United States District Court, E.D. Tennessee, Greeneville
MEMORANDUM OPINION AND ORDER
RONNIE GREER UNITED STATES DISTRICT JUDGE
matter is before the Court on the Sixth Circuit's remand
to decide unresolved issues with defendant's Motion to
Dismiss, [Doc. 14], and its Supplement, [Doc. 39]. The
defendant moved to dismiss the case pursuant to Federal Rules
of Civil Procedure 12(b)(1) and 12(b)(6). For the reasons
that follow, the motion is GRANTED IN PART and DENIED IN
review, Mr. Scott Walter Eiswert was honorably discharged
from the military on November 29, 2005. He applied for
service-connected disability benefits with the United States
Department of Veterans Affairs (“VA”) in May 2006
for Post Traumatic Stress Disorder (“PTSD”). The
VA denied the application in September 2006. Mr. Eiswert
applied for reconsideration on August 24, 2007, and the VA
once again denied his request on February 4, 2008. During
this process, Mr. Eiswert was unable to obtain treatment for
PTSD. On March 25, 2008, Mr. Eiswert declined the VA's
attempts to schedule an appointment with the VA's PTSD
Auerback Clinic. Tragically, Mr. Eiswert committed suicide on
May 16, 2008. In sum, Mr. Eiswert received no treatment from
the VA for PTSD from July 28, 2006, through March 25, 2008.
Eiswert's wife, Tracy Lynn Eiswert, the plaintiff,
continued to pursue the benefits. The VA granted PTSD-related
disability benefits on August 13, 2008, retroactive March 28,
2007. The VA increased this amount and the effective date on
August 26, 2008, due to error. The VA did so again in April
2009 and May 2010.
April 20, 2010, Ms. Eiswert filed an administrative claim
pursuant to the Federal Tort Claims Act (“FTCA”),
28 U.S.C. § 2675 (2011),  seeking compensation for damages
resulting from her husband's suicide. The VA denied the
claim on November 5, 2010. She sought reconsideration on
February 1, 2011. The VA notified Ms. Eiswert that the
reconsideration was denied on April 19, 2011, and informed
her she had six months to pursue her claim in federal court.
Eiswert and her children (“plaintiffs”) filed the
instant action alleging medical malpractice on October 11,
2011. Plaintiffs' counsel attached expert statements from
board-certified psychiatrists to the Complaint, [Doc. 1].
These experts opined that within a reasonable degree of
medical certainty, the VA's failure to recognize and
treat Mr. Eiswert's PTSD contributed to his untimely
death. One expert stated that the VA's treatment fell
below the applicable standard of care. Plaintiffs'
counsel also attached the experts' Curriculum Vitae.
However, the Certificate of Good Faith as required by
Tennessee Code Annotated section 29-26-122 was not attached.
defendant then filed a Motion to Dismiss, [Doc. 14], and
Supplement, [Doc. 39]. The defendant raised several
arguments: that (1) Title 38 United States Code section
511(a) precluded the Court's review of any benefit
determination; (2) Tennessee Code Annotated section
29-26-116(a)(3), the statute of repose, barred the
plaintiffs' action; (3) plaintiffs failed to file a
certificate of good faith and the action should be dismissed
pursuant to Tennessee Code Annotated section 29-26-122; and
(4) plaintiffs failed to properly demonstrate and plead
compliance with Tennessee Code Annotated section 29-26-121
and the action should be dismissed.
Court granted the defendant's motion because the
plaintiffs did not strictly comply with section 122 in filing
a Certificate of Good Faith. [Doc. 61]. The Court did not
address the section 511(a) or section 121 arguments. The Court
addressed, but did not decide, the statute of repose issue.
The plaintiffs then filed a Motion to Alter or Amend the
Judgment and supplements, [Docs. 63, 68 and 70]. The Court
denied the plaintiffs' motion, [Doc. 72], and the
oral arguments, the Sixth Circuit certified the question of
whether section 122 could be satisfied with substantial
compliance to the Tennessee Supreme Court. Eiswert v.
U.S., 619 Fed.Appx. 483, 488-89 (6th Cir. 2015). The
Tennessee Supreme Court declined to answer the question
because the section 121 argument had not been addressed and
might be determinative of the case. See Eiswert v.
U.S., 639 Fed. App'x 345, 347 (6th Cir. 2016). As
such, the Sixth Circuit remanded the case to this Court to
determine whether the Complaint satisfies section 121 and
address “any unresolved issues.” Id. In
a footnote, the Sixth Circuit noted that the statute of
repose issue “may also be dispositive.”
Id. at 348 n. 2.
issues before the Court after remand were whether (1)
Tennessee Code Annotated section 29-26-116(a)(3), the statute
of repose, bars the plaintiffs' action; (2) plaintiffs
failed to file a certificate of good faith and the action
should be dismissed pursuant to Tennessee Code Annotated
section 29-26-122; and (3) plaintiffs failed to properly
demonstrate and plead compliance with Tennessee Code
Annotated section 29-26-121 and the action should be
dismissed. Upon briefing these remanded issues, however, the
defendant stated that section “121 is no longer an
unresolved issue that needs to be resolved by the
Court.” As such, the parties agree that there are only
two issues this Court needs to address. See [Doc. 84
at 7] (stating plaintiffs' issues for the Court to
decide). They are whether the statute of repose, Tenn. Code
Ann. § 29-26-116(a)(3), bars the plaintiffs' action,
and whether plaintiffs' action should be dismissed for
failing to file a certificate of good faith, Tenn. Code Ann.
§ 29-26-122. The Court will discuss each issue in turn
after setting forth the standard of review.
STANDARDS OF REVIEW
12(b)(1) motion to dismiss an action for lack of subject
matter jurisdiction may be premised on a facial attack or a
factual attack. See Abdelkhaleq v. Precision Door of
Akron, No. 5:07-cv-3585, 2008 WL 3980339, at *2 (N.D.
Ohio Aug.21, 2008) (O'Malley, J.). A facial attack tests
the adequacy of the complaint, Scheuer v. Rhodes,
416 U.S. 232, 235-37 (1974), overruled on other grounds
by Davis v. Scherer, 468 U.S. 183 (1984), while a
factual attack evaluates the actual existence of subject
matter jurisdiction, Ohio Hosp. Ass'n v.
Shalala, 978 F.Supp. 735, 739 (N.D. Ohio 1997). The
importance of this distinction has to do with the nature of
the Court's consideration of the facts and allegations
presented in connection with the Rule 12(b)(1) motion. If the
motion presents a facial attack, the Court must construe the
pleadings in the light most favorable to the plaintiff and
may not consider extrinsic materials. Abdelkhaleq,
2008 WL 3980339 at *2 (citing United States v.
Ritchie, 15 F.3d 592, 598 (6th Cir. 1994)). In contrast,
if the motion presents a factual attack, the Court is free to
consider extrinsic evidence and may weigh the evidence of its
own jurisdiction without affording the plaintiff the
presumption of truthfulness that is the hallmark of the Rule
12(b)(6) standard. Id.; Rogers v. Stratton
Indus., Inc., 798 F.2d 913, 915 (6th Cir. 1986); see
also Ernst v. Rising, 427 F.3d 351, 372 (6th Cir. 2005).
pursuant to Federal Rule of Civil Procedure 12(b)(6)
eliminates a pleading or portion thereof that fails to state
a claim upon which relief can be granted. Fed.R.Civ.P.
12(b)(6). Moreover, Federal Rule of Civil Procedure 8(a)(2)
requires the complaint to contain a “short plain
statement of the claim showing that the pleader is entitled
to relief.” Fed.R.Civ.P. 8(a)(2). A motion to dismiss
under Rule 12(b)(6) requires the Court to construe the
allegations in the complaint in the light most favorable to
the plaintiff and accept all the complaint's factual
allegations as true. Meador v. Cabinet for Human
Res., 902 F.2d 474, 475 (6th Cir. 1990). The Court may
not grant a motion to dismiss based upon a disbelief of a
complaint's factual allegations. Lawler v.
Marshall, 898 F.2d 1196, 1199 (6th Cir. 1990). The Court
must liberally construe the complaint in favor of the party
opposing the motion. Miller v. Currie, 50 F.3d 373,
377 (6th Cir. 1995). However, the plaintiff must allege facts
that, if accepted as true, are sufficient “to raise a
right to relief above the speculative level, ” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), and
to “state a claim to relief that is plausible on its
face, ” id. at 570; see also Ashcroft v.
Iqbal, 556 U.S. 662, 678-79 (2009). “A claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678. Moreover, this Court need
not “‘accept as true a legal conclusion couched
as a factual allegation.'” Twombly, 550
U.S. at 555 (quoting Papasan v. Allain, 478 U.S.
265, 286 (1986)); see also Iqbal, 556 U.S. at 678.
Lastly, this Court may consider documents central to the
plaintiff's claims to which the complaint refers and
incorporates as exhibits. Amini v. Oberlin College,
259 F.3d 493, 502 (6th Cir. 2001).
defendant moves to dismiss pursuant to Rule 12(b)(1) and
argues that this Court lacks subject matter jurisdiction
because the plaintiffs failed to file their Complaint within
Tennessee's three-year statute of repose for health care
liability actions. Tenn. Code Ann. § 29-26-116(a)(3)
the parties disagree about the date on which the statute of
repose began to run. In Tennessee, the three-year repose
period begins from the date of the defendant's last
allegedly negligent act. See In re Estate of Davis,
308 S.W.3d 832, 838 (Tenn. 2010); Shadrick v. Coker,
963 S.W.2d 726, 735 (Tenn. 1998); see also Tenn.
Code Ann. § 29-26-116(a)(3). The defendant claims that
this time period began on March 25, 2008, the last time Mr.
Eiswert interacted with the VA. The plaintiffs claim the
period began when Mr. Eiswert committed suicide on May 16,
2008. Further, the plaintiffs assert that Tennessee Code
Annotated section 29-26-121(c) extended the statute of repose
by 120 days. The defendant does not challenge the extension.
Thus, the defendant argues that the plaintiff had until July
23, 2011, to file a health care liability suit. If the Court
uses the plaintiffs start date of May 16, 2008, then the
plaintiffs had until September 13, 2011, to file their
Mr. Eiswert's last interaction with the VA was on March
25, 2008, and he tragically committed suicide on May 16,
2008. On April 20, 2010, Ms. Eiswert filed an administrative
claim with the VA pursuant to the FTCA. The VA denied this
claim on reconsideration on April 19, 2011, and informed Ms.
Eiswert that she had six months to pursue her claim in
federal court. The plaintiffs filed the instant action
alleging medical malpractice on October 11, 2011. Again, the
defendant argues that the plaintiffs should have filed their
action in this Court prior to July 23, 2011. Nonetheless, the
defendant argues that, even accepting the plaintiffs'
time frame, the plaintiffs failed to file within the statute
of repose period. As such, the defendant claims that this
Court lacks subject matter jurisdiction.
cases in particular are instructive on this issue. In
Huddleston v. United States, 485 Fed. App'x 744,
745-46 (6th Cir. 2012), the court stated:
[Tennessee's] statute of repose is a substantive
requirement, not just a procedural hurdle. See, e.g.,
Cronin v. Howe, 906 S.W.2d 910, 913 (Tenn. 1995);
Montgomery v. Wyeth, 580 F.3d 455, 468 n. 7 (6th
Cir. 2009). Unlike a statute of limitations, which eliminates
the remedy available to plaintiffs, Tennessee's statute
of repose extinguishes the cause of action itself.
Id. Such substantive limitations apply to suits
brought against the United States under the FTCA, which
permits liability only 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.
See 28 U.S.C. § 2674 (“The United States
shall be liable, respecting the provisions of this title
relating to tort claims, in the same manner and to the same
extent as a private individual under like circumstances . . .
.”). Because federal law incorporates state substantive
law for the purposes of FTCA claims, applying Tennessee's
statute of repose to FTCA plaintiffs does not run afoul of
the Supremacy Clause.
Huddleston underwent the colonoscopy in 2006 and filed his
complaint in 2010 without claiming fraudulent concealment.
Consequently, at the time of his complaint, Tennessee law
recognized no cause of action for alleged medical negligence
regarding his medical treatment in 2006. The limitations
period of § 2401(b) ...