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Cook v. United States

United States District Court, N.D. Oklahoma

September 27, 2019

CARMELA COOK, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          OPINION AND ORDER

          JOHN E. DOWDELL, CHIEF JUDGE UNITED STATES DISTRICT COURT.

         I. Background

         Carmela Cook brings this action in her individual capacity and as personal representative of the Estate of Alice May Lindsey. According to the allegations in Ms. Cook’s Complaint, Ms. Lindsey was a patient of the Okemah Indian Community Hospital, a/k/a Creek Nation Community Hospital (the Hospital) beginning in 1987. In July, 2007, Lindsey went to the Hospital for complications with her throat, including hoarseness and trouble swallowing. For over five years, the Hospital performed blood testing, thyroid sonograms, and CT scans of Lindsey’s chest. Those tests continually showed a steadily enlarging lobe of the thyroid and expanding nodules on the lung. Lindsey’s weight decreased between each visit to the Hospital. Despite the test results and decreasing weight, the enlarged thyroid and expanding lung nodules were not biopsied or otherwise surgically tested.

         In June of 2012, Lindsey was evaluated by other medical providers (separate from the Hospital), who ordered biopsies. The biopsies showed signs consistent with metastatic thyroid cancer. On July 12, 2012, Lindsey was admitted to Saint Francis Hospital in Tulsa for exploratory neck surgery. Due to the extent of the erosion to the left side of the thyroid, the physician was unable to remove the thyroid gland. Lindsey ultimately died of metastatic thyroid cancer on May 8, 2013.

         In February, 2014, plaintiff presented a written tort claim notice to the United States Department of Health and Human Services (DHHS), which is responsible for medical care at the Hospital. The DHHS acknowledged receipt by letter dated March 27, 2014. More than six months passed without DHHS providing a final disposition of the claim. On February 12, 2015, plaintiff brought a wrongful death action under 28 U.S.C. §§ 2401(b), 2675. That case was styled Carmela Cook and The Estate of Alice May Lindsey v. United States of America, 15-CV-0079-CVE-FHM. After the suit was filed, plaintiff received a letter dated April 20, 2015 from DHHS, denying plaintiff’s administrative claim.

         In the first case, United States District Judge Claire V. Eagan set a September 7, 2015 deadline for expert identification and report. On September 9, 2015, after the deadline passed, plaintiff requested an extension of time to submit her expert identification and report, asserting that she could not afford an expert. (Doc. 25 at 2). United States Magistrate Frank H. McCarthy denied the extension request, finding that the plaintiff had not established good cause to extend the deadline. (Doc. 33). On November 24, 2015, plaintiff moved to dismiss her lawsuit without prejudice. Judge Eagan granted that motion and dismissed plaintiff’s claims without prejudice on December 1, 2015. These dates are undisputed. (See Doc. 10 at 1-2).[1]

         Plaintiff filed the instant lawsuit on August 23, 2016 and attached a certification of consultation with an expert. (Doc. 2-1). The United States moves to dismiss this case under Fed.R.Civ.P. 12(b)(6) based upon a time limitation in the Federal Tort Claims Act (FTCA). The FTCA provides two limitations periods for filing tort claims:

A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.

28 U.S.C. § 2401(b). Thus, a tort claim must be (1) presented to the federal agency within two years after the claim accrues and (2) filed in the district court within six months after the agency’s mailing of a notice of final denial. See United States v. Wong, ___ U.S. ___, 135 S.Ct. 1625, 1629 (2015) (citing § 2401(b)).

         Plaintiff presented her administrative claim to the DHHS within two years of Ms. Lindsey’s death, such that the first limitation period was satisfied. It is the second statutory time period that is at issue in this case. The United States argues that this action should be dismissed because the DHHS’s notice of denial of plaintiff’s claim was provided on April 20, 2015, and plaintiff did not file the instant action until 16 months later on August 23, 2016 – approximately 10 months after the six-month time limitation of § 2401(b) had expired.

         II. Dismissal Standards

         “[A] defendant may raise an affirmative defense by a motion to dismiss for the failure to state a claim.” Jiying, 759 F. A’ppx at 739 (quoting Miller v. Shell Oil Co., 345 F.2d 891, 893 (10th Cir. 1965)). Moreover, “it is appropriate to resolve a statute of limitations defense on a Rule 12(b)(6) motion ‘when the dates given in the complaint make clear that the right sued upon has been extinguished.” Id. (quoting Sierra Club, 816 F.3d at 671). A complaint is subject to dismissal for failure to state a claim “[i]f the allegations show that relief is barred by the applicable statute of limitations.” Nunn v. Relich, 642 F.App'x 905, 906 (10th Cir. 2016) (quoting Jones v. Bock, 549 U.S. 199, 215 (2007)).

         III. Discussion

         A. ...


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