                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a0526n.06

                                           No. 11-5873

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT                                       FILED
                                                                                      May 21, 2012
                                                                                LEONARD GREEN, Clerk
CARL O. HUDDLESTON; TAMMY L.                      )
HUDDLESTON,                                       )
                                                  )
       Plaintiffs-Appellants,                     )   ON APPEAL FROM THE UNITED
                                                  )   STATES DISTRICT COURT FOR THE
v.                                                )   MIDDLE DISTRICT OF TENNESSEE
                                                  )
UNITED STATES OF AMERICA,                         )
                                                  )
       Defendant-Appellee.                        )


       Before: GIBBONS, ROGERS, and COOK, Circuit Judges.


       COOK, Circuit Judge. Carl O. Huddleston appeals the district court’s dismissal of his

medical malpractice claim against the United States under the Federal Tort Claims Act (“FTCA”).

We affirm.


       Huddleston claims that employees of the United States Department of Veterans Affairs

(“VA”) Hospital in Murfreesboro, Tennessee committed medical malpractice in connection with his

October 2006 colonoscopy. Specifically, he contends that VA employees negligently reprocessed

equipment used in the colonoscopy and that he contracted hepatitis B as a result. The VA informed

Huddleston of the mishandling of the colonoscopy equipment in February 2009, and he tested

positive for hepatitis B later the same month. Huddleston filed an administrative tort claim with the
No. 11-5873
Huddleston v. United States


VA on December 17, 2009. On September 14, 2010, the VA denied Huddleston’s claim. He filed

his complaint in the district court on March 11, 2011.1


       The government moved to dismiss Huddleston’s malpractice claim under Federal Rule of

Civil Procedure 12(b)(1), arguing that Tennessee’s three-year statute of repose for medical

malpractice lawsuits barred Huddleston’s claim. The district court granted the motion. This timely

appeal followed.


       Huddleston asserts that the district court violated the Supremacy Clause by allowing the

Tennessee statute of repose to override 28 U.S.C. § 2401(b), which provides:


       A tort claim against the United States shall be forever barred unless it is presented
       in writing to the appropriate Federal agency within two years after such claim accrues
       or unless action is begun within six months after the date of mailing, by certified or
       registered mail, of notice of final denial of the claim by the agency to which it was
       presented.


Huddleston asserts that his claim is timely under federal law because he filed his VA administrative

claim within two years after he tested positive for hepatitis B, and filed his complaint with the

district court within six months after the VA denied his administrative claim. The Supremacy

Clause, Huddleston argues, does not permit Tennessee’s statute of repose to trump § 2401(b).




       1
        Huddleston’s wife also brought a claim for loss of consortium that the district court
dismissed, but the Huddlestons did not appeal the dismissal of that claim.

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No. 11-5873
Huddleston v. United States

        Huddleston’s argument misconstrues the FTCA. “The FTCA does not create liability, it

merely waives sovereign immunity to the extent that state-law would impose liability on ‘a private

individual in similar circumstances.’” Myers v. United States, 17 F.3d 890, 899 (6th Cir. 1994)

(quoting 28 U.S.C. § 2674). Courts applying the FTCA look to the substantive tort law of the state

in which the cause of action arose to determine liability and damages. See Ward v. United States,

838 F.2d 182, 184 (6th Cir. 1988) (citing 28 U.S.C. §§ 1346(b), 2674). Against this backdrop, §

2401(b) cannot relieve plaintiffs from the substantive requirements of state tort law; it acts merely

as a limitation on the federal government’s waiver of sovereign immunity. Cf. Spannaus v. Dep’t

of Justice, 824 F.2d 52, 55 (D.C. Cir. 1987) (“Unlike an ordinary statute of limitations, § 2401(a)

is a jurisdictional condition attached to the government’s waiver of sovereign immunity, and as such

must be strictly construed.”); In re Franklin Sav. Corp., 385 F.3d 1279, 1287 (10th Cir. 2004)

(“Timeliness of suit is one of the conditions of the government’s waiver of sovereign immunity

under the FTCA, and the district court lacks subject matter jurisdiction to proceed under the FTCA

if a plaintiff fails to satisfy the FTCA’s timing requirements set forth in § 2401(b).”). Plaintiffs must

satisfy § 2401(b) in addition to—rather than in place of—meeting substantive state tort-law

requirements.


        Huddleston claims medical malpractice by VA employees. A plaintiff must meet the

requirements of Tennessee’s statute of repose in order to have a cause of action for medical

malpractice under Tennessee law:




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No. 11-5873
Huddleston v. United States

          In no event shall any [medical malpractice] action be brought more than three (3)
          years after the date on which the negligent act or omission occurred except where
          there is fraudulent concealment on the part of the defendant . . . .


Tenn. Code Ann. § 29-26-116(a)(3). The statute of repose is a substantive requirement, not just a

procedural hurdle. See, e.g., Cronin v. Howe, 906 S.W.2d 910, 913 (Tenn. 1995); Montgomery v.

Wyeth, 580 F.3d 455, 468 n.7 (6th Cir. 2009). Unlike a statute of limitations, which eliminates the

remedy available to plaintiffs, Tennessee’s statute of repose extinguishes the cause of action itself.

Id. Such substantive limitations apply to suits brought against the United States under the FTCA,

which permits liability only where the United States, if a private person, would be liable to the

claimant in accordance with the law of the place where the act or omission occurred. See 28 U.S.C.

§ 2674 (“The United States shall be liable, respecting the provisions of this title relating to tort

claims, in the same manner and to the same extent as a private individual under like circumstances

. . . .”). Because federal law incorporates state substantive law for the purposes of FTCA claims,

applying Tennessee’s statute of repose to FTCA plaintiffs does not run afoul of the Supremacy

Clause.


          Huddleston underwent the colonoscopy in 2006 and filed his complaint in 2010 without

claiming fraudulent concealment. Consequently, at the time of his complaint, Tennessee law

recognized no cause of action for alleged medical negligence regarding his medical treatment in

2006. The limitations period of § 2401(b) is of no moment because the applicable state law provides

no cause of action.



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No. 11-5873
Huddleston v. United States

       We need not decide whether Huddleston could bring suit if he had filed his administrative

claim with the VA within three years because Huddleston did not, in fact, file his claim with the VA

until December 2009, two months after the statute of repose extinguished his claim.


       For these reasons, we affirm.




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