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Pickard v. United States

United States District Court, D. Kansas

January 25, 2019

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.


          John W. Lungstrum, United States District Judge.

         On 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.

         Mr. 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.

         I. Facts

         The 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.

         On July 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.

         On 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.[1] 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.

         II. Standard

         “Summary 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.

         III. Discussion

         Although 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.” Id.

         In its 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.

         Jerry Cedar's Administrative Claim for Wrongful Death

         The 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, ...

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