`
`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,
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`Plaintiff,
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`
`v.
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`SHELBY COUNTY HEALTH CARE
`CORPORATION AND UNITED STATES
`OF AMERICA,
`
`
`Defendants.
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`)
`)
`)
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`)
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`) No. 17-cv-02806-SHM-cgc
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`
`
`ORDER GRANTING UNITED STATES OF AMERICA’S MOTION FOR SUMMARY
`JUDGMENT
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`Plaintiff brings this medical malpractice action against
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`the United States of America as substitute party (the
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`“Government”) and Shelby County Health Care Corporation
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`(“SCHCC”). (D.E. No. 38.) Plaintiff sues the Government under
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`the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) and 2671, et
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`seq., (the “FTCA”). Plaintiff sues SCHCC for medical
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`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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`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.
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`I.
`
`Background
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`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
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`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.
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`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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`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.)
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`The Government filed a response on September 27, 2017. (D.E.
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`No. 4-1 at 327-28.) In its response, the Government said it had
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`not yet determined whether CCHS and the doctors were federal
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`employees when they cared for Lundy and D.B. and, as a result,
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`did not yet know whether federal law would require the
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`Government to enter a substitution of party. (Id.) On October
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`13, 2017, while her case was pending in state court, Lundy
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`filed an FTCA administrative claim against the Government.
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`(D.E. No. 20 at 393.)
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`CCHS removed to this Court on November 3, 2017, under 42
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`U.S.C. § 233(l)(2). (D.E. No. 4.) On December 6, 2017, after
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`determining that CCHS and the doctors were federal employees at
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`all relevant times, the Government moved to substitute itself
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`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
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`11, 2017. (D.E. No. 15.) The next day the Government filed a
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`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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`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
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`a
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`final
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`determination denying her claim. (Id. at 427.) The Court
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`granted Lundy’s motion. (D.E. No. 36.) Lundy filed her Amended
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`Complaint on July 19, 2018, naming the Government and SCHCC as
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`defendants. (D.E. No. 38.)
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`On October 30, 2018, the Government filed a Motion to
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`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).
`
`
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`The Court denied the Government’s motion because Lundy’s
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`initial complaint had been filed before the deadline imposed by
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`the statute of repose, the initial complaint had been dismissed
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`for reasons not extinguishing her right of action, and the
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`amended complaint had been filed within one year of the order
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`of dismissal, which satisfied Tennessee’s savings statute.
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`(D.E. No. 61 at 740-41.)
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`On May 28, 2020, the Government filed the instant Motion.
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`(D.E. No. 76.) The Government argues that Lundy failed to
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`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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`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
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`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
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`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.)
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`II. Jurisdiction
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`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
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`actions arising under the Constitution, laws, or treaties of
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`the United States.” This action was removed under 42 U.S.C. §
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`233(l)(2), and the Court has original and exclusive
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`jurisdiction under 42 U.S.C. § 233(g)(1)(A).
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`The Court has supplemental jurisdiction over Lundy’s claim
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`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
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`against the Government. United Mine Workers of Am. v. Gibbs,
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`5
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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).
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`III. Standard of Review
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`Under Federal Rule of Civil Procedure 56, on motion of a
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`party, the court “shall grant summary judgment if the movant
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`shows that there is no genuine dispute as to any material fact
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`and the movant is entitled to judgment as a matter of law.”
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`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
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`essential to that party’s case, and on which that party will
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`bear the burden of proof at trial.’” George v. Youngstown State
`
`University, 966 F.3d 446, 458 (6th Cir. 2020) (quoting Celotex
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`Corp. v. Catrett, 477 U.S. 317, 322–23 (1986)).
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`The non-moving party has the duty to point out specific
`
`evidence in the record sufficient to justify a jury decision in
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`her favor. See Fed. R. Civ. P. 56(c)(1); InterRoyal Corp. v.
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`Sponseller, 889 F.2d 108, 111 (6th Cir. 1989). When confronted
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`with a properly supported motion for summary judgment, the non-
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`moving party must set forth specific facts showing that there
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`is a genuine dispute for trial. See Fed. R. Civ. P. 56(c). A
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`genuine dispute for trial exists if the evidence is “‘such that
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`a reasonable jury could return a verdict for the nonmoving
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`party.’” See Wasek v. Arrow Energy Servs., 682 F.3d 463, 467
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`6
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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
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`U.S. 242, 248 (1986)). “[I]n order to survive a summary
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`judgment motion, the non-moving party ‘must do more than simply
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`show that there is some metaphysical doubt as to the material
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`facts.’” Lossia v. Flagstar Bancorp, Inc., 895 F.3d 423, 428
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`(6th Cir. 2018) (quoting Matsushita Elec. Indus. Co. v. Zenith
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`Radio Corp., 475 U.S. 574, 586 (1986)).
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`Although summary judgment must be used carefully, it “is
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`an integral part of the Federal Rules as a whole, which are
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`designed to secure the just, speedy, and inexpensive
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`determination of every action[,] rather than a disfavored
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`procedural shortcut.” FDIC v. Jeff Miller Stables, 573 F.3d
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`289, 294 (6th Cir. 2009) (internal quotation marks and
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`citations omitted).
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`IV. Analysis
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`The FTCA is the exclusive remedy for victims of the torts
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`of United States employees. 28 U.S.C. § 2679(a); Himes v.
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`United States, 645 F.3d 771, 776 (6th Cir. 2011). As a
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`condition of this waiver of sovereign immunity, Congress has
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`imposed a statute of limitations for FTCA claims. United States
`
`v. Kubrick, 444 U.S. 111, 117-18 (1979); see 28 U.S.C. §
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`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
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`Cir. 2004) (“[T]he statute of limitations in § 2401(b) must be
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`7
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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
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`and conditions upon which the Government consents to be sued
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`must be strictly observed and exceptions thereto are not to be
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`implied.”) (internal quotations omitted).
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`The Supreme Court, in United States v. Kwai Fun Wong, 575
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`U.S. 402 (2015), made clear that equitable tolling is available
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`as an exception to the statute of limitations for FTCA claims.
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`Id. at 420 (“[W]e hold that the FTCA’s time bars are
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`nonjurisdictional and subject to equitable tolling.”). The
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`Sixth Circuit has cautioned that courts should apply equitable
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`tolling to FTCA claims “sparingly.” Ayers v. United States, 277
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`F.3d 821, 828 (6th Cir. 2002). There is a presumption against
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`equitable tolling for claims against the United States. See
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`Irwin v. Dep’t of Veterans’ Affairs, 498 U.S. 89, 96 (1990)
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`(“Because the time limits imposed by Congress in a suit against
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`the Government involve a waiver of sovereign immunity, it is
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`evident that no more favorable tolling doctrine may be employed
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`against the Government than is employed in suits between
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`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
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`rebuttable presumption that equitable tolling does not apply to
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`suits against the United States”). The burden to establish
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`8
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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).
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`When determining whether the statute of limitations for an
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`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).
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`They are: “(1) the plaintiff’s lack of notice of the filing
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`requirement; (2) the plaintiff’s lack of constructive knowledge
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`of the filing requirement; (3) the plaintiff’s diligence in
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`pursuing her rights; (4) an absence of prejudice to the
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`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
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`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’
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`analyses, rather than any particular factor of the five-part
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`standard.” Zappone v. United States, 870 F.3d 551, 556 (6th
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`Cir. 2017) (internal quotations omitted).
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`A.
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`Plaintiff was not reasonable in remaining ignorant of
`the requirement to file a timely administrative
`claim.
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`The reasonableness of a plaintiff’s ignorance of the legal
`
`requirement to file a timely claim depends on whether plaintiff
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`9
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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
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`lack of diligence cut against reasonableness of remaining
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`ignorant of statute of limitations); see also Kellom v. United
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`States, No. 19-11622, 2020 WL 95805, at *6 (E.D. Mich. Jan. 8,
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`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,
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`2017) (considering the diligence and reasonableness factors
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`together).
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`Before May 19, 2016, the last date for her to file an
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`administrative claim, Plaintiff had constructive knowledge that
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`the healthcare providers were deemed federal employees.
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`Plaintiff could have discovered their status with a reasonably
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`diligent investigation into the possible defendants, making it
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`unreasonable that Plaintiff remained ignorant of the
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`requirement to file a timely claim.
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`1.
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`Plaintiff had constructive knowledge that CCHS
`and Dr. Mullinax were deemed federal employees.
`
`Plaintiff argues that she had no constructive knowledge
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`that CCHS and Dr. Mullinax were deemed federal employees
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`
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`10
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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
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`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
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`v. United States, 559 F.3d 189 (3d Cir. 2009), for the
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`proposition that the private appearance of the facility affects
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`whether there is constructive knowledge. (Pl.’s Sur-Reply, D.E.
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`No. 93 at 1449-50.)
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`The court in Santos applied equitable tolling to the
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`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
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`need to explore their federal employment status.” Id. at 200-
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`01. Critical to the court’s holding, however, was the lack of
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`notice on the healthcare provider’s website. Id. at 201. The
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`website alerted the public only that the provider received
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`federal funding and not that the provider was deemed a federal
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`facility. Id.
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`The notice on CCHS’s website was different. It alerted the
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`public that CCHS was deemed a federal facility. (See Pl.’s Sur-
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`Reply, D.E. No. 93 at 1452.) The notice was clear that CCHS
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`“has federal Public Health Service deemed status with respect
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`11
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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
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`malpractice claims, for itself and its covered individuals.”
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`(Def.’s Reply, D.E. 87 at 1233.) More opaque notices on
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`healthcare provider websites have alerted plaintiffs that the
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`provider was deemed. See A.Q.C. ex rel. Castillo v. United
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`States, 656 F.3d 135, 145 (2d Cir. 2011) (“[C]ommon sense—let
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`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
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`‘improv[ing] the health status of underserved communities’”
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`would be covered by the FTCA).
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`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
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`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
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`information” to equitably toll the statute of limitations); cf.
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`Warren, 2019 WL 2250632, at *3 (holding that, where notice was
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`on the healthcare provider’s homepage, “the fact that such
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`information is easily obtainable online suggests that
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`[plaintiff’s] lack of knowledge results from a lack of
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`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
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`ignorant of [that] particular legal requirement.’”).
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`Plaintiff argues that she had no constructive knowledge
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`that Dr. Mullinax was deemed a federal employee. (Pl.’s Sur-
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`Reply, D.E. No. 93 at 1453.) Plaintiff points out that she had
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`never met Dr. Mullinax before he delivered D.B. and that,
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`because Dr. Mullinax used a swear word during the delivery, it
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`appeared he was not related to the religious provider CCHS.
`
`(Id.)
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`Lundy had constructive knowledge of Dr. Mullinax’s
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`relationship with CCHS. Lundy had seen another doctor from CCHS
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`for her prenatal care. It would be reasonable to conclude that
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`the doctor who delivered D.B., Dr. Mullinax, would be from the
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`same organization as the doctor who provided Lundy’s prenatal
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`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)
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`(finding plaintiff’s counsel responsible for understanding
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`common arrangements between doctors and healthcare provider
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`facilities).
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`2.
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`Plaintiff was not reasonably diligent.
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`Due diligence is critical to preserve an FTCA case through
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`equitable tolling. See Irwin, 498 U.S. at 96 (“We have
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`generally been much less forgiving in receiving late filings
`
`
`2 PageID not available for this docket entry.
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`13
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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
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`preserving his legal rights.”); see also Donahue v. United
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`States, 634 F.3d 615, 629 (1st Cir. 2011) (“Due diligence is a
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`prerequisite for equitable tolling.”). Any lack of diligence by
`
`her attorneys is imputed to Lundy. See Mason v. Dep’t of
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`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.
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`2013).
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`Plaintiff argues that, because she sought and obtained
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`counsel before the two-year statute of limitations had run, she
`
`was diligent. (Pl.’s Sur-Reply, D.E. No. 93 at 1458.)
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`Plaintiff’s then counsel closed her file, advising that it was
`
`too early to determine what damages D.B. had suffered. (Id. at
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`1459.) Although it may have been too early to determine
`
`damages, former counsel also had an obligation to research the
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`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
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`potential defendants”); see also Bazzo v. United States, 494 F.
`
`App’x 545, 548 (6th Cir. 2012) (“[Plaintiff] does not detail
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`what steps counsel took to determine [the doctor]’s employment
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`
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`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
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`a reasonably diligent party.”).
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`When Plaintiff’s attorneys did begin to research
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`defendants in the case, they located an address for Dr.
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`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
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`notice of the suit on April 28, 2017. (Id.) That address was a
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`CCHS address. (Id.) Had counsel exercised reasonable diligence
`
`earlier, the address would have alerted them that Dr. Mullinax
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`was a CCHS employee. See D.J.S.-W. by Stewart, 962 F.3d at 753-
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`54 (“[H]ad [plaintiff’s] counsel visited or searched the
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`address to which his office sent the request to [the doctor],
`
`he would have discovered that it was a street address for [the
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`deemed healthcare provider].”). Even after locating Dr.
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`Mullinax’s CCHS address and using that address to notify him,
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`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
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`obtain complete copies of medical records, Plaintiff was
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`diligent. (Pl.’s Response, D.E. No. 80 at 867-68.) Although
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`seeking medical records was one aspect of the diligence that
`
`supported equitable tolling in Santos, seeking medical records
`
`
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`15
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`Case 2:17-cv-02806-SHM-cgc Document 109 Filed 11/17/20 Page 16 of 19 PageID 1676
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`alone is insufficient where counsel did not also correspond
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`with CCHS or visit CCHS’s facility. See Santos, 559 F.3d at 200
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`(“[Plaintiff]’s counsel corresponded with [the healthcare
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`provider], obtained [plaintiff]’s medical records, visited [the
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`healthcare provider’s] facility, and retained several expert
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`witnesses.”); see also White by White v. United States, No.
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`1:17-cv-882, 2018 WL 9944972, at *2 (W.D. Mich. Jan. 26, 2018)
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`(“Taking all measures necessary to bring a state malpractice
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`claim is insufficient to show diligence in FTCA cases.”).
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`Plaintiff waited more than a year and a half after the
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`statute had run before filing her administrative claim. She was
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`not reasonably diligent.
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`B.
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`Defendant would be prejudiced by equitably tolling
`the statute of limitations.
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`Defendant argues that it has been prejudiced by the late
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`filing because Lundy said that she had memory issues, which
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`were likely exacerbated by the delay in filing. (Def.’s Reply,
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`D.E. No. 87 at 1242.) Plaintiff argues that Defendant was not
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`prejudiced by the delayed filing because there are no material
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`issues Lundy failed to recall. (Pl.’s Sur-Reply, D.E. 93 at
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`1459-60.)
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`The possibility of litigating at all can be sufficient
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`prejudice to preclude equitable tolling. Warren, 2019 WL
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`2250632, at *3 (“[I]t is apparent that should the Court toll
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`
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`16
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`Case 2:17-cv-02806-SHM-cgc Document 109 Filed 11/17/20 Page 17 of 19 PageID 1677
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`the limitations period, the United States would be subject to
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`all the expenses associated with discovery and trial
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`preparation”); Jackson v. United States, No. 12-10124, 2013 WL
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`361010, at *6 (E.D. Mich. Jan. 30, 2013) (“Defendant would be
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`prejudiced were the Court to apply equitable tolling. Defendant
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`would be required to litigate a matter that unquestionably was
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`filed beyond the limitations period and over which Congress did
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`not intend to waive sovereign immunity.”), aff’d, 751 F.3d 712
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`(6th Cir. 2014).
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`Whether Defendant would be prejudiced is not determinative
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`because no other factors support equitable tolling. See Baldwin
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`Cty. Welcome Ctr. v. Brown, 466 U.S. 147, 152 (1984) (“Although
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`absence of prejudice is a factor to be considered in
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`determining whether the doctrine of equitable tolling should
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`apply once a factor that might justify such tolling is
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`identified, it is not an independent basis for invoking the
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`doctrine
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`and
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`sanctioning
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`deviations
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`from
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`established
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`procedures.”).
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`C.
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`The action against the remaining defendant is
`remanded to state court.
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`The Court has discretion in deciding whether to exercise
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`supplemental jurisdiction over Plaintiff’s claim against SCHCC.
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`Plaintiff’s action is properly before this Court because the
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`Government is a defendant. SCHCC is not deemed a federal
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`
`
`17
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`Case 2:17-cv-02806-SHM-cgc Document 109 Filed 11/17/20 Page 18 of 19 PageID 1678
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`healthcare provider and did not remove based on diversity. See
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`J.S.R. ex rel. Rojas Polanco v. Washington Hosp. Ctr. Corp.,
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`667 F. Supp. 2d 83, 85 (D.D.C. 2009) (“The fact that Non-
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`federal Defendants might have removed the case on the basis of
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`diversity is irrelevant—that factual scenario simply never
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`existed.”) (emphasis in original). Because the Court grants the
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`Government’s Motion, no claim remains over which the Court had
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`original jurisdiction. “[I]t is apparent that trial courts do
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`possess some discretion to decide a pendent state law claim
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`once the federal basis for jurisdiction is dismissed.” Province
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`v. Cleveland Press Pub. Co., 787 F.2d 1047, 1055 (6th Cir.
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`1986). That discretion is “minimal,” id., and “[t]his circuit
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`has moved away from the position that the court has discretion
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`to retain jurisdiction over a pendent state claim where the
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`federal claim has been dismissed before trial.” Serv., Hosp.,
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`Nursing Home and Pub. Emps. Union v Commercial Prop. Servs.,
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`755 F.2d 499, 506 n.9 (6th Cir. 1985).
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`The Court declines to exercise supplemental jurisdiction
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`over Plaintiff’s claim against SCHCC. That claim is governed by
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`Tennessee law, and Tennessee courts are better able to address
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`it. See 28 U.S.C. § 1367(c) (“The district courts may decline
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`to exercise supplemental jurisdiction . . . if . . . the
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`district court has dismissed all claims over which it has
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`original jurisdiction”); United Mine Workers, 383 U.S. at 726
`
`
`
`18
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`
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`Case 2:17-cv-02806-SHM-cgc Document 109 Filed 11/17/20 Page 19 of 19 PageID 1679
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`(“[P]endent jurisdiction is a doctrine of discretion, not of
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`plaintiff's right. . . . Needless decisions of state law should
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`be avoided both as a matter of comity and to promote justice
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`between the parties. . . . Certainly, if the federal claims are
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`dismissed before trial, . . . the state claims should be
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`dismissed as well.”).
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`Plaintiff’s claim against SCHCC is REMANDED to the Circuit
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`Court of Shelby County, Tennessee. See Desir v. Steward Health
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`Care Sys., LLC, 109 F. Supp. 3d 401, 408 (D. Mass. 2015) (“The
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`remaining claims all arise under state law and are
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`appropriately litigated in state court. . . . Therefore, the
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`remaining [claims] are remanded to the state court.”).
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`V.
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`Conclusion
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`For the foregoing reasons, the Government’s Motion for
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`Summary Judgment is GRANTED. Lundy’s claim against SCHCC is
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`REMANDED to the Circuit Court of Shelby County, Tennessee.
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`SO ORDERED this _17th_ day of November, 2020.
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`
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`/s/ Samuel H. Mays, Jr.
` SAMUEL H. MAYS, JR.
` UNITED STATES DISTRICT JUDGE
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`19
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`