Petition for Writ of Certiorari — Landreth ex rel. Ore v. United States

88-772

In the Supreme Court of the

United States -

October Term, 1988

CARA LYN LANDRETH, a minor,

by and through her Guardian Ad Litem,

JOSEPH Y. ORE

Petitioner,

v.

UNITED STATES OF AMERICA

Respondent

ON WRIT OF CERTIORARI TO THEI

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

LAW OFFICES OI

KU & FONG

H.G ROBERT FONG

609 S. Grand Avenue

Suite 1000

Los Angeles, California 90017

Telephone. (213) 488-1400

dfform for Petitioner

(CARA TILIYNIANDRETH

Westside Law Publishers Los Angeles, California (213) 477-0491

QUESTIONS PRESENTED

Where an infant has been injured by the medical

malpractice of the government, and where the medical

malpractice also spawns a legally cognizable conflict of

interest in the infant’s parents which would disqualify

them from representing the infant in a claim for damages

for such malpractice,

1. When does the claim accrue under the Federal Tort

Claims Act for purposes of the statute of limitations

under 28 U.S.C. Section 2401(b)?

2. Does a neutral guardian ad litem with no conflict

of interest have to be appointed before the infant’s claim

accrues for purposes of 28 U.S.C. 2401(b)?

3. To bar the infant’s claim, is it permissible under

the due process and equal protection clauses to impute

to and against her (1) the knowledge of her parents to

begin the accrual of the claim and (2) their failure to

file a timely claim?

4. Is there any rational basis for discriminating against

the infant by imputing to the infant the knowledge of

her parents and their failure to file a timely claim, when

an adult in the same position would not be so

disadvantaged?

5. Is the government constitutionally estopped from

asserting the statute of limitations before a neutral

guardian is appointed?

TOPICAL INDEX

Page

Questions Preserted ae

Topical Index | f. i

Table of Authorities | . ill

Opinion Below l

Jurisdiction 2

Statutory Provisions Involved 2

Statement Of The Case .......... | essnuenaeea a

Reasons For Granting The Writ 5

The Holding Below Transgresses The Traditional

Role Of The Courts To Avoid Injustice And

Absurd Consequences | 6

Il.

Reversal Is Required To Avoid Violations Of Due

Process And Equal Protection Of Minors......... 7

A. The Holding Violates Due Process.............. en

B. The Holding Violates Equal Protection...... cane

C. The Holding Below Conflicts with Holdings

of the Supreme Court, The Seventh Circuit,

and the California Supreme Court................. 10

D. The Purpose for 28 U.S.C. Section 2401(b) is

Not Necessarily Advanced by the Ruling

Below oat Seem wicsunoseadeskudkusbascass 12

Conclusion . See

Appendix A ... Al

iV

TABLE OF AUTHORITIES CITED

Cases Page

Ash v. Mortensen, 24 Cal. 2d 654 at 657 (1944)........ 5

Chevron Oil Co. v. Huson, 404 U.S. 97 at 107-

ITE coxcducanbcdaechnnt Stonseasntimatte snienmceneonas 11

Chicago Rock Island & Pacific Ry. Co. v. United

States, 220 F.2d 739 (7th Cir. 1955) ............... 13

Clark v. Halstad, 93 N.Y.S.2d 49 (1949) ............ 5, 13

Clark v. Jeter, __. U.S. —— 56 U.S. Law Week

4527; 108 S.Ct. 1910, 100 L.Ed.2d 465 (1988) .... 8

Commodity Futures Trading Comm’s v. Schor, 478

ie Gy), ee eepibakeeaescnuseeaaceanauan i}

Crowell v. Benson, 285 U.S. 22 (1932).................. 11

Dundon v. United States, 559 F.Supp. 469

SRI MEIN nud coeds cadhanansaceshucisebsebesdases 10

Herrero v. Atkinson, 227 Cal.App.2d

I cata dakckcasiankigunded accecdsananaaestecanee 5, 13

In re Chicago, Rock Island and Pacific Railroad

Company, 788 F.2d 1280 (7th Cir. 1986)...... 8, 12

Logan v. Zimmerman Brush Co., 455 U.S. 422

(DRE ne ey ry ey ae Ne ey 8

Mills v. Habluetzel, 456 U.S. 91 (1982) .................. 8

Pardy v. United States, 575 F.Supp. 1078 (S.D.

ul; SEE 2-0 .4 a tcowiabpedueanceeduanaiauamehasmhecness 10

People ex. rel Dept. of Transportation v. Superior

Court, 26 Cal. 3d 744 at 751 (1980)................ 13

ys. pe © eis ee Th | errr 11

Sorrells v. United States, 287 U.S. 435

I --) osucul eae aaebaaseaenrnssanbenaaesseeaed 6

United States v. Kubrick, 444 U.S. 111 (1979)..... 7,13

United States v. 1,960 Bags of Coffee, MD., 8 Crach

se cy ME EE oak cnt asdacnrnccectaccsdtenses 7

Washington v. United States, 769 F.2d 1436 (9th

Re ho re tase oe ca a eepseperaaenes 10

ee

Weber v. Aetna Casualty & Surety Co., 406 U.S.

Ate ai ee 12

Young v. Haines, 41 Cal.3d 883 (1986) ................. 12

Zeidler v. United States, 601 F.2d 527 (10th Cir.

POPU. cxiviasvisesdesaeudaceell tee 10

Statutes

California Civil Procedure

etre terre ation tig toler any 13

28 U.S.C.

mbt BIRO E: «. <sc<cnccckestddeeusineeeeeeee 2

Section 2401(b)................ 2, 4, 5, 8, 9, 10, 12, 13

No.

In the Supreme Court of the

United States

October Term, 1988

CARA LYN LANDRETH, a minor,

by and through her Guardian Ad Litem,

JOSEPH Y. ORE.

Petitioner,

V.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

OPINION BELOW

The opinion of the Ninth Circuit Court of Appeals,

which ts reported, appears in Appendix A.

JURISDICTION

The Ninth Circuit entered its judgment and opinion

on June 23, 1988. Petitioner timely filed her Petition

for Rehearing and suggestion for hearing en banc on

July 7, 1988. The Ninth Circuit entered its order denying

the Petition for Rehearing and rejecting the hearing en

banc on September 26, 1988. On October 14, 1988 the

Ninth Circuit granted Petitioner’s motion to stay the

mandate to November 4, 1988. Petitioner filed her

Petition for Writ of Certiorari within ninety days of

the of denial of the Motion for Rehearing. This Court’s

jurisdiction is invoked under 28 U.S.C. Section 1254(1).

STATUTORY PROVISIONS INVOLVED

25 U.S.C. Section 2401(b). Time for commencing

action against United States.

(b) 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.

Section 2401(b)

STATEMENT OF THE CASE

This is a medical malpractice action arising under the

Federal Tort Claims Act. It is brought by a minor

plaintiff, Cara Lyn Landreth, through a non-parental

guardian ad litem. The claim stems from events occurring

at Plattsburg Air Force Base in New York when Cara

was less than one year old.

On the morning of March 30, 1973, Cara’s parents

were negligent in “leaving medicine in the reach of

children.” As a result of the negligence,' Cara ingested

an unknown amount of Quibron,’ a prescription asthma

'The United States admitted to such negligence in responses to

requests to admit.

*Quibron is highly toxic at high blood serum levels, but its effects

can be counteracted by anti-seizure medications.

medication taken by her mother, Jennie Landreth.

Although her mother found her swallowing the

medication in time to rush her to the base hospital, the

Air Force failed to remove the Quibron from her system.

The Air Force medical personnel also failed to keep

her for observation to determine if she needed anti-

seizure medication to counteract the Quibron. Instead,

the military physician in charge, Dr. Bruce M. Smith,

handed over her care to two “medical technicians” who

were instructed by him to administer 15 cc’s of ipecac,

reassure the parents, and send them home. Eight to ten

hours later, Cara went into seizures.

Cara was then rushed back to the base hospital and

later admitted into Montreal Children’s Hospital, where

she was hospitalized for six days and then discharged

as “normal.” The discharge was without benefit of the

results of an EEG, which showed abnormal brain waves.’

For the next two years, while Cara’s father remained

in the Air Force, she was treated by the Air Force for

learning difficulties and emotional problems. The Air

Force failed to perform any neurological workup during

the two years. The Air Force medical records state that

the Quibron “ingestion resolved without obvious

sequelae.” -

Petitioner alleges that the medical malpractice of the

military physician, who abandoned her to take care of

his car, negligently caused her to sustain permanent brain

damage which was not identified and medically linked

to the Quibron ingestion until 1977 or 1978. By that

time, Cara’s parents were divorced and Jennie Landreth

‘Cara’s representatives did not even discover these abnormal

findings until suit was filed, as the Air Force and the Landreths

never received these findings until then.

had sole legal custody. Neither parent filed a medical

malpractice claim on Cara’s behalf.

The conflict of interest between Cara and her parents

required that the action to be brought by a non-parental

guardian ad litem, Mr. Joseph Y. Ore. As a matter of

law, her parents would be liable for the results of the

malpractice, since the law deems malpractice a

foreseeable consequence of their negligence.

Cara, through her attorney, filed an FTCA adminis-

trative claim dated September 6, 1983 alleging the Air

Force was negligent. The Air Force rejected the claim

on May 15, 1984, finding the claim was time barred.

On November 7, 1984 the guardian ad litem was

appointed for Cara and suit was filed in the district

court. The complaint alleged, among other things, that

barring her action by imputing to Cara her parents’

failure to file a claim would violate due process and

equal protection. Subsequently, the United States filed

a motion for summary judgment. The district court held

the suit was barred by the two-year statute of limitations

under the FTCA, 28 U.S.C. Section 2401(b) and

dismissed the action.

The Ninth Circuit Court of Appeals, in a split decision

filed on June 23, 1988, affirmed the district court's ruling

dismissing Cara’s lawsuit. The majority held that Cara's

claims were not “of constitutional proportion,” and that

the legally cognizable conflict of interest held by her

parents neither prevented the fictional imputation of

necessary knowledge to her to begin accrual of her claim,

nor relieved her of the duty to file a claim within two

years of that accrual.

REASONS FOR GRANTING THE WRIT

The judicial task below was to interpret 28 U.S.C.

Section 2401(b) in a medical malpractice case involving

a brain damaged infant, where the infant claimed that

the government’s malpractice caused both her brain

damage and spawned a conflict of interest‘ between her

and her parents. The resultant rulings are a dangerous

precedent in that they fail to recognize that minors hold

constitutional rights independent of their parents, and

they unnecessarily deprive Cara of due process rights

afforded to adults in the same situation.

The courts below should have found that the statute

of limitations had not run for any of the following

reasons.

1. The court’s traditional role to interpret the

law to prevent injustice, whenever possible,

dictated a holding that Cara’s claim was not

time barred.

2. The due process clause prevented imputing

to Cara any failure of her parents’ to file a

claim.

3. Since adults in Cara’s position would not

be time barred, and there was no rational basis

under equal protection requirements for

discriminating against Cara solely because of

her minority status, the statute had not run.

“See dissent, below; Ash v. Mortensen, 24 Cal. 2d 654 at 657 (1944),

Clark v. Halstad, 93 N.Y .S.2d 49 (1949). Note that while the parents

could seek indemnity from the United States under Herrero v.

Atkinson, 227 Cal.App.2d 69 (1964), they are not assured of such

indemnity. Additionally, Cara would not be able to prevent them

from either defaulting on a complaint by her against them, force

them to file against the United States, or forego a bankruptcy.

4. Cara’s claim was clearly protected under the

due process and equal protection clauses as

“property”; hence her claims were of constitu-

tional proportions and subject to constitutional

protection.

5. The principles and analyses set forth in

decisions of the United States Supreme Court,

the Seventh Circuit and California Supreme

Court dictated a ruling in favor of Cara.

Rather than accepting common sense and citing these

compelling reasons for holding that the statute of

limitations had not run, the majority denied all relief.

In doing so, they violated well established principles set

forth in Supreme Court decisions; disregarded a

constitutional analysis accepted by the Seventh Circuit;

ignored a unanimous holding by the California Supreme

Court; and simply held that Cara’s claim was not “of

constitutional proportions.” They found her parents’

conflict of interest was of no consequence, and that,

although they were not “unsympathetic to Cara’s

condition,” they would not follow a sensible construction

of the statute of limitations to avoid forfeiture of her

claim.

As shown below, common sense and well established

precedents dictate a reversal.

THE HOLDING BELOW TRANSGRESSES

THE TRADITIONAL ROLE OF THE COURTS

TO AVOID INJUSTICE AND ABSURD

CONSEQUENCES

One of the traditional functions of the courts is to

construe statutes so as to avoid absurd or glaringly unjust

results, foreign to legislative purposes. Sorrells v. United

States, 287 U.S. 435, 450 (1932).

“Literal interpretation of statutes at the expense

of the reason of the law and producing absurd

consequences or flagrant injustice has fre-

quently been condemned.” /d. at 446.

Although the majority below was sympathetic to

Cara’s condition, it compounded the injustice to her by

depriving her of her claim for compensation for the

permanent damage to her brain. This was done by

holding that she had “slept on her rights.” The Supreme

Court has repeatedly found that the legislature intends

exceptions to its language to avoid such results. Id. at

447-448. The holdings below represent a sharp departure

from established tenets of statutory construction.

Instead of straining in an attempt to avoid injustice,

the majority strained to fit this case into the statute

of limitation rule in United States v. Kubrick, 444 U.S.

111 (1979) by holding through a /egal fiction that Cara

both knew of her injury and the cause thereof so that

her claim accrued when her parents had this knowledge.

The majority used the fiction of imputing her parents’

knowledge and their delays to bar her action, ignoring

the following venerated principle of law:

“It seems to be a rule founded in common sense,

as well as strict justice, that fictions of law shall

not be permitted to work any wrong, but shall

be used ut res magis valeat quam pereat, . .

and this rule, so equitable in itself, seems

recognized in the common law.”

United States v. 1,960 Bags of Coffee, MD..,

8 Crach 398, 415, 3 L.Ed. 602 (1814).

The rulings below could only have resulted

from a failure to consider fundamental!

guidelines controlling the role of the courts.

i

REVERSAL IS REQUIRED TO AVOID VIO-

LATIONS OF DUE PROCESS AND EQUAL

PROTECTION OF MINORS

A. The Holding Violates Due Process.

The Supreme Court has repeatedly and without

hesitation overturned statutes of limitations which it has

determine violate the due process and equal protection

rights of illegitimate minors. In a series of cases from

Mills v. Habluetzel, 456 U.S. 91 (1982) to Clark v. Jeter,

__. U.S. ___; 56 U.S. Law Week 4527; 108 S.Ct. 1910,

100 L.Ed.2d 465 (1988), the Court uniformly held that

statutes of limitation which effectively apply against

minors must now be scrutinized under heightened due

process and equal protection standards. The rationale

in those cases applies here.

Cara’s due process and equal protection arguments

are based on the fact that the lower courts’ interpretation

of 28 U.S.C. Section 2401(b) provides her with illusory

due process at best, because it allows the statute to run

against her, when her parents have a conflict of interest.

Adults in the same position would not be so

disadvantaged.

The Seventh Circuit recently analyzed a similar

circumstance involving the running of the statute of

limitations for filing a minor's claim in bankruptcy. /n

re Chicago, Rock Island and Pacific Railroad Company,

788 F.2d 1280 (7th Cir. 1986). There the minor argued

that the statute should be tolled during his minority.

In marked contrast to the majority opinion below, the

court felt compelled to address the due process issue,

since Logan v. Zimmerman Brush Co., 455 U.S. 422,

428-31, (1982) expressly treats a cause of action as

“property” within the meaning of the Constitution’s due

process clauses. In a situation strikingly similar to the

case at bar, but where there was no conflict of interest,

the court held that the minor’s due process rights were

not violated, since he was represented by his mother.

The following language by Judge Posner is instructive:

“Granted, for the government to create a right

of action but then erect an insuperable barrier

to its being vindicated by a particular class of

claimants, such as minors, might in some

circumstances be so unreasonable as to raise

questions of due process - but not in the

circumstances of this case. Dyche is content

with a rule that requires the minor to sue during

his minority, provided only that the court

appoints a guardian ad litem; and we think

the parent who has custody of the minor

(Dyches’s mother, in this case - she was either

divorced from his father or widowed, the record

does not show which, but in any event she had

remarried and had custody of Dyche) is a

constitutionally adequate substitute, so Jong as

there is no showing of a conflict of interest.”

Id. at 1281-2 [Emphasis added].

Cara falls within the caveat enunciated by Judge Posner,

since she had a governmentally created right of action

with an insuperable barrier consisting of her minority

and the parental conflict of interest with her parents

“erected” by the government’s malpractice.

B. The Holding Violates Equal Protection.

Adults in the same position as Cara would be afforded

Due Process and would have their claims tolled during

their disability, when their injuries and disabilities are

caused by the government’s medical malpractice. In

10

Washington v. United States, 769 F.2d 1436 (9th Cir.

1985), Zeidier v. United States, 601 F.2d 527 (10th Cir.

1979), Pardy v. United States, 575 F.Supp. 1078 (S.D.

Ill. 1983), and Dundon v. United States, 559 F.Supp.

469 (E.D.N.Y. 1983), the courts uniformly held that adult

victims of malpractice, who could not know and

appreciate their injury and the cause thereof, would not

lose their claims under 28 U.S.C. Section 2401(b) during

the term of their disability, even though a spouse or

relative could have been appointed as a conservator or

guardian ad litem to file a claim for them. Because of

the conflict of interest clearly established in the record

below, Cara was ina position no different than the adults

in these cases. There is no rational basis for discrim-

inating against her, just because she is a minor.

C. The Holding Below Conflicts with Holdings

of the Supreme Court, The Seventh Circuit,

and the California Supreme Court

The case involves such a departure from well-rooted

jurisprudential doctrines and cardinal principles of

statutory construction, that it must be overturned, or

else it will serve as authority for permitting the use of

fictions to interpret a statute, resulting in injustice and

absurdity, even when the ultimate purpose of the statute

is not likely to be served.

The task below was to construe 28 U.S.C. Section

2401(b) in a manner consistent with the Constitution.

“When the validity of an act of the Congress

is drawn in question, and even if a serious doubt

of constitutionality is raised, it is a cardinal

principle that this Court will first ascertain

whether a construction of the statute is tairly

possible by which the question may be

avoided.” Crowell v. Benson, 285 U.S.22. 62

(1932).

While the Court may not pervert the purpose of a

Statute or judicially rewrite it, federal statutes are to

be so construed as to avoid serious doubt of their

constitutionality. Commodity Futures Trading Comm'’s

v. Schor, 478 U.S. 833, 841 (1986). When they cannot

be so construed, they are declared unconstitutional.

Hence, the Court has found it necessary to hold as void,

statutes of limitation as long as six years for determining

paternity Clark v. Jeter, supra. Cara does not seek such

a drastic remedy, but only a holding that where there

is a legally cognizable conflict of interest between parent

and child, and where the conflict arises from the acts

giving rise to the claim, the statute is tolled until a neutral

guardian ad litem is appointed. Cara could not file a

claim for herself during her minority; this had to be

done through a guardian ad litem or friend. Holding

that Cara’s rights and the filing of the claim by a guardian

ad litem were retroactively barred by her parents’ failure

to file a claim smacks of the type of anomalous

retroactive time bars repudiated by the Court in Chevron

Oil Co. v. Huson, 404 U.S. 97 at 107-8 (1971). A ruling

against Cara would be a ruling that she had “slept on

her rights” when through no fault of her own she could

not have known of the time limitation and could not

have filed a claim. Moreover, visiting the failures of

her parents on her would be unjust and would not

comport with fundamental conceptions of justice. Plyer

v. Doe, 457 U.S. 202 (1981).

“[V]isiting ... condemnation on the head of

an infant is illogical and unjust. Moreover,

imposing disabilities on the ... child is

contrary to the basic concept of our system

that legal burdens should bear some relation-

12

_ ship to individual responsibility or wrongdoing.

Obviously, no child is responsible for his birth

and penalizing the. . . child is an ineffectual—

as well as unjust— way of deterring the parent.”

Weber v. Aetna Casualty & Surety Co., 406

U.S. 164, 175 (1972) (footnote omitted).

The Seventh Circuit’s analysis in /n re Chicago, Rock

Island and Pacific Railroad Company, 788 F.2d 1280,

supra. would compel a ruling in favor of Cara. So would

the unanimous ruling by the California Supreme Court

in Young v. Haines, 41 Cal.3d 883 (1986). There the

court found that it would be constitutionally impermiss-

ible to interpret a statute of limitations against minors

by denying them the benefit of tolling afforded to adults

in malpractice cases. The court did not hesitate in

rejecting, under due process and equal protection

principles, a literal reading of the statute which would

have so discriminated against minor plaintiffs. /d. at

888-9.

D. The Purpose for 28 U.S.C. Section 2401(b)

is Not Necessarily Advanced by the Ruling

Below.

If the court's decision is not reversed, Cara will be

forced to sue her parents for negligence. This is an

onerous condition for vindicating her rights. It may or

may not result in her parents bringing in the United

States on a third party claim for indemnity.

Under both California and New York law, Cara’s

parents would have the right to an action for indemnity

‘In this case, “deterring” parents from delaying the filing of a claim

could result in their being found totally liable for the entire claim.

This potential conflict of interest would nullify of any such

deterrence.

13

against the government. Herrero v. Atkinson, 222 Cal.

App. 2d 69 (1964); Clark v. Halstad, 276 A.D. 17; 93

NYS 2d 49 (1949). This cause of action would permit

Cara’s parents to seek total indemnity against the

government for the malpractice performed on Cara, for

which they would be legally liable. /d. It is settled that

a cause of action for implied indemnity does not accrue

or come into existence until the indemnitee has suffered

actua! loss through payment. People ex. rel Dept. of

Transportation v. Superior Court, 26 Cal. 3d 744 at

751 (1980). The rule applies to governmental tort claims

against the United States. Chicago Rock Island & Pacific

Ry. Co. v. United States, 220 F2d 739 (7th Cir. 1955).

Hence, the provisions of 28 U.S. § 2041(b) would not

bar an action for indemnity.

Given the law of indemnity and given the fact that

the statute of limitations has not yet accrued on an

indemnity action by Cara’s parents, Cara could seek

indirect relief from the government by suing her parents.

That action is tolled until she reaches majority. Cal.

C. Civ. Proc. § 352. An action against her parents,

however, would be an abhorrent condition for enforcing

her rights, especially given the already strained

circumstances between the family members. Certainly,

an unjustified application of a legal fiction should not

be used to force her to sue her parents, she can indirectly

avoid 28 U.S.C. § 2401(b).

CONCLUSION

Petitioner submits that the Court should grant a

hearing on this matter to harmonize United States v.

Kubrick, 444 U.S. 111 (1979) with the due process and

equal protection rights of Petitioner.

Respectfully submitted,

H.G. ROBERT FONG

LAW OFFICES OF

KU & FONG

Attorneys for Petitioner

CARA LYN LANDRETH

APPENDIX

Al

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Cara Lyn LANDRETH, a minor, by |

and through her Guardian Ad

Litem, Joseru Y. Ore, No. 86-5732

Plaintiff-Appellant, D.C. No.

; r CV-84-8618-LEW

OPINION

UNITED STATES OF AMERICA,

Defendant-Appellee.

Appeal from the United States District Court

for the Central District of California

Laughlin E. Waters, District Judge, Presiding

Argued and Submitted

March 7, 1988—Pasadena, California

Filed June 23, 1988

Before: Jerome Farris and Stephen Reinhardt, Circuit

Judges, and Howard D. McKibben,* District Judge.

Opinion by Judge McKibben, Dissent by Judge Reinhardt

SUMMARY

Governmental Torts

Appeal from judgment dismissing a suit under the FTCA as

*Honorable Howard D. McKibben, United States District Judge. Dis-

trict of Nevada, sitting by designation

7467

Appendix A

eeetienenede ieee

A2

7468 LANDRETH V. UNITED STATES

time-barred. The court affirmed holding that Cara’s claim

was not timely filed nor was the statute of limitations for fil-

ing the FTCA claim tolled until a guardian without a conflict

of interest appointed.

In 1973, appellant Cara Landreth swallowed her mother’s

quibron medication. Doctors failed to pump the child's stom-

ach. In 1977 or 1978, a brain scan determined that Cara had

suffered brain damage as a result. During 1979, Jennie, Cara's

mother, told a doctor that Cara’s problems were partially

attributable to her ingestion of quibron. The Air Force

rejected Cara's administrative claim in 1984, finding the

claim time barred. Later that year, a guardian ad litem was

appointed for Cara and suit was filed in district court. The

district court found that suit barred by the two-year statute of

limitations under the FTCA and dismissed the action.

{1} A tort claim against the United States must be filed

within two years after the claim accrues. In a medical mal-

practice case under the FTCA, a claim accrues when the

plaintiff discovers, or in the exercise of reasonable diligence

should have discovered, the injury and its cause. [2] The

record supports the district court's finding that Cara's parents

knew or should have known of their daughter's injury and its

cause no later than 1979. [3] Nevertheless appellant argues

that Jennie Landreth may have been partially responsible for

Cara's injuries. Therefore, appellant maintains both Jennie

and William Landreth, her parents, had a conflict of interest

in pursuing this claim. Appellant contends the statute of limi-

tations for filing the FTCA claim was tolled until a guardian

without a conflict of interest was appointed for Cara. [4] In

this case, more than ten years elapsed between the alleged

negligent acts of the government and the filing of the adminis-

trative claim. It is precisely this type of delay the limitation

provision of the FTCA was designed to guard against. Princi-

ples of equity cannot be invoked to toll the accrual date of

plaintiff's injury for statute of limitations purposes.

A3

LANDRETH V. UNITED STATES ; 7469

The dissent argues that the majority not only decides

Cara’s constitutional claims prematurely: it also brushes over

the fundamental constitutional questions by relying on a case

in which no cognizable conflict of interest existed.

COUNSEL

H.G. Robert Fong, Ku & Fong, Los Angeles, California. for

the plaintiff-appellant. ~

Shari Silver, Assistant United States Attorney, Los Angeles,

California, for the defendant-appellee.

OPINION

MCKIBBEN, District Judge:

Plaintiff, Cara Lyn Landreth, by her guardian ad litem,

appeals from a judgment dismissing her action against the

United States under the Federal Tort Claims Act (FTCA), 28

U.S.C. §§ 1346(b), 2671 et seq. We affirm.

I. FACTS AND PROCEDURAL POSTURE

During the morning of March 30, 1973 Cara Lyn Landreth,

who was then eleven months old, swallowed a portion of her

mother’s quibron medication. Her mother, Jennie Landreth,

and her father, William Terry Landreth, who was a member

of the United States Air Force rushed her to the Plattsburgh

Air Force Base Hospital. No physician examined Cara at the

emergency room. Jennie Landreth heard a physician instruct

an orderly to give Cara 15 cc. of ipecac and then send her

home. The ipecac was administered and the Landreths

returned home. That evening Jennie noticed Cara’s eyes had

rolled back and she was convulsing. Cara was immediately

A4

7470 LANDRETH V. UNITED STATES

taken back to the Plattsburgh hospital by her parents. She was

then transferred to the Montreal Children’s Hospital where

she remained hospitalized for six days. The medical person-

nel at the Montreal hospital told the Landreths that Cara’s

seizures were due to the quibron ingestion and that her stom-

ach should have been pumped at the Plattsburgh hospital

when she was first taken there.

When Cara was fifteen months old, Jennie noticed she was

easily angered and had temper tantrums. At eighteen months

Jennie noticed Cara’s communication skills were retarded. A

base doctor in the Philippines where William was stationed

recommended that Cara be examined by a specialist.

In 1977 or 1978, Jennie took Cara to the UCLA Neuropsy-

chiatric Institute where a doctor performed a brain scan on

Cara and determined she had suffered brain damage as a

result of the ingestion of quibron.

Prior to 1979 both William and Jennie Landreth frequently

discussed their belief that the Air Force was responsible for

Cara’s problems because the doctors failed to pump Cara’s

stomach on the morning she consumed the quibron.

During 1979 Jennie told a doctor at the UCLA Neuropsy-

chiatric ward that Cara’s problems were partially attributable

to her ingestion of quibron.

Plaintiff filed an administrative claim dated September 6,

1983 under the FTCA alleging the Air Force was negligent.

The Air Force rejected the claim on May 15, 1984, finding the

claim was time barred.

On November 7, 1984 a guardian ad litem was appointed

for Cara and suit was filed in district court. The United States

filed a motion to dismiss and for summary judgment. The dis-

trict judge trifurcated the statute of limitation issue from the

issues of liability and damages. After argument, the district

AS

LANDRETH V. UNITED STATES 7471

court held the suit was barred by the two-year statute of limi-

tations under the FTCA, 28 U.S.C. § 2401(b) and dismissed

the action.

Cara Landreth appeals, contending that (1) her parents did

not know or have reason to know of the existence of facts

establishing the government's responsibility for her condition

until a period within two years of the filing of her claim, or (2)

the statute was tolled until a guardian ad litem, without a con-

flict of interest, was appointed to represent her.

Il. DISCUSSION

[1] Under 28 U.S.C. § 2401(b), a tort claim against the

United States must first be presented to the appropriate fed-

eral agency within two years after the claim accrues before a

negligence suit may be instituted. Failure to do so is a juris-

dictional defect. Augustine v. United States, 704 F.2d 1074,

1077 (9th Cir. 1983). The date on which a claim accrues is

determined by federal law. Washington v. United States, 769

F.2d 1436, 1438 (9th Cir. 1985). In a medical malpractice

case under the FTCA, a claim accrues when the plaintiff dis-

covers, or in the exercise of reasonable diligence should have

discovered, the injury and its cause. See United States v.

Kubrick, 444 U.S. 111, 100 S. Ct. 352, 62 L.Ed.2d 259 (1979):

Colleen v. United States, No. 86-4232, slip op. at 3870 (9th

Cir. April 1, 1988); Davis v. United States, 642 F.2d 328, 331

(9th Cir. 1981). Plaintiff need not be aware that an actionable

claim exists as long as she is aware of the injury and its proba-

ble cause. United States v. Kubrick, supra.

The district court's grant of summary judgment is reviewed

de novo. Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir.

1986). Review is governed by the same standard used by the

district court under Fed. R. Civ. P. 56(c). Jd. We must deter-

mine, viewing the evidence most favorable to plaintiff.

whether there are any genuine issues of material fact and

whether the district court correctly applied the relevant sub-

A6é

7474 LANDRETH V. UNITED STATES

Pittman court, in considering and rejecting this argument,

said:

Appellant also bears down heavily on the father’s

earlier supposed conflict of interest which may have

led him to subordinate and thus pass over the inter-

est of the son. Again, on this argument we think the

congressional intent is that the Congress just did not

want stale claims lying around under the Federal

Tort Claims Act.

341 F.2d at 741-42. The Pittman court also rejected the due

process and equal protection claim, stating:

Plaintiff contends that roughly 40 percent of the

nation’s population is under the disability of minor-

ity and that to deprive them of rights (because of the

possibility that no adult will initiate proceedings)

violates due process and equal protection when

adults can go vindicate their own rights. We find no

cases supporting such a proposition.

341 F.2d at 741.

The FTCA is a limited waiver of sovereign immunity. The

purpose of the two-year limitation provision of Section

2401(b) is to encourage the expeditious disposition of claims.

As the Supreme Court stated in United States v. Kubrick:

These enactments are statutes of repose; and

although affording plaintiffs what the legislature

deems a reasonable time to present their claims, they

protect defendants and the courts from having to

deal with cases in which the search for truth may be

seriously impaired by the loss of evidence, whether

by death or disappearance of witnesses, fading mem-

ories, disappearance of documents, or otherwise.

A7

LANDRETH V. UNITED STATES 7475

444 US. at 117 (citations omitted).

[4] Here more than ten years elapsed between the alleged

negligent acts of the government and the filing of the adminis-

trative claim. It is precisely this type of delay the limitation

provision of the FTCA was designed to guard against. While

the court is not unsympathetic to Cara’s condition, principles

of equity cannot be invoked to toll the accrual date of plain-

tiffs injury for statute of limitations purposes. Washington v.

United States, 769 F.2d at 1439; Burns v. United States, 764

F.2d 722. 724 (9th Cir. 1985). Congress has clearly mani-

fested its intent that there must be prompt disposition of

FTCA claims. This court does not, as the Pittman court did

not, find the plaintiff's claims to be of constitutional propor-

tion. Therefore it should be left to the Congress and not this

court to provide for the tolling of the statute if policy consid-

erations suggest that it should do so.

For the reasons set out above the court concludes that this

action is barred under 28 U.S.C. § 2401(b).

AFFIRMED.

REINHARDT, Circuit Judge, dissenting:

I dissent because I believe the majority has erred in its

treatment of appellant’s constitutional claims.

The quibron that caused Cara’s brain damage and resultant

seizures and behavioral problems was prescribed for the

treatment of her mother’s asthma. On the morning of March

30, 1973. when Cara swallowed the quibron, Jennie Landreth

had left her unsupervised and had also left the quibron within

her reach. Under New York law,’ Cara could have had an

‘Since the Landreths were residents of New York at the time of Cara's

injury, the allegedly negligent acts occurred in New York, and the medical

personnel practiced in New York, New York law governs this case.

4 ashington v. United States. 769 F.2d 1436. 1438 (9th Cir. 1985).

ee

A8

7476 LANDRETH V. UNITED STATES

action for negligence against her mother. See Gelbman v. Gel-

bman, 23 N.Y.2d 434, 245 N.E.2d 192, 297 N.Y.S.2d 529

(1961) (eliminating defense of intrafamilial immunity for

nonwillful torts).2, Moreover, in any malpractice action

brought on Cara’s behalf, Jennie could have been subject to

a counterclaim or to indemnification. See Goedkoop v. Ward

Pavement Corp., 51 A.D.2d 542, 378 N.Y.S.2d 417 (App.

Div. 1976) (action for injuries sustained by infant as result of

blasting cap explosion; court allowed counterclaim against

infant’s father for indemnification, alleging father negligently

maintained blasting caps in basement).

Appellant argues that her parents had a conflict of interest

because of their own potential liability and that, as a result,

the statute of limitations on her FTCA claim could not begin

to run until a neutral guardian ad litem was appointed for her.

She contends that to let the statute run while the power to

assert her claim lay solely with her parents deprives her of her

due process and equal protection rights. These are important

constitutional claims; yet the majority disposes of them

unnecessarily and without meaningful consideration.

The majority relies exclusively on our holding in Pittman

v. United States, 341 F.2d 739 (9th Cir. 1965). Pittman

involved an accident which occurred on a Navy installation.

The victim, nine-year-old Mark, argued on constitutional

grounds that minority should toll the FTCA statute of limita-

tions; we rejected that argument. /d. at 741. Mark further

argued that his father, a Navy lieutenant commander, had a

conflict of interest “because he feared litigation involving his

own branch of the service might prejudice his advancement,”

2New York does not recognize a cause of action for negligent parental

supervision. Holodook v. Spencer, 36 N.Y.2d 35, 324 N.E.2d 338, 364

N.Y.S.2d 859 (1974). However, an action against Cara's mother alleging

that she negligently left the medication within Cara’s reach would have

been allowed. See Goedkoop v. Ward Pavement Corp., $1 A.D.2d 542, 378

N.Y.S.2d 417 (App. Div. 1976) (allowing action against injured infant's

father for negligently maintaining explosives).

A9

LANDRETH V. UNtTEeD STATES 7477

and that he therefore delayed filing the action on Mark's

behalf. Jd. We disposed of that argument in two sentences,

noting simply that “Congress just did not want stale [FTCA]

claims lying around.” /d. at 741-42.

There is no indication in Pittm7n that Mark's conflict of

interest argument was based on constitutional grounds, or

that we rejected it on those grounds. For that reason alone,

the majority errs in relying on that case. But even if we read

Pittman as a constitutional holding on the conflict of interest

question, it would be distinguishable. Mark’s father allegedly

delayed bringing suit because he feared prejudice to his naval

career. There is a difference, however, between speculation

about possible damage to career goals and direct financial lia-

bility. The former may be a practical reason for avoiding liti-

gation, but not all practical concerns rise to the level of a

conflict of interest. When the possibility of harm is as remote

and tenuous as it was in the case of Mark’s father, it is not suf-

ficiently serious to constitute a conflict—and, thus, to over-

come the policy favoring prompt disposition of FTCA claims.

Here, by contrast, Cara's mother faced the prospect of direct

financial liability were she to file a claim on Cara's behalf.

Thus the difficult constitutional issues Cara raises cannot be

considered settled by Pittman.

The existence of a direct conflict of interest on her mother’s

part may, as a matter of law, have precluded Cara from hav-

ing a fair opportunity—the opportunity an adult in her cir-

cumstances would have—to file an action against the

allegedly negligent medical personnel who treated her. Thus,

Cara may have been deprived of her due process and equal

protection rights. However, we need not, and should not,

resolve these constitutional issues here. The Supreme Court

has directed us to avoid deciding such questions before it is

necessary to do so. Kolender v. Lawson, 461 U.S. 352, 361

n.10 (1983); Mills v. Rogers, 457 U.S. 291, 305 (1982). In this

case, there remain factual and legal questions, the answers to

which may make it unnecessary for us to decide Cara’s con-

Al0

7478 LANDRETH V. UNITED STATES

flict of interest claim. Specifically, the government argues that

even if Jennie was potentially liable for Cara’s injury, Cara’s

father Terry Landreth was not, and that he could have

brought the action on Cara’s behalf. We cannot judge the

validity of this argument without knowing whether, under

New York law, Terry was financially liable for Jennie’s negli-

gence, when Terry and Jennie were divorced; and whether

Terry had the authority to file an action on behalf of Cara sub-

sequent to the divorce. The majority proceeds to reject Cara’s

constitutional claims without waiting for this information.

Because it may be that Cara’s claims can be disposed of on

narrower grounds, the majority's decision violates an estab-

lished tenet of judicial review. Cara’s action should be

remanded to allow the district court to make the factual and

legal determinations that would have permitted a resolution

of the government's non-constitutional argument.

Cara suffers from permanent brain damage which may be

traceable to one or both of two causes: her mother’s negli-

gence and the negligence of the Air Force medical personnel

who treated her. Despite the potential liability of her parents,

the majority relies on them to vindicate Cara’s claim and, in

effect, holds Cara responsible for their failure to do so. As a

consequence, Cara may be deprived of her due process and

equal protection rights—a result that cannot be justified by

invoking Congress’ desire to resolve FTCA claims promptly.

The majority not only decides Cara’s constitutional claims

prematurely; it also brushes over the fundamental constitu-

tional questions by relying on a case in which no cognizable

conflict of interest existed, and a holding that was not based

on constitutional grounds. I would remand Cara’s action for

resolution of the factual and legal issues described above. I

therefore respectfully dissent.

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copyrighted © 1988 by Barclays Law Publishers

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