FEDERAL TORT CLAIMS ACT-STATUTE OF LIMITATIONS-TOLLING-DISCOVERY RULE

Shefcyk v. Temple Univ. Hosp., Inc., 2023 U.S. Dist. LEXIS 34653 (E.D. Pa. March 2, 2023) (Goldberg, J.) Plaintiff Kimberly Shefcyk alleges that Defendant Dr. Henry Su and other employees of Defendant Temple University Hospital (“Temple”) acted negligently during the February 18, 2018 birth of Plaintiff’s child, resulting in the baby’s severe, permanent brain defects. Plaintiff sued Dr. Su and Temple in state court, setting forth claims of negligence, negligence through vicarious liability, and corporate negligence. The parties stipulated that Dr. Su was an employee of the U.S. Public Health Service acting within the scope of his employment at the time of the relevant events. The parties also agreed that the United States should be substituted as the sole federal defendant in place of Dr. Su. The United States now contends that Plaintiff’s direct claim against the United States should be dismissed as time barred pursuant to the Federal Tort Claims Act (“FTCA”). Plaintiff responds that the statute of limitations should be equitably tolled due to her inability to discover Dr. Su’s federal employee status. For the following reasons, I will grant the Motion and dismiss Plaintiff’s claims against the United States of America. Unlike other cases, in particular, Santos v. United States, 559 F.3d 189 (3d Cir. 2009) and Young v. Temple, 2019 U.S. Dist. LEXIS 186711 (E.D. Pa. October 28, 2019), there is no indication that plaintiff acted with the diligence required to invoke equitable tolling. Assuming that Plaintiff justifiably believed that Dr. Su was a Temple employee, Plaintiff would have had two years, under Pennsylvania law, to commence a malpractice action. 42 Pa. Cons. Stat. § 5524(7). Yet, Plaintiff did not bring any action against any of the Defendants until more than three years after the alleged malpractice occurred, making it untimely at the outset. Following removal to federal court, the parties stipulated to a stay of the case while Plaintiff attempted to exhaust administrative remedies. During the pendency of that more than six-month stay—during which Plaintiff was aware of the United States’ argument that any action against it would be time barred—Plaintiff failed to gather any evidence or prepare any sworn document regarding the purportedly “diligent investigation” taken prior to filing suit. “[A] statute of limitations should be tolled only in the rare situation where equitable tolling is demanded by sound legal principles as well as the interests of justice.” United States v. Midgley, 142 F.3d 174, 179 (3d Cir. 1998). “The law is clear that courts must be sparing in their use of equitable tolling.” Seitzinger v. Reading Hosp. & Med. Ctr., 165 F.3d 236, 239 (3d Cir. 1998). Absent a showing that Plaintiff exercised due diligence in pursuing and preserving her claim and that she was prevented in some extraordinary way has been prevented from asserting her rights, I do not find that equitable tolling is warranted here.