# Phillips v. United States

> District Court, W.D. Arkansas · February 14, 2022

URL: https://www.frixlaw.com/law-library/cases/10011568

## Case

- **Court:** District Court, W.D. Arkansas
- **Decided:** February 14, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10011568

## How later opinions describe it (automated extraction)

- affirming dismissal of FTCA medical malpractice claim because Tennessee statute of repose had lapsed
- explaining the limitations period in the Arkansas Workers’ Compensation statute is a statute of repose in part because a claim may be cut off prior to it accruing
- finding the construction contracts statute of repose could not be tolled for equitable considerations

## Opinion text

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION

JASON PHILLIPS, as
SPECIAL ADMINISTRATOR
OF THE ESTATE OF
DAVID PHILLIPS, DECEASED PLAINTIFF

V. CASE NO. 5:21-CV-05132

UNITED STATES OF AMERICA DEFENDANT

MEMORANDUM OPINION AND ORDER

This is a medical malpractice and wrongful death lawsuit filed by Plaintiff Jason
Phillips, on behalf of the late David Phillips, against the United States of America pursuant
to the Federal Tort Claims Act (“FTCA”). The United States has filed a Motion to Dismiss
this lawsuit under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter
jurisdiction.1 The United States argues it has not waived sovereign immunity because
0F
the limitations period in the Arkansas Medical Malpractice Act is a statute of repose that
has extinguished Plaintiff’s claims. In the alternative, the United States argues Plaintiff
has failed to satisfy the FTCA statute of limitations by filing his administrative claim more
than two years after Mr. Phillips’s death. Plaintiff opposes the Motion to Dismiss and
argues the Court’s jurisdiction is so indisputable that the United States should face

1 In deciding the United States’ Motion to Dismiss, the Court considered the Motion (Doc.
19), Brief in Support (Doc. 20), Plaintiff’s Response in Opposition (Doc. 24), the United
States’ Reply (Doc. 27), and the parties’ oral argument presented at the Case
Management Hearing.

1
sanctions for even filing the Motion. To that end, Plaintiff has filed a Motion for Sanctions
under Federal Rule of Civil Procedure 11.2
1F
The Court finds the limitations period in the Arkansas Medical Malpractice Act is a
statute of limitations, not repose, and Plaintiff filed his claim within the FTCA limitations
period. Therefore, the United States’ Motion to Dismiss (Doc. 19) is DENIED. The Court
further finds the United States had a good faith basis to file the Motion to Dismiss, and
Plaintiff’s Motion for Sanctions (Doc. 30) is DENIED. The Court initially ruled on these
motions at the Case Management Hearing held on January 31, 2022.3 This Order sets
2F
forth the Court’s reasoning in greater detail.
I. BACKGROUND
David Phillips, a veteran of the Vietnam War, died on December 5, 2014, from
metastatic adenocarcinoma. Mr. Phillips’s cancer was misdiagnosed as benign on April
6, 2013, by Dr. Robert Levy, a pathologist employed by the United States Department of
Veterans Affairs (“VA”). In July 2019, the VA notified Mr. Phillips’s family that Dr. Levy’s
diagnosis had been incorrect. For years, Dr. Levy performed his duties while intoxicated,
conduct he was criminally prosecuted for in this Court. Plaintiff alleges Dr. Levy’s
misdiagnosis caused Mr. Phillips to not receive treatment for his cancer, which resulted

2 In deciding Plaintiff’s Motion for Sanctions, the Court considered the Motion (Doc. 30),
the United States’ Response in Opposition (Doc. 32), and the parties’ oral argument
presented at the Case Management Hearing.

3 The Court held a consolidated Case Management Hearing for this case and two
companion cases, Gipson v. United States, Case No. 5:21-cv-05136, and Parker v.
United States, Case No. 5:21-cv-05137. Nearly identical motions were filed in all three
cases.

2
in decreased quality of life and decreased life expectancy. Plaintiff further alleges the VA
itself was negligent in its hiring, supervision, and retention of Dr. Levy and in its failure to
establish adequate policies and procedures to prevent the harm Mr. Phillips suffered.
In August 2020, Plaintiff filed an administrative claim for damages with the VA.

Plaintiff then filed this lawsuit in July 2021, prior to the VA rendering a decision on his
administrative claim. In September 2021, the VA denied Plaintiff’s claim due to Plaintiff’s
pending lawsuit.
II. DISCUSSION
A. Subject Matter Jurisdiction
The United States argues this Court lacks subject matter jurisdiction and must
dismiss this case under Rule 12(b)(1) because Plaintiff’s claims have lapsed under the
relevant Arkansas limitations period.
Federal courts have jurisdiction over claims brought under the FTCA only to the
extent the FTCA has waived the United States’ sovereign immunity. Brownback v. King,

141 S. Ct. 740, 746 (2021). That waiver extends to certain torts committed by federal
employees while acting within the scope of their employment. 28 U.S.C. § 1346(b)(1).
The Act specifies “[t]he United States shall be liable . . . in the same manner and to the
same extent as a private individual under like circumstances.” 28 U.S.C. § 2674. Federal
courts therefore apply state substantive law—Arkansas’s, in this case—to determine
liability under the FTCA, but “federal law defines the applicable limitations period.” Wilcox
v. United States, 881 F.3d 667, 672 (8th Cir. 2018) (quoting In re Franklin Sav. Corp., 385
F.3d 1279, 1288 (10th Cir. 2004)).

3
The FTCA contains a two-year statute of limitations that begins to run when the
plaintiff discovers the alleged malpractice. See 28 U.S.C. § 2401(b); Reilly v. United
States, 513 F.2d 147, 148 (8th Cir. 1975). However, the United States argues the more
stringent limitations period in the Arkansas Medical Malpractice Act, Ark. Code Ann. § 16-

114-203, must be applied in this case because it is a statute of repose, a type of limitations
period that “creates a substantive right in those protected to be free from liability after a
legislatively determined period of time.” Hendrix v. Alcoa, Inc., 506 S.W.3d 230, 237 (Ark.
2016). Some federal courts have found that statutes of repose are substantive state law
that must be applied in actions arising under the FTCA. See, e.g., Huddleston v. United
States, 485 F. App'x 744, 746 (6th Cir. 2012) (affirming dismissal of FTCA medical
malpractice claim because Tennessee statute of repose had lapsed); Allen v. United
States, 2017 WL 1355492, at *3 (E.D. Mo. Apr. 13, 2017) (dismissing FTCA medical
malpractice claim for lack of subject matter jurisdiction because Missouri statute of repose
had lapsed).4
3F
The Arkansas limitations period, § 16-114-203, provides, in relevant part:
(a) Except as otherwise provided in this section, all actions for medical injury
shall be commenced within two (2) years after the cause of action
accrues.

(b) The date of the accrual of the cause of action shall be the date of the
wrongful act complained of and no other time.

4 Because the Court finds that § 16-114-203 is not a statute of repose, it does not address
whether the FTCA would preempt such a statute, an issue on which courts are currently
divided. See Bennett v. United States, 2021 WL 2333299, at *3 (W.D. Wash. June 8,
2021) (collecting cases).

4
Ark. Code Ann. § 16-114-203. This two-year limitations period begins to run on “the date
of the wrongful act complained of.” Id. Because the alleged “wrongful act” here—Dr.
Levy’s misdiagnosis of Mr. Phillips’s cancer—occurred in 2013, the United States argues
it is now free from liability under substantive state law and, therefore, has not waived
sovereign immunity.5 Plaintiff argues § 16-114-203 is a procedural statute of limitations
4F
that should not be applied in actions under the FTCA. The threshold question, then, is
whether § 16-114-203 is a statute of limitations or a statute of repose. This question has
not been answered by any court.
The Court concludes that § 16-114-203 is a statute of limitations. While strict, the
limitations period is measured from the date of claim accrual and is subject to several
common law tolling doctrines. As a result, § 16-114-203 does not apply in this case, and
this Court may exercise subject matter jurisdiction over Plaintiff’s FTCA claim.
1. Defining “Statute of Repose”
The United States Supreme Court has offered helpful guidance on the difference

between a statute of limitations and statute of repose. “Statutes of limitations and statutes
of repose both are mechanisms used to limit the temporal extent or duration of liability for
tortious acts. Both types of statute can operate to bar a plaintiff’s suit, and in each instance
time is the controlling factor.” CTS Corp. v. Waldburger, 573 U.S. 1, 7 (2014). The
Arkansas Supreme Court has relied on this guidance when analyzing Arkansas statutes.

5 The Court does not reach the merits of whether the Arkansas limitations period has in
fact run under the facts of this case. As explained below, if it did apply here, there are
several doctrines that may toll the running of the limitations period.

5
See Hendrix, 506 S.W.3d at 236.
A statute of limitations is “a time limit for suing in a civil case, based on the date
when the claim accrued.” Waldburger, 573 U.S. at 7 (quoting Statute of Limitations,
Black’s Law Dictionary (9th ed. 2009)). A claim accrues when it “come[s] into existence

as an enforceable claim or right.” Accrue, Black’s Law Dictionary (11th ed. 2019). A
personal injury claim typically accrues “when the injury occurred or was discovered.”
Waldburger, 573 U.S. at 8 (quoting Statute of Limitations, Black’s Law Dictionary (9th ed.
2009)).
In contrast, a statute of repose “puts an outer limit on the right to bring a civil action.
That limit is measured not from the date on which the claim accrues but instead from the
date of the last culpable act or omission of the defendant.” Id. A statute of repose creates
“an absolute bar on a defendant’s temporal liability.” Id. (cleaned up).
Statutes of limitation and statutes of repose have different purposes. Statutes of
limitation focus on encouraging plaintiffs to diligently bring their claims, while statutes of

repose focus on defendants’ eventual right to be “free from liability.” Id. at 8–9. Another
“central distinction between statutes of limitations and statutes of repose” is that statutes
of limitation are subject to equitable tolling while statutes of repose “generally may not be
tolled, even in cases of extraordinary circumstances beyond a plaintiff’s control.” Id. at 9.
The Arkansas Supreme Court has summarized the distinction this way:
While a statute of limitation allows a party to avoid suit, a statute of
limitations does not affect the validity of the claim. However, once the
period of duration under a statute of repose is expired, there is no suit to
avoid, because the statute of repose extinguishes the cause of action.

6
Ray & Sons Masonry Contractors, Inc. v. U.S. Fid. & Guar. Co., 114 S.W.3d 189, 199
(Ark. 2003).
2. Text of § 16-114-203
The text of the instant limitations period, § 16-114-203, contains elements of both

a statute of limitations and a statute of repose. Subsection (a) states that “all actions for
medical injury shall be commenced within two (2) years after the cause of action accrues.”
This phrasing—with a focus on the date of claim accrual—is characteristic of a statute of
limitations. See Waldburger, 573 U.S. at 7.
Subsection (b) states, in part, that “[t]he date of the accrual of the cause of action
shall be the date of the wrongful act complained of and no other time.” This subsection
again speaks in terms of accrual, but the accrual date is that of the “wrongful act
complained of.” This is characteristic of a statute of repose, which is “measured not from
the date on which the claim accrues but instead from the date of the last culpable act or
omission of the defendant.” Waldburger, 573 U.S. at 8. Statutes of limitation are focused

on the injury to the plaintiff. Statutes of repose are focused on the acts of the defendant,
irrespective of the plaintiff’s injury or when their cause of action accrues. The text of § 16-
114-203(b) looks to both the injury to the plaintiff and the acts of the defendant.
Under Arkansas law, “[t]he basic rule of statutory construction is to give effect to
the intent of the legislature.” City of Little Rock v. Rhee, 292 S.W.3d 292, 294 (Ark. 2009)
(quoting Great Lakes Chem. Corp. v. Bruner, 243 S.W.3d 285, 291 (Ark. 2006)). In that
light, the Arkansas state legislature’s inclusion of “accrual” language in § 16-114-203 is
telling. See Waldburger, 573 U.S. at 8 (explaining that statutes of repose are “not related

7
to the accrual of any cause of action” (quoting 54 C.J.S., Limitations of Actions § 7, p. 24
(2010))).
The legislature is quite capable of drafting a statute of repose that measures
liability from the date of the last wrongful act without including any refence to the accrual

of the plaintiff’s injury. For example, Arkansas’s five-year statute of repose for lawsuits
involving construction contracts was enacted in 1967, 12 years before § 16-114-203. That
statute provides: “No action in contract . . . shall be brought . . . more than five (5) years
after substantial completion of the [construction project].” Ark. Code Ann. § 16-56-112(a).
The statute does not reference the accrual of the cause of action. It’s clear—no action
may be brought after the cut off. The Arkansas Supreme Court has explained the
construction contracts statute is a statute of repose in part because it may “cut off entirely
an injured person’s right of action before it accrues.” Rogers v. Mallory, 941 S.W.2d 421,
423 (Ark. 1997); see also Hendrix, 506 S.W.3d at 236 (explaining the limitations period in
the Arkansas Workers’ Compensation statute is a statute of repose in part because a

claim may be cut off prior to it accruing). The instant statute, § 16-114-203, begins running
from the date of claim accrual. By definition, then, the statute cannot lapse prior to accrual.
Had the legislature intended to include a statute of repose in the Medical
Malpractice Act, it could have mirrored the “no action” language in the construction
contracts statute, as it has done in other statutes. See, e.g., Ark. Code Ann. § 16-56-
107(a) (1985) (“No action to enforce a security interest in livestock shall be brought . . .
more than eighteen (18) months after the date of the sale.”). Alternatively, the legislature
could have simply omitted the references to claim accrual at the end of subsection (a)

8
and the beginning of subsection (b) of § 16-114-203. The remaining language could have
been combined into a single section that would read, “all actions for medical injury shall
be commenced within two (2) years after the date of the wrongful act complained of and
no other time.” Instead, the legislature included language that is inconsistent with statutes

of repose. It wrote subsection (a) to define the length of the limitations period based on
the date of claim accrual and subsection (b) to define when a claim accrues. Ignoring this
“accrual” language would render those portions of subsections (a) and (b) “superfluous
or insignificant” and would fail to “give meaning and effect to every word in the statute.”
Rhee, 292 S.W.3d at 294 (quoting Great Lakes Chem. Corp., 243 S.W.3d at 291). The
legislature’s choice to measure from the date of claim accrual indicates the legislature
intended § 16-114-203 to be a statute of limitations.
With the apparent intent of the legislature in mind, the Court now turns to how
Arkansas courts have applied § 16-114-203.

3. Arkansas Courts’ Application of § 16-114-203
While the Arkansas Supreme Court has “consistently interpreted the limitation in
§ 16–114–203 strictly, commencing the two year period from the date of the act of alleged
malpractice,” Green v. Nat'l Health Lab'ys Inc., 870 S.W.2d 707, 709 (Ark. 1994), it has
never squarely addressed whether § 16–114–203 is a statute of repose. The court has,
however, recognized that § 16–114–203 may be tolled under several common law
doctrines.
In Arthur v. Adams, the appellants argued § 16-114-203 is a statute of repose and,
under heightened scrutiny, violated their rights to equal protection of the law, a jury trial,

9
and redress of wrongs under the Arkansas Constitution. 969 S.W.2d 598, 616 (Ark. 1998).
The court found § 16-114-203 constitutional under rational basis review. Id. at 617. The
court reasoned, “While it is true that the statute may be more accurately described as a
statute of repose, we decline to apply strict scrutiny in examining the statute's

constitutionality.” Id. at 616. While this statement is instructive, it is far from dispositive.
Whether § 16-114-203 was a statute of repose was of no consequence to the result—the
court concluded the legislature had a rational basis to enact the statute regardless of the
type of limitations period it was. Because the appellants described § 16-114-203 as a
statute of repose, the court may have simply been adopting the same word choice in
responding to the appellants’ argument. The court may also have been opining on the
relative harshness of the limitations period, rather than parsing the distinction between a
statute of limitations and statute of repose. The court suggested as much, writing later in
the opinion that “any statute of limitations will eventually operate to bar a remedy, and the
time within which a claim should be asserted is a matter of public policy, the determination

of which lies almost exclusively in the legislative domain.” Id. at 617.
Even recognizing the Arkansas Supreme Court has—in dicta—described § 16-
114-203 as a statute of repose, the question is whether it has applied the statute as a
complete time bar to recovery. It has not.
In addition to the exceptions listed in the statute itself, Arkansas courts will toll the
limitations period in at least three circumstances. First, the Arkansas Supreme Court has
held that § 16-114-203 did not “obviate the common law exception for fraudulent
concealment.” Howard v. Nw. Arkansas Surgical Clinic, P.A., 921 S.W.2d 596, 599 (Ark.

10
1996). Under the fraudulent concealment doctrine, the limitations period will be tolled
where there has been a “positive act of fraud, something so furtively planned and secretly
executed as to keep the plaintiff’s cause of action concealed, or perpetrated in a way that
it conceals itself.” Id. at 600. The court explained that tolling the statute due to fraud

comports with the legislature’s intent because “[t]he alleged act of concealment is part
and parcel of the wrongful act complained of. Until the concealment ends, the wrongful
act continues. We cannot imagine that the General Assembly intended to allow physicians
to evade responsibility for negligent acts by knowingly concealing them from their patients
until after the statute of limitations had run.” Id.
The United States argues the fraudulent concealment exception is not necessarily
incompatible with statutes of repose. It points to Arkansas’s statute of repose for
construction contracts, § 16-56-112(a), which can also be tolled for fraudulent
concealment. See Rogers, 941 S.W.2d at 423. The crucial distinction, however, is that
fraudulent concealment is a statutory exception to the construction contracts statute. See

Ark. Code Ann. § 16-56-112(d); see also Rogers, 941 S.W.2d at 423 (finding the
construction contracts statute of repose could not be tolled for equitable considerations).
The legislature is free to define the contours of the substantive right created by a statute
of repose. In contrast, the fraudulent concealment exception to § 16-114-203 was
imposed by the courts based on common law equitable principles. See Howard, 921
S.W.2d at 599.
Second, § 16-114-203 may be tolled under the continuous treatment doctrine,
recognized by the Arkansas Supreme Court in Lane v. Lane, 752 S.W.2d 25 (Ark. 1988).

11
The court adopted the following definition of the doctrine:
If the treatment by the doctor is a continuing course and the patient’s illness,
injury or condition is of such a nature as to impose on the doctor a duty of
continuing treatment and care, the statute does not commence running until
treatment by the doctor for the particular disease or condition involved has
terminated unless during treatment the patient learns or should learn of
negligence, in which case the statute runs from the time of discovery, actual
or constructive.

Id. at 26–27 (quoting 1 D. Louisell and H. Williams Wachsman, Medical Malpractice
§ 13.08 (1982)). In adopting the doctrine, the court relied in part on the unfairness in
requiring a plaintiff who underwent a course of similar treatments to identify the particular
treatment that caused the plaintiff’s injury. Id. at 27. This reliance on equity suggests the
court was not treating § 16-114-203 as a statute of repose.
Third, § 16-114-203 may be tolled under the doctrine of equitable estoppel.
Equitable estoppel is “a general equity principle not limited to the statute of limitations
context . . . which comes into play if the defendant takes active steps to prevent the
plaintiff from suing in time, as by promising not to plead the statute of limitations.” Cada
v. Baxter Healthcare Corp., 920 F.2d 446, 450–51 (7th Cir. 1990). In Scarlett v. Rose
Care, Inc., the Arkansas Supreme Court found equitable estoppel could toll the running
of § 16-114-203 but the plaintiff had not satisfied the necessary elements. 944 S.W.2d
545, 547 (Ark. 1997). Statutes of repose are not subject to tolling for equitable estoppel.
Cada, 920 F.2d at 451.
Arkansas courts have treated § 16-114-203 as a statute of limitations by subjecting
it to these three common law tolling doctrines that potentially allow plaintiffs to recover
years beyond the ostensible cut-off. This reasoning is confirmed by the Arkansas

12
Supreme Court’s treatment of the statute of repose governing construction contracts. In
Carlson v. Kelso Drafting & Design, Inc., the court declined to toll the statute of repose.
374 S.W.3d 726, 729 (Ark. 2010). The appellants asked the court “to adopt a ‘repair
doctrine’ that would have the effect of tolling the statute during the period that appellees

attempted repairs and representations were made that the repairs would cure the
defects.” Carlson, 374 S.W.3d at 729. The court held that, while the repair doctrine could
toll a statute of limitations, it could not toll a statute of repose. Id. The court explained:
“Given the legislative intent and the supreme court’s consistent refusal to graft judicially
created exceptions onto the statute of repose, we decline appellants’ invitation to amend
the statute by judicial fiat.” Id. The Supreme Court has shown no such resistance to “graft
judicially created exceptions onto” § 16-114-203.
Section 16-114-203 is a statute of limitations because it begins running from the
date a claim accrues and is subject to several common law tolling doctrines. It does not
create a substantive right for the defendant to be free from liability after two years. Rather,

it is a strict, but not unyielding, time limitation on a plaintiff bringing their cause of action
after it has accrued. Therefore, § 16-114-203 does not apply in this case, and the Court
does not lack subject matter jurisdiction on the basis that Plaintiff’s claim has been
extinguished under substantive state law.
B. FTCA Limitations Period
In the alternative, the United States argues Plaintiff’s claims are barred by the
FTCA’s two-year statute of limitations. The FTCA statute of limitations is not jurisdictional.
U.S. v. Kwai Fun Wong, 135 S. Ct. 1625, 1638 (2015) (abrogating T.L. v. United States,

13
443 F.3d 956, 961 (8th Cir. 2006)). Rather, it is an affirmative defense, and the United
States bears the burden of proving that an FTCA claim is time-barred. See Trinity Marine
Products, 812 F.3d 481, 486 (5th Cir. 2016). “If an affirmative defense is apparent on the
face of the complaint . . . that defense can provide the basis for dismissal under Rule

12(b)(6).” C.H. Robinson Worldwide, Inc. v. Lobrano, 695 F.3d 758, 764 (8th Cir. 2012)
(cleaned up).
The Court therefore construes this argument as being brought under Rule 12(b)(6),
for failure to state a claim upon which relief can be granted, rather than Rule 12(b)(1). In
ruling on a motion to dismiss under Rule 12(b)(6), the Court must “accept as true all facts
pleaded by the non-moving party and grant all reasonable inferences from the pleadings
in favor of the nonmoving party.” Gallagher v. City of Clayton, 699 F.3d 1013, 1016 (8th
Cir. 2012) (quotation marks omitted).
The FTCA provides that “[a] tort claim against the United States shall be forever
barred unless it is presented in writing to the appropriate Federal agency within two years

after such claim accrues or unless action is begun within six months after the date of
mailing, by certified or registered mail, of notice of final denial of the claim by the agency
to which it was presented.” 28 U.S.C. § 2401(b). In medical malpractice actions, the two-
year period begins running when “the claimant discovers, or in the exercise of reasonable
diligence should have discovered, the acts constituting the alleged malpractice upon
which the cause of action is based.” Reilly, 513 F.2d at 148.
The United States argues Plaintiff’s claim accrued at the time of Mr. Phillips’s death
in 2014. It relies on Flores v. United States, 689 F.3d 894 (8th Cir. 2012), for that

14
proposition. In Flores, the Eighth Circuit held only that “[t]he magistrate judge did not
clearly err in finding that plaintiffs’ claim accrued upon [the patient’s] death” under the
facts presented in that case. Id. at 901. There, prior to the patient’s death, the plaintiff was
aware of the patient’s injury and “reasonably should have known of its cause.” Id. There

is no per se rule that an FTCA claim accrues upon death. Instead, the Court must examine
the facts alleged here and determine when Plaintiff learned of “the acts constituting the
alleged malpractice.” Reilly, 513 F.2d at 148.
The Complaint alleges Dr. Levy misdiagnosed Mr. Phillips’s cancer as benign on
or around October 18, 2013, Mr. Phillips never received treatment for that cancer, Mr.
Phillips died on December 5, 2014, and “[o]n or about July 2019, the family of Mr. Phillips
was notified by the Fayetteville VA that Dr. Levy’s diagnosis was incorrect and that his
erroneous pathology report had been modified to show Metastatic Adenocarcinoma.”
(Doc. 2, ¶¶ 25, 28, 37). Nothing in the Complaint suggests that, after Mr. Phillips died, his
family investigated the cause of death and learned that his cancer had been

misdiagnosed. The reasonable inference to draw from the Complaint is that Plaintiff did
not learn of the misdiagnosis—the principal act constituting the alleged malpractice—until
the VA contacted him in July 2019.6
5F
Based on the facts in the Complaint and all reasonable inferences drawn

6 The Complaint also alleges the VA was directly negligent in its hiring, supervision, and
retention of Dr. Levy and in its failure to establish adequate policies and procedures that
would prevent the harm Mr. Phillips suffered. The United States does not contend in its
Motion that the statute of limitations has lapsed on these claims. In any event, Court infers
from the Complaint that Plaintiff did not learn of the acts constituting the alleged direct
negligence by the VA until after July 2019.

15
therefrom, the Court finds that Plaintiff satisfied the FTCA limitations period by filing his
administrative claim in August 2020, approximately one year after the VA informed
Plaintiff of the underlying acts that form the basis of Plaintiff’s claim. Accordingly, this
action cannot be dismissed based on the FTCA limitations period. The United States has

preserved this issue, however, and is free to raise it again after further discovery takes
place.
C. Motion for Sanctions
Plaintiff’s Motion for Sanctions asks the Court to strike the United States’ Motion
to Dismiss and hold the United States in default for failing to timely respond to the
Complaint. (Doc. 30, p. 15). Plaintiff argues the Motion to Dismiss is frivolous, not
warranted by existing law, and was filed for an improper purpose—to delay and frustrate
Plaintiff’s claims. Id. at 6–15. The Court disagrees. The United States’ Motion to Dismiss
is a good faith attempt to extend or modify existing law.
Under Rule 11, when an attorney signs and presents a pleading to the Court, the

attorney certifies, in relevant part, that the pleading is not being presented for any
improper purpose—such as to harass, cause unnecessary delay, or needlessly increase
the cost of litigation—and the claims, defenses, and other legal contentions are warranted
by existing law or by a nonfrivolous argument for extending, modifying, or reversing
existing law or for establishing new law. “[T]he standard under Rule 11 is whether the
attorney’s conduct, ‘viewed objectively, manifests either intentional or reckless disregard
of the attorney’s duties to the court.’” Clark v. United Parcel Serv., Inc., 460 F.3d 1004,
1010 (8th Cir. 2006) (quoting Perkins v. Spivey, 911 F.2d 22, 36 (8th Cir. 1990)).

16
The United States’ Motion to Dismiss brings a novel, nonfrivolous argument that
this Court lacks subject matter jurisdiction because the Arkansas Medical Malpractice Act
contains a statute of repose. The Court disagrees with the United States’ conclusion, but
its argument is clearly within the bounds of good faith.
Plaintiff argues the Eighth Circuit case Vaughns v. United States, 20 F. App’x 585
(8th Cir. 2001), controls the outcome of the Motion to Dismiss yet was not cited by the
United States. In Vaughns, the Eighth Circuit affirmed the district court’s dismissal of an
FTCA claim, brought pursuant to Arkansas law, because the FTCA statute of limitations
had not been satisfied. /d. at 586. There, neither the district court nor the Eighth Circuit
addressed the statute of repose issue raised in the United States’ Motion to Dismiss. It
would be absurd to sanction litigants for bringing a novel jurisdictional challenge merely
because earlier courts had not addressed the issue. This is simply not a circumstance
Rule 11 is designed to remedy.
lll. CONCLUSION
For the reasons stated, the United States’ Motion to Dismiss (Doc. 19) and
Plaintiffs Motion for Sanctions (Doc. 30) are both DENIED. Pursuant to Federal Rule of
Civil Procedure 12(a)(4)(A), the United States is ORDERED to file an answer no later
than February 28, 2022.
IT IS SO ORDERED on this 14th day of February, 2942.

UNITED STATES DISTRICT JUDGE

17

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10011568. Public record. Not legal advice.