United States District Court, D. Kansas
Kerry Pickard, as the Executor of The Estate of John Cedar and individually as the heir at law of John Cedar, and Sandra Cedar, an incapacitated person, by and through her Next Friend, Kerry Pickard, Plaintiffs,
United States of America, Defendant.
MEMORANDUM & ORDER
W. Lungstrum, United States District Judge.
January 18, 2017, John Cedar arrived at the Dwight D.
Eisenhower VA Medical Center in Leavenworth, Kansas for
emergency treatment after hurting his head in a fall. After
medical providers at the hospital determined that the VA
could not provide the necessary neurosurgery for Mr.
Cedar's injury, a transfer was arranged. While waiting
for and during the transfer, Mr. Cedar's condition
worsened. Mr. Cedar did not recover from his injury and died
on January 26, 2017.
Cedar's daughter, individually and as the executor of his
estate, and his surviving spouse filed this lawsuit against
the United States pursuant to the Federal Tort Claims Act, 28
U.S.C. § 1346(b)(1), asserting wrongful death and
survival claims under Kansas law based on the alleged
negligence of health care providers and staff at the VA
hospital. The United States moves for summary judgment,
contending that all claims set forth in the complaint are
barred by the applicable statute of limitations. As will be
explained, the motion is denied.
following facts are uncontroverted or related in the light
most favorable to plaintiffs as the nonmoving parties. On
March 16, 2017, the Department of Veterans Affairs (VA)
received an administrative complaint from John Cedar's
son, Jerry W. Cedar, via Standard Form 95
(“SF-95”). The form identified the claimant as
“Jerry W Cedar/Decedent John J Cedar.” For the
“amount of claim, ” the form indicated
“N/A” for personal injury and “5.2 million
U.S. dollars” for wrongful death. The narrative
attachment to the SF-95 contains various allegations,
including that Jerry Cedar's mother had been telling the
staff at the VA that John Cedar was not waking up but that
the staff was not doing anything about it; that John Cedar
was never removed from the wheel chair that he was first
placed in upon arriving at the VA, even after he had slipped
into a coma; that Jerry Cedar was appalled to learn the type
of care that his father had received; and that the VA's
care ultimately led to his father's death, causing sorrow
and mental anguish. Neither the form nor the attachment
identified any other potential claimants. Jerry Cedar
identified “Sandra L. Cedar” as a witness to the
alleged negligent acts.
6, 2017 the VA denied the administrative claim. The VA's
denial letter was addressed and delivered to Jerry Cedar by
certified mail on July 13, 2017. It is undisputed that the
denial letter was not addressed or provided to any member of
John Cedar's family other than Jerry Cedar. It is further
undisputed that plaintiffs had no knowledge of the claim
submitted by Jerry Cedar and had no knowledge of the VA's
denial of that claim until plaintiffs' subsequent
administrative claims were denied.
March 23, 2018, Kerry Pickard was appointed as the Executor
of the Last Will and Testament of John J. Cedar. On April 9,
2018, the VA received a letter from Dempsey & Kingsland,
P.C. (the “Dempsey Letter”) as attorneys for the
“Family of John Cedar” that included a recitation
of the events described in the SF-95 submitted by Jerry Cedar
on March 16, 2017. The letter transmitted a Standard Form 95
bringing an administrative claim for the personal injury and
wrongful death claims of the Estate of John Cedar, Kerry
Pickard, Sandra Cedar, and Jerry C. Cedar. On July 2, 2018,
the VA responded to the Dempsey Letter, stating that
“[t]his claim was initially filed by Mr. Cedar's
son on March 16, 2017. A complete investigation into the
allegations was completed and this claim was denied on July
6, 2017.” This lawsuit was filed on July 18, 2018.
judgment is appropriate if the pleadings, depositions, other
discovery materials, and affidavits demonstrate the absence
of a genuine issue of material fact and that the moving party
is entitled to judgment as a matter of law.” Water
Pik, Inc. v. Med-Systems, Inc., 726 F.3d 1136, 1143
(10th Cir. 2013) (quotation omitted); see Fed. R.
Civ. P. 56(a). A factual issue is genuine “if the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Water Pik,
Inc., 726 F.3d at 1143 (quotation omitted). “The
nonmoving party is entitled to all reasonable inferences from
the record; but if the nonmovant bears the burden of
persuasion on a claim at trial, summary judgment may be
warranted if the movant points out a lack of evidence to
support an essential element of that claim and the nonmovant
cannot identify specific facts that would create a genuine
issue.” Id. at 1143-44.
sovereign immunity generally shields the government from
suit, Dep't of the Army v. Blue Fox, Inc., 525
U.S. 255, 260 (1999), the Federal Tort Claims Act (FTCA), 28
U.S.C. § 2671 et seq., waives that immunity for certain
tort claims. Specifically, it allows a plaintiff to sue the
federal government for personal injury or property damage
“caused by the negligent or wrongful act or
omission” of government employees acting within the
scope of their employment. Id. § 1346(b)(1).
But to benefit from the FTCA's waiver, a plaintiff must
comply with two limitations periods. First, he or she must
present an administrative claim “in writing to the
appropriate Federal agency within two years after such claim
accrues.” 28 U.S.C. § 2401(b). Second, he or she
must bring the FTCA claim “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.” Id. If he or she fails to meet
either of these time constraints, the “tort claim
against the United States shall be forever barred.”
motion for summary judgment, the government asserts that
plaintiffs' claims must be dismissed because Jerry
Cedar's administrative claim was denied more than six
months before this lawsuit was filed and Jerry Cedar's
claim binds the plaintiffs in this case. According to the
government, Kansas law authorizes “one claim” for
wrongful death and that “single claim” may be
brought by any one of the heirs at law of the deceased.
See K.S.A. § 60-1902; Heimerman v.
Rose, 414 P.3d 745, 750 (Kan. 2018). The government,
then, contends that Jerry Cedar was authorized to file a
wrongful death claim on behalf of all claimants and the
denial of that claim precludes a subsequent claim by any
other wrongful death claimants. With respect to
plaintiffs' survival claim, the government contends that
Jerry Cedar's claim impliedly presented a survival claim
such that the denial of his claim started the six-month
statute of limitations on plaintiffs' survival claim as
well. The court rejects both arguments.
Cedar's Administrative Claim for Wrongful Death
Tenth Circuit has recognized the general rule that if there
are multiple claimants in a wrongful death matter, each
claimant must individually file a claim. See Haceesa v.
United States, 309 F.3d 722, 734 (10th Cir. 2002). In
Haceesa, three separate administrative claims were
filed with the Indian Health Service after the death of Hardy
Haceesa, a Navajo Indian. Id. at 733. The first two
claims-one by Mr. Haceesa's wife and one by his
daughter-were filed in July 1998. Id. The third
claim, filed by the Estate, was filed in October 1998.
Id. The government formally denied all three claims
in April 1999. Id. The wife and daughter timely
filed a lawsuit, but did not move to amend their complaint to
add the Estate until December 1999. Id. The district
court permitted the amendment and, after a bench trial,
awarded plaintiffs total damages of over $2.1 million.
Id. at 733, ...