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

7

girlfriend knew of his injuries and could have filed a claim

on his behalf within the limitation period: “To hold as the

government requests would penalize [the plaintiff] for the

inaction of his family and his girlfriend when he was

unable to act.” Id. at 979. Instead, the court held that the

FTCA’s statute of limitations began to run after a guard-

ian was appointed. Jd. Only then did a person with “requi-

site knowledge of his injury [have] a Iegal duty to act for

him.” Jd.

The Ninth Circuit considered a similar case in Wash-

ington v. United States, 769 F.2d 1436 (9th Cir. 1985). The

plaintiff there lapsed into a coma after Air Force physi-

cians injected her with a spinal anesthetic. She remained

comatose until her death fourteen years later. Id. at 1437.

After she passed away, her husband and children filed

administrative claims followed by a federal lawsuit. Jd.

The court of appeals found that the claim did not accrue

until the plaintiff’s death, reasoning that “[s]he was never

aware of her injury or its cause” and that “[nJo one had the

duty to bring an action on her behalf.” Jd. at 1439. Accord-

ingly, the court held that the family’s claims were timely

under § 2401(b). Id.

--

Malinka Wilson’s circumstances mirror those of the

comatose claimants in Clifford and Washington, and the

court of appeals should have applied the “blameless

ignorance” doctrine in this case. Malinka, who suffered

serious neurological injuries during labor and delivery,

remains unaware of her condition. Until Veronica became

an adult, she lacked the ability to protect Malinka’s

interests. Yet the court found the “blameless ignorance”

doctrine inapplicable because Malinka’s mother “knew

of the alleged injuries and cause by January 19, 2000”

even though she “was an ‘infant’ who could not herself

8

commence a civil suit” until October 3, 2000. Wilson, 403

F.3d at 527. The court then concluded that “[iJnfancy did

not prevent Wilson from making an administrative claim.”

Id.

A plaintiff’s minority generally does not toll the

_FTCA’s statute of limitations. See, e.g., McCall v. United

States, 310 F.3d 984, 986 (7th Cir. 2002). Courts justify

running the statute of limitations during minority based

on the availability of a child’s parents or guardian to

protect the child’s interests. See Crawford v. United States,

796 F.2d 924 (7th Cir. 1986) (explaining that “[tlhe cases

that hold that infancy does not toll the administrative

statute of limitations imply that a parent is an adequate

surrogate”); Landreth v. United States, 850 F.2d 532 (9th

Cir. 1988) (stating that “the minor’s parents have a legal

duty to take action on the child’s behalf”). Once a parent

or guardian has knowledge of the child’s injury and its

cause, that knowledge is imputed to the child and the

statute of limitations begins to run on the child’s claim.

Landreth, 850 F.2d at 534.

Those cases are distinguishable because they involve

minors with adult parents or an appointed guardian. The

very justification for running the statute of limitations

during a child’s minority — that a parent or guardian is

capable of protecting the child’s interest — fairly demands

that a different rule apply when a minor lacks an adult

parent or guardian to assert and protect the child’s claim.

The rationale for imputing an adult parent’s knowledge to

a minor child has no application when the parent is also a

minor without legal power or duty to act on the child’s

behalf.

9

Malinka Wilson’s circumstances illustrate why the

~ FTCA statute of limitations should not commence until a

child has a parent or guardian with the legal capacity to

~assert the child’s claim. When Malinka was born, Veronica

was herself a child. Under Missouri law, until she turned

eighteen, Veronica could not commence a lawsuit on her

own behalf or on behalf of her infant daughter. Mo. REv.

StaT. § 507.115 (2000) (stating that “infants” — those under

the age of eighteen years — have no capacity to prosecute

or defend civil lawsuits). In rejecting an argument that a

minor was free to file her own suit, the Supreme Court of

Missouri stressed that the argument “plainly ignores the

disabilities and limitations that childhood, familial rela-

tionships, and our legal system place upon a minor of

tender years — who has little if any understanding of the

complexities of our legal system.” Strahler v. St. Luke’s

Hosp., 706 S.W.2d 7, 9 (Mo. 1986). Accordingly, Veronica

lacked the legal capacity to bring a lawsuit in state court

until she turned eighteen.

Veronica had no greater opportunity to pursue her

‘daughter’s claim within the federal system. She could not

file a federal lawsuit for the same reason that she could

not bring a state action: An individual’s capacity to sue in

federal court is determined by the law of his or her domi-

cile. FED. R. Civ. P. 17(b).

Nor, as the court below opined, could Veronica pursue

Malinka’s administrative remedy before she turned

eighteen. According to the regulations governing the filing

of an administrative claim, “[a] claim for personal injury

may be presented by the injured person, his duly author-

ized agent, or legal representative.” 28 C.F.R. § 14.3(b)

(2000). The Third Circuit has held that because the

regulations do not define “legal representative,” state law

10

fills the gap to determine whether an individual qualifies

as a claimant’s legal representative. Reo v. United States

Postal Serv., 98 F.3d 73, 76 (38rd Cir. 1996). If state law

applies as the Reo court concluded, Veronica could not

qualify as Malinka’s legal representative under Missouri

law until her eighteenth birthday. Mo. Rev. Star.

§ 507.115 (2000). Because the opinion issued by the court

below indicates that Veronica could have filed an adminis-

trative claim before her eighteenth birthday,’ it conflicts

with Reo.

Thus, unlike the typical child plaintiff, Malinka did

not have a parent who was chargeable with and capable of

acting upon her claim.

No other court of appeals has considered whether the

FTCA’s statute of limitations runs on a child’s claim

during the minority of her parents.‘ But courts have

expressed their reluctance to foreclose the minor’s rights

when the adequacy of a minor’s representation by a parent

or guardian is in doubt.

In McCall v. United States, a mother filed a claim

with the Department of Health and Human Services four

* The court of appeals also said nothing of Veronica's ability to

settle the lawsuit had she in fact filed an administrative claim on

behalf of Malinka before her eighteenth birthday. Under Missouri law, a

minor cannot provide an insurer a binding release, and a minor’s

parents and natural guardians, even if they are adults, have no power

to execute a release binding on their minor child. Levin v. State Farm

Mut. Auto. Ins. Co., 510 S.W.2d 455, 462 (Mo. 1974). Thus, until she

turned eighteen, Veronica had no more capacity to resolve her daugh-

ter’s claim than she had to commence and maintain it.

* At least one district court has tolled the FTCA’s statute of

limitations for the claim of a child whose mother was a minor. Albright

v. Keystone Rural Health Ctr., 320 F. Supp.2d 286 (M.D. Pa. 2004).

11

years after giving birth to her son. 310 F.3d 984 (7th Cir.

2002). She alleged that the government’s negligence

during her labor and delivery caused permanent brain

damage to her son. A year later she and the grandmother

and guardian of the child commenced a federal lawsuit

against several defendants, including the United States.

The government moved to dismiss the case based on the

statute of limitations. Although the court of appeals

agreed and refused to toll the statute of limitations based

on the child’s minority, it declined to hold that a child’s

minority can never toll the statute of limitations:

We refrain from deciding, however, whether our

analysis would be the same if the record affirma-

tively reflected that the parents had an interest

adverse to or that the custodial adult could not

be expected to make legal decisions in the best

interest of the child. ... We leave open the ques-

tion whether the FTCA’s statute of limitations

would be tolled if a minor lacked adequate means

of obtaining judicial relief through either his

parents or a guardian.

Id. at 988.

In Zavala v. United States, the Ninth Circuit censid-

ered the effect of a parent’s abandonment of his minor

child. 876:F.2d 780 (9th Cir. 1989). The plaintiff’s mother

in that case had suffered cardiac and respiratory arrest

and had been declared brain dead. She was kept on life

support to allow her baby additional time to mature in

utero. In January 1980, shortly after his delivery, the

infant was diagnosed with severe brain damage due to -

oxygen deprivation suffered prior to birth. He went to live

with his maternal grandparents after being discharged

from the hospital. His father resided with the child and

OT

12

the grandparents until April 1981. On June 1, 1984, the

grandmother filed an administrative claim on the child’s

behalf. Five weeks later, she was appointed his guardian

ad litem. After the federal agency failed to make a fina!

disposition of her claim, she commenced a federal lawsuit

on her grandson’s behalf. Jd. at 781-82.

On appeal from the district court’s dismissal of the

case on statute of limitations grounds, the grandmother

argued that the limitations period should have been tolled

because the child’s father abandoned him. The court did

not reject the principle that abandonment could justify

tolling but held there was “insufficient evidence of aban-

donment to create a jury issue.” Jd. at 783 n.3. The record

indicated that the father knew the cause of his son’s

injuries and was not “physically incapacitated or otherwise

incapable of filing a claim.” Jd. at 783. And even though

the father did not live with his son during the last eight

months of the limitations period, he maintained contact

with the child’s grandmother and knew of his son’s condi-

tion throughout the limitation period. He also took some

financial responsibility for his child. According to the

court, the child “had, from the moment his cause of action

accrued, a parent who had both the duty to bring a claim

and the knowledge necessary to pursue it.” Id. at 784.

Malinka is representative of the group of claimants

the McCall and Zavala courts intended to insulate from

their rulings. She “lacked adequate means of obtaining

judicial relief through either [her] parents or a guardian.”

McCall, 310 F.3d at 988. Neither did she have “from the

moment [her] cause of action accrued, a parent who had

both the duty to bring a claim and the knowledge neces-

sary to pursue it.” Zavala, 876 F.2d at 784. The present

opinion nonetheless concludes that the time for asserting

13

her claim began to run as soon as her underage mother

had enough information for a competent person to be held

responsible for knowing that a tort had been committed

and a cause of action had arisen.

This case invites the Court to clarify the purpose of

the FTCA in light of a circumstance that is bound to recur.

The next; infant plaintiff may have a thirteen-year-old

mother, or she may be a sudden orphan. The court of

appeals’ answer to the question presented — whether FTCA

claims of children who lack parents or guardians capable

of protecting their legal interests must be filed within two

years after the government’s negligent conduct — is incon-

sistent with the remedial purpose of the FTCA The

reasoning of the Court of Appeals is in conflict with the

reasoning of analogous cases such as Clifford, Washington,

McCall, and Zavala, and inevitably will be cited as author-

ity for departing from the humane principle established in

those decisions.

14

CONCLUSION

For all the foregoing reasons, petitioner respectfully

requests that the Supreme Court grant review of this

matter. 2

Respectfully submitted,

MICHAEL A. Gross*

JOSEPH F. YECKEL

34 N. Brentwood Blvd.

Suite 207

St. Louis, MO 63105

(314) 727-4910

LARRY W. GLENN

WALTHER/GLENN LAW ASSOCIATES

10 S. Brentwood Blvd.

Suite 102

St. Louis, MO 63105 _

(314) 725-9595

* Counsel of Record Attorneys for Petitioner

la

APPENDIX A

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

No. 03-3830

Malinka Wilson, by andthrongh *

her next friend and mother, *

Veronica Wilson, x

x

oe , Appeal from the

v. United States District

*

Delores J. Gunn, M.D.; Joseph B. , Court for the Eastern

Shumway, M.D.; Beverly Jean District of Missouri.

Hoehn, M.D.; Charles Dahm,

M.D.; Edie M. Pohl, M.D.;

St. Louis University; Tenet

Healthsystem DI, Inc., doing

business as Forest Park Hospital,

Defendants,

United States of America,

Appellee.

Be BE ee ae ee

Submitted: February 15, 2005

Filed: April 6, 2005

Before WOLLMAN, McMILLIAN, and BENTON, Circuit

Judges.

2a

BENTON, Circuit Judge.

Malinka L. Wilson, by her mother, Veronica D. Wilson,

sued the United States under the Federal Tort Claims Act,

28 U.S.C. §§ 1346(b) and 2671 et seq., alleging malpractice

by a government-funded physician. The district court’

granted summary judgment for the government, due to

the statute of limitations, 28 U.S.C. § 2401(b). Having

jurisdiction under 28 U.S.C. § 1291, this court affirms.

Wilson delivered Malinka on January 17, 2000, at

Forest Park Hospital in St. Louis. On January 25, 2002,

Wilson sued for medical malpractice in state court, alleg-

ing that Malinka suffered serious brain and arm injuries

during delivery. On January 28, 2002, Wilson made an

administrative claim with the Department of Health and

Human Services, stating that at least one physician who |

treated Malinka was employed by a recipient of federal

grant money. Defendant Delores J. Gunn, an employee of

People’s Health Center, a federally-funded medical facility,

removed the case to federal court, where the United States

was substituted as a defendant. The district court, con-

cluding that Wilson failed to bring the administrative

claim within the two-year statute of limitations of the

FTCA, granted summary judgment to the United States.

The court rejected Wilson’s assertion that the statute was

tolled until she turned 18 on October 3, 2000, the age

when Wilson could herself bring suit. The district court

then remanded other claims to state court.

This court reviews de novo the grant of summary

judgment, giving Wilson the most favorable reading of the

* The Honorable Rodney W. Sippel, United States District Judge

for the Eastern District of Missouri.

3a

record and the benefit of any reasonable inferences from

the record. See Uhiren v. Bristol-Myers Squibb Co., 346

F.3d 824, 827 (8th Cir. 2003). “Summary judgment is

appropriate only when the pleadings, depositions and

affidavits submitted by the parties indicate no genuine

issue of material fact and show that the moving party is

entitled to judgment as a matter of law.” Id.

Under the FTCA: “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.” 28 U.S.C. § 2401(b). “This

statute is a limitation on the government's waiver of

sovereign immunity that must be strictly construed.”

K.E.S. v. United States, 38 F.3d 1027, 1029 (8th Cir.

1994), citing Soriano v. United States, 352 U.S. 270, 276

(1957). See also United States v. Sherwood, 312 U.S.

584, 590-91 (1941). Since Wilson’s administrative claim

was presented on January 28, 2002, it is time-barred if it

accrued before January 28, 2000.

“(Tjhe general rule under the [FTCA] has been that a

tort claim accrues at the time of the plaintiff’s injury.”

United States v. Kubrick, 444 U.S. 111, 120 (1979).

However, “if the plaintiff has been in ‘blameless ignorance’

of the injury, the cause of action does not accrue until the

plaintiff knows of the fact of injury and its cause.” K.E.S.,

38 F.3d at 1029, citing Kubrick, 444 U.S. at 120-22 & n.7.

See also Urie v. Thompson, 337 U.S. 163, 169-70 (1949).

“The cause of action accrues at that time even if plaintiff

does not know that the injury is legally redressable — if

plaintiff fails to act despite knowledge of the harm and its

cause, defendant is entitled to the limitations defense.”

K.E.S., 38 F.3d at 1029.

4a

Infancy does not ordinarily toll the FTCA statute of

limitations. Clifford v. United States, 738 F.2d 977, 980

(8th Cir. 1984). See generally Romualdo P. Eclavea, Anno-

tation, Statute of Limitations Under Federal Tort Claims

Act, 29 AL.R. Fed. 482, § 10(a) (1976 & Supp. 2004).

“When a person is an infant, there are others legally

responsible for his or her well-being. The parents or

guardians would be under a duty to investigate the injury

and its cause, and to take legal action within the time

prescribed.” Clifford, 738 F.2d at 980. Nonetheless,

Wilson argues that because she was an infant parent when

Malinka was born — with no “legal knowledge” of Ma-

linka’s condition or “legal duty” to act on Malinka’s behalf

— the limitations period should not begin until her eight-

eenth birthday, October 3, 2000.

Wilson mainly invokes Clifford, where a comatose

adult’s claim did not accrue until a guardian was ap-

pointed. Id. See also Washington v. United States, 769

F.2d 1436, 1438-39 (9th Cir. 1985). Before the guardian

was appointed, no one who knew of the injury and its

cause had a duty to act on Clifford’s behalf. Clifford, 738

F.2d at 980. The Clifford court explicitly distinguishes

cases where the statute ran on infants’ claims. Jd. Further,

the Clifford court limits its holding to “that rare situati¢n

where the alleged malpractice itself ... has prevented the

claimant from ever obtaining” the knowledge needed to

begin the limitations period. Clifford, 738 F.2d at 980. See

also Zeidler v. United States, 601 F.2d 527, 531 (10th

Cir. 1979).

Here, Malinka’s parent and guardian her fin

alleged injuries and cause by January 19, 2000. True,

Veronica Wilson was an “infant” who could not herself

commence a civil suit from January 19, 2000 to October 2,

5a

2000, by the terms of Mo. Rev. Stat. § 507.115 and Fed. R.

Civ. P. 17(b). She emphasizes that infants have “little if

any understanding of the complexities of our legal sys-

tem.” See Strahler v. St. Luke’s Hosp., 706 S.W.2d 7, 10

(Mo. banc 1986). But the record here shows that she was

responsible for Malinka’s well-being. Contrary to Wilson’s

argument, there is no genuine issue of material fact as to

when she knew the existence and probable cause of Ma-

linka’s injuries. Wilson’s sworn deposition statements

demonstrate that by January 19, 2000, she knew of

Malinka’s injuries and believed they would not have

occurred if the doctors had performed a cesarean section.

Wilson cites general statements of healthcare workers that

she had incomplete understanding of Malinka’s condition

and health needs, but these statements do not contradict

her own specific deposition testimony.

Infancy did not prevent Wilson from making an

administrative claim. See Zavala v. United States, 876

F.2d 780, 784 (9th Cir. 1989), citing Crawford v. United

States, 796 F.2d 924, 926 (7th Cir. 1986). Because the

claim accrued by January 19, 2000, and more than two

years passed before the administrative claim was filed,

summary judgment is proper.

Wilson further claims that the summary judgment

violated Malinka’s right to due process under the fifth

amendment. Malinka’s right to sue under the FTCA is a

property interest protected by due process. See Logan v.

Zimmerman Brush Co., 455 U.S. 422, 428-29 (1982). A

statute “adjusting the burdens and benefits of economic

life” violates due process if the claimant establishes “the

legislature has acted in an arbitrary and irrational way.”

Honeywell, Inc. v. Minnesota Life and Health Ins.

Guar. Assoc., 110 F.3d 547, 554 (8th Cir.), cert. denied,

6a

522 U.S. 858 (1997), quoting Usery v. Turner Elkhorn

Mining Co., 428 U.S. 1, 15 (1976). Wilson states: “Under a

statute of limitation that allows for tolling while an adult

patient is comatose, there can be no rational explanation

for denying infants whose parents are children the right to

assert their tort claims against the government.” In this

case, Wilson had the opportunity to pursue Malinka’s

administrative claim before the section 2401(b) period

expired. All parties agree that after turning 18, Wilson had

15 months to act on behalf of Malinka before the statute of

limitations ran. Wilson does not show that Congress acted

in an arbitrary and irrational manner.

The judgment of the district court is affirmed.

7a

APPENDIX B

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

MALINKA WILSON, by and

through her next friend and mother,

)

)

VERONICA WILSON ) Case No.

Plaintiff, ) 4:02CV1136 RWS

vs. )

UNITED STATES OF AMERICA, )

)

et al., '

Defendants. )

: MEMORANDUM AND ORDER

(Filed Jul. 9, 2003)

Plaintiff Malinka Wilson, by and through her mother,

Veronica Wilson, brings this negligence action against

Joseph Shumway, Beverly Hoehn, Charles Dahm, Saint

Louis University, Tenet Healthsystem DI, Inc., and the

United States of America.

The United States argues that Plaintiff’s complaint

should be dismissed pursuant to Federal Rule of Civil

Procedure 12(b)(1) for failure to comply with the two year

statute of limitations established by the Federal Tort

Claims Act. In the alternative, the United States argues

that it is entitled to judgment as a matter of law on Plain-

tiff’s complaint.

There is no issue of fact as to whether Malinka Wil-

son’s claim against the United States accrued on January

8a

17, 2000. Veronica Wilson filed this claim on January 28,

2002. Because the two year statute of limitations set by

the Federal Tort Claims Act for claims against the United

States began to run on January 17, 2000, this claim was

untimely filed.

Summary judgment will be granted on Plaintiff’s

complaint as to the United States.

I. Facts -

Veronica Wilson (“Wilson”) delivered her daughter,

Malinka Wilson (“Malinka”) on January 17, 2000 at Forest

Park Hospital in St. Louis Missouri. Forest Park Hospital

is a non-federally funded medical facility. Wilson had

visited the People’s Health Center, a federally funded

medical facility, beginning on June 16, 1999 for the pur-

pose of receiving prenatal care. On July 7, 1999. Wilson

was referred for ultrasound, the results of which indicated

that the gestational age of the fetus was approximately

twelve weeks. On January 16, 2000, Wilson was admitted

to Forest Park Hospital at approximately forty weeks

gestation due to contractions. At that time, Wilson denied

any complications with the pregnancy.

Wilson claims that Malinka sustained serious, perma-

nent, and painful injuries to her brain and her arm as a

result of Defendants’ negligence while caring for Wilson’s

pregnancy and the labor and delivery of Malinka. Wilson

argues that Defendants failed to perform an adequate and

timely delivery and failed to perform a C-section when

_ they knew or should have known that it was medically

necessary to do so.

9a

On January 28, 2002, Wilson, on behalf of Malinka,

filed suit in the Circuit Court of the City of Saint Louis

against several individual healthcare providers. This

‘action was then removed to the United States District

Court for the Eastern District of Missouri. Defendant

Delores Gunn filed a motion to dismiss and to substitute

the United States of America as a Defendant on November

19, 2002. The Court granted the motion. Wilson filed an

amended petition on March 6, 2003 naming as Defendants

Shumway, Hoehn, Dahm, Saint Louis University, Tenet,

and the United States.

The United States now moves to dismiss this case

pursuant to Rule 12(b)(i) or, in the alternative, for sum-

mary judgment.

II. Legal Standards

Federal Rule of Civil Procedure 12(b)(1) provides that

-a claim may be dismissed for lack of jurisdiction over the

subject matter. A complaint may be challenged under Rule

12(bX(1) either on its face or on the factual truthfulness of

its averments. Titus v. Sullivan, 4 F.3d 590, 593 (8th Cir.

1993), citing Osborn v. United States, 918 F.2d 724, 729

n.6 (8th Cir. 1990). When challenging a complaint on its

face, “all of the factual allegations concerning jurisdiction

are presumed to be true and the motion is successful if the

plaintiff fails to allege an element necessary for subject

matter jurisdiction.” Jd.

The expiration of a statute of limitations is not a

jurisdictional bar, but instead constitutes a waivable

affirmative defense. U.S. v. Soriano-Hernandez, 310 F.3d

1099, 1103 (8th Cir. 2002); United States v. Gomez, 38 F.3d

1031, 1033 n. 4 (8th Cir. 1994). Accordingly, the Court will

10a f 4

consider this motion as one for summary judgment under

Federal Rule of Civil Procedure 56.

When considering a motion for summary judgment,

the Court must determine whether the record when

viewed in the light most favorable to the non-moving

party, shows any genuine issue of material fact. Fed. R.

Civ. P. 56(c). See, Celotex Corp. v. Catrett, 477 U.S. 317,

322-23 (1986); Anderson v. Liberty Lobby Inc., 477 U.S.

242, 249-50 (1986). A party seeking a summary judgment

bears the initial burden of informing the court of the basis

its motion and identifying those portions of the record,

which it believes demonstrate the absence of a genuine

issue of material fact. Celotex, 477 U.S. at 323. There is,

however, no express or implied requirement in Riile 56

that the moving party must support its motion with

affidavits or other materials negating the oppositions

claim. Jd. The burden is not on the moving party to pro-

duce evidence showing the absence of a genuige issue of

material fact, even with respect to an issue on which the

nonmoving party bears the burden of proof. Jd. at 325.

Instead, “the burden on the moving party may be dis-

charged by ‘showing’ — that is, pointing out to the district

court-that there is an absence of evidence to support the

nonmoving party’s case.” Jd. As long as the record before

the court demonstrated that there is not genuine issue of

material fact, summary judgment should be granted. Jd. at

323. +

When faced with a motion for summary judgment |

meeting the standard set forth above, the non-moving

party may not rest upon the mere allegations or denials of ,

its pleadings alone, but most introduce affidavits geposi**”

tions, answers to interrogatories, or admissions on file

designating specific facts showing that there is a genuine

lla

issue of material fact for trial. Celotex, 477 U.S. at 324;

Jetton v. McDonnell Douglas, Corp., 121 F.3d 423, 427 (8th

Cir. 1997); Noll v. Petrousky, 828 F.2d 461, 462 (8th Cir.

1987). Further, a plaintiff facing a motion for summary

judgment must designate specific facts showing a genuine

issue of material fact on each essential element of his

claim. Id. In addition, this Court is “not required to specu-

late on which portion of the record the nonmoving party

relies, nor is it obligated to wade through and search the

entire record for some specific facts that might support the

nonmoving party's claim.” White v. McDonnell Douglas

Corporation, 904 F.2d 456, 458 (8th Cir. 1990) (quoting

InterRoyal Corporation v. Sponseller, 889 F.2d 108, 111

(6th Cir.1989)).

III. Discussion

The United States moves for summary judgment on

the grounds that Wilson failed to file suit with the appro-

priate administrative agency-within the two year statute

of limitations established under the Federal Tort Claims

Act (“FTCA”), 28 U.S.C. § 2401(b).

The FTCA creates a limited waiver sovereign immu-

nity, permitting plaintiffs to bring suit against the United

States

for injury or loss of property, or personal injury or

death caused by the negligent or wrongful act or

omission of any employee of the Government

while acting within the scope of his office or em-

ployment, under circumstances where the United

States, if a private person, would be liable to the

12a

claimant in accordance with the law of the place

where the act or omission occurred.

28 U.S.C. § 1346.

In order to bring suit against the United States, a

plaintiff must first present an administrative claim

requesting a sum certain in damages to the appropriate

federal agency and the claim must be denied. 28 U.S.C.

§ 2675(a). Furthermore, the claim must be presented

within two years of the alleged injury. Section 2401(b)

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 de-

nial of the claim by the agency to which it was

presented.

28 U.S.C. § 2401(b).

The time at which a claim accrues under the FTCA is

a question of federal law. Brazzell v. United States, 788

F.2d 1352, 1355 (8th Cir. 1986). Generally, a claim accrues

under the FTCA at the time of the plaintiff’s injury.

United States v. Kubrick, 444 U.S. 111, 120 (1979). Claims

of medical malpractice, however, accrue when the “plain-

tiff actually knew, or in the exercise of reasonable dili-

gence should have known, the cause and existence of his

injury.” Motley v. United States, 295 F.3d 820, 822 (8th Cir.

2002), citing Wehkrman v. United States, 830 F.2d 1480,

1483 (8th Cir. 1987). Knowing the cause and existence of

an injury is not the same as knowing that a legal right has

been violated. Motley, 295 F.3d at 822. Once a plaintiff

13a

knows or should know that he has been injured and who

has inflicted the injury, “[t]here are others who can tell

him if he has been wronged, and he need only ask.” Jd.,

citing Kubrick, 444 U.S. at 122.

In this case, it is undisputed that Wilson presented an

administrative claim to the appropriate federal agency, the

Department of Health and Human Services (“DHHS”) and

that the claim was denied. The United States argues,

however, that Wilson did not present her claim to DHHS

within the two year statute of limitations as required by

§ 2401(b). The United States contends that Wilson’s claim

accrued on January 17, 2000, but that Wilson did not

present an administrative tort claim to DHHS until

January 28, 2002. The United States argues that Wilson

knew the cause and existence of her daughter’s injury on

January 17, 2000, the day Malinka was delivered. In

support of its argument, the United States points to

testimony provided by Wilson during her deposition that

she was aware Malinka was injured in some way on the

day of the delivery, January 17, 2000. Specifically, Wilson

testified that on January 17, 2000, she was aware that

something was wrong with Malinka’s brain. Wilson also

testified that she discovered that Malinka had an arm

injury on January 19, 2000. Wilson further testified that

on January 17, 2000, she believed that Malinka’s injuries

could have been prevented if the —- physicians had

performed a C-section.

Wilson counters that she did present her claim to

DHHS within the two year statute of limitations. Wilson

does not contest that she first presented her administra-

tive tort claim to DHHS on January 28, 2002. Wilson

maintains, however, that her claim did not accrue until

October 3, 2000, the day she turned eighteen, since she

l4a

was not legally competent to assert a claim for her daugh-

ter as a minor. Wilson admits that the minority of a

plaintiff does not toll the statute of limitations for claims

brought under the FTCA, but argues that the minority of a

plaintiff’s parent does toll the statute of limitations.

The statute of limitations serves the two-fold purpose

of protecting “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” and “affording

plaintiffs what the legislature deems a reasonable time to

present their claims.” Kubrick, 444 U.S. at 117. The

statute of limitations requires the reasonably diligent

presentation of tort claims. Wollman v. Gross, 637 F.2d

544, 549 (8th Cir. 1980). This may require a plaintiff to

obtain appropriate legal counsel and together with counsel

discover the facts and their possible legal ramifications so

as to enable the plaintiff to bring suit within a reasonable

time. Id.

Federal courts have generally been reluctant to toll

the statute of limitations for claims against the federal

government owing to considerations of-sovereign immu-

nity. Wilson v. West, 962 F.Supp. 939, 946 (D.Miss. 1997).

Limitations and conditions upon which the government

consents to be sued must be strictly observed and excep-

tions thereto are not to be implied. Soriano v. United

States, 352 U.S. 270, 276 (1957), citing United States v.

Sherwood, 312 U.S. 584, 590-591 (1941).

The minority of a plaintiff does not toll the two year

statute of limitations for claims brought under the FTCA.

See Mossow by Mossow v. U.S., 987 F.2d 1365, 1369 n. 6

(8th Cir. 1993). See also, Clifford v. United States, 738 F.2d

977, 980 (8th Cir. 1984) (noting the “well-recognized” rule

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that the FTCA’s statute of limitations is “not ordinarily

tolled for infancy”); Leonhard v. United States, 633 F.2d

599, 624 (2nd Cir. 1980) (the two year FTCA statute of

limitations period is-not tolled by the claimant’s minority);

Robbins v. United States, 624 F.2d 971, 972 (10th Cir.1980)

(a claimant’s minority does not toll the running of the

FTCA’s statute of limitations); McCall ex rel. Estate of Bess

v. United States, 310 F.3d 984, 988 (7th Cir. 2002) (the

infancy of a plaintiff does not toll the statute of limitations

under the FTCA).

Likewise, the mental incapacity of a plaintiff gener-

ally does not toll the FTCA’s statute of limitations. See

Lake v. Arnold, 232 F.3d 360, 371 (3rd Cir. 2000) (mental

incompetence is not per se a reason to toll the statute of

limitations in federal actions); Casias v. United States, 532

F.2d 1339, 1342 (10th Cir.1976) (holding that insanity does

not toll the statute of limitations under the FTCA).

The bar against tolling the statute of limitations for

infant plaintiffs and incapacitated plaintiffs presumes that

the plaintiffs parent or guardian will act on his or her

behalf in bringing suit. See Crawford v. U.S., 796 F.2d 924,

927 (7th Cir. 1986) (the rule that infancy does not toll the

statute of limitations implies that a parent is an adequate

surrogate); Fernandez v. United States, 673 F.2d 269, 271

(9th Cir. 1982); MacMillan v. United States, 46 F.3d 377,

381 (5th Cir.1995) (“[U]nder the FTCA, the limitations

period is not tolled during the minority of the putative

plaintiff; rather ‘his parent’s knowledge of the injuries is

imputed to him”); Zavala by Ruiz v. United States, 876

F.2d 780, 783-84 (9th Cir. 1989) (infancy does not toll the

FTCA’s statute of limitations because the minor’s parent

had a duty to act on the minor’s behalf); Barnhart v.

United States, 884 F.2d 295, 299 (7th Cir. 1989) (FTCA’s

16a

statute of limitations would not be tolled “[w]here the

plaintiff was a minor whose parents had a duty to take the

initiative in instituting a legal action”). See also Clifford,

738 F.2d at 980 (8th Cir.1984) (FTCA’s statute of limita-

tions began running when guardian was appointed for

comatose patient); Lake, 232 F.3d at 371 (“established

procedures for the appointment of guardians afford suffi-

cient protection to individuals who are non compos mentis

that their claims will be instituted within the permissible

period”).

To the Court’s knowledge, there is no federal prece-

dent for the tolling of the FTCA’s statute of limitations in

cases involving minor plaintiffs. Federal courts have,

however, opted to toll the statute of limitations for inca-

pacitated plaintiffs in a limited number of cases. In Clif-

ford, the plaintiff, through his father and guardian,

brought suit against the United States under the FTCA

alleging that the plaintiff had fallen into a permanent

coma as a result of medical malpractice. The Eighth

Circuit reversed the district court’s grant of summary

judgment for the government, finding that the plaintiffs

suit was not untimely. Although the plaintiff filed suit

more than two years after the time of his injury, the

Eighth Circuit found that the statute of limitations did not

run during the time the plaintiff was comatose and no

guardian had been appointed. Clifford, 738 F.2d 977. See

also Lake, 232 F.3d 360 (limitations period tolled for

mentally retarded plaintiff where plaintiff lacked a guard-

ian who could advocate her rights and where guardians

themselves caused injury to plaintiff).

Wilson would have the Court apply the holding in

Clifford to excuse the untimely filing in this case. Wilson

points out that under Missouri law, individuals under the

17a

age of eighteen lack the capacity to institute legal proceed-

ings. R.S.Mo. § 507.115; Fed. R. Civ. P. 17(b). Wilson

further points out that she was only seventeen years old at

the time she delivered Malinka. Wilson argues that

because she was legally incompetent to assert a claim on

behalf of Malinka until she turned eighteen, Malinka, like

the plaintiff in Clifford, was without a guardian to assert a

claim on her behalf. Wilson maintains that just as the

statute of limitations in Clifford began to run when a

guardian was appointed for the plaintiff, so in this case,

the statute of limitations began to run on Wilson’s eight-

eenth birthday, October 3, 2000. Wilson concludes that

Malinka’s cause of action accrued on October 3, 2000, the

day Wilson acquired both legal knowledge of Malinka’s

condition and the legal duty to act on Malinka’s behalf.

Wilson’s attempt to apply Clifford to this case is

unavailing. In Clifford, the Eighth Circuit considered

whether the statute of limitations should run for a coma-

tose adult plaintiff who had not yet been appointed a

guardian. In deciding to find an exception to § 2401(b), the

court expressly distinguished the facts of Clifford from

those in which the plaintiff is an infant.

Vhen a person is an infant, there are others le-

gally responsible for his or her well-being. The

parents or guardians would be under a duty to

investigate the injury and its cause, and to take

legal action within the time prescribed. Allen

Clifford had reached the age of majority and had

not yet been declared legally incompetent. His

case is not like one involving a minor.

Clifford, 738 F.2d at 980 (citations omitted).

18a

Unlike the plaintiff in Clifford, Malinka was a minor.

As 4 minor, Malinka was not without a parent or guardian

who could have asserted a claim on her behalf.’ Wilson

admitted in her deposition that on January 17, 2000 she

knew of Malinka’s injuries and believed that the injuries

could have been prevented had Malinka been delivered via

C-section. Wilson could have prepared her case against

Defendants before her eighteenth birthday. The evidence

shows that Wilson did, in fact, contract with her attorney

for representation as early as May 11, 2000 when she

signed an Authorization to Release Medical Records

allowing counsel to seek medical records on her behalf.’

Moreover, Wilson’s mother could have stood in the

place of Wilson in bringing suit on behalf of Malinka

before October 3, 2000. Wilson’s mother, Diane Wilson,

was present at Forest Park Hospital when Malinka was

born and knew of Malinka’s injuries. As the parent of a

minor, Diane Wilson had a legal duty to act on behalf of

Wilson in asserting a claim for Malinka.

Case law both within and without the Eighth Circuit

uniformly holds that the statute of limitations under the

FTCA does not toll during the infancy of the plaintiff. In

the absence of either controlling or persuasive authority

that the legal infancy of a plaintiff’s mother tolls the

statute of limitations under the FTCA, the Court will not

* There is no evidence that Corey Exum, Malinka’s father, knew

the cause or existence of Malinka’s injuries such that he could have

asserted a claim on her behalf.

* A minor parent is legally competent under Missouri law to enter

into a contract for surgical, medical, or other treatment or procedures

on behalf of her child. R.S.Mo. § 431.065.

19a

imply an exception to the express statutory limitations to

suits against the federal government.

Wilson maintains that if § 2401(b) does not permit an

exception to the statute of limitations for cases involving

minor plaintiffs whose natural guardians are themselves

minors, the Court should find the statute unconstitutional.

Wilson argues that allowing the statute of limitations to

run before she was legally competent to assert a claim on

Malinka’s behalf deprives Malinka of her property inter-

ests under the FTCA without due process of law.

The Court finds that § 2401(b) is not unconstitutional

for failing to provide for tolling where the parent of a

minor plaintiff is herself a minor. The Court does not

dispute that a cause of action constitutes a protected

property interest within the meaning of the Fifth and

Fourteenth Amendments. Logan v. Zimmerman Brush Co.,

455 U.S. 422, 428 (1982). The Court does, however, dispute

Wilson’s contention that Malinka was deprived of her right

to bring a cause of action in this Court oul the running of

the statute of limitations.

Due process, at a minimum, requires that “depriva-

tion of life, liberty or property by adjudication be preceded

by notice and opportunity for hearing appropriate to the

nature of the case.” Jd., citing Mullane v. Central Hanover

Bank & Trust Co., 339 U.S. 306, 313 (1950). In this case,

dismissal of Malinka’s claim was proceeded by notice and

opportunity for hearing as provided by the FTCA. ..

As stated above, Malinka’s grandmother, Diane

Wilson, was legally competent to assert a claim on Ma-

linka’s behalf and knew of Malinka’s injuries at the time of

her birth. Furthermore, although Wilson was not legally

competent to file suit until October 3, 2000, she could have

20a

taken — and did take — steps to prepare a cause of action

on Malinka’s behalf as soon as she became aware of

Malinka’s injuries on January 17, 2000. By January 17,

2000, Wilson knew the cause and existence of Malinka’s

injuries, the name of the facility at which she had received

prenatal care, the names of the treating physicians, and

believed that a C-section should have been performed.

Wilson had both notice and opportunity within the

two year period established by § 2401(b) to file a medical

malpractice claim on Malinka’s behalf. The Court finds

that Malinka’s due process rights were not infringed by

the running of the statute of limitations. The two year

statute of limitations provided Wilson a reasonable time to

present the medical malpractice claim on Malinka’s behalf.

Moreover, there is no evidence that Wilson was not legally

competent under Missouri law to file an administrative

tort claim before turning eighteen. Had Wilson filed an

administrative tort claim by January 17, 2000, Malinka’s

medical malpractice claim under the FTCA would have

been preserved.

Alternatively, Wilson argues that ther claim did not

accrue until sometime in February 2000 when a social

worker at Rankin Jordan Pediatric Rehabilitation Center

advised her to seek the advice of-an attorney. Wilson

contends that issues of fact ¢kist as to whether she, in fact,

knew the cause and, existence of Malinka’s injuries on

January 17, 2006- Wilson points out that she was only

seventeen years old at the time of delivery, that she was in

an unfamiliar place, and that the delivery was difficult

and traumatic. Wilson further argues that testimony

provided by doctors, «Social worker, and a nurse shows

that she was not aware of Malinka’s condition until

February, 2000. One doctor testified that Wilson told her

2la

on January 18, 2000 that Malinka was “doing well.” The

social worker noted on January 26, 2000 that although

Wilson had been informed of Malinka’s condition several

times, she “does not seem to understand this information.”

Finally, a nurse’s note written three days after Wilson was

discharged from Rankin Jordan recorded that Wilson had

called to inquire whether she could substitute water for

Malinka’s nutritional formula.

The evidence submitted by Wilson in support of her

argument that Malinka’s claim did not accrue until Feb-

ruary, 2000 does not suffice to create an issue of fact

regarding when Wilson knew the cause and existence of

Malinka’s injuries. The challenging circumstances of

Wilson’s labor and delivery have no bearing on when

Wilson became aware of her daughter’s injuries. Moreover,

the testimony of the doctors, social worker, and nurse does

not contradict Wilson’s sworn deposition statements that

she knew the cause and existence of Malinka’s injuries on

January 17, 2000. At most, the testimony suggests that

Wilson might not have know the exact nature and full

extent cf Malinka’s injuries on January 17, 2000. Cited

more fully, the social worker’s note of January 26, 2000

stated that Wilson “admitted to not completely under-

standing [Malinka’s] condition[,] but is aware that there

may be learning problems, walking, eating problems.”

In order for a claim to have accrued under the FTCA,

a plaintiff need not know the full extent of the damages or

that the injury was caused by the government’s negli-

gence. Kubrick, 444 U.S. at 123. See Coleman v. Morall,

2003 WL 1788007, 4 (10th Cir. 2003) (plaintiff need not

know the full extent of his injuries before the statute of

limitations undér the FTCA begins to run); Massey v. U.S.,

312 F.3d 272, 278 (7th Cir. 2002) (the statute of limitations

22a

begins to run upon the discovery of the injury, even if the

full extent of the injury is not discovered until much later);

Gonzalez v. U.S., 284 F.3d 281, 289 (1st Cir. 2001) (plain-

tiff need not know the full extent of the injury for the

statute of limitations to begin to run); Ashley v. United

States, 413 F.2d 490, 493 (9th Cir.1969) (a claim under the

FTCA does not wait to accrue until a party knows the

precise extent of an injury).

There are no issues of fact as to whether Wilson was

aware at least to some extent of Malinka’s condition on

January 17, 2000. Because Wilson knew the cause and

existence of Malinka’s injuries on January 17, 2000,

Malinka’s claim accrued on that date and the statute of

limitations began to run. Wilson filed this claim on Janu-

ary 28, 2002, eleven days after the expiration of the two

year limitations period. As such, Wilson’s claim is un-

timely according to the statutory requirements of the

FTCA.

Summary judgment will be granted on Wilson’s claim

against the United States.

IV. Conclusion

There are no issues of fact as to whether Wilson knew

the cause and injury of Malinka’s injuries on January 17,

2000. Because Malinka’s claim accrued on January 17,

2000, the statute of limitations began to run on that date.

Wilson did not file this claim until January 28, 2002,

eleven days after the expiration of the limitations period.

The United States is entitled to judgment as a matter of

law on Wilson’s claim brought on behalf of Malinka.

Accordingly,

23a

IT IS HEREBY ORDERED that the United States’s

Motion to Dismiss or in the Alternative for Summary

Judgment [#25] is GRANTED.

/s/ Rodney W. Sippel

RODNEY W. SIPPEL

UNITED STATES DISTRICT JUDGE

Dated this 9th day of July, 2003.

24a

APPENDIX C

1. Section 2401(b) of Title 28 of the United States Code

(2000) provides:

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 de-

nial of the claim by the agency to which it was

presented.

2. Section 14.3(b) of Title 28 of the Code of Federal

Regulations (2000) provides:

A claim for personal injury may be presented by

the injured person, his duly authorized agent, or

legal representative.

3. Rule 17(b) of the Federal Rules of Civil Procedure

(2000) provides:

The capacity of an individual, other than one act-

ing in a representative capacity, to sue or be sued

shall be determined by the law of the individual’s

domicile. ...

4. Section 507.115 of the Missouri Revised Statutes

(2000) provides:

As used in sections 507.110 to 507.220, the term

“infant” means any person who has not attained

the age of eighteen years. All persons of the age of

eighteen years or older, not otherwise disqualified,

may commence, prosecute, or defend any action in

his own name as the real party in interest.