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Myrick v. United States

United States District Court, D. Maine

February 23, 2018





         Kenneth Myrick, a veteran of the United States armed forces, claims that he was negligently treated by Dr. Thomas Franchini (hereinafter “Franchini”), a former Veterans Affairs podiatrist at the Togus Veterans Affairs Medical Center (the “VAMC”). He also alleges that the VAMC and Franchini fraudulently concealed Franchini's negligence from him, thus preventing him from asserting his rights in a timely fashion. In his Third Amended Complaint (ECF No. 88), Myrick brings claims against the federal government (alternatively, the VAMC or the “Government”) for professional negligence (Count I) and fraudulent concealment (Count II). The Government has moved to dismiss the Third Amended Complaint for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) (ECF No. 93).

         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. 29 at 40. The Government argues that because § 2902 is a statute of repose, the three-year repose period for the medical negligence alleged by Myrick began to run no later than February 2005-the date of Myrick's surgery performed by Franchini-rather than from January 2013, when Myrick discovered the facts underlying his claims. Thus, the claims alleged by Myrick are time-barred absent some reason in law or equity for tolling the statute of repose.

         Myrick asserts that the statutory tolling provision in 14 M.R.S.A. § 859 (2017) related to fraudulent concealment applies to his 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 Myrick's claims, its six-year limitations period started 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 Myrick discovered the alleged tortious act, brings Myrick'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 Myrick, 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 fraudulently concealed instances of medical malpractice from Myrick, and that these facts are inextricably intertwined with the merits of Myrick's claims. Thus, I cannot yet determine whether, as a matter of law, § 859 governs Myrick's claims, and I deny the Motion to Dismiss as to Count I (Negligence), in part, for that reason. The Government further moves to dismiss Count I, in part, as to certain VAMC healthcare providers other than Franchini, and Count II (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). As explained below, I conclude that Count I should be dismissed as to healthcare providers other than Franchini, and Count II should be dismissed entirely. Accordingly, the Government's Motion to Dismiss is granted, in part, as to Count I and in full as to Count II. It is, however, denied, in part, as to Count I to the extent it alleges negligence by Franchini and not by other healthcare providers.


         The Government seeks to dismiss the Third Amended Complaint for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). 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 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)).

         Myrick's Third Amended Complaint alleges facts intended to demonstrate fraudulent concealment in two ways: first, fraudulent concealment allegedly committed by Franchini in concealing from Myrick his surgical negligence resulting in a nerve entrapment; and second, fraudulent concealment allegedly committed by the VAMC in concealing and/or failing to disclose Franchini's negligent medical treatment to Myrick. I address, in order, (1) the Government's challenge to Myrick's allegations of fraudulent concealment; (2) whether a special relationship existed between Myrick and the VAMC that imposed a duty on the VAMC to disclose Franchini's possible negligence to Myrick; and (3) the Government's contention that because the FTCA does not establish subject matter jurisdiction for any claim arising out of misrepresentation, Count II of the Third 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, Myrick must establish that the VAMC or Franchini, acting as its employee, actively concealed facts from him and that he relied on the concealment to his 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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