United States District Court, D. Maine
ORDER ON THE GOVERNMENT'S MOTION TO
LEVY, CHIEF U.S. DISTRICT JUDGE.
case arises from allegedly negligent medical treatment that
Dr. Thomas Franchini, a former Veterans Administration
podiatrist at the Togus Veterans Administration Medical
Center (“VAMC”) in Augusta, Maine, provided to
the Plaintiff, Douglas Carpenter. The Government moves to
dismiss Carpenter's claim, which is brought under the
Federal Tort Claims Act (“FTCA”), 28 U.S.C.A.
§ 2671 et seq. (West 2019),  for lack of
subject-matter jurisdiction under Federal Rule of Civil
Procedure 12(b)(1) (ECF No. 19). The Government argues that
Carpenter's claim is barred because he failed to comply
with Maine's statute of repose for professional
negligence actions, 24 M.R.S.A. § 2902 (Westlaw through
Ch. 112, and 114 to 169 of 2019 1st Reg. Sess. of 129th
Leg.). ECF No. 19 at 7-9. Carpenter, who is proceeding pro
se, responds by asserting that § 2902 does not bar his
claim because VAMC fraudulently concealed Franchini's
malpractice. ECF No. 24.
order dated February 28, 2019 (ECF No. 27), I deferred ruling
on the Government's motion to dismiss and authorized
Carpenter to amend his complaint and to perform limited
discovery on the issue of fraudulent concealment. The order
established deadlines for Carpenter to file an amended
complaint and to serve the Government with interrogatories
and requests for production. ECF No. 27 at 4. On April 26,
2019, the Government filed a status report (ECF No. 28)
informing the Court that those deadlines had passed, and that
Carpenter had not filed an amended complaint or served the
Government with interrogatories or requests for production.
ECF No. 28 ¶¶ 3-4. Therefore, I now address the
merits of the Government's motion to dismiss for lack of
complaint alleges that Franchini committed medical
malpractice against Carpenter when he performed surgery on
Carpenter's foot at the VAMC. The complaint contains no
other details about Franchini's medical treatment of
Carpenter. Records from the administrative proceeding,
however, show that Franchini performed two surgeries on
Carpenter's foot, one on July 22, 2005, and one on
February 3, 2006. The first surgery was an “L Chevron
bunionectomy with screw fixation, ” and the second was
a “percutaneous left plantar fascia release.” ECF
No. 18-2 at 1. On an administrative form titled “Claim
for Damage, Injury, or Death, ” Carpenter describes his
injury and claim as follows:
As a result of Dr. Franchini's failure to perform the
correct surgery, my left foot pain persisted. Although he
eventually performed the left plantar facial release surgery,
he negligently did so and entrapped an/or injured the nerve.
Despite ongoing treatment, I now suffer from ongoing chronic
pain. This has limited my physical activities. It has caused
me great discomfort and distress.
ECF No. 18-1 at 1.
a district court considers a Rule 12(b)(1) motion, it must
credit the plaintiff's well-pled factual allegations and
draw all reasonable inferences in the plaintiff's
favor.” Merlonghi v. United States, 620 F.3d
50, 54 (1st Cir. 2010). “[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 suit
(subject-matter jurisdiction)[.]” Sinochem
Int'l Co. v. Malay. Int'l Shipping Corp., 549
U.S. 422, 430-31 (2007). The plaintiff, as “the party
invoking the jurisdiction of a federal court[, ] carries the
burden of proving its existence.” Skwira v. United
States, 344 F.3d 64, 71 (1st Cir. 2003) (quoting
Murphy v. United States, 45 F.3d 520, 522 (1st Cir.
1995)). Documents that are filed by pro se litigants are,
however, “to be liberally construed.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per
curiam); see also Foley v. Wells Fargo Bank, N.A.,
772 F.3d 63, 75 (1st Cir. 2014).
the FTCA, the United States is liable “for injury or
loss of property, or personal injury or death caused by the
negligent or wrongful act or omission of any employee of the
Government while acting within the scope of his office or
employment, ” but only “under circumstances where
the United States, if 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.A. §
1346(b)(1). To survive a motion to dismiss, “an FTCA
claim must successfully surmount the jurisdictional hurdle
erected by 28 U.S.C. § 1346(b).” McCloskey v.
Mueller, 446 F.3d 262, 266 (1st Cir. 2006). Here, the
jurisdictional hurdle is Maine's three-year statute of
repose for professional negligence claims, 24 M.R.S.A. §
from this action, six FTCA cases have been filed with this
Court since 2014 against the Government by veterans alleging
that they were negligently treated by Franchini at the
VAMC. In February of 2016, I issued an order on
a motion to dismiss filed by the Government in four of those
cases, in which I ruled that “Maine's three-year
limitations period for bringing claims against health care
providers is a statute of repose and not a statute of
limitations, ” and that the statute, 24 M.R.S.A. §
2902, “is not preempted by the Federal Tort Claims
Act.” Mansir v. United States, 299 F.Supp.3d
203, 205 (D. Me. 2018). “Unlike a statute of
limitations, which is procedural, a statute of repose is the
substantive law of the state[.]” Wood v. United
States, No. 1:14-cv-00399-JDL, 2016 WL 11580579, at *5
(D. Me. Feb. 2, 2016). Because the FTCA incorporates the
substantive law of the jurisdiction where the injury occurred
by waiving the United States' sovereign immunity only to
the extent a private person would be liable in that
jurisdiction, see 28 U.S.C.A. § 1346(b)(1), a
statute of repose may bar a plaintiff's FTCA claim.
See Wood, 2016 WL 11580579, at *9 (concluding that
plaintiffs' FTCA claims were “time-barred, just as
they would be if they had initiated an action in state court
for medical negligence” under Maine law).
statute of repose . . . puts an outer limit on the right to
bring a civil action. That limit is measured not from the
date on which the claim accrues but instead from the date of
the last culpable act or omission of the defendant.”
CTS Corp. v. Waldburger, 573 U.S. 1, 8 (2014).
Maine's statute of repose for medical malpractice actions
requires a plaintiff to bring an “action for
professional negligence” within three years of
“the date of the act or omission giving rise to the
injury.” 24 M.R.S.A. § 2902. Here, the three-year
repose period for the medical negligence that Carpenter
alleges began to run when the last negligent act or omission
allegedly occurred: the February 3, 2006 surgery. ECF No.
18-1; ECF No. 18-2. Thus, Carpenter's claim is
time-barred under Maine's statute of repose; to be
timely, the claim would need to have been brought before
February 3, 2009.
response to the Government's motion to dismiss, Carpenter
asserted that the Government fraudulently concealed
Franchini's malpractice from him, which I construed as
asserting that the statutory tolling provision in 14 M.R.S.A.
§ 859 (Westlaw through Ch. 112, and 114 to 169 of 2019
1st Reg. Sess. of 129th Leg.) related to fraudulent
concealment applies to his claim. See ECF No.
27 at 3. The Government raised two arguments in response:
first, that the Court should not consider Carpenter's
fraudulent concealment theory because it was raised for the
first time in response to the motion to dismiss and is not
included in the complaint; and second, that even if the Court
were to consider the fraudulent concealment theory, the
allegations set forth in Carpenter's response are
insufficient to satisfy the pleading requirements of Federal
Rules of Civil Procedure 8 and 9(b). Though Carpenter was granted
leave to amend his Complaint to add a claim for fraudulent
concealment, he has not done so. See ECF No. 27 at
4; ECF No. 28 ¶¶ 3-4.
Carpenter had amended his complaint to add the allegations
set forth in his response, I would conclude that those
allegations are not sufficient to demonstrate that § 859
applies to Carpenter's claim. “Rule 9 imposes a
heightened pleading requirement for allegations of fraud,
” Doyle v. Hasbro, Inc., 103 F.3d 186, 194
(1st Cir. 1996), requiring that a plaintiff “state with
particularity the circumstances constituting fraud[.]”
Fed.R.Civ.P. 9(b). “The particularity requirement means
that a complaint must specify ‘the time, place, and
content of an alleged false representation.'”
United States ex. rel. Kelly v. Novartis Pharm.
Corp., 827 F.3d 5, 13 (1st Cir. 2016) (quoting
Doyle, 103 F.3d at 194). ...