204 F. Supp.2d 216 (2002) | Cited 0 times | D. Massachusetts | June 11, 2002

MEMORANDUM REGARDING DEFENDANT'S MOTIONS TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION (Civil Action No. 99-40065: Docket No. 28; Civil Action No. 99-30231: Docket No. 17; Civil Action No. 00- 30080: Docket No. 19; Civil Action No. 99-30232: Docket No. 17; Civil Action No. 00-30192: Docket 16; Civil Action No. 00-30076: Docket No. 14)


This memorandum addresses the court's power to hear to six civil casesthat have been filed under the Federal Tort Claims Act,28 U.S.C. § 1346(b), 2671-80 ("FTCA"). Each of the suits seeksdamages for the wrongful death of a patient who died while under the careof the Department of Veterans Affairs Medical Center in Leeds,Massachusetts (the "VAMC"), as a result of the criminal conduct of nurseKristen Gilbert ("Gilbert").

Gilbert, a one-time employee of the VAMC, was indicted in 1998 formurdering four of her patients and attempting to murder three others byinjecting them with the heart stimulant epinephrine. All of the currentplaintiffs contend that the United States, through the VAMC, was at leastpartly responsible for the death of their loved ones. In its presentmotions, the Government does not address that ultimate issue. Instead, itclaims that this court has no jurisdiction to hear these six casesbecause they were brought outside the applicable statute of limitations.In other words, the Government argues, these lawsuits were filed toolate.

It is well established under the law that the United States, as anentity, may be sued only to the extent, and in the manner, that itconsents to being sued. It has consented to be sued under the FTCA, butonly if the claim is brought within two years after the claim "accrued."According to the Government, these six cases were brought more than twoyears after their accrual dates, and are therefore barred.

As the following discussion will show, this court is compelled toconclude that the Government is correct with regard to five of the sixcases; this court has the power to hear only plaintiff Cutting's case(Civil Action No. 99-40065). Binding authority makes it clear that theother five cases were filed with the Department of Veterans Affairs toolate to meet congressional statute of limitations requirements.

The court has reached this conclusion reluctantly, in view of theenormity of the loss suffered by these five plaintiffs and theirfamilies. It would, however, be false generosity to ignore ajurisdictional defect that is bound to be fatal to these caseseventually. The court's reasoning is set forth below.


"Because federal courts are courts of limited jurisdiction, federaljurisdiction is never presumed. Instead, the proponent — here, theplaintiffs — must carry the burden of demonstrating the existence offederal jurisdiction." Viqueira v. First Bank, 140 F.3d 12, 16 (1st Cir.1998). In deciding a motion to dismiss under Fed.R.Civ.P. 12(b)(1)challenging subject matter jurisdiction, the court may consider materialsoutside the pleadings. See Gonzalez v. United States, 284 F.3d 281, 288(1st Cir. 2002); Heinrich v. Sweet, 44 F. Supp.2d 408, 415 (D.Mass. 1999)(noting that in motion to dismiss for lack of subjectmatter jurisdictioncourt "may (1) consider evidence submitted by the parties, such asdepositions and exhibits; (2) entertain arguments not raised by theparties' memoranda; and (3) resolve factual disputes, if necessary.").Accordingly, the court has reviewed all the documents submitted inconnection with this motion. While the facts particular to each plaintiffwill be discussed in Section III below, some general background may behelpful.

The federal investigation into the VAMC began around February 1996.(Civil Action No. 00-30192, Docket 18, Exhibit E at 6). Assistant UnitedStates Attorney William Welch ("Welch") was the lead prosecutor, assistedby Special Agent Steven Plante of the Inspector General's Office at theVeterans Administration ("Agent Plante"). Id. In June of 1996, TrooperKevin Murphy of the Massachusetts State Police ("Trooper Murphy") wasrecruited to assist Agent Plante. Id. at 5.

The investigation focused on patients who had died of cardiac arrestbetween January of 1995 and February of 1996. Id. at 7-9. Beginning inthe fall of 1996, investigators began approaching families of some ofthese former patients for permission to exhume the bodies of thedeceased. The Skwira family was first, and was approached in October,1996. Id. at 10. From the exhumed bodies, investigators took tissuesamples for analysis. Id. at 75.

The media began coverage of the investigation in July, 1996. Forexample, on July 17, 1996, an article in the Daily Hampshire Gazette withthe headline "VA officials probe deaths" noted that "[a] federal probeinto `a higher than usual numbers of deaths' from cardiac arrest on oneward" of the VAMC was underway. (Civil Action No. 99-30231, Docket 17,Exhibit E). On August 1, 1996, an article in the same newspaper with theheadline "VA nurse said a focus of the probe," disclosed that"investigators probing deaths at the U.S. Department of Veterans AffairsMedical Center are studying the role a nurse played in the care of thosewho died." Id., Exhibit F. The article noted that while the unnamed nursehad not yet been charged with a crime, she was placed on leave "at aboutthe same time that the VA's Office of Inspector General was called in toinvestigate what officials feared was a greater number of deaths due tocardiac arrest occurring on a particular ward during a particular shiftthan on others." Id. The same article made it known that the nurse inquestion had been arrested for trespassing, breaking and entering, andpossession of burglary tools, and that her name appeared on the medicalrecords of at least one veteran who had unexpectedly died of a cardiacarrest. Id.

In early August, the United States Attorney's Office issued a shortpress release confirming that, in fact, there was a Grand Juryinvestigation under way. (Civil Action No. 00-30192, Docket 18, Exhibit Dat 25). Around the same time, an August 8, 1996 article in the DailyHampshire Gazette reported that a Grand Jury had been taking testimonyfor about a month, that the Government had "sufficient information to(have brought) it to a Grand Jury," and that the investigation was"focusing on all deaths that occurred at the VAMC between fall 1995 andwinter 1996." (Civil Action No. 99-30231, Docket 17, Exhibit G).

Gilbert was arrested on October 2, 1996 and charged with phoning infalse bomb threats to the VAMC. (Civil Action No. 00- 30192, Docket 18,Exhibit D at 45). Her name was made public in connection with thatarrest, and she was identified by the papers as the subject of theongoing investigation into the deaths at the VAMC. Id. at 45-46.

On October 23, 1997, Caroline Brandt ("Brandt") filed an administrativeclaim with the Department of Veterans Affairs for the death of herhusband. (Civil Action No. 99-30231, Docket 22, Exhibit A). The actionsof the Brandt family exemplify a course of conduct that fully satisfiedthe jurisdictional requirements. Brandt alleged that her husband hadinexplicably died of cardiopulmonary arrest, but had no heart problems.Id. The claim further alleged that he had a normal pulse and respiratoryrate the day of his death, and that "[o]ther suspicious deaths occurredon the same ward at the VA Medical Center from the fall of 1995 to theSpring of 1996." Id. Brandt asserted that her husband's death "was thedirect result of negligence and/or intentional acts of agent(s) and/oremployee(s) of the VA Medical Center in Leeds, MA." Id. Gilbert waslisted as a witness, but no specific allegations were made against her.Id. Following denial of her administrative claim, Brandt filed a timelycomplaint, which is now pending in this court and which the Governmenthas not sought to dismiss.1

It is important to emphasize, in fairness to plaintiffs, that theprocess of proving that the victims had died of epinephrine poisoning wasdifficult. Epinephrine occurs naturally in the body as adrenaline, andinvestigators found it difficult to isolate toxicological evidence that aparticular patient had been killed with a lethal injection by examiningtissue samples exhumed months or years after the patient's death.Moreover, the tissue examination process was unprecedented, newinstrumentation was employed for the first time, and test protocols hadto be written. (Civil Action No. 00-30192, Docket 18, Exhibit E at 89).Several doctors and scientists worked with the Government on thetoxicological and pathological aspects of the investigation, which wasboth expensive and time consuming. Id. at 84-87.

On May 20, 1998, Nancy Cutting ("Cutting") (Civil Action No. 99-40065)filed an administrative complaint with the Department of VeteransAffairs, alleging that her husband had "died of cardiac arrest caused asa direct result of the negligent and/or intentional acts of agents and/oremployees of the VA Medical Center in Northampton, Massachusetts during aperiod of time up to and including February 2, 1996." (Civil Action No.99-40065, Docket 28, Exhibit A). As will be seen, this filing satisfiedthe requirements of the statute of limitations. Following denial of theadministrative claim, a timely lawsuit was filed with this court.

In the fall of 1998, the Grand Jury returned an indictment chargingKristen Gilbert with first degree murder and assault with intent tocommit murder. The indictment was sealed for seven days so that thefamilies involved could be informed. (Civil Action No. 00-30192, Docket18, Exhibit E at 30). When the indictment was made public, the otherplaintiffs now before the court filed administrative complaints in rapidsuccession. Francis Rauch ("Rauch") (Civil Action No. 99-30231) filed onDecember 23, 1998; Francis Siska ("Siska") (Civil Action No. 00- 30080)on March 10, 1999; Michael McEwen ("McEwen") (Civil Action No. 99-30232)on March 18, 1999; Susan Lessard ("Lessard") (Civil Action No. 00-30076)on September 29, 1999; and Statia Skwira ("Skwira") (Civil Action No.00-30192) on October 8, 1999.

Jury selection in the criminal case began on October 25, 2000, andtrial commenced on November 20, 2000. On January 4, 2001, this courtstayed the pending civil actions until the conclusion of the criminalproceedings. (Civil Action 00-30192, Docket 8 at 2). Gilbert was convictedof three counts of first degree murder and various lesser charges onMarch 14, 2001, and was sentenced to life in prison on March 26, 2001.



As noted above, the United States cannot be sued without its consent.This doctrine of sovereign immunity is "deeply entrenched in Americanlaw" and "derives from the common law tradition that the king should beinsulated from suit absent his consent." United States v. Horn,29 F.3d 754, 761-762 (1st Cir. 1994). Congress did give its consent to besued in tort cases — i.e. cases seeking damages for death or injurycaused by the acts of Government employees — in the FTCA, but witha strict condition: a tort claim is "forever barred" unless it ispresented in writing to the appropriate federal agency "within two yearsafter such claim accrues." 28 U.S.C. § 2401(b). The Supreme Court hasnoted that this two-year requirement "is the balance struck by Congressin the context of tort claims against the Government." United States v.Kubrick, 444 U.S. 111, 117 (1979).

Thus, plaintiffs who wish to seek damages against the United States forinjury caused by the negligent or intentional act of a Governmentemployee must initiate the process by presenting an administrative claimwithin two years after their cause of action accrues. Gonzalez v. UnitedStates, 284 F.3d 281, 288 (1st Cir. 2002). "[C]ompliance with thisstatutory requirement is a jurisdictional prerequisite to suit thatcannot be waived." Id. Put simply, if a claim is filed too late, thecourt has no power to hear it. Federal courts derive their power to heartort claims against the United States from the FTCA and must dismissthose claims that are not timely filed. Id. If the administra- tive claimis submitted within the proper time, then the Government has six monthsto review the claim. 28 U.S.C. § 2675(a). If the claim is denied, theinjured party then has six months to file a lawsuit.28 U.S.C. § 2401(b).

In weighing whether a claim has been filed in time, the key questionalways is: when did the claim "accrue"?

The answer to this question is sometimes simple. "The general rule isthat a tort claim accrues at the time of the plaintiff's injury." 284F.3d at 288. As discussed in more detail below, each of the sixplaintiffs in this case was "injured" — through the death of theirloved one — more than two years prior to the time that they filedan administrative claim with the Department of Veterans Affairs.Therefore, the Government contends that this court has no subject matterjurisdiction over any of these cases, and that all six complaints shouldbe dismissed.

B. Discovery Rule

Plaintiffs argue that the court's jurisdiction is preserved by the"discovery rule" exception to the usually strict two-year statute oflimitations. Although the "discovery rule" has been in existence for sometime, the seminal case describing its contours in the context of the FTCAis United States v. Kubrick, 444 U.S. 111 (1979). There, the SupremeCourt confirmed that the FTCA's statute of limitations may be "tolled"(i.e., held in abeyance) in a medicalmalpractice case when the plaintiffremained ignorant of (1) the fact that he was injured and (2) the causeof the injury, until less than two years prior to filing his claim. 120. As the Court explained, that a plaintiff "has been injured infact may be unknown or unknowable until the injury manifests itself; andthe facts of causation may be in the control of the putative defendant,unavailable to the plaintiff or at least very difficult to obtain." 122.

Having established this general principle, however, the Kubrick Courtreversed a Ninth Circuit decision holding that, in effect, a plaintiff's"ignorance of his legal rights" was sufficient to toll the statute oflimitations. Id. The Supreme Court noted that the Kubrick plaintiff knewboth that (1) he was injured (he had hearing loss); and (2) that it was"highly possible" that the injury was caused by the treatment he hadreceived at the Government hospital. Id. at 114. The Court held thatknowledge of injury plus cause was sufficient to start the clock underthe discovery rule. Id. at 122-123. According to the Court, the plaintiffshould have sought "advice in the medical and legal community," id. at123, once he was "in possession of the critical facts that he had beeninjured and who had inflicted the injury." Id. at 122.

Although the discovery rule is primarily applied in the medicalmalpractice arena, some judges have invoked it in the wrongful deathcontext as well. See, e.g., Heinrich v. Sweet, 44 F. Supp.2d 408(D.Mass. 1999) (applying doctrine to a wrongful death claim arising outof boron radiation experiments in the 1960's); Diaz v. United States,165 F.3d 1337 (9th Cir. 1999) (applying doctrine to wrongful death claimarising out of prison suicide). Thus, plaintiffs argue that this courtmay assert subject matter jurisdiction over their claims, if it findsthat they did not possess sufficient facts to know that their claims hadaccrued until they were within the two-year window.

1. Viability of Discovery Rule

In response to the plaintiffs' arguments, the Government has offered arebuttal comprised of several layers. As its first riposte, theGovernment contends that recent developments in the law foretell theimminent demise of the "discovery rule" in federal courts, in any form.Since Chief Judge Young decided Heinrich, the Supreme Court has addressedthe discovery rule in two cases, with increasing levels of negativity.

First, in the context of the Racketeer Influenced and CorruptOrganizations Act ("RICO"), the Court recognized that federal courts"generally apply a discovery accrual rule when a statute is silent on theissue." Rotella v. Wood, 528 U.S. 549, 555 (2000). However, the Courtemphasized that "we have been at pains to explain that discovery of theinjury, not discovery of the other elements of a claim, is what startsthe clock." Id. The Rotella Court refused to find that the clock did notrun on a RICO action until the plaintiff was aware "of the underlyingRICO pattern." Id. at 557. It held that "[a] RICO plaintiff's ability toinvestigate the cause of his injuries is no more impaired by hisignorance of the underlying RICO pattern than a malpractice plaintiff isthwarted by ignorance of the details of treatment decisions or ofprevailing standards of medical practice." Id. at 556-557. Rotellaexplicitly left open the possibility that simple occurrence of theinjury, regardless of whether the injury was discovered or evendiscoverable, was sufficient to start the clock. Id. at 554n. 2. Thus,Rotella stands for the proposition that knowledge of injury alone, atleast in the RICO context, is sufficient to start the statute oflimitations clock.

Rotella is extremely ominous for plaintiffs here, for two reasons.First, if injury alone starts the two-year clock, regardless of anyknowledge that the injury has occurred, all the plaintiffs filed theirclaims too late. Second, even if knowledge of the injury, regardless ofany knowledge of negligence connected with the injury, is sufficient tostart the two-year clock, then plaintiffs' claims must similarly bedismissed. In a wrongful death claim, plaintiffs, except in the rarest ofinstances, know of their injury (the death of the loved one) virtuallyimmediately. All the plaintiffs in these cases knew of their decedents'deaths shortly after they occurred. In other words, all the plaintiffsclearly had "knowledge of the injury" more than two years before theyfiled their claims. Developing Supreme Court authority suggests thatthese facts alone may doom plaintiffs' claims.

The Court addressed the discovery rule again in 2001. In TRW, Inc. v.Andrews, 122 S.Ct. 441 (2001), the Court rejected a finding that thediscovery rule was applicable to the Fair Credit Reporting Act ("FCRA").Id. at 444. The Court noted that the FCRA had an explicit exception toits statute of limitations; therefore, no implicit exception could beread in. Id. Justice Ginsburg, writing for a seven-justice majority, alsomade several observations that are relevant here. First, she noted thatthe Supreme Court had "not adopted as [its] own" the proposition thatfederal courts should apply "a discovery accrual rule when a statute issilent on the issue." Id. at 447. Second, she noted that the SupremeCourt had only recognized the discovery rule in two contexts, "latentdisease and medical malpractice, `where the cry for such a rule isloudest.'" Id. Third, she appeared to suggest, in passing, that evenwhere the discovery rule applied, accrual would always occur upon theplaintiff's knowledge of injury, regardless of any knowledge of the causeof the injury. Id. at 448. Justices Scalia and Thomas made it clear,concurring in the judgment, that they thought even "[t]heinjury-discovery rule . . . is bad wine of recent vintage." Id. at 452.Under the law as these two justices saw it, the limitations clock wouldalways start when the injury occurred, regardless of whether theplaintiff even knew of the injury. Id.

Thus, the Government argues that in the wrongful death context thetwo-year clock must always begin to run at the time of death. Unlike thelatent disease or medical malpractice context, there is, as noted above,virtually no possibility that the injury will occur substantially beforediscovery of the injury; death is rarely a hidden or latent injury that aplaintiff will need time to "discover." Starting the clock at the time ofdeath would facially accord with the Rotella Court's admonition that"discovery of the injury, not discovery of the other elements of aclaim, is what starts the clock," 528 U.S. at 555, and the TRW Court'srefusal to recognize the discovery rule outside the latent disease andmedical malpractice contexts. 122 S.Ct. at 447.2

While the Government points to indications of a possible change infederal law in this area in the future, this court will decline theinvitation to discard the discovery rule in the wrongful death context inthe absence of clearer authority. A guiding principle for federal trialjudges is that "absent clear indication from the Supreme Court itself,lower courts should not lightly assume that a prior decision has beenoverruled sub silentio merely because its reasoning and results appearinconsistent with later cases." Williams v. Whitley, 994 F.2d 226, 235(5th Cir. 1993). This is doubly true when there is no explicitinconsistency, but merely a tentative indication of potentialdevelopments. Thus, Kubrick is good law, and discovery of injury alone isnot sufficient to start the clock, at least in the medical malpracticecontext.

Moreover, this court will not assume that the application of thediscovery rule in the wrongful death context is unwarranted, simplybecause no Supreme Court or First Circuit case contains an explicitholding to that effect.

For one thing, the facts of this case, charging hospital- basednegligence or malfeasance, make it functionally identical to amalpractice case. In addition, the Eighth Circuit, despite evolvingSupreme Court jurisprudence, recently applied the discovery rule in thewrongful death context. See Garza v. United States Bureau of Prisons,284 F.3d 930 (8th Cir. 2002). In sum, despite the Government's strongarguments, this court concludes that all plaintiffs survive thedefendant's first salvo.

2. Duty to Inquire

The Government's second, and more effective, argument is thatplaintiffs simply failed to file their lawsuits within two years afterthey had both knowledge of their injuries and sufficient indication ofthe injuries' cause. Some background will put this issue in context.

Once the Government has shown that the plaintiff's suit was faciallytime-barred, as in this case, the burden shifts to the plaintiff. To tollthe clock under the discovery rule, "the plaintiff may show that he hadno reason to believe he had been injured by an act or omission by thegovernment." Garza, 284 F.3d at 934. Thus, the question for plaintiffswill be when they had "reason to believe" that the Government'snegligence or misconduct was a cause of death.

Before undertaking this individualized factual inquiry, a review of thelegal landscape and standards governing the application of the discoveryrule may be helpful. As noted, the crucial question is, when did thecause of action accrue? As the Eleventh Circuit has stated, ". . . inorder for the claim to accrue, a plaintiff must have some indication thatthere may have been a government cause of the injury." Diaz v. UnitedStates, 165 F.3d 1337, 1340 (11th Cir. 1999). "[E]ven in non-malpracticewrongful death cases, the causal link to the government may be obscured."Id.; Ramming v. United States, 281 F.3d 158, 162 (5th Cir. 2001)(concluding that plaintiff's "awareness of a possible cause of action hastwo elements: (1) the existence of the injury; and (2) causation, thatis, the connection between the injury and the government'sactions.")(quotation omitted).

The issue of precisely how much knowledge is needed to trigger accrualbedevils discovery rule analysis. On the one hand, some indication atleast of the defendant's responsibility must be available. On the otherhand, the discovery rule puts a burden on plaintiffs to investigate oncethey have some reason to suspect foul play; accrual may occur long beforethere is firmconfirmation of the defendant's probable culpability.

In other words, the statute of limitations is only tolled if thefactual basis for the claim is "inherently unknowable," or, butdifferently, "incapable of detection by the wronged party through theexercise of due diligence." Gonzalez, 284 F.3d 281, 288-289 (1st Cir.2002). Thus, "[o]nce a plaintiff knows of the injury and its probablecause, he/she bears the responsibility of inquiring among the medical andlegal communities about whether he/she was wronged and should take legalaction." Id. at 289.

This duty of inquiry is particularly strict when the injury at issue isa death. The First Circuit has noted that "the community disturbing eventof death is likely to prompt immediate focus by third parties upon thecause thereof, thereby eliminating one possible delay in assembling apersonal injury case." Cadieux v. International Tel. & Tel. Co.,593 F.2d 142 (1st Cir. 1979). See also Pacheco v. Rice, 966 F.2d 904, 907(5th Cir. 1992) (noting that the "requirement of diligent inquiry imposesan affirmative duty on the potential plaintiff to proceed with areasonable investigation in response to an adverse event.").

In view of these authorities, the Government contends that the merefact that all the decedents died unexpectedly, usually of heart attackswhen no cardiac disease or weaknesses previously existed, was sufficientto give notice of "some indication" of cause, and trigger a duty ofinquiry right at the time of death. This argument goes too far. As theNinth Circuit recently noted, "a cause of action does not accrue underthe FTCA when a plaintiff has relied on statements of medicalprofessionals with respect to his or her injuries and their probablecauses." Winter v. United States, 244 F.3d 1088, 1090 (9th Cir. 2001).Plaintiffs in this case all assert that they initially relied on theVAMC's explanation of the cause of death, as imprinted on the respectivedecedent's death certificate. That initial reliance was reasonable.Something else was needed to trigger accrual.

As will be seen, substantial additional information was soon availableto all plaintiffs, beyond the disturbing circumstances of the deaths,indicating negligence and malfeasance by VAMC employees. Even the leastinformed had notice by 1996 that the VAMC was under investigation for anunusually high number of cardiac-related deaths occurring during theperiod when their decedents died, and that a nurse there was the target ofthe investigation. As will by seen, this available information in duecourse triggered a duty to investigate. The "plaintiff need not know eachand every relevant fact of his injury or even that the injury implicatesa cognizable claim. Rather, a claim will accrue when the plaintiffknows, or should know, enough of the critical facts of injury andcausation to protect himself by seeking legal advice." Kronisch v. UnitedStates, 150 F.3d 112, 121 (2d Cir. 1998) (quotation omitted). "A claimdoes not accrue when a person has a mere hunch, hint, suspicion, or rumorof a claim, but such suspicions do give rise to a duty to inquire intothe possible existence of a claim in the exercise of due diligence." Id.(citation omitted). See also Drazan v. United States, 762 F.2d 56, 59(7th Cir. 1985) (holding that "knowledge of the government cause" wassatisfied for purposes of the statute of limitations "when a reasonablydiligent person in the tort claimant's position reacting to anysuspicious circumstances of which he might have been aware would havediscovered the government cause."); Maggio v. Gerard Freezer & Ice Co.,824 F.2d 123, 128 (1st Cir. 1987) (holding in fraud context that"`storm warnings' of the possibility of fraud trigger a plaintiff's duty toinvestigate in a reasonably diligent manner, and his cause of action isdeemed to accrue on the date when he should have discovered the allegedfraud.")(citation omitted)(emphasis in original). Once due diligenceshould have disclosed sufficient facts to connect the Government to theinjury, "the limitations period begins to run regardless of whetherplaintiffs make inquiries, and regardless of whether they are correctlyadvised." Gonzalez, 284 F.3d at 289.

To justify their delay, plaintiffs cite Stoleson v. United States,629 F.2d 1265 (7th Cir. 1980). In Stoleson, the Seventh Circuit held inthe medical malpractice context that the plaintiff's mere suspicion thatthe injury had been caused by the Government was insufficient to startthe limitations clock when the plaintiff could not garner enough medicalsupport for her claim. Id. at 1270. The plaintiff's cause of action onlybegan to accrue when that "suspicion ripen[ed] into knowledge of . . .causation." Id. at 1270-1271. According to the Stoleson court, "anyplaintiff who is blamelessly ignorant of the existence or cause of hisinjury shall be accorded the benefits of the discovery rule." Id. at1269.

Unfortunately, Stoleson cannot help plaintiffs. It has been limited bythe First Circuit as a case involving "a breakthrough in scientific ormedical understanding." Fidler v. Eastman Kodak Co., 714 F.2d 192, 200(1st Cir. 1983). No such breakthrough was required here for plaintiffs todiscover that Gilbert was being investigated for the murder of patientsat the VAMC.

Plaintiffs also cite Attallah v. United States, 955 F.2d 776 (1st Cir.1992). There, the plaintiffs sued the United States for the theft ofproperty lost when a courier was murdered by Government agents. Id. at778.

The facts in Attallah, however, are easily distinguishable. Thecourier's body was found partially decomposed in a Puerto Rican rainforest. Id. When one of the plaintiffs traveled to Puerto Rico to makeinquiries, the authorities there advised him "that they had no leads asto who was responsible for the criminal acts committed." Id. Thereafter,the plaintiffs neither heard, nor could have discovered, anything moreabout the cause of the courier's death until more than four years later,when a federal Grand Jury indicted two former Customs agents for themurder. Id. One month after the indictment, the Government contacted theplaintiffs with a request that they testify for the prosecution. Id.Approximately seven months later, the Customs Service received a letterfrom the plaintiffs claiming damages under the FTCA. Id.

In those circumstances, the First Circuit found that the plaintiffssimply had no reason, and could discover no reason through the exerciseof due diligence, even to guess that the United States through the tworogue Customs agents was responsible for the murder. Id. at 780. It wasonly when the indictment came down that the plaintiffs had any reason tosuspect that Government agents were responsible for the murder andrelated theft; thus, their action accrued only at that time. Id.

As the following discussion will show, all of the plaintiffs now beforethe court were in a much different position. By 1996, each plaintiff knew(at least) that an investigation into the unusually high number of deathsfrom cardiac arrests at the VAMC was under way, that their decedents hadsuffered injury or death in the VAMC supposedly of cardiac problemsduring the precise time frame under investigation, and that a nurse therewas the focus of theprobe. Thus, unlike in Attallah, evidence of Government culpabilitysurfaced within a short time of the deaths.

Plaintiffs are certainly correct that by 1996 they could not have knownall the details of the deaths, or been able to prove that Kristen Gilbertkilled their loved ones specifically by injecting them with lethal dosesof epinephrine. Even the Government with all its investigative resourcesdid not obtain an indictment until 1998.

But the discovery rule does not toll the limitations period until theplaintiff is able to prove her case. See Childers Oil Co. v. Exxon Corp.,960 F.2d 1265, 1272 (4th Cir. 1992) (noting that plaintiff "may not knowenough to win a verdict or even file a complaint on that first day, butthat is why the law gives him a reasonable limitations period toinvestigate."); Bradley v. United States, 951 F.2d 268, 271 (10th Cir.1991) ("To allow plaintiff to postpone accrual until he is passivelyinformed by an outside source that his injury was negligently inflictedwould serve to undermine the purpose of the limitations statute."). Asthe discussion below will show, the plaintiffs' knowledge of theinvestigation, the fact that it was targeting a nurse at the VAMC, andthat it was looking into cardiac-related deaths, put each of theplaintiffs on inquiry notice. Within two years, each was required to filean administrative claim, yet only Hudon, Brandt, and Cutting did so. Forthis reason, the court lacks subject matter jurisdiction over the otherclaims.

C. Isolated Ignorance

A final common issue may be disposed of here. Both plaintiffs McEwenand Lessard claim that only the knowledge of the named plaintiff isrelevant to the issue of when their claim began to accrue. In each oftheir cases, the record supports an argument that the named plaintiff,for unique reasons, happened to know less as a subjective matter aboutthe mounting evidence of Government culpability than other potentialadministrators and family members. Therefore, these plaintiffs claim thattheir ignorance-in-fact tolled the statute of limitations, regardless ofwhat the other potential administrators knew.

No support exists for this argument, and it flies in the face of bothof applicable authority and practicality. No statute of limitations wouldhave meaning if it were possible to avoid it simply by appointing aputative Rip Van Winkle as the estate administrator and plaintiff.Indeed, early last century, the Supreme Court found that the FederalEmployers Liability Act's similar two-year statute of limitations"evidence[d] an intention to set a definite limit to the period withinwhich an action may be brought under it without reference to theexigencies which arise from the administration of a decedent's estate."Reading Co. v. Koons, 271 U.S. 58, 63 (1926). This is in accord with theKubrick Court's pronouncement that "the purpose of the limitationsstatute . . . is to require the reasonably diligent presentation of tortclaims against the Government." Kubrick, 111 U.S. at 123. Thus, thediscovery rule does not require re-calculation of the statute oflimitations in light of the subjective knowledge, or ignorance, of eachpotential plaintiff. The exception applies only when the cause of actionis "inherently unknowable," Gonzalez, 284 F.3d at 289, not when it merelyhappens to be unknown by a particular potential plaintiff.


In what follows, each of the motions to dismiss will be analyzed inaccordance with the legal framework outlined above. The pivotal questionin each casewill be when, as a factual matter, sufficient informationwas available to the plaintiffs to reveal a connection between the VAMCand the deaths. Put differently, the central question will be: at whattime would a reasonably diligent person have had access to sufficientfacts to justify obtaining professional assistance and proceeding with aninquiry? As noted, for each of the plaintiffs, this time will be found tobe no later than when they became aware of the critical facts of theGilbert investigation.

A. Cutting (Civil Action No. 99-40065)

Kenneth Cutting ("Kenneth") had been hospitalized for some time at theVAMC with end-stage multiple sclerosis; he came down with a fever in lateJanuary, 1996. (Civil Action No. 99-40065, Docket 28, Exhibit B at3518). As a result, the Cutting family visited him at the hospital. Id.At the time of the visit, Kenneth seemed to be in no danger, and doctorsassured his wife and son that Kenneth was "getting well, he was gettingbetter." Id., Exhibit C at 49. However, on February 2, 1996, KristenGilbert telephoned Nancy Cutting, Kenneth's wife, at her home to informher that her husband had died. Id., Exhibit B at 3522. The deathcertificate listed "cardiac arrest" and "multiple sclerosis" as thecauses of death. Id., Exhibit E.

Nancy Cutting testified that Kenneth never had any heart problems orcardiac history that she knew of. Id., Exhibit B at 3520. When she heardthat he had died, she "was in shock . . . [b]ecause he was fine. I didn'tsee any reason why he would be dead at that time, you know, why he wouldbe passed away." Id. at 3522. Their son, Jeffrey Cutting ("Jeffrey")testified to his surprise as well, "if we were there the day before andhe was fine, how come the next day he just died just like that, I mean,there was a question about that." Id., Exhibit D at 43.

Nancy Cutting did not read any of the newspaper articles about theGilbert investigation. Id., Exhibit C at 65. However, on August 1, 1996,she saw a television news report showing a picture of Gilbert, "sayingthere was a nurse at the VA hospital in Northampton that was beinginvestigated." Id. at 66.3 This report captured Cutting's attentionbecause she immediately recognized the VAMC as the same hospital whereKenneth had died. Id. On August 1, 1996, Cutting contacted the VAMC"demanding to know exactly what ward and what shift were beinginvestigated regarding the higher than usual number of cardiac arrests,"and requested Kenneth's medical records. Id., Exhibit F. Unsatisfied withthe VAMC's response, Cutting contacted a lawyer. Id., Exhibit C at 66.

Cutting's first lawyer obtained Kenneth's medical records, and sentthem to her. Id. at 67. From these, Cutting learned that Gilbert waslooking after Kenneth the week of his death. Id. Plaintiff filed heradministrative tort claim with the Department of Veterans Affairs on May20, 1998.

Nancy Cutting's conduct provides a template for reasonable promptnessunder the discovery rule in these cases. She first had an indication ofimpropriety at the VAMC possibly involving her husband (beyond thesuspicious facts of his death) in August of 1996; she immediatelyobtained records and demanded an explanation.Receiving no satisfactory response, she contacted a lawyer and filed heradministrative claim well within two years.

The Government's argument that her claim was time-barred isunpersuasive. It is true, as defendant points out, that the Cutting claimwas facially time-barred because Kenneth died February 2, 1996, and theadministrative claim was not filed until after February 2, 1998.However, the only evidence available to this plaintiff of the cause ofher husband's injury prior to May 20, 1996 (two years before theadministrative claim was filed) was that (1) Kenneth had died; and (2)"cardiac arrest" was listed as one cause of death, despite the fact thatKenneth had no history of heart problems. As discussed above, thesefacts, alone, were insufficient as a matter of law to put plaintiff oninquiry notice. Without more, plaintiff was entitled to rely on the causeof death listed on Kenneth's death certificate.

As noted, the Cutting claim accrued on August 1, 1996, the date NancyCutting first had reason to know of the connection between her husband'sdeath and the acts of VAMC employees; plaintiff filed her administrativeclaim on May 20, 1998, less than two years later, in compliance with thestatute of limitations. Since the court has subject-matter jurisdictionover Civil Action No. 99-40065, the motion to dismiss that complaint willbe denied.

B. Rauch (Civil Action No. 99-30231)

Carl Rauch ("Carl") became a resident of the VAMC in February, 1989,and was transferred to the intensive care unit on October 1, 1995. (CivilAction No. 99-30231, Docket 18 at 1). He suffered a suddencardiopulmonary arrest on October 2, 1995. Id. On October 12, 1995, Carlsuffered two more heart attacks that led to his death. Id. at 1-2. Thedeath certificate listed "myocardial infarction," a sudden insufficiencyof blood supply to the heart, see Stedman's Medical Dictionary 868, 1167(26th ed. 1995), as the cause of death. Id., Docket 17, Exhibit C. Duringhis prior six and one-half years at the VAMC, Carl had no heartproblems. Id., Exhibit B at 44.

Plaintiff Francis B. Rauch ("Rauch") was almost immediately informed ofhis brother's death. Rauch had never visited Carl at the VAMC but hadkept informed of his condition, id. at 33, and was surprised at the causeof death. Id. at 44. Rauch felt that "through the years there was noexpectancy of [Carl] dying of a heart attack as far as I was concerned."Id.

Rauch was aware of newspaper accounts through the summer of 1996 to theeffect that there was an investigation ongoing at the VAMC. Id., Docket17, Exhibit B at 73. While admitting that he was generally aware of theinvestigation and that "yes, I read the articles," Rauch could notconfirm that he read any specific stories. Id. at 72-73, 75. Rauch was,however, aware in 1996 that "a nurse" at the VAMC was the target of theinvestigation. Id. at 74-76.

The Daily Hampshire Gazette, a Northampton newspaper circulatinggenerally in and around Hampshire county, published multiple in-deptharticles on the VAMC investigation in the summer of 1996. Severalarticles that were obviously available to Rauch offered a striking amountof detail.

A July 17, 1996, article with the headline "VA officials probe deaths"revealed that "[a] federal probe into `a higher than usual numbers ofdeaths' from cardiac arrest on one ward" of the VAMC was underway. Id.,Docket 17, Exhibit E. That article noted that "foul play" could not be"ruled in or ruled out" at that time. Id.

On August 1, 1996, an article with the headline "VA nurse said a focusof theprobe," disclosed that "investigators probing deaths at the U.S.Department of Veterans Affairs Medical Center are studying the role anurse played in the care of those that died." Id., Exhibit F. The articlenoted that while the unnamed nurse had not yet been charged with acrime, she was placed on leave "at about the same time that the VA'sOffice of Inspector General was called in to investigate what officialsfeared was a greater number of deaths due to cardiac arrest occurring ona particular ward during a particular shift than on others." Id. The samearticle made it known that the nurse in question had been arrested fortrespassing, breaking and entering, and possession of burglary tools, andthat her name appeared on the medical records of one veteran who hadunexpectedly died of a cardiac arrest. Id.

An August 8, 1996 article with the headline "Federal Grand JuryInvolved: Probe of VA Deaths Broadens," reported that a Grand Jury hadbeen taking testimony for about a month. Id., Exhibit G. Welch wasquoted, and admitted that the Government had "sufficient information to(have brought) it to a Grand Jury," that "local law enforcement officialswere asked to participate in the investigation based on their expertise,especially in homicide cases," and that the investigation was "focusingon deaths that occurred at the VA center between fall 1995 and winter1996." Id.

While Rauch admits to being familiar with the articles describing theinvestigation in general, he maintains that the "real trigger" —that is, the event that in his mind exposed the VAMC's responsibility forCarl's death — was the November 24, 1998, newspaper headlineannouncing Gilbert's indictment for murder. Id., Exhibit B at 58.

Unfortunately, a plaintiff's subjective state of mind does notdetermine the date of accrual of a cause of action under the discoveryrule. As the Supreme Court has noted, "the prevailing rule under the Acthas not been to postpone the running of the limitations period inmalpractice cases until the plaintiff is aware that he has been legallywronged." Kubrick, 444 U.S. at 121 n. 8. See also Attallah, 955 F.2d at780 ("The standard set forth by the discovery rule is an objectiveone.").

Once Rauch became aware of the investigation at the VAMC, he had a dutyto "protect himself by seeking advice in the medical and legalcommunity." Kubrick, 444 U.S. at 123. By the summer of 1996, Rauch knewthat a nurse was being investigated in connection with the unusually highnumber of cardiac arrests on a particular ward in the VAMC, during aparticular time. Like Nancy Cutting, Rauch had a reasonable opportunity toinquire further once these indications of Government responsibility cameto light and to file a claim within two years, i.e., by the summer of1998 at the latest.

This conclusion is supported by Chief Judge Young's opinion in Heinrichv. Sweet, 44 F. Supp.2d 408 (D.Mass. 1999). There, Judge Young found thatthe plaintiffs' claims were not barred by the statute of limitations,even though there were existing articles and reports which would haveraised plaintiffs' eyebrows. Id. at 416. In Heinrich, however, therelevant information appeared in rather obscure articles or reports;there was no evidence that the plaintiffs had either read them or hadreasonable access to them. Id. at 416-417. Judge Young held that"reasonable diligence does not require plaintiffs to scour medicaljournals." Id. at 417.

In this case, the record is clear that Rauch actually did read some ofthe articles the Government points to, had access to others and was awareof the material facts of the investigation. Thus, his claimaccrued, evenwith the help of the discovery rule, by August 1996 at the latest. Sinceno administrative claim was filed until December 23, 1998, more than twoyears after August, 1996, this court has no subject matter jurisdictionover Civil Action No. 99-30231. The motion to dismiss will be allowed.

C. Siska (Civil Action NO. 00-30080)

Angelo Vella ("Vella") checked into the VAMC in February, 1996, aftergoing to the emergency room when his stepdaughter, JoAnn Sell ("Sell"), anurse, noticed that he looked "swollen and edematous" and "was havingdifficulty breathing." (Civil Action No. 00-30080, Docket 19, Exhibit Aat 876). On February 4, 1996, Sell received a phone call from the VAMCadvising her that Vella had suffered a cardiac arrest. Id., at 878. Thefamily immediately traveled to the VAMC to see him. Id.

Unlike the other plaintiffs, Vella survived his cardiac incident foralmost a year, and was able to inform his family how it happened,providing exact details as to Gilbert's involvement.4 Several membersof the family recounted what Vella told them and were important witnessduring the Gilbert criminal trial. According to Sell, Vella "was quitecognizant. . . . He was very alert, not — he didn't seem to beconfused at all." Id., Docket 19, Exhibit A at 883.

Mary Vella, Vella's other daughter ("Mary"), described her conversationwith Vella in the following way:

Q: When you say that he said, "It happened when she [Gilbert] put something in my arm," did he describe what that process was, what had happened?

A: He said that, well, when she put something in his arm his legs began to become numb and his arms became numb and he felt like his heart was going to explode.

Id., at 860. Sell recounted the conversation in her Grand Jurytestimony, as follows:

A: He said the nurse was, had come in, and she was putting some kind of medication in his IV with a syringe which he felt was a routine thing that she was supposed to do. He didn't know. And he said that during the period while she was doing the injection, he felt really flushed and hot, and then he started to feel stomach pain and chest pain, and he just remembers another nurse, Frank, coming in the room and yelling something about taking the IV out, and then everything kind of went foggy and he didn't remember anything after that.

Q: When you heard the news, I mean, how did you react to that?

A: I thought it was kind of really strange. I said, I thought to myself either it's an awful coincidence or something isn't quite right here.

Id., Docket 19, Exhibit D at 8-9.

Vella's wife, Carol Vella ("Carol") recalled what Vella told her thenext day about the incident: "he said he felt Kristen Gilbert made anerror and accidently injected him with the wrong stuff and that she hadpersonal problems and he did not want to jeopardize his care at the reporting this." Id., Exhibit E. Vella's brother-in-law, Siska, who isalso the named plaintiff and executor of Vella's estate, visited Vellaafter the cardiac arrest.During that visit, Vella "complained of aburning sensation in his arm after receiving an injection from a nurse."Id., Exhibit F. Siska noted that "[m]y sister Carol, and my nieces wereaware of [the incident]." Id.

After Vella was discharged, Carol received a call from aninvestigator, who identified herself and asked Carol questions about whathappened that night. Carol explained that she was not present, and passedthe phone to Vella. Vella indicated that he got "good care" at the VAMC,and declined to get involved. Id., Exhibit G at 26-27. Carol informedSell of this call, and Sell confronted Vella. Sell testified in the GrandJury proceedings:

My mom had indicated that there was some, someone had called her regarding an incident at the VA, and they wanted to talk to [Vella]. I asked [Vella] what it was about, and he said they were talking about when he had the cardiac arrest and with the IV, flushing the IV, or whatever the nurse was doing with the IV. And I said to Angelo: "You know, it's really bizarre, and it's very unlikely that you would have an arrest during a procedure like that of flushing an IV with normal saline. You really should just talk to them. Maybe it's nothing, but you really should, you know, talk to these people," and he refused.

Id., Exhibit D at 10. Vella explained to his stepdaughter that "[h]e wasvery happy with his care at the VA. He didn't want anything to disruptit. He, he just felt if he made any waves, he, he felt he wouldn't getthe same kind of care." Id.

With these facts, it is clear that Vella knew (1) that he had beeninjured and (2) that the cause of his injury was an injection of somesubstance by Kristen Gilbert, by early February 1996. Vella's family knewthe same within hours or days: Vella felt "like his heart was going toexplode" as Gilbert was injecting him, and he had a heart attack. Withinseconds of being injured, Vella was in "possession of the critical factsthat he has been hurt and who has inflicted the injury." Kubrick, 444U.S. at 122. A straightforward application of Kubrick confirms that thiscause of action accrued on February 4, 1996, when Vella described thedetails of Gilbert's attack to his family. From that date he had twoyears to file an administrative claim. No such claim was filed, however,until March of 1999.

Plaintiff argues that, until Gilbert's indictment, neither Vella norhis family members realized that he had been the subject of a criminalattack, or were sure that the heart attack did not occur naturally.Indeed, unlike the other decedents, Vella did have preexisting heartproblems. (Docket 22, Exhibit 4 at 39). While it may be true thatplaintiff's knowledge fell short of subjective certainty, the SupremeCourt has made it clear that Congress did not intend to postpone theaccrual of a claim until plaintiff is subjectively aware that he waswronged. Kubrick, 444 U.S. at 123. As noted above, the cause of theinjury must have been "inherently unknowable" before the discovery rulewill apply. When the victim himself survives an attack, and describes itto family members with the level of specificity provided by decedent inthis case, the discovery rule is simply unavailable to extend thelimitations period.

In sum, since the court has no subject-matter jurisdiction over CivilAction No. 00-30080, the motion to dismiss must be allowed.

D. McEwen (Civil Action No. 99-30232)

Ralph McEwen ("Ralph") presented himself to the VAMC on December 13,1995, with complaints of shortness of breath. (C.A. 99-30232, Docket 18at 1).At 6:15 p.m., he developed ventricular tachycardia and sufferedventricular fibrillation, but was successfully defibrillated. Id. At 8:00p.m., Ralph had another similar cardiac episode and died. Id. at 1-2.

At the time of Ralph's death, Ralph's brother, Warren McEwen ("Warren")was acting on behalf of the estate. Id., Docket 17, Exhibit B at 47, 66.Warren, living in Florida, was officially designated Ralph's "First nextof Kin," and was the only individual who Ralph indicated should becontacted by the VAMC in an emergency. Id., Exhibit C. Warren came toMassachusetts after Ralph's death for "a couple weeks," and Warreninformed the VAMC of the name of the funeral home. Id., Exhibit D.

In September, 1996, Warren was contacted by the Associated Press abouthis brother's death as part of the media inquiry into the ongoinginvestigation. As a result, Warren wrote a letter to the Department ofVeterans Affairs dated September 30, 1996. The letter included thefollowing passage:

On December 13, 1995, Ralph L. McEwen died at the Northampton V.A. Hospital, Northampton, Massachusetts. I was named as his next of kin and traveled to Massachusetts to handle his funeral. . . . My main concern with my brother's death was brought up by a contact last week with a phone call from the Associated Press in Springfield, Massachusetts. I was informed that there is some questionable aspects to the deaths of a number of veterans being treated in the Northampton facility over the past few years prior to Ralph's death in December 1995. These deaths appear to involve an unusually high number of heart attacks . . . . If, as the reporter from the Associated Press informed me that a governmental review of the Northampton medical practices is being reviewed I request the results of this study be sent to me. I hope I will receive a response to this inquiry in the near future.

Id., Exhibit F. Bruce Gordon, the Medical Center Director, replied byletter on November 20, 1996. His only response to Warren's inquiry aboutthe investigation was contained in the following paragraph:

Regarding the telephone call you received from a member of the Associated Press in Springfield, Massachusetts claiming that there are some questionable aspects to a number of death of veterans treated at Northampton, I can only respond that an investigation is being conducted and consequently I am unable to comment further at this time. No results of the investigation may be released until the investigation is completed.

Id., Exhibit G. Warren does not deny that he received this letter.

This correspondence indicates that by the end of 1996, around the timeWarren received the letter from Director Gordon, the cause of RalphMcEwen's death was no longer "inherently unknowable." By that time,Warren had knowledge that an investigation was going forward into theunusual number of cardiac related deaths at the VAMC, and that there weresome "questionable aspects" related to his brother's death. Warren's wiferemembered that Kristen Gilbert was Ralph's nurse, id., Docket 19,Exhibit D at 56, and Warren could have learned from the newspaperaccounts that a nurse at the VAMC was under investigation. There can belittle question that at this time, Warren had "some indication that theremay have been a government cause of the injury." Diaz, 165 F.3d at 1340.To preserve the rights of the estate, he had a duty to inquire furtherand file a claim within the following two years.

Plaintiffs argue that, while Warren should perhaps have known of thelikely connection between the VAMC and Ralph's death by the end of 1996,the lawsuit's accrual date should be calculated based on the knowledge ofthe actual plaintiff. In this case, Ralph's son, Michael McEwen("McEwen"), became the administrator of Ralph's estate, not Warren.McEwen contends that he never heard about Warren's exchange with theDepartment of Veterans Affairs and claims that he knew nothing whatsoeverabout any investigation until the indictments were announced in 1998.Docket 17, Exhibit B at 86.

McEwen was able to maintain this ignorance because he had not seen hisfather for "a couple of years" before his death, although he lived 45miles from the VAMC in Shirley, Massachusetts. Id. at 19. McEwen nevervisited because, as he explained, "[t]here was some hard feelings aboutpeople in [Ralph's] life that he had in his life now. It was just betterto keep that separate." Id. at 34. Although they spoke on the telephonebetween once a month and once every four months, id. at 35, McEwen wasnot listed as a person to contact in case of emergency, and did not havemuch to do with arranging the funeral. McEwen confessed that "[Ralph] andhis brother were very close. And at the time I was a little bitundependable." Id. at 47.

Thus, only Warren was contacted by the Associated Press, and the recordis devoid of evidence that Michael McEwen knew about the VAMCinvestigation. McEwen claims that he did not read the Daily HampshireGazette, and denies having any other knowledge of the investigation.Prior to 1998, McEwen knew only that his father had died of a heartattack at the VAMC. Although he was "surprised" because he thought hisfather "looked great and wasn't heavy, quit smoking a few years back,"id. at 48-49, that surprise was not sufficient in itself to put McEwen oninquiry notice.

Unfortunately, the authorities make clear that the discovery rule ismeant to protect "blameless ignorance," not ignorance achieved byisolation from the decedent. Warren had accumulated information about theinvestigation and his brother's death, and information about the pendencyof the investigation was readily available, by the end of 1996.Nevertheless, plaintiffs in this case did not file their administrativeclaim until March 18, 1999, more than two years after their claimaccrued. The motion to dismiss Civil Action No. 99-30232 must thereforebe allowed.

E. Skwira (Civil Action No. 00-30192)

Edward Skwira ("Edward") started rehabilitative treatment for alcoholabuse in February, 1996, and was transferred to the VAMC on February 15,1996. (Civil Action No. 00-30192, Docket 16, Exhibit B at 5267-5268).That day, Edward experienced a severe cardiac event, a dissectinganeurysm, id., Exhibit C at 12, and the family was told to prepare forhis death. Id., Exhibit B at 5277. Edward died on February 18, 1996.Id., Docket 17 at 1.

The plaintiffs are members of Edward's family, who were with Edwardthroughout this time. They are Statia Skwira, Edward's widow, asadministratrix of the estate, Marsha Yarrows, Edward's daughter("Yarrows"), Edward Skwira, Jr., Edward's son ("Edward Jr."), and PhillipSkwira, Edward's other son ("Phillip").

Following Edward's death, the family discussed having an autopsy done.Id., Docket 16, Exhibit C at 16. They were surprised that Edward had diedof heart complications at the VAMC when he was not admitted for heartproblems, and theysuspected that Edward's care at the VAMC was inadequate. Id., Exhibit Dat 16.

In the summer of 1996, Yarrows began reading about the murderinvestigation at the VAMC in the newspaper. Id., Exhibit B at 9888. Shetestified that after reading those reports, "it was like a lightbulb wentoff because I knew that was exactly what had happened to my father. . . ."Id. Yarrows explained that after reading the newspaper clippings,

It — it really bothered me, and even though my father's name wasn't mentioned as being one of the people who was investigated, I knew right then and there that that was exactly what had happened to him, that he was one of the people that they must be investigating the death of.

Docket 16, Exhibit B at 10093.

As it turned out, Yarrows was not the only party wondering whetherEdward had been murdered. In October 1996, investigators, including StateTrooper Kevin Murphy ("Trooper Murphy") and Assistant United StatesAttorney Welch ("Welch"), met with the Skwira family and soughtpermission to exhume Skwira's body. Trooper Murphy testified that at thismeeting, "we explained to her that we had reviewed the case and that ourmedical people had some concerns that perhaps Mr. Skwira did not die ofnatural causes." Id., Exhibit H at 12. Welch added that he "told herthere had been an increase in deaths and that people were looking at it,to determine whether it was natural or — or something else had beengoing on." Id., Docket 18, Exhibit D at 29.

In essence, Welch relayed that investigators needed "to figure outwhether something wrong had happened, [but] . . . it didn't necessarilymean that something wrong had not [sic] occurred to Edward." Id., Docket18, Exhibit D at 23. Welch tried to talk about the Government'ssuspicions with Skwira as neutrally as possible because he "did not wantto heighten her expectations or make her believe that somethingsuspicious had happened when, you know, just two weeks later we couldhave an autopsy that completely ruled out any suspicious cause of death."Id. at 24. The family gave them permission to exhume and autopsy the bodyon November 7, 1996. Id., Docket 16, Exhibits J and K.

In November of 1996, the day after the autopsy and exhumation, Welchattended Edwards' reinterrment. Id., Docket 18, Exhibit D at 26. WhenSkwira asked Welch about the results of the autopsy, he informed her that"the death certificate as printed was incorrect." Id. at 26-27. Welchemphasized that Edward "didn't die of a heart attack," although hequickly added that "did not mean that he did die of — of unnaturalcauses. . . ." Id. at 27. Welch promised to keep Skwira informed. Id.

In July of 1997, Welch met again with Skwira and Phillip. In thismeeting, he informed them that the authorities "had found ketamine incertain toxicological samples for Edward Skwira, that the presence of theketamine was a surprise." Id. at 10. The ketamine in Edward's body wasnot a lethal dose, however, and Welch mentioned it to Skwira mainly toask her about possible reasons that Skwira might have ketamine in hissystem, and to keep her informed. Id. at 11. Skwira re-inquired about theresults of the autopsy generally, and Welch re-affirmed that the deathcertificate was incorrect, although the Government still could not ruleout that Edward had died of natural causes. Id. at 14-15. The Julymeeting was essentially a fact gathering meeting; at the time, theGovernment wanted to know Edward's entire medical history. Id. at 30.

Until 1998, Skwira and her family took no action on their own andrelied on Welch. Skwira reports that,

We cooperated with them completely throughout their investigation, and during the trial. We supplied all information they requested. We believed that they were working diligently on whatever they were doing, and we were told by them that they would provide us with such evidence as they could about the results of the autopsy when it was available to them. They also said they would tell us about the results of their investigations when it was possible to do so.

Id., Exhibit C ¶ 8. Skwira called regularly to check with Welch but didnot conduct an investigation of her own or consult with a lawyer. Id.

The Skwira family was not conclusively told that Edward had not died ofnatural causes until June, 1998. Id., Exhibit D at 6. This was also thefirst time they were told that epinephrine was found in Edward's body.Id. at 7. Plaintiffs contend that the discovery rule tolled the statuteof limitations until this time. They filed their administrative claim onOctober 8, 1999.

Unfortunately, the clear legal standards discussed above make itunavoidable that plaintiffs' cause of action accrued no later thanSkwira's conversation with Welch in November, 1996.

In the summer of 1996, Yarrows became aware of the investigation at theVAMC and began to suspect that her father had died from foul play.Indeed, it would be hard to fashion a metaphor that more clearly conveysthe moment when a cause of action will accrue for purposes of thediscovery rule than when, as Yarrows put it, "a light bulb went off,"suggesting VAMC responsibility for her father's death.

The circumstances outlined above, giving plaintiffs detailed knowledgeof the ongoing investigation, all confirm that the cause of injury was byno means inherently unknowable by the end of 1996.

As the First Circuit has recently stated, "the limitations periodbegins to run regardless of whether plaintiffs make inquiries, andregardless of whether they are correctly advised." Gonzalez, 284 F.3d at289. The limitations clock does not toll pending the outcome of aGovernment investigation. "Once a plaintiff knows of the injury and itsprobable cause, he/she bears the responsibility of inquiring among themedical and legal communities about whether he/she was wronged and shouldtake legal action." Id. at 289. Plaintiffs knew in 1996 that Edward didnot die as the VAMC said he did, and that there was an investigationtargeting a VAMC nurse over the unusually high number of cardiac relateddeaths. Their "ability to investigate" was not "thwarted by ignorance ofthe details. . . ." Rotella, 528 U.S. at 557.

Admittedly, plaintiffs would not have been able to prove (or possiblyeven learn) in 1996 that Kristen Gilbert had killed Edward specificallyby injecting him with epinephrin. However, it is unquestioned that withinthe two-year statute of limitations the plaintiffs could have learnedenough to file a claim against the VAMC, like Cutting and the otherplaintiffs not subject to this motion. See Childers Oil Co. v. ExxonCorp., 960 F.2d 1265, 1272 (4th Cir. 1992) (observing that plaintiff "maynot know enough to win a verdict or even file a complaint on that firstday, but that is why the law gives him a reasonable limitations period toinvestigate."). Plaintiffs did not file their administrative complaintuntil October 8, 1999, well more than two years after the claim accruedin 1996. Therefore, this court is without subjectmatter jurisdiction over Civil Action No. 00-30192 and must allow theGovernment's motion to dismiss.

F. Lessard (Civil Action No. 00-30076)

Stanley Jagodowsi ("Stanley") was a diabetic, and was admitted to theVAMC on July 21, 1995 for post-operative care following an above-the-kneeamputation. (Civil Action No. 00- 30076, Docket 14, Exhibit A at176-177). Stanley was found on the floor August 21, 1995 after sufferinga heart attack, and died a little after midnight on August 22, 1995.Id., Docket 16, Exhibit A at 2.

Stanley was survived by his wife, Claire Jagodowski ("Jagodowski"), andhis daughter Susan Lessard ("Lessard"). After the amputation, Lessardthought that Stanley "was looking great," that he was "wonderful . . .his mood was better. He was eating. He was generally happy. His pain wasgone." Id., Docket 16, Exhibit B at 41. Plaintiff was surprised byStanley's death because he had been doing well, id. at 64-65, but sherecognized that he was not a robust man. In addition to the amputation,he suffered from adult-onset diabetes and may have suffered from a strokein 1995. Id. at 34-38.

Jagodowski was interviewed by the media in connection with the Gilbertinvestigation, and was quoted twice as, in essence, "wanting answers." OnJuly 18, 1996, the Springfield Union News reported as follows:

Family members of patients whose deaths are being probed by federal investigators at the U.S. Veterans Affairs Medical Center in Leeds wondered yesterday whether their kin may have been victims of foul play, but officials would neither confirm nor deny that criminally administered drugs could have caused a rash of fatal heart attacks at the hospital.

"If there's anything fishy, I want to know," said Claire Jagodowski of Holyoke. Her husband, Stanley, a 66-year-old Korean War Army veteran, died of cardiac arrest at the medical center last August 22

But, sources at the sprawling federal facility said that word has circulated there about inventory discrepancies involving the drug epinephrin.

Dr. John Zimmerman, a cardiologist at Medical West in Chicopee, said the drug epinephrin, when injected, can cause cardiac arrest in high dosage.

Id., Docket 14, Exhibit F. The evening of July 18, 1996, Jagodowski wasfeatured in an 11:00 Channel 22 news story in Springfield. According tothe transcript, the broadcast proceeded as follows:

Dan Elias, anchor: In other news tonight, a Holyoke widow wonders this evening if the cause of her husband's death is suspicious. Sixty-six-year-old Claire Jagodowski still mourns the loss of her husband Stanley. He died last year while at the VA hospital in Northampton. An unusually high number of heart attack deaths at the hospital has sparked a federal investigation. Jagodowski says, although her husband had many illnesses, he did die of a heart attack, and now she wonders.

Claire Jagodowski (Husband Died At Veterans Affairs Hospital): Care was not free. Most people are — most of the people up there are compassionate individuals. However, there are some that have mean streaks. And not knowing what floor this occurred on and what ward, that I'm very interested to find out, where these people were dying.

Elias: Federal investigators were expected back on hospital grounds next week to further their probe.

Docket 14, Exhibit G.

Jagodowski was also interviewed by Special Agent Timothy Bond ("Bond")on August 30, 1996. Jagodowski told him she was contacted by "Brad Smithand the newspapers in Springfield, Holyoke, Boston Herald and Channel22," and "by a woman regarding a Class Action Suit," and that Claire "hadseen the articles in the newspapers about Ward C." (Docket 14, ExhibitD). Jagodowski informed Bond that Gilbert was one of Stanley's nurses.Id.

Jagodowski's memory of these interviews, and of what she knew in 1996,was hazy during her deposition. Id., Docket 16, Exhibit C at 40-52.Similarly, Lessard could not recall whether she was aware of the Gilbertinvestigation in 1996, and could not recall whether her mother had toldher about any of her news interviews or appearances. Id., Exhibit B at55-59. However, neither denied that the interviews took place, that theywere aware of the investigation, or that Jagodowski read the articles inwhich she was quoted. Jagodowski also did not deny that she spoke withAgent Bond or dispute his version of the substance of theirconversation.

Thus, given these interviews, it cannot be doubted that Jagodowskiknew: (1) that an investigation was under way at the VAMC; (2) that itcentered on Gilbert; (3) that Gilbert was Stanley's nurse; (4) that theremight be something "fishy" about the rash of cardiac-related deaths onWard C; (5) that some persons were contemplating a class action lawsuit,and (6) that the drug epinephrine was suspected. In light of thisinformation, it cannot plausibly be argued that the cause of Stanley'sdeath was inherently unknowable as of late 1996.

Unfortunately, plaintiff did not file her administrative claim untilSeptember 29, 1999. Therefore, this court has no subject matterjurisdiction over Civil Action No. 00-30076, and the claim must bedismissed.


For the reasons set forth above, defendant's motion to dismiss as toplaintiff Cutting (Civil Action No. 99-40065) is hereby DENIED.Defendant's motions to dismiss as to plaintiffs Rauch (Civil Action No.99-30231), Siska (Civil Action No. 00- 30080), McEwen (Civil Action No.99-30232), Skwira (Civil Action No. 00-30192), and Lessard (Civil ActionNo. 00-30076) are hereby ALLOWED.

This court's close familiarity with the suffering already endured bythe families of some of these plaintiffs makes these orders of dismissalespecially distasteful. Unfortunately, the rulings appear to be mandatedby controlling authority. Nevertheless, since the decisional lawgoverning the discovery rule is less than crystal clear on all points,and appears to be continuing to evolve, counsel may want to consider thepossibility of appeal with special care.

Separate orders will issue.


For the reasons stated in the accompanying Memorandum, defendant'smotion to dismiss (Docket No. 28) is DENIED. The clerk will set a datefor a status conference to set a schedule for future proceedings.


For the reasons stated in the accompanying Memorandum, defendant'smotion to dismiss (Docket No. 17) is ALLOWED.The clerk will enter judgment for the defendant.


For the reasons stated in the accompanying Memorandum, defendant'smotion to dismiss (Docket No. 19) is ALLOWED. The clerk will enterjudgment for the defendant.


For the reasons stated in the accompanying Memorandum, defendant'smotion to dismiss (Docket No. 17) is ALLOWED. The clerk will enterjudgment for the defendant.


For the reasons stated in the accompanying Memorandum, defendant'smotion to dismiss (Docket No. 16) is ALLOWED. The clerk will enterjudgment for the defendant.


For the reasons stated in the accompanying Memorandum, defendant'smotion to dismiss (Docket No. 14) is ALLOWED. The clerk will enterjudgment for the defendant.

1. Another lawsuit, arising out of the death of Henry Hudon, wasfiled even earlier, in 1998, C.A.98-30231, and likewise is not thetarget of any motion to dismiss. Gilbert was eventually found guiltyof murdering Henry Hudon.

2. Indeed the Government's proposal is the rule in Massachusetts. TheCommonwealth recognizes no "discovery rule" in the wrongful deathcontext; the limitation period starts to run upon death, with noexceptions. Pobieglo v. Monsanto Co., 402 Mass. 112, 116 (1988).

3. As noted below, Exhibit F of document 28, Civil Action 99-40065,shows that Cutting contacted the VAMC for more information about theinvestigation on August 1, 1996. Since Cutting's testimony that shefirst saw the television report in the first week of August has notbeen challenged, the court infers that Cutting viewed the news reporton or about August 1, 1996.

4. Vella ultimately died on February 2, 1997.

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