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Spillers v. United States

United States District Court, E.D. Michigan, Southern Division

February 9, 2015

RODNEY LEE SPILLERS, as Personal Representative of the Estate of Jeffrey Ryan Spillers Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

OPINION AND ORDER: DENYING PLAINTIFF'S OBJECTIONS (ECF NO. 16); ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION (ECF NO.15); AND GRANTING DEFENDANT'S MOTION TO DISMISS (ECF NO. 6)

PAUL D. BORMAN, District Judge.

Before the Court are Plaintiff Rodney Lee Spillers' ("Plaintiff") Objections to Magistrate Judge Mona K. Majzoub's May 5, 2014 Report and Recommendation in favor of granting Defendant United States of America's ("Defendant") Motion to Dismiss. (Objections, ECF No. 16). The Defendant filed a response to Plaintiff's objections. (ECF No. 17)

For the reasons stated below, the Court will deny Plaintiff's Objections, adopt the Magistrate Judge's Report and Recommendation, and grant Defendant's Motion to Dismiss.

I. BACKGROUND

Plaintiff filed the current complaint in this action on August 15, 2013 pursuant to the Federal Tort Claims Act, 28 U.S.C. § 1346(b). (ECF No. 1). Plaintiff asserts that Defendant, through the United States Department of Veteran's Affairs ("VA"), committed medical malpractice and negligence in violation of Michigan's Wrongful Death Act, Mich. Comp. Laws § 600.2921.[1]

Plaintiff alleges that the decedent, Jeffrey Spillers ("Decedent"), was a member of the United States Army who served in Iraq during the first Gulf War. (Compl. ¶ 15; ECF No. 11, Pl.'s Resp. at 3). In September 2008, Decedent began receiving primary care treatment through the Pontiac VA Community-Based Outpatient Clinic ("CBOC") as well as from other VA medical centers in Michigan.[2] (Compl. ¶ 16). Decedent presented at these visits with headaches, balance difficulties, seizures, depression, fatigue, loss of vision, visual disturbances, nystagmus, and a facial droop. (Compl. ¶¶ 16-17). On October 31, 2008, Decedent saw a neurologist who recommended an MRI. (Def.'s Mot., Ex. 4)[3]. However, no MRI was conducted at that time. Then in December 2008, Decedent again presented to the CBOC for a "re-check" and the medical records made at that time noted that "[h]e is scheduled for a pulmonary function test and a MRI." (Ex. 7). Yet, no MRI was performed at that time.

Over the next six months, Decedent visited the VA optometry clinic and had three more "re-check" visits to CBOC. (Exs. 9, 10). In July 2009, Decedent presented at the emergency room with symptoms of headache, vision changes, and nausea; but an MRI was not performed at that time. (Pl.'s Resp. at 5; Ex. 11). On July 31, 2009, Decedent visited the Detroit VA Medical Center Pain Clinic complaining of poor vision, weakness, misalignment of his eyes, sleepiness, dizziness and other symptoms. (Ex. 14). At this appointment, Decedent and his girlfriend requested a MRI which was then scheduled. ( Id. ).

On August 4, 2009, Decedent received the MRI which revealed "multiple intracranial masses" that resulted in pressure on the right side of his brain and was "highly suggestive" of a brain tumor. (Pl.'s Resp. at 6; Def.'s Br. Ex. 15, at 5).

On August 11, 2009, Decedent, his two brothers, and his girlfriend had a neurology consult. (Ex. 15). During that visit, the neurologist noted Decedent's previous consultation with the neurology department in 2008 and the fact that an MRA and an MRI were ordered at that time, but only the MRA had been performed. (Ex. 15, at 1-2). That same day, Decedent was admitted to the John Dingell VA Medical Center and also sent for a CT scan which confirmed the locations of the brain masses and also noted possible metastsis. (Ex. 16; Compl. ¶ 24). On August 12, 2009, Decedent was transferred to the Ann Arbor VA Medical Center where he remained through September 3, 2009, when he was transferred to the Community Living Center. ( Id. ). On August 12, 2009, the same day he was transferred to the Ann Arbor VA Medical Center, Decedent personally requested a copy of all of his medical record including "all notes, reports, records, files on record". (Ex. 17). Decedent was supplied with a copy of his records on August 21, 2009. ( Id. ).

During his stay at the Ann Arbor VA Medical Center, Decedent received more testing and a biopsy was performed. (Pl.'s Resp. at 7-8). On August 27, 2009, Decedent was informed that he had anaplastic astrocytoma - brain cancer. (Pl.'s Resp. at 7-8; Ex. 18, 19; Compl. ¶ 23). During a consultation on August 27, 2009, the doctor noted that he "spent a considerable amount of time at this veteran's bedside today discussing the diagnosis, prognosis, and likely therapy; apparently they were under the impression that this veteran had benign' disease not requiring surgery." (Ex. 19, at 1). Decedent received radiation, chemotherapy, and physical therapy to treat his brain tumor, but Decedent was not a candidate for surgery. (Ex. 19).

On October 23, 2009, Decedent was discharged and returned home to receive hospice care. (Pl.'s Resp. at 7; Compl. ¶ 27). Decedent passed away from his disease on December 15, 2009. (Pl.'s Resp. at 7; Compl. ¶ 30).

Some months after the Decedent's death, Plaintiff contacted an attorney and thereafter the medical records were reviewed by a medical expert. (Pl.'s Resp. at 8). On December 14, 2011, Plaintiff filed his administrative claim with the VA. ( Id. ). On February 19, 2013, the VA denied Plaintiff's claim by letter. (Ex. 21). Then on August 15, 2013, Plaintiff filed this action "within six (6) months from the date of mailing this determination" as provided by the FTCA, 28 U.S.C. § 2401(b). ( Id.; ECF No. 1).

Defendant then filed the present Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1), claiming that the Court lacks jurisdiction because Plaintiff did not file his administrative claim within the requisite two year statute of limitations set forth by the FTCA. (ECF. No. 6). The matter was referred to the Magistrate Judge, who issued a Report and Recommendation concluding that the Defendant's motion should be granted. (ECF No. 15). Plaintiff then filed his objections (ECF No. 16) and Defendant thereafter filed a response (ECF No. 17).

II. STANDARD OF REVIEW

Pursuant to Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1), the Court conducts a de novo review of the portions of the Magistrate Judge's Report and Recommendation to which a party has filed "specific written objections" in a timely manner. Lyons v. Comm'r Soc. Sec., 351 F.Supp.2d 659, 661 (E.D. Mich. 2004). Only those objections that are specific are entitled to a de novo review under the statute. Mira v. Marshall, 806 F.2d 636, 637 (6th Cir.1986). "The parties have the duty to pinpoint those portions of the magistrate's report that the district court must specially consider." Id. (internal quotation marks and citation omitted). A general objection, or one that merely restates the arguments previously presented, does not sufficiently identify alleged errors on the part of the magistrate judge. An "objection" that does nothing more than disagree with a magistrate judge's determination, "without explaining the source of the error, " is not considered a valid objection. Howard v. Sec'y of Health and Human Servs., 932 F.2d 505, 509 (6th Cir. 1991).

Defendant moves to dismiss based on a lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). The United States Court of Appeals for the Sixth Circuit has described motions to dismiss for lack of subject matter jurisdiction pursuant to ...


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