throbber
Case 2:17-cv-02806-SHM-cgc Document 109 Filed 11/17/20 Page 1 of 19 PageID 1661
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TENNESSEE
`WESTERN DIVISION
`
`
`
`D.B., A MINOR, BY AND THROUGH
`HIS NEXT FRIEND AND MOTHER
`ANTOINETTE LUNDY,
`
`Plaintiff,
`
`
`v.
`
`SHELBY COUNTY HEALTH CARE
`CORPORATION AND UNITED STATES
`OF AMERICA,
`
`
`Defendants.
`
`
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`
`
`)
`)
`)
`)
`)
`)
`
`)
`) No. 17-cv-02806-SHM-cgc
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`)
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`)
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`
`
`ORDER GRANTING UNITED STATES OF AMERICA’S MOTION FOR SUMMARY
`JUDGMENT
`
`Plaintiff brings this medical malpractice action against
`
`the United States of America as substitute party (the
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`“Government”) and Shelby County Health Care Corporation
`
`(“SCHCC”). (D.E. No. 38.) Plaintiff sues the Government under
`
`the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) and 2671, et
`
`seq., (the “FTCA”). Plaintiff sues SCHCC for medical
`
`malpractice under Tennessee law. Before the Court is the
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`Government’s Motion for Summary Judgment (the “Motion”), filed
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`on May 28, 2020. (D.E. No. 76.) Plaintiff has responded, the
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`Government has replied, Plaintiff has filed a sur-reply, the
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`Government has filed a sur-sur-reply, and the Motion is ripe
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`

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`Case 2:17-cv-02806-SHM-cgc Document 109 Filed 11/17/20 Page 2 of 19 PageID 1662
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`for consideration. (D.E. Nos. 80, 87, 93, 97.) For the
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`following reasons, the Motion is GRANTED.
`
`I.
`
`Background
`
`D.B., Plaintiff Antoinette Lundy’s minor child, on whose
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`behalf she brings this action, sustained injuries because of
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`allegedly negligent conduct during his delivery on May 2, 2014.
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`(Amended Complaint, D.E. No. 38 at 447-48.)1
`
`On April 28, 2017, pursuant to Tennessee law, Lundy
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`notified the health care providers responsible for her and
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`D.B.’s care that she intended to sue them. (D.E. No. 4-1 at
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`183-84.) Christ Community Health Services, Inc. (“CCHS”) and
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`its employees Dr. William G. Mullinax, Dr. Ellisa Rausch Krumm,
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`and Dr. David Jordan Paslay (the “doctors”) were among the
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`parties notified. (Id.) On or before May 19, 2017, the United
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`States Department of Health and Human Services (“HHS”) sent a
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`letter to Lundy. (D.E. No. 16-2 at 381.) HHS informed Lundy
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`that it had learned of her intent to sue CCHS employees, that
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`those employees might have been federal employees at the time
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`they provided care, and that, if so, the FTCA would be her
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`exclusive remedy against them. (Id.)
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`On August 22, 2017, Lundy sued CCHS, the doctors, and
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`SCHCC for medical malpractice in Tennessee state court. (D.E.
`
`
`1 Unless otherwise noted, all pin cites for record citations are to
`the “PageID” page number.
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`
`
`2
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`

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`Case 2:17-cv-02806-SHM-cgc Document 109 Filed 11/17/20 Page 3 of 19 PageID 1663
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`No. 4-1 at 176.) Lundy served CCHS through its registered agent
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`on September 1, 2017. (D.E. No. 4 at 173.) CCHS notified the
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`Government of Lundy’s suit on September 20, 2017. (Id. at 172.)
`
`The Government filed a response on September 27, 2017. (D.E.
`
`No. 4-1 at 327-28.) In its response, the Government said it had
`
`not yet determined whether CCHS and the doctors were federal
`
`employees when they cared for Lundy and D.B. and, as a result,
`
`did not yet know whether federal law would require the
`
`Government to enter a substitution of party. (Id.) On October
`
`13, 2017, while her case was pending in state court, Lundy
`
`filed an FTCA administrative claim against the Government.
`
`(D.E. No. 20 at 393.)
`
`CCHS removed to this Court on November 3, 2017, under 42
`
`U.S.C. § 233(l)(2). (D.E. No. 4.) On December 6, 2017, after
`
`determining that CCHS and the doctors were federal employees at
`
`all relevant times, the Government moved to substitute itself
`
`as defendant in place of CCHS and the doctors. (D.E. No. 12 at
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`361-62.) The Court granted the Government’s motion on December
`
`11, 2017. (D.E. No. 15.) The next day the Government filed a
`
`motion to dismiss for lack of jurisdiction, noting that Lundy
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`had failed to exhaust her administrative remedies as required
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`by the FTCA. (D.E. No. 16 at 370.) The Court granted the
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`Government’s motion on February 16, 2018, dismissing the case
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`against the Government without prejudice. (D.E. No. 29.)
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`
`
`3
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`

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`Case 2:17-cv-02806-SHM-cgc Document 109 Filed 11/17/20 Page 4 of 19 PageID 1664
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`On June 28, 2018, Lundy filed a motion for leave to amend
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`her Complaint to add the Government as a defendant. (D.E. No.
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`35.) She represented that she had completed the FTCA
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`administrative
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`claims
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`process
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`and
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`received
`
`a
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`final
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`determination denying her claim. (Id. at 427.) The Court
`
`granted Lundy’s motion. (D.E. No. 36.) Lundy filed her Amended
`
`Complaint on July 19, 2018, naming the Government and SCHCC as
`
`defendants. (D.E. No. 38.)
`
`On October 30, 2018, the Government filed a Motion to
`
`Dismiss. (D.E. No. 58.) The Government contended that
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`Tennessee’s health care liability statute of repose deprived
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`the Court of jurisdiction over the Government. (Id. at 696);
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`Tenn. Code Ann. §§ 29-26-116(a)(3) and 29-26-121(c).
`
`
`
`The Court denied the Government’s motion because Lundy’s
`
`initial complaint had been filed before the deadline imposed by
`
`the statute of repose, the initial complaint had been dismissed
`
`for reasons not extinguishing her right of action, and the
`
`amended complaint had been filed within one year of the order
`
`of dismissal, which satisfied Tennessee’s savings statute.
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`(D.E. No. 61 at 740-41.)
`
`On May 28, 2020, the Government filed the instant Motion.
`
`(D.E. No. 76.) The Government argues that Lundy failed to
`
`satisfy the FTCA’s two-year statute of limitations for filing
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`an administrative claim with the federal agency, (Id. at 783),
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`
`
`4
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`

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`Case 2:17-cv-02806-SHM-cgc Document 109 Filed 11/17/20 Page 5 of 19 PageID 1665
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`which would “forever bar[]” her claim against the Government,
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`28 U.S.C. § 2401(b). D.B. was injured on May 2, 2014, and the
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`Government contends that the latest date the statute of
`
`limitations could have begun to run was May 19, 2014, the date
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`D.B. was released from the hospital. (D.E. No. 76 at 793.) The
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`Government contends that the two-year statute of limitations
`
`for filing an administrative claim had run by May 19, 2016, and
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`that Plaintiff did not file an administrative claim until
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`October 13, 2017. (Id. at 793-94.) Plaintiff agrees that the
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`statute of limitations had run before she filed her
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`administrative claim, but argues that the statute should be
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`equitably tolled. (See Pl.’s Resp., D.E. No. 80 at 858.)
`
`II. Jurisdiction
`
`The Court has federal-question jurisdiction over Lundy’s
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`claim against the Government. Under 28 U.S.C. § 1331, United
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`States district courts have original jurisdiction “of all civil
`
`actions arising under the Constitution, laws, or treaties of
`
`the United States.” This action was removed under 42 U.S.C. §
`
`233(l)(2), and the Court has original and exclusive
`
`jurisdiction under 42 U.S.C. § 233(g)(1)(A).
`
`The Court has supplemental jurisdiction over Lundy’s claim
`
`against SCHCC under 28 U.S.C. § 1367(a). That claim derives
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`from a “common nucleus of operative fact” with Lundy’s claim
`
`against the Government. United Mine Workers of Am. v. Gibbs,
`
`
`
`5
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`

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`Case 2:17-cv-02806-SHM-cgc Document 109 Filed 11/17/20 Page 6 of 19 PageID 1666
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`383 U.S. 715, 725 (1966); Soehnlen v. Fleet Owners Ins. Fund,
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`844 F.3d 576, 588-89 (6th Cir. 2016).
`
`III. Standard of Review
`
`Under Federal Rule of Civil Procedure 56, on motion of a
`
`party, the court “shall grant summary judgment if the movant
`
`shows that there is no genuine dispute as to any material fact
`
`and the movant is entitled to judgment as a matter of law.”
`
`Fed. R. Civ. P. 56(a). “[T]he moving party is entitled to
`
`summary judgment when the nonmoving party ‘fails to make a
`
`showing sufficient 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.’” George v. Youngstown State
`
`University, 966 F.3d 446, 458 (6th Cir. 2020) (quoting Celotex
`
`Corp. v. Catrett, 477 U.S. 317, 322–23 (1986)).
`
`The non-moving party has the duty to point out specific
`
`evidence in the record sufficient to justify a jury decision in
`
`her favor. See Fed. R. Civ. P. 56(c)(1); InterRoyal Corp. v.
`
`Sponseller, 889 F.2d 108, 111 (6th Cir. 1989). When confronted
`
`with a properly supported motion for summary judgment, the non-
`
`moving party must set forth specific facts showing that there
`
`is a genuine dispute for trial. See Fed. R. Civ. P. 56(c). A
`
`genuine dispute for trial exists if the evidence is “‘such that
`
`a reasonable jury could return a verdict for the nonmoving
`
`party.’” See Wasek v. Arrow Energy Servs., 682 F.3d 463, 467
`
`
`
`6
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`

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`Case 2:17-cv-02806-SHM-cgc Document 109 Filed 11/17/20 Page 7 of 19 PageID 1667
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`(6th Cir. 2012) (quoting Anderson v. Liberty Lobby, Inc., 477
`
`U.S. 242, 248 (1986)). “[I]n order to survive a summary
`
`judgment motion, the non-moving party ‘must do more than simply
`
`show that there is some metaphysical doubt as to the material
`
`facts.’” Lossia v. Flagstar Bancorp, Inc., 895 F.3d 423, 428
`
`(6th Cir. 2018) (quoting Matsushita Elec. Indus. Co. v. Zenith
`
`Radio Corp., 475 U.S. 574, 586 (1986)).
`
`Although summary judgment must be used carefully, it “is
`
`an integral part of the Federal Rules as a whole, which are
`
`designed to secure the just, speedy, and inexpensive
`
`determination of every action[,] rather than a disfavored
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`procedural shortcut.” FDIC v. Jeff Miller Stables, 573 F.3d
`
`289, 294 (6th Cir. 2009) (internal quotation marks and
`
`citations omitted).
`
`IV. Analysis
`
`The FTCA is the exclusive remedy for victims of the torts
`
`of United States employees. 28 U.S.C. § 2679(a); Himes v.
`
`United States, 645 F.3d 771, 776 (6th Cir. 2011). As a
`
`condition of this waiver of sovereign immunity, Congress has
`
`imposed a statute of limitations for FTCA claims. United States
`
`v. Kubrick, 444 U.S. 111, 117-18 (1979); see 28 U.S.C. §
`
`2401(b). That statute must be strictly enforced. Kubrick, 444
`
`U.S. at 117-18; Chomic v. United States, 377 F.3d 607, 615 (6th
`
`Cir. 2004) (“[T]he statute of limitations in § 2401(b) must be
`
`
`
`7
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`

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`Case 2:17-cv-02806-SHM-cgc Document 109 Filed 11/17/20 Page 8 of 19 PageID 1668
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`strictly construed”); see Lehman v. Nakshian, 453 U.S. 156,
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`160-61 (1981) (“[T]his Court has long decided that limitations
`
`and conditions upon which the Government consents to be sued
`
`must be strictly observed and exceptions thereto are not to be
`
`implied.”) (internal quotations omitted).
`
`The Supreme Court, in United States v. Kwai Fun Wong, 575
`
`U.S. 402 (2015), made clear that equitable tolling is available
`
`as an exception to the statute of limitations for FTCA claims.
`
`Id. at 420 (“[W]e hold that the FTCA’s time bars are
`
`nonjurisdictional and subject to equitable tolling.”). The
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`Sixth Circuit has cautioned that courts should apply equitable
`
`tolling to FTCA claims “sparingly.” Ayers v. United States, 277
`
`F.3d 821, 828 (6th Cir. 2002). There is a presumption against
`
`equitable tolling for claims against the United States. See
`
`Irwin v. Dep’t of Veterans’ Affairs, 498 U.S. 89, 96 (1990)
`
`(“Because the time limits imposed by Congress in a suit against
`
`the Government involve a waiver of sovereign immunity, it is
`
`evident that no more favorable tolling doctrine may be employed
`
`against the Government than is employed in suits between
`
`private litigants.”); see also Schappacher v. United States,
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`475 F. Supp. 2d 749, 755 (S.D. Ohio 2007) (“[T]here is a
`
`rebuttable presumption that equitable tolling does not apply to
`
`suits against the United States”). The burden to establish
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`
`
`8
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`

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`Case 2:17-cv-02806-SHM-cgc Document 109 Filed 11/17/20 Page 9 of 19 PageID 1669
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`equitable tolling is on the party seeking it. Robertson v.
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`Simpson, 624 F.3d 781, 784 (6th Cir. 2010).
`
`When determining whether the statute of limitations for an
`
`FTCA claim has been equitably tolled, the Sixth Circuit applies
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`a case-by-case analysis that focuses on five factors. See
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`Truitt v. County of Wayne, 148 F.3d 644, 648 (6th Cir. 1998).
`
`They are: “(1) the plaintiff’s lack of notice of the filing
`
`requirement; (2) the plaintiff’s lack of constructive knowledge
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`of the filing requirement; (3) the plaintiff’s diligence in
`
`pursuing her rights; (4) an absence of prejudice to the
`
`defendant; and (5) the plaintiff’s reasonableness in remaining
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`ignorant of the particular legal requirement.” Jackson v.
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`United States, 751 F.3d 712, 719 (6th Cir. 2014). Those factors
`
`are neither comprehensive nor material in all cases, and “a
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`litigant’s failure to meet a legally-mandated deadline due to
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`unavoidab[le] ... circumstances beyond that litigant’s control
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`is often the most significant consideration in courts’
`
`analyses, rather than any particular factor of the five-part
`
`standard.” Zappone v. United States, 870 F.3d 551, 556 (6th
`
`Cir. 2017) (internal quotations omitted).
`
`A.
`
`Plaintiff was not reasonable in remaining ignorant of
`the requirement to file a timely administrative
`claim.
`
`The reasonableness of a plaintiff’s ignorance of the legal
`
`requirement to file a timely claim depends on whether plaintiff
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`
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`9
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`

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`Case 2:17-cv-02806-SHM-cgc Document 109 Filed 11/17/20 Page 10 of 19 PageID 1670
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`had the opportunity to know about the requirement, meaning
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`actual notice or constructive knowledge, and plaintiff’s
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`diligence in pursuing the claim. See Warren v. Highlands Reg’l
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`Med. Ctr., No. 7:18-cv-00101-GFVT, 2019 WL 2250632, at *3 (E.D.
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`Ky. May 24, 2019) (reasoning that constructive knowledge and
`
`lack of diligence cut against reasonableness of remaining
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`ignorant of statute of limitations); see also Kellom v. United
`
`States, No. 19-11622, 2020 WL 95805, at *6 (E.D. Mich. Jan. 8,
`
`2020) (considering the actual notice, constructive knowledge,
`
`and reasonableness factors together); Dann v. United States,
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`No. 6:17-32-DCR, 2017 WL 3873702, at *3 (E.D. Ky. Sept. 5,
`
`2017) (considering the diligence and reasonableness factors
`
`together).
`
`Before May 19, 2016, the last date for her to file an
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`administrative claim, Plaintiff had constructive knowledge that
`
`the healthcare providers were deemed federal employees.
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`Plaintiff could have discovered their status with a reasonably
`
`diligent investigation into the possible defendants, making it
`
`unreasonable that Plaintiff remained ignorant of the
`
`requirement to file a timely claim.
`
`1.
`
`Plaintiff had constructive knowledge that CCHS
`and Dr. Mullinax were deemed federal employees.
`
`Plaintiff argues that she had no constructive knowledge
`
`that CCHS and Dr. Mullinax were deemed federal employees
`
`
`
`10
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`

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`Case 2:17-cv-02806-SHM-cgc Document 109 Filed 11/17/20 Page 11 of 19 PageID 1671
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`because CCHS is and appears to be a religious facility. (Pl.’s
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`Sur-Reply, D.E. No. 93 at 1445.) Plaintiff argues that she
`
`could have reasonably concluded that CCHS would not receive
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`federal support because of the separation of church and state.
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`(Id.) Noting the lack of cases dealing specifically with
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`religious facilities, Plaintiff relies on Santos ex rel Beato
`
`v. United States, 559 F.3d 189 (3d Cir. 2009), for the
`
`proposition that the private appearance of the facility affects
`
`whether there is constructive knowledge. (Pl.’s Sur-Reply, D.E.
`
`No. 93 at 1449-50.)
`
`The court in Santos applied equitable tolling to the
`
`plaintiff’s claims. Santos, 559 F.3d at 203. The healthcare
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`provider appeared to be a “private clinic” staffed with
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`“private actors,” which did not “alert[]” the plaintiff “to the
`
`need to explore their federal employment status.” Id. at 200-
`
`01. Critical to the court’s holding, however, was the lack of
`
`notice on the healthcare provider’s website. Id. at 201. The
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`website alerted the public only that the provider received
`
`federal funding and not that the provider was deemed a federal
`
`facility. Id.
`
`The notice on CCHS’s website was different. It alerted the
`
`public that CCHS was deemed a federal facility. (See Pl.’s Sur-
`
`Reply, D.E. No. 93 at 1452.) The notice was clear that CCHS
`
`“has federal Public Health Service deemed status with respect
`
`
`
`11
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`

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`Case 2:17-cv-02806-SHM-cgc Document 109 Filed 11/17/20 Page 12 of 19 PageID 1672
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`to certain health or health-related claims, including medical
`
`malpractice claims, for itself and its covered individuals.”
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`(Def.’s Reply, D.E. 87 at 1233.) More opaque notices on
`
`healthcare provider websites have alerted plaintiffs that the
`
`provider was deemed. See A.Q.C. ex rel. Castillo v. United
`
`States, 656 F.3d 135, 145 (2d Cir. 2011) (“[C]ommon sense—let
`
`alone years of experience in medical malpractice litigation—
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`would alert a reasonable advocate to the possibility that a
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`community health clinic with the professed mission of
`
`‘improv[ing] the health status of underserved communities’”
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`would be covered by the FTCA).
`
`Although Lundy notes that the notice was not on the
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`website’s homepage and was not prominently displayed on other
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`pages, (Pl.’s Sur-Reply, D.E. No. 93 at 1452), the notice was
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`accessible to the public continuously prior to, during, and
`
`after the period available for Lundy to file her administrative
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`claim, (Def.’s Reply, D.E. 87 at 1233); see Santos, 559 F.3d at
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`203 (relying on the lack of “publicly available sources of
`
`information” to equitably toll the statute of limitations); cf.
`
`Warren, 2019 WL 2250632, at *3 (holding that, where notice was
`
`on the healthcare provider’s homepage, “the fact that such
`
`information is easily obtainable online suggests that
`
`[plaintiff’s] lack of knowledge results from a lack of
`
`
`
`12
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`Case 2:17-cv-02806-SHM-cgc Document 109 Filed 11/17/20 Page 13 of 19 PageID 1673
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`diligence, and cuts against her ‘reasonableness in remaining
`
`ignorant of [that] particular legal requirement.’”).
`
`Plaintiff argues that she had no constructive knowledge
`
`that Dr. Mullinax was deemed a federal employee. (Pl.’s Sur-
`
`Reply, D.E. No. 93 at 1453.) Plaintiff points out that she had
`
`never met Dr. Mullinax before he delivered D.B. and that,
`
`because Dr. Mullinax used a swear word during the delivery, it
`
`appeared he was not related to the religious provider CCHS.
`
`(Id.)
`
`Lundy had constructive knowledge of Dr. Mullinax’s
`
`relationship with CCHS. Lundy had seen another doctor from CCHS
`
`for her prenatal care. It would be reasonable to conclude that
`
`the doctor who delivered D.B., Dr. Mullinax, would be from the
`
`same organization as the doctor who provided Lundy’s prenatal
`
`care. (Def.’s Sur-Sur-Reply, D.E. No. 97 at 3); 2 see D.J.S.-W.
`
`by Stewart v. United States, 962 F.3d 745, 753 (3d Cir. 2020)
`
`(finding plaintiff’s counsel responsible for understanding
`
`common arrangements between doctors and healthcare provider
`
`facilities).
`
`2.
`
`Plaintiff was not reasonably diligent.
`
`Due diligence is critical to preserve an FTCA case through
`
`equitable tolling. See Irwin, 498 U.S. at 96 (“We have
`
`generally been much less forgiving in receiving late filings
`
`
`2 PageID not available for this docket entry.
`
`
`
`13
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`

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`Case 2:17-cv-02806-SHM-cgc Document 109 Filed 11/17/20 Page 14 of 19 PageID 1674
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`where the claimant failed to exercise due diligence in
`
`preserving his legal rights.”); see also Donahue v. United
`
`States, 634 F.3d 615, 629 (1st Cir. 2011) (“Due diligence is a
`
`prerequisite for equitable tolling.”). Any lack of diligence by
`
`her attorneys is imputed to Lundy. See Mason v. Dep’t of
`
`Justice, 39 F. App’x 205, 207 (6th Cir. 2002) (“[F]or purposes
`
`of determining whether equitable tolling applies, the actions
`
`of plaintiffs’ attorneys are attributable to their clients”);
`
`see also Arteaga v. United States, 711 F.3d 828, 835 (7th Cir.
`
`2013).
`
`Plaintiff argues that, because she sought and obtained
`
`counsel before the two-year statute of limitations had run, she
`
`was diligent. (Pl.’s Sur-Reply, D.E. No. 93 at 1458.)
`
`Plaintiff’s then counsel closed her file, advising that it was
`
`too early to determine what damages D.B. had suffered. (Id. at
`
`1459.) Although it may have been too early to determine
`
`damages, former counsel also had an obligation to research the
`
`possible defendants in the case. Hawver v. Nestorak, No. 13-
`
`11068, 2017 WL 2213571, at *6 (E.D. Mich. May 19, 2017)
`
`(“[D]iligence requires reasonable efforts on the part of a
`
`plaintiff to learn the legal identity and employment status of
`
`potential defendants”); see also Bazzo v. United States, 494 F.
`
`App’x 545, 548 (6th Cir. 2012) (“[Plaintiff] does not detail
`
`what steps counsel took to determine [the doctor]’s employment
`
`
`
`14
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`Case 2:17-cv-02806-SHM-cgc Document 109 Filed 11/17/20 Page 15 of 19 PageID 1675
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`status and, thus, does not explain how her affiliation with
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`[the] federally funded [healthcare provider] would have eluded
`
`a reasonably diligent party.”).
`
`When Plaintiff’s attorneys did begin to research
`
`defendants in the case, they located an address for Dr.
`
`Mullinax, which was available on the Tennessee Department of
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`Health website. (Def.’s Reply, D.E. No. 87 at 1239.)
`
`Plaintiff’s counsel used that address to send Dr. Mullinax
`
`notice of the suit on April 28, 2017. (Id.) That address was a
`
`CCHS address. (Id.) Had counsel exercised reasonable diligence
`
`earlier, the address would have alerted them that Dr. Mullinax
`
`was a CCHS employee. See D.J.S.-W. by Stewart, 962 F.3d at 753-
`
`54 (“[H]ad [plaintiff’s] counsel visited or searched the
`
`address to which his office sent the request to [the doctor],
`
`he would have discovered that it was a street address for [the
`
`deemed healthcare provider].”). Even after locating Dr.
`
`Mullinax’s CCHS address and using that address to notify him,
`
`Plaintiff waited six months before filing her administrative
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`claim. (See D.E. No. 20 at 393.)
`
`Plaintiff also argues that, because counsel worked to
`
`obtain complete copies of medical records, Plaintiff was
`
`diligent. (Pl.’s Response, D.E. No. 80 at 867-68.) Although
`
`seeking medical records was one aspect of the diligence that
`
`supported equitable tolling in Santos, seeking medical records
`
`
`
`15
`
`

`

`Case 2:17-cv-02806-SHM-cgc Document 109 Filed 11/17/20 Page 16 of 19 PageID 1676
`
`alone is insufficient where counsel did not also correspond
`
`with CCHS or visit CCHS’s facility. See Santos, 559 F.3d at 200
`
`(“[Plaintiff]’s counsel corresponded with [the healthcare
`
`provider], obtained [plaintiff]’s medical records, visited [the
`
`healthcare provider’s] facility, and retained several expert
`
`witnesses.”); see also White by White v. United States, No.
`
`1:17-cv-882, 2018 WL 9944972, at *2 (W.D. Mich. Jan. 26, 2018)
`
`(“Taking all measures necessary to bring a state malpractice
`
`claim is insufficient to show diligence in FTCA cases.”).
`
`Plaintiff waited more than a year and a half after the
`
`statute had run before filing her administrative claim. She was
`
`not reasonably diligent.
`
`B.
`
`Defendant would be prejudiced by equitably tolling
`the statute of limitations.
`
`Defendant argues that it has been prejudiced by the late
`
`filing because Lundy said that she had memory issues, which
`
`were likely exacerbated by the delay in filing. (Def.’s Reply,
`
`D.E. No. 87 at 1242.) Plaintiff argues that Defendant was not
`
`prejudiced by the delayed filing because there are no material
`
`issues Lundy failed to recall. (Pl.’s Sur-Reply, D.E. 93 at
`
`1459-60.)
`
`The possibility of litigating at all can be sufficient
`
`prejudice to preclude equitable tolling. Warren, 2019 WL
`
`2250632, at *3 (“[I]t is apparent that should the Court toll
`
`
`
`16
`
`

`

`Case 2:17-cv-02806-SHM-cgc Document 109 Filed 11/17/20 Page 17 of 19 PageID 1677
`
`the limitations period, the United States would be subject to
`
`all the expenses associated with discovery and trial
`
`preparation”); Jackson v. United States, No. 12-10124, 2013 WL
`
`361010, at *6 (E.D. Mich. Jan. 30, 2013) (“Defendant would be
`
`prejudiced were the Court to apply equitable tolling. Defendant
`
`would be required to litigate a matter that unquestionably was
`
`filed beyond the limitations period and over which Congress did
`
`not intend to waive sovereign immunity.”), aff’d, 751 F.3d 712
`
`(6th Cir. 2014).
`
`Whether Defendant would be prejudiced is not determinative
`
`because no other factors support equitable tolling. See Baldwin
`
`Cty. Welcome Ctr. v. Brown, 466 U.S. 147, 152 (1984) (“Although
`
`absence of prejudice is a factor to be considered in
`
`determining whether the doctrine of equitable tolling should
`
`apply once a factor that might justify such tolling is
`
`identified, it is not an independent basis for invoking the
`
`doctrine
`
`and
`
`sanctioning
`
`deviations
`
`from
`
`established
`
`procedures.”).
`
`C.
`
`The action against the remaining defendant is
`remanded to state court.
`
`The Court has discretion in deciding whether to exercise
`
`supplemental jurisdiction over Plaintiff’s claim against SCHCC.
`
`Plaintiff’s action is properly before this Court because the
`
`Government is a defendant. SCHCC is not deemed a federal
`
`
`
`17
`
`

`

`Case 2:17-cv-02806-SHM-cgc Document 109 Filed 11/17/20 Page 18 of 19 PageID 1678
`
`healthcare provider and did not remove based on diversity. See
`
`J.S.R. ex rel. Rojas Polanco v. Washington Hosp. Ctr. Corp.,
`
`667 F. Supp. 2d 83, 85 (D.D.C. 2009) (“The fact that Non-
`
`federal Defendants might have removed the case on the basis of
`
`diversity is irrelevant—that factual scenario simply never
`
`existed.”) (emphasis in original). Because the Court grants the
`
`Government’s Motion, no claim remains over which the Court had
`
`original jurisdiction. “[I]t is apparent that trial courts do
`
`possess some discretion to decide a pendent state law claim
`
`once the federal basis for jurisdiction is dismissed.” Province
`
`v. Cleveland Press Pub. Co., 787 F.2d 1047, 1055 (6th Cir.
`
`1986). That discretion is “minimal,” id., and “[t]his circuit
`
`has moved away from the position that the court has discretion
`
`to retain jurisdiction over a pendent state claim where the
`
`federal claim has been dismissed before trial.” Serv., Hosp.,
`
`Nursing Home and Pub. Emps. Union v Commercial Prop. Servs.,
`
`755 F.2d 499, 506 n.9 (6th Cir. 1985).
`
`The Court declines to exercise supplemental jurisdiction
`
`over Plaintiff’s claim against SCHCC. That claim is governed by
`
`Tennessee law, and Tennessee courts are better able to address
`
`it. See 28 U.S.C. § 1367(c) (“The district courts may decline
`
`to exercise supplemental jurisdiction . . . if . . . the
`
`district court has dismissed all claims over which it has
`
`original jurisdiction”); United Mine Workers, 383 U.S. at 726
`
`
`
`18
`
`

`

`Case 2:17-cv-02806-SHM-cgc Document 109 Filed 11/17/20 Page 19 of 19 PageID 1679
`
`(“[P]endent jurisdiction is a doctrine of discretion, not of
`
`plaintiff's right. . . . Needless decisions of state law should
`
`be avoided both as a matter of comity and to promote justice
`
`between the parties. . . . Certainly, if the federal claims are
`
`dismissed before trial, . . . the state claims should be
`
`dismissed as well.”).
`
`Plaintiff’s claim against SCHCC is REMANDED to the Circuit
`
`Court of Shelby County, Tennessee. See Desir v. Steward Health
`
`Care Sys., LLC, 109 F. Supp. 3d 401, 408 (D. Mass. 2015) (“The
`
`remaining claims all arise under state law and are
`
`appropriately litigated in state court. . . . Therefore, the
`
`remaining [claims] are remanded to the state court.”).
`
`V.
`
`Conclusion
`
`For the foregoing reasons, the Government’s Motion for
`
`Summary Judgment is GRANTED. Lundy’s claim against SCHCC is
`
`REMANDED to the Circuit Court of Shelby County, Tennessee.
`
`SO ORDERED this _17th_ day of November, 2020.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`/s/ Samuel H. Mays, Jr.
` SAMUEL H. MAYS, JR.
` UNITED STATES DISTRICT JUDGE
`
`
`
`19
`
`

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