Law Updates

Court Grants Defendants’ Motions to Amend Answers to Include Statute of Limitations Defense

Veronica McCall-Scovens v. May Hsieh Blanchard et al., No. ELH-15-3433, (United States District Court for the District of Maryland, October 27, 2016) | View pdf

(November 1, 2016) Caroline E. Willsey, Law Clerk.

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In McCall-Scovens v. Blanchard, Plaintiff filed a medical malpractice action against the United States (“Government Defendant”) and two physicians at the Baltimore Veterans Affairs Medical Center (“Physician Defendants”) under the Federal Tort Claims Act (FTCA). Pursuant to a scheduling order in the case, both the United States and the Physician Defendants filed Motions to Amend their Answers to Plaintiff’s Complaint in order to add the affirmative defense of statute of limitations. Plaintiff challenged the Motions to Amend, asserting waiver.

In October 2010, Plaintiff first presented to the Baltimore Veterans Affairs Medical Center (“VA”). Ultrasounds in late 2010 and early 2011 revealed an ovarian cystic mass. Subsequent ultrasounds in January 2012 revealed findings that were “suspicious for an ovarian/adnexal neoplasm.” Plaintiff contends that based on these results, her doctors at the VA should have known that the mass was suspicious for malignancy and should have been surgically removed. The mass was not removed until January 2013, when it was biopsied and revealed to be cancerous. Plaintiff was then diagnosed with stage IIIC serous carcinoma, which required “extensive surgical intervention” in February 2013. Plaintiff filed suit in this case in November 2015.

On the deadline for motions to amend pleadings, the Government and Physician Defendants sought to amend their Answers to add the defense of statute of limitations, claiming that the amendment was “in the interest of justice.” In opposition to Defendants’ motions, Plaintiff alleged that, pursuant to Federal Rule of Civil Procedure 8(c), Defendants had waived the right to assert the affirmative defense of limitations. Defendants did not explain why the defense of limitations was omitted from their original answers, or what information was discovered, which then led them to seek to amend. Defendants countered that Plaintiff had not presented any allegations of prejudice, bad faith, or futility and that Defendants had moved promptly to amend upon learning that the defense of statute of limitations had been omitted from their Answers.

Federal Rule of Civil Procedure 8(c)(1) states that in responding to a pleading a party must affirmatively state any affirmative defenses, including statute of limitations. But, Rule 8(c) does not address the consequences for failing to do so. The Court noted that this is unlike Rule 12(h)(1), which provides that a party waives the defenses set forth in Rule 12(b)(2)-(5) if they are not included in a responsive pleading or motion. The defense of limitations is not included in Rule 12(b)(2)-(5). In the Fourth Circuit, it is well established that an affirmative defense is not waived absent unfair surprise or prejudice. See Patten Grading & Paving, Inc. v .Shanska USA Bldg., Inc., 380 F.3d 200, 205 n. 3 (4th Cir. 2004).

Motions to Amend implicate Federal Rule of Civil Procedure 15(a)(2), which states that the court should freely give leave to the parties to amend pleadings when justice so requires. The Supreme Court in Foman v. Davis, 371 U.S. 178 (1962) mandated a liberal reading of the rule’s direction for free allowance. Motions to amend are to be granted in the absence of undue delay, bad faith or dilatory motive, undue prejudice to the opposing party, or futility of amendment. The district court analyzed each of these reasons in turn.

First, the Court determined that Defendants’ delay in seeking to amend was not length enough to constitute undue delay. Where defendants did not move to amend on the eve of trial or after the close of discovery, courts generally allow such motions. Here, Defendants moved to amend within two (2) to three (3) months of filing their original answers and within the time afforded by the Scheduling Order. Discovery was still in progress and a trial date had not been set. Thus, the delay was not undue.

Second, the Court concluded that Plaintiff was not prejudiced by Defendants’ delay. Turning to Fourth Circuit precedent, the Court stated that prejudice can result where a proposed amendment raises a new legal theory that would require fact gathering and analysis by the opposing party. The fact that Plaintiff’s claims may be barred by the statute of limitations does not amount to prejudice sufficient to defeat a Motion to Amend. Plaintiff did not identify any potential prejudice from the proposed amendments. The Court was unconvinced that the limitations defense would significantly affect the scope or cost of discovery in any way so as to prejudice Plaintiff, especially given that the parties had eight (8) months remaining to conduct discovery.

Third, the Court found that Defendants did not act in bad faith. To reach this conclusion, the Court looked to whether the Motions to Amend were made in good faith. A good faith amendment, the Court reasoned must advance a colorable legal argument. Because Defendants inadvertently omitted the defense of limitations, the Court found that the proposed amendment was not in bad faith.

Finally, the Court rejected the idea that Defendants’ proposed amendment was futile. The inclusion of a limitations defense is not futile so long as it is relevant and potentially dispositive. The statute of limitations at issue in this case provided that any tort claim against the United States is barred if not presented to the appropriate Federal agency within two (2) years after the claim accrued. See 28 U.S.C. § 2401(b). The Supreme Court in United States v. Kubrick, 444 U.S. 111 (1979), articulated a standard pertaining to “accrual” in FTCA claims. The Fourth Circuit, elaborated on Kubrick to hold that a medical malpractice claim under the FTCA accures when “the plaintiff knows or, in the exercise of due diligence, should have known both the existence and the cause of his injury.” Gould v. U.S. Dept. of Health & Human Servs., 905 F.2d 738, 742 (4th Cir. 1995). In failure to diagnose cases, a cause of action does not necessarily accrue when the malady is finally diagnosed, but rather when the earlier failure to diagnose is discovered. Ultimately, in this case, whether Plaintiff’s medical malpractice claims are barred by limitations depends on when her claims accrued. Prior to the close of discovery, however, the Court determined that it would be premature to conclude that the limitations defense was so clearly insufficient or frivolous on its face as to be futile.

Accordingly, the Court granted Defendants’ Motions to Amend.