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 of Appeals for the Third Circuit
June 22, 2020
2020 Decisions 608
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.
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
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,
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 that Primary Health Network was a “deemed” federal entity (although, at the time, it did not list individual providers like Dr. Gallagher). Nor did counsel visit Primary Health Network’s website or search Primary Health Network on Google. At the time, its website and each of its offices indicated that Primary Health Network was a “Federally Qualified Health Center.”
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
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
At the close of discovery, the United States moved for summary judgment, again arguing that D.J.S.-W.’s suit was untimely. Although conceding that she did not timely file, D.J.S.-W. argued that she was entitled to equitable tolling of the FTCA’s limitations period because she—or more accurately, her counsel—“had no reason to know that [Dr. Gallagher] was a ‘deemed’ federal employee or that further inquiry into his status was required.” Supp. App. 26. The District Court disagreed, holding that D.J.S.-W. failed to “meet her burden to obtain the extraordinary remedy of equitable tolling.” D.J.S.-W., 2019 WL 1894707, at *10. Accordingly, the Court granted the Government’s motion for summary judgment because D.J.S.-W.’s “negligence claim against the United States is . . . barred as untimely.” Id. D.J.S.-W. appeals.
II.3
“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
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 plaintiff [shows she] has ‘been prevented from filing in a timely manner due to sufficiently inequitable circumstances.’” Id. at 197 (quoting Seitzinger v. Reading Hosp. & Med. Ctr., 165 F.3d 236, 240 (3d Cir. 1999)). Tolling “is [an] extraordinary” remedy, id., and “is proper only when the ‘principles of equity would make [the] rigid application [of a limitation period] unfair,” Miller v. N.J. State Dep’t of Corr., 145 F.3d 616, 618 (3d Cir. 1998) (alterations in original) (quoting Shendock v. Dir., Office of Workers’ Comp. Programs, 893 F.2d 1458, 1462 (3d Cir. 1990) (en banc)). “It is especially appropriate to be restrictive” in extending this remedy “in cases involving the waiver of the sovereign immunity of the United States,” such as those arising under the FTCA. Santos, 559 F.3d at 197–98.
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
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 due diligence in pursuing and preserving her claim.” See Santos, 559 F.3d at 197 (internal quotation marks omitted). This is the same test that the Supreme Court uses to assess whether a petitioner may be entitled to equitable tolling in the habeas context. See Holland, 560 U.S. at 649 (“[A] ‘petitioner’ is ‘entitled to equitable tolling’ only if he shows ‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way’ and prevented timely filing.” (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005))). In Menominee Indian Tribe of Wisconsin v. United States, the Supreme Court applied the same test to assess a Tribe’s claim that equitable
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
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
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
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 a public records search on York Health.” Id. at 198. Yet, “[n]one of these inquiries, records, visits, or correspondence gave him a clue that the healthcare providers or York Health had been deemed federal employees.” Id. at 200–01. York Health’s federal status, we concluded, “if not covert, was at least oblique.” Id. at 202. Although York Health’s website indicated that it received funds from federal sources and that it was a “federally-qualified health center,” there were no “publicly available sources of information from which Santos could have learned” that York Health was in fact a federal entity. Id. at 201–03. Moreover, “even if the information had been available,” there were no circumstances that “should have led [Santos’s counsel] to inquire into York Health’s federal status” in the first place. Id. at 203. Thus, we held that “the equitable
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.
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 to Dr. Gallagher, he would have discovered that it was a street address for Primary Health Network. In addition, two of the pages of records sent by Dr. Gallagher in response to that request contained the phrase “Primary Health Network” at the bottom of the page above Dr. Gallagher’s name and address. See id. at *3, *11. Finally, D.J.S.-W.’s counsel should have been on heightened alert given his own personal experience in litigating a malpractice case involving the substitution of the United States for a defendant physician because he was an employee of a “deemed” federal entity.
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
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 which he sent one of his record requests and which appeared on some of the records he received, he would have discovered Dr. Gallagher’s true employer. As the District Court stated, “[t]he real trap that . . . [c]ounsel fell into was the assumption that a doctor who has a biographical page on a private healthcare facility’s website . . . cannot be employed by another facility or entity.” D.J.S.-W., 2019 WL 1894707, at *8. This miscalculation was certainly not “beyond [counsel’s] control,” and, thus, no extraordinary circumstances stood in D.J.S.-W.’s way to prevent her from timely filing her claim.9 See Menominee, 136 S. Ct. at 756.
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.