's six-year limitation period preempted by the FTCA), and Bagley v. United States, 215 F. Supp. 3d 831 (D. Neb. 2016) (FTCA preempts procedural Louisiana state law prescriptive period) with Augutis v. United States, 732 F.3d 749, 754 (7th Cir. 2013) (holding that Illinois's statute of repose was substantive law and FTCA did not preempt it) and Anderson v. United States,669 F.3d 161, 165 (4th Cir. 2011) (concluding that if Maryland's statute of repose was substantive, plaintiff's FTCA claim may be untimely). The Court is persuaded that the FTCA preempts Washington's statute of repose and that the statute of repose does not bar Bennett's claims here.

The Government largely focuses its argument against preemption on whether a statute of repose is substantive or procedural law. Dkt. 6 at 7-8; Dkt. 9 at 7-8, 12. While Washington courts have not...