Marc Grover v. VA General Counsel

Philadelphia, PA - Criminal defense lawyer represented defendant with alleging that he contracted Hepatitis C via a blood transfusion administered at the Veterans Administration Medical Center claim.

Grover alleges that he contracted Hepatitis C via a blood transfusion administered

at the Veterans Administration Medical Center in Pittsburgh in 2001.1

Grover filed an

administrative disability claim based on his Hepatitis C diagnosis and hypertension in

2002. In 2019, he filed an administrative tort claim alleging that he received "tainted

blood” from the transfusion resulting in Hepatitis C and kidney disease, which the

Department of Veterans Affairs denied as untimely. In February 2020, Grover filed this

suit pursuant to the Federal Tort Claims Act, 18 U.S.C. § 2671. The United States moved

to dismiss or, in the alternative, for summary judgment, and the District Court notified

Grover that it might treat the motion as one for summary judgment under Federal Rule of

Civil Procedure 56.2

After Grover submitted evidence, the District Court granted the

1 Grover received two transfusions within several hours on the same day. See Medical

Rs., ECF No. 11 at 16; ECF No. 14-2 at 7. He appears to allege that the second

transfusion infected him. ECF No. 11 at 20; ECF No. 14 at 1.

2

In his complaint, Grover listed one defendant (giving the name of the defendant as U.S.

Government but describing the defendant's job or title as VA General Counsel). Compl.

at 2, ECF No. 3. Defense counsel entered an appearance for what he initially described

as two defendants (VA General Counsel and U.S. Government), Notice of Entry of

Appearance at 1, ECF No.5, but he filed the motion, and otherwise defended, on behalf of

the "United States.” Mot. to Dismiss or, in the Alternative, Mot. for Summ. J. at 1, ECF

No. 8. We interpret the complaint to have been filed against the United States, as the

"Government is the only proper defendant in a case brought under the FTCA.” CNA v.

3

Government's motion for summary judgment because the record showed that Grover

failed to timely exhaust his administrative remedies prior to filing suit. Grover appeals.

II.

We have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over a

grant of summary judgment, applying the same standard that the District Court applies.

Barna v. Bd. of Sch. Dirs. of Panther Valley Sch. Dist., 877 F.3d 136, 141 (3d Cir. 2017).

Summary judgment is appropriate "if the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). We "must view the facts and evidence presented in the light most

favorable to the nonmoving party.” Razak v. Uber Techs., Inc., 951 F.3d 137, 144 (3d

Cir. 2020). But that party may not rely on speculation and conclusory allegations. Id.

III.

An FTCA claim against the Government must be presented to the appropriate

federal agency "within two years after such claim accrues.” 28 U.S.C. § 2401(b). In the

medical malpractice context, the claim generally accrues when a plaintiff knew or

reasonably should have known of "both the existence and the cause of his injury.” Miller

v. Phila. Geriatric Ctr., 463 F.3d 266, 271, 273 (3d Cir. 2006). "[A]ccrual does not await

United States, 535 F.3d 132, 138 n.2 (3d Cir. 2008); see also Hughes v. United States,

701 F.2d 56, 58 (7th Cir. 1982) ("Under the Federal Tort Claims Act, a governmental

agency cannot be sued in its own name; the action must be brought against the United

States.”).

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the point at which a plaintiff also knows that the acts inflicting the injury may constitute

medical malpractice.” Id. at 271. The claim is "presented” (thus tolling the running of

the limitations period) when an executed SF–95 and a claim for money damages in a sum

certain are received by the government agency. 28 C.F.R. § 14.2. An otherwise untimely

claim may nevertheless be permitted via equitable tolling in situations "(1) where the

defendant has actively misled the plaintiff respecting the plaintiff's cause of action; (2)

where the plaintiff in some extraordinary way has been prevented from asserting [his or]

her rights; or (3) where the plaintiff has timely asserted [his or] her rights mistakenly in

the wrong forum.” D.J.S.-W. ex rel. Stewart v. United States, 962 F.3d 745, 750 (3d Cir.

2020) (quoting Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1387 (3d

Cir. 1994), abrogated on other grounds by Rotkiske v. Klemm, 890 F.3d 422, 428 (3d

Cir. 2018) (en banc)). To benefit from equitable tolling, a plaintiff must have exercised

due diligence in pursuing and preserving the claim and present something more than a

garden variety case of excusable neglect. Id.

The Government argues that Grover did not file an administrative tort claim with

the Department of Veterans Affairs until 2019, even though he was aware of his

diagnosis and attributed it to the blood transfusion as early as 2002 and certainly by 2012.

While Grover's arguments are not fully clear, he apparently contends that he filed a tort

claim in 2002, or was led to believe that he had, and that the Government concealed

information about his testing and treatment.

5

There is no genuine dispute that Grover was aware of his Hepatitis C diagnosis

and suspected that the blood transfusion was to blame by at least 2012, when he testified

to that effect in a video hearing before the Board of Veterans' Appeals.3

Before the

District Court, Grover implied that his claim was nevertheless timely because he in fact

filed an administrative tort claim simultaneous with or prior to his disability claim in

2002. Grover relied on his own assertions and excerpts from correspondence concerning

a FOIA request he submitted to the Department of Veterans Affairs in 2020. Grover

characterizes these excerpts as showing that VA officials acknowledged the existence of

a 2002 tort claim, but they show no more than that the VA interpreted his request as

seeking information about such a claim and provided some documents deemed

responsive.4

On appeal, Grover alleges that he was told by someone in 2003 that his

disability claim was a tort claim and that he was not disabused of this belief until

recently. He also alleges new details regarding his conversation with the officials

processing his FOIA request. These unsworn and uncorroborated allegations in Grover's

appellate brief were not part of the record before the District Court and we cannot

consider them. See In re Capital Cities/ABC, Inc.'s Application for Access to Sealed

3 The record contains substantial evidence that Grover blamed the blood transfusion for

his diagnosis as early as 2002. Grover alleges, in a conclusory manner, that much of this

evidence is forged or fraudulent. As Grover's claim accrued by at least 2012, we need

not rely on that evidence to resolve this case.

4 Grover did not submit the VA's full response, but he complained to a VA official that

the responsive documents concerned his 2019 tort claim.

6

Transcripts, 913 F.2d 89, 96 (3d Cir. 1990) ("This Court has said on numerous occasions

that it cannot consider material on appeal that is outside of the district court record.”).

Grover also argues that the Government withheld records crucial to his claim. He

asserts that he "did not know the exact date of antibody to virus until it was revealed” by

a document from the Allegheny Department of Health he obtained in 2018. Pl.'s Am. Br.

3, 3d Cir. ECF No. 7.5

But Grover does not explain how any lack of knowledge

concerning the precise timeline of his infection prevented him from pursuing an

administrative tort claim at an earlier juncture. While such information may have

affected the strength of Grover's claim, it does not affect the previously cited evidence

concerning when his claim accrued.6

There is no evidence in the record that the

Government prevented Grover from bringing an administrative tort claim.

On the summary judgment record before the District Court, there was no genuine

dispute that Grover did not file an administrative tort claim with the Department of

Veterans Affairs within two years of the accrual of his claim. And we agree with the

District Court that the record does not support the application of equitable tolling here.

Accordingly, we will affirm the judgment of the District Court.7