The opinion of the court was delivered by: Leslie E. Kobayashi United States District Judge
ORDER DENYING DEFENDANT'S MOTION FOR RECONSIDERATION FOR LACK OF SUBJECT MATTER JURISDICTION
Before the Court is Defendant United States of America's ("Defendant") Motion for Reconsideration for Lack of Subject Matter Jurisdiction ("Motion"), filed on March 24, 2011.*fn1
[Dkt. no. 181.] Plaintiffs Felise Mamea and Siuila Mamea (collectively "Plaintiffs") filed their memorandum in opposition on April 21, 2011. [Dkt. no. 186.] Defendant filed its reply on April 27, 2011. [Dkt. no. 187.] Plaintiffs filed a supplemental memorandum on June 22, 2011, and Defendant filed its opposition to the supplemental memorandum on July 6, 2011. [Dkt. nos. 203, 204.] On July 20, 2011 and July 25, 2011, pursuant to this Court's order, Defendant filed declarations setting forth the additional authority it intended to rely upon at the hearing on the Motion. [Dkt. nos. 208, 210.] Plaintiffs filed their declaration regarding additional authority on July 20, 2011. [Dkt. no. 209.]
This matter came on for hearing on July 25, 2011. Appearing on behalf of Defendant were Bridget Bailey Lipscomb, Esq., United States Department of Justice, and Assistant United States Attorney Harry Yee. Appearing on behalf of Plaintiffs were Mark Kamitomo, Esq., Judith Ann Pavey, Esq., Mark Bennett, Esq., and Shyla Cockett, Esq. After careful consideration of the Motion, the parties' supporting and opposing submissions, and the arguments of counsel, Defendant's Motion is HEREBY DENIED for the reasons set forth below.
The parties and the Court are familiar with the factual and legal history of this case, and the Court will only repeat the history that is relevant to the instant Motion.
This action consists of allegations of medical negligence under the Federal Tort Claims Act, 28 U.S.C. §§ 1346, 2671, et seq. ("FTCA"), against Tripler Army Medical Center ("TAMC") in Honolulu, Hawai`i. Plaintiffs allege that various physicians at TAMC failed to diagnose and treat Plaintiff Siuila Mamea ("Mrs. Mamea") in a timely and appropriate manner in 1997 and 1998. Plaintiffs allege that the TAMC physicians' negligent acts and omissions caused Mrs. Mamea severe and permanent injuries, specifically end stage renal disease ("ESRD") and kidney failure, forcing her to undergo dialysis for the rest of her life unless she has a kidney transplant. Plaintiffs also allege that, as a direct and proximate result of Defendant's conduct, Plaintiff Felise Mamea ("Mr. Mamea") suffered the loss of his wife's companionship and society.
This Court conducted a bench trial in this case from October 5 to 8, 2010, and October 12 to 15, 2010. The Court issued its Decision on November 15, 2010, outlining its rulings in the case and ordering supplemental documentation regarding damages. [Dkt. no. 164.] After receiving the parties' supplemental filings, the Court issued its Findings of Fact and Conclusions of Law and Order ("FOF/COL") on February 18, 2011. 2011 WL 718806. The Clerk of Court entered the final judgment later that day. [Dkt. no. 176.]
In the FOF/COL, this Court ruled in Plaintiffs' favor as to the majority of their claims and ordered that judgment be entered in Plaintiffs' favor in the amount of $7,378,872.57 to Mrs. Mamea and $150,000.00 to Mr. Mamea. FOF/COL, 2011 WL 718806 at *29.
II. Motion and Related Memoranda
In the instant Motion, Defendant argues that reconsideration of the FOF/COL is warranted because Mrs. Mamea failed to file a medical malpractice action prior to the expiration of the six-year statute of repose for medical torts set forth in Haw. Rev. Stat. § 657.7-3.*fn2 Defendant therefore argues that this Court does not have subject matter jurisdiction over the instant case. The instant Motion was the first time that Defendant raised the statute of repose argument in this case.
In their memorandum in opposition, Plaintiffs first argue that the Court should not consider the Motion because it is untimely pursuant to Fed. R. Civ. P. 59(e) and because Defendant waived the right to argue that the six-year limitation period in § 657-7.3 applies. Even if Defendant did not waive its § 657-7.3 argument, Plaintiffs contend that the six-year limitation period in § 657-7.3 is not a statute of repose and, even if it is a statute of repose, 28 U.S.C. § 2401 preempts it. Further, even if the six-year limitation period applies, Defendant's failure to disclose its negligence tolled the statute of repose.
In its reply, Defendant emphasizes that a lack of subject matter jurisdiction cannot be waived, and a court can address the issue at any time. Defendant argues that § 657-7.3's statute of repose is not preempted by the FTCA. Defendant also contends that the tolling provision in § 657-7.3 does not apply because TAMC did not know of any act, error, or omission that caused Mrs. Mamea's injury, and therefore there was no failure to disclose.
III. Supplemental Memoranda
In their supplemental memorandum, Plaintiffs argue that this Court need not consider Defendant's § 657-7.3 argument at all. First, under the FTCA, the United States is liable "in the same manner and to the same extent as a private individual under like circumstances[.]" 28 U.S.C. § 2674. Plaintiffs argue that § 657-7.3 only applies to certain licensed or registered healthcare professionals or to a "licensed hospital as the employer of any such person[.]" Plaintiffs sued Defendant merely as the employer of the physicians who committed malpractice, not as a hospital that employed such persons. Further, federal law does not allow suits against government hospitals, see 28 U.S.C. § 2679(b)(1), and Defendant is not analogous to a hospital in this case. Section 657-7.3 therefore does not apply.
Plaintiffs next contend that the Court need not consider § 657-7.3 because it is merely a state rule of substantive liability, not a limit on the federal courts' jurisdiction. Defendant therefore waived the § 657-7.3 affirmative defense by failing to assert it in a timely manner. In fact, although Defendant affirmatively pled the FTCA's statute of limitations as a defense in its answer, it made no mention of § 657-7.3 and, in its other filings, Defendant consistently referred to the FTCA's statute of limitations as the applicable law for the determination of whether Plaintiffs' claims were time-barred. Further, Plaintiffs assert that Defendant's failure to raise the § 657-7.3 defense in a timely manner was prejudicial to Plaintiffs. Had they known at trial that § 657-7.3 tolling was at issue, they would have presented evidence and argument directly addressing it.
Even if the Court considers § 657-7.3, Plaintiffs note that there is no case in either the Hawai`i state appellate courts or the United States District Court for the District of Hawai`i describing § 657-7.3 as a statute of repose. The cases consistently refer to the six-year limitation period within § 657-7.3 as a statute of limitations. Further, § 657-7.3 cannot be a statute of repose because it contains a tolling provision and, under both Hawai`i and Ninth Circuit law, statutes of repose cannot be tolled. For example, Plaintiffs state that the only statute that the Hawai`i courts refer to as a statute of repose is Haw. Rev. Stat. § 657-8, which contains similar language to § 657-7.3 but does not contain a tolling provision.
Plaintiffs also argue that, even if § 657-7.3 is a statute of repose, the FTCA statute of limitations controls. Plaintiffs emphasize that Congress did not incorporate state statutes of repose and did not intend for a different statute of limitations period to apply in each state. If the Court accepted Defendant's argument that the Court does not have subject matter jurisdiction over Plaintiffs' claim because Mrs. Mamea failed to file her action within the statute of repose period, it would mean that each state could determine the scope of the federal courts' jurisdiction over FTCA claims. Under Defendant's proposed analysis, a plaintiff's claim could be barred under a state's statute of repose, and the federal courts would not have jurisdiction over it, even if the plaintiff complied with the deadlines in the FTCA. Plaintiffs argue that such a result would be contrary to Congress' intent in adopting a statute of limitations for the FTCA that preempts all state statutes of limitations. Applying § 657-7.3's six-year limitation period to the FTCA would also frustrate Congress' intent because it would lead to a harsher result than provided for under the FTCA. Although Congress granted claimants two years from the accrual of their claim to bring suit, application of § 657-7.3 could bar a claim before the claim accrues.
Finally, Plaintiffs argue that, even if § 657-7.3 is a statute of repose and the FTCA does not preempt it, Plaintiffs still filed their claims prior to the expiration of the statute of repose. Plaintiffs contend that the tolling provision applies because the TAMC physicians never informed her that the treatment they administered to her, and their failure to implement a treatment plan upon her discharge, injured her kidneys. According to Plaintiffs, no one from TAMC or anyone else from the government, told them that TAMC gave Mrs. Mamea nephrotoxic substances - including Gentamicin and contrast, that those substances harmed her kidneys, or that TAMC was not going to implement a follow-up treatment plan, which was required under the standard of care. [Pltfs.' Suppl. Mem., Decl. of Siuila Mamea at ¶¶ 3-6, 8-10, Decl. of Felise Mamea at ¶¶ 2(a)-(c), (e)-(g).*fn3 ] In the alternative, Plaintiffs argue that Defendant's tort is a continuing one, and therefore the six-year limitation period has not expired. Defendant's negligent acts and omissions, in particular the failure to implement a follow-up plan for the ongoing treatment of Mrs. Mamea's condition, continued daily until Mrs. Mamea learned of her injuries. Insofar as this Court has found that this occurred, at the earliest on May 16, 2006, the six-year limitation period was tolled until then, and Plaintiffs' claims were timely.
In its opposition to Plaintiffs' Supplemental Memorandum, Defendant argues that the Court must consider the applicability of the § 657-7.3 statute of repose. Defendant contends that the statute applies, even if the TAMC physicians were not licensed in Hawai`i, because the United States must be held liable in the same manner as private individuals in like circumstances. Moreover, many other courts have held that the United States is entitled to the benefits of tort reform laws even if it does not comply with state requirements, such as licensing. Defendant reiterates its position that the expiration of a statute of repose deprives the federal courts of jurisdiction over the claim, and counsel cannot waive subject matter jurisdiction.
Defendant acknowledges that no Hawai`i case law expressly identifies § 657-7.3 as a statute of repose. Defendant, however, argues that Yamaguchi v. Queen's Medical Center, 65 Haw. 84, 648 P.2d 689 (1982), effectively declared it a statute of repose by stating that it absolutely bars a claim six years from the date of the allegedly tortious act or omission. [Opp. to Pltfs.' Suppl. Mem. at 2 (some citations omitted) (quoting Yamaguchi, 648 P.2d at 692-93; Blair v. Ing, 21 P.3d 452, 472 n.17 (Haw. 2001) (implicitly referencing § 657-7.3 as a statute of repose)).] Defendant also argues that the legislative history of § 657-7.3 indicates that it is a statute of repose because the legislative intent behind it was the same as the intent behind other states' statutes of repose, to control the costs of medical malpractice insurance by setting end dates for the filing of medical malpractice actions. Further, the tolling provision in § 657-7.3 does not prevent it from being a statute of repose because many other state statutes of repose for medical malpractice actions also include a tolling provision. [Id. at 6 (citing Robin Miller, Annotation, 14 A.L.R. 6th 301 n.12 (2006) (citing thirty-two states with statutes of repose; list does not include New Mexico's and Oklahoma's statutes of repose)).] Defendant also argues that the Hawai`i courts refer to statutes of repose and statutes of limitations "interchangeably". [Id. at 7 (citing Savini v. University of Hawaii, 153 P.3d 1144, 1151 (Haw. 2007); State v. Timeteo, 952 P.2d 865, 879 (Haw. 1997) (Ramil, J., dissenting)).]
Defendant argues that the FTCA does not preempt § 657- 7.3's statute of repose because the FTCA only preempts state statutes of limitations. Finally, Defendant contends that the statute of repose was not tolled in this case because Plaintiffs cannot show that the TAMC physicians knew, at the time they treated Mrs. Mamea, and failed to disclose that they caused harm to her kidneys that would lead to kidney failure or ESRD. The evidence at trial indicates that the TAMC physicians believed that they helped her and that she was "stone free" upon her final discharge in 1998. Defendant acknowledges that the physicians knew that administering Gentamicin and contrast in connection with an intravenous pyelogram ("IVP") could have a nephrotoxic effect, but Defendant contends that those were the best treatments available under the circumstances, and the TAMC physicians administered them with care and monitored Mrs. Mamea's condition ...