Petition for Writ of Certiorari — Gordon v. United States

IN THE ”

Supreme Court of the United States

OCTOBER TERM, 1992

BRUCE GORDON, SR., et ai.

Petitioners,

V.

UNITED STATES OF AMERICA

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Walter A. Oleniewski*

Ashley Joel Gardner

Jeffrey A. Shane

SHULMAN, ROGERS, GANDAL,

PORDY & ECKER, P.A.

11921 Rockville Pike, Third Floor

Rockville, Maryland 20852

(301) 230-5200

* Counsel of Record

December 23, 1992

Balmar Legal Publishing Services, Washington, D.C., (202) 682-9800

ee ee

i

QUESTIONS PRESENTED

i. Section 205 of the Soldiers’ and Sailors’ Civil Relief Act,

50 App. U.S.C. 525 (Section 205) provides that the period of

military service shall not be included in computing any period

limited by law for the bringing of any action or proceeding by

or against any person in military service or by or against his

heirs, executors or assigns. The question presented is whether

Section 205 tolls the statute of limitations governing a

servicemember’s claim for consequential damages incurred as

a result of injuries to his child even if the child’s claim for

personal injuries is time-barred;

A similar issue, interpreting Section 205, has been granted

certiorari, and is scheduled for oral argument before this Court

on January 11, 1993. Conroy v. Aniskoff, No. 91-1353.

ii. Petitioner Bruce Gordon, Jr. was injured by the failure

of attending physicians to take professionally recognized and

required actions during his childbirth, and the petitioners were

unaware that the injury was related to medical care. The Court

of Appeals below nevertheless ruled that petitioners should have

known who caused the injury and brought a timely suit. The

question presented in these circumstances is whether, for statute

of limitations purposes under the Federal Tort Claims Act, this

Court’s decision in Kubrick v. United States, 444 U.S. 111

(1979) establishes a workable standard for determining whether

a plaintiff should have known who caused his injury, without

also requiring that the plaintiff know what caused his injury.

ii

PARTIES TO THE PROCEEDING

The petitioners are Bruce Gordon, Sr., Brenda Gordon

Brantley and Bruce Gordon, Jr. The respondent, defendant

below, is the United States.

iii

TABLE OF CONTENTS

NOR 5 oe Se eee ak 6 le

Pe ee ea tk te Sie oe

Statutory ProvisionsInvolved ............

i neg rer

Reasons for Granting the Petition ..........

EE 0.6 3K 1k a OS LL Soe

PRR, 5 6 5a Sc & Sed ke week's cee

PT ea 5 oe oa 2 ee a eee ee

Pe ee e's Se os ee eee

PE 5 x's 5% 4s SG I eee

PE a ete ie aan ae ee

iv

TABLE OF AUTHORITIES

CASES PAGE(S)

Barstow v. State, 742 S.W.2d 495 (Tex. App. 1987) .. 12

Bickford v. United States, 228 Ct. Cl. 321, 656 F.2d

EE 655.5 gs bs trae a ee eee 11,12,13

Carr v. Yokahama Specie Bank, Ltd. of San Francis-

co, 200 F.2d 251, 255 (9th Cir. 1952) ..... 22

Card v. American Brands Corp., 401 F.Supp. 1186

i 2s SOE a a Ne a 4 eke ee ee 13,14

Clark v. Mechanics’ American National Bank, 282

Pa Gat. BMAD 3 et ee 11

Colleen v. United States, 843 F.2d 329, 331

Se re ane er 22

Conroy v. Aniskoff, No. 91-1353, U.S. Supreme

re Tater eS Saha. 5g lias ee eee 8

Donohue v. Ward, 298 S.C. 75, 378 S.E.2d 261

a: ae a ere 12

Drazan v. United States, 762 F.2d 56

5 8 A 20

Herrera-Diaz v. U.S. Dept. of Navy, 845,

F.2d 1534 (9th Cir.), cert. denied,

488 U.S. 924 (1988) .......2..0002. 19,21

In re Swine Flu Products Liability Litigation,

764 F.2d 637 (9th Cir. 1985) ......22.. 17

Irwin v. Veterans Administration, __ U.S. ___,

SUE AN SSCP) nt te ws 9,11,16

Jastremski v. United States, 737 F.2d 666

(7th Cir. 1984) .. 2... .02020200220202002. 20

Kubrick v. United States, 444 U.S. 111

i. ) 9,15,17

Vv

Lee v. United States, 485 F. Supp. 883

Ty ME Ss 6:4 nied eie,e-6 eek a 20

Lester v. United States, 487 F.Supp. 1033

(Fag Ad ae oN eee wf ots 10,11,13,14

Lopez v. Waldrum Estate, 249 Ark. 558,

QG0 S.W.aa Gi CTPF) ei ce ete ee 13

Los Angeles Shipbuilding and Drydock Corp. v.

United States, 289 F.2d 222 (9th Cir. 1961) . 22

Mason v. Texaco, Inc., 862 F.2d 242

fe ee ee ee ee ee 12

McCance v. Lindau, 63 Md. App. 504,

492 A.2d 1352 (Md. App. 1985) ....... 12

Miller v. United States, 803 F. Supp. 1120

Gee Se EY a ho aca ke ke ce a6 10,12,13,14

Mitchell v. Phillips, 58 Pa. D. & C.2d 314

RRL gt Aleta Petr Faecal aaa a 13

Nemmers v. United States, 795 F.2d 628, 631,

aff d, 870 F. 2d 426 (7th Cir. 1989) ...... 17,19-20

Oberlin v. United States, 727 F.Supp. 946

GE I ee ey ek we kes 11,12

Osborn v. United States, 918 F.2d 724, 733

Ge OU ia oh eke Ss we le Se 22

Otto v. National Institute of Health,

815 F.2d 985, 989 (4th Cir. 1987) ...... 18

Pannell v. Continental Can Co., Inc.,

394 F.2d 216 Gi Cir. 1977) 2 ww ww wees 12

Raddatz v. United States, 750 F.2d 791

8 8 | a rrr 18

Ray v. Porter, 464 F.2d 452

Gee Ga ROO ca ic. a) ae ce eke cereals 11,14

vi

Ricard v. Birch, 529 F.2d 214

SE SE he: kas hee a 10,11,12,13

Rosales v. United States, 824 F.2d 799

a WET ss 6 5 Oe ee eee 18,19,20,21

Stephan v. United States, 490 F.Supp. 323 (W.D.

rn ayer er erg a ao as 1]

The West Point, 71 F.Supp. 206

Ss I a eg ae oe 11

United States v. United States Gypsum Co.,

Dae a Se RE nis he ee es 22

Urie v. Thompson, 337 U.S. 163 (1949) ...... 9,15,16

Wanner v. Glen Ellen Corp., 373 F.Supp. 983

a ec ROE hie sk erp eae asec ey Soe 13

STATUTES:

Federal Tort Claims Act, 28 U.S.C. 1346(b),

2401(b), 2671 et seq.:

ey es EE a othe. Mca KW & 08 oe passim

EEE iin v 4-Ke ea ee KO passim

ee NE ak ase & be oe ee i passim

Soldiers’ and Sailors’ Civil Relief Act, 50 U.S.C.

App. 525 (205):

RS ae) ) pS passim

MISCELLANEOUS:

40 Op. Attorney General 97 (1941) ........ 10 |

Federal Rule of Civil Procedure 52(a) ....... 22 |

No.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1992

BRUCE GORDON, Sr., et ai.,

Petitioners,

V.

UNITED STATES OF AMERICA

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Petitioners Bruce Gordon, Sr., Brenda Gordon Brantley

and Bruce Gordon, Jr., by counsel, petition for a writ of certiorari

to review the judgment of the United States Court of Appeals

for the Ninth Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App. A, infra, 1a-5a),

the order denying the Petition for Rehearing (App. B, infra, 6a),

and the opinion of the district court (App. D, infra, 10a-20a),

are unreported.

JURISDICTION

The judgment of the court of appeals was entered on June

25, 1992. A petition for rehearing was denied on October 5,

1992 (App. B, infra, 6a). The jurisdiction of this court is

invoked under 28 U.S.C. 1254(1).

STATUTORY PROVISIONS INVOLVED

1. 28 U.S.C. 2401(b) provides:

A tort claim against the United States shall be forever

barred unless it is presented in writing to the ap-

propriate Federal agency within two years after such

claim accrues or unless action is begun within six

months after the date of mailing, by certified or

registered mail, of notice of final denial of the claim

by the agency to which it was presented.

2. Section 205, 50 U.S.C. App. 525 states:

The period of military service shall not be included in

computing any period now or hereafter to be limited

by any law, regulation, or order for the bringing of any

action or proceeding in any court, board, bureau,

commission, department, or other agency of govern-

ment by or against any person in military service or

by or against his heirs, executors, administrators, or

assigns, whether such cause of action or the right or

privilege to institute such action or proceeding shall

have accrued prior to or during the period of such

service, nor shall any part of such period which occurs

after the date of enactment of the Soldiers’ and

Sailors’ Civil Relief Act Amendments of 1942 [Oct.

6, 1942] be included in computing any period now or

hereafter provided by any law for the redemption of

real property sold or forfeited to enforce any obliga-

tion, tax or assessment.

50 U.S.C. App. 525.

STATEMENT

Petitioner Bruce Gordon, Jr. (Bruce) is the natural child of

Petitioners Bruce Gordon, Sr. (Mr. Gordon) and Brenda Gordon

Brantley (Mrs. Brantley). Mr. Gordon has been on active duty

3

with the United States Air Force continuously since Bruce was

born on June 25, 1984.!

On June 25, 1984 at 9:40 a.m., Mrs. Brantley was admitted

to the Sheppard Air Force Base Hospital (the Hospital), where

Bruce was bor at 12:40 p.m. Shortly before Mrs. Brantley’s

admission, her amniotic membrane spontaneously ruptured,

revealing a green, meconium-stained amniotic fluid, a sign of

potential fetal distress recorded in her medical record upon

admission. (App.D, infra, 10a-11a).

At 9:50 a.m., Jyh Chewn Liang, M.D. (Dr. Liang) was

notified of Mrs. Brantley’s admission. At 10:00 a.m., Mrs.

Brantley was connected to a fetal heart monitor which produced

tracings of fetal heart activity until shortly before Bruce was

born. Dr. Liang testified that the fetal heart tracing immediately

revealed that “the baby was in trouble” because, although the

heart rate was normal, the heartbeat was not “varied, variable,

or responsive”. (App.D, infra lla - 12a). Medical expert

witnesses, including the United States’ expert witness on the

standard of care, Dr. Barry Schifrin, testified that the fetal heart

tracing was clearly abnormal and was consistent with ongoing

asphyxia.

Upon his initial examination at 10:00 a.m., Dr. Liang knew

that Mrs. Brantley (who was then only four centimeters dilated)

would not be ready to deliver the child vaginally until eight to

twelve hours later, and that a cesarean delivery was necessary

to relieve the child’s distress. (App.D, infra, 1la- 12a). Al-

though guidelines adopted by the American College of

Obstetricians and Gynecologists (ACOG) require a physician to

commence a cesarean delivery within thirty minutes of deciding

that a cesarean is necessary, the procedure did not commence

| Bruce’s mother received the military obstetrical care at issue in her

capacity as Mr. Gordon’s dependent wife. Mr. and Mrs. Gordon divorced in

October, 1988. On January 13, 1989, Brenda Gordon married Leon Brantley.

They were divorced on November 19, 1990.

4

until 12:15 p.m., over two hours later. In the interim, Dr. Liang

went on a routine visit of the [Hospital] Clinic and did not further

attend to Mrs. Brantley until he returned to the Hospital at 11:30

a.m.

After he returned to the hospital, Dr. Liang ascertained that

Bruce’s heart rate had declined, a finding to which he attached

no medical significance, and had been continuously non-reac-

tive since 10:00 a.m. (App.D, infra, 12a) Although Dr. Liang

acknowledged essentially the same findings at 10:00 a.m., he

now recorded on Mrs. Brantley’s chart, “11:30: impression of

fetal distress” and ordered a cesarean on anon-emergency basis.

(App.D, infra, 12a) Dr. Liang testified that he ordered the

cesarean “asap” rather than on an emergency basis because the

child’s distress was “chronic” rather than “acute”.

The procedure commenced at 12:15 p.m., and culminated

in Bruce’s birth at 12:40 p.m. Bruce was not breathing, and had

no heartbeat or signs of life at birth and for several minutes

thereafter. (App.D, infra, 12a - 13a)

When Mrs. Brantley emerged from general anesthesia,

Hospital personnel told her that Bruce was not breathing at birth

because he “swallowed some of his stool” (i.e., had aspirated

meconium) and that he would be transferred to Wilford Hall

Medical Center in connection with his respiratory difficulty.

In connection with Bruce’s Hospital admission at birth, Dr.

Liang diagnosed Bruce’s condition as “respiratory distress

secondary to meconium aspiration.” On August 14, 1985, three

weeks after the birth, Dr. Liang recorded in Mrs. Brantley’s

medical record, “diagnosis of fetal distress was made immedi-

ately and the patient was brought to surgery as soon as possible.”

Although Dr. Liang testified that the surgery was performed on

a non-emergency basis, Dr. Liang described the surgery in the

medical record as an “emergency” cesarean section.

5

As a result of the United States’ two and one-half hour

delay in delivering Bruce by cesarean section, Bruce endured

hypoxic ischemic encephalopathy, i.e., brain damage due to lack

of oxygen and blood flow to the brain during labor and delivery.

(App.D, infra, 1Sa-16a) As aresult, Bruce has profound mental

disabilities, profound physical disabilities and microcephaly

(inadequate head growth). (App.D, infra, 15a-1€a) Although

seven years old at the time of trial, his functions were at the level

of a four to eight month old infant.

On October 3, 1988, Bruce, through his father, filed an

administrative claim under the Federal Tort Claims Act, 28

U.S.C. 1346(b), 2671 et seg. to recover for brain damage,

cerebral palsy and other permanent injuries he suffered in con-

nection with his birth in a military hospital. On the same day,

his parents filed separate administrative claims for medical

expenses, mental anguish and other consequential damages they

suffered as a result of his injuries. On November 25, 1989, the

administrative claims were denied as time-barred.

On May 15, 1990, pursuant to 28 U.S.C. 1346(b),

petitioners timely filed an original civil action against the United

States in the United States District Court for the Western District

of Washington. A four day trial was held in July, 1991. On July

30, 1991, the district court entered judgment against the United

States in the sum of $8,257,023.00 plus costs (App.E, infra,

21a). In comprehensive findings entered pursuant to Federal

Rule of Civil Procedure 52(a), the district court found that the

United States’ negligent failure to timely deliver Bruce by

Cesarean section proximately caused him to suffer profound

mental and physical injuries, brain damage and cerebral palsy.”

. Among the many comprehensive findings supporting this conclusion

was the following: “It took over two and one-half hours [after Mrs. Brantley’s

hospital admission] for Dr. Liang to perform a Cesarean section. This

unreasonable delay by Dr. Liang in delivering [Bruce] is a proximate cause

of [Bruce’s} multiple injuries. (See App.D, infra, 15a).

6

Applying the Kubrick standard to the evidence adduced at trial,

the district court further found that petitioners’ cause of action

accrued less than two years before the filing of their administra-

tive claims on October 3, 1988.3 (App.D, infra, 18a), citing 28

U.S.C. 2401(b)4].

The district court’s award included, inter alia, a $95,000.00

award to Mr. Gordon for loss of filial consortium and past

nursing services and a $4,539,493.00 award to Bruce for past

and future medical expenses. Although the district court

awarded the latter damages to Bruce, it articulated that “should

any of the...awards to [Bruce] for his medical services and

commodities be found to more properly belong to either or both

of his parents to provide for Bruce’s care, then those amounts

that were designated for Bruce, Jr. should be awarded to the

appropriate parent(s).” [App.D, infra, 19a).

On appeal to the United States Court of Appeals for the

Ninth Circuit, the United States argued that the district court

clearly erred in ruling that Bruce’s and Mrs. Gordon’s claims

were not time-barred but did not challenge the $95,000.00 award

> This conclusion was based on the following well-supported factual

findings: 1) Bruce’s Hospital medical record describes his diagnosis as

“respiratory distress secondary to meconium aspiration” (App.D, infra, 14a);

and 2) “at no time did any medical personnel, or anyone else, suggest to Mr.

and Mrs. Gordon that Bruce’s multiple handicaps are due to anything other

than the natural stresses of birth and his own aspiration of his meconium”

(App.D, infra, 15a); 3) “Plaintiffs did not know nor in the exercise of

reasonable diligence should they have known the cause of Bruce’s injuries

(i.e. oxygen deprivation during labor) more than two years prior to October

3, 1988” (App.D, infra, 15a).

4 28 U.S.C. 2401(b) states:

A tort claim against the United States shall be forever barred unless it is

presented in writing to the appropriate Federal agency within two years after

such claim accrues or unless action is begun within six months after the date

of mailing, by certified or registered mail, of notice of final denial of the

claims by the agency to which it was presented.

7

to Mr. Gordon as time-barred or at all. Petitioners countered

that the evidence and applicable law amply supported the district

court’s findings and, in addition, that Section 205 tolled the

Statute of limitations applicable to Mr. Gordon’s claim for

consequential damages.

In a Memorandum Opinion filed on June 25, 1992; without

addressing Section 205, the court of appeals reversed the judg-

ment in its entirety, including Mr. Gordon’s $95,000.00 award,

“on the ground that the claim is barred by the statute of limita-

tions”. (App. A, infra, 2a). The Court of Appeals, claiming to

rely on Kubrick, held that the claim accrued in 1984 because

“{sjhortly after Bruce Jr.’s birth, Mrs. Brantley knew that he had

breathing problems caused by meconium aspiration. When he

was three months old, doctors told her they were concerned by

his slow head growth. By late 1984, she knew that he was

developmentally delayed and that the cause was stress at birth.”

(App.A, infra, 5a)

On July 7, 1992, petitioners timely filed a Petition for

Rehearing before the Court of Appeals in which they again

articulated that Section 205 tolled the statute of limitations

governing Mr. Gordon’s claim for mental anguish, loss of filial

consortium and past nursing and custodial services for which

the district court awarded him $95,000.00; and 2) tolled the

statute of limitations governing Mr. Gordon’s claim for Bruce’s

past and future medical and related expenses, a significant

element of damage with respect to which a remand was re-

quested.

On July 15, 1992, in a letter to Plaintiffs’ counsel, the

United States requested that Plaintiffs dismiss that portion of the

Petition for Rehearing which concerns Mr. Gordon’s

$95,000.00 award on the ground that the United States did not

maintain that the statute of limitations barred Mr. Gordon’s

claim for that amount, that the order of the court of appeals

should not be construed to affect that award, and that on remand

8

the district court should dismiss the Complaint but leave undis-

turbed Mr. Gordon’s award of $95,000.00. (App.C, infra, 8a).

Plaintiffs filed a Supplement to their Petition for Rehearing

in which they communicated the United States’ concession on

this issue to the court of appeals and further advised the court

that this concession did not affect the following issues also

raised in the Petition for Rehearing: Mr. Gordon’s entitlement

to prevail on his claim (as a father legally responsible for Bruce’s

medical expenses) for Bruce’s past and future medical care and

related expenses; 2) Plaintiffs’ request for a remand for a recal-

culation of these additional damages and the entry of judgment

in favor of Mr. Gordon with respect thereto.

On October 5, 1992, the court of appeals denied the Petition

for Rehearing, without any comment on the Soldiers’ and

Sailors’ Civil Relief Act, but amended its Memorandum Dis-

position of June 25, 1992 to state that “the United States appeals

all but $95,000.00 of the district court’s award” and that “except

for the award of $95,000.00, not contested by the government,

the judgment of the district court is reversed.” (App. B, infra,

6a)

On October 30, 1992, the court of appeals granted Plain-

tiffs’ Motion to Stay the Issuance of the Mandate until Decem-

ber 26, 1992.

REASONS FOR GRANTING THE PETITION

The Ninth Circuit’s decision, which refuses to recognize

the tolling provisions of the Soldiers’ and Sailors’ Civil Relief

Act of 1940 (SSCRA) contained in 50 U.S.C. App. 525, is

contrary to the unambiguous and unqualified language of the

Statute. Moreover, there is aconflict among the circuits and state

supreme courts concerning the application of Section 525. Ad-

ditionally, this Court has granted certiorari on a case scheduled

for oral argument on January 11, 1993, which also involves the

application of Section 525. Conroy v. Aniskoff, No. 91-1353.

9

The United States, as amicus curiae in Conroy, has filed briefs

in support of the petition for a writ of certiorari, and of an

interpretation of Section 525 to provide for the tolling of statutes

of limitations in favor of servicemembers.

As a second question, the Ninth Circuit has applied an

interpretation of the accrual of a cause of action under the

Federal Tort Claims Act, 28 U.S.C. 2401(b), which is inconsis-

tent with this Court’s decision in Kubrick v. United States, 444

U.S. 111 (1979). Despite this Court’s holding that a cause of

action accrues when a claimant is aware of an injury and its

cause, the lower Federal courts have taken diverse views in the

application of that rule. This is especially true in determining

the cause of an injury. The effect of the Ninth Circuit’s decision

is to have a cause of action accrue although the claimants had

been informed by military doctors that any injuries suffered by

the child were caused by the natural stresses of birth. The

claimants believed this information and had no reason to suspect

that it was the doctors’ failure to recognize fetal distress ongoing

for more than two hours prior to his birth that was causing

oxygen deprivation to the child’s brain resulting in brain

damage. The effect of the Ninth Circuit’s decision is to impose

a duty on all patients who incur an injury or unexpected outcome

associated with medical treatment to obtain their medical

records and have them scrutinized just in case the government’s

physicians did something wrong. Such a rule is inconsistent

with Kubrick, Urie v. Thompson, 337 U.S. 163 (1949) (blame-

less ignorance), and Irwin v. Veterans Administration, ____ U.S.

___, 111 S.Ct. 453 (1990) (equitable tolling).

1. The SSCRA was enacted “‘to suspend the enforcement

of civil liabilities . . . of persons in the military service of the

United States in order to enable such persons to devote their

entire energy to the defense needs of the nation” and to tem-

porarily suspend “legal proceedings and transactions which may

prejudice the civil rights of such service... .” See 50 U.S.C.

10

App. at 510. The Act is intended to protect the civil rights of

individuals employed in the United States Armed Services, to

allow servicemen to avoid the distractions of civil litigation

while discharging their military duties, and to protect the rights

of individuals having causes of action against members of the

Armed Services. Lester v. United States, 487 F.Supp. 1033

(N.D. Tex. 1980), citing with approval Ricard v. Birch, 529 F.2d

214 (4th Cir. 1975).

One of the most significant provisions of the Act is the

tolling provision of Section 525. Lester v. United States, 487

F.Supp. at 1038. That section states:

The period of military service shall not be included in

computing any period now or hereafter to be limited

by any law, regulation, or order for the bringing of any

action or proceeding in any court ... or other agency

of government by or against any person in military

service or by or against his heirs, executors, ad-

ministrators, or assigns, whether ... such action or

proceeding shall have accrued prior to or during the

period of such service ...

50 U.S.C. App. 525

In accordance with this mandatory language, Section 525

has been uniformly construed to toll the two-year statute of

limitations governing suits under the Federal Tort Claims Act,

28 U.S.C. 2401(b).> See Miller v. United States, 803 F. Supp.

> This well-established principle finds firm support in the language of

the Act. Specifically, Section 525 tolls the statute of limitations applicable

to actions against, inter alia, entities “secondarily liable” for the obligations

of persons in military service. 50 U.S.C. App. 511. In addition, the Act states

that its provisions, including Section 525, “shall apply to the United States.”

50 U.S.C. App. 512. in 1941, the Attorney General of the United States

advised that Section 512 confirms the Act’s substantive and not merely

jurisdictional application to the United States and all federal agencies. See

40 Op. Att’y Gen. 97 (1941).

11

1120 (E.D. Va., 1992); Lester v. United States, 487 F.Supp. at

1033; Ricard v. Birch, 529 F.2d at 214; Ray v. Porter, 464 F.2d

452 (6th Cir. 1972); Stephan v. United States, 490 F.Supp. 323

(W.D. Mich. 1980); Oberlin v. United States, 727 F.Supp. 946

(E.D. Pa. 1989); Clark v. Mechanics’ American National Bank,

282 F. 589 (8th Cir. 1922); The West Point, 71 F.Supp. 206 (E.D.

Va. 1947).

Also in accordance with Section 525’s mandatory lan-

guage, the limitations period for bringing a federal tort action is

unconditional and will be tolled whether or not the serviceman’s

military service has handicapped his ability to bring suit. Bick-

ford v. United States, 228 Ct. Cl. 321, 656 F.2d 636 (1981),

citing with approval Ricard v. Birch, 529 F.2d at 214.6 “The

While the Act has been amended several times since the Federal Tort

Claims Act was enacted in 1946, 28 U.S.C. 1346(b), 2671 et seq., these

amendments have not diminished the applicability of the Act to federal tort

actions based on the United States’ vicarious liability for the torts of ser-

vicemembers. Sections 525, 511 and 512, construed in pari materia, there-

fore demand a finding that Section 525 tolling applies to suits maintained

against servicemembers for whose torts the United States is secondarily

liable.

It should also be noted that the Federal Tort Claims Act renders the

United States liable for the torts of federal employees “in the same manner

and to the same extent as a private individual under like circumstances...”.

See 28 U.S.C. 2674. Thus, if Section 525 would toll an action against the

individual on whose tort the federal tort action is based, Section 525 also tolls

the federal tort action against the United States. See 28 U.S.C. 2674. See

also Irwin v. Veterans Administration, 111 S.Ct. 453 (1990), in which the

Supreme Court recently reaffirmed the principle that statutes of limitations

governing suits against the United States are subject to the same tolling

principles applicable in suits between private individuals.

© In Ricard, 529 F.2d at 214, the Fourth Circuit articulated that the stay

provision of the Act, 50 U.S.C. 521, inapplicable here, entitles a servicemem-

ber-defendant to stay legal proceedings against him if he demonstrates that

his military service handicaps his ability to defend suit but that the tolling

provision of Section 525 (which Mr. Gordon seeks to exercise) requires no

12

only critical factor is military service; once that circumstance is

shown, the period of limitations is automatically tolled for the

duration of the service...”.” Ricard v. Birch, 529 F.2d at 216.

See also Bickford v. United States, 656 F.2d at 636; Mason v.

Texaco, Inc.,8 862 F.2d 242 (10th Cir. 1988); Miller v. United

States, 803 F.Supp. 1120 (E.D.Va. 1992); Oberlin v. United

States, 727 F.Supp at 946; Barstow v. State, 742 S.W.2d 495

(Tex. App. 1987); Donohue v. Ward, 298 S.C. 75, 378 S.E.2d

261 (S.C. App. 1989); McCance v. Lindau, 63 Md. App. 504,

492 A.2d 1352 (Md. App. 1985).

such demonstration and “is unconditional. The only critical factor is military

service; once that circumstance is shown, the period of limitations is auto-

matically tolled for the duration of service, though an adverse plaintiff [i.e.,

one who seeks to maintain suit against a person in military service] may file

sooner if service of process may be had.” /d. at 217.

7 While one Federal circuit case (involving facts outside the ambit of

Section 525) held that Section 525 does not apply to career servicemembers,

see Pannell v. Continental Can Co., Inc., 554 F.2d 216 (5th Cir. 1977),

Congress recently nullified that precedent by clarifying in the 1991 Amend-

ments to the Act that “period of military service” as used in Section 525

“means, in the case of any person, the period beginning on the date on which

the person enters active service and ending on the date of the person’s

release.” See Soldiers’ and Sailors’ Civil Relief Act of 1991, 105 Stat. 34,

P.L. 102-12 (March 18, 1991). (emphasis supplied). See also Barstow v.

State, 742 S.W.2d 495 (Tex. App. 1987), in which the Court of Appeals of

Texas, rejecting Pannell, confirmed that Section 525 tolls the statute of

limitations applicable to claims maintained on behalf of all servicemembers,

including career servicemembers, without regard to whether military service

handicapped their ability to maintain suit. To the same effect, see McCance

v. Lindau, 63 Md. App. at 504, 492 A.2d at 1352; Donohue v. Ward, 298 S.C.

at 75, 378 S.E.2d at 261.

5 In Mason v. Texaco, Inc., 862 F.2d at 242, the United States Court of

Appeals for the Tenth Circuit rejected the assertion that Section 525 does not

apply to career servicemembers and adopted the law articulated by the Fourth

Circuit, stating:

13

Because Mr. Gordon has been continuously on active-duty

with the Armed Forces since Bruce’s birth on June 25, 1984,

Mr. Gordon’s federal tort claim (for mental anguish, loss of filial

consortium, and medical, rehabilitative and custodial expenses

associated with Bruce’s care) was tolled during his period of

active-duty military service and is not time-barred. See e.g.

Lester v. United States, 487 F.Supp. at 1033 and cases cited

supra, at 10-11.

2. In every discovered case involving a servicemember’s

claim for loss of consortium, medical expenses or other conse-

quential damages he suffered as a result of injuries to a civilian

family member, courts have held that Section 525 tolls a

servicemember’s claim for such consequential damages even

though the underlying civilian family member’s claim for per-

sonal injuries or consequential damages is time-barred. See,

Miller v. United States, 803 F. Supp. 1120, supra; Lester v.

United States, 487 F.Supp. at 1035; Card v. American Brands

Corp., 401 F.Supp. 1186 (S.D.N.Y. 1975); Lopez v. Waldrum

Estate, 249 Ark. 558, 460 S.W.2d 61 (1970); Wanner v. Glen

Ellen Corp., 373 F.Supp. 983 (D.Vt. 1974). See also Mitchell

v. Phillips, 58 Pa. D. & C.2d 314 (1972) (holding that Section

525 tolled the two-year statute of limitations governing active-

duty father’s claim for consequential damages arising out of

tortious injuries to his child and, in addition, tolled the child’s

claim for personal injuries).

In our view, the language of the Soldiers’ and Sailors’ Civil Relief

Act, of 1940, 50 U.S.C. App. 525, is clear and unambiguous. We find

no reason to ignore the plain meaning of the statute, and we are

persuaded that the correct course to follow is set forth in Ricard v. Birch,

529 F.2d 214 (4th Cir. 1975); and Bickford v. United States, 228 Ct. Cl.

321, 656 F.2d 636 (1981). The career status of [Plaintiff] Otis Mason

does not negate the application of §525. The only condition to §525 is

military service.

862 F.2d at 245.

14

In Lester v. United States, 487 F.Supp. at 1035, a former

serviceman filed a federal tort action, individually and on behalf

of his wife and the marital community estate for injuries his wife

suffered when she fell from unguarded concrete stairs leading

to the family home on a United States Naval Base. The United

States moved to dismiss the action as time-barred on the ground

that the administrative federal tort claim was not filed within the

two-year period provided in 28 U.S.C. 2401(b). Mr. Lester

countered that Section 525 tolled the limitations period until he

was discharged from active military service.

Addressing these contentions, the United States District

Court of the Northern District of Texas held that Mrs. Lester’s

claim for personal injury and loss of consortium was time-barred

because only persons in the military service or persons having

causes of action against such persons are entitled to the benefits

of the tolling provision of the Act. Jd. at 1039, citing Ray v.

Porter, 464 F.2d at 455. See also Card v. American Brands

Corp., 401 F. Supp. at 1186. Significantly, after reviewing the

Act and authorities decided thereunder, the court concluded that

Section 525 tolled Mr. Lester’s claim for the loss of consortium

he endured as a result of his wife’s injuries and awarded him

$50,000.00. Lester v. United States, 487 F.Supp. at 1041.

In Miller v. United States, 803 F. Supp. 1120, three separate

administrative claims were filed by Arlington Miller, III, and his

parents, Mr. and Mrs. Arlington Miller, Jr., in July 1990, alleg-

ing negligence on the part of military physicians in the treatment

of the child’s hyperbilirubinemia shortly after his birth in 1976,

which resulted in severe brain damage, mental retardation and

multiple physical handicaps. In holding that the mother’s and

child’s claims were barred by the Federal Tort Claims Act statute

of limitations, the district Court held that Section 525 was tolled

during Mr. Miller’s military service regardless of whether his

ability to pursue the action had been impaired by his military

service. Because Mr. Miller remained on active duty until 1991,

15

his claim for medical expenses which he had previously paid or

may reasonably incur in the future, was timely filed.

3. By its own concession before the court of appeals, the

United States acknowledged that the statute of limitations did

not bar the judgment in favor of Mr. Gordon. (App. C, infra,

8a). The only basis for that concession would be the United

States’ agreement with the petitioners’ contention that SSCRA

tolls statutes of limitations in favor of servicemen. Accordingly,

the petition for a writ of certiorari should be granted in order to

correct the Court of Appeals’ failure to apply section 525 in

favor of Mr. Gordon for all consequential damages to which he

is entitled.

4. This Court articulated the law applicable to the accrual

of a claim against the United States under the provisions of the

Federal Tort Claims Act in Kubrick v. United States, 444 U.S.

111 (1979). There, the Court held that a medical malpractice

claim does not accrue until the plaintiff discovers, or in the

exercise of reasonable diligence should have discovered, the

injury and its cause. In fashioning this rule, the Court reasoned:

‘That he has been injured in fact may be unknown or

unknowable until the injury manifests itself; and the

facts about causation may be in the control of a

putative defendant, unavailable to the plaintiff or at

least very difficult to obtain. The prospect is not so

bleak for a plaintiff in possession of the critical facts

that he has been hurt and who has inflicted the injury.

He is no longer at the mercy of the latter. There are

others who can tell him if he has been wronged, and

he need only ask.”

444 U.S. at 122 (emphasis added).

In Kubrick, this Court reaffirmed its earlier decision in

Urie v. Thompson, 337 U.S. 163 (1949), where it held that

because of the plaintiff’s “blameless ignorance” of the fact of

16

his injury, his claim did not accrue under the Federal Employers’

Liability Act until his disease manifested itself. In that case, this

Court was reluctant to charge the plaintiff with the “unknown

or inherently unknowable.”

Recently, in /rwin v. Veterans Administration, ___ US.

___, 111 S. Ct. 453 (1990), the Court held that statutes of

limitations in all actions against the United States are subject to

the same rebuttable presumption of equitable tolling applicable

in actions against private defendants.

This case presents the important issue of defining “cause”

with respect to the “accrual” of a claim under the Federal Tort

Claims Act. Petitioners contend that the “blameless ignorance”

doctrine relating to the fact of injury as announced in Urie,

should also be applicable in situations where the plaintiff is

blamelessly ignorant of the “cause” of his injury. Since the

decision in Kubrick, the lower federal courts have taken widely

diverse views in defining cause. As represented by the instant

case, the Ninth Circuit has applied a rule that provides for a claim

to accrue although the petitioners had been informed by mihtary

doctors that any injuries suffered by the child were caused by

the natural stresses of birth. The petitioners had no reason to

suspect that it was the doctors’ failure to recognize fetal distress

ongoing for more than two hours prior to the child’s birth that

was Causing oxygen deprivation to the child’s brain resulting in

brain damage.

The petitioners are not asking the Court to postpone accrual

until a plaintiff is aware of negligence. Rather, they request the

Court to emphasize the equitable application of statute of limita-

tions rules in those situations where a plaintiff is blamelessly

ignorant of either the fact or cause of an injury.

The effect of the Ninth Circuit’s decision is to impose a

duty on all patients who incur any injury or unexpected outcome

associated with medical treatment to obtain their medical

records and have them scrutinized just in case the government’ s

17

physicians did something wrong. Such a rule disregards the

guidelines set down by this Court in Kubrick, supra at 122,

requiring that a plaintiff have knowledge of “who has inflicted

the injury.” Furthermore, it punishes a plaintiff who is blame-

lessly ignorant of the cause of an injury, and imposes a harsh

and inequitable standard on a 20 year old mother who reasonably

relied upon her physicians that the cause of her son’s injuries

was due to the natural stresses of birth and the baby’s aspiration

of his own meconium.

The rule for the accrual of a claim potentially affects every

claim brought under the Federal Tort Claims Act, and the

recurring nature of the issue makes review by this Court ap-

propriate.

5. A sampling of some of the conflicting lower court

decisions dealing with the application of Federal Tort Claims

Act statute of limitations issues, highlights the problems of

causation in reference to accrual of claims. The harsh rule

applied by the Ninth Circuit in this case had been forewarned

by the Seventh Circuit in Nemmers v. United States, 795 F.2d

628, 631, aff d, 870 F. 2d 426 (7th Cir. 1989), wherein it stated

that the statute of limitations should not be construed to compel

everyone who knows of an injury to scour his medical records

just in case the government’s physician did something wrong.

An earlier decision from the Ninth Circuit accurately

recognized the inherent difficulties in defining accrual, and

properly broadened the application of the Kubrick rule in a

wrongful death case. In Jn re Swine Flu Products Liability

Litigation, 764 F.2d 637 (9th Cir. 1985), the court held that a

plaintiff who is “blamelessly ignorant of the existence or cause

of his injury should be accorded the benefits of the more liberal

accrual standards” because “‘it is not until he learns of both the

fact of injury and its cause that the malpractice plaintiff falls on

the same footing as any negligence plaintiff.” Id. at 640.

18

Because patients are expected to rely upon the advice of

their physicians, where a plaintiff is given a credible explanation

of his condition not pointing to the doctors’ conduct as the

causative agent, the patient should not be found to have failed

to exercise reasonable diligence because he did not earlier

pursue his claim. See, Otto v. National Institute of Health, 815

F.2d 985, 989 (4th Cir. 1987), where a claim for malpractice did

not accrue until the patient was aware of the true nature of her

injury, and not at an earlier time when the patient’s doctors gave

another explanation for complications that ensued.

Another case dealing with credible explanation, Raddatz v.

United States, 750 F.2d 791 (9th Cir. 1984), held that a patient

may reasonably rely on doctors’ assurances that symptoms are

a normal consequence of a condition not requiring treatment,

such that the statute of limitations did not accrue until a later

date when the patient discovered the symptoms to be the result

of an infection.

Rosales v. United States, 824 F.2d 799 (9th Cir. 1987) held

that a birth - injured child’s cause of action did not accrue until

her parents discovered the injury and its cause over two years

after the birth. At birth, the parents knew that military

physicians improperly failed to remove an intrauterine device

in place during the mother’s pregnancy, knew that this failure

endangered the fetus, and knew that the child was born with a

lazy eyelid, a potential sign of brain damage. Notwithstanding

these facts, the court of appeals rejected the United States’

contention that the parents should have conducted a factual

investigation that would have earlier revealed the United States’

responsibility for the injury. The court reasoned that even if the

United States told the mother, during her pregnancy, that its

failure to remove the intrauterine device endangered the fetus,

the parents reasonably relied after birth on the United States’

repeated assurances that the lazy eyelid was temporary and that

the child was not injured. Under these circumstances, the court

19

held that the parents “reasonably should not have discovered the

[existence of a cause of action] in light of assurances of anumber

of physicians “and had no duty to make the further inquiry that

would have revealed the injury and its cause within two years

of the birth. Jd. at 804-5.

For the contrary proposition, see Herrera-Diaz v. U.S.

Dept. of Navy, 845, F.2d 1534 (9th Cir.), cert. denied, 488 U.S.

924 (1988), in which the court of appeals affirmed the dismissal

of a federal tort claim because the mother of a brain damaged

baby did not file her claim within two years of discovering that

her child was brain-injured as a result of “breathing problems”

at birth. Significantly, the dismissal was founded on the parties’

admissions that the physician offered no explanation for the

brain damage and the mother did not ask for an explanation

because she did not want to know. /d. at 1537-8.

In this case, unlike Herrera Diaz, petitioners’ ignorance of

the cause of Bruce’s injuries was occasioned by their reliance

on: 1) the United States’ specific representation that meconium

aspiration caused Bruce’s condition at birth; and 2) the United

States’ further assurances that meconium aspiration was caused

by the natural stresses of labor. Because the meconium aspira-

tion explanation was plausible and would have induced a

reasonable person to believe that Bruce’s injuries were caused

by a circumstance outside the control of the United States,

petitioners were entitled to rely on it and should not have been

expected to make further inquiry. Rosales v. United States, 824

F.2d at 804. In addition, because that representation sufficed to

explain Bruce’s “asphyxia” and “stress at birth,” the United

States’ subsequent use (if any) of those terms would not have

placed a reasonable 20 year old person on notice that the

meconium aspiration explanation was false or that the United

States caused or contributed to Bruce’s injury.? See also Nem-

In essence, the United States contends that all recipients of military

medical care (even those assured by the United States that circumstances

20

mers v. United States, 870 F.2d 426 (7th Cir. 1989) (physicians’

use of the phrases “trauma of birth” and “fetal distress during

labor” were ambiguous phrases from which a reasonable person

would not have suspected that acts or omissions of government

physicians caused birth injury whether or not a specific explana-

tion was given); Lee v. United States, 485 F. Supp. 883

(E.D.N.Y. 1980) (parent informed that newborn had difficulty

breathing, fluid in the lungs and decreased levels of oxygen to

the brain could reasonably have believed that the condition was

wholly unrelated to physicians’ conduct). See also Jastremski

v. United Siates,!° 737 F.2d 666 (7th Cir. 1984), cited with

approval in Rosales, 824 F.2d at 805.

outside its control caused an injury-producing complication) must analyze

hospital records and otherwise investigate the United States’ potential

wrongdoing or otherwise forego the right to sue for emotionally and finan-

cially devastating injuries. In Drazan v. United States, 762 F.2d 56 (7th Cir.

1985), the Seventh Circuit decried the ghoulish consequences of this ap-

proach:

[A]ny time someone suffered pain or illness or death in a Veterans

Administration hospital, he (or in the case of death, his survivors)

would request his hospital records to see whether diagnosis or treatment

might have played a role in his distress — whether, that is, the harm

might have been “iatrogenic” [doctor-caused]. He could not wait tll

he had reason to think he had suffered an iatrogenic harm; the two years

might have run. We do not think such behavior should be encouraged,

or that anything in Kubrick requires us to encourage it. The cause of

which a federal tort claimant must have notice for the statute of

limitations to begin to mun is the cause that is in the government’s

control, not a concurrent but independent cause that would not lead

anyone to suspect that the government had been responsible for the

injury. The notice must be not of harm but of iatrogenic harm, though,

as Kubrick holds, not necessarily of negligent iatrogenic harm.

Id. at 59 (emphasis supplied).

10

In Jastremski v. United States, 737 F.2d 666, supra, the plainuff was

a pediatrician who witnessed his child’s birth in a military hospital, knew that

the child was not breathing at birth, knew that the child had seizures fifty-one

21

Unlike Herrera-Diaz, this case presents concealment

[regarding injury or cause] that warrant[s] the tolling of the

statute of limitations.” See Herrera-Diaz v. United States, 845

F.2d at 1537-8. Thus, the evidence at trial established that the

meconium aspiration explanation was materially false and that

Bruce’s Hospital Discharge Summary of August 14, 1984 con-

tains at least two materially false misrepresentations equally

designed to quell further investigation!! and to conceal the

existence of a cause of action. Thus, this case falls squarely

within the principle, recognized by the Supreme Court in Jrwin

v. United States, 111 S.Ct at 453, and in Herrera-Diaz, 845 F.2d

at 1537-8, that the statute of limitations is equitably tolled where

the United States induces a plaintiff to allow the filing deadline

to pass.

Finally, petitioners cannot be expected to have ascertained

the medical cause of Bruce’s injuries before Bruce’s own doc-

tors were able to do so. See Rosales v. United States, 824 F.2d

at 805. In this case, Bruce’s physician, Dr. Liang, testified that

hours later for which Phenobarbital was prescribed, and knew that the child

had an abnormal gait [indicative of cerebral palsy] at age two. Notwithstand-

ing the father’s knowledge and his medical training and experience, the

Seventh Circuit held that the cause of action in medical negligence did not

accrue until four years after birth when a friend of the father (also a physician)

suggested during a social visit to the family home that the child might have

cerebral palsy.

'l Three weeks after Bruce’s discharge from the Hospital, Dr. Liang

recorded in the Discharge Summary, “diagnosis of fetal distress was made

immediately, and the patient was brought to surgery as soon as possible.” In

actuality, while fetal distress was diagnosed immediately, Dr. Liang then

went on aroutine visit to the Clinic and did not further attend to Mrs. Brantley

until he returned one and one-half hours later.

In addition, Dr. Liang reported that the operation was an “emergency”

cesarean section when in actuality, he performed the cesarean on a non-emer-

gency basis.

22

he does not know the cause of Bruce’s condition.!2 Similarly,

the United States’ primary medical witness on causation, Dr.

Kenneth Niswander, testified that, despite his analysis of

Bruce’s medical history, he did not know the cause of Bruce’s

condition. As such, there is no warrant for the United States’

assertion that petitioners, who have no medical training, should

have discovered the cause of Bruce’s condition by October 3,

1986, five years before a trial at which the United States’ own

medical witnesses testified to their inability to do so.

As provided by Rule 52(a) of the Federal Rules of Civil

Procedure, findings of fact in actions tried without a jury “shall

not be set aside unless clearly erroneous, and due regard shall

be given to the opportunity of the trial court to judge of the

credibility of the witnesses.” See, United States v. United States

Gypsum Co., 333 U.S. 364, 394 (1948).

Because the district court’s finding that petitioners acted

with reasonable diligence is well-substantiated in fact and law,

it is not clear error and should not have been overturned on

appeal.!3 Colleen v. United States, 843 F.2d 329, 331 (9th Cir.

1987); Osborn v. United States, 918 F.2d 724, 733 (8th Cir.

1990).

* 4 secondary (and duplicative) expert witness for the United States,

Dr. Josephina Vallarta, testified that an MRI film procured for legal purposes

one month before trial suggested a congenital anomaly.

13 It is not the Court of Appeals’ function to retry questions of fact

determined by the trial court, even upon uncontradicted evidence, where

differing inferences may reasonably be drawn from it. Los Angeles Ship-

building and Drydock Corp. v. United States, 289 F.2d 222,227(9th Cir.

1961). Even where the evidence is conflicting, which evidence at issue

manifestly is not, it is not clearly erroneous for the trial court to choose

between two permissible and conflicting views as to the weight of the

evidence, and the appellate court may not disturb the mal court’s choice in

23

CONCLUSION i

The petition for a writ of certiorari should be granted. ;

Respectfully submitted,

Walter A. Oleniewski*

Ashley J. Gardner

Jeffrey A. Shane

SHULMAN, ROGERS, GANDAL,

PORDY & ECKER , P.A.

11921 Rockville Pike, Third Floor

Rockville, Maryland 20852

(301) 230-5200

* Counsel of Record

Attorneys for Petitioners

December 23, 1992

;

:

ae

la

APPENDIX A

NOT FOR PUBLICATION

United States Court of Appeals

FOR THE NINTH CIRCUIT

BRUCE GORDON; BRENDA J. GORDON-BRANTLEY,

Plaintiffs-Appellees,

vs.

UNITED STATES OF AMERICA,

Defendant-Appellant.

FILED

June 25, 1992

No. 91-36121

D.C. No. CV-90-05206-JET

MEMORANDUM*

Appeal from the United States District Court

for the Western District of Washington

Jack E. Tanner, District Judge, Presiding

Argued and Submitted June 2, 1992

Seattle, Washington

7

This disposition is not appropriate for publication and may not be cited

to or by the courts of this circuit except as provided by 9th Cir. R. 36-3 section

1291. We reverse on the ground that the claim is time-barred under the statute

of limitations.

2a

Before: WRIGHT, CANBY and WIGGINS, Circuit Judges

The United States appeals the district court’s award of

$8,257,023 plus costs to appellees, Bruce Gordon, Jr. [Gordon],

his mother, Brenda Brantley, and his father, Bruce Gordon, Sr.,

under the Federal Tort Claims Act [FTCA]. 28 U.S.C. §

1346(b), 2671-2680. The district court granted the award for

medical malpractice by a doctor at Sheppard Air Force Base,

Wichita Falls, Texas, who delivered Bruce Gordon, Jr. on June

25, 1984.

This court has jurisdiction pursuant to 28 U.S.C. 1291. We

reverse on the ground that the claim is time-barred under the

statute of limitations.

FACTS

Brenda Gordon [now Brenda Gordon Brantley] arrived at

the obstetrics/gynecology clinic at the United States Air Force

Hospital, Sheppard Air Force Base, Wichita Falls, Texas at 9:40

am. on June 25, 1984. She was married to an active duty

serviceman and was more than eight months pregnant. Her

amniotic membrane had spontaneously ruptured before her

admission. A nurse-practitioner examined her and determined

that she was in labor. Mrs. Brantley said that she had not felt

fetal movement since the previous morning.

The obstetrician/gynecologist on call, Major Jyh-Chwen

Liang, M.D., examined her at 10 am. Liang determined that the

pregnancy was full term, that the membrane had ruptured and

that there was meconium in the amniotic fluid.’ A fetal heart

monitor indicated a normal heart rate but an abnormal beat-to-

beat variability, which caused Dr. Liang to decide that a

Caesarian section might be necessary.

]

Meconium is fetal waste from the intestinal tract, which is usually not

released prior to birth; thus, it is unusual for it to be in the amniotic fluid.

3a

Dr. Liang monitored the fetal heart rate until 11:30 am.,

during which time the condition remained unchanged. At

11:30, Dr. Liang determined that the fetus was in distress, and

he decided to perform a Caesarian section. At 12:15, the proce-

dure was begun. After making an incision, the doctor found the

amniotic fluid heavily stained with meconium.

Bruce Gordon, Jr. was born at 12:40 pm. Bruce Jr. had no

heartbeat and he was not breathing. He received immediate

medical attention and his condition improved. He was trans-

ferred to Wilford Hall Medical Center, where he was treated for

meconium aspiration syndrome and pulmonary hypertension.

He developed seizures five days later and was treated with

phenobarbital. He was discharged on July 14. He was diag-

nosed as having suffered from birth asphyxia and persistent fetal

circulation.

Bruce Jr.’s family moved soon thereafter to Washington

state. Bruce Jr. was examined at Madigan Army Medical Center

and referred to developmental pediatrics because his head

growth was abnormal. The doctor in developmental pediatrics,

Dr. Onufer, told Mrs. Brantley that he thought Bruce Jr. was

developmentally delayed, was showing slow head growth and

might have a seizure disorder because of fetal distress at birth.

He referred Gordon to Mary Bridge Children’s Hospital in

Tacoma, Washington, where Gordon received physical therapy.

In late 1984, Dr. Onufer ordered a CAT scan, which

revealed severe brain abnormalities. Doctors told Mrs. Brantley

that Bruce Jr. was likely to be severely retarded. Bruce, Jr. is

now seven, and he has physical and mental impairments. He

has a form of cerebral palsy, mental retardation and microcepha-

ly.

Appellees filed an administrative claim for medical

malpractice with the Air Force on October 3, 1988. On Novem-

ber 25, 1989, the claim was dismissed as time barred under the

two-year statute of limitations in the Federal Tort Claims Act.

4a

Appellees brought this action in the United States District

Court for the Western District of Washington.

STATUTE OF LIMITATIONS

The Federal Torts Claim Act authorizes lawsuits against

the United States government by a person whose injuries were

proximately caused by a government employee’s negligence.

We review for clear error the district court’s factual determina-

tions. Shaw v. United States, 741 F.2d 1202, 1205 (9th Cir.

1984). Here, the court concluded that Mrs. Brantley and Bruce

Sr. could not have known the cause of their son’s injuries within

two years of his birth. This finding is clearly erroneous.

The FTCA provides that a tort claim against the federal

government must be brought “within two years after such claim

accrues.” 28 U.S.C. § 2401(b). In medical malpractice actions

under the FTCA, however, a claim does not accrue, and the

limitation period does not begin to run, until a plaintiff discovers

both the injury and its cause. United States v. Kubrick, 444 U.S.

111 (1979). When both the injury and its cause are known, the

claim accrues even though the plaintiff is not aware that the

injury may have been negligently inflicted. /d. at 123-24.

Relying on Kubrick, we developed an objective standard

to determine when a medical malpractice action accrues under

the FTCA. The claim accrues when a ““‘plaintiff has discovered,

or in the exerc?se of reasonable diligence should have discovered

both his injury and its cause.’ Herrera-Diaz v. Dept. of Navy,

845 F.2d 1534, 1537 (9th Cir. 1988) (quoting Davis v. United

States, 642 F.2d 328, 331 (9th Cir. 1981), cert. denied, 455 U.S.

919 (1982)).

We applied this standard in Fernandez v. United States,

673 F.2d 269 (9th Cir. 1982). In Fernandez, we determined that

parents of a child who developed jaundice shortly after his birth

in 1958, “knew [by 1964], or had available the means of

knowing, all there was to know about the cause of his injuries,

Sa

and who (the nurses and the doctors who diagnosed and treaied

his jaundice) were responsible.” /d. at 271. We said that had the

parents inquired at that time, they presumably would have

learned of the possibility that their son had received treatment

too late. His parents brought suit in 1976. We held that the

statutory period barred the child’s claim.

Also in Herrera-Diaz, 845 F.2d at 1537, we held that the

limitation period barred a mother’s negligence action against the

government for her child’s brain damage. In 1978, the mother

learned that her son suffered from cerebral palsy caused by lack

of oxygen to the brain at birth. She did not bring suit until 1984.

We found that a reasonable person would have made some kind

of inquiry, and that it was her burden, within the statutory period,

to determine whether and whom to sue. /d. at 1537.

Here, as in Fernandez and Herrera-Diaz, the appellees

were aware of Bruce Jr.’s injury and its cause more than two

years before they filed suit. Shortly after Bruce Jr.’s birth, Mrs.

Brantley knew that he had breathing problems caused by

meconium aspiration. When he was three months old, doctors

told her they were concerned by his slow head growth. By late

1984, she knew that he was developmentally delayed and that

the cause was stress at birth. At that time she knew, or in the

_exercise of reasonable diligence should have discovered, both

Bruce Jr.’s injury and its cause. See Davis, 642 F.2d at 331. The

two year statute of limitation began to run at that time.

Bruce Jr.’s medical negligence claim accrued in 1984, and

the district court should have dismissed this claim as time barred

under 28 U.S.C. § 2401(b).

Because the statute of limitations issue is dispositive, we

need not address the proximate cause or damages issues. The

judgment of the district court is REVERSED.

6a

APPENDIX B

Pauriteds States Court of Appeals

FOR THE NINTH CIRCUIT

BRUCE GORDON; BRENDA J. GORDON-BRANTLEY,

Plaintiffs-Appellees,

VS.

UNITED STATES OF AMERICA,

Defendant-Appellant.

FILED

October 5, 1992

No. 91-36121

D.C. No. CV-90-05206-JET

ORDER

Before: WRIGHT, CANBY, and WIGGINS, Circuit Judges

The Memorandum Disposition, filed herein on June 25,

1992, is amended as follows:

1. The first sentence is stricken. In its place is inserted:

“The United States appeals all but $95,000.00 of the district

court’s award of $8,259,023.00 plus costs to appellees, Bruce

Gordon, Jr., [Gordon], his mother, Brenda Brantley, and his

father, Bruce Gordon, Sr., under the Federal Tort Claims Act

[FTCA].”

2. The last sentence on page six is stricken. In its place is

inserted: “Except for the award of $95,000.00 to Bruce’s father,

not contested by the government, the judgment of the district

court 1s reversed.

7a

With the foregoing amendments to our Memorandum Dis-

position, the petition for rehearing is denied.

8a

APPENDIX C

U.S. Department of Justice

Washington, D.C. 20530

July 15, 1992

Walter A. Oleniewski

Shulman, Rogers, Gandal, Pordy & Ecker, P.C.

11921 Rockville Pike, Suite 300

Rockville, Maryland 20852

Re: Bruce Gordon, et al. v. United States of

America, 9th Cir., No. 91-3612]

Dear Mr. Oleniewski:

We are in receipt of your petition for rehearing in the above

case. I should like to call your attention to Point I of your

petition regarding the $95,000 award to Mr. Gordon.

We do not think that the $95,000 judgment for Mr. Gordon

for loss of consortium is encompassed within the order of the

court of appeals reversing the judgment below. As you properly

observe, the government did not maintain that the statute of

limitations barred Mr. Gordon’s claim for that amount

(Appellant’s brief, n.8; Reply brief n. 3, p. 8). Accordingly, it

does not appear that the order of the court of appeals should be

construed to affect that award. Rather, on remand, the district

court should dismiss the complaint, but, should however, leave

undisturbed Mr. Gordon’s award of $95,000.

In view of the foregoing, we would suggest that you

dismiss that portion of your petition for rehearing which seeks

$95,000 for Mr. Gordon. If you do not intend to apply to the

court for dismissal, please advise us so that we may submit such

a motion to the court.

9a

Very Truly Yours,

ROBERT S. GREENSPAN

Assistant Director, Appellate Staff

Civil Division

cc: James W. Feltus

McGavick, Graves, Beagle &

McNerthney

1102 Broadway, Fifth Floor

Tacoma, Washington 98401

10a

APPENDIX D

IN THE

United States District Court

THE WESTERN DISTRICT OF WASHINGTON

AT TACOMA

BRUCE J. GORDON, et al.,

Plaintiff,

vs

UNITED STATES OF AMERICA,

Defendant.

FILED

July 30, 1991

NO. C90-5206T

FINDINGS

OF FACT AND

CONCLUSIONS OF LAW

This action under the Federal Tort Claims Act, came on for

trial before the above-entitled court sitting without a jury. Wal-

ter Oleniewski, Esq. and James Feltus, Esq., appeared as counsel

for plaintiffs. Brian C. Kipnis, Assistant United States Attorney,

appeared as counsel for defendant. Having heard the testimony,

examined the other evidence adduced by the parties, and heard

the arguments of their counsel, and this cause having been

submitted for decision, the court, being fully advised herein,

makes the following Findings of Fact and Conclusions of Law:

lla

FINDINGS OF FACT

1. This action arose under the Federal Tort Claims Act, 28

U.S.C. $§1346(b) and 2671 et seg. The suit was timely filed on

May 15, 1990, within the six-month period following the Air

Force’s denial of the plaintiffs’ administrative claims on

November 25, 1989.

2. Plaintiff Bruce Gordon, Jr. is the natural child of plaintiff

Bruce Gordon, Sr. and Brenda Gordon Brantley.

3. Although Mr. and Mrs. Gordon are currently divorced,

they were married at the time of Bruce, Jr. ’s birth on June 25,

1984.

4. Bruce Gordon, Sr. was on active duty in the United States

Air Force at the time of Bruce, Jr.’s birth, and has remained on

active duty continuously since that time.

5. Bruce Gordon, Jr. was born at the United States Air Force

Hospital, Sheppard Air Force Base, Wichita Falls, Texas, on

June 25, 1984.

6. Mrs. Gordon had received prenatal care at the Sheppard

Air Force Base hospital (“Hospital”) prior to Bruce’s birth.

7. At this time, Mrs. Gordon was 20 years old and pregnant

with her first child.

8. The baby was at full term, approximately 39 weeks

gestation.

At approximately 9:40 am. on June 25, 1984, Mrs. Gordon

presented herself at the Hospital where she was examined and

found to be in labor and had a fetal heart tone of 140.

9. Mrs. Gordon had spontaneously ruptured her

membranes just prior to coming to the Hospital. The medical

record reflects that she told the nurse that she had felt no

movement of the fetus since yesterday morning.

12a

10. Mrs. Gordon was admitted to the Hospital and fetal

monitoring by scalp electrode was attempted but delayed be-

cause of the inability of the nurse to apply the electrode.

11. Mrs. Gordon was examined about 10:00 am. by Jason

Liang, M.D. Dr. Liang is an OB/GYN who was, at that time, a

major in the Air Force. Dr. Liang has no independent recollec-

tion of Mrs. Gordon. Dr. Liang noted, inter alia, his impression

of a term gestation, spontaneous rupture of membranes, the

presence of meconium, and a fetal heart tone of 140 beats per

minute.

12. When monitoring was finally established shortly after

10:00 a.m., the fetal monitor tracing demonstrated that the baby

was experiencing fetal distress.

13. The treating physician, Dr. Liang, did not perform a

Cesarean section to deliver the baby until 12:40 pm.

14. At the time (approximately 10:00 am.) Dr. Liang

examined Mrs. Gordon, he was of the opinion that the baby was

demonstrating a non-reactive heart rate and that there may be a

need for a Cesarean section.

15. The non-reactive heart rate continued for more than 20

minutes and caused Dr. Liang to be concerned about the well-

being of the baby.

16. While in the hospital, Dr. Liang did not consider Mrs.

Gordon to be in active labor.

17. Dr. Liang knew that it was not possible for Mrs.

Gordon to have a vaginal delivery of the baby because she had

not progressed in her labor.

18. At 11:30 a.m., Dr. Liang diagnosed the baby as being

in fetal distress and planned to do a Cesarean section as soon as

possible.

19. Regional anesthetic, in the form of an epidural block,

was given Mrs. Gordon at approximately 12:15 p.m. Fetal heart

13a

tone at the time was 120 beats per minute without variability.

An incision was made by Dr. Liang but the patient experienced

significant pain sensation. Accordingly, the anesthetist gave

Mrs. Gordon crash general anesthesia followed by a rapid

sequence intubation. Dr. Liang then continued the operation.

When an incision was made in the lower uterine segment, the

amniotic fluid revealed itself to be heavily meconium stained.

The head of the baby was delivered by surgeon’s hand, and

the nasal and oral cavities were suctioned completely to remove

thick meconium with mucus. The baby was then delivered at

12:40 p.m. with fundal pressure. The umbilical cord was

severed. However, the baby was not breathing and had no

heartbeat when born. Resuscitation of the infant was begun

immediately at the time of his delivery. The infant was in-

tubated and bagged in the OR and Epinephrine and Narcan were

given in the umbilical vein. The Apgar scores that were as-

signed were 0 at one minute, 1 at five minutes, and 8 at

approximately 10 to 11 minutes.

20. An Apgar score is an universally accepted method of

assessing the state of an infant shortly after birth.

21. In general, the higher the Apgar score, up to amaximum

of 10, the better is the condition of the infant.

22. There are five Components of the Apgar score: heart

rate, respiratory effort, tone, reflex irritability, and color, each

of which can be given a score of 0, 1, or 2.

23. One minute after birth, Bruce was assigned an Apgar

score of 0, indicating that he was essentially dead.

24. At five minutes, Bruce’s Apgar score was two, reflect-

ing a severally depressed infant.

25. Approximately 20-25 minutes after birth, Bruce was

resuscitated to the point where he was transferred to the newborn

nursery.

14a

26. Due to Bruce’s severe condition at birth, he was trans-

ferred to a larger medical facility, the Wilford Hall Medical

Center in San Antonio, Texas.

27. A neonatal transport team arrived from Wilford Hall at

approximately 5:00 p.m. on June 25th and flew Bruce to that

facility.

28. While at Wilford Hall, Bruce was treated for his

respiratory problems and for seizures, and was discharged on

July 14, 1985 in apparently good condition.

29. Following Bruce’s discharge, he accompanied his

parents to McChord Air Force Base, Washington where his

father was assigned following completion of a military school

he had been attending at Sheppard Air Force Base.

30. Since July 1984, Bruce, Jr. has continuously resided in

the area of Tacoma, Washington.

31. Bruce initially lived with his parents until their divorce

in October 1988.

32. Throughout his entire life, Bruce has lived continuously

with his mother, Brenda Gordon Brantley.

33. Based upon testimony from several witnesses, Brenda

Gordon Brantley has been a very attentive, caring and loving

mother of Bruce Gordon, Jr.

34. Despite Bruce’s multiple handicaps, his mother con-

tinues ’to have a very positive attitude with a strong desire to

maximize whatever potentials Bruce possesses.

35. Although Mr. Gordon is presently assigned to military

duties with the Air Force in Korea, he also demonstrates a strong

love for Bruce, Jr. and has spent much time with his son, and

provides medical care for him. Mr. Gordon is also interested in

providing the best possible care for Bruce, Jr.

15a

36. Bruce Gordon, Jr. ’s medical records from Sheppard

Air Force Base in June 1984, describe his diagnosis as

“Respiratory distress secondary to meconium aspiration.”

37. At no time did any medical personnel, or anyone else,

suggest to Mr. and Mrs. Gordon that Bruce’s multiple

handicaps are due to anything other than the natural stresses

of birth and his own aspiration of his meconium.

38. One of the causes of Bruce, Jr.’s multiple handicaps is

hypoxia that Bruce suffered in utero following his mother’s

admission to the hospital and prior to his Cesarean delivery at

12:40 pm. |

39. The plaintiffs did not know, nor in the exercise of

reasonable diligence, should they have known the cause of

Bruce, Jr.’s injuries more than two years prior to October 3,

1988.

40. It took over two and one-half hours for Dr. Liang to

perform a Cesarean section. This unreasonable delay by Dr.

Liang in delivering Bruce Gordon, Jr. is a proximate cause of

Bruce Gordon, Jr.’s multiple injuries.

41. The appropriate medical standard of care was the same

at Sheppard Air Force Base, Wichita Falls, Texas at all times

relevant herein, as would be applicable at a nonmilitary medical

institution.

42. The appropriate medical standard of care, by the medi-

cal personnel at Sheppard Air Force Base, was not complied

with as to the care and delivery of Bruce Gordon, Jr.

43. The evidence herein is undisputed that Bruce Gordon,

Jr. has been, since his birth, suffering from the most profound

injuries both physically and mentally. It is undisputed from the

evidence that he will continue to be impaired by his injuries

during his life expectancy, and will need ongoing medical and

rehabilitation care during his lifetime.

16a

44. The court finds that Bruce Gordon, Jr.’s life expectancy

is age 50.

45. Bruce suffers from severe hypoxic ischemic en-

cephalopathy manifested by severe retardation, acquired

microcephaly, spastic quadriparesis, and pseudobulbar palsy.

46. Since moving to the State of Washington, Bruce has

been receiving almost all of his medical care at Madigan Army

Medical Center.

47. While the physicians at Madigan have painted very

dismal pictures of Bruce Gordon, Jr.’s future, Mrs. Brantiey

refused to share in their pessimism, and has continuously and

admirably exercised Bruce, provided loving care, and nurturing,

always seeking to maximize his abilities and not dwelling on his

limitations.

48. Bruce Gordon, Jr. is aware that he is different from

other children and as a result thereof, will suffer lifelong mental

anguish. Bruce Gordon, Jr. can feel pain and will continue to

suffer pain in the future.

49. Bruce Gordon, Sr. and Brenda Gordon Brantley have

been deprived of the normal relationship between parent and

child; that they have suffered grievous mental anguish over their

son’s injuries; and that they have provided and will be required

to provide extraordinary care to Bruce, Jr.

50. The detailed long care plan and estimated cost of care

as set forth in Plaintiff’s Exhibit 8A are reasonable and neces-

Sary as to the care and treatment of Bruce Gordon, Jr.

51. Bruce Gordon, Jr. is entitled to be awarded damages

for the following:

A. Lost Earning Capacity

B. Medical Services

C. Medical Commodities

D. One Time Costs

17a

E. Taxes On Interest

F. Past Pain and Suffering

G. Future Pain and Suffering

52.Brenda Gordon Brantley is entitled to be awarded

damages for the following:

A. Past Nursing and Custodial Services

B. Past Mental Anguish/Impairment of

Parent/Child Relationship

C. Future Mental Anguish/Impairment of

Parent/Child Relationship

53. Bruce Gordon, Sr. is entitled to be awarded damages

for the following:

A. Past Nursing and Custodial Services

B. Past Mental Anguish/Impairment of

Parent/Child Relationship

C. Future Mental Anguish/Impairment of

Parent/Child Relationship

The foregoing Findings of Facts are supported by the more

credible evidence produced by plaintiffs and are by a

preponderance of the evidence.

CONCLUSIONS OF LAW

Any of the foregoing Findings of Fact that are Conclusions

of Law are hereby adopted as Conclusions of Law.

1. Jurisdiction and venue are appropriate in this District, 28

U.S.C. §1346(b), 1402(b).

2. The defendant’s failure to perform an earlier Cesarean

section on June 2, 1984 was a proximate cause of the injuries

and damages to Bruce Gordon, Jr., and to his parents, Bruce

Gordon, Sr., and Brenda Gordon Brantley.

18a

3. The standard of care in medical malpractice cases in

Texas and at Sheppard Air Force Base is the same as anywhere

else in the United States.

4. Defendants’ employees, herein at Sheppard Air Force

Base, breached the standard of care that Bruce Gordon, Jr. was

entitled to receive on June 25, 1984.

5. The defendant’s liability is to be determined in accord-

ance with the law of Texas, where the medical care was rendered

to the plaintiffs. Title 28 U.S.C. §2674.

6. The cause of action accrued less than two years prior to

the filing of plaintiffs’ administrative claims with the Air Force

on October 3, 1988. Title 28 U.S.C. §2401(b).

7. Bruce Gordon, Jr. is awarded damages as follows:

A. Lost Earning Capacity $402,821.00

B. Medical - Services 4,301,730.00

C. Medical Commodities 237,763.00

D. One-Time Costs 4,910.00

E. Taxes on Interest 1,639,799.00

F. Past Pain and Suffering 300,000.00

G. Future Pain and Suffering ~ 1,000,000.00

SUBTOTAL $7,887,023.00

8. The figures, as to lost earning capacity, are reduced to

present value using a 3% net discount rate as expressed by Dr.

Bassett in his economic analysis, and the medical supplies and

commodities are reduced to present value using a 2% net dis-

count rate. In calculating present value of medical care and

services a complete offset or 0% was used. The taxes on interest

were computed under the Internal Revenue Tax Code. The

economic losses sustained by Bruce Gordon, Jr.-were ascer-

tained in accordance with Plaintiff’s Exhibit 9.

19a

9. Brenda Gordon Brantley is awarded the following

damages:

A. Past nursing and custodial

services $100,000.00

B. Past mental anguish/

Impairment of Parent

Child Relationship 100,000.00

C. Future mental anguish/

Impairment of Parent

Child Relationship 75,000.00

SUBTOTAL $275,000.00

10. Bruce Gordon, Sr. is awarded the following damages:

A. Past nursing and custodial

services $20,000.00

B. Past mental anguish/

Impairment of Parent

Child Relationship 50,000.00

C. Future mental anguish/

Impairment of Parent

Child Relationship 25,000.00

SUBTOTAL $95,000.00

11. Should any of the foregoing awards to Bruce Gordon,

Jr. for his medical services and commodities be found to be

more properly awarded to either or both of his parents to provide

for Bruce’s care, then those amounts that were designated for

Bruce, Jr. should be awarded to the appropriate parent(s).

20a

12. Judgment is awarded in favor of the plaintiffs and

against the defendant, plus taxable costs:

A. Bruce Gordon, Jr. $7 ,887,023.00

B. Brenda Gordon Brantley $275,000.00

C. Bruce Gordon, Sr. $95,000.00

TOTAL $8,257 ,023.00

DATED at Tacoma, Washington, this 30th day of JULY,

1991.

UNITED STATES DISTRICT COURT JUDGE

21a

APPENDIX E

United States District Court

WESTERN DISTRICT OF WASHINGTON

BRUCE J. GORDON, ET AL..,

Vv.

UNITED STATES OF AMERICA

JUDGMENT IN A CIVIL CASE

CASE NUMBER: C90-5206T

Jury Verdict. This action came before the Court for

a trial by jury. The issues have been tried and the jury

has rendered its verdict.

X Decision by Court. This action came to trial before

the Court. The issues have been tried and a decision

has been rendered.

IT IS ORDERED AND ADJUDGED

Judgment is awarded in favor of the plaintiffs and against the

defendants, plus taxable costs:

Bruce Gordon, Jr. $7,887,023.00

Brenda Gordon Brantley $275,000.00

Bruce Gordon, Sr. $95,000.00

TOTAL $8,257 ,023.00

July 30, 1991 BRUCE RIFKIN

Date Clerk

Janine R. Thornton

(By) Deputy Clerk