*1 ing.9
V. stated, AFFIRM reasons we
For the We REMAND convictions.
Defendant’s with this in accordance resentencing
opinion. SKWIRA, as Administratrix A.
Statia Skwira, and Edward
the Estate of S. Yarrows;
Individually; Ed- Marsha Skwira, Skwira, Jr.; Philip E.
ward S.
Plaintiffs, Appellants,
v. Defendant, STATES, Appellee.
UNITED
No. 02-1988. Court of Appeals, States
First Circuit.
Heard Feb. 2003. Sept.
Decided 2003. appropriate. We remand recognize sentence would We Defendant’s sentence current range applicable opportunity, give the sentence an at its discre- falls within court during tion, court upon just. remand. But the district Defendant as it deems sentence a lower sentencing expressed its view that *3 Callahan, Stephen M. with whom
John Kuzmeski, David C. and Grow- Kaplan, R. brief, appel- were on for hoski & Callahan lants. Olderman, whom Rob-
Richard A. with McCallum, Jr., Attorney Assistant ert D. Sullivan, General, Michael J. United States were Attorney, Greenspan and Robert S. brief, appellee. on Advocate, Erik Corey, Judge John Riedel, Lund, Berman, George A. Susan S. Posternak, LLP Blankstein & Lund Legion, sup- pretrial for amicus curiae American management,2 govern- and the eventually ment moved port appellants. to dismiss the law- on grounds. suits statute of limitations BOUDIN, Judge, Before Chief granted district court the motion to LIPEZ, Circuit TORRUELLA cases, respect dismiss five of the Judges. including family’s, holding these five of plaintiffs sets- had failed to file LIPEZ, Judge. Circuit compulsory administrative within claims circumstances, tragic unusual and two after their claims had accrued. requires “discovery this case us to apply *4 2401(b). See 28 U.S.C. § The Skwira fam- rule” to the issue of accrual under ily appeals now the dismissal of their com- (“FTCA”), the Federal Tort Claims Act 28 plaint.3 After a careful of the review rec- 1346(b), §§ U.S.C. 2671-2680. law, controlling conclude, ord and case we court, as did the district that the Skwira I. family’s claim is'time-barred. Skwira, February On Edward veteran, a decorated II World War en- II. tered the Veterans Affairs Medical Center (“VAMC”) Northampton, near Massachu- early February In Skwira was ad- setts, for the treatment of chronic alcohol- mitted to an inpatient substance abuse later, days unexpect- ism. Three Skwira Worcester, facility treatment Massachu- died, edly apparently of natural causes. setts, for the treatment of chronic alcohol- later, 14, 2001, Five on March February ism. On he was transferred Gilbert, jury federal convicted Kristin placed hospital’s the VAMC and in the VAMC, former nurse at the murdering C, working. Ward where Gilbert was La- and patients. Skwira three other VAMC day ter that Skwira took a drastic turn for claimed Prosecutors that Gilbert killed her worse, suffering from an apparent cat- by injecting victims them with lethal doses astrophic cardiac event'. He was trans- epinephrine of the stimulant simulate Baystate ferred for further tests to the natural Investigators death. believe that Medical in Springfield, Center Massachu- may responsible Gilbert for several oth- Baystate setts. Doctors at to'ld the Skwira VAMC, er deaths at apart from the family that he was of natural dying four for which she was convicted. including a heart attack and dis- causes— VAMC, As a result of the at the secting aneurysm deaths that no medical or —and children, wife along surgical Skwira’s with the intervention could save him. survivors of five other alleged victims of Skwira was returned to the where VAMC Gilbert, sued the United under February States he died on 18. The immediate seeking compensation FTCA for the loss causes of death his were listed on death of their loved ones.1 “dissecting The district court certificate as aneurysm,” “infe- infarction,” consolidated the six cases for purposes myocardial rior wall and “ar- States, 00-30080; giving 1. There is a time line events rise v. United No. McEwen v. States, 99-30232; litigation opinion. this at the end United No. v. United States, 00-30192; No. Lessard v. United States, Cutting F.Supp.2d 2. See v. United States, 00-30076). No. (D.Mass.2002) (consolidated opinion States, 99-40065; Cutting v. United No. 3.None of the other four dismissed cases have 99-30231; . appealed. Rauch v. No. Siska been suspi- them that we had some autopsy per- We advised No rythmia” [sic]. up by like to clear cions that we would formed. exhuming Edward Skwira.” Welch Department spring, Later that Murphy sought permission and obtained Inspector Affairs Office Veterans Statia, widow, to exhume Skwira’s from General, Attorney’s by the U.S. assisted body perform autopsy. an Police, and the Massachusetts State Office his office was “look- explained that Welch un- investigation a criminal into the began the VA ing at a number deaths number of deaths on Ward C usually high Center,” and that “there had been Medical By during through early late 1995 of deaths and an increase the number ap- articles had started to summer question why as to there was some newspapers describing an on- pear local increase had occurred.” Skwira’s going inquiry suspicious into deaths at they familiar with the responded were sentence, one article opening VAMC. its reports concerning investigation an press ‘a probe higher identified federal into “[a] VAMC, at the but suspicious into deaths than usual number of deaths’ from cardiac article their actual indication quoted arrest on one ward.” The that this was first *5 hospital’s acting refusing gov- director as to that the that Skwira’s death was one An- play malpractice.” rule out “foul or investigating. was ernment in- published other account mentioned an to exhume family gave The consent untimely into the death of a vestigation body 7. The body Skwira’s on November thirty-five-year-old patient in Ward C. immediately autop- was disinterred and that a nurse That same article indicated sied, and other internal with the heart probe. In government’s was a focus of fur- organs safekeeping removed for and early August, Attorney’s the U.S. office testing. day autopsy, ther The after the confirming press issued short release attended Skwira’s reinterment with Welch that, fact, grand jury in there was a inves- and Yarrows. When Statia asked Statia local re- tigation underway. press The autopsy, about the results of the he Welch ported grand jury taking that the had been informed them that “the death certificate month, testimony for and that the about incorrect.” He told them printed was investigation “focusing was on all deaths attack,” die of a heart Skwira “didn’t that occurred at the VAMC between fall although he then added that this “did not 1995 and winter 1996.” mean that he did die of unnatural causes.” Beginning September or October family in- promised keep Welch to 1996, investigators approach started to progress formed about the of the investi- unexpect- families of who had individuals gation. edly permission and died Ward C asked years, govern- Over the next two to exhume the bodies of the deceased and investigation ment continued its and built family perform autopsies. to Skwira’s was against case who had its criminal Gilbert approached. the first to be Assistant Unit- already been arrested in October Attorney ed Welch and States William autopsy, charged before and with Skwira’s Trooper Massachusetts State Kevin Mur- them,” phoning bomb threats to the VAMC.4 Sta- met them. advised phy with “We investiga- “that tia call and other according Murphy, to we were look- would Welch regularly approximately every tors four ing Hospital. into deaths at Veterans — subject public press ongo- name was made in connec- the local as the Gilbert’s arrest, ing investigation into the deaths at the tion with that and she was identified VAMC. injection by a lethal had been killed with the status of check on months —to to six examining samples exhumed months In tissue death. into Skwira’s investigation death.” calls, patient’s tell or after Cut- Welch would to these response at 220. Hence the ting, 204 F.Supp.2d tell her other really “couldn’t that he her signifi- obliged invest her in the already had told [he] than what develop adequate epi- cant resources past.” and research nephrine testing protocols meeting scheduled July 1997 Welch which, trial, if would methodologies used at that the inform them family ultimately have to Daubert scru- withstand inexplicably ketamine had been chemical tiny.5 medical body. Skwira’s found Skwira’s was even- government’s investment keta- contained no indication that records 8, 1998, tually fruitful. On June Welch ever anaesthetic —had powerful mine—a family and in- Murphy met with the asked the for him. Welch been ordered for the first time that Skwira history not re- formed them medical about Toxicologi- natural causes. He ex- had not died of records. hospital’s in the flected determined that conclusively cal tests had investigation was nec- that further plained epinephrine poisoning. had had died of ketamine determine whether essary to their administered, Murphy expressed also or if it had Welch lawfully been Skwira, error, had murdered oversight, belief Gilbert “out of been administered they present would they indicated meeting, At this Statia negligence.” or grand to a evidence of murder autopsy. the November brought up first de- jury seeking an indictment for that the death again once explained Welch *6 told the Finally, murder. Welch gree stated. He was not correct as certificate investigators had ex- added, however, family that simply that because Skwira again legitimate of a ad- possibility did cluded the was not correct the death certificate ketamine and that the unnatu- ministration of had died of not mean that Skwira further confirmation presence was drug’s the investi- He told them that ral causes. the poisoned had been while at that Skwira gation would continue. VAMC. followed, the the months that During indicted 1998 Gilbert was the heart In November to test
government continued murder several counts of charged and with during removed samples and tissue to murder. The with intent that and assault Investigators suspected Gil- autopsy. days so was sealed for seven kill her vic- indictment epinephrine to bert had used be of the victims could that the families tims, technology pro- and but the forensic trial, lengthy jury Following informed. epinephrine necessary tocols to measure three counts of was convicted of yet had to Gilbert toxicity samples in dated tissue Skwira’s), (including murder degree first court noted As the district perfected. murder, and degree natu- one count of second “[e]pinephrine occurs opinion, in its currently adrenaline, charges. is lesser She and inves- other rally body in the possibil- without serving life sentence it difficult to isolate toxico- tigators found ity parole. particular patient that a logical evidence Inc., Pharms., methodology underlying reasoning or er Daubert v. Merrell Dow
5. See 579, 591-93, testimony scientifically valid and U.S. 113 S.Ct. is prior (noting to ad- methodology prop- that reasoning L.Ed.2d or whether testimony, must mitting expert issue”). district court applied the facts in erly can be of wheth- "preliminary assessment undertake (as were Statia Skwira III. administratrix of right), Skwira’s estate and in her own and The Federal Tort Claims Act’s three adult Philip provides, pertinent statute of limitations children— Skwira, Skwira, Jr., Edward and Marsha part, against tort claim “[a] the Unit Yarrows. The complaint negli- sounded in ed States shall be forever barred unless it gence,7 sought damages and wrongful presented writing appropriate death, pain conscious and agency years suffering, per- Federal within two after 2401(b). § such claim consortium, accrues.” 28 injury, U.S.C. sonal loss of negli- To filing facilitate the of administrative gent infliction of emotional distress. against claims government agencies, the filed, Soon after the complaint was Department of Justice has developed a litigation stayed was pending the outcome form, SF-95, standardized which satisfies of Gilbert’s criminal trial. Once Gilbert the statute’s notice of claim requirement. convicted March parties A potential claimant has two after conducted limited on the issue of her claim complete accrues to and submit plaintiffs’ compliance § 2401’s two-page form. See 28 C.F.R. two-year filing requirement. After 14.2(a); § Corte-Real v. United completion of period this limited of discov- (1st Cir.1991). We have ery, the United States moved dismiss previously noted that the pre burden of the complaint on the ground that the plain- paring this form is minimal. See Santia tiffs’ administrative go-Ramirez claim had not Sec’y v. been Dept. Def., 984 (1st Cir.1993) (“This timely filed. government The argued Circuit approaches family’s the Skwira requirement notice lenient accrued at the ly.”). The claimant need time of only alternative, indicate on Skwira’s death. In the “(1) the SF-95 sufficient information for argued that the claim ac- , agency claims, to investigate the crued October investiga- when the (2) the amount damages sought.” Id. tors first approached the family and asked permission to exhume autopsy filed its SF-95 form *7 body part as of an ongoing inves- supporting 21, materials on October tigation into suspicious deaths at the 1999. The Veterans Administration noti- In response, VAMC. family fied the the Skwira family in correspondence dated 18, 2000, 17, May 2000, contended that their claim July did not accrue the family’s 8, 1998, until June they administrative claims when had been de- were told for nied.6 The family Skwira the first subsequently time that Skwira had died as a filed the instant action in the district result illegally court of an administered dose of on October 2000. Listed plaintiffs as epinephrine. 6. The Skwira,” record before us why does not indicate ward protect S. to ”fail[ed] Edward denied, the claims why separate were nor two S. Skwira they from imminent harm knew or denial letters issued. We assume the claims existed,” should have known prop- to "fail[ed] they were denied because were deemed un- erly supervise personnel the medical at the timely. VAMC,” and to "failfed] monitor and control usage the of and access to the medications at complaint alleged
7. The a number of theories VAMC,including epinephrine.” the Second- negligence, almost all of which amounted arily, complaint alleged also medical mal- negligent to a supervision claim of Gilbert. practice: provide "failure adequate to medi- example, For complaint alleged that the care,” cal properly diagnose." and "failure to VAMCand its staff improper “allow[ed] lethal to medication be administered to Ed- court, 11, 2002, timely in a is well settled this circuit that the district
On June filing pursuant of an administrative grant- opinion, thorough and well-reasoned jurisdictional § prerequisite 2401 is a to dismiss. motion government’s ed the See, e.g., filing suit under FTCA. Gon law, background canvassing the After States, 284 F.3d zalez v. United it: the issue before court framed (1st Cir.2002); States, v. Attallah United will be question in each case pivotal The (1st Cir.1991); 966 F.2d Gonzal matter, when, in- sufficient as a factual States, ez-Bernal v. United 907 F.2d to the formation was available (1st Cir.1990). Thus, comply failure to reveal a connection between statute of limitations with the FTCA’s and the deaths. VAMC subject lacks means that the district court at 227-28. The Cutting, F.Supp.2d jurisdiction to entertain the suit matter fami- that for the Skwira court determined it. v. and must dismiss Coska 26, 1996—the ly, that date was November (1st 114 F.3d 323 n. 8 Cir. family day autopsy after the —when 1997). family, party as “the Skwira die of a did not first learned Skwira jurisdiction a federal invoking the attack, the death certificate and heart court[,] its proving carries the burden of Thus, had maintained. the VAMC States, 45 Murphy existence.” v. United reasoned, had two court (1st Cir.1995).8 that date—until November years from In this the district court file an administrative claim with 1998—to family’s complaint dismissed the Skwira on Administration. Since the the Veterans 12(b)(1) Rule motion. government’s to file a claim before that family had faded 12(b)(1) (providing for See Fed.R.Civ.P. deadline, the that it lacked court.concluded jurisdiction of claim “lack of dismissal jurisdiction and dismissed subject matter matter”).9 subject use “dif over the We complaint. appeal This ensued. evaluating ferent standards of review IV. subject district court’s dismissal for lack of § un language jurisdiction As the under Fed.R.Civ.P. matter 12(b)(1) indicates, depending the failure to file an on the circumstances.” equivocally Gonzalez, In a situation with the appropriate administrative claim predicate parties dispute of a where the government agency within two court’s giving rise to the being allegedly in that claim facts claim’s accrual results 2401(b). court will often jurisdiction, § It the district “forever 28 U.S.C. barred.” *8 statute.”); v. U.S. exception to the Gould view FTCA’s statute of 8. Other circuits the defense, 738, Svcs., as an affirmative rather F.2d Dept. limitations Health & Human 905 of jurisdictional prerequisite, Cir.1990) ("The and there- (4th than a burden is on 745-46 place proof on the defen- fore the burden of diligence exer that due was to show States, See, e.g., Hughes v. United 263 dant. information, that critical cised and 272, (3d Cir.2001) ("Failure to com- 278 notwithstanding, investigation was undiscov- ply the statute is 'an defense with affirmative text, erable.”). in the we have As indicated of estab- which the defendant has the burden adopted approach. latter the States, ") lishing.' (quoting v. United Schmidt 639, Cir.1991)). (8th Other 933 F.2d 640 ("Whenever 12(h)(3) it Fed.R.Civ.P. 9. See also juris- as circuits view the statute of limitations by suggestion parties or other- appears of the and, nature, accordingly, place dictional in jurisdiction of the court lacks wise that the See, plaintiff. e.g., proof on the the burden matter, the subject the court shall dismiss States, v. McCall ex rel. Estate Bess United action:"). 984, Cir.2002) ("[T]he (7th 987 310 F.3d establishing has the burden of an [] 72 issue,
need to in engage preliminary some fact- facts are not in the court’s determi- situation, finding. that district engenders review.”); nation de novo id. at “enjoys authority court broad order dis- (noting jurisdictional challenges evidence, covery, consider extrinsic grounded in considerations of sovereign evidentiary hearings hold in order to de- immunity normally “present what amount jurisdiction.” termine its own Valentín v. (or law”). pure nearly pure) questions of Vista, (1st Hosp. Bella 254 F.3d Cir.2001).10 In such a the district y.
court’s findings of fact will be set aside
Preliminary
A.
Considerations
only clearly
if
erroneous.
Id. at 365. The
court’s ultimate
regarding
conclusion
It
is “elementary” that
subject
existence vel non
juris-
matter
sovereign,
United
as
is immune
question
diction is a
subject
law
to de
from suit unless it has consented to be
novo review. Id.
Mitchell,
sued. United States v.
445 U.S.
535, 538,
100 S.Ct.
73
(1940) (“Public
in
is the date on
At issue
this case
653,
L.Ed. 894
84
S.Ct.
plaintiffs’
which the
tort claims “accrued.”
consent is
the suit unless
forbids
policy
If
filed their administrative
plaintiffs
makes
clearly
public policy
as
given,
years
claim more than two
after their
of the
by declaration
jurisdiction exclusive
accrued, their cause of action is time-
claim
Hence, any waiver of
body.”).
legislative
rule,
general
barred.
“The
within
implied but
immunity “cannot be
sovereign
FTCA,
that a tort claim
meaning of the
is
expressed.” United
unequivocally
must be
inju
accrues at the time 'of the
1, 4,
King, 395 U.S.
89 S.Ct.
States v.
Attallah,
779;
Ku
ry.”
955 F.2d at
see
(1969); see Soriano v. Unit-
Kubrick,
7, 100
Attallah,
444
at 121
practice
U.S.
n.
S.Ct. 352
realm. See
955 F.2d at
(Second)
(quoting
(theft).
Restatement
Torts
fact,
778-79
Noting this
the gov-
(1979));
§ 899 cmt. e
see Ware v. United
argues
ernment
Supreme
two recent
(5th
States,
1278,
626 F.2d
1284
4n.
Cir.
Cases,
Andrews,
Court
v.
TRW Inc.
534
1980) (“Courts created the medical mal
19,
441,
U.S.
122 S.Ct.
other doctors about a claim must “accrual” of tended that it nerve deaf- they diagnosed as bilateral that his plaintiff await awareness January physician, 1969 another ness. A negligently injury was previous medical inflicted. reviewing Kubrick’s upon Kubrick, armed with records, it such as Kubrick that informed him, harm done to facts about the re- hearing that the loss “highly possible” *12 76 protect by
can seeking knowledge himself advice in trigger is needed to accrual legal community. the medical and To discovery bedevils rule analysis.”). promptly doing excuse him from by so postponing the accrual of his claim C. Accrual Standard purpose
would undermine the
of
lim-
the
Kubrick,
the
statute,
itations
which is
require
the
(deafness)
knowledge of
injury
his
and its
reasonably diligent presentation of tort
(the
probable cause
administration of neo-
against
claims
the Government.
mycin) provided the factual basis for his
Kubrick,
123, 100
444 U.S. at
S.Ct. 352.
Kubrick,
claim. See
was the result neomycin of the treat- himself by seeking in advice the medical ment.”) added). (emphasis and legal community.”15 Kubrick, 444
Following
U.S. at
we have
S.Ct.
similarly
degree
in-
352. The
dicated that something
knowledge
injury
less than
and cause that
definitive
would
knowledge
prompt a
required.
person
is
reasonable
For
to take
example, we
these
protective steps
have also stated
will vary
that a
with
malpractice
medical
the circum
case, but,
claim
stances of the
event,
has
in
plaintiff
“[o]nce
accrued
knows
conclusive
injury
knowledge is not
probable
necessary.
and its
cause.”
Hence,
Gonzalez,
in line with the
precedents,
best
at 289
we
(emphasis add-
that,
ed);
hold
outside the
malpractice
see also
at
medical
id.
291 n.
(indicating
context, a claim
accrues
under the
accrues when
FTCA
“plaintiff was on
knows,
once a plaintiff
or in the
notice of
exercise of
injury
potential
and its
cause”)
(1)
diligence
know,
added).
reasonable
should
(emphasis
Outside the
her
permit
sufficient facts to
malpractice context,
medical
courts have
person
to believe that there is
similarly indicated that something less
a causal connection
govern
between the
than definitive knowledge
required.
is
ment
injury.
and her
Garza the court stated that a claim ac-
crues once
“had reason to
Our dissenting colleague claims that this
believe” that
government
was respon-
holding contravenes Kubrick and its prog-
sible
Garza,
for the injury.
284 F.3d at
eny
clear,
as a
unbroken line of
—described
935. The court in Diaz said that “in order
authority that
“firmly
has
established that
for
accrue,
the claim to
a plaintiff must
the baseline threshold for accrual under
have some indication that
may
there
have
discovery
rule is knowledge
inju-
of an
been
cause of the injury.”
ry
cause,”
and its
with cause defined as
Diaz,
there was a causal connection between the Application D. *16 of the Accrual Standard (Skwira’s death) and the acts or omissions of a government employee.
In some applications of the discov
Therefore,
two-year
the
ery
accrual,
rule to the
statute of
question of
limita-
there
be
tions
began
will
an issue
clock
ticking
about the
point.
reasonable dili
that
gence
plaintiff
in investigating the
family’s
The
subjective beliefs, described
fact and cause of
injury.
her
In the
in deposition and trial
testimony,
rein-
Skwira family’s
their reasonable dili
forces the correctness of this conclusion.
gence
Rather,
is not at issue.
we can re
Skwira’s son Philip testified in
deposi-
his
question
accrual,
solve the
of
as did the
tion that it was a “surprise” that Skwira
court,
district
on the
of
basis
the informa
had died of a cardiac event since he had
tion the family
from
received
been admitted only for treatment of his
officials and the local press, prior
to
alcoholism.
daughter
Skwira’s
Marsha
independent
inquiry
by
undertaken
the
Yarrows testified at Gilbert’s criminal
family.
trial
The district court concluded that
that she was
by
“shocked”
the
family’s
unexpected
the Skwira
of
cause
action ac
crued,
latest,
news of
arrest,
at the
Skwira’s
the
cardiac
day after
and dur-
Skwira’s
(in
autopsy
1996),
ing
deposition
her
November
expressed
when the
she also
her
family first learned that Skwira did not
belief that
die
his care at the VAMC had been
of the causes listed on his death certificate.
inadequate.
courier,
disappearance
After the
information,
of the
the
appellants
this
had no other
Attallah
had conducted their own
source of
regarding
information
the where-
investigation. They
the
visited
Customs Ser-
courier,”
abouts of their
plain-
and that the
vice office
airport
at the
they
where
were told
privy
tiffs were
police
to the
investigation.
that the
processed
courier had been
and left
Attallah,
Yarrows
of rea
through the exercise
discoverable
press reports
had read
trial that she
permit
would
diligence which
sonable
into
investigation
murder
regarding
her in
reasonably
that
to
believe
when
stated that
She
on
C.
deaths Ward
with some act
jury is connected
accounts,
light
like a
“it was
read
she
these
Attallah,
F.2d at
See
government.
that was
I knew
off because
went
bulb
above, by
explained
November
780. As
father.”
my
happened
had
exactly what
press
family was aware
the Skwira
reading
that after
also testified
She
suspicious
deaths
concerning
reports
accounts,
newspaper
C; they
govern
that the
knew
on Ward
me,
even
and
really bothered
It —it
investigation
a criminal
begun
had
ment
men-
wasn’t
my father’s name
though
death;
they
and
knew that
into Skwira’s
people
who
being one
tioned
Skwira’s
printed
cause of death
on
and
right
I
then
knew
investigated,
was
infor
was incorrect. This
death certificate
had
exactly what
that was
there that
knowledge to
sufficient
provided
mation
him,
one
that he was
happened
ticking in No
clock
the limitations
start
must
investi-
they
that
be
people
those
time, the
point
1996. From
vember
death of.
gating the
indepen
to seek out
had two
realization,
despite the
Despite
to determine
and medical advice
legal
dent
provided
and the information
reports
press
file an administrative
they
if
should
autopsy,
after
investigators
Moreover,
explained
as we
the VA.
against
claim did
family insists
their
III,
to file an administrative
supra,
in Part
“[t]he
since
in November 1996
not accrue
rights under
ones
preserve
claim and
existence and
regarding
facts
critical
FTCA,
only
possession
need
one
inherently
injury were
[Skwira’s]
cause of
agency
information
“sufficient
gov-
of 1998.”
until June
unknowable
Santiago-Ra
the claims.”
investigate
possession
ernment
ndrez,
at 19.
time,
until
samples
heart and tissue
protocols
testing
technology
*17
that “considerable
realize
We
were, by and
detecting epinephrine
neces
may be
investigation
enquiry and
prosecution.
the Gilbert
invented for
large,
respon
a
can
plaintiff]
make
sary
[a
before
no
Hence,
there was
family argues,
of
actionability”
judgment about
sible
in November
known
they
have
way
could
Rotella,
U.S. at
her claim.
death,
cause of Skwira’s
actual
family may have
1075. The Skwira
S.Ct.
should be
of limitations
statute
cir
acutely in the difficult
need
felt that
Gonzalez, 284
See
they
until
did.
tolled
However, as the
of this case.
cumstances
statute
(indicating that
at
288-89
Rotella, “identify
noted
Supreme Court
factual
if “the
may be tolled
limitations
a
may also be
negligence
ing professional
‘inherently
[is]
cause of action
for the
basis
discov
and its
complexity,
real
matter of
Attallah,
”)
(quoting
unknowable’
statute
before the
not
ery
required
is
780).
at
Kubrick, 444
(citing
Id.
running.”
starts
352).
122, 124,
One does
100 S.Ct.
at
un- U.S.
“inherently
family reads
The Skwira
actionability
be certain
have to
basis
broadly. The factual
knowable” too
claim.17
an administrative
to submit
order
“inherently unknowable”
of a claim
agency to
hold
family
could have asked the
family's
if the
17. In the Skwira
ongo-
claim,
outcome of the
abeyance pending the
they
timely
a
notice
had submitted
Simply put,
family
the Skwira
failed to
eonsents to be sued must be strictly ob-
meet the modest
filing
burden of
an ad-
served and exceptions thereto are not to
ministrative claim
two
within
Soriano,
implied.”
352 U.S. at
claim’s accrual.18
district
court there-
sented in an amicus brief
by
submitted
with the unenviable task of telling five
The American Legion,
directly
and not
that, despite
families
tragic
deaths of
addressed in
First,
the discussion above.
their loved ones at the
of govern-
hands
argues
amicus
that we should “apply a rule
employee,
ment
their
compensa-
claims for
that a cause of action for death
by
caused
tion under the FTCA were time-barred.
the criminal conduct
a government
em-
Understandably,
the court “reluctantly”
ployee accrues
when
only
there is suffi-
reached its decision that
“as
factual mat-
cient information to indict.” Such a rule
ter, [there was] sufficient information []
significant
would be a
expansion of the
available to the
[Skwira
and other
discovery
adopted
rule
in Kubrick.
If any-
plaintiffs] to reveal a connection between
thing,
earlier,
as noted
supreme
Court
the VAMC and the deaths” more than two
has indicated its
expand
reluctance to
years before they
their
filed
administrative
scope of
Kubrick’s
rule. See
claims. Cutting,
F.Supp.2d
at
Inc.,
TRW
Amicus also argues we should In reviewing the district court’s ruling, “liberally construe the discovery rule to we slightly have revised terms of its protect the rights of veterans and their that, inquiry, holding outside the medical families.” We powerful understand the malpractice context, a claim accrues under considerations that underlie argu- plaintiff knows, FTCA once a or in the However, ment. we are constrained exercise of reasonable diligence should Supreme Court precedent (1) know, which un- of her injury and sufficient equivocally states that permit “limitations facts to person conditions upon which the Government believe that there is a causal connection *18 ing ríes, criminal investigation or, upon denial regardless and they of whether are cor- — claim, faith, good filed a advised.”). lawsuit rectly "on belief," information and and then ask the stay discovery pending court to outcome The district court concluded that one of Indeed, ongoing investigation. below, plaintiffs the other Nancy dis- Cutting, suc- stayed trict court litigation cessfully the instant until filed her administrative claim within the end of Gilbert's criminal trial. two of its Cutting, See accrual. F.Supp.2d ("Nancy at 228 Cutting's conduct 18. The fact that the family Skwira provides decided template to prompt- for place Office, their Attorney’s trust in U.S. ness under rule in these electing not competent cases."). to independent seek government also concedes that later, legal advice Brandt, until much does not alter Caroline the wife of another of Gil- Gonzalez, that conclusion. (and See 284 F.3d at bert’s party litigation victims not a to the ("lT]he period begins below), limitations to claim, run timely filed a administrative regardless of whether inqui- make thereby preserving rights may she have. claim with filed their administrative injury, her and between time-barred, facts, we, holding to the action is applying VA, hence their court, reluctantly must the district like AFFIRMED. family’s the Skwira conclude they years before than two more accrued
APPENDIX facility private healthcare for treatment February Early is admitted 1996 Skwira alcoholism. VAMC; arriving, shortly after Skwira February 15,1996 is transferred Skwira event”; Baystate is transferred to experiences “cardiac Skwira “dissecting diagnosed with for tests Medical Center aneurysm.” Baystate from back VAMC. February 16,1996 is transferred Skwira “dissecting causes of death as expires; certificate lists February 18,1996 death Skwira [sic], infarction,” “arrythmia” myocardial aneurysm,” “inferior wall and “chronic alcoholism.” investigation higher “a than usual number report into July 17,1996 details Press from cardiac arrest.” of deaths as nurse on Skwira’s ward focus 1,1996 report identifies August Press investigation. jury investigation into deaths grand criminal 8,1996 report announces
August Press winter 1996. occurring the fall 1996 and between threats to charged phoning in false bomb with 2,1996 arrested and Gilbert October VAMC. permission to exhume family and ask approach nvestigators October investigation suspicious ongoing into body part of Skwira’s familiarity press VAMC; acknowledges family at the deaths investigation. concerning reports autopsy performed. body 25,1996 is exhumed November on death family of death listed that causes Investigators inform November were “incorrect.” certificate inexplicably ketamine that chemical July Investigators inform body. in Skwira’s found epinephrine family that Skwira died Investigators inform 8,1998 June poisoning. others. murder of Skwira and 19,1998 jury indicts Gilbert Grand November *19 claim. family files administrative 21,1999 Skwira October claim is issued. July 17, denial of administrative Final 2000 trial. criminal 25, Jury begins Gilbert selection 2000 October this lawsuit. 26,2000 commences October 84 14,
March
murdering
Gilbert convictedof
Skwira.
BOUDIN,
Judge, concurring.
Chief
duty
the
to investigate. See Gonzalez v.
States,
281,
(1st
United
284 F.3d
288-91
Act,
Under the Federal Tort Claims
Cir.2002).
substance,
plaintiff
the
is
1346(b),
(2000),
§§
U.S.C.
2671-2680
the
charged with knowing what might
he
have
Skwira family
required
was
as a condition
by
found out
actively pursuing his bare
suing
government
the federal
to file an
suspicions and then filing a claim when
administrative claim within two
there are
prospects
reasonable
liability.
the accrual of their cause of action. Al-
Critically,
plaintiff
when the
knows or
though
customarily
tort claims
accrue at
should
enough
claim,
know
prompt
to
he
injury,
the time of
the practice is wide-
may not yet know enough to win the suit.
spread of
extra
providing
time-either
Childers Oil Co. v. Exxon Corp., 960 F.2d
delaying
tolling
accrual or
the statute-
(4th
1265,
Cir.1992).
To win a suit
where the basis for suit is
apparent
may require the development of further
when the initial injury occurs. Villarini-
facts, perhaps even the conduct of discov-
Maestro,
Hospital
Inc.,
Garcia v.
Del
ery and
study by
further
experts. But the
81,
(1st Cir.1993);
84-87
Restatement
discovery rule is a compromise between
(Second)
(1979).
§
Torts
cmt. e
interests;
competing
and under the Feder-
The locus
sponge
classicus is the
left in
Act,
al Tort Claims
the burden on the
patient
the
during surgery.
plaintiff
peculiarly
is
slight: all that
is
Kubrick,
In United States v.
444 U.S. needed to comply with the statute is the
(1979),
100 S.Ct.
At the same one of their many like benefits is arguments about whether cases, other there discovery rule makes clear prejudice from delay are that a banished from plaintiff is not entitled to wait until the scene. all of the facts in support of the claim are 122-23,
known.
444 U.S. at
The formulas used in the cases for im-
Rather,
S.Ct. 352.
plaintiff
once the
plementing
rule are neither
knows enough
provoke
a reasonable
precise nor
Ultimately
consistent.
person
further,
to inquire
question,
has
highly dependent
facts,
on the
*20
the
major peculiarity here is that
as to The
enough
knew
the
whether
have had
family
probably
of the defen-
could
responsibility
Skwira
potential
the
point-he
of that
claim
the
years
proof
two
of their
before
that-within
definitive
dant
apprizing
the short form
investigation.
have filed
government completed
should
its
potential
of a
government
highly
the
case
unusu-
present
makes the
This
Often, in
cases like this
close
it.
against
itself,
one
normally, as
Kubrick
al:
in a suit
one,
issue-but not
jury
this is a
an ex-
suspicions prompt to consult
whom
§ 2402
28 U.S.C.
government.
the
against
usually get
good
can
a
fix
pert
lawyer
or a
Nakshian,
(2000);
453 U.S.
Lehman v.
reasonably
peri-
brief
liability
on
within a
156, 161,
69 L.Ed.2d
101 S.Ct.
od.
(no
claims
jury trial for tort
right of
rule,
discovery
But under the
definitive
government).
the federal
against
wrongful
government
of
conduct and
proof
carefully
district court
In this
the
period
to start the
liability
required
is not
Those
raw facts.
analyzed
undisputed
claim. Kronisch v. United
filing
mid-1996,
fam-
by
the Skwira
that
confirm
Cir.1998),
(2nd
States,
123 n. 6
suspicious
that other
ily had learned
1078, 121
rt. denied 531 U.S.
S.Ct.
ce
hospital
deaths had occurred
Childers,
(2001);
86 the will in
Perhaps
Supreme
proach
contrary
Court
move
runs
to the doctrine estab-
exception
the direction of
or of an
lished in
Stoleson
those cases because it eliminates
for
the
pending government inquiry,
requirement
but there
that before a statute of
claim,
are some
a lower court
limitations runs
reasons for
to be
on an
FTCA
plaintiff
sovereign
cautious. Where the
has con
must be aware both of the exis-
agents’ wrongful
injury
sented to be sued for its
tence of his
and “the facts of causa-
acts,
Kubrick,
reasonably
122,
the Court has construed
tion.”
tions TRW Inc. v. detecting excess levels epinephrine 19, 122 441, 151 534 U.S. S.Ct. L.Ed.2d 339 body. 8, Until June 1998—the date (2001); Wood, Rotella v. 528 U.S. 120 when government appel- first informed 1075, 145 (2000). S.Ct. L.Ed.2d 1047 lants about “the facts of causation” —the end, Skwira’s were in no prompting per- risks to know position how Thus, sons to file claims Skwira had too soon seem died. the appellants less weighty importance position than the were getting by described the Su- notice to government preme at the Court warranting earliest delayed one is, opportunity. reasonable It accrual—that thing is one where “the causa- facts of cut off a claim tion no suspi- putative [are] where reasonable control of the defendant, cion existed within the limitations unavailable period. plaintiff to the or at very But where the least claimant thinks or difficult should to obtain.” Id. at added). think claim, that he may (emphasis have a S.Ct. 352 well then present under law the should The standard majority adopted years. notified within If the law two is improperly allows claim to “accrue” be- further, to be fine-tuned Congress may a reasonably fore diligent plaintiff could well be better equipped op- to devise the possibly have the medical discovered or tions and the consequences. assess physical cause of injury. his According to majority, a discovery rule claim “ac- TORRUELLA, Judge, Circuit should, crues” once a plaintiff knows or dissenting. the exercise of diligence, know “(1) I am forced to (2) dissent because the ma the fact of injury injury’s jority contravenes Supreme Court doctrine causal connection the government.” established in United States v. Thus, Maj. Op. at 77. once 111, 118, U.S. known, 100 S.Ct. the statute of limitations begins L.Ed.2d 259 longstanding cir running as soon as the discovers precedent cuit interpreting Kubrick. See sufficient determine information to that his States, Gonzalez v. injury is “probabl[y]” “connected with (1st Cir.2002); Attallah v. United government.” some act of the Maj. Op. at (1st Cir.1992). 80. The “causal approach, connection” majority’s words, “causal connection” ap- in other puts a premium on the
87 a Thus while accrual will not wait for a long so identity of the defendant: him, injury injured plaintiff who to discover that his determine plaintiff might inflicted, claim negligently it is clear that a of limitations starts run the statute not, plaintiff accrue before a is or if cannot plaintiff, even he could against a dis- should be aware existence and cause diligence, of reasonable the exercise Kubrick, him, injury. knowledge or he was of his Under injured how cover what injury of an and its cause constitutes “the injured. predicate factual claim.” Id. at [the] imple- no basis for presents This case 118, Thus, 100 as the Fourth S.Ct. accrual standard. The menting a novel stated, clear of import “[t]he Circuit has (1) confusion in the majority alludes to Kubrick is that a claim accrues within the by Kubrick and its standards articulated meaning plaintiff when the [the FTCA] of non- unique and nature progeny, or, dilligence, knows in the exercise of due jus- potential cases as malpractice medical and should have known both existence a new accrual implementing tifications for injury.” the cause of his Gould v. U.S. However, Maj. Op. 75-77. standard. Services, Dep’t Health and Human 905 I think looking progeny, at Kubrick and its (4th Cir.1990). 738, F.2d 742 discovery jurispru- rule it is clear that our clear, dence, is well crystal while less than ultimately if Kubrick open Even left majority’s de- enough that the established accrual, questions regarding claim this depart from Kubrick’s accrual cision repeatedly Court has construed Kubrick as in favor of the “causal connec- standard that a holding knowledge claimant’s Moreover, is unwarranted. tion” standard injury existence and cause of his is the nothing there in the record that distin- is knowledge required trigger baseline dis- guishes past malpractice this case from Gonzalez, covery-rule accrual. re-we wrongful discovery-rule and death cases cently clarified that Kubrick meant under our which have been considered plaintiff knows of the and “[o]nce well-established accrual standard. cause, probable its bears the re- he/she among
sponsibility
inquiring
the medical
whether
legal
communities about
Progeny
he/
A. Kubrick and its
wronged
legal
and should take
she was
open
questions
While Kubrick left
some
Kubrick).
(citing
289
Our
action.” Id. at
regarding
parameters
discovery
all of
holding in
is consistent with
Gonzalez
rule,
holding
core
of Kubrick is clear
See,
e.g.,
rule cases.
prior
our
repeatedly applied by
and has been
Nicolazzo v. United
malprac-
circuits in both medical
and other
(1st Cir.1986) (citing
Kubrick’s hold-
malpractice
tice and non-medical
contexts.
suits,
ing
malpractice
that in medical
“the
discovers,
plaintiff
or
The Kubrick Court established that ac-
accrues when
diligence
plaintiff
not occur before the
the exercise
crual does
discovered,
“knows
the existence and the cause of
should have
the existence
both
injury”); Rivera Fernandez v.
injury.”
his
States,
*4
959 F.2d
Respectfully, panel .connection” test that the lous “causal v. headway; under Kubrick’s can make Igor BRUNSHTEIN, also known as requirement, own “facts about causation” “Mark,” Defendant-Appellant. extremely it would be difficult on this rec- had appellants ord to show that sufficient Docket No. 02-1345. knowledge of the medical cause of Skwira’s Appeals, United States Court of death. Second Circuit. Knowledge injury’s is a of an cause Argued: March 2003. fact,” “critical without which claim can By reducing the not accrue. “causation” Sept. Decided: con requirement only “probable to mean
nection between the and the defen
dant,” majority puts its thumb on the
scale and transforms our accrual standard inju too
into one strict whose
ry complex involves latent or causes. cases, in enquiry
such “considerable
vestigation may necessary before [a
plaintiff] responsible judgment can make a *26 Ro actionability”
about the of his claim. Wood,
tella v.
ministrative claim was
impossibility discovering the cause injury.
Edward Skwira’s Because the
appellants filed that claim less than two
years discovering after the cause of injury,, I do not believe their
claim to be barred limi- statute of I respectfully
tations.' dissent. ment; (3) police did not have suffi- acts until the time of their indictment.” following F.2d at 780. We then cited the bring charges against cient information to justify delay factors to our decision to accrual: murderers until 5 after the crime. Id. plaintiffs could not have known the present at 780. These factors are all in some claim; (2) factual basis for their yet majority in the form had other than mis- "no other information” give them consideration. does not leading provided by information law enforce-