E.Y., a Minor, by his Mother and Next Friend, Tenille Wallace, and TENILLE WALLACE, individually, Plaintiffs,
THE UNITED STATES OF AMERICA, UNIVERSITY OF CHICAGO, CATHERINE HARTH, M.D., KENNETH R. MACEK, M.D., NATASHA JENKINS, M.D., KRISTINE WROBLEWSKI, R.N., and SHERLEY MCCLAIN, R.N., Defendants.
MEMORANDUM OPINION AND ORDER
ROBERT W. GETTLEMAN, District Judge.
On August 25, 2011, Plaintiffs E.Y., a minor, by his mother and next friend, Tenille Wallace, and Tenille Wallace, individually, filed their second amended complaint for damages in this medical malpractice action under the Federal Tort Claims Act, 28 U.S.C. § 2671 ("FTCA"), and the Family Expense Act, 750 ILL. COMP. STAT. 65/15, against defendants United States of America, the University of Chicago, and six individuals. On February 4, 2013, defendant United States ("the government") moved for summary judgment on sovereign immunity grounds. In the course of briefing, plaintiffs also filed a motion to strike the government's Rule 56.1 statement of facts and a supporting declaration. For the reasons described below, the court grants the government's motion for summary judgment and denies plaintiffs' motion to strike.
On November 4, 2004, then-20-year-old plaintiff Tenille Wallace ("Tenille") first received medical care for her first pregnancy at the federally funded Friend Family Health Center, Inc. ("Center") and was treated by Dr. Nana Biney, M.D. On March 29, 2005, Tenille presented at the Center for a prenatal visit with elevated blood pressure, complaining of face and hand edema and visual changes. Tenille was evaluated and treated by Dr. Biney, who requested that she have prolonged fetal monitoring in labor and delivery and that she return to the clinic in one week. Tenille, however, did not receive the prolonged fetal monitoring when she went into labor on April 4, 2005, and was taken to the University of Chicago Hospital ("Hospital"). Minor plaintiff E.Y. was delivered by C-section because of "non-reassuring fetal monitor strips." At the time of E.Y.'s birth, Tenille knew something was wrong because E.Y. was delivered looking "purple and limp, " and within days thereafter a doctor told her that E.Y. had been deprived of some oxygen during delivery. Since then, Tenille, as the parent of E.Y., became obligated for various hospital and medical expenses resulting from E.Y.'s anoxic brain injury under the Family Expense Act, 750 ILL. COMP. STAT. 65/15.
On May 9, 2006, Dr. Lisa Thornton examined E.Y. and diagnosed the child with "diplegic cerebral palsy." Dr. Thornton explained the diagnosis to Tenille. After her consultation with Dr. Thornton, Tenille spoke with her uncle, Phillip Beth, an attorney licensed in Illinois. Beth suggested that Tenille speak to a lawyer regarding E.Y. and the circumstances surrounding his birth, explaining that she might have a case. Specifically, Beth referred Tenille to the Clifford Law Office ("CLO"). Tenille admits that she delayed in contacting CLO for months because of her hesitation to get involved in legal proceedings.
Tenille eventually contacted CLO by telephone in late October or early November 2006. In mid November 2006, Tenille first met with an attorney from CLO to discuss her potential case. By Tenille's own admission, she believed she had a case against her doctors when she initially consulted CLO. Tenille met with CLO attorneys on a second unknown date, where she signed a representation agreement and a release for her medical records. Subsequent to that meeting, on November 28, 2006, plaintiffs' counsel requested a complete copy of plaintiffs' records from the Center and the Hospital.
On December 14, 2006, plaintiffs' counsel received a partial set of prenatal records from the Center. Plaintiffs' counsel continued to request a full set of medical records from the Center and Hospital. In May 2007, plaintiffs' counsel received a set of partial Hospital records. In October 2007, plaintiffs' counsel received additional prenatal records from the Center, and in January 2008, plaintiffs' counsel received Tenille's April 5, 2005 fetal monitor strips from the Hospital.
On December 10, 2008, plaintiffs filed suit in the Circuit Court of Cook County. The government removed the case to federal court on that same day, and filed a motion to dismiss for failure to exhaust administrative remedies. Within 60 days of dismissal of the state court action, plaintiffs presented their claims to the Department of Health and Human Services. Therefore, under 28 U.S.C. § 2679(d)(5), December 10, 2008, is the date on which plaintiffs' claims are deemed filed for statute of limitations purposes.
In April 2011, the government moved to dismiss the complaint on statute of limitations grounds, but the motion was denied. E.Y. v. United States, 2011 WL 2604900 (N.D. Ill. June 29, 2011). This court found that, based on the facts alleged in the complaint, the earliest time plaintiffs' claims could have accrued was December 16, 2006, the date that plaintiffs' counsel received partial records from the Center. This date was within the relevant two year statute of limitations. The court determined that the receipt of medical records, in conjunction with Tenille's knowledge of her course of treatment, may have been sufficient to give Tenille the subjective belief of a government cause to E.Y.'s injury. The court determined that plaintiffs' claim had not accrued prior to December 10, 2006, because under Stoleson v. United States , 629 F.2d 1265, 1270 (7th Cir. 1980), Tenille's subjective belief that there was a possible government cause of E.Y.'s injury alone did not begin the accrual of the claims.
The government now moves for summary judgment on sovereign immunity grounds, arguing that plaintiffs' case is time-barred because they failed to file their claim, which is a prerequisite to suit under the FTCA, within the two-year statute of limitations. The government argues that additional evidence has been developed in discovery regarding when plaintiffs' claim accrued, and that the Seventh Circuit has recently provided clarification regarding the standard for accrual dates.
I. Legal Standard
Defendant has raised a statute of limitations defense in a motion for summary judgment, which renews the defense raised on a motion to dismiss. On a 12(b)(6) motion, plaintiff's factual allegations are taken as true and inferences are drawn in plaintiff's favor. In re marchFIRST Inc. , 589 F.3d 901, 904 (7th Cir. 2009) (affirming 12(b)(6) dismissal on statute of limitations). If the face of the complaint nonetheless clearly demonstrates that the cause of action has not been brought within the statute of limitations, the motion to dismiss will be granted. Motor Carrier Audit and Collection Co., a Div. of Delta, 113 B.R. 424, 425 (N.D. Ill.1989). If further discovery regarding the accrual of a cause of action is warranted, a party may properly develop the record and move for summary judgment on statute of limitations grounds. Alioto v. Marshall Field's & Co. , 77 F.3d 934, 937 (7th Cir. 1996).
A movant is entitled to summary judgment under Rule 56 when the moving papers and affidavits show there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Unterreiner v. Volkswagen of Am., Inc. , 8 F.3d 1206, 1209 (7th Cir. 1993). A genuine issue of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Stewart v. McGinnis , 5 F.3d 1031, 1033 (7th Cir. 1993). Once a moving party has met its burden, the nonmoving party must go beyond the pleadings and set forth specific facts showing there is a genuine issue for trial. See Fed.R.Civ.P. 56(c); Becker v. Tenenbaum-Hill Assocs., Inc. , 914 F.2d 107, 110 (7th Cir. 1990). The court considers the record as a whole and draws all reasonable inferences in the light most favorable to the party opposing the motion. See Fisher v. Transco Services-Milwaukee Inc. , 979 F.2d 1239, 1242 (7th Cir. 1992). Summary judgment may properly be entered on the basis of a statute of limitations defense if, "(1) the statute of limitations has run, thereby ...