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Firm Profile Go to This website uses cookies to improve your experience. We'll assume you're ok with this, but you can opt-out if you wish. Close Privacy Overview This website uses cookies to improve your experience while you navigate through the website. Out of these cookies, the cookies that are categorized as necessary are stored on your browser as they are essential for the working of basic functionalities of the website. We also use third-party cookies that help us analyze and understand how you use this website.

These cookies will be stored in your browser only with your consent. You also have the option to opt-out of these cookies. But opting out of some of these cookies may have an effect on your browsing experience. Necessary Necessary. Non-necessary Non-necessary. The district court had held that Kubrick's claim accrued only when he had reason to suspect that a legal duty to him had been breached, i.

The Court of Appeals affirmed, ruling that even though Kubrick knew of his injury and the government's probable responsibility for it as early as , his claim did not accrue until he had adduced "facts which would have alerted a reasonable person to the possibility that the treatment was improper. Although the Supreme Court accepted the appropriateness of a discovery rule for medical malpractice cases, it nevertheless reversed, holding that Kubrick's claim did not accrue in when he learned that his injury was the result of negligence.

Instead, the Court held that his claim "accrued" in when he first learned of his injury and its probable cause. The Court explained:. We thus cannot hold that Congress intended that "accrual" of a claim must await awareness by the plaintiff that his injury was negligently inflicted.

A plaintiff such as Kubrick, armed with the facts about the harm done to him, can protect himself by seeking advice in the medical and legal community. To excuse him from promptly doing so by postponing the accrual of his claim would undermine the purpose of the limitations statute, which is to require the reasonably diligent presentation of tort claims against the Government.

Kubrick therefore answered one important question that had divided the courts: whether the accrual of a claim depended on a victim's actual knowledge of negligence. See Kubrick, U. The court answered that question in the negative. However, the Court's recognition in Kubrick of a discovery rule raised new questions, such as: 1 does a discovery rule apply beyond the medical malpractice context, and 2 what knowledge short of actual knowledge of negligence provides a sufficient factual basis to trigger accrual under a discovery rule.

As indicated above, the former question has been answered in the affirmative by several circuits, including our own. The latter question, however, has dogged federal courts ever since Kubrick. In Kubrick, the plaintiff's knowledge of his injury deafness and its probable cause the administration of neomycin provided the factual basis for his claim.

This knowledge alone triggered the two-year statute of limitations because, with knowledge of the injury and its probable cause, the plaintiff "need only have made inquiry among doctors with average training and experience in such matters to have discovered that he probably had a good cause of action [for medical malpractice].

In the medical malpractice context, where the personal identity of the treating physician is usually known to the patient, knowledge of the legal status of the physician as a federal employee is not required for claim accrual. Absent extraordinary circumstances, "[t]he statute of limitations under the FTCA Presumably, a reasonably diligent plaintiff, once he is aware of his injury and its probable medical cause, can discover within the two-year statute of limitations period the employment status of his treating physician, as well as the negligence basis for a legal claim.

Therefore, in the medical malpractice context, where there is often a direct relationship between the patient and doctor, one need not know of a governmental causal connection for a claim to accrue under the FTCA. Outside the medical malpractice context, however, the identity of the individual s responsible for an injury may be less evident, and a plaintiff may have less reason to suspect governmental involvement.

Not surprisingly, courts of appeals have been slightly more forgiving in these cases, deferring the accrual of claims until a reasonably diligent plaintiff has reason to suspect a governmental connection with the injury. For example, Gloria Garza Regalado was murdered by her husband shortly after he had escaped from the City of Faith halfway house in Monroe, Louisiana.

The administrator of Regalado's estate filed suit in state court against the City of Faith, alleging negligence in the home's failure to notify law enforcement and Regalado of her husband's escape. Over the course of discovery, the administrator learned that the person responsible for notifying law enforcement of the escape was a federal Bureau of Prisons employee. According to the Eighth Circuit, the estate's claim did not accrue when the administrator knew of the injury i.

Rather, the court indicated that a claim would accrue once the plaintiff has "reason to believe he ha[s] been injured by an act or omission by the government. The Eleventh Circuit has formulated its accrual standard in similar terms, holding that a wrongful death action accrues "when the plaintiff knows, or exercising reasonable diligence should know, both of the decedent's death and its causal connection with the government.

We agree with these courts that, outside the medical malpractice context, 14 the proper subject of knowledge for accrual purposes under the FTCA is 1 the fact of injury and 2 the injury's causal connection with the government. As the preceding quote from Diaz makes clear, there is, of course, a reasonable diligence component to this knowledge requirement.

A plaintiff may not "bury her head in the sand. If she fails to undertake a reasonably diligent investigation into the cause of injury, the law will impute to her an awareness of any knowledge that she would have uncovered if she had undertaken that inquiry. Having determined the knowledge content that triggers accrual outside the medical malpractice context knowledge of injury by an act or omission of the government , we must next ask how certain this knowledge must be. The Supreme Court indicated in Kubrick that definitive knowledge of the cause of injury is not required to trigger the accrual of a medical malpractice claim: "It is undisputed in this case that in January Kubrick was aware of his injury and its probable cause," and that knowledge, according to the Court, formed the "factual predicate for a claim.

Following Kubrick, we have similarly indicated that something less than definitive knowledge is required. For example, we have also stated that a medical malpractice claim has accrued "[o]nce a plaintiff knows of the injury and its probable cause. Outside the medical malpractice context, courts have similarly indicated that something less than definitive knowledge is required.

In Garza the court stated that a claim accrues once the plaintiff "had reason to believe" that the government was responsible for the injury. Garza, F. The court in Diaz said that "in order for the claim to accrue, a plaintiff must have some indication that there may have been a government cause of the injury. In Ramming v. In assessing these varying formulations, we are mindful of the emphasis in Kubrick that the knowledge which triggers accrual and hence the running of the statute of limitations is the discovery of sufficient facts about the injury and its cause to prompt a reasonable person to inquire and seek advice preliminary to deciding if there is a basis for filing an administrative claim against the government: "A plaintiff such as Kubrick, armed with the facts about the harm done to him, can protect himself by seeking advice in the medical and legal community.

The degree of knowledge of injury and cause that would prompt a reasonable person to take these protective steps will vary with the circumstances of the case, but, in any event, conclusive knowledge is not necessary. Hence, in line with the best precedents, we hold that, outside the medical malpractice context, a claim accrues under the FTCA once a plaintiff knows, or in the exercise of reasonable diligence should know, 1 of her injury and 2 sufficient facts to permit a reasonable person to believe that there is a causal connection between the government and her injury.

Our dissenting colleague claims that this holding contravenes Kubrick and its progeny — described as a clear, unbroken line of authority that has "firmly established that the baseline threshold for accrual under the discovery rule is knowledge of an injury and its cause," with cause defined as "the immediate physical basis for the injury. Courts of appeals have, in fact, struggled to apply the discovery rule of Kubrick outside the medical malpractice context, see Szypszak, supra, at 30, and cases cited therein "However useful courts may have found Kubrick in deciding cases with similar facts, they continue to apply the diligence discovery rule to dissimilar cases in an ad hoc manner.

The case primarily relied upon by the dissent for its formula, Dyniewicz v. The Dyniewicz plaintiffs' parents were killed during a flash flood on a highway that the plaintiffs claimed should have been closed due to hazardous conditions. Despite actively pursuing a claim against the state, the plaintiffs did not learn of possible federal governmental responsibility until over two years after their parents' deaths. The Ninth Circuit, affirming the district court's dismissal of the case, imposed a strict rule that once "the immediate physical cause of the injury is discovered," an FTCA plaintiff's claim accrues even if the involvement of the federal government in the injury is unknown.

Dyniewicz, F. Since there was no dispute that the immediate physical cause of the parents' injury was drowning, the Ninth Circuit held that the plaintiffs' claim was time-barred. Under the rule we articulate today, however, the plaintiffs' claim would not necessarily have been time-barred. Moreover, in a subsequent case, the Ninth Circuit indicated that the rule we find in the cases is supported by the language of Kubrick. See Gibson v.

The Gibson court, however, rejected the plaintiffs' request for such a rule, indicating that Dyniewicz, as binding precedent, forced the imposition of the harsher rule. See Gibson, F. Moreover, the Dyniewicz rule proposed by the dissent is inconsistent with our holding in Attallah. In that case, a courier transporting currency on behalf of the plaintiffs was abducted, robbed, and murdered in Puerto Rico in September shortly after arriving at the local international airport.

Attallah, F. The decomposed body of the courier was found in a nearby rain forest soon thereafter, and the local police advised the plaintiffs that they had no leads as to who was responsible for the criminal acts. Almost five years later, in May , a federal grand jury returned an indictment against two former agents of the U. Customs Service, alleging that they were responsible for the murder and robbery of the courier.

In January the plaintiffs filed an administrative claim for the loss of the currency possessed by the courier at the time of his abduction. On appeal, the government argued that the plaintiffs' claim was time-barred since it was filed almost six years after the plaintiffs knew of their injury.

The government, advocating for a rule such as that found in Dyniewicz, argued that the plaintiffs were aware of their injury and its cause on or about September 20, , when the body of the murdered courier was found; hence, the claim accrued at that point. Rejecting this argument, we concluded that under the circumstances of that case, the plaintiffs' claim accrued at the time of the indictment against the former agents because the plaintiffs "did not know, nor in the exercise of reasonable diligence could have known of the Customs agents' criminal acts until the time of their indictment.

We held otherwise, however, since the plaintiffs had no indication that government employees were responsible for their loss until an indictment had been filed. Here, unlike the plaintiffs in Attallah, the Skwira family had indications of government involvement well before investigators told them definitively that Gilbert had poisoned Skwira. In some applications of the discovery rule to the question of accrual, there will be an issue about the reasonable diligence of the plaintiff in investigating the fact and cause of her injury.

In the Skwira family's case, their reasonable diligence is not at issue. Rather, we can resolve the question of accrual, as did the district court, on the basis of the information the family received from government officials and the local press, prior to any independent inquiry undertaken by the family. The district court concluded that the Skwira family's cause of action accrued, at the latest, the day after Skwira's autopsy in November , when the family first learned that Skwira did not die of the causes listed on his death certificate.

By that point in time, the family had knowledge of the numerous press reports describing an ongoing investigation into the unusually high number of deaths in the same ward in which Skwira died. Those reports indicated that the actions of a particular nurse were the focus of the investigation. When government investigators asked the Skwira family for permission to exhume Skwira's body, they informed the family that they had "suspicions" about the high number of deaths at the VAMC during a relatively brief window of time that included the period in which Skwira was hospitalized.

Finally, the autopsy demonstrated conclusively that the cause of death listed on Skwira's death certificate was incorrect. These accumulated facts provided a sufficient basis in November for a reasonable person to believe that there was a causal connection between the injury Skwira's death and the acts or omissions of a government employee.

Therefore, the two-year statute of limitations clock began ticking at that point. The family's subjective beliefs, described in deposition and trial testimony, reinforces the correctness of this conclusion. Skwira's son Philip testified in his deposition that it was a "surprise" that Skwira had died of a cardiac event since he had been admitted only for treatment of his alcoholism.

Skwira's daughter Marsha Yarrows testified at Gilbert's criminal trial that she was "shocked" by the unexpected news of Skwira's cardiac arrest, and during her deposition she also expressed her belief that his care at the VAMC had been inadequate. Yarrows also testified during Gilbert's trial that she had read the press reports regarding a murder investigation into deaths on Ward C. She stated that when she read these accounts, "it was like a light bulb went off because I knew that was exactly what had happened to my father.

It — it really bothered me, and even though my father's name wasn't mentioned as being one of the people who was investigated, I knew right then and there that that was exactly what had happened to him, that he was one of those people that they must be investigating the death of. Despite this realization, and despite the press reports and the information provided by investigators after the autopsy, the Skwira family insists that their claim did not accrue in November since "[t]he critical facts regarding the existence and cause of [Skwira's] injury were inherently unknowable until June of Hence, the family argues, there was no way they could have known in November the actual cause of Skwira's death, and the statute of limitations should be tolled until they did.

See Gonzalez, F. The Skwira family reads "inherently unknowable" too broadly. The factual basis of a claim is "inherently unknowable" when, as in Attallah, there are no facts discoverable through the exercise of reasonable diligence which would permit a plaintiff to reasonably believe that her injury is connected with some act of the government.

As explained above, by November the Skwira family was aware of press reports concerning the suspicious deaths on Ward C; they knew that the government had begun a criminal investigation into Skwira's death; and they knew that the cause of death printed on Skwira's death certificate was incorrect. This information provided sufficient knowledge to start the limitations clock ticking in November From that point in time, the family had two years to seek out independent legal and medical advice to determine if they should file an administrative claim against the VA.

Moreover, as we explained in Part III, supra, to file an administrative claim and preserve ones rights under the FTCA, one need only be in possession of "sufficient information for the agency to investigate the claims. We realize that "considerable enquiry and investigation may be necessary before [a plaintiff] can make a responsible judgment about the actionability" of her claim. Rotella, U. The Skwira family may have felt that need acutely in the difficult circumstances of this case.

However, as the Supreme Court noted in Rotella, "identifying professional negligence may also be a matter of real complexity, and its discovery is not required before the statute starts running. One does not have to be certain of actionability in order to submit an administrative claim. Before leaving this matter, we must address two additional arguments ably presented in an amicus brief submitted by The American Legion, and not directly addressed in the discussion above.

First, amicus argues that we should "apply a rule that a cause of action for death caused by the criminal conduct of a government employee accrues only when there is sufficient information to indict. If anything, as noted earlier, the supreme Court has indicated its reluctance to expand the scope of Kubrick 's discovery rule. See TRW Inc. Amicus also argues that we should "liberally construe the discovery rule to protect the rights of veterans and their families.

However, we are constrained by Supreme Court precedent which unequivocally states that "limitations and conditions upon which the Government consents to be sued must be strictly observed and exceptions thereto are not to be implied. We must therefore reject the liberal construction advocated by amicus. The district court was faced in this case with the unenviable task of telling five families that, despite the tragic deaths of their loved ones at the hands of a government employee, their claims for compensation under the FTCA were time-barred.

Understandably, the court "reluctantly" reached its decision that "as a factual matter, [there was] sufficient information [] available to the [Skwira family and other plaintiffs] to reveal a connection between the VAMC and the deaths" more than two years before they filed their administrative claims. In reviewing the district court's ruling, we have slightly revised the terms of its inquiry, holding that, outside the medical malpractice context, a claim accrues under the FTCA once a plaintiff knows, or in the exercise of reasonable diligence should know, 1 of her injury and 2 sufficient facts to permit a reasonable person to believe that there is a causal connection between the government and her injury.

In applying this holding to the facts, we, like the district court, must reluctantly conclude that the Skwira family's claim accrued more than two years before they filed their administrative claim with the VA, and hence their action is time-barred.

See Cutting v. United States, No. Gilbert's name was made public in connection with that arrest, and she was identified by the local press as the subject of the ongoing investigation into the deaths at the VAMC. See Daubert v. Merrell Dow Pharms.

The record before us does not indicate why the claims were denied, nor why two separate denial letters issued. We assume the claims were denied because they were deemed untimely. The complaint alleged a number of theories of negligence, almost all of which amounted to a claim of negligent supervision of Gilbert. For example, the complaint alleged that the VAMC and its staff "allow[ed] improper and lethal medication to be administered to Edward S.

Skwira," "fail[ed] to protect Edward S. Skwira from imminent harm they knew or should have known existed," "fail[ed] to properly supervise the medical personnel at the VAMC," and "fail[ed] to monitor and control the usage of and access to the medications at the VAMC, including epinephrine.

Other circuits view the FTCA's statute of limitations as an affirmative defense, rather than a jurisdictional prerequisite, and therefore place the burden of proof on the defendant See, e. Other circuits view the statute of limitations as jurisdictional in nature, and, accordingly, place the burden of proof on the plaintiff. Estate of Bess v. As indicated in the text, we have adopted the latter approach. See also Fed. In certain situations, the predicate facts can be so inextricably linked to the merits of the controversy that the district court should "defer resolution of the jurisdictional issue until the time of trial.

That is not the case here. In two brief paragraphs on the penultimate page of the appellants' forty-four page brief — under the heading "The Judge's determination was based on unsupportable findings of fact" — the appellants take issue with the district court's recitation of one fact.

The district court stated that Skwira "experienced a severe cardiac event, a dissecting aneurysm. The family disputes this "finding. Later in its opinion, the court makes clear that Skwira, in fact, died of epinephrine poisoning. Since the appellants have chosen to challenge only this one fact in the district court's opinion, any other objections to the district court's factual findings are forfeited. See Gonzalez-Morales v. Hernandez-Arencibia, F.

As the Kubrick court explained:. In Urie v. Thompson, [ U. In that case, plaintiff Urie contracted silicosis from his work as a fireman on a steam locomotive. His condition was diagnosed only in the weeks after he became too ill to work. The Court was reluctant to charge Urie with the "unknown and inherently unknowable" and held that because of his "blameless ignorance" of the fact of his injury, his claim did not accrue under [FELA] until his disease manifested itself.

It would be an extraordinary circumstance if the government or its agents have "misled or deceived a plaintiff, or otherwise hidden the legal identity of alleged tortfeasors as federal employees. In that case, accrual of the plaintiff's medical malpractice claim may be deferred, but the plaintiff "must at the very least show that [this] information could not have been found by a timely diligent inquiry.

With all due respect to the district court and our dissenting colleague, this case is not "functionally identical" to a medical malpractice case. This case involves a criminal act by a government employee and the claim, primarily, that this employee was negligently supervised at the VAMC. As a matter of proof, the elements of a negligent supervision claim differ significantly from the elements of a medical malpractice claim See, e.

Dolmetsch, A. Mary of Nazareth Hosp. Moreover, in a medical malpractice case, knowledge of the federal status of the malpractitioner is irrelevant for accrual purposes. As explained in the text, however, courts have relaxed this arguably harsh rule outside the medical malpractice context, thereby emphasizing the importance in the FTCA context of the distinction between medical malpractice and non-medical malpractice cases.

As indicated in Part III, supra, to file an administrative claim under the FTCA and thereby preserve one's rights , one need only be in possession of "sufficient information for the agency to investigate the claims. After the disappearance of the courier, the Attallah plaintiffs had conducted their own investigation. They visited the Customs Service office at the airport where they were told that the courier had been processed and left the premises.

We noted that, "[a]side from this information, appellants had no other source of information regarding the whereabouts of their courier," and that the plaintiffs were not privy to the police investigation. In the Skwira family's case, if the family had submitted a timely notice of claim, they could have asked the agency to hold the claim in abeyance pending the outcome of the ongoing criminal investigation — or, upon denial of the claim, filed a lawsuit in good faith, "on information and belief," and then ask the court to stay discovery pending the outcome of the ongoing investigation.

Indeed, the district court stayed the instant litigation until the end of Gilbert's criminal trial. The fact that the Skwira family decided to place their trust in the U. Attorney's Office, electing not to seek competent independent legal advice until much later, does not alter that conclusion See Gonzalez, F. The district court concluded that one of the other plaintiffs below, Nancy Cutting, successfully filed her administrative claim within two years of its accrual See Cutting, F.

The government also concedes that Caroline Brandt, the wife of another of Gilbert's victims and not a party to the litigation below , filed a timely administrative claim, thereby preserving any rights she may have. Although tort claims customarily accrue at the time of injury, the practice is widespread of providing extra time-either by delaying accrual or tolling the statute-where the basis for suit is not apparent when the initial injury occurs. Villarini-Garcia v. Hospital Del Maestro, Inc.

The locus classicus is the sponge left in the patient during surgery. In United States v. Since then, most circuit courts to consider the question have been willing to apply the same reasoning to other kinds of claims against the government where, in the nature of things, the prospects of any claim against the government were so hidden that a reasonable plaintiff would not have been alerted to their existence. At the same time, Kubrick, like many other discovery rule cases, makes clear that a plaintiff is not entitled to wait until all of the facts in support of the claim are known.

Rather, once the plaintiff knows enough to provoke a reasonable person to inquire further, the plaintiff has the duty to investigate. See Gonzalez v. In substance, the plaintiff is charged with knowing what he might have found out by actively pursuing his bare suspicions and then filing a claim when there are reasonable prospects of liability.

Critically, when the plaintiff knows or should know enough to prompt a claim, he may not yet know enough to win the suit. Childers Oil Co. Exxon Corp. To win a suit may require the development of further facts, perhaps even the conduct of discovery and further study by experts. But the discovery rule is a compromise between competing interests; and under the Federal Tort Claims Act, the burden on the plaintiff is peculiarly slight: all that is needed to comply with the statute is the filing of a simple two-page form with the responsible federal agency.

It is easy, especially in a case where government was actively investigating, to ignore the importance of the principle of early notice to the putative defendant. The longer the delay between the original wrong and the onset of litigation, the more likely that evidence on the defense side may be lost.

Yes, in this case, nothing like that occurred; but statutes of limitation unlike laches are framed to work mechanically: indeed, one of their benefits is that arguments about whether there was prejudice from delay are banished from the scene. The formulas used in the cases for implementing the discovery rule are neither precise nor consistent. Ultimately the question, highly dependent on the facts, is whether the plaintiff knew enough as to the potential responsibility of the defendant that-within two years of that point-he should have filed the short form apprizing the government of a potential claim against it.

Often, in close cases like this one, this is a jury issue-but not in a suit against the government. Nakshian, U. In this case, the district court carefully analyzed the undisputed raw facts. Those confirm that by mid, the Skwira family had learned that other suspicious deaths had occurred at the hospital in addition to the wholly unexpected sudden death of Edward Skwira, that a government investigation involving the U.

And, of course, it was known that the hospital was run by the federal government. At this point, a reasonable person would have believed that some kind of negligence or misconduct by government employees at the hospital might well underlie Edward Skwira's death. That some of the plaintiffs actually had such suspicions is not necessary but appears to have been the fact. The Skwiras then had two further years to investigate.

Further, on similar evidence the family of one of the other victims did file a claim within the time period allowed. Yet the Skwira family waited over three years after the autopsy report before filing their claim. The problem in this case is primarily one of applying an abstract and rather general concept-adequate notice to trigger the discovery rule-to a unique fact pattern among an endless parade of possibilities. The major peculiarity here is that the Skwira family could probably not have had definitive proof of their claim before the government completed its investigation.

This makes the present case highly unusual: normally, as in Kubrick itself, one whom suspicions prompt to consult an expert or a lawyer can usually get a good fix on liability within a reasonably brief period. But under the discovery rule, definitive proof of wrongful conduct and government liability is not required to start the period for filing a claim. Kronisch v. So the question is whether a further delay should be interpolated into the limitations period for cases in which, though substantial suspicions should have been excited, they could not in the nature of things have been fully satisfied within the next two years.

At least one circuit court has been willing to delay the statute while science sorted matters out, Stoleson v. Alternatively, some might think that where the government is actively investigating a matter, private parties should be allowed to await the outcome of the official investigation and that the statute should be tolled in the meantime.

But this choice too involves competing policy concerns and the engrafting of a judge-made exception upon statutory language that gives no hint of any such reservation. And given the range of government investigations into official and private conduct of all kinds, such an exception could have ramifying consequences that a court cannot easily assess. Perhaps the Supreme Court will move in the direction of Stoleson or of an exception for pending government inquiry, but there are some reasons for a lower court to be cautious.

Where the sovereign has consented to be sued for its agents' wrongful acts, the Court has construed reasonably strictly the limits on such consent. Kubrick itself reversed a line of circuit precedent that, while adopting the discovery rule, applied it rather too freely. See id. Recent Supreme Court decisions have also been quite respectful of limitations periods. In the end, the risks of prompting persons to file claims too soon seem less weighty than the importance of getting notice to the government at the earliest reasonable opportunity.

It is one thing to cut off a claim where no reasonable suspicion existed within the limitations period. But where the claimant thinks or should think that he may well have a claim, then under present law the government should be notified within two years. If the law is to be fine-tuned further, Congress may well be better equipped to devise the options and assess the consequences.

I am forced to dissent because the majority contravenes Supreme Court doctrine established in United States v. The majority's "causal connection" approach runs contrary to the doctrine established in those cases because it eliminates the requirement that before a statute of limitations runs on an FTCA claim, a plaintiff must be aware both of the existence of his injury and "the facts of causation. In this case, the appellants could not possibly have discovered the medical cause of Edward Skwira's death before June 8, As is established by the record, the government itself was unable to discern the cause of Skwira's death until it invented special techniques and protocols for detecting excess levels of epinephrine in the body.

Until June 8, — the date when the government first informed appellants about "the facts of causation" — the Skwira's were in no position to know how Skwira had died. Thus, the appellants were in the position described by the Supreme Court as one warranting delayed accrual — that is, where " the facts of causation [are] in the control of the putative defendant, unavailable to the plaintiff or at least very difficult to obtain.

The standard adopted by the majority improperly allows a claim to "accrue" before a reasonably diligent plaintiff could possibly have discovered the medical or physical cause of his injury. According to the majority, a discovery rule claim "accrues" once a plaintiff knows or should, in the exercise of reasonable diligence, know " 1 the fact of injury and 2 the injury's causal connection with the government.

Thus, once injury is known, the statute of limitations begins running as soon as the plaintiff discovers sufficient information to determine that his injury is "probabl[y]" "connected with some act of the government. The "causal connection" approach, in other words, puts a premium on the identity of the defendant: so long as a plaintiff might determine who injured him, the statute of limitations starts to run against a plaintiff, even if he could not, in the exercise of reasonable diligence, discover what injured him, or how he was injured.

This case presents no basis for implementing a novel accrual standard. The majority alludes to 1 confusion in the standards articulated by Kubrick and its progeny, and 2 the unique nature of non-medical malpractice cases as potential justifications for implementing a new accrual standard. However, looking at Kubrick and its progeny, I think it is clear that our discovery rule jurisprudence, while less than crystal clear, is well established enough that the majority's decision to depart from Kubrick 's accrual standard in favor of the "causal connection" standard is unwarranted.

Moreover, there is nothing in the record that distinguishes this case from past malpractice and wrongful death discovery-rule cases which have been considered under our well-established accrual standard. While Kubrick left open some questions regarding the parameters of the discovery rule, the core holding of Kubrick is clear and has been repeatedly applied by this and other circuits in both medical malpractice and non-medical malpractice contexts.

The Kubrick Court established that accrual does not occur before the plaintiff "knows both the existence and the cause of his injury. The Court clearly distinguished between "a plaintiff's ignorance of his legal rights" which will not halt accrual and knowledge "about the facts of causation" which is required to trigger accrual.

Thus while accrual will not wait for a plaintiff to discover that his injury was negligently inflicted, it is clear that a claim cannot accrue before a plaintiff is or should be aware of the existence and cause of his injury. Under Kubrick, knowledge of an injury and its cause constitutes "the factual predicate for [the] claim. Thus, as the Fourth Circuit has stated, "[t]he clear import of Kubrick is that a claim accrues within the meaning of [the FTCA] when the plaintiff knows or, in the exercise of due dilligence, should have known both the existence and the cause of his injury.

Dep't of Health and Human Services, F. Even if Kubrick ultimately left open questions regarding claim accrual, this Court has repeatedly construed Kubrick as holding that a claimant's knowledge of the existence and cause of his injury is the baseline knowledge required to trigger discovery-rule accrual.

Our holding in Gonzalez is consistent with all of our prior discovery rule cases. Chardon, F. The majority's interpretation of Kubrick also departs from the discovery rule standard as articulated by nearly every other circuit court.

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