                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-12-2006

Miller v. Phila Geriatric Ctr
Precedential or Non-Precedential: Precedential

Docket No. 04-3132




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                                     PRECEDENTIAL


    UNITED STATES COURT OF APPEALS
         FOR THE THIRD CIRCUIT
              ___________

                  No. 04-3132
                  ___________

      VICKI MILLER, Administratrix of the
           Estate of Henry S. Miller,

                        Appellant

                        v.

  PHILADELPHIA GERIATRIC CENTER;
CHARLES BONGIORNO; PHIL MARKOWITZ;
        JOHN DOE; JANE DOE;
     UNITED STATES OF AMERICA
             ___________

 On Appeal from the United States District Court
       for the Eastern District of Pennsylvania
             (D.C. Civil No. 02-cv-01307)
District Judge: The Honorable William H. Yohn, Jr.
                    ___________

              Argued June 29, 2005
 Before: NYGAARD, SMITH, and FISHER, Circuit Judges.1

                (Filed September 12, 2006)


James L. Griffith, Esq. (ARGUED)
Fox Rothschild
2000 Market Street, 10th Floor
Philadelphia, PA 19103
      Counsel for Appellant

K. T. Newton, Esq. (ARGUED)
Office of the United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106
       Counsel for Appellee United States of America

Jill B. Clarke, Esq. (ARGUED)
McKissock & Hoffman
1818 Market Street
Philadelphia, PA 19103
        Counsel for Appellee Phil Markowitz

                       ___________

                OPINION OF THE COURT
                     ___________

1.
 Judge Richard L. Nygaard assumed Senior Status on July 9,
2005.

                             2
NYGAARD, Circuit Judge.

       This appeal raises issues of some complexity concerning

the timeliness of an action brought under the Federal Tort

Claims Act and various other state statutes. Vicki Miller, the

sister of a mentally retarded man and administratrix of his estate,

filed a lawsuit sounding in tort against her brother’s physicians

and the medical/geriatric facility that provided her brother’s

care. Specifically, she filed both a survival claim of negligence

and a wrongful death claim under the Federal Tort Claims Act

arguing that her brother died because his doctors administered

a combination of psychiatric drugs to the point of toxicity, and

then failed to diagnose the extent of the toxicity before it

became irreversible and terminal. The District Court granted

summary judgment, dismissing the claims as untimely. Miller

filed a timely appeal and has assigned numerous errors. We will

reverse.

                                3
                               I.

       The facts surrounding this appeal require a rather detailed

recitation. Decedent Henry Miller was born severely retarded.

Although he reached a chronological age of sixty-four, his

mental age remained that of a four year old child. Despite this

severe impairment, no one was ever appointed his legal

guardian. See District Ct. Op., at 9. In 1988, he was placed in

a Community Living Arrangement through Jewish Educational

and Vocational Services. While at JEVS, Dr. Philip Markowitz

provided the decedent with psychiatric treatment, including the

prescription of psychiatric medications, primarily a combination

of Lithium and Haldol. From June 16, 1994 though September

22, 1995, Dr. Carlos Moreno was the decedent’s primary

physician. During this period Moreno monitored the decedent’s

blood levels and reported abnormal Lithium levels to the

medical coordinator at the JEVS home.          Moreno did not

                                4
prescribe any medication for the decedent.

       In October 1995, the decedent was admitted to Frankford

Hospital. While hospitalized, the attending physician repeatedly

advised Miller that her brother’s condition was caused by an

adverse reaction to the combination of medication that had been

prescribed at the JEVS home by Markowitz. On November 27,

1995, the decedent was transferred to the Philadelphia Geriatric

Center, where Dr. Charles Bongiorno was his attending

physician. While at PGC, the decedent’s condition deteriorated

rapidly. He developed a continuous fever, the cause of which

was never diagnosed. On September 9, 1997, after his condition

became unstable, the decedent was transferred from PGC to

Temple University Hospital. He died on September 24, 1997.

The cause of death was listed as sepsis.

       On September 21, 1999, Miller commenced legal action

against the Philadelphia Geriatric Center, Bongiorno, Markowitz

                               5
and Moreno by filing a praecipe for a writ of summons in the

Court of Common of Philadelphia County. Her complaint was

filed on March 1, 2000. Moreno was an employee of Greater

Philadelphia Health Action Inc., a federally funded health

center.   Because the GPHA is a grantee of the federal

Department of Health and Human Services, its employees are

considered employees of the Public Health Service, a federal

agency.   Federal jurisdiction existed, therefore, under the

Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346. The

matter was removed to the United States District Court for the

Eastern District of Pennsylvania.     The United States was

subsequently properly substituted for Moreno as a party to this

litigation. On October 20, 2000 the District Court dismissed

Miller’s claims against the United States without prejudice

because she failed to exhaust the available administrative

remedies. The remaining claims were later remanded to state

                              6
court.

         Miller then filed an administrative claim with the United

States Department of Health and Human Service on December

12, 2000. Not having received a decision from the Department

after waiting more than six months, Miller filed an action in the

District Court on October 24, 2001 in which she named the

United States as a defendant pursuant to the FTCA.            On

February 26, 2002, Markowitz filed an answer and cross-claim

against Moreno in the remanded state court action, and the

state court claims were removed to the District Court and

consolidated with her newly filed federal court action.2

2.
 Henry Miller died on September 24, 1997, and Vicky Miller
filed her suit on September 21, 1999, within the limitations
period. The United States was substituted for Dr. Carlos Moreno
for the FTCA claims pursuant to 28 U.S.C. § 2679 which
governs suits against federal employees acting in the scope of
their employment. The District Court then dismissed Miller’s
case for failure to exhaust her administrative remedies on
October 20, 2000. Under 28 U.S.C. §§ 2679(5)(A) and (B),
whenever the United States is substituted as the defendant under

                                 7
       The Government moved for summary judgment, arguing

that Miller’s claims were barred by the FTCA’s two-year statute

of limitations. The Government alleged that the decedent

became aware of his injury and its probable cause on October

31, 1995. This date reflects a period in which the decedent was

admitted    to   Frankford     Hospital    with    possible    acute

rhabdomyolyosis, a serious disease characterized by muscle

breakdown. Miller argues that the date from which the statute

of limitations should be calculated is September 24, 1997 — the



this section and the action is dismissed for failure to first present
the claim to the appropriate federal agency, the claim is deemed
timely under 28 U.S.C. § 2401(b) “if the claim would have been
timely had it been filed on the date the underlying civil action
was commenced and the claim is presented to the appropriate
Federal agency within 60 days after the dismissal of the civil
action.” Id. Miller filed her administrative claim with the
Department of Health and Human Services on December 12,
2000, within the 60 day statutory requirement. See 28 U.S.C. §
2679(5)(B). Therefore, after failing to get a response from the
agency, her suit against the United States, refiled on October 24,
2001, was treated as if it was filed on September 21, 1999.

                                 8
date of decedent’s death. Miller appeals from two orders of the

District Court which disposed of her claims against Appellees

Markowitz and the United States. The first order granted

summary judgment in favor of Appellee the United States,

holding that Miller failed to present her claims against the

United States to the Department of Health and Human Services

within the two year statute of limitations period outlined in the

FTCA. See 28 U.S.C. § 2401(b). In the second order, the

District Court entered judgment in favor of Appellee Markowitz

based on Pennsylvania’s statute of limitations.3



                               II.

       As our late colleague Judge Max Rosenn aptly noted in

3.
 After a jury trial, the District Court entered summary judgment
in favor of defendants Philadelphia Geriatric Center and
BOngiorno. Miller did not appeal from this order and, as such,
Philadelphia Geriatric Center and Bongiorno are not parties to
this appeal.

                               9
Hughes v. United States, 263 F.3d 272, 273 (3d Cir. 2001),

“determining when the statute of limitations begins to run in a

case is sometimes difficult, especially in cases claiming medical

malpractice.” This is particularly so where, as here, Miller

brings both survival and wrongful death claims under the FTCA

as well as survival and wrongful death claims pursuant to

Pennsylvania law all based on the alleged medical malpractice

of the appellees. We turn first to the FTCA claims.

A.     The Federal Tort Claims Act

       Under the FTCA, a claim against the United States is

barred unless it is presented to the appropriate federal agency

"within two years after such claim accrues." 28 U.S.C. §

2401(b). The determination of when a claim accrues for the

purposes of the FTCA is a question of federal law. Tyminski v.

United States, 481 F.2d 257, 262-63 (3d Cir. 1973). The District

Court’s factual findings regarding the date on which Miller’s

                               10
claims accrued will remain undisturbed unless its findings are

clearly erroneous. Anderson v. City of Bessemer, 470 U.S. 564,

573, 105 S. Ct. 1504, 1511; 84 L. Ed.2d 518, 528 (1985). Our

review is plenary, however, where the District Court’s

determinations involve the application and interpretation of legal

precepts. D&G Equip. Co. v. First Nat’l Bank, 764 F.2d 950,

954 (3d Cir. 1985).

       The FTCA is a limited waiver of the sovereign immunity

of the United States. The Supreme Court has admonished that

the courts should carefully construe the time limitations of the

FTCA so as not to extend that limited waiver beyond that which

Congress intended. United States v. Kubrick, 444 U.S. 111, 117-

18, 100 S. Ct. 352, 356-57, 62 L. Ed.2d 259 (1979). Normally,

a tort claim accrues at the time of injury. Gonzalez v. United

States, 284 F.3d 281, 288 (1st Cir. 2002). However, in Kubrick,

the Supreme Court carved out a "discovery rule" exception for

                               11
FTCA claims involving medical malpractice. Kubrick, 444 U.S.

at 111. Such claims, therefore, accrue not at the time of injury,

but rather when a plaintiff knows of both the existence and the

cause of his injury. Id. at 119-122. Importantly, however,

accrual does not await the point at which a plaintiff also knows

that the acts inflicting the injury may constitute medical

malpractice. Id. at 122.

B.     FTCA Wrongful Death Claims

       Before calculating the time limitations for Miller’s

federal claims, we must first address an issue she has raised

concerning the actual characterization of her claims. In her

brief, she argues that the District Court failed to recognize that

she was bringing both survival and wrongful death claims,

presumably in her capacity as the administratrix of her brother’s

estate. She argues that the majority of the District Court’s

discussion of the FTCA claims focused on negligence. See e.g.,

                               12
District Ct. Op. at 8 (“Therefore, the cause of action against the

United States alleging the negligence of Moreno, accrued at the

latest by December 1995 . . .”).

       In determining whether a wrongful death claim is distinct

from a survival claim, we look to state law. Miller v. United

States, 932 F.3d 301, 303 (4th Cir. 1991) ("[S]tate law

determines whether there is an underlying cause of action; but

federal law defines the limitations period and determines when

that cause of action accrued."); see also Chomic v. United

States, 377 F.3d 607, 611 (6th Cir. 2004). The wrongful death

action is distinct from a survival action under Pennsylvania law.

42 PA. CONS. STAT. Section 8302.4 Pennsylvania law creates



4.
 A survival action is a continuation of the personal injury action
held by the decedent at the time of his or her death and may be
brought by the personal representative of their estate. See
Moyer v. Rubright, 651 A.2d 1139, 1140 (Pa. Super. Ct. 1994);
Pastierik v. Duquesne Light Co., 526 A.2d 323, 326 (Pa. 1987).

                               13
an “independent” cause of action for wrongful death. 42 PA.

CONS. STAT. Section 8301. An “independent” wrongful death

action is one which is created for the benefit of and is held by

statutorily specified survivors and is intended to compensate

them for the pecuniary loss suffered because of the decedent’s

death. Put another way, the action remedies the loss sustained

by the survivors who are deprived of the decedent’s earnings,

companionship, etc.5 We agree that the District Court’s opinion

5.
 A wrongful death action under Pennsylvania law does have a
distinct curiosity to it. While technically an independent cause
of action, Pennsylvania wrongful death actions are, in some
sense, derivative. While not derivative of the decedent’s
personal injury action, such causes of action have been deemed
derivative of the original tort which resulted in injury and
eventual death. Therefore, if, on the date of the decedent’s
death, the statute of limitations had run on the underlying tort,
his survivors are barred from bringing a wrongful death claim.
See Moyer v. Rubright, 651 A.2d 1139, 1142-43 (Pa. Super. Ct.
1994); Baumgart v. Keene Bldg. Prod. Corp., 633 A.2d 1172,
1176 (Pa. Super. Ct. 1993); Ingenito v. AC&S Inc., 633 A.2d
1172, 1176 (Pa. Super. Ct. 1993); Anthony v. Koppers, 436 A.2d
181, 185 (Pa. 1981). However, if the survivors can bring a
wrongful death claim, the statute of limitations begins to run on

                               14
does appear to conflate Miller’s claims.           Miller pleaded

“negligence” - nothing more specific than that. However, while

she has not clearly delineated her claims, she is correct in

pointing out that the federal rules of pleading require only that

a plaintiff set forth a “short and plain statement” of his claim for

relief. Fed.R.Civ.P. 8(a)(2). Moreover, under the rules, “(a)ll

pleadings ... (are to) be so construed as to do substantial justice.”

Fed.R.Civ.P. 8(f).     Pleadings need not be construed most

strongly against the pleader, rather we should make a

determined effort to understand what she is attempting to set

forth.

         The complaints filed in this matter demonstrate that

Miller was indeed alleging a wrongful death claim in addition to




the date they sustain the pecuniary loss, i.e., the date of the
decedent’s death. Moyer, 651 A.2d at 1142.


                                 15
her survival action. For example, her complaint naming the

United States as a defendant alleges that the defendant’s actions

“caused the decedent to endure pain and suffering and

contributed to the cause of his untimely death.” Plaintiff’s

complaint at 4, ¶ 20. Further, her “Claim for Damage, Injury, or

Death” filed with the United States Department of Health and

Human Services indicates that she “seeks compensation and

damages related to the death of Henry Miller.” App. at 69a.

The letter from counsel accompanying the filing of this form

additionally makes it clear that Miller was making a wrongful

death claim (“we are submitting this wrongful death claim . . .”).

App. at 71a. Having determined that Miller has pleaded a

separate wrongful death action under the FTCA, we now must

determine if that claim is timely.

       As noted earlier, the accrual date for wrongful death

claims brought under the FTCA is determined under federal

                               16
law. See e.g. Miller, 932 F.3d at 303; Chomic, 377 F.3d at 611.

Where a state statute creates such an independent cause of

action, it cannot accrue for FTCA purposes until the date of

death, which gives rise to the underlying action. Fisk v. United

States, 657 F.2d 167, 171 (7th Cir. 1981) (holding that while

state law created the wrongful death cause of action, the accrual

question was one of federal law); see also Warrum v. United

States, 427 F.3d 1048, 1052 (2005) (re-affirming that for

purposes of the FTCA, because Indiana law creates a wrongful

death claim substantively independent of the personal injury

claim possessed by the decedent before death, the wrongful

death claim cannot accrue until the date of the decedent’s

death)).

      We now join those circuits that have concluded, albeit

under a wide variety of factual scenarios, that wrongful death

claims, for FTCA purposes, cannot accrue prior to death. See

                              17
e.g., Warrum, 427 F.3d at 1051; Johnston v. United States, 85

F.3d 217 (5th Cir. 1996); Washington v. United States, 769 F.2d

1436 (9th Cir., 1985); Fisk, 657 F.3d at 167. Here, Henry Miller

died on September 24, 1997, and his sister filed her wrongful

death action against the United States on September 21, 1999.

Because Miller brought her wrongful death action within two

years of the decedent’s death, her claims are timely.

C.     FTCA Survivor Claims

       Miller further claims that the District Court erred by

holding her survival claims against the United States and

Markowitz to be time barred. These claims were also brought

under the Federal Tort Claims Act. See 42 U.S.C. § 2401(b).

       The same two dates are once again at issue here: October

31, 1995 – the date when the doctors at the Franklin Hospital

informed Miller of the cause of her brother’s health problems,



                               18
and September 24, 1997, the date of his death. Miller again

argues that the statute of limitations begins to run on the date of

her brother’s death. The Government asserts that the claims

accrued when Miller knew of both the existence and the cause of

Henry’s injury, October 31, 1995. Relying on this date would

render Miller’s claims time-barred. If the date of accrual is the

date of the decedent’s death, however, Miller’s claims are timely.

The District Court concluded that October 31, 1995 was the date

the claims accrued because it was on this date that Miller knew

both the cause and existence of her brother’s illness. Miller

argues that the District Court erred by looking to her rather than

to the decedent as the proper person to whom the reasonable

person standard of the FTCA discovery rule applies. We agree.

       The record is quite clear that, although Miller closely

monitored her brother’s health and treatment, she was not his

legal guardian. Even though she was not his legal guardian, the

                                19
District Court nonetheless looked to Miller to determine when

any lawsuit should have been filed. This was error. Miller

would not have had the authority to file a suit on the decedent’s

behalf while he was alive unless she was appointed his guardian.

Hence, the District Court’s discussion of what Miller knew or

what a reasonable person with Miller’s knowledge should have

known is irrelevant to a determination of when the statute of

limitations ran.

       We are left to look at what the decedent Henry Miller

knew or what a reasonable person with the decedent’s knowledge

should have known. But this is problematic. As noted earlier,

the decedent was mentally impaired, with the approximate mental

age of a four year old child. In deciding not to look to Henry’s

knowledge, the District Court recognized the difficulty presented:

       Admittedly, for purposes of determining the date
       upon which the statute of limitations commences
       in a survival action, one inquiry is when the

                               20
       decedent became aware of his injury and its cause.
       Although it is unclear what decedent was
       specifically told about his injury and it is clear that
       someone suffering from mental retardation to the
       extent that he was would be unable to comprehend
       whatever he was told about his injury and its cause
       ...
District Ct. Op. at 8 (citing Barren v. United States, 839 F.2d 987

(3rd Cir. 1988)).

       On first blush it would seem that, as Kubrick instructs, we

should apply the objective reasonable person standard to Henry

Miller to determine when he should have known of his injury.

See Kubrick, 444 U.S. at 111, 100 S.Ct. at 360. In Kubrick, the

Supreme Court made no exception to the discovery rule for

persons suffering from a mental illness and so it would seem that

it should control here. However, Kubrick is not absolute in its

application. A consistent but narrow exception to the Kubrick

rule has been carved out by a number of courts of appeal for

situations in which the plaintiff has no culpability in failing to


                                 21
bring a timely claim. See Clifford by Clifford v. United States, 738

F.2d 977 (8th Cir, 1984); Washington v. United States, 769 F.2d 1436

(9th Cir. 1985).   After all, the Court in Kubrick was clearly

concerned with the plaintiff who “armed with the facts about the

harm done to him, can protect himself by seeking advice in the

medical and legal community.” Kubrick, 444 U.S. at 123, 100

S.Ct. at 360. The objective standard the Court adopted sought to

enforce this maxim.

       In Barren, over a vigorous dissent, we applied the Kubrick

objective standard, refusing to carve out any exception for a

plaintiff whose ability to perceive that the government injured

him was destroyed by the government’s own actions. The

plaintiff in Barren was initially competent, although he suffered

from serious mental illness, but he was rendered completely

incompetent through the government’s malfeasance in attempting

to treat his mental conditions. In applying the Kubrick objective

                                22
standard to the plaintiff, we noted that allowing persons with

mental illnesses to file suit later than the objectively reasonable

person would be “tantamount to ruling that a plaintiff’s mental

infirmity can extend the statute of limitations,” and that “[s]uch

extensions have been uniformly rejected by this and other courts

of appeals.” Barren, 839 F.2d at 992. We also refused to

consider the effect of a delay in the appointment of a guardian,

stating that “[t]here is no reason why such a delay in the

appointment of a guardian should work to the detriment of the

Government.” Id. at 991 n.7.

       Our reluctance in Barren to allow the plaintiff an

exception to the Kubrick objective standard stemmed from the

concern that plaintiffs who were injured by the government could

then attempt to take advantage of the “exception” by arguing

about when they became incompetent. In other words, the court

did not want disputes over when a plaintiff became incompetent

                                23
to overtake or subsume the objective reasonable person standard

in Kubrick - especially when the Government was the cause of

the injury that led to the incompetency. Barren, 839 F.2d at 991.

Additionally, we refused to address the effect of a lack of a

guardian for fear that “[a] deliberate delay” in appointing one

might also encourage extending the statute of limitations to the

government’s detriment.

       However, on its facts, Barren addresses only the specific

class of plaintiffs who were not only injured by the government,

but were also prevented from recognizing their injuries by the

government’s malfeasance and we do not find its logic

controlling here. Miller’s incapacity was not caused by the

Government’s malfeasance.       Instead, he was born totally

incompetent and remained so his entire life. Consequently, the

concerns suggested in Barren are simply not implicated here.

The Government did not cause Miller’s retardation, although

                               24
they did injure him. Thus, because Miller’s mental retardation

predated the government’s negligence, there can be no concern

that finding Kubrick inapplicable here will encourage disputes

over when a plaintiff was rendered incompetent. Nor might it

facilitate the intentional delay in appointing a guardian because,

again, plaintiffs in Miller’s position are incompetent before the

government’s negligence occurs.

       To reiterate, we are not dealing with a person who, like in

Barren, was mentally ill but competent and then, because of the

government’s malpractice, progressed into total mental

incapacity. Henry Miller, from his birth to his death, possessed

the intellectual ability of a four year old. His profound disability

predating the government’s malfeasance places him outside the

purview of Barren and into somewhat uncharted waters.

Analogous to Henry Miller’s position, and instructive for the

resolution of this case, we believe that his position most closely

                                25
resembles a plaintiff who is a legal minor.

       For minors, it is of course true that in most situations the

Kubrick objective standard unequivocally applies. See Crawford

v. United States, 796 F.2d 924 (7th Cir. 1986). But, minors are not

subject to the Kubrick objective standard because they are

thought to be capable of recognizing their injury and thus should

be held responsible for investigating its cause, which is the

justification that underlies Kubrick. Rather, minors are subject

to Kubrick’s standard because we look to their parent or legal

guardian. That is, we impute to their parents or guardian the

knowledge of their injury. We do this precisely because a legal

minor is not in a position to either understand her injuries or even

to bring a claim if she wanted to. It follows that, in the rare

instance where a minor did not have either a parent or a guardian,

the Kubrick standard should not be applied to them because there

would be no one to whom we could impute knowledge and, also

                                26
because the minor herself could not have understood, let alone

brought, the claim. Here, we are essentially dealing with a minor

— an individual who is so severely mentally incapacitated that

his intelligence equates to that of a four-year-old child.

Moreover, this “minor” lacked an appropriate legal guardian.

Accordingly, we will not apply the Kubrick objective standard to

this plaintiff.

        Having determined that Kubrick’s standard does not

apply, we now turn to a determination of when the claims

accrued. We find instructive a class of cases — the coma cases

— identified by Judge Becker in his dissenting opinion in

Barren. For example, in Clifford v. United States, the Court of

Appeals for the Eighth Circuit held that the statute of limitations

accrued when Clifford’s father was appointed his guardian and

not, as the government had argued, when Clifford fell into a

coma. Clifford, 738 F.2d 977. Specifically, the court held that

                                27
because Clifford had reached the age of majority, and had not yet

had a guardian appointed on his behalf, the knowledge of his

family members could not be imputed to the plaintiff himself.

See Barren, 839 F.2d at 997 (citing Clifford, 738 F.2d at 980).

       Also citing Clifford, the Court of Appeals for the Ninth

Circuit, in Washington v. United States, held that a cause of

action accrued on the date when a comatose patient died, not on

the date she entered into a fourteen-year coma. Washington, 769

F.2d at 1439. The court reasoned that because the plaintiff was

never aware of her injury or its cause, the statute of limitations

began to run on the date of her death. Id. at 1438. Further, the

court found the knowledge of the plaintiff’s husband irrelevant

to her ability to file suit. Id.

       Henry Miller presents a legal situation akin to those

plaintiffs in Clifford and Washington. Not only was no guardian

ever appointed for him, his profound mental retardation

                                   28
prevented him from any awareness of his injury or its cause. The

objective reasonable person inquiry annunciated by the Supreme

Court in Kubrick does not apply here. Assuredly, had Vicki

Miller been appointed legal guardian for her brother at some time

before the government’s alleged malpractice, Kubrick would

most likely apply. Admittedly, Henry Miller’s legal position is

a unique one, and our holding in this appeal is narrow as a result.

However, we are certainly not alone among those courts which

have carved a narrow equitable exception to Kubrick’s

reasonable person standard for mentally incapacitated persons

who, for whatever reason, do not have a legally appointed

guardian to act in their stead. See Clifford, 738 F.2d at 977;

Washington, 769 F.2d at 1439; Zeidler v. United States, 601 F.2d

527 (10th Cir. 1979).    We will therefore reverse the grant of

summary judgment on Miller’s FTCA survival claims.

                               III.

                                29
       Miller also brings survival and wrongful death claims

under Pennsylvania law. She again asserts that the statute of

limitations for the state law survival claim against Dr. Markowitz

did not begin to run until the decedent’s death. She also asserts

that there were genuine issues as to when the statute of

limitations began to run. We agree that there are genuine issues

of material fact as to when Miller’s state law survival claims

against Markowitz accrued.

       Under the Pennsylvania discovery rule, the statute of

limitations begins to run when the complaining party “knows, or

reasonably should know (1) that he has been injured, and (2) that

his injury has been caused by another party’s conduct.” Bohus

v. Beloff, 950 F.2d 919, 924 (3d Cir. 1991). A plaintiff need not

know the exact medical cause of the injury, that his injury is due

to another’s negligent conduct or that he has a cause of action.

Id. at 925. The “polestar” of the discovery rule is not the

                               30
plaintiff’s actual knowledge, but rather “whether the knowledge

was known, or through the exercise of diligence, knowable to

[the] plaintiff.” Id. (citing O’Brien v. Eli Lilly & Co., 669 F.2d

704, 711 (3d Cir. 1981)); see also Vitalo v. Cabot Corp., 399

F.3d 536, 545 (3d Cir. 2005) (reiterating that plaintiffs must

exercise reasonable diligence to invoke the “safe harbor” of the

discovery rule).

       Consequently, Pennsylvania’s discovery rule is objective.

Statutes of limitations are generally strictly construed because

their exclusive purpose is to expedite litigation and discourage

stale claims so the defendant will not be prejudiced by having to

locate evidence and witnesses to defend a long-passed wrong.

Gustine Uniontown Assocs. v. Anthony Crane Rental, Inc., 842

A.2d 334, 346 (Pa. 2004). Because the discovery rule tolls the

otherwise strict application of the statute of limitations, diligence

is evaluated under the reasonable person standard. It matters not

                                 31
what the particular plaintiff actually knew, but what he

reasonably should have known. Until recently, no adjustments

to this objective analysis were made for mental illness. See Lake

v. Arnold, 232 F.3d 360, 371 (3d Cir. 2000) (citing Walker v.

Mummert, 146 A.2d 289, 291 (Pa. 1958); Pearce v. Salvation

Army, 674 A.2d 1123, 1126 (Pa. Super. Ct. 1996). However,

under a recent Pennsylvania Supreme Court decision, “[w]hile

reasonable diligence is an objective test, it is sufficiently flexible

to take into account the differences between persons and their

capacity to meet certain situations and the circumstances

confronting them at the time in question.” Fine v. Checcio, 870

A.2d 850, 858 (Pa. 2005) (citing Crouse v. Cyclops Indus., 745

A.2d 606, 611 (Pa. Super. Ct. 2000) (internal citations omitted)).

“Under this test, a party’s actions are evaluated to determine

whether he exhibited ‘those qualities of attention, knowledge,

intelligence and judgment which society requires of its members

                                 32
for the protection of their own interest and the interest of

others.’” Id.

       Whether a damaged party, exercising reasonable

diligence, could ascertain that he has been injured, and by what

cause, is a factual determination. As discussed earlier, the

decedent’s knowledge is relevant for the survival claim because

it is his claim that survives his death brought by his personal

representative due to his decease. Carroll v. Avallone, 869 A.2d

522, 528 (Pa. Super. Ct. 2005) (citing Kiser v. Schulte, 538 A.2d

219 (Pa. 1994). We believe that because the decedent had the

mental age of a four-year-old, this is a “difference between

persons” that must be taken into account under Fine v. Checcio,

870 A.2d 850, 858 (Pa. 2005), to determine whether the decedent

knew, or, more accurately, was even capable of knowing, that he

was injured and the cause of his injury. Because this presents a

genuine issue of a material fact, we will reverse the grant of

                               33
summary judgment on Miller’s state law survival claim.

       Miller also asserts that the District Court erred by failing

to recognize the state law wrongful death component of her

claims. We agree. Generally, the right of action for wrongful

death shall exist only for the benefit of the spouse, children, or

parents of the deceased. See 42 PA. CONS. STAT. § 8301(b).

However, a wrongful death action may also be brought by the

personal representative of a decedent to recover damages for

reasonable hospital, nursing, medical, funeral expenses and

expenses of administration necessitated by reason of injuries

causing death. See 42 PA. CONS. STAT. § 8301(d). Hence,

Miller, as administratrix of her brother’s estate, is a proper party

to bring this claim. Carroll v. Avellone, 869 A.2d 522, 528 (Pa.

Super. Ct. 2005) (citing Commonwealth v. Opperman, 780 A.2d

714 (Pa. Super. Ct. 2001).

       The decedent’s wrongful death actions accrued on

                                34
September 24, 1997, the date of his death. See Gallick v. United

States, 542 F. Supp. 188, 191 (1982). It is undisputed that the

statute of limitations is two years for wrongful death actions. 42

PA. CONS. STAT. § 5524(2). Therefore, Miller’s wrongful

death claims filed on September 21, 1999 were timely.

Accordingly, we will reverse the grant of summary judgment on

Miller’s wrongful death claims.

                               IV.

       The Judgment of the District Court is reversed and this

matter is remanded for further proceedings consistent with this

opinion.




                               35
SMITH, Circuit Judge, dissenting.

       I respectfully dissent from the majority’s conclusion that

Vicki Miller’s survival action against the United States pursuant

to the Federal Tort Claims Act (FTCA) is not time-barred. In my

view, we are bound by the Supreme Court’s decision in United

States v. Kubrick, 444 U.S. 111 (1979), and this Court’s decision

in Barren by Barren v. United States, 839 F.2d 987 (3d Cir.

1988), to apply an objective test in determining when the statute

of limitations began to run on Miller’s survival claim under the

FTCA. Because Barren applied the objective test and refused to

toll the statute even though the government’s negligence

aggravated the plaintiff’s mental illness to such an extent that he

was unable to perceive that he had been injured, there is no basis

to create an exception which would allow tolling here where

Henry Miller’s inability to recognize the fact that he had been

injured was not attributable to the government’s conduct.

                                36
       The majority ignores Kubrick’s admonition that the

FTCA’s statute of limitations must be narrowly construed in

order to avoid “extend[ing] the waiver [of sovereign immunity]

beyond that which Congress intended.”           444 U.S. at 118.

Furthermore, the majority misreads Barren en route to creating

an exception to Kubrick’s objective test which allows tolling for

a mentally incapacitated adult if the record fails to establish that

he has an appointed guardian. The lack of an appointed guardian

is not an exception to Kubrick’s objective test, and I have found

no case law that would support creating such an exception. For

that reason, I write separately to explain why the objective

reasonable person standard applied in Kubrick and Barren is

controlling and compels the conclusion that the District Court

correctly dismissed Miller’s FTCA survival claim as time-barred.



       I also disagree, for the reasons explained below, with the

                                37
majority’s determination that the District Court improperly

dismissed Vicki Miller’s state law survival action against Dr.

Markowitz, and that it conflated her wrongful death claims with

her survival actions.



                                I.



       The facts set forth by the majority are not in dispute. The

decedent, Henry Miller, was born severely retarded in 1933 and

attained the mental age of a four year old. In his mid-fifties,

Henry was placed in a community living arrangement and his

sister, Vicki Miller, regularly visited him. Due to a toxic Lithium

level, Henry became seriously ill in 1995.        His sister was

“repeatedly advised that her brother’s condition was caused by

an adverse reaction to the combination of medication that had

been prescribed . . . .” Maj. op. at 5. Despite treatment, Henry

                                38
did not recover, and he died on September 24, 1997.



       Vicki Miller filed suit on September 21, 1999. Pursuant

to the FTCA, Miller asserted a survival action against the United

States. The question is: when did Miller’s survival action accrue

- in October of 1995 when she learned of the cause of her

brother’s injury - or in September of 1997 when he died?



       The majority determines that the survival claim accrued

when Henry died in September of 1997. I disagree. My analysis

leads me to conclude that Vicki Miller’s survival claim accrued

when Henry was hospitalized in 1995 and she was repeatedly

informed that his illness was caused by a reaction to his

medication. In my view, the majority disregards the Supreme

Court’s teaching in Kubrick and misapplies this Court’s decision

in Barren.

                               39
                               A.



       In United States v. Kubrick, 444 U.S. 111 (1979), the

Supreme Court determined that an FTCA claim accrues when the

plaintiff knows both the existence of his injury and who has

caused the injury. Id. at 123. Kubrick established the general

rule - which the majority acknowledges - that the inquiry is an

objective one requiring a determination of whether a reasonable

person should have known of the injury and who caused it. See

Barren by Barren v. United States, 839 F.2d 987, 990 (3d Cir.

1988) (discussing Supreme Court’s analysis in Kubrick).



       In Barren, the plaintiff, a veteran, suffered a service-

related mental disability. 839 F.2d at 987. Although he sought

treatment from the Veterans Administration (VA) in 1973, he

was advised that his mental infirmity was not service-related and

                               40
he was denied admission for in-patient treatment. Recognizing

that Barren needed treatment, his sister, Henrietta, and his family

sought alternate treatment in several private facilities in 1974. In

October of 1977, the VA reversed its prior determination that

Barren’s mental condition was not service-related and awarded

him a partial disability, subsequently increasing his disability to

100 percent. In September of 1979, Henrietta filed two FTCA

claims, one on behalf of her brother and the other in her own

right, seeking reimbursement for medical expenses she incurred

on her brother’s behalf. She alleged that the VA had negligently

failed to admit her brother for in-patient treatment and that its

psychiatric treatment was substandard.         Henrietta was not

appointed her brother’s guardian, however, until June of 1981.



       The District Court dismissed Henrietta’s claim as

untimely. Barren’s FTCA claim, the District Court ruled, was

                                41
viable because his diminished mental capacity, caused by the

VA’s negligence, had prevented him from appreciating the fact

that he had been injured. After conducting a bench trial, the

District Court found that the VA was negligent and awarded

damages to Barren.



       The United States appealed. It did not dispute that its

negligence had caused Barren’s inability to perceive his injury.

Rather, the VA asserted that Barren’s claim was time-barred and

that the District Court erred by considering Barren’s mental

infirmity instead of applying Kubrick’s objective standard. The

Barren majority viewed Barren’s sister, even though she was not

a guardian at the relevant time, as an objectively reasonable

person. 839 F.2d at 991. It concluded that, in light of the fact

that Henrietta and Barren’s family sought alternate treatment for

Barren in 1974, a reasonable person should have known at that

                               42
time that the VA’s care was inadequate and that Barren had been

harmed by the VA’s refusal to admit him for treatment. The

question was whether Barren’s mental infirmity was a factor in

the determination of when his claim accrued.



       The Barren panel agreed that Kubrick’s objective test

generally controls the determination of when a FTCA claim

accrues. The panel also agreed that an individual’s mental

infirmity is not a factor that may be considered under Kubrick’s

objective test. 839 F.2d at 995 (Becker, J., dissenting) (noting

agreement with the majority that the “general rule” is that

Kubrick’s objective test governs the determination of when a

statute of limitations begins to run and that tolling is not

permitted “by reason of infancy or mental disability”). Even

though dissenting, Judge Becker vigorously argued for a narrow

exception in which the statute of limitations is tolled for “a

                              43
plaintiff whose ability to perceive that the government injured

him was destroyed by the government’s negligent care until the

plaintiff is affirmatively informed of the injury in a way he can

understand, or until a guardian is appointed.” Id.



       As support for this narrow exception, Judge Becker relied

on two cases presenting FTCA claims on behalf of adults who

suffered from a coma induced by the government’s negligence,

and who, because of their mental incapacity, were unable to

recognize that they had been injured. Id. at 997 (discussing

Clifford by Clifford v. United States, 738 F.2d 977 (8th Cir.

1984), and Washington v. United States, 769 F.2d 1436 (9th Cir.

1985)). As a result of the plaintiffs’ inability to detect that they

were injured, the FTCA claims in these two coma cases were

filed beyond the two year limitations period. Although the

government argued that the claims were time-barred, in each case

                                44
the Court determined that the claim did not accrue until either a

guardian was appointed, Clifford, 738 F.2d at 980, or the plaintiff

died, Washington, 769 F.2d at 1439. The Clifford Court pointed

out that it was presented with more than just a plaintiff suffering

from a mental infirmity. 738 F.2d at 979-980. Rather, the

government’s conduct caused both the mental infirmity and the

inability to perceive that he had sustained an injury. This

extraordinary situation warranted tolling the statute of limitations

because tolling prevented the government from profiting from its

own wrong. Clifford, 738 F.2d at 980; Washington, 769 F.2d at

1439 (following Clifford). Consistent with this analysis, Judge

Becker stressed that he advocated for the exception “not because

of Barren’s mental incompetency simpliciter, but because of the

government’s conceded participation in Barren’s inability to

perceive his injury.” Id. at 1000.




                                45
       Although the Barren majority found that Barren’s injury,

and the reason for his inability to recognize the same, were a

“compelling reason to excuse” Barren’s untimely claim, it

concluded that “Kubrick makes clear[] the rule cannot be

subjectively applied.”    839 F.3d at 992; 994 (Sloviter, J.,

concurring) (acknowledging that “fairness requires that we relax

the rule,” but that “is an issue for Congress”). To allow Barren

to file later than an objectively reasonable person, we explained,

“would be tantamount to ruling that a plaintiff’s mental infirmity

can extend the statute of limitations.” Id. at 992, 994 (Sloviter,

J., concurring) (finding that inclusion of plaintiff’s mental

disability “interposes an impermissible subjective element into

the reasonable person standard”). Mindful that “limitations

periods must be strictly construed, especially those involving a

waiver of sovereign immunity,” the Barren majority refused to

embrace the exception urged by the dissent. Id. As a result,

                               46
irrespective of the fact that the government’s negligence caused

Barren’s inability to perceive that he had been injured, Barren’s

case was viewed and resolved on the basis that it involved a

mental infirmity, nothing more. Because Barren’s FTCA claim

was filed after the two year limitations period, the majority

determined it was time-barred.



                               B.



       In my view, Barren governs this case. The facts are

nearly identical.6 In Barren, the FTCA action was filed on behalf

6.
 It is true that the nature of Henry’s mental incapacity is
distinguishable to a degree from that suffered by Barren and
that, as the majority notes, “Henry’s position most closely
resembles a plaintiff who is a legal minor.” Maj. op. at 26. This
difference, however, is irrelevant for purposes of this appeal.
Infancy does not toll the statute, and Henry’s similarity to that
of a minor requires application of the objective reasonable
person test. Barren, 839 F.2d at 995 (Becker, J., dissenting)
(agreeing with the majority that the two year limitations period

                               47
of an adult who suffered from a mental disability such that it

prevented him from recognizing that he had been injured at the

hands of the government. Although Barren’s mental infirmity

was substantial, he lacked a legal guardian at the time he was

negligently treated. His sister, however, was aware of the facts

regarding his condition, his unsuccessful attempts to obtain

treatment from the VA, and that, as a result of the VA’s refusal

to treat him, she and her family had to obtain treatment for her

brother elsewhere. These facts, the Barren majority concluded,

were sufficient to demonstrate that a reasonable person should

have known in 1974 that Barren was injured by the VA’s

substandard care.



       Similarly, in this case, we are presented with an FTCA



for FTCA claims is not tolled by reason of one’s infancy).


                              48
claim filed on behalf of an adult, Henry Miller, who suffered

from a mental disability that prevented him from recognizing that

he had been injured as a result of the government’s conduct. As

in Barren, the disabled party’s sister, here Vicki Miller, was not

his guardian at the time he suffered an injury as a result of the

government’s negligence. Nor was she his guardian before this

FTCA suit was filed, a fact that also parallels Barren. Vicki

Miller, who regularly visited her brother, was aware of her

brother’s longstanding mental incapacity, his sudden physical

illness requiring hospitalization, the cause of his illness, and the

course of his medical treatment.



       Because the facts in this case are nearly identical to those

in Barren, I cannot accede to the majority’s view that Barren is

not controlling because it “addresses only the specific class of

plaintiffs who were not only injured by the government, but were

                                49
also prevented from recognizing their injuries by the

government’s malfeasance . . . .” Maj. op. at 24-25. Barren,

contrary to the majority’s reading, treated this very class of

plaintiffs in the same fashion as any other plaintiff suffering from

a mental infirmity which precluded that person from recognizing

that he had been injured at the hands of the government. See

Barren, 839 F.2d at 996 (Becker, J., dissenting) (emphasizing

that the Barren majority’s decision “ignores the added special

factor of the government’s participation in Barren’s inability to

comprehend his injury and its cause”). Indeed, Barren explicitly

rejected the argument that the government’s connection with the

plaintiff’s inability to perceive his injury warranted an exception

to the application of Kubrick’s objective test. In short, the

“difference” between Barren and the instant case is that in the

former, the circumstances favoring an exception to Kubrick were

more compelling than those before us. Still, this Court in Barren

                                50
declared that Kubrick’s objective reasonable person test governed

the timeliness of Barren’s FTCA claim regardless of the nature

or cause of the plaintiff’s mental incapacity.



       Thus, in my view, the District Court correctly applied

Kubrick’s objective test, as we did in Barren, without regard to

the nature or cause of Henry Miller’s mental incapacity. Because

a reasonable person, like Vicki Miller, was aware of Henry’s

condition, his sudden illness and the cause of his demise more

than two years before the filing of this suit in 1999, Miller’s

FTCA survival action should be time-barred.



       The majority further misapplies Barren by reasoning that

Vicki Miller’s knowledge was “irrelevant to a determination of

when the statute of limitations ran” because she was not his

guardian. Maj. op. at 20. The Court in Barren instructed that,

                               51
in deciding when the limitations period begins to run, the critical

inquiry is what an objectively reasonable person should have

known. 839 F.2d at 991. To that end, we viewed Barren’s sister,

Henrietta, as an objectively reasonable person, not because she

had been appointed Barren’s guardian years after the negligence

occurred, but because she was familiar with the circumstances

surrounding her brother’s treatment over the years.7 839 F.2d at

991, and at 994 (Sloviter, J., concurring) (applying the reasonable

person standard and noting that the only distinction between

plaintiff and his sister was his mental incapacity). In fact, in

viewing Barren’s sister as an objectively reasonable person, we

attached little, if any significance, to the fact that she was

7.
 Restatement (Second) of Torts, § 283 comment c (1965)
(stating that the “reasonable man is a fictitious person”); and
comment d (explaining that the “qualities of a reasonable man
which are of importance differ with the various situations . . .
[and] are those which are necessary for the perception of the
circumstances existing at the time of his act or omission)
(emphasis added).

                                52
appointed Barren’s guardian.        We acknowledged that a

guardian’s knowledge may be imputed to the incapacitated

person, 839 F.2d at 991 n.7, but we rejected the argument that the

lack of a guardian “could allow an incompetent plaintiff to

circumvent the statute of limitations.” Id. Thus, Barren taught

that guardianship status is not determinative of whether the

knowledge a person possesses is on a par with that of the

objectively reasonable person. Restatement (Second) of Torts §

283 comment c (1965). For that reason, I cannot agree with the

majority that the District Court erred by viewing Vicki Miller as

an objectively reasonable person for purposes of ascertaining

when Miller’s FTCA survival action accrued.



       The majority, however, finds the fact that Henry lacked a

guardian to be of critical importance. It reasons that Henry’s

situation is like that of the plaintiffs in the two coma cases

                               53
identified by Judge Becker in his dissent in Barren, 839 F.3d at

997 (discussing Clifford, 738 F.2d at 979-80, and Washington,

769 F.2d at 1436). Because the statute of limitations was tolled

for those plaintiffs, who like Henry suffered from a mental

disability and lacked guardians, the majority concludes that the

statute should also be tolled for Henry.



       In my view, these two coma cases are distinguishable in

several important respects. In Clifford and Washington, as in

Barren, the determination of when the FTCA claims accrued

involved more than just a consideration of the plaintiffs’ mental

infirmity. Clifford, 738 F.2d at 980; Washington, 769 F.2d at

1439; see also Barren, 839 F.2d at 996 (Becker, J., dissenting)

(explaining that this case involved more than a mere mental

incapacity). In these cases, there was a mental infirmity caused

by the government plus the fact that the mental infirmity caused

                               54
by the government’s negligence prevented the plaintiff from

appreciating that he had been injured and by whom. In light of

these circumstances and the fact that these formerly competent

adults had no one to represent their interests, the Courts of

Appeals for the Eighth and Ninth Circuits concluded that their

FTCA claims did not accrue until either a guardian was

appointed or the plaintiff died.8 See Barren, 839 F.2d at 997

(discussing Clifford, 738 F.2d at 979-80, and Washington, 769

F.2d at 1438). Under those extraordinary circumstances, tolling

was appropriate, as the Clifford Court explained, to prevent the

government from profiting from its own wrong. 738 F.3d at 980.


8.
 The majority does not explicitly state when Miller’s FTCA
survival claim accrued. Inasmuch as the majority explains that
the coma cases are instructive and that “Henry Miller presents
a legal situation akin to those plaintiffs in Clifford and
Washington,” maj. op. at 29, and because the record does not
indicate that Henry had a guardian, I must assume that the
majority determines that Miller’s claim accrued on Henry’s date
of death.

                              55
 Indeed, the Clifford Court pointed out that its holding was

limited to the “rare situation where the alleged malpractice itself

(and not some preexisting mental condition unconnected with the

government) has prevented the claimant from ever obtaining that

knowledge.” Id.       Thus, tolling was not warranted simply

because these mentally incapacitated adults had no guardian.



       Unlike the plaintiffs in Clifford and Washington, Henry

Miller was not competent at any point in time before the

government’s conduct caused his Lithium to reach a toxic level.

Henry was born severely retarded and attained the mental age of

a four year old. As a result, the government’s negligent conduct

neither caused nor aggravated Henry’s mental infirmity and

Henry’s inability to recognize his injury was not attributable to

the government’s conduct.       Thus, application of Kubrick’s

objective test here would not allow the government to profit from

                                56
its own wrong.        In short, we are not confronted with the

extraordinary circumstances present in Clifford and Washington,

where the government’s conduct is the reason that the plaintiff

was unable to perceive his injury and timely initiate suit. For that

reason, I do not believe that these two cases support creating an

exception in the case sub judice to the FTCA’s statute of

limitations, which would allow tolling simply on the basis that

this record fails to establish that Henry had a guardian in the

latter years of his life.



       Indeed, in Barren, we explicitly rejected the concept that

the lack of a guardian for a mentally infirm adult plaintiff could

toll the statute of limitations. We observed that “[a] deliberate

delay in the appointment of a guardian, under plaintiff’s view of

the statute of limitations, could allow an incompetent plaintiff to

circumvent the statute of limitations.” 839 F.2d at 991 n.7. We

                                57
declared that “[t]here is no reason why such a delay in the

appointment of a guardian should work to the detriment of the

government.” Id. My research has failed to unearth any case law

holding that the absence of a guardian, without more, warrants

tolling the FTCA’s statute of limitations for a mentally

incapacitated plaintiff.



       In my view, this novel exception created by the majority

in the absence of truly extraordinary circumstances like those in

the coma cases not only lacks any legal support, it erodes the

well-settled rule that the FTCA’s two year limitations period is

not tolled by reason of mental incapacity.     As a result, this

exception fails to heed the Supreme Court’s admonition that the

FTCA’s limitations period must be carefully construed to avoid

“extend[ing] the waiver [of sovereign immunity] beyond that

which Congress intended.” Kubrick, 444 U.S. at 118. Moreover,

                               58
the majority’s approach ignores the fact that this Court’s decision

in Barren binds us until it is set aside by an en banc panel of this

court. See Third Cir. I.O.P. 9.1.



       In sum, Kubrick must guide our analysis. The reasonable

person is that individual who is armed with the facts regarding

the injuries sustained. 444 U.S. at 123. Barren confirms as

much by observing that the Supreme Court’s concentration in

Kubrick was on the objective aspects of the test and “whether

[the plaintiff] possessed the facts such that, as a reasonable

person, he should have known of ” the injury and who caused it.

Barren, 839 F.2d at 990; see also Restatement (Second) of Torts

§ 12 (stating that “the words ‘should know’ . . . denote the fact

that a person of reasonable prudence and intelligence or of the

superior intelligence of the actor would ascertain the facts in

question . . . or would govern his conduct upon the assumption

                                59
that such fact exists”) (emphasis added). Because Vicki Miller

was repeatedly advised in October of 1995 that Henry’s medical

status was caused by a reaction to his medications, and because

these facts demonstrate that a reasonable person should have

known at that time that Henry had been injured by the

government, the District Court correctly concluded that the

FTCA survival action filed more than two years later was time-

barred.9



                              II.


9.
 I also note that the record demonstrates that Vicki Miller
appreciated the cause of her brother’s illness in December of
1995 when she wrote to Dr. Bongiorno, a physician at a health
care facility to which her brother had been transferred. In her
letter, she explained that, according to another physician,
“Henry’s condition was brought about by an adverse reaction to
drugs that were prescribed for him . . . .” This evidence further
supports the conclusion that a reasonable person should have
known by late 1995 that Henry’s illness was attributable to the
government’s medical care.

                              60
       I also disagree with the majority’s conclusion that Miller’s

state survival action against Dr. Markowitz was timely filed. The

majority reaches this conclusion, in my view, by misreading Fine

v. Checcio, 870 A.2d 850 (Pa. 2005), as authority to apply a

subjective test to determine whether the statute of limitations had

run. By applying a subjective test, the majority takes account of

the fact that the decedent had the mental age of a four year old

and concludes that there is a genuine issue of fact as to whether

the “decedent knew, or, more accurately, was even capable of

knowing, that he was injured and the cause of his injury.” Maj.

op. at 34.



       Fine, contrary to the majority’s analysis, did not concern

whether an objective or subjective test is to be employed in the

application of the discovery rule to a statute of limitations

dispute. Thus, the Fine Court did not abandon the objective test

                                61
used in determining whether the statute of limitations may be

tolled by Pennsylvania’s discovery rule. Rather, Fine concerned

two mentally competent adults who did not discover until late in

the two year limitations period that they had been injured by the

negligence of their treating medical practitioners. The question

before the Court was whether these plaintiffs had to file their

cause of action within the remaining time in the two-year

limitations period, or within two years of the discovery that they

had been injured. The Court held that



       it is not relevant to the discovery rule application

       whether or not the prescribed period has expired;

       the discovery rule applies to toll the statute of

       limitations in any case where a party neither knows

       nor reasonably should have known of his injury

       and its cause at the time his right to institute suit

                                62
       arises.



Id. at 859 (emphasis added). Indeed, by focusing on “where a

party . . . reasonably should have known,” the Pennsylvania

Supreme Court did not change the course of Pennsylvania’s

discovery rule. Because application of the objective test shows

that a reasonable person would have known of the decedent’s

injury and its cause more than two years before this suit was

filed, I cannot agree with the majority that Miller’s state law

survival action against Dr. Markowitz was timely filed.



                              III.



       The majority also concludes that Miller sufficiently

pleaded wrongful death claims against Dr. Markowitz and the

United States by alleging nothing more specific than negligence.

                              63
I can discern no wrongful death claims, even liberally construing

the pleadings. The amended complaint, prepared and signed by

experienced counsel, clearly states on the first page that Miller

was bringing this action “pursuant to the Pennsylvania Survival

Act, 42 Pa.Cons.Stat. § 8302.” Thereafter, she asserts six counts

alleging that the negligence of various persons caused the

decedent to sustain various maladies and that he eventually died.

In my view, the mere reference to death in the amended

complaint, without more, is insufficient to put the defendants on

notice that Miller was asserting, in addition to her clearly

articulated survival action, a wrongful death claim under a

separate statutory provision of Pennsylvania law, i.e., 42

Pa.Cons.Stat. § 8301. See Conley v. Gibson, 355 U.S. 41, 47

(1957) (instructing that Rule 8 requires a statement of the claim

“that will give the defendant fair notice of what the plaintiff’s

claim is and the grounds upon which it rests”).

                               64
       Indeed, my review of the record fails to reveal any action

by Miller, either before or after the District Court granted the

motion for summary judgment, that indicated that Miller was in

fact prosecuting a wrongful death action. The absence of a

wrongful death claim would not have been surprising in light of

the fact that Miller did not qualify as one of the enumerated

beneficiaries for whom the statute created a right of action. See

42 Pa.Cons.Stat. § 8301(b) (stating that the “right of action

created by this section shall exist only for the benefit of the

spouse, children or parents of the deceased”).         Although

subsection (d) allows a personal representative, such as Miller,

to bring a wrongful death action, any recovery is limited to

specific types of damage that may have been incurred as a result

of the injuries causing death.      42 Pa.Cons.Stat. § 8301(d)

(specifying that the personal representative “may bring an action

to recover damages for reasonable hospital, nursing, medical,

                               65
funeral expenses and expenses of administration necessitated by

reason of injuries causing death”).



       Thus, the District Court understandably addressed only the

merits of Miller’s survival action.      After the District Court

entered judgment in favor of the United States and Dr.

Markowitz and closed the case, Miller still did not take any

action to notify the District Court that it had erred by dismissing

her wrongful death claim.       Instead of filing a motion for

reconsideration, which would have provided the District Court

with its first opportunity to address the viability of a wrongful

death claim, Miller filed this appeal alleging error by the District

Court. In light of the failure to plead a wrongful death action and

the absence of any conduct which would have notified the

District Court that this separate cause of action was at issue, I

cannot subscribe to the majority’s conclusion that the District

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Court erred by conflating the two causes of actions. Indeed, in

my view, there were not two causes of action to conflate.



                              IV.



       In sum, I submit that Miller’s FTCA and state law survival

actions were time-barred because the cause of action accrued

more than two years before she filed suit. Because Miller did not

allege a wrongful death claim under the FTCA or state law,

remand is unnecessary. I would affirm the judgment of the

District Court.




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