Skwira v. United States

344 F.3d 64 (2003) | Cited 142 times | First Circuit | September 15, 2003

In unusual and tragic circumstances, this case requires us to apply a "discovery rule" to the issue of claim accrual under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671-2680.


On February 15, 1996, Edward Skwira, a decorated World War II veteran, entered the Veterans Affairs Medical Center ("VAMC") near Northampton, Massachusetts, for the treatment of chronic alcoholism. Three days later, Skwira unexpectedly died, apparently of natural causes. Five years later, on March 14, 2001, a federal jury convicted Kristin Gilbert, a former nurse at the VAMC, of murdering Skwira and three other VAMC patients. Prosecutors claimed that Gilbert killed her victims by injecting them with lethal doses of the stimulant epinephrine to simulate a natural death. Investigators believe that Gilbert may be responsible for several other deaths at the VAMC, apart from the four for which she was convicted.

As a result of the deaths at the VAMC, Skwira's wife and children, along with the survivors of five other alleged victims of Gilbert, sued the United States under the FTCA seeking compensation for the loss of their loved ones. 1 The district court consolidated the six cases for the purposes of pretrial management, 2 and the government eventually moved to dismiss the lawsuits on statute of limitations grounds. The district court granted the motion to dismiss with respect to five of the cases, including the Skwira family's, holding that these five sets of plaintiffs had failed to file compulsory administrative claims within two years after their claims had accrued. See 28 U.S.C. § 2401(b). The Skwira family now appeals the dismissal of their complaint. 3 After a careful review of the record and controlling case law, we conclude, as did the district court, that the Skwira family's claim is time-barred.


In early February 1996, Skwira was admitted to an in-patient substance abuse treatment facility in Worcester, Massachusetts, for the treatment of chronic alcoholism. On February 15, he was transferred to the VAMC and placed in the hospital's Ward C, where Gilbert was working. Later that day Skwira took a drastic turn for the worse, suffering from an apparent catastrophic cardiac event. He was transferred for further tests to the Baystate Medical Center in Springfield, Massachusetts. Doctors at Baystate told the Skwira family that he was dying of natural causes - including a heart attack and dissecting aneurysm - and that no medical or surgical intervention could save him. Skwira was returned to the VAMC where he died on February 18. The immediate causes of death were listed on his death certificate as "dissecting aneurysm," "inferior wall myocardial infarction," and "arrythmia" [sic]. No autopsy was performed.

Later that spring, the Department of Veterans Affairs Office of the Inspector General, assisted by the U.S. Attorney's Office and the Massachusetts State Police, began a criminal investigation into the unusually high number of deaths on Ward C during late 1995 through early 1996. By summer 1996, articles had started to appear in local newspapers describing an ongoing inquiry into suspicious deaths at the VAMC. In its opening sentence, one article identified "[a] federal probe into 'a higher than usual number of deaths' from cardiac arrest on one ward." The article quoted the hospital's acting director as refusing to rule out "foul play or malpractice." Another published account mentioned an investigation into the untimely death of a thirty-five-year-old patient in Ward C. That same article indicated that a nurse was a focus of the government's probe. In early August, the U.S. Attorney's office issued a short press release confirming that, in fact, there was a grand jury investigation underway. The local press reported that the grand jury had been taking testimony for about a month, and that the investigation was "focusing on all deaths that occurred at the VAMC between fall 1995 and winter 1996."

Beginning in September or October 1996, investigators started to approach the families of individuals who had unexpectedly died in Ward C and asked permission to exhume the bodies of the deceased and to perform autopsies. Skwira's family was the first to be approached. Assistant United States Attorney William Welch and Massachusetts State Trooper Kevin Murphy met with them. "We advised them," according to Murphy, "that we were looking into deaths at the Veterans Hospital. We advised them that we had some suspicions that we would like to clear up by exhuming Edward Skwira." Welch and Murphy sought and obtained permission from Statia, Skwira's widow, to exhume Skwira's body and perform an autopsy. Welch explained that his office was "looking at a number of deaths at the VA Medical Center," and that "there had been an increase in the number of deaths and there was some question as to why that increase had occurred." Skwira's family responded that they were familiar with the press reports concerning an investigation into suspicious deaths at the VAMC, but that this was their first actual indication that Skwira's death was one that the government was investigating.

The family gave consent to exhume Skwira's body on November 7. The body was disinterred and immediately autopsied, with the heart and other internal organs removed for safekeeping and further testing. The day after the autopsy, Welch attended Skwira's reinterment with Statia and Yarrows. When Statia asked Welch about the results of the autopsy, he informed them that "the death certificate as printed was incorrect." He told them that Skwira "didn't die of a heart attack," although he then added that this "did not mean that he did die of unnatural causes." Welch promised to keep the family informed about the progress of the investigation.

Over the next two years, the government continued its investigation and built its criminal case against Gilbert who had already been arrested in October 1996, before Skwira's autopsy, and charged with phoning bomb threats to the VAMC. 4 Statia would call Welch and other investigators regularly - approximately every four to six months - to check on the status of the investigation into Skwira's death. In response to these calls, Welch would tell her that he "couldn't really tell her other than what [he] had already told her in the past."

In July 1997 Welch scheduled a meeting with the family to inform them that the chemical ketamine had been inexplicably found in Skwira's body. Skwira's medical records contained no indication that ketamine - a powerful anaesthetic - had ever been ordered for him. Welch asked the family about any medical history not reflected in the hospital's records. He explained that further investigation was necessary to determine whether ketamine had been lawfully administered, or if it had been administered "out of error, oversight, or negligence." At this meeting, Statia brought up the November 1996 autopsy. Welch explained once again that the death certificate was not correct as stated. He again added, however, that simply because the death certificate was not correct did not mean that Skwira had died of unnatural causes. He told them that the investigation would continue.

During the months that followed, the government continued to test the heart and tissue samples removed during the autopsy. Investigators suspected that Gilbert had used epinephrine to kill her victims, but the forensic technology and protocols necessary to measure epinephrine toxicity in dated tissue samples had yet to be perfected. As the district court noted in its opinion, "[e]pinephrine occurs naturally in the body as adrenaline, and investigators found it difficult to isolate toxicological evidence that a particular patient had been killed with a lethal injection by examining tissue samples exhumed months or years after the patient's death." Cutting, 204 F. Supp. 2d at 220. Hence the government was obliged to invest significant resources to develop adequate epinephrine testing protocols and research methodologies which, if used at trial, would ultimately have to withstand Daubert scrutiny. 5

The government's investment was eventually fruitful. On June 8, 1998, Welch and Murphy met with the family and informed them for the first time that Skwira had not died of natural causes. Toxicological tests had conclusively determined that Skwira had died of epinephrine poisoning. Welch and Murphy also expressed their belief that Gilbert had murdered Skwira, and they indicated that they would present evidence of Skwira's murder to a grand jury in seeking an indictment for first degree murder. Finally, Welch told the Skwira family that investigators had excluded the possibility of a legitimate administration of ketamine and that the drug's presence was further confirmation that Skwira had been poisoned while at the VAMC.

In November 1998 Gilbert was indicted and charged with several counts of murder and assault with intent to murder. The indictment was sealed for seven days so that the families of the victims could be informed. Following a lengthy jury trial, Gilbert was convicted of three counts of first degree murder (including Skwira's), one count of second degree murder, and other lesser charges. She is currently serving a life sentence without the possibility of parole.


The Federal Tort Claims Act's statute of limitations provides, in pertinent part, that "[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." 28 U.S.C. § 2401(b). To facilitate the filing of administrative claims against government agencies, the Department of Justice has developed a standardized form, SF-95, which satisfies the statute's notice of claim requirement. A potential claimant has two years after her claim accrues to complete and submit this two-page form. See 28 C.F.R. § 14.2(a); Corte-Real v. United States, 949 F.2d 484, 485 (1st Cir. 1991). We have previously noted that the burden of preparing this form is minimal. See Santiago-Ramirez v. Sec'y of Dept. of Def., 984 F.2d 16, 19 (1st Cir. 1993) ("This Circuit approaches the notice requirement leniently."). The claimant need only indicate on the SF-95 "(1) sufficient information for the agency to investigate the claims, and (2) the amount of damages sought." Id.

The Skwira family filed its SF-95 form and supporting materials on October 21, 1999. The Veterans Administration notified the family in correspondence dated May 18, 2000, and July 17, 2000, that the family's administrative claims had been denied. 6 The Skwira family subsequently filed the instant action in the district court on October 26, 2000. Listed as plaintiffs were Statia Skwira (as administratrix of Skwira's estate and in her own right), and Skwira's three adult children - Philip Skwira, Edward Skwira, Jr., and Marsha Yarrows. The complaint sounded in negligence, 7 and sought damages for wrongful death, conscious pain and suffering, personal injury, loss of consortium, and negligent infliction of emotional distress.

Soon after the complaint was filed, the litigation was stayed pending the outcome of Gilbert's criminal trial. Once Gilbert was convicted in March 2001, the parties conducted limited discovery on the issue of the plaintiffs' compliance with § 2401's two-year filing requirement. After the completion of this limited period of discovery, the United States moved to dismiss the complaint on the ground that the plaintiffs' administrative claim had not been timely filed. The government argued that the Skwira family's claim accrued at the time of Skwira's death. In the alternative, the government argued that the claim accrued in October 1996, when the investigators first approached the family and asked permission to exhume and autopsy Skwira's body as part of an ongoing investigation into suspicious deaths at the VAMC. In response, the Skwira family contended that their claim did not accrue until June 8, 1998, when they were told for the first time that Skwira had died as a result of an illegally administered dose of epinephrine.

On June 11, 2002, the district court, in a thorough and well-reasoned opinion, granted the government's motion to dismiss. After canvassing the background law, the court framed the issue before it:

The pivotal question in each case will be when, as a factual matter, sufficient information was available to the plaintiffs to reveal a connection between the VAMC and the deaths.

Cutting, 204 F. Supp. 2d at 227-28. The court determined that for the Skwira family, that date was November 26, 1996 - the day after the autopsy - when the family first learned that Skwira did not die of a heart attack, as the death certificate and the VAMC had maintained. Thus, the court reasoned, the Skwira family had two years from that date - until November 1998 - to file an administrative claim with the Veterans Administration. Since the family had failed to file a claim before that deadline, the court concluded that it lacked subject matter jurisdiction and dismissed the complaint. This appeal ensued.


As the language of § 2401 unequivocally indicates, the failure to file an administrative claim with the appropriate government agency within two years of a claim's accrual results in that claim being "forever barred." 28 U.S.C. § 2401(b). It is well settled in this circuit that the timely filing of an administrative claim pursuant to § 2401 is a jurisdictional prerequisite to filing suit under the FTCA. See, e.g., Gonzalez v. United States, 284 F.3d 281, 287 (1st Cir. 2002); Attallah v. United States, 955 F.2d 776, 779 (1st Cir. 1991); Gonzalez-Bernal v. United States, 907 F.2d 246, 248 (1st Cir. 1990). Thus, failure to comply with the FTCA's statute of limitations means that the district court lacks subject matter jurisdiction to entertain the suit and must dismiss it. Coska v. United States, 114 F.3d 319, 323 n.8 (1st Cir. 1997). The Skwira family, as "the party invoking the jurisdiction of a federal court[,] carries the burden of proving its existence." Murphy v. United States, 45 F.3d 520, 522 (1st Cir. 1995). 8

In this case, the district court dismissed the Skwira family's complaint on the government's Rule 12(b)(1) motion. See Fed. R. Civ. P. 12(b)(1) (providing for dismissal of claim for "lack of jurisdiction over the subject matter"). 9 We use "different standards of review in evaluating a district court's dismissal for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1) depending on the circumstances." Gonzalez, 284 F.3d at 287. In a situation where the parties dispute the predicate facts allegedly giving rise to the court's jurisdiction, the district court will often need to engage in some preliminary fact-finding. In that situation, the district court "enjoys broad authority to order discovery, consider extrinsic evidence, and hold evidentiary hearings in order to determine its own jurisdiction." Valent¡n v. Hosp. Bella Vista, 254 F.3d 358, 363 (1st Cir. 2001). 10 In such a case, the district court's findings of fact will be set aside only if clearly erroneous. Id. at 365. The court's ultimate conclusion regarding the existence vel non of subject matter jurisdiction is a question of law subject to de novo review. Id.In this appeal we are only reviewing the district court's ultimate legal conclusion that the Skwira family's action is time-barred. Indeed, the government and the Skwira family both maintain, without elaboration, that we should review de novo the district court's dismissal. We take this position as a concession that the parties do not dispute the district court's factual findings as recited in its written opinion, 11 and that they only disagree over the legal significance of those findings - i.e., the district court's determination that, as a matter of law, the plaintiffs' complaint was time-barred. Hence, since the parties' dispute "focuses on pure (or nearly pure) questions of law, [it] engenders de novo review." Gonzales, 284 F.3d. at 287; see Valent¡n, 254 F.3d at 365 ("Because the facts are not in issue, the court's determination engenders de novo review."); id. at 363 (noting that jurisdictional challenges grounded in considerations of sovereign immunity normally "present what amount to pure (or nearly pure) questions of law").


A. Preliminary Considerations

It is "elementary" that the United States, as sovereign, is immune from suit unless it has consented to be sued. United States v. Mitchell, 445 U.S. 535, 538 (1980). While the concept of sovereign immunity has its origins in the English common law, see Maysonet-Robles v. Cabrero, 323 F.3d 43, 54 (1st Cir. 2003) ("The King can do no wrong."), the Supreme Court has recognized that sovereign immunity is also grounded in important public policy considerations. See Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 704 (1949) ("[T]he interference of the Courts with the performance of the ordinary duties of the executive departments of the government, would be productive of nothing but mischief.") (quoting Decatur v. Paulding, 39 U.S. (14 Pet.) 497, 516 (1840)); United States v. U.S. Fid. & Guar. Co., 309 U.S. 506, 514 (1940) ("Public policy forbids the suit unless consent is given, as clearly as public policy makes jurisdiction exclusive by declaration of the legislative body."). Hence, any waiver of sovereign immunity "cannot be implied but must be unequivocally expressed." United States v. King, 395 U.S. 1, 4 (1969); see Soriano v. United States, 352 U.S. 270, 276 (1957) ("[T]his Court has long decided that limitations and conditions upon which the Government consents to be sued must be strictly observed and exceptions thereto are not to be implied.").

The FTCA expressly waives the government's sovereign immunity, permitting individuals to sue the government "for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment." 28 U.S.C. § 1346(b). The FTCA, however, carefully circumscribes that waiver. One of the many constraints placed on it is a statute of limitations: "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." Id. § 2401(b). As with all waivers of sovereign immunity, the Supreme Court has warned that this limitation, which requires a timely presentation of tort claims against the government, must be strictly construed. See United States v. Kubrick, 444 U.S. 111, 117-18 (1979) ("[I]n construing the statute of limitations, which is a condition of that waiver, we should not take it upon ourselves to extend the waiver beyond that which Congress intended.").

At issue in this case is the date on which the plaintiffs' tort claims "accrued." If the plaintiffs filed their administrative claim more than two years after their claim accrued, their cause of action is time-barred. "The general rule, within the meaning of the FTCA, is that a tort claim accrues at the time of the plaintiff's injury." Attallah, 955 F.2d at 779; see Kubrick, 444 U.S. at 120; Gonzalez, 284 F.3d at 288. Therefore, under this traditional rule, the Skwira family's claim would have accrued at the time of Skwira's "injury" - i.e., his death - in February 1996. See Restatement (Second) of Torts § 899 cmt. c (1979) ("A cause of action for death is complete when death occurs.").

In Kubrick, however, the Supreme Court recognized that a "discovery" rule applies in the context of medical malpractice claims. See Part V.B, infra. Under this rule, a claim "accrues" when an injured party "knows both the existence and the cause of his injury." Kubrick, 444 U.S. at 113. Quoting extensively from the Restatement (Second) of Torts, the Court in Kubrick identified the two rationales for a discovery rule in medical malpractice actions:

One is the fact that in most instances the statutory period within which the action must be initiated is short - one year, or at most two, being the common time limit. . . . but since many of the consequences of medical malpractice often do not become apparent for a period longer than that of the statute, the injured plaintiff is left without a remedy. The second reason is that the nature of the tort itself and the character of the injury will frequently prevent knowledge of what is wrong, so that the plaintiff is forced to rely on what he is told by the physician or surgeon. 12

Kubrick, 444 U.S. at 121 n.7 (quoting Restatement (Second) of Torts § 899 cmt. e (1979)); see Ware v. United States, 626 F.2d 1278, 1284 n.4 (5th Cir. 1980) ("Courts created the medical malpractice [discovery rule] to protect those who suffered damage arising out of both a specialized area, medicine, and a unique relationship, doctor-patient.").

The courts of appeals have applied versions of Kubrick's discovery rule in settings other than medical malpractice and latent disease. See, e.g., Lhotka v. United States, 114 F.3d 751, 753 (8th Cir. 1997) (trespass and nuisance); Stoleson v. United States, 629 F.2d 1265, 1268-69 (7th Cir. 1980) (occupational safety). The majority of courts that have considered the issue since Kubrick have concluded that a discovery rule can apply in wrongful death actions, even if that action is not premised on a claim of classic medical malpractice. See, e.g., Garza v. U.S. Bureau of Prisons, 284 F.3d 930, 934 (8th Cir. 2002); Diaz v. United States, 165 F.3d 1337, 1340 (11th Cir. 1999); Gould v. U.S. Dept. of Health & Human Svcs., 905 F.2d 738, 743 (4th Cir. 1990); In Re Swine Flu Prods. Liab. Litig., 764 F.2d 637, 639 (9th Cir. 1985); Drazan v. United States, 762 F.2d 56, 59 (7th Cir. 1985); Barrett v. United States, 689 F.2d 324, 329-30 (2d Cir. 1982). But see Garrett v. United States, 640 F.2d 24, 26 (6th Cir. 1981) (declining to extend discovery rule to wrongful death action).

We have already extended the reasoning of Kubrick far beyond the medical malpractice realm. See Attallah, 955 F.2d at 778-79 (theft). Noting this fact, the government argues that two recent Supreme Court Cases, TRW Inc. v. Andrews, 534 U.S. 19 (2001), and Rotella v. Wood, 528 U.S. 549 (2000), mandate that we retreat from our post-Kubrick application of a discovery rule outside the medical malpractice and latent disease contexts. According to the government, a strict time-of-injury rule should apply in this wrongful death case. We disagree.

Although the Supreme Court held in TRW Inc. that under the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681 et seq., a claim accrues at the time of injury, not when the injury is discovered, the Court noted that the FCRA, a complex statutory scheme, had a statute of limitations which already contained a built-in discovery exception for willful misrepresentation. TRW Inc., 534 U.S. at 30; see 15 U.S.C. § 1681p. Thus, according to the Court, since the FCRA "explicitly delineates the exceptional case in which discovery triggers the two-year statute of limitation," any further extension of the FCRA's discovery rule should come from Congress, not the Court. TRW Inc., 534 U.S. at 23. By comparison, the FTCA's statute of limitations contains no such built-in exception. See 28 U.S.C. § 2401(b). Moreover, liability under the FTCA is premised on general principles of the common law of torts, and not on a statutorily created right.

In Rotella, the Court actually applied a discovery rule outside the medical malpractice context, holding that a claim under civil RICO does not accrue when the plaintiff learns of the conspiracy, but, rather, when he learns of his injury. See Rotella, 528 U.S. at 556. Indeed, the Rotella court noted that lower federal courts "generally apply a discovery rule when a statute is silent on the issue." Id. at 555. "But," the court continued, "we have been at pains to explain that discovery of the injury, not discovery of the other elements of a claim, is what starts the clock." Id.

Thus, we reject the government's position that a strict time-of-injury rule should apply outside the medical malpractice and latent disease contexts, and we have no reservations about applying a discovery rule to this wrongful death action. The more difficult questions are the nature of that discovery rule and its applicability to the facts of this case. We now turn to those questions.

B. United States v. Kubrick

Given the importance of the Supreme Court's reasoning in Kubrick to the application of a discovery rule, we must discuss that decision in some detail. William Kubrick sought treatment in a Veterans Administration hospital in April 1968 for an infection of his leg. His treating physician prescribed large doses of the antibiotic neomycin. Approximately six weeks after the treatment, Kubrick began to suffer from tinnitus and loss of hearing. He saw other doctors about the new condition, and they diagnosed it as bilateral nerve deafness. In January 1969 another physician, upon reviewing Kubrick's previous medical records, informed Kubrick that it was "highly possible" that the hearing loss resulted from the neomycin treatment. In June 1971 another physician told Kubrick that the neomycin had, in fact, caused the hearing problem and that its administration was medical negligence.

In 1972 Kubrick filed his administrative claim. The issue before the Supreme Court was whether the plaintiff's claim accrued when he first began (in 1968) to suffer from hearing loss, when he learned (in 1969) that the treatment probably caused his hearing loss, or when he was told (in 1971) that the treatment definitively caused his hearing loss and that the treatment was negligent. The district court had held that Kubrick's claim accrued only when he had reason to suspect that a legal duty to him had been breached, i.e., in 1971, and that his claim (filed in 1972) was timely. The Court of Appeals affirmed, ruling that even though Kubrick knew of his injury and the government's probable responsibility for it as early as 1969, his claim did not accrue until he had adduced "facts which would have alerted a reasonable person to the possibility that the treatment was improper." Kubrick, 444 U.S. at 116 (quoting Kubrick v. United States, 581 F.2d 1092, 1097 (3d Cir. 1978)).

Although the Supreme Court accepted the appropriateness of a discovery rule for medical malpractice cases, it nevertheless reversed, holding that Kubrick's claim did not accrue in 1971 when he learned that his injury was the result of negligence. Instead, the Court held that his claim "accrued" in 1969 when he first learned of his injury and its probable cause. The Court explained:

We thus cannot hold that Congress intended that "accrual" of a claim must await awareness by the plaintiff that his injury was negligently inflicted. A plaintiff such as Kubrick, armed with the facts about the harm done to him, can protect himself by seeking advice in the medical and legal community. To excuse him from promptly doing so by postponing the accrual of his claim would undermine the purpose of the limitations statute, which is to require the reasonably diligent presentation of tort claims against the Government.

Kubrick, 444 U.S. at 123.

Kubrick therefore answered one important question that had divided the courts: whether the accrual of a claim depended on a victim's actual knowledge of negligence. See Kubrick, 444 U.S. at 121 n.8 (overruling cases cited therein). The court answered that question in the negative. However, the Court's recognition in Kubrick of a discovery rule raised new questions, such as: (1) does a discovery rule apply beyond the medical malpractice context, and (2) what knowledge short of actual knowledge of negligence provides a sufficient factual basis to trigger accrual under a discovery rule. As indicated above, the former question has been answered in the affirmative by several circuits, including our own. The latter question, however, has dogged federal courts ever since Kubrick. See Kent Sinclair & Charles A. Szypszak, Limitations of Action Under the FTCA: A Synthesis and Proposal, 28 Harv. J. on Legis. 1, 17-18 (1991) ("[T]he Court left unclear . . . whether the statute commences only when a plaintiff has actual knowledge of an injury and its cause . . . . [and] the Court did not address other situations where application of the diligence discovery rule may be difficult due to unique factual considerations."); see also Cutting, 204 F. Supp. 2d at 224 ("The issue of precisely how much knowledge is needed to trigger accrual bedevils discovery rule analysis.").

C. The Accrual Standard

In Kubrick, the plaintiff's knowledge of his injury (deafness) and its probable cause (the administration of neomycin) provided the factual basis for his claim. See Kubrick, 444 U.S. at 114. This knowledge alone triggered the two-year statute of limitations because, with knowledge of the injury and its probable cause, the plaintiff "need only have made inquiry among doctors with average training and experience in such matters to have discovered that he probably had a good cause of action [for medical malpractice]." Id. at 123. In the medical malpractice context, where the personal identity of the treating physician is usually known to the patient, knowledge of the legal status of the physician as a federal employee is not required for claim accrual. Absent extraordinary circumstances, "[t]he statute of limitations under the FTCA . . . does not wait until a plaintiff is aware that an alleged tort-feasor is a federal employee." 13 Gould, 905 F.2d at 745; see Gonzalez, 284 F.3d at 292 (rejecting argument that "the statute of limitations should be tolled on the ground that the plaintiff was unaware of the defendants' status as federal employees"); Gould, 905 F.2d at 743 ("Nowhere in Kubrick is any reference to the legal identity of the tort-feasor."). Presumably, a reasonably diligent plaintiff, once he is aware of his injury and its probable medical cause, can discover within the two-year statute of limitations period the employment status of his treating physician, as well as the negligence basis for a legal claim. Therefore, in the medical malpractice context, where there is often a direct relationship between the patient and doctor, one need not know of a governmental causal connection for a claim to accrue under the FTCA.

Outside the medical malpractice context, however, the identity of the individual(s) responsible for an injury may be less evident, and a plaintiff may have less reason to suspect governmental involvement. Not surprisingly, courts of appeals have been slightly more forgiving in these cases, deferring the accrual of claims until a reasonably diligent plaintiff has reason to suspect a governmental connection with the injury. For example, Gloria Garza Regalado was murdered by her husband shortly after he had escaped from the City of Faith halfway house in Monroe, Louisiana. The administrator of Regalado's estate filed suit in state court against the City of Faith, alleging negligence in the home's failure to notify law enforcement and Regalado of her husband's escape. Over the course of discovery, the administrator learned that the person responsible for notifying law enforcement of the escape was a federal Bureau of Prisons employee. The administrator subsequently filed suit in federal court against the Bureau under the FTCA. According to the Eighth Circuit, the estate's claim did not accrue when the administrator knew of the injury (i.e., death) and its cause (i.e., murder). Rather, the court indicated that a claim would accrue once the plaintiff has "reason to believe he ha[s] been injured by an act or omission by the government." Garza, 284 F.3d at 934 (emphasis added).

The Eleventh Circuit has formulated its accrual standard in similar terms, holding that a wrongful death action accrues "when the plaintiff knows, or exercising reasonable diligence should know, both of the decedent's death and its causal connection with the government." Diaz, 165 F.3d at 1340 (emphasis added). We agree with these courts that, outside the medical malpractice context, 14 the proper subject of knowledge for accrual purposes under the FTCA is (1) the fact of injury and (2) the injury's causal connection with the government. As the preceding quote from Diaz makes clear, there is, of course, a reasonable diligence component to this knowledge requirement. A plaintiff may not "bury her head in the sand." Id. at 1339. If she fails to undertake a reasonably diligent investigation into the cause of injury, the law will impute to her an awareness of any knowledge that she would have uncovered if she had undertaken that inquiry. See Kubrick, 444 U.S. at 123-24 & n.10.

Having determined the knowledge content that triggers accrual outside the medical malpractice context (knowledge of injury by an act or omission of the government), we must next ask how certain this knowledge must be. The Supreme Court indicated in Kubrick that definitive knowledge of the cause of injury is not required to trigger the accrual of a medical malpractice claim: "It is undisputed in this case that in January 1969 Kubrick was aware of his injury and its probable cause," and that knowledge, according to the Court, formed the "factual predicate for a claim." Kubrick, 444 U.S. at 118 (emphasis added); see also id. at 114 ("Dr. Sataloff . . . in January 1969 [] informed Kubrick that it was highly possible that the hearing loss was the result of the neomycin treatment.") (emphasis added).

Following Kubrick, we have similarly indicated that something less than definitive knowledge is required. For example, we have also stated that a medical malpractice claim has accrued "[o]nce a plaintiff knows of the injury and its probable cause." Gonzalez, 284 F.3d at 289 (emphasis added); see also id. at 291 n.10 (indicating that claim accrues when "plaintiff was on notice of the injury and its potential cause") (emphasis added). Outside the medical malpractice context, courts have similarly indicated that something less than definitive knowledge is required. In Garza the court stated that a claim accrues once the plaintiff "had reason to believe" that the government was responsible for the injury. Garza, 284 F.3d at 935. The court in Diaz said that "in order for the claim to accrue, a plaintiff must have some indication that there may have been a government cause of the injury." Diaz, 165 F.3d at 1340. In Ramming v. United States, 281 F.3d 158 (5th Cir. 2001) (per curiam), the Fifth Circuit said that a claim accrues once a plaintiff has "knowledge of facts that would lead a reasonable person [] to conclude that there was a causal connection." Id. at 163.

In assessing these varying formulations, we are mindful of the emphasis in Kubrick that the knowledge which triggers accrual (and hence the running of the statute of limitations) is the discovery of sufficient facts about the injury and its cause to prompt a reasonable person to inquire and seek advice preliminary to deciding if there is a basis for filing an administrative claim against the government: "A plaintiff such as Kubrick, armed with the facts about the harm done to him, can protect himself by seeking advice in the medical and legal community." 15 Kubrick, 444 U.S. at 123. The degree of knowledge of injury and cause that would prompt a reasonable person to take these protective steps will vary with the circumstances of the case, but, in any event, conclusive knowledge is not necessary. Hence, in line with the best precedents, we hold that, outside the medical malpractice context, a claim accrues under the FTCA once a plaintiff knows, or in the exercise of reasonable diligence should know, (1) of her injury and (2) sufficient facts to permit a reasonable person to believe that there is a causal connection between the government and her injury.

Our dissenting colleague claims that this holding contravenes Kubrick and its progeny - described as a clear, unbroken line of authority that has "firmly established that the baseline threshold for accrual under the discovery rule is knowledge of an injury and its cause," with cause defined as "the immediate physical basis for the injury." Respectfully, there is no such unbroken line of authority that supports this formula. Courts of appeals have, in fact, struggled to apply the discovery rule of Kubrick outside the medical malpractice context, see Szypszak, supra, at 30, and cases cited therein ("However useful courts may have found Kubrick in deciding cases with similar facts, they continue to apply the diligence discovery rule to dissimilar cases in an ad hoc manner."), and a rule that may seem forgiving in one scenario can be harsh in another. The case primarily relied upon by the dissent for its formula, Dyniewicz v. United States, 742 F.2d 484 (9th Cir. 1984), illustrates these difficulties well.

The Dyniewicz plaintiffs' parents were killed during a flash flood on a highway that the plaintiffs claimed should have been closed due to hazardous conditions. Despite actively pursuing a claim against the state, the plaintiffs did not learn of possible federal governmental responsibility until over two years after their parents' deaths. The Ninth Circuit, affirming the district court's dismissal of the case, imposed a strict rule that once "the immediate physical cause of the injury is discovered," an FTCA plaintiff's claim accrues even if the involvement of the federal government in the injury is unknown. Dyniewicz, 742 F.2d at 486. Since there was no dispute that the immediate physical cause of the parents' injury was drowning, the Ninth Circuit held that the plaintiffs' claim was time-barred. Id. at 487. Under the rule we articulate today, however, the plaintiffs' claim would not necessarily have been time-barred. Moreover, in a subsequent case, the Ninth Circuit indicated that the rule we find in the cases is supported by the language of Kubrick. See Gibson v. United States, 781 F.2d 1334, 1344 (9th Cir. 1986) (quoting Kubrick, 444 U.S. at 122 ("[T]he prospect is not so bleak for a plaintiff in possession of the critical facts that he has been hurt and who has inflicted the injury.") (emphasis added)). The Gibson court, however, rejected the plaintiffs' request for such a rule, indicating that Dyniewicz, as binding precedent, forced the imposition of the harsher rule. See Gibson, 781 F.2d at 1344 ("[B]inding circuit precedent forecloses us from considering such an extension of Kubrick.").

Moreover, the Dyniewicz rule proposed by the dissent is inconsistent with our holding in Attallah. In that case, a courier transporting currency on behalf of the plaintiffs was abducted, robbed, and murdered in Puerto Rico in September 1982 shortly after arriving at the local international airport. Attallah, 955 F.2d at 778. The decomposed body of the courier was found in a nearby rain forest soon thereafter, and the local police advised the plaintiffs that they had no leads as to who was responsible for the criminal acts. Almost five years later, in May 1987, a federal grand jury returned an indictment against two former agents of the U.S. Customs Service, alleging that they were responsible for the murder and robbery of the courier. In January 1988 the plaintiffs filed an administrative claim for the loss of the currency possessed by the courier at the time of his abduction.

On appeal, the government argued that the plaintiffs' claim was time-barred since it was filed almost six years after the plaintiffs knew of their injury. The government, advocating for a rule such as that found in Dyniewicz, argued that the plaintiffs were aware of their injury and its cause on or about September 20, 1982, when the body of the murdered courier was found; hence, the claim accrued at that point. Rejecting this argument, we concluded that under the circumstances of that case, the plaintiffs' claim accrued at the time of the indictment against the former agents because the plaintiffs "did not know, nor in the exercise of reasonable diligence could have known of the Customs agents' criminal acts until the time of their indictment." Id. at 780. 16 By way of contrast, if, as our dissenting colleague posits, "knowledge of cause" for accrual purposes means knowledge of "the immediate physical basis for the injury," then Attallah was wrongly decided since the plaintiffs in Attallah knew that their employees had been murdered and robbed within days of their disappearance. See Attallah, 955 F.2d at 778. We held otherwise, however, since the plaintiffs had no indication that government employees were responsible for their loss until an indictment had been filed. Here, unlike the plaintiffs in Attallah, the Skwira family had indications of government involvement well before investigators told them definitively that Gilbert had poisoned Skwira.

D. Application of the Accrual Standard

In some applications of the discovery rule to the question of accrual, there will be an issue about the reasonable diligence of the plaintiff in investigating the fact and cause of her injury. In the Skwira family's case, their reasonable diligence is not at issue. Rather, we can resolve the question of accrual, as did the district court, on the basis of the information the family received from government officials and the local press, prior to any independent inquiry undertaken by the family. The district court concluded that the Skwira family's cause of action accrued, at the latest, the day after Skwira's autopsy (in November 1996), when the family first learned that Skwira did not die of the causes listed on his death certificate. By that point in time, the family had knowledge of the numerous press reports describing an ongoing investigation into the unusually high number of deaths in the same ward in which Skwira died. Those reports indicated that the actions of a particular nurse were the focus of the investigation. When government investigators asked the Skwira family for permission to exhume Skwira's body, they informed the family that they had "suspicions" about the high number of deaths at the VAMC during a relatively brief window of time that included the period in which Skwira was hospitalized. Finally, the autopsy demonstrated conclusively that the cause of death listed on Skwira's death certificate was incorrect. These accumulated facts provided a sufficient basis in November 1996 for a reasonable person to believe that there was a causal connection between the injury (Skwira's death) and the acts or omissions of a government employee. Therefore, the two-year statute of limitations clock began ticking at that point.

The family's subjective beliefs, described in deposition and trial testimony, reinforces the correctness of this conclusion. Skwira's son Philip testified in his deposition that it was a "surprise" that Skwira had died of a cardiac event since he had been admitted only for treatment of his alcoholism. Skwira's daughter Marsha Yarrows testified at Gilbert's criminal trial that she was "shocked" by the unexpected news of Skwira's cardiac arrest, and during her deposition she also expressed her belief that his care at the VAMC had been inadequate.

Yarrows also testified during Gilbert's trial that she had read the press reports regarding a murder investigation into deaths on Ward C. She stated that when she read these accounts, "it was like a light bulb went off because I knew that was exactly what had happened to my father." She also testified that after reading the newspaper accounts,

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 those people that they must be investigating the death of.

Despite this realization, and despite the press reports and the information provided by investigators after the autopsy, the Skwira family insists that their claim did not accrue in November 1996 since "[t]he critical facts regarding the existence and cause of [Skwira's] injury were inherently unknowable until June of 1998." The government was in possession of Skwira's heart and tissue samples until that time, and the technology and testing protocols for detecting epinephrine were, by and large, invented for the Gilbert prosecution. Hence, the family argues, there was no way they could have known in November 1996 the actual cause of Skwira's death, and the statute of limitations should be tolled until they did. See Gonzalez, 284 F.3d at 288-89 (indicating that statute of limitations may be tolled if "the factual basis for the cause of action [is] 'inherently unknowable'") (quoting Attallah, 955 F.2d at 780).

The Skwira family reads "inherently unknowable" too broadly. The factual basis of a claim is "inherently unknowable" when, as in Attallah, there are no facts discoverable through the exercise of reasonable diligence which would permit a plaintiff to reasonably believe that her injury is connected with some act of the government. See Attallah, 955 F.2d at 780. As explained above, by November 1996 the Skwira family was aware of press reports concerning the suspicious deaths on Ward C; they knew that the government had begun a criminal investigation into Skwira's death; and they knew that the cause of death printed on Skwira's death certificate was incorrect. This information provided sufficient knowledge to start the limitations clock ticking in November 1996. From that point in time, the family had two years to seek out independent legal and medical advice to determine if they should file an administrative claim against the VA. Moreover, as we explained in Part III, supra, to file an administrative claim and preserve ones rights under the FTCA, one need only be in possession of "sufficient information for the agency to investigate the claims." Santiago-Ramirez, 984 F.2d at 19.

We realize that "considerable enquiry and investigation may be necessary before [a plaintiff] can make a responsible judgment about the actionability" of her claim. Rotella, 528 U.S. at 556. The Skwira family may have felt that need acutely in the difficult circumstances of this case. However, as the Supreme Court noted in Rotella, "identifying professional negligence may also be a matter of real complexity, and its discovery is not required before the statute starts running." Id. (citing Kubrick, 444 U.S. at 122, 124). One does not have to be certain of actionability in order to submit an administrative claim. 17 Simply put, the Skwira family failed to meet the modest burden of filing an administrative claim within two years of the claim's accrual. 18 The district court therefore properly dismissed the action. 19

E. Final Considerations

Before leaving this matter, we must address two additional arguments ably presented in an amicus brief submitted by The American Legion, and not directly addressed in the discussion above. First, amicus argues that we should "apply a rule that a cause of action for death caused by the criminal conduct of a government employee accrues only when there is sufficient information to indict." Such a rule would be a significant expansion of the discovery rule adopted in Kubrick. If anything, as noted earlier, the Supreme Court has indicated its reluctance to expand the scope of Kubrick's discovery rule. See TRW Inc., 534 U.S. at 28; Rotella, 528 U.S. at 556.

Amicus also argues that we should "liberally construe the discovery rule to protect the rights of veterans and their families." We understand the powerful considerations that underlie that argument. However, we are constrained by Supreme Court precedent which unequivocally states that "limitations and conditions upon which the Government consents to be sued must be strictly observed and exceptions thereto are not to be implied." Soriano, 352 U.S. at 276. We must therefore reject the liberal construction advocated by amicus.


The district court was faced in this case with the unenviable task of telling five families that, despite the tragic deaths of their loved ones at the hands of a government employee, their claims for compensation under the FTCA were time-barred. Understandably, the court "reluctantly" reached its decision that "as a factual matter, [there was] sufficient information [] available to the [Skwira family and other plaintiffs] to reveal a connection between the VAMC and the deaths" more than two years before they filed their administrative claims. Cutting, 204 F. Supp. 2d at 218, 228.

In reviewing the district court's ruling, we have slightly revised the terms of its inquiry, holding that, outside the medical malpractice context, a claim accrues under the FTCA once a plaintiff knows, or in the exercise of reasonable diligence should know, (1) of her injury and (2) sufficient facts to permit a reasonable person to believe that there is a causal connection between the government and her injury. In applying this holding to the facts, we, like the district court, must reluctantly conclude that the Skwira family's claim accrued more than two years before they filed their administrative claim with the VA, and hence their action is time-barred.



Early February 1996 Skwira is admitted to private healthcare facility for treatment of alcoholism.

February 15, 1996 Skwira is transferred to VAMC; shortly after arriving, Skwira experiences "cardiac event"; Skwira is transferred to Baystate Medical Center for tests and diagnosed with "dissecting aneurysm."

February 16, 1996 Skwira is transferred from Baystate back to VAMC.

February 18, 1996 Skwira expires; death certificate lists causes of death as "dissecting aneurysm," "inferior wall myocardial infarction," "arrythmia" [sic], and "chronic alcoholism."

July 17, 1996 Press report details investigation into "a higher than usual number of deaths from cardiac arrest."

August 1, 1996 Press report identifies nurse on Skwira's ward as focus of investigation.

August 8, 1996 Press report announces grand jury criminal investigation into deaths occurring between the fall 1996 and winter 1996.

October 2, 1996 Gilbert arrested and charged with phoning in false bomb threats to VAMC.

October 1996 Investigators approach Skwira family and ask permission to exhume Skwira's body as part of ongoing investigation into suspicious deaths at the VAMC; family acknowledges familiarity with press reports concerning investigation.

November 25, 1996 Skwira's body is exhumed and autopsy performed.

November 26, 1996 Investigators inform family that causes of death listed on death certificate were "incorrect."

July 1997 Investigators inform family that chemical ketamine inexplicably found in Skwira's body.

June 8, 1998 Investigators inform family that Skwira died of epinephrine poisoning.

November 19, 1998 Grand jury indicts Gilbert for murder of Skwira and others.

October 21, 1999 Skwira family files administrative claim.

July 17, 2000 Final denial of administrative claim is issued.

October 25, 2000 Jury selection begins in Gilbert criminal trial.

October 26, 2000 Skwira family commences this lawsuit.

March 14, 2001 Gilbert convicted of murdering Skwira.

- Concurring and Dissenting Opinions Follow -

BOUDIN, Chief Judge, concurring.

Under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680 (2000), the Skwira family was required as a condition of suing the federal government to file an administrative claim within two years of the accrual of their cause of action. Although tort claims customarily accrue at the time of injury, the practice is widespread of providing extra time-either by delaying accrual or tolling the statute-where the basis for suit is not apparent when the initial injury occurs. Villarini-Garcia v. Hospital Del Maestro, Inc., 8 F.3d 81, 84-87 (1st Cir. 1993); Restatement (Second) of Torts § 899, cmt. e (1979). The locus classicus is the sponge left in the patient during surgery.

In United States v. Kubrick, 444 U.S. 111 (1979), the Supreme Court adopted this so-called discovery rule for a medical malpractice claim against the government under the Federal Tort Claims Act. Id. at 122. Since then, most circuit courts to consider the question have been willing to apply the same reasoning to other kinds of claims against the government where, in the nature of things, the prospects of any claim against the government were so hidden that a reasonable plaintiff would not have been alerted to their existence. E.g., Attallah v. United States, 955 F.2d 776, 780 (1st Cir. 1992); Osborn v. United States, 918 F.2d 724, 731-34 (8th Cir. 1990).

At the same time, Kubrick, like many other discovery rule cases, makes clear that a plaintiff is not entitled to wait until all of the facts in support of the claim are known. Kubrick, 444 U.S. at 122-23. Rather, once the plaintiff knows enough to provoke a reasonable person to inquire further, the plaintiff has the duty to investigate. See Gonzalez v. United States, 284 F.3d 281, 288-91 (1st Cir. 2002). In substance, the plaintiff is charged with knowing what he might have found out by actively pursuing his bare suspicions and then filing a claim when there are reasonable prospects of liability.

Critically, when the plaintiff knows or should know enough to prompt a claim, he may not yet know enough to win the suit. Childers Oil Co. v. Exxon Co., 960 F.2d 1265, 1272 (4th Cir. 1992). To win a suit may require the development of further facts, perhaps even the conduct of discovery and further study by experts. But the discovery rule is a compromise between competing interests; and under the Federal Tort Claims Act, the burden on the plaintiff is peculiarly slight: all that is needed to comply with the statute is the filing of a simple two-page form with the responsible federal agency. 28 U.S.C § 2401(b) (2000); 28 C.F.R. § 14.2 (2002); Claim for Damage or Injury (Standard Form 95), WL 15A Fed. Proc. Forms § 63:22.

It is easy, especially in a case where government was actively investigating, to ignore the importance of the principle of early notice to the putative defendant. The longer the delay between the original wrong and the onset of litigation, the more likely that evidence on the defense side may be lost. Yes, in this case, nothing like that occurred; but statutes of limitation (unlike laches) are framed to work mechanically: indeed, one of their benefits is that arguments about whether there was prejudice from delay are banished from the scene.

The formulas used in the cases for implementing the discovery rule are neither precise nor consistent. Ultimately the question, highly dependent on the facts, is whether the plaintiff knew enough as to the potential responsibility of the defendant that-within two years of that point-he should have filed the short form apprizing the government of a potential claim against it. Often, in close cases like this one, this is a jury issue-but not in a suit against the government. 28 U.S.C. § 2402 (2000); Lehman v. Nakshian, 453 U.S. 156, 161 (1981) (no right of jury trial for tort claims against the federal government).

In this case, the district court carefully analyzed the undisputed raw facts. Those confirm that by mid-1996, the Skwira family had learned that other suspicious deaths had occurred at the hospital in addition to the wholly unexpected sudden death of Edward Skwira, that a government investigation involving the U.S. attorney and the state police was underway, that Skwira's exhumation was necessary, and that (based on the autopsy) the death certificate had misstated the cause of death. And, of course, it was known that the hospital was run by the federal government.

At this point, a reasonable person would have believed that some kind of negligence or misconduct by government employees at the hospital might well underlie Edward Skwira's death. That some of the plaintiffs actually had such suspicions is not necessary but appears to have been the fact. The Skwiras then had two further years to investigate. Further, on similar evidence the family of one of the other victims did file a claim within the time period allowed. Yet the Skwira family waited over three years after the autopsy report before filing their claim.

The problem in this case is primarily one of applying an abstract (and rather general) concept-adequate notice to trigger the discovery rule-to a unique fact pattern among an endless parade of possibilities. The major peculiarity here is that the Skwira family could probably not have had definitive proof of their claim before the government completed its investigation. This makes the present case highly unusual: normally, as in Kubrick itself, one whom suspicions prompt to consult an expert or a lawyer can usually get a good fix on liability within a reasonably brief period.

But under the discovery rule, definitive proof of wrongful conduct and government liability is not required to start the period for filing a claim. Kronisch v. United States, 150 F.3d 112, 123 n.6 (2nd Cir. 1998), cert. denied 531 U.S. 1078 (2000); Childers, 960 F.2d at 1272. So the question is whether a further delay should be interpolated into the limitations period for cases in which, though substantial suspicions should have been excited, they could not in the nature of things have been fully satisfied within the next two years. At least one circuit court has been willing to delay the statute while science sorted matters out, Stoleson v. United States, 629 F.2d 1265, 1268-71 (7th Cir. 1980); on the other hand, filing the claim form, thereby tolling the statute, is not a burdensome task.

Alternatively, some might think that where the government is actively investigating a matter, private parties should be allowed to await the outcome of the official investigation and that the statute should be tolled in the meantime. But this choice too involves competing policy concerns and the engrafting of a judge-made exception upon statutory language that gives no hint of any such reservation. And given the range of government investigations into official and private conduct of all kinds, such an exception could have ramifying consequences that a court cannot easily assess.

Perhaps the Supreme Court will move in the direction of Stoleson or of an exception for pending government inquiry, but there are some reasons for a lower court to be cautious. Where the sovereign has consented to be sued for its agents' wrongful acts, the Court has construed reasonably strictly the limits on such consent. Kubrick, 444 U.S. at 117-18. Kubrick itself reversed a line of circuit precedent that, while adopting the discovery rule, applied it rather too freely. See id. at 121 n.8 (collecting cases). Recent Supreme Court decisions have also been quite respectful of limitations periods. E.g., TRW Inc. v. Andrews, 534 U.S. 19 (2001); Rotella v. Wood, 528 U.S. 549 (2000).

In the end, the risks of prompting persons to file claims too soon seem less weighty than the importance of getting notice to the government at the earliest reasonable opportunity. It is one thing to cut off a claim where no reasonable suspicion existed within the limitations period. But where the claimant thinks or should think that he may well have a claim, then under present law the government should be notified within two years. If the law is to be fine-tuned further, Congress may well be better equipped to devise the options and assess the consequences.

TORRUELLA, Circuit Judge, dissenting.

I am forced to dissent because the majority contravenes Supreme Court doctrine established in United States v. Kubrick, 444 U.S. 111, 118 (1979) and longstanding circuit precedent interpreting Kubrick. See Gonzalez v. United States, 284 F.3d 281, 289 (1st Cir. 2002); Attallah v. United States, 955 F.2d 776, 780 (1st Cir. 1992). The majority's "causal connection" approach runs contrary to the doctrine established in those cases because it eliminates the requirement that before a statute of limitations runs on an FTCA claim, a plaintiff must be aware both of the existence of his injury and "the facts of causation." Kubrick, 444 U.S. at 122.In this case, the appellants could not possibly have discovered the medical cause of Edward Skwira's death before June 8, 1998. As is established by the record, the government itself was unable to discern the cause of Skwira's death until it invented special techniques and protocols for detecting excess levels of epinephrine in the body. Until June 8, 1998 -- the date when the government first informed appellants about "the facts of causation" -- the Skwira's were in no position to know how Skwira had died. Thus, the appellants were in the position described by the Supreme Court as one warranting delayed accrual -- that is, where "the facts of causation [are] in the control of the putative defendant, unavailable to the plaintiff or at least very difficult to obtain." Id. at 122 (emphasis added).

The standard adopted by the majority improperly allows a claim to "accrue" before a reasonably diligent plaintiff could possibly have discovered the medical or physical cause of his injury. According to the majority, a discovery rule claim "accrues" once a plaintiff knows or should, in the exercise of reasonable diligence, know "(1) the fact of injury and (2) the injury's causal connection with the government." Maj. Op. at 26. Thus, once injury is known, the statute of limitations begins running as soon as the plaintiff discovers sufficient information to determine that his injury is "probabl[y]" "connected with some act of the government." Maj. Op. at 28, 33. The "causal connection" approach, in other words, puts a premium on the identity of the defendant: so long as a plaintiff might determine who injured him, the statute of limitations starts to run against a plaintiff, even if he could not, in the exercise of reasonable diligence, discover what injured him, or how he was injured.

This case presents no basis for implementing a novel accrual standard. The majority alludes to (1) confusion in the standards articulated by Kubrick and its progeny, and (2) the unique nature of non-medical malpractice cases as potential justifications for implementing a new accrual standard. Maj. Op. 23-25. However, looking at Kubrick and its progeny, I think it is clear that our discovery rule jurisprudence, while less than crystal clear, is well established enough that the majority's decision to depart from Kubrick's accrual standard in favor of the "causal connection" standard is unwarranted. Moreover, there is nothing in the record that distinguishes this case from past malpractice and wrongful death discovery-rule cases which have been considered under our well-established accrual standard.

A. Kubrick and its Progeny

While Kubrick left open some questions regarding the parameters of the discovery rule, the core holding of Kubrick is clear and has been repeatedly applied by this and other circuits in both medical malpractice and non-medical malpractice contexts.

The Kubrick Court established that accrual does not occur before the plaintiff "knows both the existence and the cause of his injury." Kubrick, 444 U.S. at 113 (emphasis added). The Court clearly distinguished between "a plaintiff's ignorance of his legal rights" (which will not halt accrual) and knowledge "about the facts of causation" (which is required to trigger accrual). Id. at 122. Thus while accrual will not wait for a plaintiff to discover that his injury was negligently inflicted, it is clear that a claim cannot accrue before a plaintiff is or should be aware of the existence and cause of his injury. Under Kubrick, knowledge of an injury and its cause constitutes "the factual predicate for [the] claim." Id. at 118. Thus, as the Fourth Circuit has stated, "[t]he clear import of Kubrick is that a claim accrues within the meaning of [the FTCA] when the plaintiff knows or, in the exercise of due dilligence, should have known both the existence and the cause of his injury." Gould v. U.S. Dep't of Health and Human Services, 905 F.2d 738, 742 (4th Cir. 1990).

Even if Kubrick ultimately left open questions regarding claim accrual, this Court has repeatedly construed Kubrick as holding that a claimant's knowledge of the existence and cause of his injury is the baseline knowledge required to trigger discovery-rule accrual. In Gonzalez, we recently clarified that Kubrick meant that "[o]nce a plaintiff knows of the injury and its probable cause, he/she bears the responsibility of inquiring among the medical and legal communities about whether he/she was wronged and should take legal action." Id. at 289 (citing Kubrick). Our holding in Gonzalez is consistent with all of our prior discovery rule cases. See, e.g., Nicolazzo v. United States, 786 F.2d 454, 454 (1st Cir. 1986) (citing Kubrick's holding that in medical malpractice suits, "the claim accrues when a plaintiff discovers, or in the exercise of reasonable diligence should have discovered, the existence and cause of his injury"); Rivera Fernandez v. Chardon, 702 F.2d 29, 32 (1st Cir. 1983) (finding that the Kubrick Court concluded that "the limitations period began to run when the plaintiff knew of the existence and the cause of his injury"); Lazarini v. United States, 2000 WL 231241 (1st Cir. Feb. 17, 2000) (per curiam) (citing Kubrick for the proposition that discovery-rule claims accrue "when the plaintiff knows both the existence and the cause of his injury"); Fisher v. United States, 1992 WL 63516 at *4 (1st Cir. Apr. 1, 1992) (per curiam) ("The Supreme Court has determined that a plaintiff must know the 'critical facts' of his injury and its cause in order for his cause of action to accrue under the Federal Tort Claims Act.").

The majority's interpretation of Kubrick also departs from the discovery rule standard as articulated by nearly every other circuit court. See, e.g., Massey v. United States, 312 F.3d 272, 276 (7th Cir. 2002) (finding that the Kubrick Court held that a claim under the FTCA accrues when the plaintiff knows both the existence and cause of the injury); Garza v. United States Bureau of Prisons, 284 F.3d 930 (8th Cir. 2002) (same); 20 Winter v. United States, 244 F.3d 1088, 1090 (9th Cir. 2001) (same); Gould, 905 F.2d 738 at 742 (4th Cir. 1990)(same); Barren by Barren v. United States, 839 F.2d 987 (3d Cir. 1988) (same); Chamness By and Through Chamness v. United States, 835 F.2d 1350, 1353 (11th Cir. 1988); Arvayo v. United States, 766 F.2d 1416, 1419 (10th Cir. 1985) (same). 21

The majority is not free to jettison the "causation" requirement at this stage. Although the discovery rule standards applied in the past may differ slightly from one another, 22 these nominal differences do not justify wiping the slate clean and imposing a more rigorous accrual standard for plaintiffs to satisfy. In sum, it is firmly established that the baseline threshold for accrual under the discovery rule is knowledge of an injury and its cause. Unless the "causal connection" standard satisfies this threshold, it is an unwarranted departure from Circuit precedent.

B. What Constitutes the "Facts of Causation?"

The majority's emphasis on who caused Skwira's injury, rather than how he was injured or what injured him is seriously misguided. In light of the long line of cases requiring knowledge of "the facts of causation" to trigger accrual, the only way to sustain the majority's approach would be to argue that its "causal connection" standard actually satisfies this Court's "causation" requirement. However, this argument would require us to construe the term "cause" in a manner inconsistent with legal precedent.Discovery of the cause of one's injury does not mean knowing who is responsible for it, or even discovery of the alleged tortfeasor's "probable connection" to the injury; rather, an injury's "cause" is known when the immediate physical basis for the injury is discovered. Dyniewicz v. United States, 742 F.2d 484, 486 (9th Cir. 1984). That is, "cause" means the immediate cause of injury "from a medical point of view," and not the legal identity of the alleged tortfeasors. Gould, 905 F.2d at 743 n.2; see also Davis v. United States, 642 F.2d 328, 331 (9th Cir. 1981). This is evident from Kubrick itself, where the Court determined that the critical causative fact that set the statute of limitations running was that Kubrick was aware of the fact that the administration of an antibiotic was the medical cause of his injury. Kubrick, 444 U.S. at 118. Thus, the majority's claim that its "causal connection" approach is grounded in the logic of Kubrick is unfounded; as one circuit has noted, "[n]owhere in Kubrick is any reference to the legal identity of the tort-feasor." Gould, 905 F.2d at 743; see also Gibson v. United States, 781 F.2d 1334, 1344 (9th Cir. 1986) (knowledge of "cause" is knowledge of immediate physical cause, not knowledge of involvement and culpability of federal agents).

C. Applying Kubrick "Outside the Medical Malpractice Context"

Without a trace of irony, the majority also claims that it is free to implement its novel "causal connection" standard because Skwira's injury occurred "outside of the medical malpractice context." Maj. Op. at 25. That is, because Nurse Gilbert intentionally injected Skwira with epinephrine, the appellants' claims against the United States merit consideration under a different standard than that applied to other malpractice cases. Since no such standard has been clearly articulated yet by this Circuit, the majority allows itself to invent a new one.

Even if this distinction were generally appropriate, the facts in this case do not permit us to treat it as a purely non-malpractice case. This case involves a medical professional administering an excessive dose of a toxic substance to a patient undergoing treatment at a government hospital. That the drug was administered with the intent to kill does not itself distinguish this from similar cases involving latent injury or causation, or other cases arising from a breach of the doctor-patient relationship. Cf. Ware v. United States, 626 F.2d 1278, 1284 n.4 (5th Cir. 1980) ("Courts created the medical malpractice [discovery rule] to protect those who suffered damage arising out of both a specialized area, medicine, and a unique relationship, doctor-patient."). Accordingly, the district court correctly noted, "the facts of this case, charging hospital based negligence or malfeasance, make it functionally identical to a malpractice case." Cutting v. United States, 204 F.Supp. 2d 216, 224 (D.Mass 2002).

Second, the rationale for delaying accrual in medical malpractice cases is entirely appropriate here. As the Supreme Court has noted, "the cry for a discovery rule is loudest" in malpractice cases, because "the facts about causation may be in the control of the putative defendant, unavailable to the plaintiff or at least very hard to obtain." Rotella v. Wood, 528 U.S. 549, 555-56 (2000) (quoting Kubrick, 444 U.S. at 122). Medical malpractice cases enjoy their privileged discovery-rule status not because they are unintentional; we have historically treated these cases differently because they often involve hidden, complex, and unknown factors which an injured plaintiff would not ordinarily be expected to grasp. In this case, where the facts about Skwira's injury were in the control of the government, unavailable until 1998, and impossible to obtain, the rationale for applying the discovery rule is identical to a case of pure medical malpractice. The latent and complex medical causation issues in this case should have led the majority, like the district court below, to treat the appellants' claims under the traditional rubric of medical malpractice discovery rule cases.

D. Applying the Existing Standard to Skwira

I respectfully submit that when the proper standard is applied to these facts - that is, when we attempt to ascertain when we could first charge appellants with knowledge of the existence and cause of Skwira's injuries - this case is a much closer one than it appears in the majority opinion.

The plaintiffs, like the government agents investigating Skwira's death, could not possibly have discovered that Skwira died from the administration of a drug until 1998. And unlike the plaintiffs in Kubrick, it would have been futile for the Skwiras to inquire "among doctors with average training and experience in such matters to have discovered that [they] probably had a good cause of action." Kubrick, 444 U.S. at 123. This fact is significant because "[o]rdinarily, a plaintiff cannot be expected to discover the general medical cause of his injury even before the doctors themselves are able to do so." Chamness, 835 F.2d at 1353 (quoting Rosales v. United States, 824 F.2d 799, 805 (9th Cir. 1987)).

The only causative facts in the appellants' possession were knowledge that Skwira's death certificate was incorrect and that the hospital and its employees were the subject of an investigation. However, the sum of this information does not constitute any knowledge regarding the physical cause of Skwira's injury. At most, the plaintiffs knew that everything they thought they knew about Skwira's death was wrong. 23

The opinion does not cite a single case in support of its harsh conclusion that a claim may accrue before plaintiffs could possibly obtain information about an injury's medical or physical cause. It cites no cases to support treating the appellants' claims any differently from other medical malpractice claims. It disregards the standards articulated by this Court in Attallah, 24 955 F.2d at 780 and Gonzalez, 284 F.3d at 289. Respectfully, it is only by adopting a nebulous "causal connection" test that the panel can make any headway; under Kubrick's own "facts about causation" requirement, it would be extremely difficult on this record to show that appellants had sufficient knowledge of the medical cause of Skwira's death.

Knowledge of an injury's cause is a "critical fact," without which a claim cannot accrue. By reducing the "causation" requirement to mean only a "probable connection between the injury and the defendant," the majority puts its thumb on the scale and transforms our accrual standard into one too strict for plaintiffs whose injury involves latent or complex causes. In such cases, "considerable enquiry and investigation may be necessary before [a plaintiff] can make a responsible judgment about the actionability" of his claim. Rotella v. Wood, 528 U.S. at 556.

The plaintiffs' delay in filing their administrative claim was justified by the impossibility of discovering the cause of Edward Skwira's injury. Because the appellants filed that claim less than two years after discovering the cause of Skwira's injury, I do not believe their claim to be barred by the statute of limitations. I respectfully dissent.

1. There is a time line of the events giving rise to this litigation at the end of this opinion.

2. See Cutting v. United States, 204 F. Supp. 2d 216 (D. Mass. 2002) (consolidated opinion in Cutting v. United States, No. 99-40065; Rauch v. United States, No. 99-30231; Siska v. United States, No. 00-30080; McEwen v. United States, No. 99-30232; Skwira v. United States, No. 00-30192; Lessard v. United States, No. 00-30076).

3. None of the other four dismissed cases have been appealed.

4. Gilbert's name was made public in connection with that arrest, and she was identified by the local press as the subject of the ongoing investigation into the deaths at the VAMC.

5. See Daubert v. Merrill Dow Pharms., Inc., 509 U.S. 579, 591-93 (1993) (noting that prior to admitting expert testimony, district court must undertake "preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue").

6. The record before us does not indicate why the claims were denied, nor why two separate denial letters issued. We assume the claims were denied because they were deemed untimely.

7. The complaint alleged a number of theories of negligence, almost all of which amounted to a claim of negligent supervision of Gilbert. For example, the complaint alleged that the VAMC and its staff "allow[ed] improper and lethal medication to be administered to Edward S. Skwira," "fail[ed] to protect Edward S. Skwira from imminent harm they knew or should have known existed," "fail[ed] to properly supervise the medical personnel at the VAMC," and "fail[ed] to monitor and control the usage of and access to the medications at the VAMC, including epinephrine." Secondarily, the complaint also alleged medical malpractice: "failure to provide adequate medical care," and "failure to properly diagnose."

8. Other circuits view the FTCA's statute of limitations as an affirmative defense, rather than a jurisdictional prerequisite, and therefore place the burden of proof on the defendant. See, e.g., Hughes v. United States, 263 F.3d 272, 278 (3d Cir. 2001) ("Failure to comply with the statute is 'an affirmative defense which the defendant has the burden of establishing.'") (quoting Schmidt v. United States, 933 F.2d 639, 640 (8th Cir. 1991)). Other circuits view the statute of limitations as jurisdictional in nature, and, accordingly, place the burden of proof on the plaintiff. See, e.g., McCall ex rel. Estate of Bess v. United States, 310 F.3d 984, 987 (7th Cir. 2002) ("[T]he plaintiff [] has the burden of establishing an exception to the statute."); Gould v. U.S. Dept. of Health & Human Svcs., 905 F.2d 738, 745-46 (4th Cir. 1990) ("The burden is on plaintiffs to show that due diligence was exercised and that critical information, reasonable investigation notwithstanding, was undiscoverable."). As indicated in the text, we have adopted the latter approach.

9. See also Fed. R. Civ. P. 12(h)(3) ("Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.").

10. In certain situations, the predicate facts can be so inextricably linked to the merits of the controversy that the district court should "defer resolution of the jurisdictional issue until the time of trial." Valent¡n, 254 F.3d at 364 n.3. That is not the case here.

11. In two brief paragraphs on the penultimate page of the appellants' forty-four page brief - under the heading "The Judge's determination was based on unsupportable findings of fact" - the appellants take issue with the district court's recitation of one fact. The district court stated that Skwira "experienced a severe cardiac event, a dissecting aneurysm." Cutting, 204 F. Supp. 2d at 234. The family disputes this "finding." It is clear, however, from the context of the opinion that the district court meant only that the Skwira family was told that a dissecting aneurysm was the cause of death (as indicated on the death certificate). Later in its opinion, the court makes clear that Skwira, in fact, died of epinephrine poisoning. Id. at 236. Since the appellants have chosen to challenge only this one fact in the district court's opinion, any other objections to the district court's factual findings are forfeited. See Gonzales-Morales v. Hernandez-Arencibia, 221 F.3d 45, 48 n.3 (1st Cir. 2000).

12. The Supreme Court had already recognized the former rationale - an injury's latency - as justification for applying a discovery rule under the Federal Employers' Liability Act ("FELA"), 45 U.S.C. §§ 51-60. As the Kubrick court explained: In Urie v. Thompson, [337 U.S. 163 (1949)], the Court held that a claim under [FELA] did not accrue until the plaintiff's injury manifested itself. In that case, plaintiff Urie contracted silicosis from his work as a fireman on a steam locomotive. His condition was diagnosed only in the weeks after he became too ill to work. The Court was reluctant to charge Urie with the "unknown and inherently unknowable" and held that because of his "blameless ignorance" of the fact of his injury, his claim did not accrue under [FELA] until his disease manifested itself. 337 U.S., at 169-70. Kubrick, 444 U.S. at 121 n.7.

13. It would be an extraordinary circumstance if the government or its agents have "misled or deceived a plaintiff, or otherwise hidden the legal identity of alleged tortfeasors as federal employees." Garza, 284 F.3d at 935. In that case, accrual of the plaintiff's medical malpractice claim may be deferred, but the plaintiff "must at the very least show that [this] information could not have been found by a timely diligent inquiry." Gonzalez, 284 F.3d at 291 (original emphasis).

14. With all due respect to the district court and our dissenting colleague, this case is not "functionally identical" to a medical malpractice case. This case involves a criminal act by a government employee and the claim, primarily, that this employee was negligently supervised at the VAMC. As a matter of proof, the elements of a negligent supervision claim differ significantly from the elements of a medical malpractice claim. See, e.g., Marpe v. Dolmetsch, 667 N.Y.S.2d 463, 465 (App. Div. 1998); Zajac v. St. Mary of Nazareth Hosp. Ctr., 571 N.E.2d 840, 848 (Ill. App. Ct. 1991); Wright v. Univ. Hosp. of Cleveland, 563 N.E.2d 361, 366-67 (Ohio Ct. App. 1989). Moreover, in a medical malpractice case, knowledge of the federal status of the malpractitioner is irrelevant for accrual purposes. See Gonzales, 284 F.3d at 292. As explained in the text, however, courts have relaxed this arguably harsh rule outside the medical malpractice context, thereby emphasizing the importance in the FTCA context of the distinction between medical malpractice and non-medical malpractice cases.

15. As indicated in Part III, supra, to file an administrative claim under the FTCA (and thereby preserve one's rights), one need only be in possession of "sufficient information for the agency to investigate the claims." Santiago-Ramirez, 984 F.2d at 19.

16. After the disappearance of the courier, the Attallah plaintiffs had conducted their own investigation. They visited the Customs Service office at the airport where they were told that the courier had been processed and left the premises. We noted that, "[a]side from this information, appellants had no other source of information regarding the whereabouts of their courier," and that the plaintiffs were not privy to the police investigation. Attallah, 955 F.2d at 780.

17. In the Skwira family's case, if the family had submitted a timely notice of claim, they could have asked the agency to hold the claim in abeyance pending the outcome of the ongoing criminal investigation - or, upon denial of the claim, filed a lawsuit in good faith, "on information and belief," and then ask the court to stay discovery pending the outcome of the ongoing investigation. Indeed, the district court stayed the instant litigation until the end of Gilbert's criminal trial.

18. The fact that the Skwira family decided to place their trust in the U.S. Attorney's Office, electing not to seek competent independent legal advice until much later, does not alter that conclusion. See Gonzales, 284 F.3d at 289 ("[T]he limitations period begins to run regardless of whether plaintiffs make inquiries, and regardless of whether they are correctly advised.").

19. The district court concluded that one of the other plaintiffs below, Nancy Cutting, successfully filed her administrative claim within two years of its accrual. See Cutting, 204 F. Supp. 2d at 228 ("Nancy Cutting's conduct provides a template for reasonable promptness under the discovery rule in these cases."). The government also concedes that Caroline Brandt, the wife of another of Gilbert's victims (and not a party to the litigation below), filed a timely administrative claim, thereby preserving any rights she may have.

20. The majority's citation of Garza to support rejecting the "causation" standard and adopting the proposed "causal connection" standard in its place is inconsistent with that opinion's actual holding. In Garza, the Eighth Circuit held that a "cause of action still accrues when the existence of an injury and its cause are known." Garza, 284 F.3d at 935. While the Garza court did imply that under some circumstances a claim would accrue when the plaintiffs knew the "identity of alleged tortfeasors as federal employees," it imposed this standard in addition to, not in place of, the traditional "causation" requirement. See id. (suggesting that accrual might be delayed until the plaintiff knows the legal identity of the tortfeasor only if government agents mislead or hide the tortfeasor's identity).

21. To my knowledge, no case besides Diaz v. United States, 165 F.3d 1337 (11th Cir. 1999) has dispensed with the "causation" requirement in the manner proposed by the majority.

22. For instance, in Gonzalez, this Court at one point states that accrual occurs when a plaintiff knows of his injury "and its probable cause," 284 F.3d at 289, and at another requires knowledge of "an injury and its potential cause.", Id. at 291 n.10 (emphasis added). Though I am sure the difference between "probable" and "potential" would provide grist for the mill of an opportunistic litigator, it does not negate our long-standing requirement that accrual is delayed until a plaintiff is aware of the existence and cause of his injury.

23. The majority makes much of "[t]he family's subjective beliefs," which it gleans from deposition and trial testimony. Maj. Op. at 32. Although the majority ostensibly cites the Skwiras' "subjective beliefs" only to "reinforce[] the correctness of [its] conclusion," id., its reliance on what it believes the appellants subjectively knew is inappropriate. The discovery rule test is, of course, an objective one, Gonzalez, 284 F.3d at 288; Attallah, 955 F.2d at 780, and our assumptions about the state of mind of the appellants are wholly irrelevant as to when the appellants' claim should have accrued. Moreover, none of the family's concerns amount to more than their generalized suspicion about events at the hospital. And as we have held, "generalized suspicions unsupported by medical interpretations do not establish sufficient 'awareness' to set [the] limitations period running when [the] condition involves complex medical causality." Bath Iron Works Corp. v. United States Dep't of Labor, 2003 WL 21665024 at *6 (1st Cir. July 17, 2003) (quoting Jasinskas v. Bethlehem Steel Corp. 735 F.2d 1, 5 (1st Cir. 1984)). Inclusion of subjective elements into our discovery rule inquiry will only serve to confuse lower courts seeking to apply the standard announced today.

24. In Attallah, we concluded that "the principles established by the discovery rule warrant a delayed accrual . . . since the appellants did not know . . . of [the tortfeasor's] criminal acts until the time of their indictment." 955 F.3d at 780. We then cited the following factors to justify our decision to delay accrual: (1) the plaintiffs could not have known the factual basis for their claim;(2) the plaintiffs had "no other information" other than misleading information provided by law enforcement; and (3) the police did not have sufficient information to bring charges against the murderers until 5 years after the crime. Id. at 780. These factors are all present in some form in the Skwira case, and yet the majority does not give them any consideration.

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