[00:00:00] Speaker 01: The next case is Lewis versus U.S. [00:00:02] Speaker 01: 251036. [00:00:18] Speaker 03: Good morning, Your Honors, and may it please the Court. [00:00:21] Speaker 03: Michael Kuhn on behalf of Appellants Kate and Jeffrey Lewis. [00:00:24] Speaker 03: I'd like to reserve two minutes for rebuttal. [00:00:28] Speaker 03: Ms. [00:00:28] Speaker 03: Lewis has terminal metastatic breast cancer because her medical provider failed to diagnose the malignant tumor. [00:00:35] Speaker 03: She pursued a claim against the United States and complied with every timing requirement under the Federal Tort Claims Act. [00:00:42] Speaker 03: But according to the trial court, Ms. [00:00:44] Speaker 03: Lewis can't bring a claim against the United States because she discovered her cancer 32 days too early, triggering Colorado's medical malpractice statute of repose. [00:00:56] Speaker 03: The trial court's grant of summary judgment is wrong. [00:00:59] Speaker 03: It rests on a misreading of the Colorado's statute of repose, reopens constitutional issues addressed by the Colorado Supreme Court, and resolves disputed material facts that must go to a jury as to when Ms. [00:01:12] Speaker 03: Lewis discovered or should have discovered the nature, extent, and cause of her cancer. [00:01:17] Speaker 03: But more fundamentally, Colorado's statute of repose is conflict preempted by the Federal Tort Claims Act, as applied. [00:01:25] Speaker 01: So in other words, only if we adopt the district court's interpretation of the statute of repose is it preempted? [00:01:33] Speaker 03: Correct, Your Honor. [00:01:34] Speaker 03: And the rule that we're advocating for today is a narrow rule. [00:01:37] Speaker 03: And I'll explain that further. [00:01:39] Speaker 03: We submit and we argued below that state statutes of repose are always conflict preempted. [00:01:44] Speaker 03: But the situation here involved kind of a unique set of facts where the claim accrued [00:01:49] Speaker 03: shortly before the expiration of the statute of repose, and where there was insufficient time to comply with the six-month requirement. [00:01:58] Speaker 03: So the FTCA, Congress in passing it, created a framework that favored the administrative resolution of claims. [00:02:06] Speaker 03: And in that vein, Congress said that just before you can sue the United States, you have to file a claim with the agency, give the agency at least six months to consider it, [00:02:15] Speaker 03: And as this court noted in Lopez, that rule has very important underpinnings. [00:02:20] Speaker 03: And that is, it gives the agency notice of a claim, an opportunity to investigate, and a chance to settle it outside of litigation, which was Congress's preferred method for resolving claims. [00:02:32] Speaker 03: Colorado's statute of repose creates a material impediment to that administrative process. [00:02:37] Speaker 03: And as applied here, made compliance with the two statutes impossible. [00:02:42] Speaker 03: Allowing a state statute of repose [00:02:45] Speaker 03: to short circuit the FTCA's mandatory administrative process, shortens the presentment period, pressures premature filing, and undermines Congress's settlement-focused scheme. [00:03:01] Speaker 03: Congress did not create the administrative process to operate under the constant threat that state law would extinguish the claim before the process could even conclude. [00:03:13] Speaker 03: This case illustrates the point. [00:03:15] Speaker 03: The trial court found that Miss Lewis discovered her cancer on December 31, 2019, and that the statute of repose expired February 1, 2020. [00:03:26] Speaker 03: So even if Miss Lewis had filed an administrative claim, the very day that the trial court held that she had discovered her cancer, she still could not have pursued it against the United States, whereas a private person in that circumstance could be liable. [00:03:43] Speaker 03: Now, we acknowledge that no circuit court has held that the FTCA preempts state statute of repose. [00:03:49] Speaker 03: But we submit that a narrow rule that would hold that state statutes of repose are preempted in those rare cases such as Ms. [00:03:58] Speaker 03: Lewis's, where the statute of repose extinguishes a claim when there's a short period of time after accrual. [00:04:08] Speaker 04: Well, when Congress said in the FTCA statute that, you know, if private persons, there's no liability against a private entity, then there's no liability against the government, did they indicate any exception to that rule? [00:04:30] Speaker 04: I guess I understand your argument, but I don't see how that really comes into play. [00:04:36] Speaker 04: Which is that just fundamental sense of fairness and that it's contrary to everything the FTCA is about. [00:04:42] Speaker 04: But the FTCA contains this provision saying, if a private entity can't be liable, neither can the government. [00:04:50] Speaker 04: And it doesn't say, unless it's not very fair for that to happen. [00:04:54] Speaker 03: Your Honor, we're not relying on express preemption. [00:04:57] Speaker 03: We're relying on conflict preemption. [00:04:59] Speaker 03: And our argument is that Congress, in passing the FTCA, supplied its own deadlines. [00:05:08] Speaker 03: We're dealing with a statute of repose here for what I would term as not core substantive. [00:05:13] Speaker 03: It doesn't deal with elements of liability, standards of care, damages, theories, and the like. [00:05:20] Speaker 03: But when it comes to conflict preemption, I think that the point you're making highlights the impossibility concern. [00:05:27] Speaker 03: Sitting on December 31, 2019, had Ms. [00:05:30] Speaker 03: Lewis been with a private provider, she could have sued them, in theory. [00:05:35] Speaker 03: She could not have, because she had a claim against the United States and was required to go through the six-month administrative process. [00:05:45] Speaker 03: And so there's an impossibility tension there where she could not have pursued a claim even if she wanted to. [00:05:52] Speaker 04: You didn't make any argument below, did you? [00:05:55] Speaker 04: And I think you're not making it on appeal that this is simply not, in the context of this Colorado statute, it's not a substantive statute of repose. [00:06:05] Speaker 04: I mean, it's part of one section. [00:06:07] Speaker 04: It's essentially a unitary statute of limitation. [00:06:11] Speaker 04: And when you get to section to the exceptions, it refers to, [00:06:16] Speaker 04: It refers to the limitation of actions provided in subsection one when it's suggesting that the statute of repose isn't going to apply, indicating that the statute of repose is part of a unitary statute of limitation. [00:06:30] Speaker 03: Your Honor, we conceded below and on appeal that the statute of repose here is substantive. [00:06:34] Speaker 04: Yeah. [00:06:34] Speaker 04: I'm wondering why you did that. [00:06:36] Speaker 03: Because there was, I think, a great weight of cases across the nation hold that statute of repose is [00:06:43] Speaker 04: Don't you have to look at the statute in this case, not generally statutes of repose, the statute in this case and how it is designed. [00:06:55] Speaker 03: And Your Honor, I think there was discussion in Judge Walz. [00:06:57] Speaker 04: And this isn't just some general statute of repose. [00:06:59] Speaker 04: This is a statute of repose in Colorado for medical malpractice actions. [00:07:04] Speaker 04: And then there are these exceptions. [00:07:07] Speaker 03: And again, Your Honor, that point was not argued below, so we didn't brief it on appeal. [00:07:11] Speaker 03: I would say, though, even if we concede that it's substantive, a substantive law from our view can still be conflict preempted when it undermines the central pillar of the FTCA, specifically the administrative process. [00:07:24] Speaker 03: And so when you look at the circuit court cases that the United States have relied on, I don't believe such a rule would be inconsistent with those cases insofar as [00:07:34] Speaker 03: Baldwin and Smith were very brief, unpublished decisions that didn't address the issue. [00:07:39] Speaker 03: Agudis, Huddleston, and Anderson all involved plaintiffs who, in theory, could have complied with both the statute of repose and the six-month administrative requirement. [00:07:50] Speaker 03: In other words, there was at least six months remaining upon discovery prior to the expiration of the statute of repose. [00:07:56] Speaker 03: But then that leaves Bennett and Jones. [00:07:58] Speaker 03: But in those cases, the statute of repose have already expired. [00:08:02] Speaker 03: prior to the accrual of a claim. [00:08:04] Speaker 03: But Bennett is useful in one regard. [00:08:06] Speaker 03: The Ninth Circuit, in saying that the statute of repose is basically incorporated as substance of law, in footnote nine, left open the possibility of what it turned as an equitable exception or a different rule that might apply when a claim accrues shortly before the expiration of the statute of repose and the administrative process would be frustrated thereby. [00:08:29] Speaker 03: Well, Your Honors, we're here today on those facts. [00:08:31] Speaker 03: And we think that the court can create a narrow rule consistent with footnote nine and Bennett. [00:08:36] Speaker 02: Counsel, can I ask you about the accrual date? [00:08:39] Speaker 02: Do you view that as a question of fact? [00:08:42] Speaker 03: I do, Your Honor. [00:08:43] Speaker 03: And that is another very simple way this court can reverse the trial court's grant summary judgment. [00:08:49] Speaker 03: The relevant date here is February 1, 2020, when the statute of repose according to the trial court accrued. [00:08:55] Speaker 03: So even if we accept the trial court's reasoning on preemption, [00:08:59] Speaker 03: We accept its interpretation of the statute. [00:09:02] Speaker 03: We still contend that there were material facts of events that occurred post-February 1, 2020 that create a tribal issue of fact as to whether Ms. [00:09:10] Speaker 03: Lewis knew the nature, extent, and cause of her cancel. [00:09:14] Speaker 02: So you would say or agree that if we found there is a dispute of material facts, so summary judgment was not appropriate as it relates to the accrual date, then your as applied preemption argument may not need to be reached? [00:09:26] Speaker 03: Absolutely, Your Honor. [00:09:27] Speaker 03: The court can easily resolve this case in summer. [00:09:30] Speaker 03: And there would be a good reason to do so. [00:09:32] Speaker 03: Sitting on January 31, 2019, excuse me, 2020, all that Miss Lewis knew at that point in time is that she had breast cancer that had metastasized to a single lymph node. [00:09:46] Speaker 03: She had yet to meet with an oncologist. [00:09:48] Speaker 03: She didn't know whether the cancer would be life ending. [00:09:51] Speaker 01: She didn't know. [00:09:52] Speaker 01: Why does any of that matter? [00:09:54] Speaker 03: Because, Your Honor, the Colorado Court of Appeals decision in Liceo versus Pinson is wide. [00:09:59] Speaker 03: And what Liceo versus Pinson says is that when you look at knowledge of an injury, what is required is knowledge of not only the nature of the injury, but also the extent of the injury. [00:10:11] Speaker 01: Well, OK, fine. [00:10:13] Speaker 01: So on February 1, 2017, the nurse looks at her love and says, it's fine. [00:10:22] Speaker 01: Nope, no problem, nothing to worry about. [00:10:26] Speaker 01: December 31st, she realizes she has cancer. [00:10:32] Speaker 01: January 31st, she realizes it's metastasized. [00:10:36] Speaker 01: Okay, well, she thought on February 1, 2017 that she had nothing to worry about. [00:10:43] Speaker 01: She knows that she has now cancer. [00:10:47] Speaker 01: It seems to me the $64,000 question is whether or not [00:10:51] Speaker 01: the cancer that was detected on December 31, 2019 was the same lump that she thought was nothing on February 1, 2017. [00:11:06] Speaker 01: But you haven't made that argument. [00:11:07] Speaker 03: We have, Your Honor. [00:11:08] Speaker 03: And I think that argument was made below, specifically, that the trial court viewed the question of parole through the lens of worsening of the condition. [00:11:16] Speaker 03: Well, there was no evidence to show that between [00:11:20] Speaker 03: what nurse Trexler failed to diagnose in 2017, in February 1, that that condition had worsened. [00:11:28] Speaker 03: So I think that there's a distinction between the worsening of what was then thought of a benign cyst is quite different than the worsening of terminal cancer. [00:11:38] Speaker 03: So I think when you look at it through that lens, in the McCullough case out of the district of Wisconsin, I think, addresses that. [00:11:45] Speaker 03: There was no evidence to show. [00:11:47] Speaker 03: that there had been a worsening of the cancer between that time. [00:11:50] Speaker 03: And on summary. [00:11:51] Speaker 01: I'm not 100% sure that what, if I'm correctly interpreting what that argument means, are you saying that on the 11th of February when she sees the oncologist, that the oncologist is the first time that anybody ever tells her that this problem, this cancer, this metastasized cancer in your breast is exactly what nurse Drexler looked at [00:12:17] Speaker 01: three years or a couple of months ago. [00:12:21] Speaker 03: Your Honor, there was no specific statement in that regard during the meeting. [00:12:25] Speaker 03: Now, the appointment she had with her oncologist was a lengthy appointment. [00:12:29] Speaker 03: The notes were exhaustive. [00:12:31] Speaker 04: But- Was that the February 10th? [00:12:33] Speaker 03: February 11th, I believe, or 10th. [00:12:36] Speaker 03: Yes. [00:12:37] Speaker 03: That, I think, on summary judgment and granting Ms. [00:12:41] Speaker 03: Lewis all favorable inferences, that we can assume that that may have been discussed as to [00:12:47] Speaker 03: likely, you know, the origin of the cancer, the development that it had done, and the progression and the likely treatment Ms. [00:12:54] Speaker 03: Lewis would have to undergo because of it. [00:12:57] Speaker 04: Well, you don't pay much attention in your briefing to what happened in between February 1st and [00:13:05] Speaker 04: 2017 December 31st 2019 but in between there didn't she have a mammogram and an ultrasound that would have been read by a radiologist another doctor who said looking at that apparently that same she she absolutely thought was assist she absolutely looking at that same telling her nope nope nothing there but if anything there and then doesn't that actually support you I guess I'm not understanding it does support it particularly the causal why don't you rely on that as much as you rely on [00:13:34] Speaker 04: these dates to say at what point would she have known that the February 1, 2017 diagnosis was wrong, much less the 2018 or whatever year that was. [00:13:48] Speaker 03: And we made that argument below and in our brief. [00:13:51] Speaker 04: And particularly it goes to causation. [00:13:56] Speaker 03: So all throughout this process, [00:13:59] Speaker 03: Ms. [00:13:59] Speaker 03: Lewis's medical providers are telling her it's of no concern, nothing to worry about. [00:14:04] Speaker 04: The same lump. [00:14:06] Speaker 04: The same lump in her left breast. [00:14:08] Speaker 03: Yes. [00:14:08] Speaker 04: Yeah. [00:14:10] Speaker 03: And so we think that at a minimum, there are tribal issues of material fact. [00:14:16] Speaker 03: And yeah, sure, reasonable minds can disagree as to whether or not Ms. [00:14:19] Speaker 03: Lewis knew of the nature, extent, and cause of her cancer sitting on February 1. [00:14:24] Speaker 03: But it wasn't for the trial court to resolve that issue on summary judgment. [00:14:28] Speaker 03: And so this court can simply avoid the preemption argument. [00:14:32] Speaker 03: It can avoid the statutory construction and potential constitutional questions under Colorado state law by simply resolving it on summary judgment. [00:14:40] Speaker 03: And with that, I would request to reserve the balance of my time, unless the panel has any additional questions. [00:14:45] Speaker 01: I do, but Robert, why don't you stop this clock, OK? [00:14:49] Speaker 01: I'm not cheating you. [00:14:50] Speaker 01: I do rebuttal. [00:14:51] Speaker 01: I have a question for you. [00:14:53] Speaker 01: Can I go as long as I would like? [00:14:56] Speaker 01: I'm only insane once a day, and Mr. Brown already got my moment of insanity. [00:15:05] Speaker 01: So I have a question, though. [00:15:07] Speaker 01: So on this, in your interpretation of 3C, as I understand it, you've got two separate arguments. [00:15:18] Speaker 01: One is that it's an exemption. [00:15:24] Speaker 01: If the injury wasn't immediately known on February 1, 2017, then this statute of repose is inapplicable. [00:15:37] Speaker 01: But you also interpret it, as I read your briefs, as like the equivalent of a tolling provision. [00:15:46] Speaker 01: So in other words, that that three-year statute of repose would only begin on, say, December 31, 2019. [00:15:56] Speaker 01: Which of those is your argument? [00:15:59] Speaker 01: I think it's primarily that what it does, subsection 3, is create a discovery rule. [00:16:04] Speaker 01: So you're not arguing that if she didn't know on February 1, 2017, you don't have to worry about a statute of request? [00:16:11] Speaker 03: The two kind of collapse on each other. [00:16:12] Speaker 03: If she knew on February at that point in time, the discovery rule would have just started at that point in time. [00:16:18] Speaker 03: And so our argument is this, that subsection C, the trial court added language that wasn't there, [00:16:25] Speaker 03: to say that it has to be discovered within the three-year period. [00:16:29] Speaker 03: And I would submit, Your Honor, that Colorado's statute of repose, it's not a traditional statute of repose considering the context in which this exception came about. [00:16:39] Speaker 03: I don't want to abuse the additional time that you've given me. [00:16:42] Speaker 03: And so I'm happy to take the additional 32 seconds I have prior to my rebuttal, just briefly explaining that. [00:16:47] Speaker 03: And that is, originally, the statute had A and B for [00:16:51] Speaker 03: knowing concealment and foreign objects, and then the Colorado Supreme Court comes out with this opinion. [00:16:56] Speaker 01: Can I stop you? [00:16:57] Speaker 01: Because you are going to get your rebuttal, but I'm still not sure that I understood, and I probably just missed it. [00:17:04] Speaker 01: They answered my question. [00:17:05] Speaker 01: So I just want to know [00:17:10] Speaker 01: Door number A. There used to be a show called Let's Make a Deal. [00:17:13] Speaker 01: You're too young to remember it. [00:17:14] Speaker 01: Monty Hall. [00:17:15] Speaker 01: Monty Hall. [00:17:16] Speaker 01: OK. [00:17:17] Speaker 01: You're older than I thought you were. [00:17:19] Speaker 01: So door number one is an exemption. [00:17:22] Speaker 01: She didn't know on February 1, 2017 about an injury. [00:17:29] Speaker 01: You never will address this statute of repose. [00:17:34] Speaker 01: Because she didn't know on that day. [00:17:35] Speaker 01: Door number two, Monty Hall. [00:17:39] Speaker 01: says, well, that statute of repose begins on December 31, 2019. [00:17:44] Speaker 01: Am I right that your argument is door number two? [00:17:48] Speaker 01: You're not arguing door number one. [00:17:50] Speaker 03: I'm not, Your Honor. [00:17:51] Speaker 03: I think when you look at the plain and ordinary language of the statute, that's what it says. [00:17:56] Speaker 03: Now, to the extent there's any ambiguity, this court's starting point has to be the Colorado Supreme Court's decision in Austin versus Litvak. [00:18:06] Speaker 03: And what the court there said in the plurality opinion, [00:18:09] Speaker 03: was that the original statute only had A and B for foreign object and concealment cases. [00:18:16] Speaker 03: And the Colorado Supreme Court in a plurality opinion said, look, three of the justices said it violates the equal protection clause of the state constitution to fail to give the same benefit of the discovery rule as they have for A and B, to negligent misdiagnosis. [00:18:31] Speaker 03: The fourth justice, Justice Dabowsky, she says, [00:18:36] Speaker 03: that look, it violates a separate provision of the Colorado Constitution. [00:18:39] Speaker 03: Anytime you employ a statute of repose to foreclose a claim when a plaintiff doesn't have a meaningful opportunity to pursue it. [00:18:47] Speaker 03: So then the legislature passes and adds this subsection C to address it. [00:18:51] Speaker 04: I think when you... Is there any legislative history to show that that's what they did? [00:18:55] Speaker 03: There was none that was addressed on that and how this came about. [00:18:58] Speaker 04: There was a lot going on in that time. [00:19:00] Speaker 04: I mean, there was. [00:19:01] Speaker 03: You had the tension between the tort reform movement and the Colorado Supreme Court, which was opposed to too much of that. [00:19:09] Speaker 03: And so I think that what we have to do is we say, all right, well, sitting here today, negligent misdiagnosis plaintiffs under the trial court's interpretation of the statute do not have the benefit of a discovery plus two years, which A and B unquestionably do. [00:19:24] Speaker 03: That would certainly trigger the concern of three of the justices. [00:19:27] Speaker 03: And as to Justice Deboff's concern, I don't submit that anyone would say 32 days is a reasonable period of time to pursue a claim. [00:19:34] Speaker 03: And so with that, Your Honor, I will reserve the balance of my time. [00:19:37] Speaker 03: You can answer as much as you want. [00:19:41] Speaker 04: I'm here all day. [00:19:42] Speaker 04: I do have a question about what I think is a mess in terms of this statute itself. [00:19:48] Speaker 04: And I thought your request to certify was [00:19:52] Speaker 04: Apparently not well taken because it came late, but this strikes me as a potentially certifiable case. [00:19:59] Speaker 03: We would have no objections to certifying it. [00:20:01] Speaker 04: In terms of the interpretation of the statute. [00:20:04] Speaker 04: Because, for instance, the Colorado Supreme Court to me seemed to recognize in the two cases that have considered this issue, the misdiagnosis issue, Comstock and [00:20:15] Speaker 04: Austin? [00:20:17] Speaker 04: Austin, yeah. [00:20:19] Speaker 04: They recognize that section three, which contains the limitations now, A, B, and C, when it says the limitations of actions provided in subsection one, they recognize they weren't just talking about the limitation of action, they were talking about the repose limitation. [00:20:37] Speaker 04: So they recognize that at least with A and B, the limitation of action [00:20:42] Speaker 04: If you apply exceptions A and B, there is no statute. [00:20:45] Speaker 03: There is no statute, and that's the issue. [00:20:46] Speaker 04: Why would it be any different on C? [00:20:49] Speaker 04: Why would it you? [00:20:50] Speaker 04: Well, it has to be. [00:20:51] Speaker 04: Right. [00:20:52] Speaker 03: Well, that's why I'm asking you. [00:20:53] Speaker 03: The constitutional avoidance, if you don't interpret it that way. [00:20:54] Speaker 04: But nobody seemed to be. [00:20:55] Speaker 04: The district court didn't really. [00:20:57] Speaker 04: point that out, which A and B, it's accepted that there's no statute of repose, but the same act, the same language, and three applies to C, which is the limitation of actions provided in subsection one do not apply. [00:21:10] Speaker 04: So how do we get any aspect, any portion of the statute of repose applying under C? [00:21:17] Speaker 03: I don't believe we do, and I think that interpreting that manner is consistent with what the General Assembly did to comply with the commands of Austin versus Litvak. [00:21:25] Speaker 03: Maybe. [00:21:26] Speaker 04: Maybe they saw Austin v. Litvak as a plurality opinion that had no relevance. [00:21:33] Speaker 03: We agree the statute is a mess. [00:21:35] Speaker 03: But again, the starting point for this court's discussion should be Austin v. Litvak. [00:21:39] Speaker 03: I understand that there are probably reservations as to the rational basis analysis. [00:21:43] Speaker 03: But as it goes to the state constitution, we need to defer to what three of the seven justices said in that regard and view Austin v. Litvak. [00:21:56] Speaker 01: So you ended up getting as much time as you wanted anyway. [00:22:16] Speaker 05: May it please the court. [00:22:18] Speaker 05: Elizabeth Ford Maloney on behalf of the United States. [00:22:21] Speaker 05: The FTCA incorporates, not preempts, Colorado's statute of repose. [00:22:26] Speaker 05: That statute of repose sets a hard deadline. [00:22:30] Speaker 05: The Lewis's claim was extinguished three years after Ms. [00:22:34] Speaker 05: Lewis met with nurse practitioner Trexler. [00:22:36] Speaker 05: That hard deadline was not met. [00:22:39] Speaker 04: And the exception... Only if Section C applies. [00:22:41] Speaker 04: Doesn't apply. [00:22:42] Speaker 04: Only if Subsection C doesn't apply. [00:22:46] Speaker 04: Correct. [00:22:47] Speaker 04: Subsection C does not say that. [00:22:48] Speaker 04: Could you answer that question that I just asked because it's fresh on my mind and I apologize for interrupting so quick. [00:22:54] Speaker 04: Certainly. [00:22:54] Speaker 04: I don't want to lose that train of thought which is why would Section C possibly have a partial statute of repose [00:23:06] Speaker 04: built back into it when section C is subject to the same limiting language of three, which is the limitations of actions provided in subsection one, do not apply under the following circumstances, meaning the statute of repose and the statute of limitations do not apply. [00:23:27] Speaker 04: So in my mind, you've got to figure out, just like under section A and B, what is the statute of limitation? [00:23:34] Speaker 04: There is no statute of repose. [00:23:36] Speaker 04: But the statute of limitation is different. [00:23:39] Speaker 04: And I don't see anybody really taking that on other than the plaintiff, I guess is in some way. [00:23:45] Speaker 04: But that limiting language in Section C says the limitations do not apply. [00:23:51] Speaker 05: Correct. [00:23:52] Speaker 05: The government's position is that if 3C is met, [00:23:55] Speaker 05: the statute of repose is of no moment, that three-year limitation in subsection one. [00:24:00] Speaker 05: But I will note, Your Honor, that... Right. [00:24:03] Speaker 04: Okay. [00:24:03] Speaker 04: If 3C is met. [00:24:04] Speaker 05: Right. [00:24:04] Speaker 05: Okay. [00:24:04] Speaker 05: But 3A and 3B are a little bit different. [00:24:07] Speaker 05: They say the limitation of action doesn't apply, back up to subsection one, but they have a new statute of repose period. [00:24:15] Speaker 05: How do we know that? [00:24:16] Speaker 04: It's not a statute of repose according to Colorado Supreme Court. [00:24:20] Speaker 04: It's this new statute of limitation. [00:24:22] Speaker 04: Well, it starts from the act or omission. [00:24:24] Speaker 05: So it restarts that statute of repose for two years. [00:24:28] Speaker 05: And that is a completely different text than the General Assembly does now. [00:24:32] Speaker 04: That's not what the Colorado Supreme Court said, though. [00:24:35] Speaker 04: They definitely said there's no statute of repose now under A and B. I just think, you see what I'm saying? [00:24:42] Speaker 04: I don't think I'm entirely following your under. [00:24:44] Speaker 04: Well, that's the way I read the Austin case. [00:24:48] Speaker 05: The way that I read Austin is this. [00:24:50] Speaker 05: that in these two certain types of medical malpractice cases, these foreign object and knowing concealment, we're going to operate the statute of repose a little bit differently. [00:25:02] Speaker 05: And we can come up with many reasons why that may be the case. [00:25:07] Speaker 05: According to the government, there's [00:25:09] Speaker 05: Reasons why there are barriers to discovery and those sorts of cases and so in those circumstances Instead of a cruel as the important date It's discovery of the act or a mission and that's slightly different than a cruel and so in that scenario 3a and 3b they start from when you actually know about statute of limitations That's the statute When you say statute of limitations, I think the government would push back into the crew [00:25:36] Speaker 05: For purposes of subsection one, it accrues when on the date that the injury and the cause were known or should have been known. [00:25:42] Speaker 04: And when does it accrue the statute of limitations under A and B? [00:25:47] Speaker 05: Same date, but the statute of repose is from discovery of act or omission. [00:25:51] Speaker 05: So for instance, one example could be, let's say you didn't know that a sponge was left in your body after a surgical procedure. [00:26:00] Speaker 05: You have no injury. [00:26:01] Speaker 05: You still don't know about it. [00:26:02] Speaker 05: Nothing has gone on. [00:26:03] Speaker 05: But then you get an email that this happened. [00:26:06] Speaker 05: You would have learned at that point, you would have discovered the act or omission. [00:26:11] Speaker 05: You may not have an injury, but that still is important for purposes of 3A and 3B. [00:26:16] Speaker 05: So I think that that discovery of the act or omission and then the accrual date, those are separate triggering dates. [00:26:22] Speaker 05: So it's important to separate those out. [00:26:24] Speaker 05: And what's really crucial is that after Austin, the General Assembly could have created a rule just like 3A and 3B and put that for negligent misdiagnosis patients in scene. [00:26:35] Speaker 05: The General Assembly did not do so. [00:26:36] Speaker 05: The statute of repose operates differently in 3C. [00:26:40] Speaker 05: And I think that the difference in language is really telling here. [00:26:43] Speaker 05: I do want to touch on preemption briefly, though, before we get too deep into Austin. [00:26:49] Speaker 05: The government's position is that this really isn't a preemption question to decide here. [00:26:53] Speaker 05: The supremacy clause doesn't need to pick a winner. [00:26:57] Speaker 05: The FTCA only waives sovereign immunity to the extent a private party would be liable. [00:27:03] Speaker 05: So in this regard, we can sort of think of a two-step process. [00:27:06] Speaker 05: And the first step is the state substantive law. [00:27:09] Speaker 05: Is that satisfied? [00:27:10] Speaker 05: Then, once the state substantive liability is satisfied under that step one, then we get to step two and wonder if the procedural requirements of the FTCA are satisfied. [00:27:22] Speaker 05: Step one was not met here. [00:27:24] Speaker 05: So the FTCA is of no moment a few circuit courts [00:27:28] Speaker 05: have described it that way. [00:27:29] Speaker 05: There is no clash that this court needs to resolve. [00:27:32] Speaker 05: But even if this court were to take the preemption question on, I think the CTS Corp case from the US Supreme Court has recognized that the degree of specificity with which you define a statute's purpose is pretty important for this preemption question. [00:27:47] Speaker 05: And while, of course, the purpose of the administrative exhaustive requirement is to put these sorts of claims in front of the agency first, [00:27:55] Speaker 05: The broader FTCA is a statute that waives sovereign immunity only to the extent a government would be liable if this was against a private defendant. [00:28:04] Speaker 05: So I think that that broader purpose needs to be considered. [00:28:09] Speaker 05: Even if you narrowly consider just the purpose [00:28:12] Speaker 05: of the FTCA's administrative exhaustion requirement. [00:28:16] Speaker 05: This is actually an easier case than some other circuit court cases have dealt with because the fact of the matter is the agency filing was not before the statute of repose period concluded. [00:28:27] Speaker 05: It did not occur till after. [00:28:29] Speaker 05: So in this case, it wasn't as if that agency process was cut short or hurried along because it was already outside of the statute of repose. [00:28:40] Speaker 01: Sure. [00:28:41] Speaker 01: So she finds out the day before the statute of repose expires, according to Judge Melgren, that the cancer has metastasized. [00:28:49] Speaker 01: She still hasn't seen an oncologist, by the way. [00:28:53] Speaker 01: Right. [00:28:54] Speaker 01: And so she had, while she's dealing with this new news that, oh, by the way, I have metastasized cancer. [00:29:02] Speaker 01: So she could have filed that administrative claim the next day and, well, [00:29:08] Speaker 01: on February 1st, and so she didn't. [00:29:11] Speaker 01: So, I mean, that can't be the law. [00:29:17] Speaker 01: I mean, so she waits. [00:29:19] Speaker 01: So you would have had the same argument as she waited 48 hours after finding out her cancer metastasized, or one month and two days after she found out that she had cancer. [00:29:32] Speaker 01: And so she had 32 days to file an administrative claim. [00:29:36] Speaker 05: So, I think that some cases have recognized perhaps there is more of a tension for purposes of the procedural requirements of the and statutes of repose. [00:29:45] Speaker 05: If that agency filing was made inside the statute of repose period, there is some tension there, but this court doesn't need to decide that case because that's not what happened here. [00:29:54] Speaker 05: This court could reserve that question just as Bennett did in footnote 9 talks about how that is a different sort of factual circumstance that's not presented here. [00:30:03] Speaker 01: Well, Benton is our case. [00:30:06] Speaker 01: You know, Benton, what the court held open is, if the claimant has a very short window in order to file an administrative claim, and that's what I'm trying to say, I don't think you would quarrel with the fact that [00:30:21] Speaker 01: that this fits precisely within Benton because she only had either two days or 32 days to file an administrative claim. [00:30:29] Speaker 05: Right, I think 32 days is the government's position. [00:30:32] Speaker 05: It was 32 days to file this SF95. [00:30:35] Speaker 04: And I think that... 32 days when she hadn't even spoken to an oncologist about the etiology of her cancer. [00:30:41] Speaker 04: Right, and I think that that just comes back to... So how does she know? [00:30:44] Speaker 04: How does she know what the source of this cancer is? [00:30:48] Speaker 04: Particularly here, where in the past two years, she's had multiple misdiagnosis, apparently. [00:30:57] Speaker 04: this cancer, although you're only talking about the first one here, but how would she possibly know, having been misdiagnosed apparently in February of 2017, and then at least a couple times more, at least three other doctors apparently missed this. [00:31:16] Speaker 04: Certainly the person who did the mammogram, the radiologist who read the mammogram and the ultrasound, missed it. [00:31:21] Speaker 04: How is it that she's supposed to know on December 31st, 2019 [00:31:26] Speaker 04: when all she knows is this tumor is now cancer, how is she supposed to know the etiology of that? [00:31:36] Speaker 04: How is she supposed to know that it's the same lump? [00:31:40] Speaker 04: that she was told was a cyst in 2017, that she was told by the radiologist who read the actual mammograms and ultrasounds in 2018. [00:31:49] Speaker 04: How was she to know that day? [00:31:52] Speaker 04: Oh, my gosh. [00:31:53] Speaker 04: That was from that misdiagnosis back in 2017. [00:31:56] Speaker 04: At a minimum, how could she know before she talked to the oncologist? [00:32:00] Speaker 04: And who knows if she even knew then? [00:32:03] Speaker 04: So the government takes a different view on what is... Well, let's accept that there was a question of fact about when she knew [00:32:10] Speaker 04: the cause Then under Colorado law that that would not be appropriate for summary judgment But so do could we go there and avoid all of these questions? [00:32:22] Speaker 05: That is one way to resolve it, Your Honor, but I would really push back on that she knew it was the cancer from 2017 that was still persistent. [00:32:30] Speaker 04: The fact of the matter is... She didn't know is what I'm saying. [00:32:32] Speaker 04: How was she to know? [00:32:33] Speaker 05: Right. [00:32:34] Speaker 05: And so when we look at medical malpractice cases, particularly in the negligent misdiagnosis context, there will always be a condition that the plaintiff sought treatment for in the beginning. [00:32:46] Speaker 05: That condition was a lump. [00:32:48] Speaker 04: There's usually not a condition in a cancer case where there's been multiple misdiagnosis of the same lump. [00:32:55] Speaker 04: And it's the patient who is super diligent and continues to say, I got a problem with this. [00:33:02] Speaker 04: I got a problem with this. [00:33:03] Speaker 04: Will you please biopsy this? [00:33:05] Speaker 04: Has to ask multiple times to finally get the biopsy. [00:33:08] Speaker 04: That is not the typical case. [00:33:10] Speaker 04: And that is the facts of this case, which I'm suggesting [00:33:13] Speaker 04: might mean that there was a question of fact as to whether she would have known which diagnosis was the problem. [00:33:19] Speaker 05: If that is one way to resolve the case, it would be the summary judgment concern about cause. [00:33:24] Speaker 04: We'll address those facts. [00:33:26] Speaker 04: Those facts. [00:33:27] Speaker 04: Not the general case. [00:33:28] Speaker 04: These facts. [00:33:29] Speaker 05: The McCullough case, I think the differences in the McCullough case with this case helps us. [00:33:34] Speaker 05: Because in the McCullough case, [00:33:36] Speaker 05: The plaintiff knew at the first appointment after the fact that she had cancer at that first time, and that was a negligent misdiagnosis. [00:33:45] Speaker 04: But we don't have those facts in this case, the facts we have here in that case. [00:33:48] Speaker 04: Precisely. [00:33:49] Speaker 04: Where you've got a two-year odyssey of trying to diagnose this, you know, trying to get it diagnosed, trying to get a biopsy, only the person who's not a medical professional pushing it, we don't have those facts in any other case that you've cited. [00:34:05] Speaker 05: Exactly. [00:34:06] Speaker 05: And that's how we know that the condition changed over time. [00:34:09] Speaker 05: Because what we know from this summary judgment record is that when she saw nurse practitioner Trexler on February 7, 2017, she went on that date. [00:34:21] Speaker 05: The lump, as she was told, was nothing to worry about. [00:34:24] Speaker 05: So that is the condition that she sought treatment for. [00:34:27] Speaker 05: Over the years, that condition changed. [00:34:30] Speaker 05: The lump [00:34:30] Speaker 05: changed and changed and changed. [00:34:32] Speaker 04: The same lump, the same lump. [00:34:33] Speaker 04: Well, we don't know that necessarily from the- How was she to know that is my point. [00:34:37] Speaker 04: You're suggesting she had to know by February 1st or certainly by December 31st of 2019 [00:34:45] Speaker 04: that what the cause of her injury was. [00:34:48] Speaker 04: How was she to know that? [00:34:50] Speaker 05: Colorado cases have been clear that you don't need to have an expert opinion weighing in that this negligent misdiagnosis from three years ago, that's definitely what... Of course you don't. [00:34:58] Speaker 04: This is a fluid situation. [00:34:59] Speaker 04: She hasn't even spoken to the oncologist yet. [00:35:02] Speaker 05: Right. [00:35:02] Speaker 05: But she has facts available to her. [00:35:04] Speaker 01: And what's particularly meaningful as... What facts does she have available? [00:35:08] Speaker 05: As of January 1st, or January 6th, [00:35:11] Speaker 05: 2020, she remembers back to that 2017 appointment, and she recalls that in her deposition and said, this I had forgotten about, this whole process I had forgotten about, that first appointment with nurse practitioner Trexler, but she links it back inside the repose period. [00:35:28] Speaker 04: She also had a mammogram and an ultrasound after that, and she remembers that too, and they told her she didn't have cancer either. [00:35:35] Speaker 04: Again, this is all... So why was she to know that that was the mistake? [00:35:38] Speaker 04: The February 1st, 2017. [00:35:41] Speaker 05: So I would push back on this mistake concept, because I think that that comes back to she had to know the tort liability. [00:35:49] Speaker 05: I think it's actually facts. [00:35:51] Speaker 05: What did she know? [00:35:52] Speaker 05: She knew that the lump went from being non-cancerous over time, it became cancerous. [00:35:57] Speaker 05: That is what we're talking about is the injury. [00:35:59] Speaker 05: That's the worsening of the condition. [00:36:01] Speaker 05: And you're saying that was a change. [00:36:04] Speaker 05: Right, because at that first appointment, she was told it was nothing to worry about. [00:36:10] Speaker 01: So, I just really am trying to follow up on Judge Moritz's question. [00:36:14] Speaker 01: So, if we're looking at the statute, the Colorado statute, so if it changed, how can it possibly be that the statute of prose is triggered pre-change, February 1, 2017, why not January 6, 2020? [00:36:38] Speaker 05: Because that's, Your Honor, what subsection one says, the act or omission. [00:36:43] Speaker 01: Exactly. [00:36:44] Speaker 01: Exactly. [00:36:44] Speaker 01: But in no event shall an action be brought more than three years after the act or omission, which gave rise to the action. [00:36:51] Speaker 01: And then in C, if the physical injury and its cause are not known or could not have been known. [00:36:57] Speaker 01: Now, whether or not we interject the three years that the district court did or not, [00:37:05] Speaker 01: it couldn't have begun on February 1st, 2017, because it couldn't be done, because it changed. [00:37:14] Speaker 05: That's what you said. [00:37:15] Speaker 05: Well, I'm not sure I'm following, Your Honor, because we're accepting the amended complaints allegations as true, and I see them out of time. [00:37:21] Speaker 05: I'd like to answer your question. [00:37:23] Speaker 01: Yeah, I'd like you to, too. [00:37:24] Speaker 01: So assuming that you're saying that the condition changed, and so I'm just [00:37:31] Speaker 01: I'm not trying, I'm really not trying to trick you or anything. [00:37:34] Speaker 01: I'm really just trying to understand it. [00:37:37] Speaker 01: So if you're saying the statute of repose began on February 1, 2017, and then you're also saying in response to Judge Moritz, well, the condition itself changed. [00:37:51] Speaker 01: It wasn't a benign lump on February 1, 2017. [00:37:55] Speaker 01: It changed [00:37:57] Speaker 01: 25 days before the statute of repose would have expired January 6, 2020. [00:38:03] Speaker 01: And so how can it possibly be that the act or omission giving rise to the action would have existed on February 1, 2017? [00:38:17] Speaker 01: Because that's not even the condition that existed that you're saying spurred the action. [00:38:25] Speaker 01: You're saying that the condition that spurred the action, you're saying, happened on January 6, 2020. [00:38:33] Speaker 01: So wouldn't the act or omission have begun on January 6, 2020 under your scenario that the condition changed? [00:38:43] Speaker 05: No, Your Honor. [00:38:44] Speaker 05: I think this is because a fundamental disconnect between act and omission is one thing and injury and its cause are another. [00:38:53] Speaker 05: The former act or omission [00:38:54] Speaker 05: pertains to the statute of repose. [00:38:56] Speaker 05: It sets a hard deadline. [00:38:58] Speaker 05: As some cases have recognized, the statute of repose could be extinguished before someone even knows they have a claim. [00:39:04] Speaker 05: And that's because act or omission, the alleged negligence, is totally separated from discovery of the injury and its cause. [00:39:15] Speaker 05: So in this case, that is entirely possible that the act or omission, i.e. [00:39:19] Speaker 05: the alleged [00:39:20] Speaker 05: The reported misdiagnosis that occurred in 2017 is separate from when she knows about the injury and its cause. [00:39:27] Speaker 02: That's how those can be reconciled. [00:39:29] Speaker 02: Council, can I ask, does the government agree that the accrual date here is a question of fact? [00:39:37] Speaker 05: Ordinarily, but in these circumstances, because the facts are undisputed, it can be decided as a matter of law. [00:39:41] Speaker 02: Okay, so help me with that then. [00:39:43] Speaker 02: I understand that under Colorado law, but in Ms. [00:39:47] Speaker 02: Lewis's brief, I believe [00:39:48] Speaker 02: They presented it was a question of fact. [00:39:50] Speaker 02: I did not read the government contest that in response. [00:39:53] Speaker 02: I may have missed it, but I'll give you that opportunity now. [00:39:56] Speaker 02: So help me understand why here it's undisputed the accrual date when all I hear is a pretty excited dispute over the accrual date. [00:40:07] Speaker 05: I don't think there's any dispute as to when Ms. [00:40:09] Speaker 05: Lewis knew what, because her deposition says so. [00:40:14] Speaker 05: On December 31st, she was informed that she had cancer. [00:40:17] Speaker 05: On that date, she knew of an injury. [00:40:20] Speaker 01: Did she know that it was the same lump that Nurse Drexler had looked at on February 1, 2017? [00:40:24] Speaker 01: It was in the same location. [00:40:26] Speaker 01: Well, yeah, but that's not my question. [00:40:29] Speaker 01: Or is it a fact question about whether or not it was the same lump that she learned about in January 2020, whether it was the same lump that was looked at by Nurse Drexler? [00:40:40] Speaker 04: And that goes to my point of, of course she didn't know when she was told several times more by several doctors that this same lump that she kept presenting for was not cancerous and even had scans. [00:40:54] Speaker 04: So how was she, a lay person, supposed to know the day she's told she has cancer that all these people [00:41:04] Speaker 04: apparently were wrong, but it was that very first person. [00:41:07] Speaker 04: This is that same lump, and somehow all these people were wrong, and that same lump must have persisted through all of it. [00:41:14] Speaker 04: Is that a question of fact? [00:41:16] Speaker 04: It sort of sounds like it. [00:41:18] Speaker 05: But that was a litigation choice, right? [00:41:20] Speaker 05: To decide to decide that it was nurse practitioner Trexler whom she wanted to sue. [00:41:26] Speaker 04: But the fact that she has confirmation over and over that that lump is not cancerous. [00:41:33] Speaker 04: the same lump she's presenting for, certainly factors in to the issue of when she would have known that the cancer she's told she has that has metastasized resulted from the same lump. [00:41:47] Speaker 04: Because cancer doesn't get non-cancerous. [00:41:50] Speaker 04: It was either cancerous then or it's a different lump. [00:41:55] Speaker 04: And that's possible. [00:41:57] Speaker 04: But she's told over and over that that lump [00:42:00] Speaker 04: isn't cancer. [00:42:01] Speaker 04: But you're saying she should have known the day she's told finally it is cancer that it was that very first diagnosis where this all went awry. [00:42:14] Speaker 05: So I guess I agree on a few different points. [00:42:16] Speaker 05: And I recognize that I'm quite over time. [00:42:18] Speaker 05: But I would like to answer them if it's OK with the court. [00:42:20] Speaker 05: So I would push back on the fact that the injury and its cause that she has to know has to be the proof positive that this person [00:42:29] Speaker 05: Had they done something different, I definitely wouldn't have cancer. [00:42:33] Speaker 05: Those are what experts provide at trial. [00:42:35] Speaker 05: That's just not necessarily what is required in order to know the facts for purposes of accrual. [00:42:41] Speaker 05: Otherwise, it would be hard to litigate any accrual concern at all, because without experts that come in and trial, we would never know that. [00:42:47] Speaker 05: So again, and I would, the condition for which she sought treatment was the lump. [00:42:52] Speaker 05: According to her, a complaint and then the amended complaint, that lump was what turned into cancer. [00:42:57] Speaker 05: So that pre-existing condition was what got worse during the course of the repose period. [00:43:03] Speaker 05: Within three years, she knew about the cancer diagnosis, which is the injury here. [00:43:08] Speaker 05: And within three years, she connected it back and said, oh, I remember that appointment. [00:43:14] Speaker 05: There is not much need to know more. [00:43:17] Speaker 05: She doesn't need to know specific legal theories. [00:43:19] Speaker 04: Except whether the lump is the same lump that she's been told over and over again by several physicians isn't cancer. [00:43:25] Speaker 05: Well, the complaint alleges that's the case. [00:43:27] Speaker 04: That complaint gets filed later. [00:43:28] Speaker 04: We're talking about what did she know on December 31st. [00:43:31] Speaker 04: So I think that... You're saying a lay person should have known that on December 31st, not that her lawyer should have known it when he filed the complaint. [00:43:38] Speaker 05: Right. [00:43:38] Speaker 05: There are numerous Colorado cases, and I think that they're cited well in our brief, and I know that I'm very over time still, but that have just talked about how the legal theories is what's not required for purposes of accrual. [00:43:50] Speaker 05: It's knowledge of facts, and the facts for purposes of the elements of a negligence claim. [00:43:55] Speaker 05: And here, those facts were known inside that three-year period, and under 3C, therefore, that repose period stood. [00:44:03] Speaker 02: Council, can I bother you with one more question? [00:44:05] Speaker 05: It's not bothering you. [00:44:05] Speaker 02: No, I was going to say, I was going to say, I accidentally interrupted you. [00:44:10] Speaker 02: I think this one may be a short one, though. [00:44:12] Speaker 02: Is this statute an affirmative defense under Colorado law? [00:44:15] Speaker 05: I believe it is, yes. [00:44:16] Speaker 02: How do we factor that into the summary judgment analysis? [00:44:23] Speaker 05: You know, I'd have to think about that, Your Honor. [00:44:27] Speaker 05: As long as there are no disputed facts as to whether or not it applies then, yes, indeed, you can decide it as a matter of law. [00:44:33] Speaker 05: And again, all the facts are clear in terms of there's no dispute as to maybe she didn't get the cancer diagnosis until March. [00:44:40] Speaker 05: No, that's not the case. [00:44:41] Speaker 05: It was on December 31st. [00:44:42] Speaker 05: And because we have these core agreed upon facts, I think that this still remains as a question of law. [00:44:50] Speaker 01: Sure. [00:44:51] Speaker 01: Thank you. [00:45:06] Speaker 03: To your point, Judge Moritz, I think the court can look to Salazar versus American Sterilizer, where the court said, suspicion of a possible connection does not necessarily put a reasonable person on notice of the nature, extent, and cause of an injury. [00:45:21] Speaker 03: If Ms. [00:45:21] Speaker 03: Lewis's surgeons, both of them, could not say what the likely progression was, whether it was related to her diagnosis years before, how could Ms. [00:45:29] Speaker 03: Lewis as a layperson do so? [00:45:31] Speaker 03: Real quickly, within the 30-day period, the fact that Ms. [00:45:34] Speaker 03: Lewis didn't file in that period [00:45:36] Speaker 03: is irrelevant from our perspective because- Go ahead. [00:45:41] Speaker 01: You can finish. [00:45:43] Speaker 03: Because conflict preemption, when it relates to impossibility, the law doesn't require one to attempt the impossible to argue that. [00:45:53] Speaker 03: Further, when it concerns obstacle preemption, the question is congressional intent, not whether a particular plaintiff could have acted faster. [00:46:04] Speaker 03: So with that, Your Honor, we would ask this court [00:46:06] Speaker 03: to reverse the trial court's grant of summary judgment. [00:46:10] Speaker 01: Thank you. [00:46:11] Speaker 01: Thank you very much. [00:46:12] Speaker 01: It was very well presented by both sides. [00:46:14] Speaker 01: This matter will be submitted.