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Evaluating the "discovery" rule under the Federal Tort Claims Act

Claims against the federal government cannot be brought in state court and carry no entitlement to a jury trial.  While the U.S. Government has waived its basic "sovereign immunity" from suit, it requires that the injury victim comply with the statutory requirements of the Federal Tort Claims Act.  That act requires that suit be brought within two years (See 28 USC Section 2401(b), in the case of death.  Susan Hertz lost her husband as a result of an air traffic control error.  The probable cause of the accident was disclosed to her within a month of the death by the National Transportation and Safety Board.  She hired an attorney, however, he did not sue the FAA within the proscribed two years. 

The Court held that a FTCA claim "accrues when a plaintiff 'armed with the facts about the harm done to him, can protect himself by seeking advice in the medical and legal community".  Thus, while the claim may not accrue immediately, where the victim is unaware of the nature of the injury or fault, if negligence can be readily imputed--as is the case in an airplance crash--the FTCA does not sanction a discovery period while the victim investigates to determine precisely who is at fault.  This case is Hertz v. United States, and it relies on the language of the opinion in  U. S. v. Kubrick.

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