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U.S. District Court
Where the dismissal of a negligence complaint has been reversed by the 1st U.S. Circuit Court of Appeals, the defendant’s motion for reinstatement of the prior dismissal decision should be allowed because the circuit court left undisturbed the portions of that decision regarding the applicability of the two-year statute of limitations in the Federal Tort Claims Act and the inapplicability of the savings provision in the Westfall Act.
“This action was filed after the death of Melissa Allen (‘Allen’) in August, 2016, that allegedly resulted from her treatment by Dr. Fernando Roca (‘Dr. Roca’) in July, 2016 at Lowell General Hospital (‘the Hospital’) in Massachusetts. Pending before the Court is 1) a motion by defendant, the United States (‘the government’), to reinstate this Court’s prior decision granting dismissal or, alternatively, to dismiss for failure to state a claim, and 2) a motion by plaintiff Brad O’Brien (‘O’Brien’ or ‘the plaintiff’) for reconsideration of this Court’s March 1, 2024 order. For the following reasons, the motion to reinstate will be allowed and the motion for reconsideration will be denied. …
“In 2016, Allen was admitted to the Hospital after suffering multiple seizures at her residence. Although Allen was unaware of the fact, she was found to be pregnant at the time and was treated at the Hospital by the attending obstetrician, Dr. Roca. After delivering her child, Allen was transported to Tufts Medical Center in Boston where she died 11 days later from medical complications related to her pregnancy.
“In June, 2019, plaintiff filed suit in the Massachusetts Superior Court for Middlesex County against Dr. Roca and several other Hospital employees alleging, inter alia, negligence in their treatment of Allen. In 2021, the government removed that action to this Court pursuant to 42 U.S.C. §233(c) and noticed the substitution of the government for Dr. Roca on the same day. Shortly thereafter, the government moved to dismiss plaintiff’s complaint for lack of subject matter jurisdiction and for failure to state a claim. This Court allowed that motion, holding that under the Federal Employees Liability Reform and Tort Compensation Act (‘the Westfall Act’), the government was properly substituted for Dr. Roca and that, accordingly, plaintiff’s claims were time-barred by the two-year limitations period under the Federal Tort Claims Act (‘the FTCA’).
“Plaintiff appealed the decision to the First Circuit Court of Appeals in 2022. On appeal, the government disavowed its prior reliance on the Westfall Act and urged the First Circuit to affirm on a new basis, namely, that substitution was proper under the Public Health Service Act (‘PHSA’). The First Circuit held that there was an insufficient evidentiary record to determine, on this new basis, whether the government’s reason for substitution was proper and vacated and remanded the case to this Court. …
“Plaintiff raises three arguments in opposition to the government’s motion to reinstate the Court’s prior dismissal: 1) that plaintiff’s claim is not time-barred by the two-year statute of limitations under the FTCA, 2) that he was entitled additional time to exhaust administrative remedies under the Westfall Act’s savings provision, and 3) that the government was improperly substituted as defendant in place of Dr. Roca. Plaintiff’s arguments are necessarily rejected at the outset because they challenge the law of the case that the Court may not reconsider. …
“Plaintiff’s arguments in opposition to reinstatement of dismissal offer no compelling reason for the Court to alter its earlier decision. As a threshold matter, none of the three holdings plaintiff attempts to relitigate was abrogated on appeal. Instead, the First Circuit left undisturbed the Court’s decision in its 2021 order regarding the applicability of the two-year statute of limitations in the FTCA and the inapplicability of the savings provision in the Westfall Act. … The First Circuit remanded for the sole purpose of having the Court determine whether the government was properly substituted as a defendant. See id. at 141, 152. This Court has now concluded that the government was properly substituted and that decision has not been addressed in any intervening appeal. …
“In the absence of any reason to reconsider its previous conclusion that 1) plaintiff’s claim is untimely under the FTCA, 2) the savings provision of the Westfall Act does not save his claim, and 3) the government was properly substituted as a defendant, the Court is compelled to reaffirm its previous findings. … Dismissal is warranted now for the same reasons that it was warranted in 2021. … Any other decision would amount to an impermissible relitigation of issues already decided. …
“For the foregoing reasons, the motion of defendant, the United States, to reinstate this Court’s previous order of dismissal is allowed, and the motion of plaintiff, Brad O’Brien, to reconsider this Court’s previous decision to allow the government to substitute itself as defendant is denied.”
O’Brien v. Lowell General Hospital, et al. (Lawyers Weekly No. 02-427-24) (14 pages) (Gorton, J.) (Civil Action No. 21-10621-NMG) (Sept. 6, 2024).
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