Petition for Writ of Certiorari — Kossick v. United States

Oftice-Supreme Court, U.S.

Ph ee. -

LiBkARY - JUL 14. N64

JOHN F. DAVIS. CLERK

IN THE

Supe Court of the Hnited States

October Term, 1963 .

.

Q No. Zt 3

JOHN M. KOSSICK,

. Petitioner,

agatnst

UNITED STATES OF ‘AMERICA,

| Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT

JACOB RassNek,

Counsel for Petitioner, -

.. 15 Park Row,

New York, N. Y. 10038.

BArclay 7-2615

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Questions Presented ...... eke cautnes Tak prCnre tt

SI fk oon cen ns kan wae SEAS Pe SO ee

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Pornt I—The action has been timely brought ....

Point II—Not only did the Court below completely

ignore the controlling decision by this Court, as set

forth in Richards v. United States, 369 U. S. 1,

2S. Ct. 585 (1962), as to petitioner’s rights, but

erroneously adopted a radical departure from the

Pe Oe OE NN oon ca sacs hice aes as o6.

The Cases Relied on by the Court Below Are Not

SB eae rr MC ELA RARE coh ees

Point II1I—The New York State law determines the |

substantive rights and the Federal law determines

the procedural rights of the parties hereto .....

Poixt IV—A cause of a¢tion is a property right pro-

tected by constitutionai rules ......+...........

Porst V—Judicial denial of an available remedy is

denial of the equal protection of the law and vio-

lates the due process provisions of the Fitth

I as ons Pay deka wkeek RIG Ieee

RINE suns oWiceechaed uveled ena cow ke eae

APPENDIX: |

Judgment Sought to Be Reviewed ..........

Cireuit Court Opinion RR et er erp oa aee

Laws ERVOIVOE oo cece csccesctecsed Liistectaes

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| Table of Cates Cited |

aes PAGB

Aero Design v. Oklahoma, 151 F. S. 844, (aff'd —_

U.S. —, 77 S. Ct. 824) .......... set teeeeeeeeees 14

Bank of America Nat. T..& S. Ass’n v. Parnell, 77 .

S. Ct. 119, 352 U. S. 29 (1956) ..,............... 10

Bizer v. United States, 124 F. Supp. _ (N. D. Calif. .

ee a uw eneacs 8

Borgia v. The City of New York, 12 N. Y. 2d 151, 237

N. Y. S. 2d 319- Mee debths chu eShes Piuwsien 3, 5, 6, 9, 10

Caldarola v. Eckert, 332 U. S. 155, 67 S. Ct. 1569 . 3

Foote v. Public Housing Commissioner of the United |

States,.107 F. Supp. 270 (W. D. Mich. S. D. 1952) 8

Gibbes y: Zimmerman, 290 U. S. 326, 54 S. Ct. 140 . 13

ee v. Civil Air Patrol, 161 F. Supp. 478 (1958) 10.

Hungerford v. United States, 307 F. 2d 99 (9th Cir. ° .

1962) Ec VERE Che RN NEA eh nb ees seb onee ss en's6s . §

Irvin v. Dowd, 359 U. S. 394, 79 S. Ct. O95 5.5... 14

McNamara v. United States, 199 F. Supp. 879 (1961) 10

Pope & Talbot Inc. v. Hawn, 346 U. S. 406, 74 S. Ct.

it Uices cs hewe Ce RENoeNWadheseenaeh deeds anes 3

Pritchard v. Norton, 106 U. S. 124, 1S. Ct. 102 ccna’ 13

Quinton v. United States, 304 F. 2d 234 (5th Cir

NRG R ARES SD I TC, Ee ue ey Pe 7,8

Richards v. United States, eed U.S. 1, 82 S. Ct. 585

ee Ole arb LL aide kasha’ 3, 5, 7, 12, 13, 14

Sly v. Van Lengen, 198 N. Y. S. 608 (cekiehyeanern es , 9

State of Maryland v. United States, 165 F. 2d 869

aa ay Sp es rarn di s Eve ee eee ea . 11,12

Tessier v. United States, 269 F. 2d eee 8

’ United States v. Reid, 251 F. 2d 691 (1958) -....... “an

United States v. Sharpe, 189 F. 2d 239-(1951) ...... 10, 11

, .

4“ iii

“Statutes Cited

. PAGE

U.S. Constitution, Fifth Amendment ............. 2:

WU: © GMD... 20000505: Gia wales 2

26 VU. B/C. 1BOB(S(D) 6.2... 6c, ones ec eeeceee 2, 3, 4, 5,8

OE ook ss 2,4,7

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WU. OC. 0 «5.5 65000565 Serer oer ye ¥

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| Supreme Court of the United States

October Term, 1963

No.

Joun M. Kossicx,

. Petitioner,

against

Unrrep Srates or AMERICA,

Respondent.

4.

Vv

PETITION FOR WRIT OF CERTIORARI TO THE.

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT |

To the Honorable Chief Justice and Associate Justices of

the Supreme Court of the United States:

Your petitioner, John M. Kossick, prays that a writ

of certiorari issue to review the judgment and decision of

the United States Circuit Court of Appeals for the Second

. Cireuit, entered on the 15th day of April, 1964.

Opinions Below

’ The opinion of the United States District Court for the

Southern District of New York (Hon. Edward C. McLean,-

D. J.) is not nee and is prmten in the record below

at p. 2a.

The opinion of the Court of Appeals, dated April 13,

1964, is reported at 330 F. 2d 933 (1964), and is appended

hereto, infra, p. 2a.

"Jurisdiction

The judgment sought a be siiivet | is dated April 15,

1964 and was entered April 15, 1964.

The jurisdiction, of this Court is invoked under 28

‘U.S. C. 1254 (1). ?

‘Questions Presented

1. Is it not an unconstitutional denial of the equal

protection of the law to deny a Federal Tort Claims Act

cause of action on the basis of non-applicable federal deci-

sions, when the Federal Tort Claims Act makes state law

the controlling law, and such applicable state law would

validate the cause of action?

2. When federal law grants remedial legislation to be

applied in accordance with State law, is it error for the

federal courts to rely on federal decisions in conflict with

State decisions, in interpreting the rights and remedies of

a litigant asserting a claim based on such federal law?

Laws Involved

r Amendment V, U. S. Constitution (Appendix, p. 8a).

28 U. S. C. 1346 (2)(b) (Appendix, p. saa

28 U Ss. C. 2401(b) (Appendix, p. 9a). : .

28 U. S. C. 2671 (Appendix, p. 9a).

28 U. S. C. 2674,(Appendix, p. 10a)..

Reasons for Granting the Writ

* > © .

~The decision by the Court below constitutes a denial

of the remedial rights and remedies provided by federal

statute, the Federal Tort Claims Act, “28 U. S. C.

E ~~ . . 3

ie | } |

1346(2)(b), andl. an unconstitutional denial of- due Process

guaranteed by the Fifth Amendment. :

_ The decision by the Court below is in conflict with the

decision in the case of Richards v. United States, 369 U.S

' 1, 82 S.Ct. 585 (1962). ,

_ The decision by the Court below emasculates so much

of the provisions of the Federal Fort Claims Act, supra,

as provides for the application of State law, as enunciated

by the New York Court of Appeals in the case of Borgia

v. The City of New York, 12 N. Y: 2d 151, 237 N, Y, S. 2d

319, so that the benefits of State law, provided by the

Federal Tort Claims Act, supra, are rendered substantially

ineffectual and meaningless and are denied to petitioner.

Petitioner is thereby denied the equal protection of the —

law in violation of constitutional rules. i

The expediency of time and volume of court cases has

no place in our American concept of justice when consider-

ing legal substantial and substantive rights of an American

citizen, and the decision, by the Court’ below which empha-

sizes time and procedure as outweighing the merits of a

cause of action, constitutes a radical departure from uni-

form and well established laws enunciated: by this Court

in Caldarola v. Eckert, 332 U. S. a 67 S. Ct. 1569 and

Pope & Talbot Inc.\v. Hawn, 346 U.S. 406, 74 S. Ct. 202.

Federal statute having established State law as the

basis for liability, there is no justification for invoking

federal concepts of law to destroy rights which a litigant

would have on the basis of State law.

\ ‘

c

| Statement

| District Court jeruiiesion was based on 28 U. S.C.

1346 (2) b).

Petitioner was concededly admitted to the United States,

Public Health Service Hospital at Staten Island, New

York, in August, 1950, and was given an injection of potas-

sium iodide, which x:esulted in serious internal burns de-

stroying the rectum and a great deal of his digestive tract,

_ injuries concededly caused by malpractice of the respondent.

The hospital record states that this injection was ‘‘in-

advertently’’ given.

A left colostomy was performed. This was not success-

ful. Thereafter, a right colostomy was performed. After’ ,

the right colostomy, prurient drainage developed around

the left colostomy site.

There was considerable surgical work, inclua‘ng dis-

sections of portions of the bowels and a series of dilation

operations, which are not concluded as yet.

The petitioner is ‘still under treatment by respondent

for. the after-effects of the malpractice.

Petitioner duly and timely filed’ a complaint in accord-

ance with applicable New York State law, as authorized by

remedial federal statute, The Federal Tort Claims Act, 28

U.S.C. A. S$ (1346 (2) (b) and 2673.

Respondent interposed, as part of its defense, the

statute of limitations, 28 CT. S. C. A. ¢ 2401(b).

' Petitioner moved to strike the defense based on the

statute of limitations as not being applicable to the New

York State law which constituted the basis of petitioner’s

cause of action.

The District Court erroneously refused to be governed

_ by applicable New York State law and dismissed the com-

plaint, on respondent’s cross motion.

- Petitioner appealed to the United States Court of Ap-

peals’ for the Second Circuit, which affirmed the decision

of the Court below. °

Respondent did not make a “full tutions of the. fact

that it was still under a legal duty to provide petitioner

——

4)

with continuing treatment and that the relationship of

patient and doctor had never been terminated sitice the

surgery. . :

Petitiuner was not in a position at the time of the motion

to submit ‘‘proof by respondent’s attending doctor’’, but

his affidavit alleging that he was still under treatment by —

respondent established an issue of fact, which the Court

below erroneously disr@garded.

Argument io

Petitioner has predicated his cause of action on the

Federal Tort Claims Act, 28 U.S. C. A. §§ 1346 (2) (b) and

2671, et seq., which provides that:the law of the forum shall

control. The law of the forum is clearly set forth in Richards

v. U. S., 369 U.S. 1, 82-S. Ct. 585 (1962), wherein the entire:

law of the state is made applicable. .

The Court of Appeals, in an opinion by Chief Judge

Desmond, decided December 31, 1962, in the ease of Borgia

v. The City of New York,' 287 N. Y. 8. 2d 319, 12 N..Y. 2d

151, stated: . | .

46 @ @ @

a number of decisions at least five of which

plainly say that where there has been continuing

treatment time limitation does not start until treat-

ment ends (Schanil v. Branton, 181 Minn. 381, 382,

232 N. W. 708; De Haan v. Winter, 258 Mich. 293,

296-297, 241 N. W. 926; Williams v. Elias, 140 Neb.

696, 600, 1-N. W. 2d 121; Peteler v. Robinson, 81

Utah 535, 546, 17 P. 2d 244; Sly v. Van Lengen, 120

Mise. 420, 198 N. Y. S. 608).”’

'The very nature of the post-operative condition is such that.

expert opinion was completely unnecessary in presenting the fact

that the reiationship of physician and patient had not been terminated,

as the question involved post-operative treatment for’ “colostomys”’

whick condition, as a matter of common knowledge, requires inter-

mittent treatment during the entire life of the patient, for this per-

_Mmanent and progressive type of injury.

6

Ir 1s a Matrer For JupiciaL Notice THAT A SEAMAN’S

Status as a Patient or THE Unrrep States Pusiic Hearn,

Service 1s Never TERMINATED, so Lone as He Requires

TREATMENT For A MaRITIME SERVICE-CONNECTED CONDITION.

Ordinarily, petitioner would move for reargument in the

District Court upon receipt of the letter by Dr.. Love

establishing petitioner’s contention set forth in his affidavit

that the relationship of doctor and patient had not termi-

nated, but in the light of the decision by the Court below

rejecting the holding in the Borgia case, supra, as control-

ling, the only logical procedure is to petition this Court for

review in accordance with the amine, “igcmae

_ The respondent, being charged with possession of knowl- |

edge of the fact that one of its doctors, Dr. Love, was still

treating petitioner as an outpatient at respondent’s hospi-

tal, should not be permitted to benefit by withholding such

information from the District Court in the first instance,

nor should petitioner have been denied, by the Court below,

the opportunity to present further proof that he was still

under treatment by respondent.

Petitioner claims that the question of time and expedi-

ency was given unwarranted and erroneous weight by the

Court below. :

The respondent being the United States of America, it

is submitted that even this appellate Court may take

judicial notice of the public records establishing the fact

that petitioner is still a patient receiving continued and

continuous intermittent treatment from the respondent at ©

its. Public Health Service Hospitals.

7

POINT I.

The action has: been timely brought.

_ 28 U.S.C. A. § 2401 (b) is governed by New York State

law as to the time when a ‘‘claim accrues.’’

The Federal Tort Claims -1ct, 28 U.S. C. A. § 2674, pro-

vides: a a

‘*The United States shall be liable, respecting the

provisions of this title relating to tort claims, in the

same manner and to the same extent as a private

individual under like cireumstnees * * *’’.

All of the cases, without exception, cited by the Court

below, fails in every instance, to encompass the question

before the Court, as will be pointed out hereafter by direct

reference to each case. ;

i)

POINT I]

Not only did the Court below completely ignore

_the controlling decision by this Court, as set forth in

Richards v. United States, 369 U. S. 1, 82 S. Ct. 585

(1962), as to petitioner’s rights, but erroneously

adopted a radical departure from the holding in said .

case.

The Cases Relied on by the Court Below Are

Not Controlling

The case of Quinton v. United States, 304 F. 2d 234 (Sth

Cir. 1962) supports appellant’s position and is in conflict

with the legal proposition for which it was cited by the

Court below. ,

In Quinton, supra, in reversing the lower Court which

had dismissed the malpractice action against the United

States, the Appellate Court stated at page 238:

‘The simple fact is that state law respecting the

accrual of a particular claim cannot be divorced from

=

the state law fixing the period after accrual within

which the plaintiff can bring suit on the accrued

claim.’’

Only when a State statute of limitation tends to shorten

the time allowed by Congress within which to invoke the

provisions of remedial legislation, then and- only then, is

federal concept invoked, but never as to the existence or

accrual of a tort claim. -

The decision in the case of Hungérford v. United States,

307. F. 2d 99 (9th Cir. 1962), rested on the decision in the

case of Bizer v. United States, 124 F. Supp. 949 (N. D.

Calif. S. D. 1954).

In the case of Tessier v. United States, 269 F. 2d 305,

the scholarly and detailed review of the applicable law by

Circuit Judge Magruder demonstrates that State law eon-

trols the question of the statute of limitations.

POINT III°

The New York State law determines the substan-

tive rights and the Federal law determines the pro-

-cedural rights of the parties hereto.

In the case of Footayx, Pu lic Housing Commissioner of

the United States, 107 F. p. 270 (W. D. Mich. S. D.

1952), the Court said at page 2R:

a

per eS the standards and tasts of local State law

are applicable in determining wkether an actionable

neghgent-or-wrongful act has beefcommitted, and

-the nature and extent of the recovery'permitted.”’

“The Federal Tort Claims Act provides that the cause of

action shall be established on the basis of- State law.

The statute of limitations is an affirmative. defense,

which does not begin to run until the relationship of. pby-'

sician and patient is terminated.

9

——_

This relationship has: never been terminated in the

_ case at bar. .

This principle of law was enunciated as early as March

8, 1923 in the case of Sly v. Van Lengen, 198 N. Y. S. 668,

and re-asserted as recently as December 31, 1962 in the

case of Borgia v. City of New York, supra.

| The fact cannot be denied that the course of treatment

has to run continuously and is related to the 2ets of mal-

practice complained of. ;

Chief Judge Desmond, speaking for the Court in Borgia,

supra, stated at page 321: |

_ **We hold that at least when the course of treat-

ment which includes the wrongful acts or omissions

has run continuously and is related to the same

original condition or complaint, the ‘accrual’ comes

only at the end of the treatment. .

{1} Preliminarily, we note that the same rule

must be ‘applied whether we are passing on a true

Statute of Limitations problem (Civil Practice Act,

§ 49, subd. 6; § 50, subd. 2) or a section 50-e dispute.

-The question is the same: when did the claim or

cause of action ‘accrue’? This court has never had

\, to decide whether in the case of continuous treatment

‘accrual’ is postponed until treatment ends, but in

Hammer v. Rosen, 7-N. Y. 2d 376, 379, 198 N. Y. S.

2d 65, 66, 165 N. E. 2d 756, 757 [1960] we forecast

an affirmative answer. Hammer vy. Rosen is not an

actual application of the ‘continuous treatment’-rule

since in that case there was ‘within the two vears

not only treatment but malpractice. But the ‘Ham-

mer-Rosen opinion referred (p. 380, 198 N.'Y. S.

2d _p. 67, 165 N. E. 2d p.'757) to ‘a continuing course.

of psychiatric treatment’ and, more significantly,

cited with approval a number of. decisions at least

five of which plainly say that where there has been

continuing treatment time limitation does not ‘start

until treatment ends (Schanil v. Branton, 181 Minn.

381, 382, 232 N. W. 708; De Haan v. Winter, 258

Mich. 293, 296-297, 241 N. W. 926r Williams v. Elias.

140 Neb. 656, 660, 1 N. W. 2d 121; Peteler v. Robin-

10

son, n, 81 Utah 535, 546, 17 P. 2d 244; Sly v. Van Lengen,-

120 Misc. 420, 198'N. Y. S. 608). ”

The time for the running of the statute of limitations

has not as yet commenced. '

In the case of MeNamara v. United States, 199 F. aia

879 (1961), at page 881, under [7, 8], the Court. stated:

‘‘Under the Federal Tort Claims Act the Govern-

ment is liable in the same ‘manner and to the same -

extent as would -be a private individual under like

circunistances. The substantive rights of the plain-

tiff and of the defendant in such a case must be

measured by the law of the state in which the cause

of action arose. In this instance, it is the District of

‘Columbia. Consequently, the tort law of the District

of Columbia governs the plaintiffs’ rights and the

defendant’ 8 liabilities. -

In the case of Bank of America Nat. T. € S. Ass'nv. Par-

nell, 77 S. Ct. 119, 352 U. S. 29 (1956), the United States

Supreme Court stated at ‘page 122, under [4]:

‘‘The Court of Appeals has not decided what the

governing state law on burden of proof is, and it is

‘the court which should so decide. Likewise, if state

law casts the burden on respondents to demonstrate

their, good faith, it is for the Court of Appeals to

assess. the evidence in light of that standard.’’

In the case of Hooten v. Civil Air Patrol, 161 F. Supp.

478 (1958), the Court stated at page 482 under [12, 13]:

‘‘The Federal Tort Claims Act is governed by

the law of the state of thie alleged tort. If no cause

- of action exists in such state, no action exists under

the Federal Tort Claims Act. If the cause of -action

-is limited or circumscribed by state law, the same

limitation and circumscription apply under the

Federal Tort Claims <Act.’’

In the case of United States v. Sharpe, 189 F. 2d 239.

(1951), the Court stated at page 241 under [3]:

11

‘We look to the local law for the purpose of

determining whether the act with which he is charged.

gives rise to liability. The Tort Claims Act adopts

the local law for the purpose of defining tort liability

In the case at bar, the malpractice not only caused a’

condition that could not be rectified, but a condition that

started a chain of accumulative events. which in and of

themselves, being directly related to the original malprac- -

tice, required recurrent and continual treatment.

In the case of United States v. Reid, 251 F. 2d 691 (1958),

the Court stated at page 695:

‘‘The claim was not for initial ‘elenneiieis It

was that faulty medical advice interfered with proper

tests and treatment. Obviously the acceleration of

an existing condition into one of an aggravated state

was ‘the product of a period of time rather than a

point of time ; consequently the afflicted employee can

_ be held to be ‘‘injured’’ only when the accumulated

effects of the deleterious substance manifest them- .

selves.’ Urie v. Thompson, supra, 337 U.S. 163, 69 ©

S: Ct. 1025, 93 L. Ed. at page 1293.""

In considering the effect of statutes of limitations of the

various states which tend to cut down the rights of a liti-

gant, the Court stated in the case of State of Maryland v.

United States, 165 F. 2d 869 (1947) at pages 872, 873:

‘*Finally, the effects and consequences of. holding

state statutes of limitations applicable should be

considered ; for it is well settled ‘that statutes should

receive a sensible construction, such as will effectuate

the legislative intention, and, if possible, so as to

avoid an unjust or an absurd conclusion.’

. = 6 7

, ‘tAnd we think it makes no difference that the

‘limitation applicable to the action for death by

wrongful act is held under state law to-be a condition

on the exercise of the right rather than a limitation

* Dewemn,

12

on the remedy. This holding is based upon the nar-

row ground that the limitation is imposed by the

statute creating the cause of action? and i is, to say .

the best of it, technica} and legalistic reasoning, which

is not followed in all the states. Cf. State of Mary-

. land for use of Dunnigan v. Cobourn, 171 Md. 23,

187 A. 881, 107 A. L. R. 1045; Sharrow v. Inland

Lines, 214 N. Y. 101, 108 N. E. 217, L. KR. A. 1915

E. 1192, Ann. Cas: 1916D, 1236, and cases cited in

note in 67 A. L. R. 1071.”

In the case of Richards v. United States, 82 S. Ct. 585,

369 U. 8. 1 (1962), the Supreme Courf apparently had in

mind the confusion that exists in some of our district courts,

a good part of which was reflected -in the brief of coun-

sel for deferidant-appellee, when he commented upon the

divergence from the fundamental principles long estab-

lished in the conflict of laws that substantive law is de-

termined by the locai court and procedural by the forum.

That same confusion still permeated the opinion of the

Circuit Court in this case.

In the Richards case, supra, the Court stated at pages

592-5983 : .

‘*Recently there has been a tendency on the part

of some States to depart from the general conflicts

rule in order to take into account the interests of the

State having significant contact with the parties to

the —— We can see no compelling reason

to saddle the Act with an interpretation that would

prevent the federal courts from implementing this

policy in choice-of-law rules where the State in

which the negligence occurred has adopted it.’’

The Court, in the Richards case, supra, apparently has

set at rest for all time the question of what Court shall '

determine the substantive law and what ‘Court shall de-

termine the procedural law. The Court stated at pages

591, 592:

**(4, 5] In the Tort Claims Act Congress has

expressly stated that the Government’s liability is

fay

13

]

to be determined by the application of a particular

' law, the law of the place where the act or omission

occurred, 1” and we must, of course, start with the

assumption that the legislative purpose is expressed

by the ordinary meaning of the words used. We

believe that it would be’ difficult to conceive of, any

more precise language Congress could have used to

command application of the law of the place where

the negligence occurred than the words it _ employ

in the Tort’ Claims Act.’’

“We billie it fundamental that a section of a

statute should not be read in isolation from the con-

text of the whole Act,?! and that in fulfilling our ©

responsibiilty in interpreting’ legislation, ‘we must

‘not be guided by a single sentence or member of a

sentence, but [should] look to the prdvisions of the

whole law, and to its object and policy.’ 7* We should

_ not assume that Congress intended to set the courts

completely adrift from state law with regard to

questions for which it } s not provided a specific

-and definite answer in an act such as the one before

us which, as we have indicated, is so intimately re-

lated to state law. Thus, we conclude that a reading

of the statute, as a whole, with due regard to its

purpose, requires application of the whole law of the

State where the act or omission occurred.’’

- POINT Iv

A cause of thon is a ‘property right seis by

constitutional rules.

Gibbes v. Zimmerman, 290 U. S. 326, 332, 54.8. Ct.

140, 142;

Pritchard v. Norton, 106 U.S. 124, 132,18. Ct. 102.

2

POINT V

Judicial denial of an available remedy is denial of

the equal protection of the law and violates the due

process provisions of the Fifth Amendment.

In Irvin v. Dowd, 359 U. S. 394, 404, 79 S. Ct. 825, 831,

this Court held that:

, ‘««*.* * the state courts, equally with the courts

of the Union, * * * (have an obligation) to guard,

enforce, and protect every right granted or secured

* by the’ Constitution of the United States * * *.” Robb

v. Connolly, 111.U. S. 624, 637, 4 S. Ct. 544, 551, 28

L. Ed. 542. si -

Clearly, therefore, judicial denial of an available remedy

violates due process.

Conclusion

It is respectfully urged that a substantial federal ques-

tion is presented herein and that there, is herein an im-

portant question of the remedial rights of a seaman, and

the uniform application of the law of-the Richards case,

such that merits consideration and review by this Honor-

able Court, which affirmed the District Court holding in

Aero Design v. Oklahoma, 151 F. S. 844 (aff’d — U. S. —,

77 S. Ct. 824), that a litigant’s day in court includes the

right to be heard in the court of last resort on constitu-

,tional questions.

Wherefore petitioner respectfully cubenite that the

_writ ought to issue so that the judgment below may be

reviewed and reversed.

°

Respectfully submitted,

Jacop Rassner,

Counsel for Petitioner.

| APPENDIX _ .

Judgment Sought to Be Reviewed

"UNITED STATES COURT OF APPEALS

For THE Szconp Circuit

At a stated term of the United States Court of

Appeals, in and for the Second Circuit, held at ,

the United States Courthouse on the fifteenth

day of April One thousand nine hundred and -

sixty-four. a

Present:

Hon. J. Epwarp Lumsaprp,

Chief Judge,

Hon. Srerry R. WarerMaN,

‘Hon. Henry J. Frienpty,

Circuit Judges. .

Ly

Vv

Joun M. Kossick,

Plaintiff-Appellant,

Vv. % P

Unirep STATES or AMERICA,

Defendant-Appellee.

4y

ow

Appeal from the United States District Court for the

Southern District of New York.

This. Cause came on to be heard on the transcript of

record from the United States District Court for the

Southern District of New York, and was argued by counsel.

ON CONSIDERATION WHEREOF, it is now hereby ordered,

_ adjudged, and decreed that the judgment of said District

Court be and it hereby is affirmed with costs to appellee.

A. DanteL Fvusaro,

Clerk.

2a

Circuit Court Opinion

Fernvcy, Circuit J pdge :

This case, like Kossick v. United Fruit Co., 275 F. 2d

500 (2 Cir. 1960), rev’d 365 U. S. 731, 81 S. Ct. 886. 6 L.

Ed. 2d 56 (1961),‘concerns a serious rectal injury inf'icted

upon Kossick, a seaman, in August 1950, in the United .

- States Public Health Service Hospital at Staten Island,

N. Y:, by the administration of a post-operative enema

containing a grossly excessive dosage of potassium iodid«.

The 1.jury required much further surgery, and Kossick

remained in the Hospital under treatment until April 3,

1951. He was at sea from late June.to early November, -

1951, when he was readmitted to the Hospital. During the

next year he spent considerable time in the Hospital, some

of this involving surgery, until November 10, 1952, when

he was discharged as ‘‘fit for duty’’ with the admonition

that he would have to take a laxative for the rest of his

life. Since then he has made occasional visits to the Hospi-

tal or the Public Health Service outpatient clinic.

The instant action against the United States in the Dis-

trict Court for the Southern District of New York for

negligence of the doctors and nurses atthe Hospital was

not begun until April 4, 1963. The appeal is from an order

granting the Government’s motion for summary judgment

under 28 U.S. C. § 2401 (b) providing that ‘‘A tort claim

against the United States ghall be forever barred unless

action is begux within two years after such claim accrues .

** *.”? ‘To avoid the apparent time bar Kossick relies on ,

combining 28 U. S. C. § 2674, the basic provision in the

Tort Claims Act making the United States liable ‘‘in the

same manner and to the same extent as a private individual

under like circumstances,’’ with New York decisions, par-_

gd Borgia v. City of “New York, 12 N. Y. 2d 151, 237

N. Y. S. 2d 319, 187 N. E. 2d 777 (1962), that a claim for:

malpractice does not ‘‘accruc’”’ so long as the plaintiff is

3a

under continuous treatment for the ailment as to which the

malpractice occurred or for the mappractice itself.’

In Tessier v. United States, 269 F. 2d 305, 309 (1 Cir.

1959), also under the Federal Tort Claims Act, Judge —

Magruder held iat a claim accrues ‘‘when it may be made

the basis of a judicial action’’; that the effect of § 2674 was

to refer that issue to the law of the state where the i injury

occurred; and that since Maine, the pluce of the injury,

would have recognized a legal wrong to Tessier when

needle fragments were lodged in. his body in the course of .

an appendectomy, his right of action accrued at that time

even though he did not experience pain until the next vear

and its cause was not established until seven years later,

less than two years before the action was brought. A similar -

situation, where the malpractice was not discovered until

more than two years after the injury, ¢aine before the Fifth

Circuit in Quinton v. United States, 364 F. 2d 2° 34 (1962).

In a powerfully reasoned opinion for Judge Wisdom and

himself, Chief Judge Tuttle explained what bizarre and

indefensible results would be produced by referring to state

law to determine the beginniug of the two year period of

§ 2401(b) since the states have resorted to dissimilar devices

to guard against unfair opera‘ion of statutes of limitations

in tort cases, 304 F. 2d at 238; he concluded ‘‘that federal

law determines when the period of limitations contained in

Section 2401(b) commences to run [i.c/, federal law deter-

mines when a ‘claim accrues’ within the meaning of Section’

2401(b)], even though we look to state law to deterinine—

whether any claim has accrued against the Government

which would enable the claimant to sue under the Tort

Claims Act. In other words, we look to state law to ms 3

1 Jn fact the Borgia case related to § 50-e of the General Municipal

Law, McKinney's Consol. Laws, ¢. 24 requiring notice of a/claiin

to be filed against a city within 90 days after the claim accrued.

But the Court of Appeals.made clear that it would apply the same

rule 1f it were “passing -on a true Statute of Limitations problem

eee” 12N, Y. 2d at 155, 237 N. Y. S. 2d at. 321. f

aay i

he.

4a

mine whether the plaintiff’s action is premature, but to

federal law to determine whether the action is stale.’’

Judge Hutcheson concurred on the ground ‘‘that Section

2401(b) is not a statute of limitations, within the legal

definition of that term [citing cases]; but that it imposes

as a jurisdictional prerequisite to recovery, a substantive

condition, qualification, or restriction on both the right and

remedy of the plaintiff and on the suability of the United

States’’; on such an issue ‘‘state limitations statutes and

decisions with respect to them are seen to be without bear-

ing or relevance.’’ 304 F. 2d at 242. The Ninth Circuit has

followed Quinton, one judge dissenting. Hungerford v.

United States, 307 F. 2d 99 (1962). °

{1,.2] We are persuaded of the correctness of tiie

- Quinton decision. Whether -§ 2401(b).is regarded as a

‘**true’’ statute of limitations or as *‘a direct limitation to

the court’s jurisdiction’? as we have characterized ‘‘the

built-in time-bar of the Suits in Admiralty Act,’’ 46 U.S. C.

§ 745, American Foreign SS. Corp. v. United States, 291

F. 2d 598, 604 (2 Cir.), cert. denied, 268 U. S. 895, 82 S. Ct.

171, 7 L. Ed. 2d 92 (1961), a position supported directly by

Simon v. United States, 244 F. 2d 703 (5 Cir. 1957), and

inferentially by Soriano v. United States, 352 U. S. 270,

275, 77 S. Ct. 269, 1 L. Ed. 2d 306 (1957), see also States

Marine Corp. of Del. v. United States, 283 F. 2d 776 (2

Cir. 1960),? the policy behind it as a federal policy. Cf.

Westinghouse Elec. Corp. v. Pacific Gas & Elec. Co., 326

F. 2d 575, 579 (9 Cir. 1964). Just as it would be inimical

to the design of Congress to allow the beneficent purposes

_ * Section 2401(b) derives. from Section 420 of the Federal Tort

Claims Act, 60 Stat. 842; 845 (1946), which barred a claim unless

action was begun within one year. The period was increased to two

years by 63 Stat. 62 (1949). The relationship was obscured by the

rearrangement in the 1948 Judicial Code, but we have been wisely

instructed not to consider such changes as significant. Fourco Glass

Co. v. Transmirra Prod. Corp., 353 U.S. 222, 227-228, 77 S. Ct.

787, 1 L. Ed. 2d 786 (1957). Ls

va

of the Tort Claims Act to be frustrated by state rules that

a claim for malpractice ‘‘accrued’’ before it could even be

known, as the Quinton and Hungerford cases held, it would

be equally inimival to allow a state rule postponing ‘‘ac-

crual’’ far beyond any necessities of the case to subject the

United States to the ‘stale claims which the prescription

of the short two-year period was intended -to avoid. The

‘general language of § 2674 must yield to the specific provi-

sions of § 2401 Jealing with time limitations, as it recog- .

nized when a state period of limitations is shorter than the

period specified in the Tort Claims Act. Maryland: to use

_ of Burkhardt v. United States, 165 F. 2d 869, (4 Cir. 1947) ;

Young v. United States, 184 F.-2d 587 (D. C. Cir. 1950) ;

United States v. Westfall, 197 F. 2d 765. (9 Cir. 1952).

Even if we assume arguendo that § 2674 has some applica-

tion to time problems, we give it sufficient force by constru-

. ing it to allow the United States to object that a suit is

premature under applicable state law.

[3] Here Kossick must have discovered the grievous in-

jury inflicted-upon him very shortly after the administra- .

tion of the enema on August 29, 1950. Although he could

have begun a suit at that time, we do not say that for pur-

poses of § 2401(b) the’ two-year period began to run ‘so

soon. Courts have long since rejected the mechanical con- —

cept that in all cases the limitations period necessarily |

starts the very moment that a suit can be brought. See

Note, Developments in the Law—Statutes of Limitations,

63 Harv. L. Rev. 1177, 1200, 1204, 1213-19 (1950). There is

much good sense in Chief Judge Desmond’s observation in

the Borgia case that ‘‘It would be absurd to require a

wronged patient to interrupt corrective efforts by serving

a summons on the physician or hospital superinterdent

7° 9 12 N. Y. 2d at 156, 237 N. Y. S. 2d at 321-322, and

this is not altogether without application when as here the

summons would be served on the United States Attogpey.

F. R. Civ. Proc. 4(d) (4). But the period when sw m-.

siderations remained pertinent expired at the latestgavhén

fr

6a

Kossick was discharged after the last surgical attention

. to his injury in November 1952 and nothing more in the way

of remedy could be accomplished. It would be unreason-

able to postpone the beginning of the limitation period so

long as Kossick exercised his statutory right to demand

further treatment at the Hospital, 42 U. S. C. §249—a

period that will never expire so long as he is a seaman. )

{[4, 5] We add that we seriously doubt whether in ap-

plying the New York two year statute.of limitations for |

malpractice, § 50(1) of the Civil Practice Act and § 214(6)

of the new Civil Practice Law and Rules, the New York’

courts would reach any different result in a case like Kos-

sick’s. None of the New York ‘‘continuous treatment”’

cases that have been cited to us presented the question

whether merely occasional hospital visits at substantial in-

tervals, and these for examination or minor treatment to

alleviate sequelae of the injury rather than for further

cure, would prevent accrual of the claim.* On the facts

before the District Court, Kossick’s case did not rise even

to that level; the affidavits on the Government’s motion for

summary judgment served July 3, 1963, showed that the

last of Kossick’s visits :1o the Hospital, in February; 1961,

more than two years before suit, was brief and was an

examination only, and that subsequent visits to’ a Public

Health Service outpatient clinic: in Brooklyn were for

ailments unconnected with the malpractice. These later

- visits plainly would not qualify under the Borgia doctrine,

12 N. Y. 2d at 157, 237 N.Y. S. 2d at 322. At the argument

‘in this court appellant’s counsel sought to have us con-

sider, or remand for the District Court to consider, a letter

‘8 Gross v. Wise, 18 A. D. 1097, 239 N. Y. S. 2d 954 (1963) and

Armstrong v. City of New York, 39 Misc. 2d 445, 240 N. Y. S. 2d

663 (Sup. Ct. 1963) are not determinative since in the former the

patient was treated on thirty-nine occasions over a periéd of less than

three years, and in the latter, under § 50-e of the General Municipal

Law, the patient continued to be treated after her discharge from the

hospital until her death eight days later.

a.

7a

dated November 29, 1963, from the Chief of the Surgical

_Service of the Public Health Service Hospital in Boston

enclosing papers recording that Kossick had been there

from July 16 to July 24, 1963—a record which, of course,

was available long before Judge McLean's decision on

October 10. But, even if we were to take that extraordinary

course, the Boston record shows only a thorough examina-

tion, after a long interval, which we doubt would qualify

under the. Borgia doctrine. In any event, urider our view

that determination of the start of the two-year period under

28 U.S. C. § 2401(b) is an issue of federal law, we regard

it as insufficient to postpone this.

Affirmed.

8a

Laws Involved

Fifth Amendment—United States Constitution.

-AmenpMent [V]

_No person shall be * * * deprived of * * * property,

without due process of law; * * *

28 U.S. C. § 1254 (1):

-§ 1254. Courts or Appgats; Certiorari; pPeAL; CERTI-

FIED QUESTIONS

Cases in the courts of appeals may be reviewed by the

Supreme Court by the following methods:

(1) By writ of certiorari granted upon the petition of

“any party to any civil or criminal case, before or after

rendition of judgment or decree:

2° U.S. C. § 1346 (2) (b):

(b) Subject to the provisions of Chapter 171 of this

title, the district courts, together with the United States

District Court for the District of the Canal Zone and the

District Court of the Virgin Islands, shall have exclusive

jurisdiction of civil actions on claims against the United

States, for money damages, accruing on and after January

1, 1945, for injury or loss of property, or personal injury

or death caused by the negligent or wrongful act or omis- —

sion of any employee of the Government while acting with-

in the scope of his office or employment, under circum-

stances where the United States, if a priyate person, would

be liable to the claimant in accordance with the law of the

place where the act or omission occurred.

9a

. 28 U.S. C. § 2401 (b):

§ 2401. Time For ieca oct Action Acainst Unitep

States

we * eo ,

(b) A tort claim against the United States shall be

forever barred unless action is begun within two years

after such claim accrues or within one year after the date

of enactment of this amendatory sentence, whichever is

later, or unless, if it is a claim not exceeding $2,500. It i ig -

presented in writing to the appropriate Federal agency

within two years after such claim accrues or within one year

after the date of enactment of this amendatory sentence, —

whichever is later. If a claim not ‘exceeding $2,500 has

been presented in writing to the appropriate Federal

"agency within that period of time, suit thereon shall not be

barred until the expiration of a period of six months after

either the date of withdrawal of such claim from the agency

or the date of mailing notice by the agency of final disposi- . ”

tion of the claim.

28 U.S. C. § 2671:

c 2671. DeFinitions

' As used in this chapter and sections 1346 (b) and 2401

(b) of this title the term— ;

‘Federal agency’’ includes the executive departments

and independent establishment of the United States, and

corporations primarily acting as, instrumentalities o-

agencies of the United States but does not include any con.

tractor with the United States.

‘*Employee of the government’’ includes officers or em

ployees of any federal agency, members of the military or

naval forces of the United States, and persons acting on

behalf of a federal agency in an official capacity, tempo-

rarily or permanently in the service of the United States, -

whether with or without compensation.

10a :

‘‘ Acting within- the seope of his office or employment”’,

in the case of a member of the military or naval forces

of the United States, means acting in line of duty.

28 U. 8. C. § 2674:

§ 2674. Liapiurry or Unirev States .

The United States shall be liable, respecting the provi-

sions of this title relating to tort claims, in the same manner

and to the same extent as a private individua! under like

circumstances, but shall not be liable for ‘interest prior to

judgment or for punitive damages. .

If, however, in any case wherein death was caused, the

law of the place where the act or omission complained of

occurred provides, or has been construed to provide, for

damages only punitive in nature, the United States shall

be liable for actual or compensatory damages, measured

‘by the pecuniary injuries resulting from such death to the .

persons respectively, for whose benefit the action was

brought in lieu thereof.