D.J.S.-W., a minor, by her natural mother and legal guardian, D‘ERICKA STEWART, Appellant v. UNITED STATES OF AMERICA
No. 19-2434
UNITED STATES COURT
Opinion Filed: June 22, 2020
PRECEDENTIAL. On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. No. 2-17-cv-01335). Chief District Judge: Honorable Mark R. Hornak. Submitted Pursuant to Third Circuit L.A.R. 34.1(a) April 22, 2020.
Vincent A. Coppola
Pribanic Pribanic & Archinaco
513 Court Place, First Floor
Pittsburgh, PA 15219
Counsel for Appellant
Scott W. Brady, United States Attorney
Haley F. Warden-Rodgers
Laura S. Irwin
Office of United States Attorney
700 Grant Street, Suite 4000
Pittsburgh, PA 15219
Counsel for Appellee
OPINION OF THE COURT
FISHER, Circuit Judge.
D.J.S.-W., a young girl who sustained a shoulder injury during birth, argues that the limitations period for filing her medical malpractice claim under the Federal Tort Claims Act (FTCA),
I.
In late 2009, D.J.S.-W. was born at Sharon Regional Health Center (Sharon Hospital) in Mercer County, Pennsylvania, under the care of John Gallagher, M.D. During delivery, D.J.S.-W. sustained a brachial plexus injury, which allegedly caused permanent damage to her right shoulder and arm.
In the next few months, D.J.S.-W.‘s mother retained counsel to pursue D.J.S.-W.‘s potential malpractice claims against Sharon Hospital and Dr. Gallagher. In 2010 and 2011, in preparing to file D.J.S.-W.‘s case, counsel requested medical and billing records from Sharon Hospital on three occasions. During this time, counsel also sent one request for medical records directly to Dr. Gallagher. All four requests were limited temporally “to those records pertinent to the time when Dr. Gallagher‘s alleged negligence occurred the delivery of [D.J.S.-W.] . . . and the 12 hours prior to the delivery, the time at which [D.J.S.-W.‘s mother] presented to Sharon . . . Hospital to give birth.” App. 204 ¶ 12. Beyond these record requests, counsel also visited Sharon Hospital‘s website, which listed Dr. Gallagher as an Obstetrics & Gynecology doctor, and conducted a Google search of both Sharon Hospital and Dr. Gallagher.
D.J.S.-W.‘s counsel believed that Dr. Gallagher was privately employed because Dr. Gallagher delivered D.J.S.-W. at Sharon Hospital—an entity against which counsel had previously litigated and knew to be private—and was listed on the Sharon Hospital website. Despite his investigatory efforts in preparing to file her case, D.J.S.-W.‘s counsel did not discover that at the time of D.J.S.-W.‘s birth, Dr. Gallagher was employed by Primary Health Network, a “deemed” federal entity eligible for FTCA malpractice coverage. Under federal law, entities that receive federal funding to serve medically underserved populations, as well as “health practitioners that such entities employ[,] ‘shall be deemed to be [employees] of the Public Health Service.‘” Lomando v. United States, 667 F.3d 363, 371 (3d Cir. 2011) (second alteration in original) (quoting
During the preparation of D.J.S.-W.‘s case, counsel did not visit or call Sharon Hospital, Dr. Gallagher, or any Primary Health Network office. He did not search the Health Resources and Services Administration database, which would have revealed
Furthermore, counsel never requested medical records from Primary Health Network, nor did he ask for records from any healthcare provider or facility that identified a responsive date range earlier than D.J.S.-W.‘s birth in November 2009. Records from before D.J.S.-W.‘s birth, however, show that at the time of her birth, her mother had been a patient of Dr. Gallagher‘s for over ten years and had visited the Primary Health Network office in Sharon, Pennsylvania. Of the medical records counsel did ask for, he sent one request directly to “John Gallagher, M.D., One Dayton Way, Suite 6, Sharon, PA 16146” the street address of a Primary Health Network office. App. 236. And of the records Dr. Gallagher sent in response to counsel‘s request, two pages included the words “Primary Health Network” at the bottom of the page immediately above Dr. Gallagher‘s name and mailing address. D.J.S.-W. v. United States, No. 2:17-cv-01335, 2019 WL 1894707, at *3, *11 (W.D. Pa. Apr. 29, 2019).
In late 2016—nearly seven years after the allegedly negligent delivery—D.J.S.-W.‘s mother filed suit on D.J.S.-W.‘s behalf against Dr. Gallagher and Sharon Hospital in Pennsylvania state court. Despite Pennsylvania‘s two-year limitation for bringing personal injury actions, see
Soon after the case was filed, the Government removed it to the U.S. District Court for the Western District of Pennsylvania and moved to substitute the United States for Dr. Gallagher because he was working within the scope of his federal employment with Primary Health Network at the time of the allegedly negligent delivery. The District Court granted the motion for substitution, at which point the United States moved to dismiss on the basis that D.J.S.-W. failed to timely exhaust her administrative remedies as required under the FTCA. The District Court then dismissed the case against the United States without prejudice and remanded the case against Sharon Hospital for lack of subject-matter jurisdiction.1
After exhausting administrative remedies,2 D.J.S.-W.‘s counsel filed anew D.J.S.-W.‘s claim against the United States in the District Court. The United States moved to dismiss, arguing that her action was untimely under the FTCA. The District Court denied the motion, ordering the parties to engage in limited discovery regarding the FTCA‘s statute of limitations and equitable tolling.
At the close of discovery, the United States moved for summary judgment, again arguing that D.J.S.-W.‘s suit was
II.
“As a sovereign, the United States is immune from suit unless it consents to be sued.” Sconiers v. United States, 896 F.3d 595, 597 (3d Cir. 2018) (quoting White-Squire v. U.S. Postal Serv., 592 F.3d 453, 456 (3d Cir. 2010)). The FTCA represents “a limited waiver of th[at] sovereign immunity,” Santos ex rel. Beato v. United States, 559 F.3d 189, 193 (3d Cir. 2009), providing that “[t]he United States shall be liable, respecting . . . [certain] tort claims, in the same manner and to the same extent as a private individual under like circumstances,”
Bringing a claim under the FTCA requires following various procedural requirements. The FTCA dictates that “a tort claim against the United States ‘shall be forever barred’ unless it is presented to the ‘appropriate Federal agency within two years after [it] accrues’ and then brought to federal court ‘within six months’ after the agency acts on the claim.” United States v. Wong, 575 U.S. 402, 405 (2015) (quoting
Here, both parties agree that D.J.S.-W.‘s case—which was first filed in state court almost seven years after her birth, the date on which her claim accrued—was not timely presented to the appropriate agency in accordance with these requirements. And although D.J.S.-W.‘s counsel deliberately delayed filing her case in reliance on Pennsylvania‘s tolling statute, that law cannot save D.J.S.-W.‘s untimely claim against the United States because “state-law tolling statutes do not apply to the FTCA‘s limitations period.” Santos, 559 F.3d at 193. Thus, the sole issue on appeal is whether D.J.S.-W. has shown that she is entitled to the extraordinary remedy of equitable tolling of the FTCA‘s limitations period.4 We first clarify the test that a litigant seeking equitable tolling must satisfy. We then explain why D.J.S.-W. fails to meet that standard in this case.
A. Our Equitable-Tolling Test
It is well established that a court may “rescue a claim otherwise barred as untimely by a statute of limitations when a
Our Court uses the term “equitable tolling” broadly to encompass several situations under which a statute of limitations period may be tolled on equitable grounds. We have said that:
[T]here are three principal, though not exclusive, situations in which equitable tolling may be appropriate: (1) where the defendant has actively misled the plaintiff respecting the plaintiff‘s cause of action; (2) where the plaintiff in some extraordinary way has been prevented from asserting . . . her rights; or (3) where the plaintiff has timely asserted . . . her rights mistakenly in the wrong forum.5
Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1387 (3d Cir. 1994), abrogated on other grounds by Rotkiske v. Klemm, 890 F.3d 422, 428 (3d Cir. 2018) (en banc), aff‘d, 140 S. Ct. 355 (2019). In addition, a litigant “will not receive the benefit of” tolling in any of these situations “unless she exercised due diligence in pursuing and preserving her claim.” Santos, 559 F.3d at 197. That is, tolling will never extend to “a garden variety claim of excusable neglect, such as a simple miscalculation that leads a lawyer to miss a filing deadline.” Holland v. Florida, 560 U.S. 631, 651-52 (2010) (internal quotation marks and citations omitted).
The second tolling situation is at issue here—D.J.S.-W. argues that she encountered extraordinary circumstances that prevented her from timely filing.6 Thus, to be entitled to equitable tolling, D.J.S.-W. must show that she “in some extraordinary way has been prevented from asserting . . . her rights,” and that she “exercised
Nevertheless, because the Holland test is the same as our test for assessing equitable tolling in the nonhabeas context, Menominee is instructive. In particular, the Court made two observations that help us more clearly define the contours of our test.
First, it stated that the two requirements—extraordinary circumstances and diligence—are “distinct elements,” both of which must be satisfied for a litigant to be eligible for tolling. Id. at 756. Treating the two requirements as separate prongs, the Court said, was consistent with its prior language describing the components as “elements,” id. (citing Pace, 544 U.S. at 418), and its practice of denying “requests for equitable tolling where a litigant failed to satisfy one without addressing whether he satisfied the other,” id. (citing Lawrence v. Florida, 549 U.S. 327, 336-37 (2007), and Pace, 544 U.S. at 418).
We agree with this characterization of the equitable-tolling test. Although our prior case law may appear to have blended the two components, this is merely a reflection of the fact that, in practice, the two elements often go hand in hand. For example, if no extraordinary circumstances stood in the litigant‘s way, but she nevertheless failed to timely file, it is likely that she did not diligently investigate and pursue her claim. See, e.g., id. at 756-57 (declining to equitably toll limitations period because Tribe‘s failure to timely present its claims was caused “not by an obstacle outside its control, but by [its] mistaken belief that presentment was unneeded“); Hedges v. United States, 404 F.3d 744, 752-54 (3d Cir. 2005) (declining to equitably toll limitations period because plaintiff‘s pro se status and mental incompetence were not extraordinary circumstances and “[d]iligent research would likely have revealed . . . the existence” of his claim). Similarly, if, despite pursuing her claim diligently, a litigant was still unable to timely file, it is likely that some extraordinary circumstance stood in her way and prevented her from doing so. See Santos, 559 F.3d at 198-203 (holding plaintiff entitled to equitable tolling when she “diligently and vigorously pursued her claim” and, yet, she was unable to ascertain hospital‘s federal status). Today, we
Second, the Supreme Court also “reaffirm[ed]” that the extraordinary-circumstances element “is met only where the circumstances that caused a litigant‘s delay are both extraordinary and beyond [her] control.” Menominee, 136 S. Ct. at 756. We agree with this description of the extraordinary-circumstances prong. Indeed, because equitable tolling is an extreme remedy that we extend “only sparingly,” Irwin v. Dep‘t of Veterans Affairs, 498 U.S. 89, 96 (1990), it “would make little sense if [it] were available when a litigant was responsible for [her] own delay,” Menominee, 136 S. Ct. at 756. In addition, because the extraordinary-circumstances and diligence components are distinct elements, “the diligence prong already covers those affairs within the litigant‘s control” and the “extraordinary-circumstances prong, by contrast, is meant to cover matters outside [her] control.” Id. Accordingly, we also clarify today, following the Supreme Court‘s guidance, that a litigant will only meet the extraordinary-circumstances prong of our test for equitable tolling when she shows that her delay was attributable to circumstances that were “both extraordinary and beyond [her] control.” Id.
In sum, for a litigant to be entitled to equitable tolling, she must establish two elements: “(1) that [s]he has been pursuing her rights diligently, and (2) that some extraordinary circumstance stood in h[er] way and prevented timely filing.” Id. at 755; see also Santos, 559 F.3d at 197. The two components are distinct elements, both of which the litigant must satisfy. And to meet the extraordinary-circumstances element, the litigant must show that the circumstances were “extraordinary and beyond [her] control.” Menominee, 136 S. Ct. at 756.
B. D.J.S.-W. Fails to Meet Our Equitable-Tolling Standard
Here, D.J.S.-W. fails to satisfy either prong of this test. She did not diligently pursue her rights because she failed to take reasonable steps to confirm Dr. Gallagher‘s employment status. Nor did any circumstances, both extraordinary and outside her control, stand in her way and prevent her “from discovering Dr. Gallagher‘s true affiliations.” D.J.S.-W., 2019 WL 1894707, at *9 (citing Menominee, 136 S. Ct. at 755).
D.J.S.-W. emphasizes our decision in Santos, in which we tolled the FTCA‘s limitations period to rescue Santos‘s untimely claim because the government had created a trap that prevented her from learning, despite her counsel‘s diligent investigation, that her alleged tortfeasors were federally employed. 559 F.3d at 204. Santos is similar to this case: a minor filed medical malpractice claims in state court against a healthcare facility, known as York Health, and several of its employees. Id. at 190-91. Her counsel filed her suit after the two-year limitations period had run in reliance on Pennsylvania‘s tolling statute. Id. at 191. As it turned out, however, York Health was a “deemed” federal entity. Id. at 191-92. After the government substituted the United States as defendant and moved for summary judgment, Santos argued that the FTCA‘s limitations period should be equitably tolled. Id. at 192.
We agreed with Santos and reversed the district court‘s grant of summary judgment to the United States. Id. at 204. Santos, we said, diligently pursued her claim: she hired counsel, “who requested and reviewed her medical records, [and] visited, corresponded with, and performed
Despite D.J.S.-W.‘s arguments to the contrary, even a cursory read of Santos reveals that Santos‘s counsel went to far greater lengths to confirm her alleged tortfeasors’ employment status than D.J.S.-W.‘s counsel did here. While counsel in Santos performed a public records search on, corresponded with, and visited York Health as part of his investigation, D.J.S.-W.‘s counsel merely assumed that Dr. Gallagher was employed by Sharon Hospital—which he knew to be a private entity—because D.J.S.-W. was born there and Dr. Gallagher was listed as a “team member” on its website. But, as D.J.S.-W.‘s counsel admits, he never corresponded with, called, or visited Sharon Hospital or Dr. Gallagher to confirm this belief.
D.J.S.-W. argues that her counsel‘s efforts were diligent because there was no “trigger” that would have prompted him to examine Dr. Gallagher‘s true employer, Primary Health Network. Appellant‘s Br. 15. This is not so. There were numerous red flags that would have caused a diligent plaintiff or her counsel to investigate Dr. Gallagher‘s employment status. As the District Court observed, “[i]t ordinarily should not come as a surprise to a medical malpractice lawyer . . . that an obstetric physician‘s relationship to a hospital may simply be” that he has “admitting privileges to deliver his patients’ babies.” D.J.S.-W., 2019 WL 1894707, at *9 (internal footnote omitted). Given that such an arrangement is not uncommon, it seems strange that counsel did not either ask D.J.S.-W.‘s mother “where she normally saw Dr. Gallagher for her prenatal care” or expand the temporal scope of his record request to ensure Dr. Gallagher had not treated her at another facility. Id.
There were also other triggers that should have prompted counsel to investigate Dr. Gallagher‘s employment status. For example, counsel‘s own law office sent record requests to Sharon Hospital and Dr. Gallagher at different addresses. Indeed, had counsel visited or searched the address to which his office sent the request
Had counsel taken the reasonable step of investigating these red flags, he could have easily discovered that Dr. Gallagher was employed by Primary Health Network. Had counsel then investigated Primary Health Network, he could have discovered that it was a “deemed” federal entity. Indeed, unlike counsel in Santos, who corresponded with, performed a public search on, and visited York Health, D.J.S.-W.‘s counsel did not take any of these steps. Had he visited a Primary Health Network office or searched its website, he would have seen that Primary Health Network “held itself out as a ‘federally qualified health center’ via,” inter alia, “physical signs in its waiting rooms . . . and notices on its website.” Id. at *9. If, like in Santos, these statements were insufficient to alert counsel to Primary Health Network‘s “deemed” federal status, see Santos, 559 F.3d at 201-02, he could have double checked by searching Primary Health Network in the Health Resources and Services Administration database.
In sum, D.J.S.-W. did not exercise due diligence to meet our equitable-tolling standard. Rather, her effort here—or, more accurately, her counsel‘s effort—was, at most, a “garden variety claim of excusable neglect,” see Irwin, 498 U.S. at 96, to which “[t]he principles of equitable tolling . . . do not extend,” Santos, 559 F.3d at 197.
Because a plaintiff must meet both prongs of the equitable-tolling test, we could conclude our discussion here, having determined that D.J.S.-W. did not diligently pursue her claim. See Menominee, 136 S. Ct. at 757 n.5. We briefly note, however, that D.J.S.-W. also fails to demonstrate that any extraordinary circumstances “stood in h[er] way and prevented timely filing.” Id. at 755 (quoting Holland, 560 U.S. at 649). The plaintiff in Santos encountered extraordinary circumstances because the government had created “a potential statute of limitations trap” that prevented her from discovering the defendant‘s federal status. 559 F.3d at 202 (quoting Valdez, 518 F.3d at 183). The government itself ensured that “York Health‘s federal status, if not covert, was at least oblique,” and there were no “publicly available sources of information from which Santos could have learned this critical fact,” nor were there any “circumstances [that] should have led her to inquire into York Health‘s federal status.” Id. at 203.
According to D.J.S.-W., the circumstances in her case were similarly extraordinary. She argues that Dr. Gallagher created a trap, like that in Santos, because he knew that his biography on Sharon Hospital‘s website “created the illusion” that he was employed by “that private hospital,” which could, in turn, “relax the guard of even the most diligent person.” Appellant‘s Br. 14. There was, however, no trap here, and Dr. Gallagher‘s employment with Primary Health Network was far from “oblique.” As discussed above, had counsel discussed the issue with his client, expanded the temporal scope of his record requests, called Sharon Hospital or Dr. Gallagher, or investigated the address to
III.
Because we conclude that equitable tolling does not save D.J.S.-W.‘s untimely claim, we will affirm the District Court‘s order granting summary judgment in favor of the United States.