Free Opening Brief in Support - District Court of Delaware - Delaware

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE DAVID E. JONES, Plaintiff, v. UNITED STATES OF AMERICA, Defendant. : : : : : : : : :

Civil Action No. 07-743-MPT

DEFENDANT'S OPENING BRIEF IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT

COLM F. CONNOLLY United States Attorney By: Seth M. Beausang (De. I.D. No. #4071) Assistant United States Attorney 1007 N. Orange Street, Suite 700 Post Office Box 2046 Wilmington, Delaware 19899-2046 (302) 573-6277 DATED: July 17, 2008.

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TABLE OF CONTENTS

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii NATURE AND STAGE OF THE PROCEEDINGS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 A. B. Background.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 With Assistance From The VVA, Plaintiff Files A Claim With The VA For Disability Benefits Pursuant to 38 U.S.C. § 1151.. . . . . . . . . . . . . . . . . . . . . . . . . 4 Plaintiff And The VVA Repeatedly Fail To Respond To The VA's Requests For Information About His Disability Claim. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 The VA Denies Plaintiff's Disability Claim Because Plaintiff Failed To Provide Evidence Of His Disability.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 More Than One Year After The VA Denied Plaintiff's Claim For Disability Benefits, Plaintiff Presents A FTCA Claim To The VA... . . . . . . . . . . . . . . . . . . . . 8 Plaintiff Successfully Reopens His Disability Claim And Obtains Benefits.. . . . . . 8

C.

D.

E.

F.

ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 I. II. STANDARD OF REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 PLAINTIFF'S TORT CLAIMS SHOULD BE DISMISSED BECAUSE THEY ARE BARRED BY THE FTCA'S TWO-YEAR STATUTE OF LIMITATIONS... . . . . . . . . . . . . . . . . . . . . 11 PLAINTIFF CANNOT MEET HIS BURDEN TO SHOW THAT HE IS ENTITLED TO EQUITABLE TOLLING. . . . . . . . . . . . . . . . . . . 12 A. B. The VA Did Not Actively Mislead The Plaintiff. . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Plaintiff's Allegation That The VA Had Notice Of His Potential Tort Claims Should Be Rejected. . . . . . . . . . . . . . . . . . . . . . . . . 15 Nothing Extraordinary Prevented Plaintiff From Asserting His Rights. . . . . . . . 18

III.

C.

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D.

Plaintiff Did Not Timely Assert His Rights Mistakenly In The Wrong Forum. . . 19

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

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TABLE OF AUTHORITIES CASES PAGE

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Celotex Corp. v. Catrett, 477 U.S. 317 (1986).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Courtney v. La Salle Univ., 124 F.3d 499 (3d Cir. 1997).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Glarner v. United States, Dept. of Veterans Admin., 30 F.3d 697 (6th Cir. 1994).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16-17 Hedges v. United States, 404 F.3d 744 (3d Cir. 2005).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Irwin v. Dep't of Veterans Affairs, 498 U.S. 89 (1990).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 17 Jones v. Morton, 195 F.3d 153 (3d Cir. 1999).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Kerstetter v. United States, 57 F.3d 362 (4th Cir. 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Lake v. Arnold, 232 F.3d 360 (3d Cir. 2000).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Mansfield v. Peake, 525 F.3d 1312 (Fed. Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 McNeil v. United States, 508 U.S. 106 (1993).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 18 Medina v. City of Phila., No. 05-2908, 219 Fed. App'x. 169 (3d Cir. Jan. 5, 2007).. . . . . . . . . . . . . . . . . . . . . . . . . 8 Price v. United States, 775 F.2d 1491 (11th Cir. 1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

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PAGE Sch. Dist. of Allentown v. Marshall, 657 F.2d 16 (3d Cir. 1981).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 19 Seitzinger v. Reading Hosp. & Med. Ctr., 165 F.3d 236 (3d Cir. 1999).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Turner v. Johnson, 177 F.3d 390 (5th Cir. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18-19 United States v. Brown, 348 U.S. 110 (1954).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 United States v. Kubrick, 444 U.S. 111 (1979).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 11 United States v. Midgley, 142 F.3d 174 (3d Cir. 1998).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 12, 17 Vietnam Veterans of Am. v. Dep't of Navy, 876 F.2d 164 (D.C. Cir. 1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 RULES, STATUTES, AND REGULATIONS FED. R. CIV. P. 56. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 15 28 U.S.C. §§ 2671, et seq.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 38 C.F.R. § 3.102. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 38 C.F.R. § 3.103. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 38 C.F.R. § 14.604(a).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 16-17 38 U.S.C. § 1151... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim 69 Fed. Reg. 46,426 (Aug. 3, 2004).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

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NATURE AND STAGE OF THE PROCEEDINGS On November 20, 2007, Plaintiff David E. Jones, through counsel, filed the Complaint against the United States of America asserting three claims under the Federal Tort Claims Act, 28 U.S.C. §§ 2671, et. seq (the "FTCA"). (Doc. No. 1 ("Compl.").) Plaintiff's claims are based on medical care he received from employees of the United States Department of Veterans Affairs, Medical Services Division, and the Department of Veterans Affairs, Veterans Benefits Division (together, the "VA"). Discovery is to be completed by December 1, 2008. (Doc. No. 17 ¶ 3(c).) Even though claims under the FTCA are tried without a jury, the Court's Scheduling Order permits the Government to file a dispositive motion to "determine the timeliness of the Plaintiff's action." (Id. ¶ 9.) In an effort to avoid unnecessary discovery and conserve judicial and other resources, the Government has moved for summary judgment early in the discovery period on the ground that Plaintiff's claims are barred due to his failure to either file within the FTCA's two-year statute of limitations period or show why the limitations period should be equitably tolled. This is the Government's Opening Brief in support of its Motion for Summary Judgment.

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SUMMARY OF THE ARGUMENT 1. Tort claims brought against the United States under the FTCA are forever barred

unless they are presented in writing to the appropriate federal agency within two years after the claims accrue. 28 U.S.C. § 2401(b) (2008). 2. Here, Plaintiff's Complaint should be dismissed because Plaintiff did not present

his tort claims to the VA until after the expiration of the FTCA's two-year statute of limitations. Plaintiff's claims accrued when he knew he was injured and who injured him, in other words, at the very latest, immediately after his third surgery on March 9, 2001. See United States v. Kubrick, 444 U.S. 111, 121-22 (1979); (Compl. ¶ 16.) Plaintiff did not present his claims to the VA until June 2, 2003, more than two years later. As a result, Plaintiff's claims are barred. 3. Plaintiff cannot meet his burden to show that the limitations period should be

equitably tolled. In the Third Circuit, equitable tolling is allowed "sparingly," and only "(1) where the defendant has actively misled the plaintiff respecting the plaintiff's cause of action; (2) where the plaintiff in some extraordinary way has been prevented from asserting his or her rights; or (3) where the plaintiff has timely asserted his or her rights mistakenly in the wrong forum." Hedges v. United States, 404 F.3d 744, 753 (3d Cir. 2005). "Absent a showing of intentional inducement or trickery by the defendant, a statute of limitations should be tolled only in the `rare situation where equitable tolling is demanded by sound legal principles as well as the interests of justice.'" United States v. Midgley, 142 F.3d 174, 179 (3d Cir. 1998). Plaintiff cannot show that this is one of those "rare situations" where equitable tolling applies. Plaintiff's claims are barred.

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STATEMENT OF FACTS1 A. Background.

In Count One of his Complaint, Plaintiff claims employees of the VA committed medical malpractice during three surgeries that he underwent on January 11, 2000, January 14, 2000, and March 9, 2001. (Compl. ¶¶ 4-6, 17, 23-28.) Count Two alleges that the VA failed to obtain Plaintiff's informed consent for the surgeries. (Id. ¶¶ 29-34.) Count Three alleges that the VA committed battery by failing to obtain Plaintiff's informed consent. (Id. ¶¶ 35-39.) Plaintiff first visited the VA in connection with the events giving rise to this lawsuit on November 19, 1999. (Id. ¶ 7.) On that day, Plaintiff was seen at the VA Medical Center in Wilmington, Delaware (the "VAMC"), for a sore, protruding umbilical hernia and was referred to surgery for a consulation. (Id.) On or about December 16, 1999, Plaintiff was evaluated by a doctor at the VAMC and scheduled for a surgical repair of his hernia in January, 2000. (Id. ¶ 8.) On or about January 11, 2000, Plaintiff underwent outpatient surgery at the VAMC which closed his umbilical hernia. (Id. ¶ 9.) Following surgery, Plaintiff was admitted as an impatient to VAMC for observation, and was discharged on January 12, 2000. (Id. ¶ 10.) On or about January 13, 2000, while at home, Plaintiff began vomiting stool. (Id. ¶ 11.) On January 14, 2000, Plaintiff was rushed to the VAMC Emergency Room. (Id. ¶ 12.) VA doctors performed an emergency exploratory laparotomy, an evacuation of an abdominal wall hematoma, and a repair of a serosal tear, after which Plaintiff was admitted to intensive care. (Id. ¶ 13.) Plaintiff was discharged from the VAMC on or about January 21, 2000. (Id.)

The VA accepts the facts alleged in Plaintiff's Complaint only for purposes of this dispositive motion. 3

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Plaintiff suffered post-operative infectious complications. (Id. ¶ 15.) The post-operative infection led to a diagnosis of recurrent facial defect and ventral hernia, which required yet another operation at the VAMC on or about March 9, 2001. (Id. ¶ 16.) Plaintiff was discharged from the VAMC on or about March 14, 2001. (Id.) Plaintiff claims that since the first operation he has been in constant pain and unable to work. (Id. ¶¶ 18-19.) B. With Assistance From The VVA, Plaintiff Files A Claim With The VA For Disability Benefits Pursuant to 38 U.S.C. § 1151.

On March 13, 2000, Plaintiff went to Viet Nam Veterans of America, Inc. (the "VVA"), a congressionally chartered organization, for assistance in filing the appropriate requests for financial and other assistance from the federal government. (Id. ¶ 20.) The VVA is a private, not-for profit, organization, that does not receive any funding from federal, state, or local governments. (App'x at A1-A2.) Its goals include "hold[ing] government agencies accountable for following laws mandating veterans['] health care." (Id. at A2.) Plaintiff signed a power of attorney with the VVA to present his claim for disability compensation under 38 U.S.C. § 1151. (Id. at A6 ¶ 9.) According to Plaintiff he did not know that he could also bring a claim against the VA under the FTCA. (Id. ¶ 10) Plaintiff also claims that no one with the VVA told him about his right to bring a FTCA claim. (Id. ¶ 11.) Accordingly, on March 13, 2000, the VVA wrote to the VA to advise that Plaintiff "wishes to open a claim for service connected disability for complications from [an] operation received at Wilmington VA Hospital for hernia operation, and scars." (App'x at A8-A9.) Under the relevant statute, 38 U.S.C. § 1151(a)(1), a veteran can obtain benefits for a "qualifying additional disabilty," which is a disability that is "not the result of the veteran's willful

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misconduct," that is "caused by hospital care, medical or surgical treatment, or examination furnished the veteran" by the VA, and the proximate cause of which is, either, (1) "carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the [VA] in furnishing the hospital care, medical or surgical treatment, or examination," or (2) "an event not reasonably foreseeable." In other words, a veteran does not necessarily have to show that the VA committed negligence to obtain disabilty benefits under § 1151. The VVA's March 13 letter asked the VA for its assistance in opening Plaintiff's disability benefit claim and developing evidence as required by 38 C.F.R. § 3.103, which is the VA regulation that sets forth the procedure the VA follows when adjudicating a disability benefit claim. (Id. at A9) The letter asked the VA to "please give this Veteran any benefit of the doubt that may arise at any point in his/her case" "[a]s required by 38 C.F.R. § 3.102." (Id.) The letter did not accuse any VA employees of committing negligence while caring for Plaintiff. C. Plaintiff And The VVA Repeatedly Fail To Respond To The VA's Requests For Information About His Disability Claim.

On March 15, 2000, the VA responded to the VVA's letter with a letter addressed to Plaintiff. (Id. at A10.) The VA's letter stated that "[w]e are working on your claim," but advised that the VA had not "received a VA Form 21-526, Veterans Application for Compensation or Pension." (Id.) The VA asked Plaintiff to send the appropriate form within one year, preferrably within sixty days. (Id.) More than nine months later, on December 18, 2000, the VVA submitted the requested Form 21-526 on behalf of Plaintiff, although the box on the form that asked for Plaintiff's signature was left blank. (Id. at A13-A17.) Box 17 on the form asked Plaintiff to state the

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"NATURE OF SICKNESS, DISEASE OR INJURIES FOR WHICH THIS CLAIM IS MADE AND DATE EACH BEGAN," and Plaintiff responded, "s/c [i.e., service connected] disability for complications from operation received at VAMC, Wilmington for hernia operation and scars." (Id. at A13.) The VA responded to Plaintiff by letter on January 16, 2001. (Id. at A18-A19.) The VA told Plaintiff that it had received Plaintiff's claim for "compensation," also known as "service connected benefits." (Id. at A18.) The VA then described the "Compensation Claims Process" and warned Plaintiff that reviewing Plaintiff's disability claim would take some time: Gathering and reviewing evidence may take a long time. We know this is a long time to wait for an answer. We'll make every effort to complete your claim as soon as possible. In the meantime you will hear from us within approximately 60 days. (Id. at A19.) The VA next wrote Plaintiff on January 24, 2001. (Id. at A20.) The VA told Plaintiff that it was writing "in reference to your claim for additional disability due to VA treatment." (Id.) The VA asked Plaintiff to "[p]lease use the enclosed form to state succinctly your contentions," and warned that Plaintiff must submit the requested information within one year, preferrably within sixty days. (Id.) Plaintiff failed to provide the requested information. On March 15, 2001, the VVA submitted to the VA, on behalf of Plaintiff, a one-page document that was the VA's discharge instructions to Plaintiff following his surgery in March, 2001. (Id. at A12.) However, that document was filled out by VA personnel and did not in any way state Plaintiff's contentions concerning his disability claim.

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On June 13, 2001, the VA wrote Plaintiff and again asked that he provide evidence of his disability, stating, "We need the following evidence, or information, before we can act on your claim. Submit evidence of current additional disability due to the treatment." (Id. at A21.) The VA's letter told Plaintiff to provide the requested information as soon as possible, preferrably within sixty days, and no later than one year from the date of the letter. (Id.) Plaintiff failed to provide the requested information.2 On September 10, 2001, the VA wrote Plaintiff and asked for a signed Form 21-526 since the one he had provided previously was unsigned. (Id. at A22.) The VA also asked Plaintiff to provide information about his disability claim, and noted that this was the third time the VA was requesting Plaintiff to provide this information: Also, tell us the additional disability you claim has resulted from your VA treatment. This evidence was requested by letters dated January 24, 2001 and June 13, 2001 (copies enclosed). (Id.) The VVA responded to the VA on behalf of Plaintiff by letter on September 17, 2001. (Id. at A23-A24.) The VVA's letter reiterated that Plaintiff was pursuing a claim for disability benefits under § 1151 and enclosed a signed Form 21-526. (Id.) The letter also told the VA that the requested information conerning Plaintiff's disability claim was found in Box 17 of the form. (Id. at A24.) However, the statement in Box 17 ­ which merely stated that Plaintiff was seeking "s/c [i.e., service connected] disability for complications from operation received at VAMC, Wilmington for hernia operation and scars" ­ did not provide any evidence of Plaintiff's

During this time Plaintiff did provide the VA with other information in support of his disability claim, such as information concerning his prior marriages and divorces. 7

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disability like the VA had requested. Nor did that statement in any way allege negligence. D. The VA Denies Plaintiff's Disability Claim Because Plaintiff Failed To Provide Evidence Of His Disability.

On March 22, 2002, the VA denied Plaintiff's claim for disability benefits. (Id. at A30A34.) The VA based its decision on the fact that Plaintiff had not responded to the VA's request for "specific information on the disability [Plaintiff was] claiming." (Id. at A33.) The VA told Plaintiff that he had one year to appeal the VA's decision and enclosed a form that explained to Plaintiff his right to appeal. (Id. at A30.) However, Plaintiff failed to appeal the VA's decision, and the decision became final on March 22, 2003. E. More Than One Year After The VA Denied Plaintiff's Claim For Disability Benefits, Plaintiff Presents A FTCA Claim To The VA.

Shortly after the VA denied Plaintiff's disability claim in March, 2002, Plaintiff discovered that he also had a right to bring a claim against the VA under the FTCA. (Id. at A4.) Still, Plaintiff waited more than a year to present such a claim. On May 29, 2003, Plaintiff retained counsel. (Id.) On May 30, 2003, counsel for Plaintiff wrote to the VA, advised that Plaintiff was now pursuing a FTCA claim, and enclosed a SF-95 form. (Id.) The VA received Plaintiff's SF-95 form on June 2, 2003.3 (Id. at A35.) F. Plaintiff Successfully Reopens His Disability Claim And Obtains Benefits.

On August 19, 2003, counsel for Plaintiff wrote the VA, requested that the VA reopen Plaintiff's claim for disability benefits, and submitted new evidence in support of that claim. (Id. at A41.) On May 26, 2004, the VA again denied Plaintiff's disability benefit claim on the ground

The date the VA received Plaintiff's SF-95 form is the date Plaintiff presented his claim for purposes of the FTCA. See Medina v. City of Phila., No. 05-2908, 219 Fed. App'x. 169, 172 (3d Cir. Jan. 5, 2007). 8

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that the new evidence that Plaintiff submitted were merely nonexpert statements about Plaintiff's physical appearance, which had "no objective medical value." (Id. at A46.) On August 9, 2004, Plaintiff wrote to the VA, gave his "Notice of Disagreement" with the VA's decision, and submitted an opinion from a doctor regarding the VA's care of Plaintiff. (Id. at A49-A53.) On September 2, 2005, the VA issued its "Statement of the Case," which explained in detail the VA's denial of Plaintiff's claim, and noted that the expert opinion that Plaintiff submitted indicated that the complications that Plaintiff suffered post-surgery were well-known complications from the surgery that Plaintiff had, and that there was no "evidence of improper surgical or medical care or errors in judgment on the part of the physicians involved in this case."4 (Id. at A64.) Plaintiff appealed to the Board of Veterans' Appeals (the "Board"). (Id. at A65-A68.) On October 26, 2006, after a hearing, the Board agreed that Plaintiff had submitted new and material evidence, reopened his claim, and remanded Plaintiff's case to the VA for reconsideration. (Id. at A73.) On September 24, 2007, on remand from the Board, the VA granted Plaintiff's disability claim and assigned him a sixty percent disability rating. (Id. at A86.) The VA awarded Plaintiff benefits retroactive to the date he moved to reopen his claim, and those benefits continue indefinitely. (Id. at A79.)

Specifically, the opinion that Plaintiff submitted stated that Plaintiff's "complications by themselves do not necessarily indicate negligence on the part of the VAMC," that those complications were "well-known" complications from the surgery that Plaintiff had, and that the doctor could "not find any specific evidence of improper surgical or medical care or errors in judgment on the part of the physicians involved in this case." (Id. at A52-A53) However, Plaintiff's expert did opine that "there was a deviation in the standard of care in regards to the lack of complete medical information in the form of a history and phsyical and the preoperative assessment, written discharge instructions, and informed consent documentation." (Id. at A53.) 9

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ARGUMENT I. STANDARD OF REVIEW. Summary judgment is appropriate if "there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). Rule 56(c) mandates judgment against a party that "fails to make a sufficient showing to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). When that happens "there can be no `genuine issue as to any material fact' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. at 323. The moving party is therefore entitled to judgment as a matter of law because "the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof." Id. A dispute of material fact exists only where "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). As explained below, here, there is no dispute that Plaintiff presented his tort claims to the VA after the FTCA's two-year statute of limitations expired. The Government's motion therefore presents the Court with a discrete and potentially case-dispositive legal issue, namely, whether the FTCA's statute of limitations should somehow be tolled because Plaintiff submitted a claim for disability benefits without knowing that he could also pursue a claim against the VA under the FTCA. The Government respectfully submits that Plaintiff cannot point to any facts to meet his burden to show that this is one of those "rare situations" where equitable tolling of the statute of limitations applies. Thus, Plaintiff's tort claims are barred. 10

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II.

PLAINTIFF'S TORT CLAIMS SHOULD BE DISMISSED BECAUSE THEY ARE BARRED BY THE FTCA'S TWO-YEAR STATUTE OF LIMITATIONS. "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. . . ." 28 U.S.C. § 2401(b). "It goes without saying that statutes of limitations often make it impossible to enforce what were otherwise perfectly valid claims. But that is their very purpose, and they remain as ubiquitous as the statutory rights or other rights to which they are attached or are applicable." Kubrick, 444 U.S. at 125; see also Hedges v. United States, 404 F.3d 744, 753 (3d Cir. 2005) ("Procedural requirements established by Congress for gaining access to the federal courts are not to be disregarded by courts out of a vague sympathy for particular litigants."). Thus, a "plea of limitations" should be regarded as a "meritorious defense, in itself serving a public interest," that is, "the prompt presentation of claims." Kubrick, 444 U.S. at 117. Statutes of limitations should be strictly construed. Hedges, 404 F.3d at 751. Medical malpractice claims under the FTCA accrue as soon as the putative plaintiff possesses the "facts that he has been hurt and who has inflicted the injury." Kubrick, 444 U.S. at 122; see also Kerstetter v. United States, 57 F.3d 362, 365 (4th Cir. 1995) (holding that a plaintiff's medical malpractice claims accrue under the FTCA as soon as the plaintiff knows who has inflicted his injury); Price v. United States, 775 F.2d 1491, 1494 (11th Cir. 1985) ("[A] medical malpractice claim under the FTCA accrues when the plaintiff is, or in the exercise of reasonable diligence should be, aware of both her injury and its connection with some act of the defendant."). Applying this rule to the facts of this case compels the conclusion that Plaintiff's tort

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claims accrued, at the very latest, immediately after his third surgery on March 9, 2001. More likely, Plaintiff's tort claims accrued two days after his first surgery, i.e., on January 13, 2000, given that Plaintiff claims he has been in constant pain and unable to work since then. Because Plaintiff did not present his tort claims to the VA until June 2, 2003, i.e., long after the FTCA's two-year statute of limitations expired, Plaintiff's claims are barred.5 III. PLAINTIFF CANNOT MEET HIS BURDEN TO SHOW THAT HE WAS ENTITLED TO EQUITABLE TOLLING. Plaintiff has the burden to show that he was entitled to equitable tolling of the statute of limitations. Courtney v. La Salle Univ., 124 F.3d 499, 505 (3d Cir. 1997). In the Third Circuit, equitable tolling is allowed "sparingly," and only "(1) where the defendant has actively misled the plaintiff respecting the plaintiff's cause of action; (2) where the plaintiff in some extraordinary way has been prevented from asserting his or her rights; or (3) where the plaintiff has timely asserted his or her rights mistakenly in the wrong forum." Hedges, 404 F.3d at 753. The Supreme Court has also stated that equitable tolling is to be applied "sparingly." See Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990) ("We have allowed equitable tolling in situations where the claimant has actively pursued his judicial remedies by filing a defective pleading during the statutory period, or where the complainant has been induced or tricked by his adversary's misconduct into allowing the filing deadline to pass."). "Absent a showing of intentional inducement or trickery by the defendant, a statute of limitations should be tolled only in the `rare situation where equitable tolling is demanded by sound legal principles as well as the interests of justice.'" United States v. Midgley, 142 F.3d 174, 179 (3d Cir. 1998); see also Sch.
5

Counsel for Plaintiff submitted a brief to the VA in which he admitted that Plaintiff presented his tort claim after the expiration of the two-year statute of limitations. (Id. at A89.) 12

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Dist. of Allentown v. Marshall, 657 F.2d 16, 19 (3d Cir. 1981) ("The restrictions on equitable tolling, however, must be scrupulously observed."). Because Plaintiff cannot show that this is one of those "rare situations" where equitable tolling applies, Plaintiff's claims are barred. A. The VA Did Not Actively Mislead The Plaintiff.

Plaintiff cannot meet the first basis for equitable tolling because he cannot allege that he missed the FTCA's presentment deadline due to any "intentional inducement or trickery" by the VA. From March 13, 2001, until June 2, 2003, the VVA communicated with the VA on behalf of Plaintiff and repeatedly indicated to the VA that Plaintiff wanted to pursue a claim for disability benefits pursuant to § 1151. During that time no one mentioned to the VA that Plaintiff also wanted to sue the VA for negligence. Accordingly, the VA did just what Plaintiff asked it to do ­ it adjudicated Plaintiff's claim for disability benefits. It did not engage in any "intentional inducement or trickery." A veteran who believes he or she has been injured by medical treatment at a VA facility has at least two methods for obtaining compensation. The veteran can file a claim for disability benefits under § 1151. The veteran can also sue the VA for negligence under the FTCA. The veteran may elect to pursue one, or both, of these remedies. See United States v. Brown, 348 U.S. 110, 113 (1954). Although there are many distinctions between the two claims, a distinction that is important to this case is that a veteran can obtain § 1151 disability benefits without showing that the VA committed negligence.6 See 38 U.S.C. § 1151(a)(1) (allowing a
6

A FTCA claim and a disability benefit claim under § 1151 differ in other significant respects. For example, the amount and method of payment of § 1151 benefits is prescribed and limited by statute, whereas FTCA damages are not so limited. Further, § 1151 claims are adjudicated pursuant to a non- adversarial administrative process, whereas FTCA claims may be pursued through adversarial litigation. See 69 Fed. Reg. 46,426, 46,427 (Aug. 3, 2004) 13

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veteran to obtain disability benefits caused by the VA's medical treatment and "an event not reasonably foreseeable."). Here, in March, 2001, Plaintiff chose to file a § 1151 claim for disability benefits with assistance from the VVA instead of hiring a lawyer. The fact that the VVA did not tell Plaintiff that he should also file a FTCA claim is unfortunate, but that does not mean that the FTCA's limitations period should have been equitably tolled. In McNeil v. United States, the Supreme Court held that a pro se litigant was not entitled to equitable tolling of the FTCA's limitations period, and explained that persons who choose to proceed pro se run the risk that they will make mistakes and lose their rights: Our rules of procedure are based on the assumption that litigation is normally conducted by lawyers. While we have insisted that the pleadings prepared by prisoners who do not have access to counsel be liberally construed, and have held that some procedural rules must give way because of the unique circumstance of incarceration, we have never suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed without counsel. As we have noted before, "in the long run experience teaches that strict adherence to the procedural requirements specified by the legislature is the best guarantee of evenhanded administration of the law." 508 U.S. 106, 113 (1993). Had Plaintiff consulted a lawyer, he undoubtedly would have been told to file a FTCA claim. Had Plaintiff simply told the VA that he wanted to sue because VA employees had committed negligence, he would have been told the same thing. See 38 C.F.R. § 14.604(a) (requiring the VA to furnish a blank SF-95 form to every person who "inquires as to the procedure for filing a claim against the United States, predicated on a negligent or wrongful act

(discussing distinctions between a FTCA claim and a § 1151 claim and noting that claimant may elect which remedy to pursue). 14

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or omission of an employee of the Veterans Administration"). Instead, Plaintiff chose to file a claim for disability benefits without a lawyer and with the VVA as his representative. More than two years later, after Plaintiff's disability benefit claim was denied, Plaintiff finally consulted a lawyer, and was told to file a FTCA claim. Clearly, Plaintiff did not miss the filing deadline due to any "intentional inducement or trickery" by the VA. B. Plaintiff's Allegation That The VA Had Notice Of His Potential Tort Claims Should Be Rejected.

Although Plaintiff alleges that the VA "had notice of [his] potential claims under the [FTCA]," and failed to provide him "with the information or paperwork necessary to file a claim under the [FTCA]," (Compl. ¶ 22), those allegations do not suffice to show that Plaintiff is entitled to equitable tolling. First of all, Plaintiff's allegation that the VA had notice of his potential claims under the FTCA is not supported by any evidence. The evidence shows that the first time anyone told the VA that Plaintiff wanted to bring a claim under the FTCA was on June 2, 2003. To survive a motion for summary judgment, Plaintiff cannot rest on his allegations, he must set forth "specific facts" by affidavit or otherwise. See FED . R. CIV . P. 56(e). The bald allegation that the VA had notice of Plaintiff's tort claims prior to June 2, 2003, must therefore be rejected. Moreover, even if the VA knew that there was a basis for Plaintiff to bring a tort claim under the FTCA, that would not mean that the VA engaged in "intentional inducement or trickery" if it failed to advise Plaintiff how to bring such a claim. Plaintiffs in the Third Circuit face a high burden to show "intentional inducement or trickery." For example, in Hedges, the Third Circuit held that the United States Department of the Interior did not engage in trickery

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when it advised the plaintiff, Hedges, that he should bring an administrative claim against the agency, even though Hedges's exclusive remedy was actually to file a lawsuit against the agency under the Suits in Admiralty Act (the "SAA"). Hedges, 404 F.3d at 745-46. By the time Hedges discovered that his exclusive remedy was under the SAA, he had missed the statute of limitations deadline. Still, the Third Circuit held that equitable tolling was not appropriate because there was no evidence that the "Government officials advised Hedges that he did not have a judicial remedy, or should not pursue one in addition to his administrative claim." Id. at 752. Under Hedges, even if the VA knew that Plaintiff had a basis for a tort claim, and failed to tell him to pursue that claim, that would not mean that the VA engaged in trickery so as to entitle Plaintiff to equitable tolling. The Sixth Circuit applied a more relaxed standard for finding equitable tolling in Glarner v. United States, Dept. of Veterans Admin., 30 F.3d 697 (6th Cir. 1994). In Glarner, a veteran who was recovering in a VA hospital from surgery submitted a claim for disability benefits pursuant to 38 U.S.C. § 1151. Id. at 700. The claim form the veteran submitted to the VA also stated, "I feel that I am entitled to compensation as a result of this negligence." Id. The VA denied the veteran's claim for disability benefits, and then moved to dismiss the veteran's subsequent FTCA lawsuit as barred by the statute of limitations. The Sixth Circuit concluded that the veteran was entitled to equitable tolling. The court relied heavily on the regulation that requires the VA to furnish information about the FTCA to every person who inquires about the procedure for filing a negligence claim against the VA. See Glarner, 30 F.3d at 701 (citing 38 C.F.R. § 14.604(a)). The Sixth Circuit concluded that, because the veteran had submitted a claim form that specifically alleged negligence, that 16

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regulation imposed an affirmative duty on the VA to provide the veteran with information about the FTCA. Id. Because the VA violated its duty to the veteran, the Sixth Circuit concluded that the veteran was entitled to equitable tolling. Id. at 702. However, even if Glarner were the law in the Third Circuit, which it is not,7 the Plaintiff still would not be entitled to equitable tolling. In Glarner, the Sixth Circuit found that the VA had an affirmative duty to inform the veteran about the FTCA only because the veteran's claim form specifically alleged negligence. Here, the Plaintiff's disabilty benefit claim form did not mention negligence. Nor did the cover letter that the VVA submitted allege negligence ­ that letter merely stated that "[t]his Veteran wishes to open a claim for service connected disability for complications from operation received at Wilmington VA hospital for hernia operations, and scars." (App'x at A9.) Because neither the VVA nor Plaintiff ever told the VA that Plaintiff was alleging negligence, even under the rule
7

In the Third Circuit, a plaintiff is only entitled to equitable tolling under the first basis if he can show that he missed the statute of limitations deadline because of "intentional inducement or trickery" by the Government. Midgley, 142 F.3d at 179; see also Irwin, 498 U.S. at 96. Thus, the Government submits that the Third Circuit would not follow the more relaxed equitable tolling test in Glarner. Moreover, the Sixth Circuit's reasoning in Glarner is suspect. Glarner held that the VA's regulations ­ specifically, 38 C.F.R. § 14.604(a) ­ imposed an affirmative duty on the VA to provide information about the FTCA to the veteran merely because the veteran's disability benefit claim form alleged negligence. However, § 14.604(a) only imposes a duty on the VA when a person "inquires as to the procedure for filing a claim against the United States, predicated on a negligent or wrongful act . . . ." In Glarner, the veteran did not inquire as to the procedure to submit a negligence claim, he merely filed a claim for disability benefits, and, in conjunction therewith, alleged negligence. The veteran's allegation of negligence was totally consistent with his claim for disability benefits. See 38 U.S.C. § 1151(a)(1)(A) & (B) (allowing a veteran to recover disability benefits for a disability caused by the VA's negligent medical care, but also alternatively allowing a veteran to recover benefits for a disability caused not by negligence but by "an event not reasonably foreseeable."). Thus, in Glarner, the VA was justified in treating the veteran's claim for disability benefits as just that, and not as an inquiry "as to the procedure for filing a claim against the United States, predicated on a negligent or wrongful act . . . ." In short, Glarner is not the law in the Third Circuit, it is based on flawed reasoning, and, in any event, it is clearly distinguishable from the facts of this case. 17

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in Glarner, the Plaintiff is not entitled to equitable tolling. Plaintiff has also argued to the VA that he is entitled to equitable tolling because the VVA had notice of his tort claims, and that "agency" failed to provide Plaintiff with the "information and necessary paperwork necessary to file a claim under the [FTCA]." (Compl. ¶ 22; see also App'x at A89.) That argument should be rejected. The VVA is not a Government agency.8 It is a private organization that assisted Plaintiff in filing a § 1151 claim for disability benefits. Although Plaintiff might have a cause of action against the VVA for mishandling his claim, that does mean Plaintiff is entitled to equitable tolling here. By proceeding pro se, Plaintiff assumed the risk that he, or the VVA, might miss a filing deadline concerning his FTCA claim. See McNeil, 508 U.S. at 113 (explaining that litigants are not entitled to equitable tolling merely because they act pro se); cf. Seitzinger v. Reading Hosp. & Med. Ctr., 165 F.3d 236, 240 (3d Cir. 1999) ("The usual rule is that attorney errors will be attributed to their clients."). For all these reasons, Plaintiff cannot meet the first basis for equitable tolling. C. Nothing Extraordinary Prevented Plaintiff From Asserting His Rights.

Plaintiff cannot meet the second basis for equitable tolling because he cannot point to anything extraordinary that prevented him from complying with the statute of limitations. Although Plaintiff has argued to the VA that he should be entitled to equitable tolling because he is illiterate, (App'x at A90), that argument should be rejected. See, e.g., Lake v. Arnold, 232 F.3d 360, 367 (3d Cir. 2000) (holding that the plaintiff's mental retardation and illiteracy did not suffice to merit equitable tolling); Hedges, 404 F.3d at 753 ("We have held that mental

Indeed, the VVA is frequently involved in litigation against the Government. See, e.g., Vietnam Veterans of Am. v. Dep't of Navy, 876 F.2d 164 (D.C. Cir. 1989). 18

8

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incompetence, even rising to the level of insanity, does not toll a federal statute of limitations for claims against the Government."); Turner v. Johnson, 177 F.3d 390, 392 (5th Cir. 1999) ("[N]either a plaintiff's unfamiliarity with the legal process nor his lack of representation during the applicable filing period merits equitable tolling. . . . It is irrelevant whether the unfamiliarity is due to illiteracy or any other reason.") (citations omitted). Thus, Plaintiff cannot show that the second basis for equitable tolling applies. D. Plaintiff Did Not Timely Assert His Rights Mistakenly In The Wrong Forum.

Nor is there is any evidence that Plaintiff timely asserted his rights mistakenly in the wrong forum. The "wrong forum" test requires the Plaintiff to show that he raised the "precise statutory claim but has mistakenly done so in the wrong forum." Marshall, 657 F.2d at 20. Here, Plaintiff raised a statutory claim for disability benefits, not a tort claim under the FTCA. See, e.g., Mansfield v. Peake, 525 F.3d 1312, 1317 (Fed. Cir. 2008) (explaining that a FTCA claim and a § 1151 disability benefit claim are distinct claims). Thus, Plaintiff cannot meet the "wrong forum" basis for equitable tolling. Even if Plaintiff had raised the precise statutory claim in the wrong forum (which he did not do), he would still have to show that he had more than a simple "misunderstanding" about the proper way to bring a negligence claim to receive equitable tolling. See Jones v. Morton,195 F.3d 153, 160 (3d Cir. 1999). Plaintiff was simply confused when he failed to pursue a negligence claim alongside his claim for disability benefits. (See App'x at A90 (explaining that Plaintiff failed to file a FTCA claim for two years "due to his confusion in his mind about the claim for benefits under 38 U.S.C. § 1151").) For all of these reasons, Plaintiff is not entitled to equitable tolling. 19

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CONCLUSION For all of the reasons stated above, the Government respectfully requests that the Court dismiss Plaintiff's Complaint as barred by the FTCA's two-year statute of limitations. DATED: July 17, 2008.

Respectfully submitted, COLM F. CONNOLLY United States Attorney

By:

/s/ Seth M. Beausang Seth M. Beausang (De. I.D. No. 4071) Assistant U.S. Attorney District of Delaware The Nemours Building 1007 N. Orange Street, Suite 700 Wilmington, DE 19899-2046 (302) 573-6277

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