United States Court of Appeals
For the First Circuit
No. 03-2164
NANCY CASCONE, Executrix of the Estate of Michele Cascone,
Plaintiff, Appellant,
v.
UNITED STATES OF AMERICA,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Michael A. Ponsor, U.S. District Judge]
Before
Torruella, Lynch, and Lipez,
Circuit Judges.
David A. Mech for appellant.
Richard A. Olderman, Attorney, Appellate Staff, with whom
Peter D. Keisler, Assistant Attorney General, Michael J. Sullivan,
United States Attorney, Jeffrey S. Bucholtz, Deputy Assistant
Attorney General, and Robert S. Greenspan, Attorney, Appellate
Staff, were on brief, for appellee.
May 27, 2004
LYNCH, Circuit Judge. An intensive-care nurse at the
Veterans Affairs Medical Center in the Leeds section of
Northampton, Massachusetts (the Leeds VAMC) was convicted of
murdering four patients and attempting to murder three others
between August 1995 and February 1996 by injecting them with
epinephrine, a stimulant that in large doses can trigger heart
attacks. See Skwira v. United States, 344 F.3d 64, 67 (1st Cir.
2003) (describing the conviction in the context of another case);
United States v. Gilbert, 229 F.3d 15, 17-18 (1st Cir. 2000)
(interlocutory appeal from the nurse's trial). An extensive
federal criminal investigation starting in February 1996 had led to
the nurse's indictment on November 19, 1998. Some of the estates
of her alleged victims have since sued the United States for
wrongful death under the Federal Torts Claims Act (FTCA), 28 U.S.C.
§ 2671 et seq. See Skwira, 344 F.3d at 67; Cutting v. United
States, 204 F. Supp. 2d 216, 218 (D. Mass. 2002).
The cases have raised the issue, under the FTCA discovery
rule, of when the estate, through the family members, discovered,
or in the exercise of reasonable diligence should have discovered,
the factual basis for the cause of action. Gonzalez v. United
States, 284 F.3d 281, 288 (1st Cir. 2002). The FTCA requires a
plaintiff to file an administrative claim with the appropriate
federal agency within two years after that point. 28 U.S.C. §
2401(b); Skwira, 344 F.3d at 70. In Skwira, this court concluded
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that the plaintiffs' October 21, 1999 administrative claim for the
wrongful death of Leeds VAMC patient Edward Skwira on February 18,
1996 was not timely. 344 F.3d at 67.
The instant case was brought by the estate of another
patient, Michele Cascone, who died on January 28, 1996. The theory
of the case is that the nurse, Kristen Gilbert, wrongfully caused
Cascone's heart attack and eventual death by injecting him with
epinephrine. Here, the administrative claim was filed on November
10, 2000. Applying the principles of Skwira to the different facts
of this case, we conclude that the administrative claim was timely
because it accrued on or after November 10, 1998. See 28 U.S.C. §
2401(b).
There are at least two salient differences from Skwira
that lead us to our conclusion. First, there was nothing
inherently suspicious in Cascone's reported death of an apparent
heart attack because Cascone had a long history of heart disease,
including congestive heart failure, and at the time of admission to
the hospital showed heart irregularities. Indeed, the death
certificate said he died of, inter alia, "[c]hronic atrial
fibrillation" (emphasis added). Second, the considerable
publicity, of which the Cascones were not in fact aware, about the
investigation at the Leeds VAMC focused on other patient deaths
that were identified as inherently suspicious because those
patients had no preexisting heart conditions, and no one from the
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government or the media publicly drew a connection between the
nurse's misdeeds and Cascone's death before the November 10, 1998
cut-off date. Government investigators never contacted Cascone's
family and never sought to exhume Cascone's body for further
testing, and Gilbert was never indicted for Cascone's murder. We
reverse the dismissal of the plaintiff's claim.
I.
The following facts, presented in the light most
favorable to the plaintiff, are drawn from the complaint and
materials submitted to the district court on the motion to dismiss.
See McIntyre v. United States, Nos. 03-1823, 03-1791, 2004 U.S.
App. LEXIS 9077, at *9 (1st Cir. May 10, 2004); Muniz-Rivera v.
United States, 326 F.3d 8, 11 (1st Cir. 2003).
On January 26, 1996, Michele Cascone, age 74, was
admitted to the Leeds VAMC with a case of pneumonia. He was placed
in the intensive-care unit, Ward C. The hospital records indicate
that he had a medical history "significant for atrial fibrillation,
wide complex tachycardia, and congestive heart failure" and that he
suffered from "insulin dependent diabetes mellitus" and "multiple
cerebrovascular accidents." Upon his admission to the hospital, a
physical examination showed that his "[h]eart was irregular, with
. . . a soft systolic murmur," and a heart monitor revealed "atrial
fibrillation with rapid ventricular response." The treating
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physician also noted that Cascone's heart rate had increased
because of "his hypoxemia and general condition."
Two days later, during the evening of January 28, 1996,
Cascone suffered a series of heart attacks and died. He was
pronounced dead at 11:25 p.m. The death certificate listed
ventricular tachycardia, bilateral pneumonia, chronic obstructive
pulmonary disease, and chronic atrial fibrillation as the causes of
death. None of Cascone's family members was at the hospital when
he died, as best we can tell from the record. Cascone's daughter,
Janice Kenyon, called the hospital that afternoon, learned of
Cascone's first heart attack, and relayed the message to his wife
Nancy Cascone. A Leeds VAMC doctor then called Nancy and said that
her husband had had another heart attack. He called again later in
the evening to say that her husband had passed away. The doctor
asked if Nancy wanted an autopsy done. He did not state any reason
why she might want one, and Nancy said that she did not. Michele
Cascone was survived by Nancy, three sons (Leonard, Michael, and
William), two daughters (Sandra Herk and Janice Kenyon), a sister
(Romilda Dow), and a brother (Joseph) (collectively, the Cascones).
At the time, none of the Cascones inquired further into the cause
of Michele Cascone's death.
From Cascone's death until November 10, 1998 (the cut-off
date for accrual), the Cascones lived in various towns in
Massachusetts. Although the estate, through Nancy Cascone as
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executrix, is the only plaintiff, the location of various family
members is pertinent. Nancy lived in Rowe; Leonard moved a lot but
identified his hometown as Greenfield; Michael lived in Shelburne
Falls; William was incarcerated at a state prison in the city of
Norfolk; Sandra Herk lived in Athol; Janice Kenyon lived in
Leominster; Romilda Dow lived in Newburyport from June to December
and in Florida for the other months of the year; and Joseph, who
passed away in December 2002, lived in North Andover. The Cascones
appear to be in communication with one another. Michael and
William said in their depositions that they corresponded regularly
with Nancy, and deposition testimony indicated that several of the
others had communicated with Nancy both after Cascone's death and
after Nancy received a telephone call from a reporter on April 25,
2000 raising the possibility that Gilbert might have killed
Cascone.
The government's argument on appeal is not that the
Cascones actually knew of any information or read any news coverage
before November 10, 1998 that would have given them a reasonable
basis to suspect that the government was responsible for Cascone's
death. Nancy, William, Sandra, Janice, Leonard, and Romilda
testified in their depositions that they had not read any of the
articles or seen any of the television coverage relied upon by the
government. Michael testified that his mother's phone call to him
after she spoke with the reporter on April 25, 2000 was the first
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that he had heard of the Leeds VAMC investigation. Joseph was not
deposed because he passed away in December 2002. The government's
contention is instead that before November 10, 1998, the Cascones
should have, in the exercise of reasonable diligence, suspected a
causal link between Cascone's death and government misconduct based
on the quantity of news coverage. For present purposes, we assume
arguendo the validity of the government's approach: that a
plaintiff who wishes to pursue an FTCA claim may not remain in
total ignorance of the pertinent press and media reports. We
therefore examine several factors: the geographical scope of the
coverage vis-a-vis the family members, the content of the stories,
and the degree of press and media saturation.
In June and July of 1996, articles began to appear in
various newspapers reporting that a federal investigation had been
launched by the VA's Inspector General's Office after an internal
probe at the Leeds VAMC revealed an unusually high number of heart
attack deaths at the hospital. Several reported that suspicious
deaths had occurred between late 1995 and early 1996 and that
investigators had discovered discrepancies in the inventory of
epinephrine, a stimulant that could cause cardiac arrest in high
doses. In August of 1996, the story broke that the investigation
had led to a grand jury probe focusing on Kristen Gilbert, a nurse
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who worked the 3 p.m. to 11 p.m. shift1 on Ward C, the intensive-
care unit. Some sporadic coverage of the story continued through
1997.
The story regained some prominence in January 1998 when
Gilbert stood trial for allegedly calling in a bomb threat to the
Leeds VAMC to retaliate against co-workers and a former boyfriend
who worked at the hospital for their participation in the
investigation, and again in April 1998 when she was convicted of
that crime. United States v. Gilbert, 181 F.3d 152 (1st Cir. 1999)
(affirming Gilbert's conviction on appeal). The articles covering
the bomb threat story often mentioned the string of suspicious
heart attacks at the Leeds VAMC but tended to provide few details
about them, such as the time frame or the ward in which they
occurred.
Most of the articles upon which the government relies
appeared in the Daily Hampshire Gazette and the daily edition of
the Springfield Union News, two western Massachusetts newspapers.
None of the Cascones subscribe to either newspaper. From 1996 to
1998, 8-10% of households in Franklin County, where Nancy, Leonard,
and Michael lived, bought the daily edition of the Springfield
1
There are some minor discrepancies in the articles about
the exact time of the shift. Although most identify the shift as
running from 3 p.m. to 11 p.m., some describe it as running from 4
p.m. to 12 a.m.
-8-
Union News and 4-5% bought the Daily Hampshire Gazette.2 Less than
1% of households in areas where the remaining Cascones lived bought
those papers. The two newspapers published over fifty articles
between 1996 and 1998 on the investigation into the rash of heart
attacks at the Leeds VAMC, at least fifteen of which were on the
front page.3 None specifically mentioned Michele Cascone. One
July 25, 1996 article in the Daily Hampshire Gazette purported to
list all deaths by cardiac or cardiopulmonary arrest at the Leeds
VAMC between January 1995 and February 1996, but the list had no
entry matching Cascone's description. Many of the articles that
discussed individual patient deaths focused on those without any
history of heart problems, such as Henry Hudon, a 35-year-old
schizophrenic veteran admitted with flu-like symptoms.
The Daily Hampshire Gazette, however, did publish two
articles in September 1997 reporting that an FTCA suit had been
filed over the December 1995 death of Rita Morel at the Leeds VAMC.
2
Throughout this opinion, the cited circulation numbers
include both single copy sales and subscriptions.
3
At least eleven front-page articles were published in
these two papers during the summer of 1996, all of which said that
the deaths under investigation happened between late 1995 and early
1996 and about half of which singled out Ward C or the intensive-
care unit. There was also a front-page article in the Sunday
Republican (the Sunday edition of the Springfield Union News),
which circulates to around 25% of households in Franklin County.
That article, which focused primarily on a parallel investigation
of a VA hospital in Missouri, did not specify the ward or time
frame in which the deaths occurred. Nor did it discuss the deaths
of any individual patients identified as having a history of heart
disease.
-9-
Both articles noted that Morel had preexisting heart problems, with
one pointing to a history of congestive heart failure, and the
other noting that she had struggled for years with hypertension,
strokes, and diabetes. Additionally, the newspaper published a
July 23, 1998 article stating that federal investigators had
exhumed the body of Stanley J. Jagodowski, who died at the Leeds
VAMC in August 1995 after suffering for several years from coronary
artery disease and severe peripheral vascular disease.
The Athol Daily News, to which Sandra Herk (Cascone's
daughter) and her husband Arthur Herk subscribed at all relevant
times,4 ran four articles, all between August and November of 1996,
on the investigation into suspicious heart attack deaths at the
Leeds VAMC.5 None of the articles identified Ward C or the
intensive-care unit as the place where the suspicious deaths
occurred. And none mentioned Cascone by name or described as
suspicious the deaths of other patients who had a history of heart
ailments. In fact, Henry Hudon was the only individual patient
whose death was discussed. The two articles discussing Hudon's
4
Arthur Herk stated in his deposition that he generally
read the paper "semi-well" on a nightly basis, provided that he did
not get interrupted. Although Sandra Herk testified in her
deposition that she herself did not often read the paper, she said
that her husband sometimes told her about what he read there.
5
Only one was on the front page. Three stated that the
suspicious deaths were heart attacks in late 1995 and early 1996,
and two headlines asked, "Is Government To Blame in [VA] Hospital
Deaths?"
-10-
death reported that he was 35 years old and quoted his sister as
saying "[h]e never had a heart problem, never, never."
The Greenfield Recorder, which was bought at that time by
about 69% of households in the Greenfield city zone (where Leonard
lived), by about 36% of households in the surrounding rural areas
in Franklin County (where Nancy and Michael lived), and by less
than 1% of people in the other Cascones' hometowns, ran five
articles on the investigation, all of which were published between
September and November of 1996.6 Again, none singled out Ward C or
the intensive-care unit. And none mentioned Cascone or reported
suspicious deaths involving patients with preexisting heart
problems. Hudon and Skwira were the only individual patients whose
deaths were discussed; no medical history was given for Skwira, and
it was emphasized that Hudon had no history of heart problems.
The Boston Globe published a lengthy article on the
investigation as the cover story to its April 19, 1998 Sunday
magazine.7 At the time, the Sunday edition of the newspaper (which
6
It is not clear from the record whether any of the five
articles ran on the front page. Three identified the suspicious
deaths as occurring in late 1995 and early 1996.
7
The article was headlined "The Mysterious Deaths on Ward
C." The subheading was "At the VA hospital in Northampton, 63
patients on one ward died in the span of 14 months. Some family
members now ask: WHAT KILLED THEM?" The article noted a higher
than normal cluster of cardiac-related deaths on Ward C in late
1995 and said that investigators suspected that someone had
murdered patients using epinephrine. It stated that suspicion had
focused on a nurse who worked the 3 p.m. to 11 p.m. shift on Ward
C.
-11-
includes the magazine) was read by around 33% of households in
Essex County (where Cascone's brother Joseph lived),8 48% of those
in Norfolk County (where Cascone's son William was incarcerated),
12% of those in Worcester County (where Cascone's daughters Sandra
and Janice lived), and 5% in Franklin County (where Nancy and
Cascone's sons Leonard and Michael lived). Cascone's daughter
Janice said in her deposition that she "often buy[s] the Sunday"
edition of the Boston Globe. The article, which discussed numerous
individual patient deaths, did not mention Cascone and focused
primarily on patients without a history of heart troubles, such as
Hudon. The article did, however, describe the death of Rita Morel,
who was identified as having a history of congestive heart failure.
The article reported that Morel's brother had filed an FTCA claim
with the VA over her death.
The daily edition of the Boston Globe, which Janice
(Cascone's daughter) "sometimes" read and which was purchased at
the time by around 31% of those in Norfolk County (where Cascone's
son William was incarcerated), 19% of households in Essex County
(where Cascone's brother Joseph and sister Romilda lived), and less
than 7% of those in the other Cascones' hometowns, also ran eleven
articles on the investigation between August 1996 and August 1998.9
8
Cascone's sister, Romilda Dow, lived in Essex County only
during the months from June to December, so was not in the area at
the time.
9
Four of the eleven articles were only one paragraph long.
None were on the front page of the paper, and only one was on the
-12-
None mentioned Cascone. But one short article, published on July
25, 1998 at page B7, did describe a suspicious death involving a
patient with past heart troubles. The story reported that federal
investigators had exhumed the body of Stanley Jagodowski, who died
at the Leeds VAMC in August 1995 after "suffer[ing] from coronary
artery disease and other vascular problems for several years."
The Boston Herald, which was read by around 12% of
households in Essex County at the time and which Arthur Herk and
William Cascone occasionally read, ran six articles on the
investigation between August 1996 and April 1998.10 None mentioned
Cascone or other deaths involving patients with a history of heart
problems.
In addition to the press coverage, Boston-based Channel
5 television news ran four broadcasts between July and September of
1996 on the investigation.11 Although none of the Cascones live in
Boston, Cascone's two daughters (Sandra Herk and Janice Kenyon)
first page of the Metro section. Only five articles specified that
the suspicious deaths were cardiac arrests. And only two
identified the ward or shift in which the deaths occurred.
10
None of the articles were on the front page. Five noted
that the suspicious deaths involved heart attacks, two said that
the deaths occurred in Ward C on the 4 p.m. to midnight shift, and
three noted the time frame as between November 1995 and February
1996.
11
There was also coverage in the Springfield television
news. But none of the Cascones live in Springfield. Michael and
Nancy Cascone said in their depositions that they do not receive
local television news because they use satellite television
services. And there is no evidence in the record that any of the
other Cascones watched or had access to those television stations.
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said in their depositions that they sometimes watched Channel 5
news and his sister (Romilda Dow) said that she occasionally
watched the local news on Boston-based television stations.
Cascone was again not mentioned. The only individual death
discussed was that of Henry Hudon, whom the relevant story
described as having "no history of heart problems."
The Cascones stated in their depositions that between
Cascone's death in January 1996 and the November 10, 1998 cut-off
date for accrual, no one contacted them with suspicions about
Cascone's death. They were not contacted by reporters, any of the
other eight families bringing FTCA suits against the VA, the VA
Inspector General's Office, or the state police, which had been
enlisted to help with the federal investigation.
Nor were they contacted by the United States Attorney's
Office, even though an August 9, 1996 article in the Springfield
Union News quoted William Welch, the AUSA handling the case, as
saying, "We're going to contact anyone and everyone who may have
relevant information [about the deaths at the Leeds VAMC]." The
paper noted that Welch's statement "includ[ed] patient families."
In November 1996, April 1997, and July 1998, three families were
contacted for permission to exhume bodies of patients who had died
at the Leeds VAMC, according to a July 24, 1998 Springfield Union
News article. But Cascone's family was not one of them.
-14-
Meanwhile, the VA Inspector General's Office announced
that details of the federal investigation would be kept secret
until it was complete. A July 17, 1996 Springfield Union News
article quoted Jon Wooditch, a spokesman at the VA's Office of
Inspector General, as saying "[b]ecause it's an ongoing inquiry,
it's not in the best interests of anybody to make comment." Both
the Daily Hampshire Gazette and Springfield Union News reported on
July 26, 1996 that veterans' agents from various local towns had a
private meeting with officials at the Leeds VAMC but were
unsuccessful in discovering any additional information. The
newspapers also reported that AUSA Welch repeatedly refused to
confirm that Gilbert was a suspect in the grand jury investigation,
to disclose how many deaths were being investigated, or to make
public the results of the analysis of several bodies that had been
exhumed. On September 17, 1996, the district court, at the request
of both Welch and Gilbert's attorney, sealed hearings related to
the grand jury investigation. As late as April 19, 1998, the
Boston Globe reported that some families that had brought suit were
having trouble uncovering facts about the deaths because of the
ongoing criminal investigation.
On November 19, 1998, a federal grand jury indicted
Gilbert for murder of four Leeds VAMC patients and the attempted
murder of three others. At this point, the November 10, 1998 cut-
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off date for accrual of Cascone's claims had already passed. The
indictment did not allege Cascone to be one of Gilbert's victims.
Then, on April 25, 2000, the Springfield Union News
reported that Gilbert may have murdered a fifth veteran at the
Leeds VAMC, Michele Cascone. As best we can tell, this was the
first mention of Cascone's death in the press or television news
coverage surrounding the deaths at the Leeds VAMC. The story said
that although Gilbert had not been charged with Cascone's murder,
the prosecution had moved in pre-trial proceedings to be given
permission to introduce evidence about his murder to the jury to
demonstrate a pattern to Gilbert's killings. The article noted
that "[d]etails relating to [Cascone's death], previously contained
in sealed documents, were revealed in a pretrial hearing" (emphasis
added). In particular, the article reported that, according to
AUSA Ariane Vuono, a co-worker had observed Gilbert carrying a vial
of epinephrine between Cascone's third and fourth heart attacks and
that Gilbert had jokingly asked the co-worker, "Want some epi?"
Later that day, Fred Contrada, who had authored the
article, called Nancy Cascone for comment on her husband and the
Gilbert trial. According to Nancy Cascone's deposition testimony,
she replied, "I don't know any Gilbert trial." Contrada then told
her that Gilbert was charged with killing four patients at the
Leeds VAMC and that her husband may have been the fifth. Contrada
asked Nancy whether anyone had called her from the VA or the
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hospital, and she said no. The Cascones say that this was the
first time that any of them had heard of Gilbert or her possible
role in Michele Cascone's death. After the call, Nancy bought a
copy of the Springfield Union News and read Contrada's article.
She then notified the rest of the family and asked William to write
a letter on her behalf contacting an attorney.
On November 10, 2000, David Mech, Nancy Cascone's
attorney and special administrator of Michele Cascone's estate,
filed a claim for wrongful death and personal injury with the
Department of Veterans Affairs. The claim stated, "[Cascone] was
in the care of one Kristen Gilbert when he was injected with a
lethal dose of epinephrine which put [him] in cardiac arrest and
caused his death. The hospital, its servants, agents, and
employees were negligent in the care of Cascone and Gilbert's
supervision." On April 6, 2001, the VA denied the claim as
untimely.
In due course, on June 15, 2001, Mech, as special
administrator of the estate, filed suit in federal district court
against the United States under the FTCA, claiming negligence,
conscious pain and suffering, wrongful death, and reckless conduct.
See 28 U.S.C. § 2401(b) (allowing six months from the denial of the
administrative claim to file suit). The complaint alleged that the
United States had violated its duty of care to Cascone by "failing
to provide the medical care required for his health and recovery"
-17-
and by "failing to take reasonable action to protect him from
harm." The complaint was later amended on November 29, 2001 to
substitute Nancy Cascone as the executrix of the estate.
On March 3, 2003, the United States moved to dismiss for
lack of subject matter jurisdiction, arguing that the
administrative claim had not been timely filed. On July 9, 2003,
after a hearing and a review of the exhibits submitted by the
defendants, which included deposition transcripts and copies of
various stories in the press and television news, the district
court granted the motion. The court reasoned that "even assuming
the plaintiff was subjectively ignorant of any investigation at the
VAMC," the accrual standard is "objective." The court found that
Cascone's "sudden" death after being admitted with a "non-life
threatening medical ailment" put the plaintiff on notice of the
injury. The court further determined that media reports from July
of 1996 onwards would have put a reasonable person on notice before
November 10, 1998 of a causal connection between possible
government wrongdoing and Cascone's death. Nancy Cascone, as
executrix of Cascone's estate, timely appealed.
II.
The FTCA provides, in relevant part, that "[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." 28 U.S.C. § 2401(b). Because the
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FTCA is a waiver of sovereign immunity, it is strictly construed.
Skwira, 344 F.3d at 73-74. Timely filing of an administrative
claim is a jurisdictional prerequisite to suit. Id. at 71.
Although normally a tort claim accrues at the time of
injury, the Supreme Court in United States v. Kubrick, 444 U.S. 111
(1979), created a "discovery rule" exception for FTCA claims
involving medical malpractice. See McIntyre, 2004 U.S. App. LEXIS
9077, at *37-*38; Skwira, 344 F.3d at 73. The Court held that
such claims accrue when a plaintiff has factual knowledge of both
the existence and the cause of his injury. Kubrick, 444 U.S. at
119-202. The plaintiff need not, however, know that the acts
legally constitute medical malpractice. Id. at 122. The rationale
is that once a plaintiff knows the fact of the injury and the
identity of the parties who caused it, he can find out if he was a
victim of malpractice by consulting doctors or lawyers. Id. This
court has extended Kubrick's discovery rule to FTCA claims for
wrongful death in settings involving deliberate acts, where "the
prospects of any claim against the government were so hidden that
a reasonable plaintiff would not have been alerted to their
existence." Skwira, 344 F.3d at 84 (Boudin, C.J., concurring); see
also McIntyre, 2004 U.S. App. LEXIS 9077, at *38-*39.
Under the discovery rule, the test is whether plaintiff
knows, or in the exercise of reasonable diligence should have
known, the factual basis of the cause of action, including the fact
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of the injury and the injury's causal connection to the government.
McIntyre, 2004 U.S. App. LEXIS 9077, at *39-*40; Skwira, 344 F.3d
at 78 ("[A] medical malpractice claim has accrued 'once a plaintiff
knows of the injury and its probable cause.'" (quoting Gonzalez,
284 F.3d at 289)). Whether a plaintiff should, in the exercise of
reasonable diligence, have discovered necessary facts is an
objective inquiry. McIntyre, 2004 U.S. App. LEXIS 9077, at *39-
*40. Nonetheless, the particular circumstances of individual
plaintiffs can be relevant to the outcome. The issue is whether a
reasonable person similarly situated to the plaintiff would have
known the necessary facts. Id. at *62-*63. Where the plaintiff
resides can be a factor when information about the underlying facts
is limited to certain geographical areas. Id. at *63. This is
often true, for example, when notice is based on local television
or press reports. Id. How often a plaintiff communicates with
other family members who have access to more information can also
be relevant. Id.
Here, the government, relying on press and media reports,
argues that the estate objectively should have been alerted to the
fact that Cascone's seemingly natural death was suspicious. The
government contends that the reports should have prompted the
estate to conduct a reasonable investigation and eventually to have
concluded that there was a reasonable basis to believe that
Gilbert, and hence the government, wrongfully caused the death. We
-20-
hold that a similarly situated person would not have had an
objective basis before November 10, 1998 to think that Cascone's
seemingly natural death was suspicious. Thus, no duty to
investigate further was triggered before then.
We focus our analysis on the facts available to a
reasonable person in Nancy Cascone's position because she is the
named plaintiff, as the executrix of the estate. Because she
communicates regularly with the other Cascones, and there is no
evidence that the Cascones are estranged from one another, we also
look to information available to the other Cascones, to the extent
that such information might reasonably be expected to have been
communicated to Nancy.
At the time of Cascone's death in January 1996, none of
the Cascones had a reasonable basis to suspect foul play.12 The
question is whether media reports after Cascone's death were
12
The government initially argued in its brief that
Cascone's "admittance to a hospital with an illness that the family
understood to be non-life threatening, coupled with almost
immediate death from a wholly different condition, would put any
reasonable person on notice that further investigation was called
for." The government withdrew this contention at oral argument,
conceding that "they weren't on any inquiry notice at that point."
The government was wise to withdraw this argument. Cascone was 74
years old and had serious heart ailments, and his death certificate
noted atrial fibrillation, one of his preexisting heart problems,
as a cause of death. The fact that Cascone was admitted for
pneumonia rather than a cardiac condition does not undermine the
inference that he died of natural causes. It was perfectly
reasonable for Nancy and the other Cascones to believe, as Sandra
Herk (Cascone's daughter) said in her deposition testimony, that
the pneumonia exacerbated his preexisting heart conditions or that
his heart problems simply happened to flare up at that point,
independently of his other illness.
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sufficient to trigger a duty to inquire before November 10, 1998
into the circumstances of Cascone's death. Most of the news
coverage in this case appears to have been in Springfield and
Hampshire County newspapers. But none of the Cascones lived in
either place, and during the relevant times the Springfield Union
News and the Daily Hampshire Gazette were bought by less than 10%
and less than 5%, respectively, of households where the Cascones
did live. In these circumstances, a plaintiff in Nancy Cascone's
position could reasonably be ignorant of the articles in those two
newspapers. The same reasoning applies to stories on the
Springfield television news, as there is no evidence in the record
that a significant portion of people in the Cascones' hometowns had
access to or watched Springfield news stations.
Again, accepting arguendo the government's premise that
people can, in certain circumstances, be charged with knowledge of
relevant news, we turn our focus to roughly thirty scattered
stories in the Greenfield Recorder, the Athol Daily News, the
Sunday Republican, the Boston Herald, the Boston Globe, and Boston-
based Channel 5 News, all of which either are read or watched at
least occasionally by one or more Cascones or have a significant
circulation in counties where they live.
The combination of coverage in Nancy Cascone's local
newspaper, the Greenfield Recorder, and in media read or watched by
other Cascones or those in the other Cascones' hometowns was at
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least arguably enough to put Nancy Cascone on notice that an
investigation was being conducted into heart attack deaths at the
Leeds VAMC. But most of the coverage from these sources contained
few details about the deaths being investigated. Only a few
stories mentioned that the suspicious deaths occurred in Ward C or
the intensive-care unit or that they happened on the 3 p.m. to 11
p.m. shift, and a significant number did not indicate that the
deaths under investigation had occurred between late 1995 and early
1996. To the extent that those details were reported, they were
rarely in the lead paragraph or the headline.
Knowledge of an investigation into heart attack deaths at
the Leeds VAMC, with few additional details, would not be
sufficient to give Nancy Cascone a reasonable basis to suspect that
the suspicious deaths included Michele Cascone's and, thus, to
trigger a duty to investigate further. None of the Cascones had a
reasonable basis to suspect that Cascone had died of anything but
his preexisting heart condition, even if they should have known
there was an investigation. "Where the plausible explanation [for
death] is one of purely natural causes . . . , there is initially
no reasonable basis for supposing [misconduct]. It is not the
purpose of the discovery rule to encourage or reward simple
paranoia." Thompson v. United States, 642 F. Supp. 762, 768 (N.D.
Ill. 1986); see also Diaz v. United States, 165 F.3d 1337, 1340
(11th Cir. 1999).
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That Gilbert may have murdered some patients at the Leeds
VAMC is not alone sufficient to provide a reasonable basis for the
family of every patient who died of a heart attack at the hospital,
including those patients admitted with a history of heart ailments,
to suspect that their loved one was murdered. Cf. McIntyre, 2004
U.S. App. LEXIS 9077, at *51-*52 (the revelation that the FBI
caused the death of one informant against James Bulger and Stephen
Flemmi by leaking his identity to them did not provide a reasonable
basis to believe that the FBI was responsible for all those who
died while informing against Bulger and Flemmi); Skwira, 344 F.3d
at 80 (finding accrual not just based on press reports of an
ongoing investigation into deaths at the Leeds VAMC, but relying
also on suspicions about Skwira's death voiced by government
investigators, an autopsy demonstrating that his death certificate
misstated the cause of death, and an acknowledgment by family
members that they were surprised that Skwira had died of a cardiac
event).
We ask next whether any of the media reports from these
sources described suspicious deaths involving patients who had a
history of heart problems and, if so, whether those reports were so
prominent or pervasive that Nancy Cascone should be charged with
knowledge of them, even though she testified in her deposition that
she did not read them. Two Boston Globe articles did mention the
deaths of patients with past heart troubles. On April 19, 1998,
-24-
the Boston Globe Sunday Magazine published a seven-page story on
the Leeds VAMC deaths. Toward the end of the article, it reported
that Maurice Morel had filed a suit against the VA for the death of
his sister Rita Morel at the Leeds VAMC on December 26, 1995. One
sentence, on the last page of the article, mentioned that Rita
Morel had been "plagued" by a number of illnesses, including
"congestive heart failure." That history was not discussed further
or mentioned again in the article. The other mention of patients
with preexisting heart conditions came in a July 25, 1998 article.
The article, only 201 words long and printed on page B7, reported
that the body of Stanley Jagodowski, who died at the Leeds VAMC on
August 22, 1995, was being exhumed as part of the federal
investigation. One sentence noted that Jagodowski "suffered from
coronary artery disease and other vascular problems for several
years."
The two references in the Boston Globe in April 1998 and
July 1998 do not provide a sufficient basis to charge Nancy Cascone
with the knowledge, either directly or through her family members,
that the deaths of other Leeds VAMC patients with heart problems
were being investigated or viewed as suspicious. Nancy Cascone
testified in her deposition that she did not see any of the
articles in the record, and the Boston Globe circulates to only
about 5% of households in her county on Sundays and about 2% on
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other days. And none of the other Cascones saw or could be
reasonably expected to see the articles.13
Other than those two articles, none of the stories
described suspicious deaths involving patients with a history of
heart trouble. Indeed, to the extent that the stories included
profiles of individual deaths, they identified those deaths as
suspicious because those patients had no known preexisting heart
ailments. The Greenfield Recorder, the Athol Daily News, and
Channel 5 News ran stories on Henry Hudon, a 35-year-old
schizophrenic veteran with no history of heart problems, and the
Boston Herald's story on the death of Kenneth Cutting, a 40-year-
13
Hypothetically, Nancy could have learned about the
information from Janice (Cascone's daughter), who "often" bought
the Sunday edition and "sometimes" bought the daily edition, from
William (Cascone's son), who about once a month read old copies of
the Boston Globe that he found on a trash can in the prison where
he was incarcerated, or from Joseph (Cascone's brother), who lived
in Essex County, where the Sunday circulation of the Boston
Globe was 33% and the daily circulation was 19%. She might also
have heard something from Romilda (Cascone's sister), who lived in
Essex County when the July 25, 1998 article (but not the Sunday
magazine article) came out and said she "occasion[ally]" read the
Boston Globe. But Nancy did not.
That Nancy heard nothing from the other Cascones was not
objectively unreasonable. Janice, Romilda, and William all
testified in their depositions that they did not recall reading any
news stories about the investigation until after 1998. Joseph
passed away in December 2002 at the age of 94 and thus was never
deposed. There is no evidence, though, that Joseph read the Boston
Globe regularly or that he was sufficiently in touch with his
sister-in-law, Nancy, to be expected to convey what he had read to
her. It would not be unreasonable for Janice, Romilda, William,
and Joseph to have missed reading the Boston Globe on April 19,
1998 and July 25, 1998. None of the four appears to have had a
regular subscription, and Romilda was not even in town when the
first article was published.
-26-
old veteran, quoted his father as saying that Cutting "was dying of
multiple sclerosis, but he didn't have a bad heart that we knew
of." One of those stories -- an Associated Press story that ran in
both the Greenfield Recorder and the Athol Daily News on October 5,
1996 -- suggested that the suspicious deaths included only those in
good health or with no history of heart disease: "Some [patients]
died suddenly at the end of years of good health. Others had
endured senility, alcoholism, Parkinson's disease or multiple
sclerosis, but it was their hearts that failed. One schizophrenic
veteran died at age 35 for no apparent reason at all."
A second factor influences the outcome of the case:
others, with better sources of information than the Cascones had,
drew no connection between Gilbert and the death of Michele
Cascone, despite intense interest in Gilbert's misdeeds. Despite
the government's investigation and its promise to talk to the
families of suspected victims, no one from the government ever
contacted the Cascones. Furthermore, the government did not seek
to exhume Cascone. The VA Inspector General's Office, the U.S.
Attorney's Office, and the state police, all of which were working
on the government investigation, surely spoke with doctors at the
Leeds VAMC about which deaths were suspicious and worth
investigating. Apparently, Cascone's death was not on that list
until very late.14 When Gilbert was indicted, Cascone was not named
14
The April 24, 2000 hearing revealed that the government
had secret information, under seal, suggesting that Gilbert might
-27-
as a victim. A reasonable plaintiff in Nancy Cascone's position,
having access to much less information, should not be held to a
higher standard. See McIntyre, 2004 U.S. App. LEXIS 9077, at *55;
Attallah v. United States, 955 F.2d 776, 780 (1st Cir. 1992) ("The
police did not have sufficient information to bring charges against
the [government officials involved] until 1987. We believe
[plaintiffs] could not have been more efficient.").
Furthermore, other private individuals who had a strong
interest in investigating the full extent of Gilbert's wrongdoing
and had spent years digging up information on the topic were also
not led to investigate Cascone's death. Cascone's death
certificate was a matter of public record on file with the city
clerk's office in Northampton and stated that he had died at the
Leeds VAMC of, inter alia, "chronic atrial fibrillation" on January
28, 1996. According to the Daily Hampshire Gazette, there were
only fourteen heart attack deaths at the Leeds VAMC between January
1995 and February 1996. Yet, no one from the media called the
Cascones to inquire about Cascone's death, even though both
television and press reporters had covered the story extensively
and interviewed a number of other victims' families (at least seven
families were contacted in connection with the Boston Globe Sunday
Magazine article alone). A number of deaths were profiled in media
have killed Cascone. But the record does not explain whether the
government discovered this information because it had been provoked
to investigate Cascone's death and, even if it had, whether it had
been provoked to do so before November 10, 1998.
-28-
reports, but Cascone's was never one of them, until April 2000.
Similarly, no one from the families of the other eight victims who
brought FTCA suits contacted the Cascones to gather information
about his death.
The facts in Skwira were fundamentally different. In
Skwira, this court affirmed the dismissal of an FTCA claim by the
family of a patient who had died at the Leeds VAMC on the ground
that the administrative claim was not timely filed. 344 F.3d at
80-82. There, the court relied primarily on facts revealed to the
family by government investigators. Id. at 80. Nothing indicated
that Skwira had a history of heart troubles, and government
investigators had not only been provoked to inquire further into
the cause of death long before the cut-off date for accrual, but
had also expressly shared the reasons for their suspicions with the
patient's family, asked for permission to exhume the body, and told
the family when the analysis revealed that the death certificate
misstated the cause of death. Id. at 68. Moreover, in Skwira,
the plaintiffs had actual knowledge of relevant press and media
reports; the case did not involve charging them with constructive
knowledge. Id. at 81. Indeed, Skwira's daughter testified that
when she read the press reports about the Leeds VAMC investigation,
"it was like a light bulb went off because I knew that was exactly
what had happened to my father." Id.
-29-
Skwira primarily involved a different question than that
in this case: whether plaintiffs, fully cognizant of facts giving
rise to suspicions about the death and the cause of injury, could
wait for the government to finish its investigation before filing
an administrative claim. Id. at 85 (Boudin, C.J., concurring).
That is not the situation here.
III.
Nancy Cascone did not have a reasonable basis to suspect
before November 10, 1998 that Michele Cascone died of anything
other than a heart attack caused by his preexisting heart ailments.
Accordingly, we reverse the dismissal of the plaintiff's claim
against the United States and remand the case for further
proceedings consistent with this opinion.
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