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Wood v. United States

United States District Court, D. Maine

February 23, 2018

APRIL M. WOOD, Plaintiff,




         April M. Wood, a veteran of the United States Army, claims that she was negligently treated by Dr. Thomas Franchini (hereinafter “Franchini”), a former Veterans Affairs podiatrist at the Togus Veterans Affairs Medical Center (the “VAMC”). She also alleges that the VAMC and Franchini fraudulently concealed Franchini's negligence, preventing her from asserting her rights in a timely fashion. In her Second Amended Complaint (ECF No. 102), Wood brings claims against the federal government (alternatively, the VAMC or the “Government”) for vicarious liability for Franchini's alleged negligence (Count I); direct liability for negligence (Count II); lack of informed consent (Count III); and fraudulent concealment (Count IV). The Government has moved to dismiss the Second Amended Complaint for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) (ECF No. 107).

         This is the second motion to dismiss that the Government has filed in this case. In an Order issued in February 2016, I resolved almost all of the issues raised in the Government's first Motion to Dismiss in favor of the Government, ruling that Maine's three-year limitations period for bringing claims against health care providers, 24 M.R.S.A. § 2902 (2017) is a statute of repose and not a statute of limitations, and that § 2902 is not preempted by the Federal Tort Claims Act (“FTCA”), 28 U.S.C.A. § 2401(b) (2017). See ECF No. 45 at 40. The Government argues that because § 2902 is a statute of repose, the three-year repose period for the medical negligence alleged by Wood began to run no later than December 2009-the date of Wood's last surgery performed by Franchini-rather than from February 2013, when Wood discovered the facts underlying her claims. Thus, the claims alleged by Wood are time-barred absent some basis in law or equity for tolling the three-year statute of repose.

         Wood asserts that the statutory tolling provision in 14 M.R.S.A. § 859 (2017) related to fraudulent concealment applies to her claims:

If a person, liable to any action mentioned, fraudulently conceals the cause thereof from the person entitled thereto, or if a fraud is committed which entitles any person to an action, the action may be commenced at any time within 6 years after the person entitled thereto discovers that he has just cause of action[.]

14 M.R.S.A. § 859. If § 859 governs Wood's claims, its six-year limitations period “starts to run when the existence of the cause of action or fraud [was] discovered or should have been discovered by the plaintiff in the exercise of due diligence and ordinary prudence.” Westman v. Armitage, 215 A.2d 919, 922 (Me. 1966). Extending the limitations period from three years from the date of the alleged tortious act in accordance with § 2902's statute of repose, to six years from the time Wood discovered the alleged tortious act, brings Wood's claims within § 859's six-year statute of limitations. Accordingly, I deferred a final ruling on the applicability of § 859 in connection with the first Motion to Dismiss to afford Wood, and the plaintiffs in five related actions, [1] the opportunity to conduct limited discovery on the issue of fraudulent concealment and to seek to amend their complaints on the basis of that discovery.

         For the reasons explained below, I conclude that a genuine dispute of material fact exists with regard to whether the VAMC and Franchini fraudulently concealed instances of medical malpractice from Wood, and that these facts are inextricably intertwined with the merits of Wood's claims. Thus, I cannot yet determine whether, as a matter of law, § 859 governs Wood's claims, and I deny the Motion to Dismiss as to Counts I (Vicarious Liability), Count II (Direct Liability), and Count III (Lack of Informed Consent) for that reason. The Government also moves to dismiss Count IV (Fraudulent Concealment) for lack of subject matter jurisdiction pursuant to restrictions established by the FTCA in 28 U.S.C.A. §§ 2675(a) and 2680(h), and, as explained below, I conclude that Count IV should be dismissed.


         The Government seeks to dismiss the Second Amended Complaint for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1).[2] A federal court generally may not rule on the merits of a case without first determining that it has jurisdiction over the category of claim in the suit, i.e., subject matter jurisdiction. See Sinochem Int'l Co. v. Malaysia Int'l Shipping Corp., 549 U.S. 422, 430-31 (2007).

         A defendant may challenge the court's subject matter jurisdiction pursuant to Rule 12(b)(1) in two ways: facially or factually. See Torres-Negrón v. J & N Records, LLC, 504 F.3d 151, 162 (1st Cir. 2007). In a facial attack, the court accepts as true those allegations in the complaint-“sometimes augmented by an explanatory affidavit or other repository of uncontested facts”-that are relevant to jurisdiction, draws all reasonable inferences from them in the plaintiff's favor, and determines whether they are sufficient to establish the court's subject matter jurisdiction. Valentin v. Hosp. Bella Vista, 254 F.3d 358, 363 (1st Cir. 2001); see also Torres-Negrón, 504 F.3d at 162.

         A defendant may also mount a factual challenge to subject matter jurisdiction:

The second way to engage the gears of Rule 12(b)(1) is by controverting the accuracy (rather than the sufficiency) of the jurisdictional facts asserted by the plaintiff and proffering materials of evidentiary quality in support of that position. Unlike, say, a motion for summary judgment under Federal Rule of Civil Procedure 56(c), this type of challenge under Federal Rule of Civil Procedure 12(b)(1)-which we shall call a “factual challenge”-permits (indeed, demands) differential factfinding. Thus, the plaintiff's jurisdictional averments are entitled to no presumptive weight; the court must address the merits of the jurisdictional claim by resolving the factual disputes between the parties. In conducting this inquiry, the court enjoys broad authority to order discovery, consider extrinsic evidence, and hold evidentiary hearings in order to determine its own jurisdiction.

Valentin, 254 F.3d at 363 (internal citations and footnote omitted). “In a situation where the parties dispute the predicate facts allegedly giving rise to the court's jurisdiction, the district court will often need to engage in some preliminary fact-finding.” Skwira v. United States, 344 F.3d 64, 71-72 (1st Cir. 2003).

         Where, in a factual challenge, the necessary facts are relevant both to jurisdiction and to the merits of the plaintiff's case, however, “the standard applicable to a motion for summary judgment” applies. Torres-Negrón, 504 F.3d at 163 (quoting Autery v. United States, 424 F.3d 944, 956 (9th Cir. 2005) (internal quotation marks omitted)). If the material jurisdictional facts are not in dispute and the moving party is entitled to prevail on the jurisdictional question as a matter of law, then the motion to dismiss is granted. Torres-Negrón, 504 F.3d at 163; Me. Human Rights Comm'n v. Sunbury Primary Care, P.A., 770 F.Supp.2d 370, 397 (D. Me. 2011). On the other hand, “[s]hould the plaintiff present evidence showing that the relevant facts are genuinely disputed, the case proceeds to trial and the jurisdictional dispute will be reevaluated once the factfinder has resolved the issues of fact.” Sunbury, 770 F.Supp.2d at 397 (citing Torres-Negrón, 504 F.3d at 163); see also Valentin, 254 F.3d at 363 n.3 (“[F]or cases in which the jurisdictional facts, though genuinely disputed, are inextricably intertwined with the merits of the case . . . the court may defer resolution of the jurisdictional issue until the time of trial.”). At trial, “[i]t is the plaintiff's burden to prove the existence of subject matter jurisdiction.” Aversa v. United States, 99 F.3d 1200, 1209 (1st Cir. 1996) (citing Murphy v. United States, 45 F.3d 520, 522 (1st Cir. 1995)).

         Wood's Second Amended Complaint alleges facts intended to demonstrate fraudulent concealment in two ways: first, fraudulent concealment allegedly committed by Franchini in misleading Wood as to the results of her initial surgery and the reasons for the continuing problems she experienced with her foot; and second, fraudulent concealment allegedly committed by the VAMC in concealing and/or failing to disclose Franchini's negligent treatment to Wood. I address, in order, (1) the Government's challenge to Wood's allegations of fraudulent concealment; (2) whether a special relationship existed between Wood and the VAMC that imposed a duty on the VAMC to disclose Franchini's alleged negligence to Wood; and (3) the Government's contention that because the FTCA does not afford subject matter jurisdiction for any claim arising out of misrepresentation, Count IV of the Second Amended Complaint should be dismissed because it specifically seeks damages for fraudulent concealment, a form of misrepresentation.

         1. Fraudulent Concealment under 14 M.R.S.A. § 859

         To benefit from the six-year statute of limitations provided by § 859, Wood must establish that the VAMC or Franchini, acting as its employee, actively concealed facts from her and that she relied on the concealment to her detriment. Brawn v. Oral Surgery Assocs., 819 A.2d 1014, 1026 (Me. 2003). “Active concealment of the truth connotes steps taken by a defendant to hide the true state of affairs from the plaintiff.” Kezer v. Mark Stimson Assocs., 742 A.2d 898, 905 (Me. 1999) (internal quotation marks omitted). Active concealment does not require an affirmative false statement and “may consist as well in the concealment of what is true as in the assertion of what is false.” Horner v. Flynn, 334 A.2d 194, 203 (Me. 1975), overruled on other grounds by Taylor v. Comm'r of Mental Health & Mental Retardation, 481 A.2d 139 (Me. 1984); see also Sprague Energy Corp. v. Massey Coal Sales Co., No. 05-222-P-S, 2006 WL 696197, at *17 (D. Me. Mar. 15, 2006) (“Fraud need not necessarily take the form of an express false statement; rather, it can be predicated on active concealment of the truth.”).

         When a plaintiff alleges fraudulent concealment through the active concealment of facts, the court must assess the allegations against the elements of fraud: (1) the making of a false representation; (2) of a material fact; (3) with knowledge of its falsity or in reckless disregard of whether it is true or false; (4) for the purpose of inducing another to act upon it; and (5) justifiable and detrimental reliance by the other person. Brawn, 819 A.2d at 1026; see also Harris Mgmt., Inc. v. Coulombe,151 A.3d 7, 16 n.7 (Me. 2016). “In alleging fraud or mistake, a party must state with particularity the ...

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