In Re Fema Trailer Formaldehyde Products Liability
646 F.3d 185
5th Cir.2011Background
- Alexander sues under FTCA on behalf of her minor son Cooper for injuries from exposure to formaldehyde in FEMA EHUs after Katrina/Rita.
- EHUs were new, mass-produced; Cooper's health deteriorated starting May 2006 with asthma, irritation, and other symptoms.
- Alexander knew the smell came from the EHU and that Cooper was injured, and sought no further action initially.
- FEMA issued warnings and conducted studies on formaldehyde in 2006–2008; July 2007 and July 2006 flyers warned of risks.
- Alexander filed an administrative FTCA claim in July 2008; district court dismissed for lack of subject matter jurisdiction as untimely.
- Fifth Circuit affirmed, holding accrual occurred in May 2006, barring the 2008 administrative claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did accrual under Kubrick apply to FTCA claim? | Alexander argues discovery rule delayed accrual until discovery of cause. | Government contends accrual when injury and cause are known, not delayed. | Discovery rule not apply; accrual May 2006. |
| Does equitable tolling apply to FTCA limitations? | Alexander relied on government reps, needs tolling due to reliance. | Sovereign-immunity waiver limitations are jurisdictional; no tolling allowed. | Equitable tolling does not apply. |
| Does continuing tort doctrine apply to FTCA here? | Continuing tort could delay accrual because acts continued. | FTCA accrual is based on awareness of injury; continuing tort unlikely to apply. | Continuing tort doctrine not applicable. |
Key Cases Cited
- Kubrick, 444 U.S. 111 (U.S. 1979) (discovery rule for causation in FTCA claims)
- Johnson v. United States, 460 F.3d 616 (5th Cir. 2006) (knowledge of injury and its cause triggers accrual)
- Ramming v. United States, 281 F.3d 158 (5th Cir. 2001) (burden of proving jurisdiction on Rule 12(b)(1) motion)
- Beek v. United States, 345 F.2d 872 (5th Cir. 1965) (Beek? (Be Beech) accrual timing when trauma coincides with negligent act)
- Flory v. United States, 138 F.3d 157 (5th Cir. 1998) (FTCA accrual limitations are jurisdictional)
- Gen. Universal Sys., Inc. v. HAL, Inc., 500 F.3d 444 (5th Cir. 2007) (continuing tort doctrine in FTCA context)
- In re FEMA Trailer Form. Prod. Liab. Litig., 646 F.3d 185 (5th Cir. 2011) (FTCA accrual and limitations analysis in FEMA trailer case)