In Re Fema Trailer Formaldehyde Products Liability
646 F.3d 185
5th Cir.2011Background
- Alexander, on behalf of her minor son Cooper, sued under FTCA for injuries from alleged high formaldehyde levels in a FEMA-provided emergency housing unit following Hurricanes Katrina and Rita.
- Cooper developed asthma and other symptoms after moving into the EHU in May 2006; Alexander attributed these to the EHU's smell and to formaldehyde exposure she believed emanated from the trailer.
- FEMA issued warnings and conducted studies beginning July 2006; later flyers (July 2007) and CDC report (July 2008) addressed formaldehyde risks and relocation options.
- Alexander filed an administrative FTCA claim on Cooper’s behalf on July 10, 2008, while the administrative disposition was pending; she then filed a district court complaint seven months later.
- The district court dismissed for lack of subject matter jurisdiction, holding the claim time-barred; the court of appeals affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| When does FTCA accrual occur for this claim? | Alexander asserts discovery of cause postponed accrual after May 2006. | Becker argues accrual occurred at knowledge of injury and its cause, May 2006. | Accrual occurs when injury and its cause are known; May 2006 suffices. |
| Should the discovery rule toll accrual here? | Discovery in July 2007 delayed accrual. | Discovery rule not applicable; cause readily identifiable from the EHU smell. | Discovery rule does not apply. |
| Is equitable tolling available to Alexander? | Reliance on government representative’s assurances supports tolling. | Sovereign-immunity waiver is jurisdictional and not amenable to equitable tolling. | Equitable tolling does not apply. |
| Does the continuing tort doctrine apply to FTCA accrual here? | If applicable, accrual would occur after ongoing wrongful conduct ceased. | FTCA accrual is based on awareness of injury; continuing-tort does not apply. | Continuing-tort doctrine does not apply to these FTCA claims. |
Key Cases Cited
- United States v. Kubrick, 444 U.S. 111 (Supreme Court 1979) (discovery rule: accrual when injury and its cause are known; causation may be controlled by defendant)
- Johnson v. United States, 460 F.3d 616 (5th Cir. 2006) (Kubrick rule adopted; discovery rule timing)
- Ramming v. United States, 281 F.3d 158 (5th Cir. 2001) (burden of proof on jurisdiction; limitations are jurisdictional)
- Beech v. United States, 345 F.2d 872 (5th Cir. 1965) (two-year FTCA limitations; accrual related to injury timing)
- Gen. Universal Sys., Inc. v. HAL, Inc., 500 F.3d 444 (5th Cir. 2007) (continuing-tort doctrine consideration in FTCA)