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WYMER v. LESSIN

December 20, 1985

CLIFFORD R. WYMER, et. ux., Plaintiffs,
v.
LAWRENCE S. LESSIN, M.D., et al., Defendants; CLIFFORD R. WYMER, et ux., Plaintiffs, v. CLARA CHAN, M.D., Defendant



The opinion of the court was delivered by: PARKER

 (Denying Defendant Chan's Motion to Dismiss)

 This is a medical malpractice action arising from plaintiff Clifford Wymer's contraction of hepatitis following oral surgery on February 24 and 25, 1981. The original defendants were the dentist who performed the surgery and four doctors involved in the management of Mr. Wymer's hemophiliac condition during the surgery. Now before the Court is defendant Chan's motion to dismiss. Upon consideration of the motion, the Court concludes that it should be denied.

 The material facts are briefly stated. This proceeding was set for trial on June 10, 1985. On that date, after the jury had been impaneled, it was revealed that Dr. Chan was not a U.S. citizen when the complaint was filed. Since the plaintiffs were foreign citizens as well, complete diversity between the parties was lacking and this Court had no jurisdiction to hear the case. Because of this development, the action against Dr. Chan was dismissed without prejudice.

 Many states have enacted statutes that deal with precisely this situation. These provisions, often referred to as "savings statutes," allow plaintiffs to refile complaints within a certain period of time if the original complaint is dismissed without prejudice for procedural defects. See Burnett v. New York Central Railroad Co., 380 U.S. 424, 431-32 n.9, 13 L. Ed. 2d 941, 85 S. Ct. 1050 & n.9 (1965). The District of Columbia, however, has no such statute. In Carter v. Washington Metropolitan Transit Authority, 246 U.S. App. D.C. 221, 764 F.2d 854 (D.C. Cir. 1985), our Circuit Court held that the absence of a savings statute indicates that "the District of Columbia particularly wishes that its statute of limitations be respected." Id. at 857.

 Nonetheless, as the Carter court noted, the courts have long recognized that the doctrine of equitable estoppel can be invoked to prevent an unjust application of the statute of limitations. See Carter, 764 F.2d at 855. Under that doctrine, a defendant cannot rely on the statute if his conduct has tended to lull the plaintiff into inaction, permitting the statute to run. Alley v. Dodge Hotel, 179 U.S. App. D.C. 256, 551 F.2d 442, 446-47 (D.C. Cir. 1977) (per curiam), cert. denied, 431 U.S. 958, 53 L. Ed. 2d 277, 97 S. Ct. 2684 (1977). Plaintiffs convincingly argue here that this doctrine should prohibit Dr. Chan from availing herself of the statute of limitations.

 Specifically, plaintiffs assert that the statute of limitations expired because Dr. Chan did not state her true citizenship in a motion to dismiss the original complaint, but instead answered the complaint and denied knowledge of the facts necessary to respond to the plaintiffs' allegations of diversity jurisdiction. They argue that Dr. Chan should not benefit because of the misleading statements in her own pleadings. Had the plaintiffs learned of Dr. Chan's citizenship at the time a responsive pleading was due, they could have refiled their action in the D.C. courts well within the three year limitations period. *fn1"

 The Court finds that it would be harsh and inequitable to penalize the plaintiffs for the shortcomings of Dr. Chan's answer. This is particularly true because if this motion to dismiss is granted, plaintiffs would also be barred from suing Dr. Chan in D.C. Superior Court. Cf. Carter, 764 F.2d at 858 (noting that local remedies remained to the plaintiff). Dr. Chan's failure to deny U.S. citizenship in her answer was a result of her counsel's failure to make reasonable inquiry into that matter. *fn2" Since Dr. Chan's citizenship is a fact peculiarly within her knowledge, the plaintiffs relied on her answer to know whether their action was properly before the Court. The failure to deny citizenship deprived the plaintiffs of the opportunity to remedy the flaw in their complaint within the statute of limitations. As a consequence, the defendant should not be allowed to avail herself of the statute of limitations bar.

 Accordingly, it is this 20th day of December, 1985

 That defendant Chan's motion to dismiss ...


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