Justia Federal District Court Opinions

The reasons advanced for the enactment of statutes of "repose" are these: a "stale" claim may be more readily asserted fraudulently and the passage of time hampers defense, e. g., records may have been lost, witnesses may have died. That there is no reason to interpose a plea in bar against a just claim is reflected in the rule in some jurisdictions that the pleading of a statute of limitations is discretionary even for fiduciaries. E. g., 31 Am.Jur.2d Executors & Administrators Sec. 738 (1967)

28 U.S.C. Sec. 2401(b) (1966) provides in part:

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 . . . .

This is the section as amended in 1966. The revision does not affect this case, however, since the amendment did not alter the substance of the two-year limitation.

Displaying both modesty and a fine sense of justice, the district judge put into his memorandum of decision the following:

While we have thus made the decision which we believe the state of present law requires under the facts of this case, and, indeed, there is little factual conflict here involved, we are frank to say we are not satisfied with the recorded decisions and would welcome change.

The problem is a knotty one, not here really solved, but we would welcome the intelligence of the appellate Court.

He proceeded to persuasively criticize Pittman v. United States, 341 F.2d 739 (9th Cir. 1965), but apparently felt bound by it. We think it distinguishable, but if not, we respectfully decline to follow it.

It is now well settled that federal law determines when a claim accrues within the meaning of 28 U.S.C. Sec. 2401(b), Toal v. United States, 438 F.2d 222, 224 n. 3 (2d Cir. 1971)

Prior to 1962, there was a divergence of opinion among the federal courts as to when this statute began to run. See Tessier v. United States, 269 F.2d 305 (1st Cir. 1959). Chief Judge Tuttle of the Fifth Circuit, in rejecting the rather harsh rule that a cause of action for malpractice accrues when the negligent acts occur even though the injured patient is unaware of his plight, stated what has now become the standard interpretation of Sec. 2401(b):

[A] claim for malpractice accrues against the Government when the claimant discovered, or in the exercise of reasonable diligence should have discovered, the acts constituting the alleged malpractice.

Quinton v. United States, 304 F.2d 234, 240 (5th Cir. 1962). See, e. g., Toal v. United States, 438 F.2d 222, 224-225 (2d Cir. 1971); Ashley v. United States, 413 F.2d 490, 492 (9th Cir. 1969).

Although it is not entirely clear from the memorandum of decision, this finding is apparently based upon the district judge's rejection of Mrs. Portis's testimony that she was never advised by Air Force doctors that there could be damage to the auditory nerve as the result of muscularly administered Neomycin. The district judge reasoned, erroneously, we think, that Mrs. Portis must have known and understood that a hearing injury could result because she was a graduate nurse and such a possible effect to the eighth cranial nerve is "a medical hornbook diagnosis." Yet, significantly, there is no finding that any medical doctor ever made such a diagnosis until 1969

Prosser lists as an essential element of a cause of action

A reasonably close causal connection between the conduct and the resulting injury. This is what is commonly known as "legal cause," or "proximate cause."

W. Prosser, Law of Torts 146 (3d ed. 1964). E. g., 2 F. Harper & F. James, Law of Torts Sec. 20.4 (1956).

The court in Ashley v. United States, 413 F.2d 490 (9th Cir. 1969), fully realized the requirement of proximate cause and damage when it noted that the plaintiff "knew of the acts constituting the alleged malpractice when they were done on September 6, 1963, and he also knew . . . that he had been injured" as a result of those acts. [Original emphasis]. Ashley v. United States, 413 F.2d 490, 492 (9th Cir. 1969). Colonel Portis, on the other hand, may have reasonably thought his daughter had not been injured-at least not appreciably and not beyond the cost of hospitalization and medical care provided by the government.