Allen v. United States, 4:16-cv-00607

Kenneth Allen, Sr. underwent a thoracentesis at the John Cochran V.A. Medical Center and died on May 8, 1996; family was initially told death was from natural causes.
Plaintiff (Malinda Allen, substituted after original plaintiff’s death) learned in December 2013 that the death allegedly resulted from negligent performance of the procedure by a VA physician.
Allen submitted an FTCA administrative claim in August 2014; it was denied in February 2015; a May 2015 request for reconsideration went unanswered.
Plaintiff filed this FTCA suit against the United States on April 29, 2016, alleging medical malpractice by a federal employee.
Defendant moved to dismiss under Rules 12(b)(1) and 12(b)(6), arguing Missouri’s ten-year statute of repose (Mo. Rev. Stat. § 516.105(3)) bars the claim; the court found the repose statute substantive and dispositive and dismissed for lack of subject-matter jurisdiction.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Missouri’s 10-year statute (§ 516.105(3)) bars an FTCA medical malpractice claim	FTCA’s federal two-year limitation and equitable tolling govern accrual and preempt the state repose	Missouri’s ten-year statute of repose is substantive and, when incorporated, bars FTCA claims filed after 10 years	Court held § 516.105(3) is substantive; claim barred and court lacks subject-matter jurisdiction
Which law defines substantive liability vs. procedural limitations for FTCA claims	FTCA incorporates state substantive law but federal law controls limitation period and accrual	Same characterization but argues state repose is substantive so applies to FTCA	Court agreed: state substantive law governs liability while FTCA’s procedural two-year period remains, but a state repose can preclude liability altogether

Titus v. Sullivan, 4 F.3d 590 (8th Cir.) (standards for facial vs. factual 12(b)(1) challenges)
Bell Atl. Corp. v. Twombly, 550 U.S. 544 (pleading standard requiring plausibility)
Reilly v. United States, 513 F.2d 147 (8th Cir.) (FTCA accrual in malpractice: discovery rule)
Mader v. United States, 654 F.3d 794 (8th Cir.) (FTCA as limited waiver of sovereign immunity)
Sorace v. United States, 788 F.3d 758 (8th Cir.) (state law supplies substantive FTCA liability)
Nesladek v. Ford Motor Co., 46 F.3d 734 (8th Cir.) (distinguishing statutes of limitation from statutes of repose)
Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350 (Supreme Court) (courts apply state statute of limitations only when Congress has not provided one)
Augutis v. United States, 732 F.3d 749 (7th Cir.) (state statute of repose held to bar FTCA malpractice claim)