BETTE BENNETT V. USA, No. 21-35941 (9th Cir. 2022)
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Plaintiff brought suit alleging medical malpractice by government physicians at Naval Hospital Bremerton in the state of Washington. Plaintiff first submitted a timely administrative claim to the Navy under the FTCA, which was denied. She filed her complaint in the Western District of Washington within six months thereafter, as required by the FTCA. The Government sought dismissal on grounds that Plaintiff’s claim had been extinguished by a Washington statute of repose.
The Ninth Circuit reversed the district court’s order and remanded for further proceedings to determine the constitutionality of the statute of repose under Washington’s state constitution. The panel held that the only question at issue was whether the FTCA’s statute of limitations supplanted the eight-year statute of repose embodied in the latter clause of Section 4.16.350.
The U.S. Supreme Court addressed a similar question in a parallel context in CTS Corp. v. Waldburger, 573 U.S. 1, 3-4 (2014). CTS explained the consequences of the distinction between a statute of limitation and a statute of repose. Here, Plaintiff concedes that the eight-year limit in Section 4.16.350 is a statute of repose, and that it represents substantive law of the state of Washington. The court held that because there was no contradictory statute of repose in the FTCA, and the FTCA generally applied the substantive law “of the place where the omission occurred,” it followed that Section 4.16.350 applied to Plaintiff’s claims and precluded them., The court rejected Plaintiff’s contention that state statutes of repose do not apply to claims under the FTCA.
Court Description: Federal Tort Claims Act / Statute of Repose. The panel reversed the district court’s order holding that plaintiff Bette Bennett’s Federal Tort Claims Act (“FTCA”) action was not subject to dismissal for having been filed outside the applicable state statute of repose; and remanded for further proceedings to determine the constitutionality of the statute of repose under Washington’s state constitution. Bennett brought suit alleging medical malpractice by government physicians at Naval Hospital Bremerton in the state of Washington. Bennett first submitted a timely administrative claim to the Navy under the FTCA, which was denied. She filed her complaint in the Western District of Washington within six months thereafter, as required by the FTCA. The Government sought dismissal on grounds that Bennett’s claim had been extinguished by a Washington statute of repose, Wash. Rev. Code § 4.16.350, which prohibits the filing of professional negligence claims against health care providers more than eight years after the act or omission that allegedly caused injury. Because Bennett’s alleged injury from a 2009 medical procedure was not diagnosed until 2017, both her tort claim filed in 2018, and this action filed in 2020, were outside the eight-year period of the statute of repose, even though the claim was timely under the FTCA’s requirement that tort claims be filed within two years of “accrual.” The district court held that applying the statute of repose here would conflict with federal law, and therefore, the FTCA statute of limitations BENNETT V. UNITED STATES 3 preempted Section 4.16.350. The district court concluded that Bennett’s suit was timely filed and denied the Government’s motion to dismiss. The panel held that the only question at issue was whether the FTCA’s statute of limitations supplanted the eight-year statute of repose embodied in the latter clause of Section 4.16.350. The U.S. Supreme Court addressed a similar question in a parallel context in CTS Corp. v. Waldburger, 573 U.S. 1, 3-4 (2014). CTS explained the consequences of the distinction between a statute of limitation and a statute of repose. A statute of repose “is not related to the accrual of any cause of action,” but instead “mandates that there shall be no cause of action beyond a certain point, even if no cause of action has yet accrued.” Id. at 16. Here, Bennett concedes that the eight-year limit in Section 4.16.350 is a statute of repose, and that it represents substantive law of the state of Washington. The panel held that because there was no contradictory statute of repose in the FTCA, and the FTCA generally applied the substantive law “of the place where the omission occurred,” it followed that Section 4.16.350 applied to Bennett’s claims and precluded them. The acts and/or omissions forming the basis of Bennett’s claims occurred in February 2009, and the effect of the statute of repose arose eight years later in February 2017. At that point, even though Bennett’s claim had not yet accrued, she had no cause of action. In addition, under the FTCA, there was no waiver of sovereign immunity because there were no “circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1). The panel rejected Bennett’s contention that state statutes of repose do not apply to claims under the FTCA. 4 BENNETT V. UNITED STATES The panel also rejected Bennett’s argument that the FTCA preempted state statutes of repose that were supposedly “inconsistent” with the timing provisions in the FTCA, where, as here, they preclude a claim that the FTCA would not. The panel held that there was no impermissible inconsistency where statutes of limitation and statutes of repose serve overlapping, but ultimately different purposes.
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