ODESSA M C CALL , Guardian of the Estate of JOSEPH BESS , J R ., an Incompetent Minor v. United States of America

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-1889
O DESSA M C C ALL , Guardian of the Estate
of J OSEPH B ESS , J R ., an Incompetent Minor,
Plaintiff-Appellant,
v.
U NITED S TATES OF A MERICA ,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 00 C 740—Michael J. Reagan, Judge.
____________
A RGUED O CTOBER 1, 2002—D ECIDED N OVEMBER 13, 2002
____________
Before C OFFEY , R IPPLE and K ANNE , Circuit Judges.
R IPPLE , Circuit Judge. Odessa McCall, as guardian of the
estate of Joseph Bess, Jr., brought this action against the
United States pursuant to the Federal Tort Claims Act
(“FTCA”), 28 U.S.C. § 2674. Ms. McCall alleged that gov-
ernment doctors provided negligent treatment during the
birth of her grandson, who was born with serious medical
problems including mental incompetency. The district court
dismissed her complaint, concluding that the suit was time-
barred. On appeal, Ms. McCall submits that the FTCA’s ad-
ministrative statute of limitations should have been tolled

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2 No. 02-1889
because Joseph is incompetent—a condition brought about
by the Government’s own negligence. Because the FTCA’s
statute of limitations is not tolled during the minority of
the putative plaintiff, we affirm the judgment of the district
court.
I
BACKGROUND
A. Facts
1. Joseph’s Birth
Early in the morning of September 25, 1995, Nichole
McCall arrived in active labor at the Touchette Regional
Hospital in Centreville, Illinois. Hospital personnel placed
her in a labor room. Around 5 a.m., hospital personnel told
Ms. McCall that her baby was “in distress.”
Around 8:30 a.m., nurses told Ms. McCall that delivery
was still some time away. Ms. McCall responded, however,
that she believed delivery was imminent. For unexplained
reasons, the nurses left her room at that point. Before any
doctors or nurses returned, she gave birth to Joseph Bess,
Jr. Dr. D. Ballinger and Dr. E. Ekwulugo, both employed by
the United States through the National Health Service, had
provided prenatal care to Ms. McCall. Although Dr. Bal-
linger was on his way to the hospital and Dr. Ekwulugo was
working in the hospital that morning, neither of these doc-
tors treated her until after Joseph was born.
When the nurses returned to Ms. McCall’s room and dis-
covered Joseph’s birth, they saw that he was blue and was
having trouble breathing. The nurses performed chest com-
pressions and suctioning on Joseph, but, despite these
attempts, he began experiencing seizures. Consequently,
medical personnel transferred Joseph by helicopter to
Children’s Hospital in St. Louis, Missouri.

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No. 02-1889 3
1 The record does not indicate when Odessa McCall was ap-
pointed as Joseph’s guardian.
Joseph spent seventeen days in neonatal intensive care
at Children’s Hospital. During his stay, medical personnel
there told Ms. McCall that the umbilical cord had wrapped
around Joseph’s neck during his birth and that he had been
permanently brain-damaged.
2. Early Litigation
Within six months of Joseph’s birth, Ms. McCall con-
sulted with a medical malpractice attorney about the prob-
lems during delivery. Soon thereafter, at some unspecified
date in 1996, she sued Touchette Regional Hospital and
various nurses in Illinois state court. For reasons not re-
flected in the record, Ms. McCall voluntarily dismissed this
suit.
In 1999, Ms. McCall filed an administrative claim with
the Department of Health and Human Services. She alleged
that government doctors acted negligently during her labor
and delivery of Joseph. The Department of Health and Hu-
man Services did not take any action on this claim.
B. District Court Proceedings
In September 2000, Nichole McCall and Odessa McCall,
the grandmother and guardian of the estate of Joseph Bess,
Jr., 1 brought this federal action against the hospital, two
nurses, Dr. Ekwulugo, Dr. Ballinger, and the United States
for medical malpractice. The McCalls based jurisdiction on
the FTCA, 28 U.S.C. § 1346(b)(1). They alleged that the de-
fendants negligently caused Joseph’s injuries, including
mental incompetency. For reasons not reflected in the rec-
ord, Ms. McCall voluntarily dismissed herself from the suit.
The United States substituted itself for the two doctors.

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4 No. 02-1889
The United States moved to dismiss the action for lack of
subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1).
The Government argued that the FTCA’s two-year adminis-
trative statute of limitations, 28 U.S.C. § 2401(b), barred
Odessa McCall’s suit because no one had filed an adminis-
trative claim in the case until almost four years after Jo-
seph’s injuries occurred. The district court granted the
dismissal on the ground that the limitations period had
passed. It concluded that, regardless of Joseph’s incompe-
tency, the FTCA’s statute of limitations is not tolled for
infants. The district court declined to exercise supplemen-
tal jurisdiction over Odessa McCall’s remaining claims.
II
DISCUSSION
Ms. McCall asks us to hold that a minor’s mental incom-
petency, allegedly caused by the defendant, the United
States, tolls the FTCA’s administrative statute of limita-
tions. Because the FTCA’s statute of limitations is not
tolled during the minority of a putative plaintiff, we decline
to do so.
We review the district court’s dismissal for lack of subject
matter jurisdiction de novo. See City of Beloit v. Local 643
of American Federation of State, County & Municipal
Employees, 248 F.3d 650, 652 (7th Cir. 2001). The FTCA
exposes the United States to tort liability “in the same
manner and to the same extent as a private individ-
ual . . . .” 28 U.S.C. § 2674. The FTCA has a two-year ad-
ministrative statute of limitations: “[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). Federal law governs when claims accrue under
the FTCA. Jastremski v. United States, 737 F.2d 666, 669
(7th Cir. 1984).

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No. 02-1889 5
Although the statute of limitations is an affirmative de-
fense, Ms. McCall, as the plaintiff, has the burden of estab-
lishing an exception to the statute. See Weger v. Shell Oil
Co., 966 F.2d 216, 218 (7th Cir. 1992). Therefore, Ms.
McCall must show that Joseph’s claim accrued less than
two years before presentation of the administrative claim,
unless some form of tolling applies. Ms. McCall argues that
tolling applies in this case because courts generally toll the
FTCA’s statute of limitations when the Government causes
mental incompetence in the plaintiff. See Clifford by
Clifford v. United States, 738 F.2d 977, 980 (8th Cir. 1984);
Zeidler v. United States, 601 F.2d 527, 531 (10th Cir. 1979).
But cf. Barren by Barren v. United States, 839 F.2d 987,
991-92 (3d Cir. 1988).
Although Ms. McCall focuses on the nature and cause of
Joseph’s injury, Joseph’s status as a minor is the controlling
factor in the tolling analysis. The nature of the injury,
even a cognitive one such as mental incompetence, is not
relevant when the putative plaintiff is a minor. See Barn-
hart v. United States, 884 F.2d 295, 299 (7th Cir. 1989)
(“Where the plaintiff was a minor whose parents had a duty
to take the initiative in instituting a legal action, or where
a plaintiff has an appointed guardian with a similar duty,
the plaintiff’s incapacity would not appear to be similarly
critical.”); Crawford v. United States, 796 F.2d 924, 927 (7th
Cir. 1986) (“[W]e note that if Crawford had been a minor
when the accident occurred . . . his lack of mental capacity
would be irrelevant.”). Therefore, the main thrust of the
appeal is whether the statute of limitations can be tolled
even though Joseph is a minor.
Our sister circuits have established the general rule that
the FTCA’s statute of limitations is not tolled during the
period of a putative plaintiff’s minority. See MacMillan v.
United States, 46 F.3d 377, 381 (5th Cir. 1995) (“[U]nder
the FTCA, the limitations period is not tolled during the
minority of the putative plaintiff; rather ‘his parent’s

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6 No. 02-1889
knowledge of the injuries is imputed to him.’ ”); Zavala by
Ruiz v. United States, 876 F.2d 780, 783-84 (9th Cir. 1989)
(holding that it would not toll the FTCA’s statute of lim-
itations because the minor’s parent had a duty to act on the
minor’s behalf); Clifford, 738 F.2d at 980 (noting the “well-
recognized” rule that the FTCA’s statute of limitations
is “not ordinarily tolled for infancy”); Leonhard v. United
States, 633 F.2d 599, 624 (2d Cir. 1980) (“It is firmly estab-
lished that the two-year [FTCA’s statute of limitations]
period is not tolled by the claimant’s minority.”); Robbins v.
United States, 624 F.2d 971, 972 (10th Cir. 1980) (“It is well
established, however, that a claimant’s minority does not
toll the running of the [FTCA’s] statute of limitations.”).
Although we have never expressly decided the question,
strong language in several of our opinions concurs that the
FTCA’s statute of limitations is not tolled during the period
of minority. See Barnhart, 884 F.2d at 299 (noting that the
FTCA’s statute of limitations would not be tolled “[w]here
the plaintiff was a minor whose parents had a duty to take
the initiative in instituting a legal action”); Crawford, 796
F.2d at 927 (recognizing that “[t]he cases that hold that
infancy does not toll the administrative statute of limita-
tions imply that a parent is an adequate surrogate”);
Swietlik v. United States, 779 F.2d 1306, 1308 (7th Cir.
1985) (noting the “long line of cases under the Federal Tort
Claims Act hold[ing] that the statute of limitations in that
Act is not tolled by infancy”); Jastremski, 737 F.2d at 669
(“The parents or guardian of a minor must bring the mi-
nor’s claim in a timely fashion because the child’s minority
does not toll the running of the federal tort claims statute
of limitations.”).
Ms. McCall challenges this rule on policy grounds, argu-
ing that it would be unfair to apply the rule if the minor’s
parents did not have a duty to sue on their child’s behalf.
Courts, however, are not free to construe the FTCA’s stat-
ute of limitations broadly. As the Supreme Court made

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No. 02-1889 7
2 The proposed amendment would have tolled the FTCA’s statute
of limitations until putative plaintiffs turned 18:
That section 2401(b) of title 28, United States Code, is
amended—
(1) by striking out ‘A’ and inserting in lieu thereof ‘Ex-
cept as provided in the second sentence of this subsec-
tion, a’; and
(2) by adding at the end thereof the following: ‘A tort
claim against the United States of any person who is
under the age of 18 years at the time the claim accrues
may be presented to the appropriate Federal agency not
later than two years after such person reaches the age of
18 years.’
H. R. 3260, 101st Cong. (1989).
clear in United States v. Kubrick, 444 U.S. 111, 117 (1979),
courts must not construe the FTCA’s limitation provisions
“so as to defeat [their] obvious purpose, which is to encour-
age the prompt presentation of claims.” Additionally, be-
cause the FTCA waives the immunity of the United States
and its statute of limitations is a condition of that waiver,
courts should not “extend the waiver beyond that which
Congress intended.” Id. at 117-18. This conclusion is
strengthened when examined against the background of a
proposed amendment in 1989 to the FTCA. In that amend-
ment, Congress considered creating a tolling exception for
minors under the FTCA’s statute of limitations, but ulti-
mately, the amendment did not make it out of committee. 2
Therefore, we now join our sister circuits and hold that
the FTCA’s statute of limitations is not tolled during the
period of a putative plaintiff’s minority. We refrain from
deciding, however, whether our analysis would be the same
if the record affirmatively reflected that the parents had an
interest adverse to or that the custodial adult could not be
expected to make legal decisions in the best interests of the
child. There is no evidence here that the McCalls’ interests

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8 No. 02-1889
conflicted with Joseph’s interests. To the contrary, within
six months of Joseph’s tragic birth, his mother consulted
with an attorney about obtaining legal relief, and the
McCalls subsequently filed two lawsuits and an administra-
tive claim. Thus, we leave open the question whether the
FTCA’s statute of limitations would be tolled if a minor
lacked adequate means of obtaining judicial relief through
either his parents or a guardian.
As a final argument, Ms. McCall asserts that Joseph’s
due process and equal protection rights are violated when
courts toll the FTCA’s statute of limitations for adults—but
not minors—whom the Government has rendered incompe-
tent. We are not persuaded, however, that these claims rise
to constitutional proportion. See Zavala, 876 F.2d at 784;
Landreth by Ore v. United States, 850 F.2d 532, 535 (9th
Cir. 1988).
Conclusion
For the foregoing reasons, the judgment of the district
court is affirmed.
A FFIRMED
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-13-02

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