Grant v. United States of America

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
MICHELE GRANT and DANIEL
PATRICK GRANT, Individually and as
Next Friends of D.G., a Minor Child,
Plaintiffs,
v.
UNITED STATES OF AMERICA,
Defendant.
CIV. NO. 25-00259 JMS-KJM
ORDER DENYING DEFENDANT’S
MOTION TO DISMISS, ECF NO. 21
ORDER DENYING DEFENDANT’S MOTION TO DISMISS, ECF NO. 21
I. INTRODUCTION
Defendant United States of America (hereinafter “Defendant” or “the
government”) seeks to dismiss this medical malpractice suit brought against it
under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq. (“FTCA”).
The Motion to Dismiss, ECF No. 21, argues that the suit is barred by the two-year
limitations period in 28 U.S.C. § 2401(b). As explained to follow—accepting its
well-pleaded factual allegations as true—the Complaint adequately alleges facts
that could establish that the claim did not “accrue” outside the limitations period
(i.e., Plaintiffs did not know the cause of the injury). And even if the claim accrued
no later than September of 2018 (as the government argues), when D.G. was
diagnosed with cerebral palsy, the Complaint’s allegations—again, taken as true—
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establish tolling under the doctrine of fraudulent concealment (equitable estoppel).
In short, the statute of limitations issues cannot be decided definitively at this
motion-to-dismiss stage. Accordingly, the Motion to Dismiss is DENIED.
II. BACKGROUND
Plaintiffs Michele and Daniel Grant (“the Grants”) brought this FTCA
suit on June 24, 2025, individually and as parents on behalf of their minor child,
D.G., who was born in 2017 at the Tripler Army Medical Center (“Tripler”) in
Honolulu, Hawaii. See ECF No. 1 at PageID.2.1 Because the Motion to Dismiss
concerns only the statute of limitations, this background section focuses on the
Complaint’s facts relevant to accrual and tolling. The 55-page Complaint alleges
the medical malpractice in detail, but the court here sets forth only enough
allegations to provide context for the statute of limitations issues.2
A. 	Broad Overview
The court starts with a basic and broad overview of the case. Michele
gave birth to D.G. at Tripler on January 6, 2017, having been admitted on January
1 The court where appropriate refers to the Grants and D.G. collectively as “Plaintiffs.”
As does the Complaint, the court refers at times to Michele Grant as “Michele” and Daniel Grant
as “Dan.”
2 The court assumes the well-pleaded allegations of the Complaint are true for purposes
of this Motion to Dismiss. See, e.g., Steinle v. City & County of San Francisco, 919 F.3d 1154,
1158 n.1 (9th Cir. 2019); see also Huynh v. Chase Manhattan Bank, 465 F.3d 992, 997 (9th Cir.
2006) (applying same principle in analyzing statute of limitations issues).
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5, 2017, after developing painful contractions. D.G. was Michele and Dan’s
second child. Their first child was born by Cesarean section (“C-section”).
Michele was intending to give birth to D.G. vaginally, via a “Trial of Labor After
Cesarean Section (TOLAC) followed by a Vaginal Birth After Cesarean Section
(VBAC)” (“TOLAC/VBAC”). ECF No. 1 at PageID.5 ¶ 22. At some point during
D.G.’s birth process early in the morning on January 6, 2017, Michele’s uterus
ruptured (although it is unclear when Tripler personnel knew or should have
known of the rupture). Initially, Tripler personnel called for an “emergency” C-
section, which would have meant an immediate delivery. But Tripler health care
providers then downgraded the C-section from “emergent” to “urgent,” resulting in
delay. Id. at PageID.16 ¶ 100.
During the C-section, “[u]pon entering the abdomen, D.G. was found
to be outside the uterus, free floating and deprived of oxygen.” Id. at PageID.17
¶ 105. At 6:10 a.m., “D.G. was born grey and lifeless with a heartbeat of 10 bpm.”
Id. ¶ 107. D.G. was born with brain damage; Dr. Laura Keller (presumably a
pediatrician or pediatric neonatologist) documented “severely depressed infant
with abnormal neurological exam consistent with Sarnat Stage III,” id. ¶ 112,
which is “the most severe category of encephalopathy.” Id. at PageID.18 ¶ 113.
D.G. was admitted to the Neonatal Intensive Care Unit (“NICU”) for “severe
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Hypoxic Ischemic Encephalopathy (HIE) or brain damage due to oxygen
deprivation.” Id. ¶ 116. On January 6, 2017, Dr. Keller documented:
High risk of poor neurodevelopmental outcome given
profoundly abnormal APGARS/cord gases/seizures
starting at less than 1 HOL. Discussed with father of
infant that initial injury has already taken place and
cannot be reversed, however, goal of therapeutic
hypothermia is to limit a secondary reperfusion injury.
Will need close follow up with pediatrics/early
interventions as outpatient.
Id. ¶ 118. And “[a]t 20 months of age [in approximately September of 2018], D.G.
was diagnosed with cerebral palsy, caused by HIE during labor and delivery.” Id.
at PageID.19 ¶ 123.
The Motion centers on when the cause of action accrued—
specifically, whether Plaintiffs knew or should have known the “cause” of the
injury alleged in the Complaint outside the limitations period. The Complaint
plainly alleges that Michele and Dan knew on January 6, 2017, (1) that Michele’s
uterus had ruptured during labor and (2) that “D.G.’s brain had been injured
because D.G. had been deprived of oxygen due to uterine rupture.” Id. ¶ 125. But
it also alleges that they did not know the time of the rupture, nor whether D.G.’s
severe brain injury could have been avoided by an earlier C-section, nor whether
the resultant delay was the legal cause of D.G.’s brain injury. Id. at PageID.20
¶¶ 126–128. To provide the context for the accrual and causation questions, the
court also explains the alleged malpractice. And although the Complaint details
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several specific instances of malpractice, the primary alleged malpractice centers
on two broad areas described next: (1) Pitocin and (2) heart monitoring.
B. 	Pitocin
When Michele was admitted to Tripler, she was told that she would be
receiving Pitocin to augment labor. Id. at PageID.4 ¶ 21. “Pitocin, a.k.a oxytocin,
is a synthetically prepared hormone that stimulates contractions of uterine smooth
muscle.” Id. at PageID.6 ¶ 28. Michele told Dr. Collin A. Sitler, D.O., that she did
not want Pitocin because she read that it increases the risk of uterine rupture with a
vaginal delivery with a prior C-section, i.e., a TOLAC/VBAC. Id. at PageID.5–6
¶¶ 24–25. “Dr. Sitler told Michele that Pitocin does not increase the risk of uterine
rupture in the context of a TOLAC/VBAC.” Id. at PageID.6 ¶ 26. This was
allegedly contrary to a standard warning that accompanies oxytocin. Id. ¶ 29. The
Complaint alleges that “Dr. Sitler’s statement, that Pitocin does not increase the
risk of uterine rupture in the context of a TOLAC/VBAC, was an affirmative
misstatement to Michele and a fraudulent concealment of the risks posed by
Pitocin in the context of a TOLAC/VBAC.” Id. ¶ 27. “Due to Dr. Sitler’s
affirmative misstatement and fraudulent concealment, Michele agreed to Pitocin.”
Id. ¶ 30.
Pitocin was administered to Michele overnight beginning at 4:00 p.m.
on January 5, 2017. Id. at PageID.8 ¶ 39. At approximately 4:49 a.m. on January
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6th, Michele felt a very painful burning sensation across her lower abdomen,
despite an epidural.3 Id. at PageID.9 ¶¶ 45–46. “The ability of Michele to feel a
very painful burning sensation across her lower abdomen, below her belly button,
despite an epidural, indicated that at approximately 4:49 am, Michele’s uterus was
beginning to tear.” Id. ¶ 47 (emphasis omitted). “Despite the warning signs of
pain overriding an epidural and a burning sensation along the lower abdomen,
[second year resident] Dr. [Caitlin] Grandillos did not discontinue Pitocin, did not
order a decrease [of] the dosage of Pitocin, nor move Michele to the [operating
room].” Id. at PageID.10 ¶ 48.
C. 	Heart Monitoring
At about 5:21 a.m. on January 6th, signs arose indicating fetal
intolerance of labor. Id. ¶ 57. D.G.’s fetal heart strip (“FHS”), measured from an
external monitor placed on Michele, documented a fetal heart rate of over 160
beats per minute (“bpm”) or fetal tachycardia (irregular heart rate). Id. at
PageID.11 ¶ 58. Tripler personnel then improperly “instructed Michele to perform
a ‘test push,’” which—with a TOLAC/VBAC and her symptoms—increased the
risk that Michele’s uterus would rupture. Id. ¶¶ 63–64. At 5:39 a.m., Michele
3 Colloquially, an “[e]pidural anesthesia is an injection of anesthetic medication into
[the] epidural [spinal] space” that “blocks feeling and pain.” https://my.clevelandclinic.org/
health/treatments/21896-epidural (viewed February 12, 2026).
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performed the push, causing D.G.’s heart rate to crash from 160 bpm down to 60
bpm, indicating that Michele’s uterus had ruptured. Id. at PageID.12 ¶¶ 68, 72.
Michele was brought to an operating room for an emergency C-section, where
D.G.’s heart rate continued to be measured as a dangerously low 60 bpm by an
internal fetal scalp electrode (“FSE”) placed on D.G. Id. at PageID.14 ¶ 87.
Meanwhile, a different external heart rate monitor placed on Michele recorded
Michele’s heart rate at 100 to 110 bpm. Id. ¶ 89.
Tripler personnel mistakenly identified Michele’s heart rate of 100 to
110 bpm as D.G.’s heart rate (although D.G.’s FSE had been recording D.G.’s rate
at 60 bpm). Believing that D.G.’s heart rate had “recovered” to 100 to 110 bpm,
Tripler personnel detached D.G.’s internal FSE and downgraded the C-section
from “emergency” to “urgent.” Id. at PageID.14–15 ¶¶ 90–96, 99. Given the
downgrade, the C-section was delayed and did not begin until 6:03 a.m., id. at
PageID.16 ¶ 102, where D.G. was found outside the uterus as described earlier. On
January 6, 2017, Dr. Keller (the pediatrician/neonatologist) made a newborn
assessment notation stating:
decision made by OB team that FSE was not picking up
appropriately and to use ultrasound [heart rate] instead.
As [heart rate] noted in low 100s, decision was made to
convert from stat [C-section] to urgent [C-section]. At
the time of [C-section] noted uterine rupture.
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Id. at PageID.18 ¶ 114.4
D. 	Alleged Instances of Affirmative Misrepresentation or Fraudulent
Concealment, and Inquiry from the Grants
The Complaint alleges several instances of Tripler personnel
affirmatively misrepresenting facts to avoid liability or otherwise prevent Plaintiffs
from discovering negligence. Plaintiffs allege that on January 6, 2017, Dr. Sarah
Rabie (an attending physician who had come to the operating room to assist with
delivery) placed a note in Michele’s medical record stating “[in] [operating room],
[fetal heart rate] recovered to the 90-100s maternal heart rate verified to be
different on pulse ox.” ECF No. 1 at PageID.21 ¶ 138 (emphasis omitted). The
Complaint alleges that this statement was false for several reasons, id. at
PageID.21–22 ¶¶ 139–144, and that “the intent of Dr. Rabie’s [January] 6, 2017
affirmative misstatement and fraudulent concealment of facts demonstrating that
the fetal heart rate never recovered to the ‘90-100s’ was to induce reliance by
Michele and Dan, and to avoid liability by the USA.” Id. at PageID.22 ¶ 145
(emphasis omitted).
At an April 6, 2017 visit, Michele asked D.G.’s pediatrician if she
knew what happened during D.G.’s labor and delivery. The pediatrician told
4 The Complaint describes the circumstances regarding the alleged mix-up between
Michele’s and D.G.’s heart rates in much greater detail.
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Michele “some neonatologists felt that something might have gone wrong in
D.G.’s labor and delivery,” that “an internal investigation was happening,” and “it
may be possible that they were tracking your heart rate, and not the baby’s.” Id. at
PageID.21 ¶¶ 133–135. She also told Michele that the C-section “could have been
performed much faster, saying it’s possible to ‘slap some betadine on there and get
the baby out in a minute.’” Id. ¶ 137.
After that conversation with the pediatrician, Michele met with Dr.
Rabie on June 20, 2017. Michele asked Dr. Rabie whether Tripler had been
tracking Michele’s heart rate and not D.G.’s in the operating room when Tripler
decided to “slow things down.” Id. at PageID.23 ¶ 151. “On June 20, 2017, Dr.
Rabie emphatically denied tracking Michele’s heart rate instead of D.G.’s,” id.
¶ 152, and “insisted that . . . D.G.’s heart rate had ‘recovered’ at the time that the
OR team had decided to ‘slow things down,’ stating, ‘I’ve looked at the fetal heart
strips multiple times.’” Id. at PageID.24 ¶ 153. The Complaint alleges:
Dr. Rabie’s assertion that the OR team had been tracking
D.G.’s heart rate in the OR at the time that they decided
to “slow things down” constituted an affirmative
misstatement and fraudulent concealment of facts in that
it deprived the Plaintiffs of a full understanding of the
true facts.
Id. at PageID.25 ¶ 156. It further alleges:
Upon information and belief, the intent of Dr. Rabie’s
June 20, 2017 affirmative misstatement and fraudulent
concealment of facts disproving her assertion that the OR
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team had been tracking D.G.’s heart rate in the OR at
[sic] time that they decided to “slow things down” . . .
was to induce reliance by Michele and Daniel and to
avoid liability by the USA.
Id. ¶ 157.
Michele also asked Dr. Rabie whether the use of Pitocin had increased
the risk of uterine rupture, which Dr. Rabie denied, stating “we do this all the
time.” Id. at PageID.26 ¶¶ 160–161. The Complaint likewise asserts that this
statement was false, and constituted an affirmative misrepresentation that
“deprived the Plaintiffs of a full understanding of the true facts,” id. ¶ 162, and was
made to avoid liability, id. at PageID.27–28 ¶ 170.
Similarly, on October 14, 2017, Michele met with Dr. Alan Gehrich,
the Chief of Obstetrics/Gynecology at Tripler. Dr. Gehrich told Michele that he
could not tell her the results of the internal investigation of her delivery of D.G. Id.
at PageID.28 ¶ 177. Michele then asked Dr. Gehrich what happened during labor
and delivery, and “Dr. Gehrich told Michele that after an acute deceleration to 60
bpm, D.G.’s heart rate had ‘recovered’ and had gone up to 110 bpm.” Id. at
PageID.29 ¶ 179. The Complaint alleges that this statement was false because
“[t]he [United States] had knowledge of the true facts indicating that D.G.’s heart
rate had not recovered to 110 bpm,” id. at PageID.30 ¶ 181, for many reasons
detailed in the Complaint, id. at PageID.29–30 ¶¶ 180 (a)–(k). And the Complaint
alleges that “the intent of Dr. Gehrich’s October 14, 2017 affirmative misstatement
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and fraudulent concealment of facts disproving his claim that D.G.’s heart rate
‘recovered’ to 110 bpm in the OR, was to induce reliance by Michele and Dan and
to avoid liability.” Id. ¶ 183.
Likewise, on October 14, 2017, Dr. Gehrich: (1) denied to Michele
that the Tripler team had been tracking Michele’s heart rate instead of D.G.’s, id. at
PageID.31 ¶ 186; (2) told Michele that the internal FSE on D.G. had been removed
“to prep for surgery,” and that “D.G.’s heart rate ‘must have’ crashed only after
[Tripler] had removed the FSE,” id. at PageID.35 ¶ 206 (emphasis omitted); and
(3) told Michele “it took ‘26 minutes’ from D.G.’s acute deceleration to 60 bpm to
time of delivery,” id. at PageID.32 ¶ 192, and that “30 minutes is the ‘standard’ to
‘get the baby out,’” id. ¶ 195. These affirmative misstatements “deprived Plaintiffs
of a full understanding of the true facts,” and were made “to induce reliance by
Michele and Daniel and to evade liability.” Id. at PageID.35 ¶¶ 207–210.
E. 	Consultation with an Attorney in August 2018, and Subsequent
Discovery
In August of 2018, Michele contacted an attorney (not present
counsel) and sent the attorney her and D.G.’s medical records. Id. at PageID.36
¶ 214. The attorney told Michele that the attorney “could not see a case for
negligence being made against the USA,” id. at PageID.37 ¶ 215, because
Dr. Rabie had documented on January 6, 2017 “[in] [operating room], [fetal heart
rate] recovered to the 90-100s maternal heart rate verified to be different on pulse
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ox,” id. (quoting ECF No. 1 at PageID.21 ¶ 138). This is one of the statements that
the Complaint alleges was an affirmative misrepresentation made for the purposes
of avoiding liability.
The Complaint alleges that Plaintiffs, like the attorney, relied on the
affirmative statements and representations of Tripler doctors regarding the facts
and did not pursue the matter further until May of 2024. On May 2, 2024, Michele
sought disability benefits from the Veterans Administration, and, needing to
explain her condition to a disability board, she began to review her and D.G.’s
medical records. Id. at PageID.38 ¶ 220. In September of 2024, she saw
Dr. Keller’s notation:
. . . decision made by OB team that FSE was not picking
up appropriately and to use ultrasound HR instead. As
HR noted in low 100s, decision was made to convert
from stat C/S to urgent C/S. At the time of C/S noted
uterine rupture.
Id. ¶ 221 (quoting PageID.18 ¶ 114). She then suspected that Tripler doctors had
lied to her because they had told her facts different than that “the FSE had not been
‘picking up appropriately.’” Id. ¶ 222.
After contacting current counsel, and a subsequent investigation,
Plaintiffs filed an FTCA administrative claim on December 18, 2024. Id. at
PageID.3 ¶ 8. They filed this action on June 24, 2025, alleging counts for medical
negligence, negligent infliction of emotional distress, loss of consortium, and lack
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of informed consent. See generally ECF No. 1. The government now moves to
dismiss on statute of limitations grounds.
III. STANDARD OF REVIEW
If apparent from the face of the complaint, a statute of limitations
defense may properly be raised in a motion to dismiss. See, e.g., Seven Arts
Filmed Ent. Ltd. v. Content Media Corp. PLC, 733 F.3d 1251, 1254 (9th Cir.
2013). Dismissal is proper “only if the assertions of the complaint, read with the
required liberality, would not permit the plaintiff to prove that the statute was
tolled.” Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1045 (9th
Cir. 2011) (citation and quotation marks omitted). “In making this determination,
the court must (1) accept as true all the well-pleaded factual allegations contained
in the complaint, then determine (2) ‘whether the running of the statute is apparent
on the face of the complaint.’” Thunderfoot v. United States, 2023 WL 5413852, at
*9 (D. Haw. Aug. 22, 2023) (quoting Huynh v. Chase Manhattan Bank, 465 F.3d
992, 997 (9th Cir. 2006)). More generally, “[t]o survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim
to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “[T]he tenet
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that a court must accept as true all of the allegations contained in a complaint is
inapplicable to legal conclusions.” Id. (citing Twombly, 555 U.S. at 555).5
5 Plaintiffs cite Supermail Cargo, Inc. v. United States, 68 F.3d 1204, 1206 (9th Cir.
1995) for the proposition that a complaint cannot be dismissed on limitations grounds unless “it
appears beyond doubt that the plaintiff can prove no set of facts that would establish the
timeliness of the claim.” ECF No. 31 at PageID.186. See also, e.g., Von Saher v. Norton Simon
Museum of Art at Pasadena, 592 F.3d 954, 969 (9th Cir. 2010) (same) (quoting Supermail). The
“no set of facts” standard, however, was discredited in Twombly/Iqbal, where the Supreme Court
adopted a “plausibility” standard. After Twombly/Iqbal, some courts have applied the
plausibility standard when assessing a complaint’s adequacy in a statute of limitations context.
See, e.g., Myers Indus., Inc. v. Schoeller Arca Sys., Inc., 171 F. Supp. 3d 107, 115 (S.D.N.Y.
2016) (“Rule 12(b)(6)’s plausibility standard applies equally to motions to dismiss based on a
statute of limitations defense”) (citation omitted); Mesones v. Estevez, 2021 WL 3721324, at *4
(11th Cir. Aug. 23, 2021) (unpub.) (reasoning that “[t]he plausibility standard is the proper
standard for evaluating whether Plaintiffs adequately alleged they were entitled to equitable
tolling,” and rejecting the “old, ‘no set of facts’ standard under Conley v. Gibson, 355 U.S. 41
(1957)”) (citation omitted).
Nevertheless, both the Ninth Circuit and numerous district court decisions sometimes
continue simply to cite Supermail Cargo and Von Saher for the “no set of facts” standard in
challenges based on statute of limitations issues. See, e.g., Syed v. M-I, LLC, 853 F.3d 492, 507
(9th Cir. 2017) (citing Supermail); Est. of Wuxi Chenhwat Almatech Co. v. Prestige Autotech
Corp, 2024 WL 4100241, at *1 (9th Cir. Sept. 6, 2024) (mem.) (citing Von Saher and
Supermail); Thunderfoot, 2023 WL 5413852, at *9 (citing Von Saher); Baptiste v. Dep’t of Def.,
2024 WL 6083535, at *5 (D. Haw. June 24, 2024) (citing Von Saher and Supermail).
There may well be a reason why a “no set of facts” standard survives when analyzing
statute of limitations issues. The Seventh Circuit appears to reject a plausibility standard when
analyzing a complaint’s sufficiency on a timeliness challenge because “[p]laintiffs are not
required to anticipate or refute potential affirmative defenses in the complaint.” Reilly v. Will
Cnty. Sheriff’s Office, 142 F.4th. 924, 930 (7th Cir. 2025) (applying a rule that “a claim will
survive dismissal ‘as long as there is a conceivable set of facts, consistent with the complaint,
that would defeat a statute-of-limitations defense . . .’”) (quoting Sidney Hillman Health Ctr. of
Rochester v. Abbott Labs., Inc., 782 F.3d 922, 928 (7th Cir. 2015)). The Ninth Circuit, however,
does not appear to have likewise specifically grappled with whether a “no set of facts” standard
survives Twombly/Iqbal when a complaint is challenged on timeliness grounds.
The court, however, need not address whether to apply a “no set of facts” standard here.
As explained to follow, Plaintiffs Complaint easily satisfies the more general Twombly/Iqbal
standard as plausibly alleging that their claims did not accrue outside the limitations period, and
that fraudulent concealment would otherwise apply.
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“A defendant raising the statute of limitations as an affirmative
defense has the burden of proving the action is time-barred. . . . Thus, the
defendant has the burden of demonstrating the complained of wrongdoing and
harm occurred outside the limitations period.” Kahler v. United States, 2025 WL
2418451, at *5 (D. Haw. Aug. 20, 2025) (quoting Cal. Sansome Co. v. U.S.
Gypsum, 55 F.3d 1402, 1406 (9th Cir. 1995)). See also, e.g., Saofaigaalii v. United
States, 2016 WL 3527095, at *6 (D. Haw. June 23, 2016) (“Because the FTCA’s
statute of limitations is not jurisdictional, failure to comply with it is merely an
affirmative defense which the defendant has the burden of establishing.”) (internal
quotation marks and citations omitted).6
IV. DISCUSSION
A. 	Accrual—Discovery of “The Injury and Its Cause”
1. 	Accrual Standards Under the FTCA
A plaintiff making a claim under the FTCA against the United States
must present an administrative claim to the appropriate federal agency within two
6 United States v. Kwai Fun Wong, 575 U.S. 402 (2015), held that 28 U.S.C. § 2401(b) is
not jurisdictional and thus its time limits can be tolled on equitable grounds. See id. at 412. But
“[t]he party seeking the benefit of the avoidance of the statute of limitations carries the burden of
proof to establish the elements.” N.L.R.B. v. Don Burgess Const. Corp., 596 F.2d 378, 383 n.2
(9th Cir. 1979). Thus, if an FTCA defendant establishes that a cause of action accrued outside
the applicable limitations period, a plaintiff then has the burden to establish a basis to toll or
otherwise excuse the late filing.
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years of when the claim accrues, or it is “forever barred.” 28 U.S.C. § 2401(b).7
Under Ninth Circuit law, FTCA claims for medical malpractice accrue “when the
plaintiff discovers, or in the exercise of reasonable diligence should have
discovered, the injury and its cause.” Tunac v. United States, 897 F.3d 1197, 1206
(9th Cir. 2018) (quoting Landreth ex rel. Ore v. United States, 850 F.2d 532, 533
(9th Cir. 1988)); see also Winter v. United States, 244 F.3d 1088, 1090 (9th Cir.
2001) (“It is well settled that the limitations period begins to run when the plaintiff
has knowledge of injury and its cause, and not when the plaintiff has knowledge of
legal fault.”) (quoting Rosales v. United States, 824 F.2d 799, 805 (9th Cir. 1987)
(internal quotation marks omitted)). “Accrual of a claim does not ‘await awareness
7 Section 2401(b) provides in full:
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.
Under this section, and under 28 U.S.C. § 2675(a), a court action is due within six months of
notice of the final denial of the administrative claim (or six months after no action on a claim).
See Redlin v. United States, 921 F.3d 1133, 1136 (9th Cir. 2019) (explaining that an FTCA
“claim is timely only if it has been: (1) submitted to the appropriate federal agency within two
years of accrual and (2) filed in federal court within six months of the agency’s final denial”).
“The failure of an agency to make final disposition of a claim within six months after it is filed
shall . . . be deemed a final denial of the claim . . . .” 28 U.S.C. § 2675(a); see, e.g., DaVinci
Aircraft, Inc. v. United States, 926 F.3d 1117, 1121 n.1 (9th Cir. 2019) (applying § 2675(a)).
Here, it is undisputed that this action, filed on June 24, 2025, was brought within six
months of “final denial of the claim” (i.e., from no final disposition of Plaintiffs’ administrative
claim, which was filed on December 18, 2024). See ECF No. 1 at PageID.3–4. Rather, the
Motion to Dismiss concerns the first limitations period in § 2401(b), and whether the December
18, 2024 administrative claim was presented within two years after accrual.
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by a plaintiff that his injury has been negligently inflicted.’” Winter, 244 F.3d at
1090 (quoting United States v. Kubrick, 444 U.S. 111, 123 (1979)).
“The ‘cause’ [of an injury] is known when the immediate physical
cause of the injury is discovered.” Dyniewicz v. United States, 742 F.2d 484, 486
(9th Cir. 1984); see also Kahler, 2025 WL 2418451, at *6 (“[T]he Ninth Circuit
has directed courts to look at the immediate physical or medical cause of an injury
as the relevant cause when assessing timeliness.”) (some emphasis added) (citing
Dyniewicz, 742 F.2d at 486, and Gibson v. United States, 781 F.2d 1334, 1344 (9th
Cir. 1986)); Winter, 244 F.3d at 1092 (finding no accrual in part because plaintiff
was “never told the medical cause of his injury”).
But the Ninth Circuit has also “consistently held that a cause of action
does not accrue under the FTCA when a plaintiff has relied on statements of
medical professionals with respect to his or her injuries and their probable causes.”
Winter, 244 F.3d at 1090; see also Tunac, 897 F.3d at 1207 (distinguishing Winter).
In upholding a district court’s finding that a malpractice claim had not accrued,
Winter examined several prior Ninth Circuit cases applying that principle. See,
e.g., Raddatz v. United States, 750 F.2d 791, 796 (9th Cir. 1984) (holding that
medical malpractice claim for negligent failure to diagnose and warn did not
accrue until plaintiff was aware of injury and its cause in part because “the Navy
doctor repeatedly assured [plaintiff] that her condition was a normal
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consequence . . . . [and] [s]uch assurances may be reasonably relied on by a
patient”); Rosales, 824 F.2d at 804 (holding that malpractice claim did not accrue
in part because plaintiffs “relied on the assurances of the doctors that no harm had
in fact occurred”). Winter reasoned in part that the plaintiff—a paraplegic who had
previously been implanted with electrodes to attempt to restore his ability to
walk—with a severe infection did not know the cause of that injury for accrual
purposes when “he was clearly told [by his doctors] that the electrodes were not
the cause of his infection,” 244 F.3d at 1091, and that the plaintiff “was not told
one word about the medical cause of his injuries, other than that it was highly
unlikely to be the cause that he now alleges,” id. at 1092.
2. 	Application of Accrual Standards
Here, it is undisputed that Plaintiffs knew of the injury or injuries
outside the two-year limitations period. Plaintiffs knew Michele’s uterus ruptured
on January 6, 2017, and knew by January 7, 2017, that D.G. suffered brain
damage. ECF No. 1 at PageID.19 ¶¶ 123, 124. If the injury is considered more
specifically to be D.G’s cerebral palsy, they knew it was diagnosed in September
2018. Id. at PageID.19 ¶ 123. And so, the analysis here focuses on the second
prong (causation). The question is whether—assuming the Complaint’s factual
allegations are true—Plaintiffs knew or should have known the “immediate
physical or medical cause,” Kahler, 2025 WL 2418451, at *6 (emphasis omitted),
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of the injury or injuries more than two years before Plaintiffs made administrative
claims on December 18, 2024.
The answer is no. It is not clear, based on the Complaint’s allegations,
that Plaintiffs knew such “cause” outside the period. “Accept[ing] as true all well-
pleaded allegations of material fact,” Seven Arts, 733 F.3d at 1254, it is not clear
from the face of the Complaint that the claims accrued beyond the two-year period.
The precise analysis depends on whether the “injury” is considered to be solely
D.G.’s brain damage, or whether it also includes Michele’s ruptured uterus. But
either way—when considering factors discussed in Winter—the court cannot
conclude at this stage that Plaintiffs’ FTCA claim accrued outside the limitations
period.
It is much too simple to conclude (as the government asserts) that just
because Plaintiffs knew on January 7, 2017, that D.G.’s condition resulted from
being born outside a ruptured uterus, Plaintiffs therefore knew the “cause” of
D.G.’s injury at that time. Allegedly, they did not know the facts about how or
why Michele’s uterus tore, nor did they know the facts as to why her C-section was
downgraded from “emergency” to “urgent.” Those facts, according to the
Complaint’s allegations, included (1) administration of Pitocin, (2) being told to do
a “test push” after obvious signs of uterus rupture and fetal distress, (3) removing
the fetal scalp electrode (“FSE”) from D.G., and (4) misidentification of Michele’s
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heartrate as D.G.’s heartrate. This means they did not know the cause of the
rupture, and similarly they did not know the cause of the brain damage (e.g.,
removal of the FSE, misidentifying D.G.’s heart rate). And they did not know
those facts because they relied on “statements of medical professionals with
respect to [plaintiff’s] injuries and their probable causes.” Winter, 244 F.3d at
1090.
The government argues that discovery of those facts cannot lead to
accrual because they constitute the alleged negligence itself. See, e.g., id.
(“Accrual of a claim does not ‘await awareness by a plaintiff that his injury has
been negligently inflicted.’”) (quoting Kubrick, 444 U.S. at 123). Even if,
however, some of those facts also could constitute negligence, Plaintiffs are not
basing accrual on a theory that they only recently discovered that Tripler personnel
were negligent. Rather, their theory is that they did not know—and reasonably
could not have known, given statements of Tripler doctors—such facts (whether
they constituted negligence or not) and therefore they did not know the cause of
the injury. And this is so whether the question is viewed as the cause of the
ruptured uterus, or the cause of the brain damage to D.G.
This situation is different from Tunac—relied upon by the
government—which found accrual because the plaintiff “knew, or reasonably
should have known, that the cause of the injury was the failure of the Hayden VA
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Medical Center to provide adequate medical treatment.” 897 F.3d at 1206. Tunac
distinguished Winter and similar cases—i.e., as to the principle that accrual does
not occur “when a plaintiff has relied on statements of medical professionals with
respect to his or her injuries and their probable causes”—because, in Tunac, the
plaintiff “knew or should have known that the VA’s failure to provide timely
treatment caused [plaintiff’s husband’s] death [and] [t]here is no evidence that
[plaintiff] relied on inaccurate statements by a medical professional regarding the
cause of her husband’s death.” Id. at 1207. Not so here. Rather, unlike Tunac,
Plaintiffs here allege that they did not know the relevant facts regarding causation,
and they allege—many times—that they relied on inaccurate statements from
Tripler doctors regarding the causes of the injury or injuries.8
8 This case is similar to Kahler v. United States, an FTCA suit alleging malpractice at
Tripler during the birth of “KK.” See 2023 WL 8850272 (D. Haw. Dec. 23, 2023). Kahler
denied a motion seeking dismissal on limitations grounds, asserting that KK’s injury (stroke and
brain damage) resulted from KK’s “large birth size,” which was known at birth. Id. at *3. The
complaint, however, alleged that the cause was “compression of [baby’s] carotid artery,” not
KK’s large birth size. Id. The court also rejected an argument that Plaintiffs were not diligent in
discovering the cause, where the complaint
allege[d] that Plaintiffs were not told that medical providers should
have determined KK’s size before labor, that a caesarian delivery
should have been performed, that medical providers used
“excessive force” during the delivery, that the use of such force
caused the compression of KK’s carotid artery and injury to her
brachial plexus, and that the compressed carotid artery was the
“likely cause” of KK’s stroke and brain damage.
Id. at *3.
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The government argues that Plaintiffs knew enough by August 2018
to suspect negligence because they consulted a lawyer for advice. See ECF No. 1
at PageID.36 ¶ 214. It also points to the following allegations in the Complaint
regarding discovery of the negligence:
Knowing that she would be required to explain [in 2024]
the breadth of her injuries to the Veteran Affairs
Disability Board, Michele began to read her medical
records and D.G.’s medical records.
In September of 2024, for the first time, Michele saw
Dr. Keller’s Newborn Assessment in D.G.’s medical
records:
. . . decision made by OB team that FSE was
not picking up appropriately and to use
ultrasound HR instead. As HR noted in low
100’s, decision was made by OB to convert
from [emergency cesarean section] to urgent
[cesarian section]. At the time of [cesarean
section] noted uterine rupture.
Michele realized that neither Dr. Rabie nor Dr. Gehrich
had ever told her that the FSE had not been “picking up
appropriately.”
ECF No. 1 at PageID.38 ¶¶ 220–222. The government argues that Plaintiffs knew
enough in 2018 to seek counsel and file an administrative claim. And because
Plaintiffs apparently had Dr. Keller’s Newborn Assessment in their records earlier,
it reasons that they should not benefit just because Michele did not read the
assessment until September 2024. The government contends that Plaintiffs were
not diligent and should have discovered the facts regarding causation much earlier.
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But the court must also assume as true the several instances of alleged
misstatements of fact set forth in the Complaint. For example, the court must
assume as true that:
• 	Dr. Rabie (1) falsely documented in Michele’s medical record that
“[i]n OR, [fetal heart rate] recovered to the 90-100s maternal heart
rate verified to be different on pulse ox,” id. at PageID.21 ¶ 138
(emphasis omitted); and (2) made the misstatement “to induce
reliance by [Plaintiffs], and to avoid liability by the USA,” id. at
PageID.22 ¶ 145;
• 	Dr. Rabie, when asked by Michele, “emphatically denied tracking
Michele’s heart rate instead of D.G.’s,” id. at PageID.23 ¶ 152, and
falsely “insisted that . . . D.G.’s heart rate had ‘recovered’ at the time
that the OR team had decided to ‘slow things down,’ stating ‘I’ve
looked at the fetal heart strips multiple times,’” id. at PageID.24
¶ 153. The intentional misstatements “deprived the Plaintiffs of a full
understanding of the true facts,” id. at PageID.25 ¶ 156, and were
intended to “induce reliance by [Plaintiffs] and to avoid liability by
the USA,” id. at ¶ 157;
• 	In several alleged instances, when asked about the cause of D.G.’s
injury, Dr. Gehrich made affirmative misstatements to Plaintiffs
claiming that D.G.’s heart rate “recovered” to 110 bpm, that Tripler
doctors had not been tracking Michele’s heart rate rather than D.G.’s,
that “30 minutes is the ‘standard’ to ‘get the baby out,’” and that
D.G.’s heart rate “must have crashed” after the fetal monitor was
removed. Id. at PageID.28–35. These affirmative misstatements
deprived Plaintiffs of a full understanding of the true facts, and were
done “to induce reliance and evade liability.” Id. at PageID.35 ¶ 202.
Assuming those facts as true, it follows that Plaintiffs’ cause of action
did not accrue in 2017 because “a cause of action does not accrue under the FTCA
when a plaintiff has relied on statements of medical professionals with respect to
his or her injuries and their probable causes.” Winter, 244 F.3d at 1090.
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Even if there is some tension here between (1) application of Winter and (2) the
Complaint’s allegations that “[i]n September of 2024, for the first time, Michele
saw Dr. Keller’s Newborn Assessment in D.G.’s records,” ECF No. 1 at PageID.38
¶ 221, the court cannot resolve that tension at this motion-to-dismiss stage. See,
e.g., Seven Arts, 733 F.3d at 1254 (requiring the defense to be apparent from the
face of the complaint”).
B. 	Equitable Tolling and Fraudulent Concealment (Equitable Estoppel)
1. 	Standards Defining Equitable Tolling and Equitable Estoppel
In opposition, Plaintiffs also invoke federal doctrines of equitable
tolling and fraudulent concealment, and argue that—even if their FTCA claim
accrued outside the limitations period in § 2401(b)—the statute was tolled or
Defendants are estopped from asserting the defense.9 See, e.g., Lukovsky v. City &
County of San Francisco, 535 F.3d 1044, 1051 (9th Cir. 2008) (“[T]here are two
doctrines which may apply to extend the limitations period or preclude a defendant
9 Because the FTCA has its own statute of limitations, federal (not state) tolling rules
apply. See, e.g., Booth v. United States, 914 F.3d 1199, 1204 n.4 (9th Cir. 2019) (“State rules on
minority tolling do not apply [in an FTCA case.]”); see also Santos ex rel. Beato v. United
States, 559 F.3d 189, 193 (3d Cir. 2009) (“[S]tate-law tolling statutes do not apply to the FTCA's
limitations period . . . .”); Morales-Melecio v. United States, 890 F.3d 361, 365 n.9 (1st Cir.
2018) (“While a tort claim under the FTCA substantively follows state law liability, its statute of
limitations provisions are governed by federal law, not state law [and] [t]herefore, state law
tolling statutes do not apply to the FTCA statute of limitations.”) (citations omitted).
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from asserting the defense—equitable tolling and equitable estoppel.”). One the
one hand,
“Equitable tolling” focuses on “whether there was
excusable delay by the plaintiff: If a reasonable plaintiff
would not have known of the existence of a possible
claim within the limitations period, then equitable tolling
will serve to extend the statute of limitations for filing
suit until the plaintiff can gather what information he
needs.”
Id. (quoting Johnson v. Henderson, 314 F.3d 409, 414 (9th Cir. 2002)).
“‘Equitable estoppel, on the other hand, focuses primarily on actions taken by the
defendant to prevent a plaintiff from filing suit, sometimes referred to as
‘fraudulent concealment.’” Id. (quoting Johnson, 314 F.3d at 414).
“[L]ong-settled equitable-tolling principles instruct that generally, a
litigant seeking equitable tolling bears the burden of establishing two elements:
(1) that he has been pursuing his rights diligently, and (2) that some extraordinary
circumstances stood in his way.” Kwai Fun Wong v. Beebe, 732 F.3d 1030, 1052
(9th Cir. 2013) (en banc) (citations and internal quotation marks omitted). “As to
the first element, ‘[t]he standard for reasonable diligence does not require an
overzealous or extreme pursuit of any and every avenue of relief. It requires the
effort that a reasonable person might be expected to deliver under his or her
particular circumstances.’” Id. (quoting Doe v. Busby, 661 F.3d 1001, 1015 (9th
Cir. 2011)). 	As to the second element, “a litigant must show that extraordinary
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circumstances were the cause of his untimeliness and . . . made it impossible to file
the document on time.” Id. (quotation marks, brackets, and citation omitted).
“Accordingly, ‘[e]quitable tolling is typically granted when litigants are unable to
file timely documents as a result of external circumstances beyond their direct
control.” Id. (quoting Harris v. Carter, 515 F.3d 1051, 1055 (9th Cir. 2008)) (some
brackets omitted).
Equitable estoppel (fraudulent concealment) operates similarly, but
“tolls” the statute of limitations if a defendant fraudulently conceals “the existence
of the cause of action.” See E.W. French & Sons, Inc. v. Gen. Portland Inc., 885
F.2d 1392, 1399 (9th Cir. 1989) (“Under the equitable doctrine of fraudulent
concealment, the applicable statute of limitations is tolled if the plaintiff proves the
defendant fraudulently concealed the existence of the cause of action so that the
plaintiff, acting as a reasonable person, did not know of its existence.”) (citation
and quotation marks omitted).10
A plaintiff must prove that the defendant “affirmatively misled” the
plaintiff as to the operative facts that gave rise to the claim, and that the plaintiff
10 “[F]raudulent concealment must be affirmatively pled . . . [and] where the basis of
equitable tolling is fraudulent concealment, it must be pled with particularity under Rule 9(b).”
Bolos v. Waldorf=Astoria Mgmt. LLC, 762 F. Supp. 3d 975, 1009 (D. Haw. 2025) (internal
citation omitted); see also Guerrero v. Gates, 442 F.3d 697, 706–707 (9th Cir. 2006) (reiterating
that to establish fraudulent concealment “[t]he plaintiff must demonstrate that he relied on the
defendant’s misconduct in failing to file in a timely manner and must plead with particularity the
facts which give rise to the claim of fraudulent concealment”) (citations and internal quotation
marks omitted).
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had neither actual nor constructive knowledge of these operative facts despite
diligence in trying to uncover them. Thorman v. Am. Seafoods Co., 421 F.3d 1090,
1094 & n.3 (9th Cir. 2005). That is, a plaintiff must establish “affirmative conduct
upon the part of [the defendant] which would, under the circumstances of the case,
lead a reasonable person to believe that [the plaintiff] did not have a claim for
relief.” Id. at 1095 (quoting Rutledge v. Boston Woven Hose & Rubber Co., 576
F.2d 248, 250 (9th Cir. 1978)); see also Cervantes, 656 F.3d at 1046 (reiterating
that fraudulent concealment—i.e., equitable estoppel—“halts the statute of
limitations when there is active conduct by a defendant, above and beyond the
wrongdoing upon which the plaintiff’s claim is filed, to prevent the plaintiff from
suing in time”) (quoting Guerrero v. Gates, 442 F.3d 697, 706 (9th Cir. 2006)).11
To establish equitable estoppel against the government, a plaintiff
must first meet four traditional elements of equitable estoppel. See United States v.
Gamboa-Cardenas, 508 F.3d 491, 502 (9th Cir. 2007). “Those elements are:
‘(1) the party to be estopped knows the facts, (2) he or she intends that his or her
conduct will be acted on or must so act that the party invoking estoppel has a right
11 “[T]he focus of the equitable estoppel analysis is not whether the plaintiff knew she
had a cause of action—or even pursued some other form of litigation based on that knowledge—
but whether the defendant’s fraudulent concealment or misrepresentation deprived the plaintiff
of a full understanding of the true facts, and thus, dissuaded the plaintiff from filing the claim at
issue within the limitations period.” Est. of Amaro v. City of Oakland, 653 F.3d 808, 813 (9th
Cir. 2011).
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to believe it is so intended, (3) the party invoking estoppel must be ignorant of the
true facts, and (4) he or she must detrimentally rely on the former’s conduct.’” Id.
(quoting United States v. Hemmen, 51 F.3d 883, 892 (9th Cir. 1995)); Watkins v.
United States Army, 875 F.2d 699, 709 (9th Cir. 1989) (en banc) (same elements).
“In addition, a party seeking to estop the government must establish two additional
factors: (1) ‘the government has engaged in affirmative misconduct going beyond
mere negligence’ and (2) ‘the government’s act will cause a serious injustice and
the imposition of estoppel will not unduly harm the public interest.’” Gamboa-
Cardenas, 508 F.3d at 502 (quoting Pauly v. U.S. Dep’t of Agric., 348 F.3d 1143,
1149 (9th Cir. 2003). In this context, “affirmative misconduct includes a
‘deliberate lie’ or ‘pattern of false promises.’” Wilkins v. United States, 163 F.4th
636, 652 (9th Cir. 2025) (quoting Mukherjee v. I.N.S., 793 F.2d 1006, 1009 (9th
Cir. 1986)).
2. 	Application of Standards—The Requirements for Equitable
Estoppel Are Met
Here, without reaching equitable tolling, the Complaint clearly alleges
(with particularity) facts that would establish equitable estoppel. Plaintiffs allege
that Tripler doctors (1) knew the facts they were concealing, and (2) intended their
acts or words would be “acted on or must so act that the party invoking estoppel
has a right to believe it is so intended.” Gamboa-Cardenas, 508 F.3d at 502. The
Complaint alleges that Plaintiffs (3) were “ignorant of the true facts,” and
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(4) detrimentally relied on the doctors’ conduct. Id. Additionally, Plaintiffs have
alleged facts that would establish “affirmative misconduct going beyond mere
negligence,” and “a serious injustice” that “would not unduly harm the public
interest.” Id. That is, Plaintiffs have pled facts that, if true, would establish
“affirmative conduct upon the part of [the defendant] which would, under the
circumstances of the case, lead a reasonable person to believe that [they] did not
have a claim for relief.” Thorman, 421 F.3d at 1095 (citation omitted).
The government argues that, although Plaintiffs have alleged
affirmative misconduct, they have not alleged “active conduct by a defendant
above and beyond the wrongdoing upon which the plaintiff’s claim is filed.”
Cervantes, 656 F.3d at 1046 (quoting Guerrero, 442 F. 3d at 707) (emphasis
added); see also Lukovsky, 535 F.3d at 1052 (rejecting tolling in an employment
context in part because “[plaintiff’s] alleged basis for equitable estoppel is the
same as their cause of action”). It argues that Plaintiffs are merging the substantive
wrong with the alleged concealment to impermissibly circumvent the statute of
limitations. In arguing there are no allegations “above and beyond the
wrongdoing,” the government relies (see ECF No. 32 at PageID.215) on the
following passage from Lukovsky:
If defendant had told plaintiff that it would not plead the
statute of limitations as a defense to any suit for age
discrimination that he might bring, this would be a case
for equitable estoppel; so also if defendant had presented
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plaintiff with forged documents purporting to negate any
basis for supposing that plaintiff’s termination was
related to his age. Plaintiff tries to bring himself within
the doctrine by contending that stated reason for
termination was a ruse to conceal the plan to fire him
because of his age. This merges the substantive wrong
with the tolling doctrine. . . . It implies that a defendant is
guilty of fraudulent concealment unless it tells the
plaintiff, “We’re firing you because of your age.” It
would eliminate the statute of limitations. . . .
535 F.3d at 1052 (quoting Cada v. Baxter Healthcare Corp., 920 F.2d 446, 451 (7th
Cir. 1990)) (brackets omitted; emphasis added by the government).
But Plaintiffs have indeed alleged (with particularity) many instances
of alleged affirmative conduct that goes “above and beyond the wrongdoing.” For
example, they allege that a doctor falsified medical records regarding recovery of
D.G.’s fetal heart rate “to induce reliance by [Plaintiffs], and to avoid liability by
the USA.” ECF No. 1 at PageID.22 ¶ 145. The doctor allegedly falsely told
Michele that “D.G.’s heart rate had ‘recovered’ at the time that the OR team had
decided to ‘slow things down,’” telling her “I’ve looked at the fetal heart strips
multiple times.’” Id. at PageID.24 ¶ 153. The affirmative falsehoods were
allegedly done to “induce reliance by [Plaintiffs] and to avoid liability by the
USA.” Id. at PageID.25 ¶ 157. Another doctor falsely told Michele that Tripler
doctors had not mixed Michele’s heart rate up with D.G.’s, again “to induce
reliance and evade liability.” Id. at PageID.35 ¶ 210. In almost all instances,
Plaintiffs are not alleging that the false statements were themselves negligent; they
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are alleging that the statements were made after the alleged negligence to conceal
it—affirmative conduct that would indeed be “above and beyond the wrongdoing
upon which the plaintiff’s claim is filed.” Cervantes, 656 F.3d at 1046.12
Plaintiffs’ allegations are much more like the example quoted in
Lukovsky that would constitute equitable estoppel: “if defendant had presented
plaintiff with forged documents purporting to negate any basis for supposing that
plaintiff’s termination was related to his age.” 535 F.3d at 1052 (quoting Cada,
920 F.2d at 451) (brackets omitted); see also, e.g., In re Park W. Galleries, Inc.,
732 F. Supp. 2d 1181, 1190 (W.D. Wash. 2010) (applying Lukovsky, reasoning that
“[i]n the absence of a misrepresentation or conduct by defendants aimed at
concealing the underlying tort alleged in the FAC or otherwise preventing plaintiffs
from timely asserting their rights, equitable estoppel is not applicable”) (emphasis
added); S.E.C. v. Fraser, 2010 WL 5776401, at *11 (D. Ariz. Jan. 28, 2010)
(distinguishing Lukovsky because “[w]here the wrongdoing in Lukovsky was not
fraudulent, the wrongdoing alleged in this case involves both a scheme to defraud
investors and misrepresentations that were allegedly designed to conceal the
12 The allegation that Dr. Sitler “told Michele that Pitocin does not increase the risk of
uterine rupture in the context of a TOLAC/VBAC,” ECF No. 1 at PageID.6 ¶ 26—to the extent
that the statement is wrong and is the basis for a claim of malpractice—would probably not be
“above and beyond the negligence” for purposes of equitable estoppel, despite the Complaint’s
allegations that the statement “was an affirmative misstatement to Michele and a fraudulent
concealment of the risks posed by Pitocin in the context of a TOLAC/VBAC,” id. at ¶ 27. In
that instance, the malpractice would duplicate the fraud.
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scheme from the SEC and the general public”) (citation omitted); Rushing v.
Williams-Sonoma, Inc., 2022 WL 2833980, at *8 (N.D. Cal. 2022) (finding no
equitable estoppel because the affirmative misconduct “related to the underlying
wrongdoing rather than an effort to prevent [plaintiff] from being able to sue”)
(quoting Johnson, 314 F.3d at 414) (emphasis added).
In sum, even if Plaintiffs’ claim had accrued outside the limitations
period, Plaintiffs have met their burden at this motion-to-dismiss stage to
demonstrate that the statute of limitations should not bar the claim under the
doctrine of equitable estoppel/fraudulent concealment.
V. CONCLUSION
Accepting the well-pleaded allegations of the Complaint as true,
Plaintiffs’ FTCA claim did not accrue more than two years before the
administrative claim was filed on December 18, 2024. And even if it did, equitable
estoppel applies as pled to preclude the statute of limitations defense. Defendant’s
Motion to Dismiss, ECF No. 21, is DENIED.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, February 17, 2026.
/s/ J. Michael Seabright
J. Michael Seabright
United States District Judge
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