Opinion
No. C 02-4891 VRW Related to 02-5292 VRW.
September 30, 2004
ORDER
Before the court are two motions: (1) defendant David Tyler's motion for summary judgment; and (2)defendant United States of America's motion to compel physical examination of plaintiff Ute Sistrunk (Sistrunk) pursuant to FRCP 35. Because the court finds this matter suitable for determination without oral argument, the hearing scheduled for September 30, 2004, is VACATED. See Civ LR 7-1(b).
For the reasons that follow, the court finds it lacks subject matter jurisdiction over the claims brought against Tyler and thus orders those claims DISMISSED pursuant to FRCP 12(b)(1). Accordingly, the court need not reach Tyler's motion for summary judgment. Further, as explained herein, the court GRANTS United States' motion to compel physical examination.
I
On March 28, 2000, Sistrunk, acting in the course and scope of her employment with Sunbridge Health Care, was en route to a doctor's office in Pleasant Hill, California. Doc #1 at 3. As Sistrunk's vehicle approached the intersection of Patterson Boulevard and Soule Avenue, a vehicle driven by Tyler, an employee of the United States Postal Service (USPS), collided with Sistrunk's vehicle. Doc #35 at 2. Both parties concede that at the time of the collision, Tyler was acting in the course and scope of his employment for USPS. Doc #1 at 3; Doc #35 at 2. The Attorney General of the United States has since "certified" that Tyler was in fact acting within the scope of his employment pursuant to 28 USC § 2679(d)(1). Doc #40, Ex A. The automobile accident caused Sistrunk to sustain personal injuries requiring medical treatment and absence from work. Doc #1 at 3. As a result of Sistrunk's ensuing medical treatment and missed work, plaintiff Continental Casualty Company (CCC) has expended worker's compensation benefits to Sistrunk pursuant to California law. Doc #1.
On October 9, 2002, CCC, having exhausted all necessary administrative remedies, filed suit against United States and Tyler pursuant to the Federal Tort Claims Act (FTCA) for reimbursement of past and future worker's compensation payments made or due to Sistrunk. 28 USC § 2761, et seq; Doc #1.
On November 4, 2002, Sistrunk, having exhausted all administrative remedies, also commenced a suit against United States and Tyler pursuant to the FTCA. Doc #1. Sistrunk sought damages for "personal injuries requiring medical treatment, loss of time from work, pain and suffering and continuing and permanent injuries to her body and emotions." Doc #1 at 3.
Tyler has moved for summary judgment, arguing that no FTCA claim may lie against a federal employee acting within the course and scope of his employment. Doc #35 at 3. Rather, only the United States may be a named party to such suit.
Separately, United States moves this court to compel Sistrunk to undergo an orthopedic examination. Doc #35. Sistrunk opposes this motion, arguing she has already undergone one medical examination, a neurological examination, organized by United States. Doc #39. Sistrunk argues United States has failed to show "good cause" for the orthopedic examination and thus she should not be compelled to undergo such an examination. Id.
It is to these two motions, respectively, the court now turns.
II
"Upon certification by the Attorney General that a defendant employee was acting within the scope * * * of his employment at the time * * * an [FTCA] claim arose, any civil action [under the FTCA] shall be deemed an action against the United States, and the United States shall be substituted as the party defendant." 28 USC § 2697(d)(1) (emphasis added). In this case, it is conceded that Tyler was acting within the scope of his USPS employment and that the Attorney General has certified as much. Accordingly, no claims can lie against Tyler under the FTCA. But the parties disagree as to the procedure this court must use in removing Tyler from this suit. Tyler argues he is entitled to "summary judgment dismissing all claims in their entirety with prejudice." Doc #35 at 1. Sistrunk argues the court should merely require the parties to stipulate to an order "correcting the caption of the case." Doc #39 at 2.
The court disagrees with both parties. Section 2697(d)(1) is not permissive language. The statute requires the court to substitute the United States as the named defendant for a federal employee acting in his official capacity. Once this substitution occurs, no FTCA claims arising out of the same occurrence may ever be asserted against the federal employee. When viewed in this light, it becomes clear that § 2679(d)(1) does more than simply allow a court to amend a caption or grant summary judgment to the federal employee. Rather, the statute wholly deprives the court of subject matter jurisdiction to entertain an FTCA claim against the federal employee. This court is not the first court to face this issue. See Weichers v. United States Post Office, 1989 US Dist LEXIS 16569, *2 (D N J 1989) (dismissing FTCA claim against postmaster under FRCP 12(b)(1) because "dismissal is the proper remedy * * * wherein a government defendant other than the United States is named."). See also Holden v. Commonwealth of Australia, 396 F Supp 1258, 1259 (N D Cal 1974) (holding employees of the United States "immune from liability in a civil action [under the FTCA]").
The court is "obligated to consider sua sponte whether [it] has subject matter jurisdiction." Valdez v. Allstate Insurance Co, 372 F3d 1115, 1116 (9th Cir 2004). Upon conducting this mandatory inquiry, the court holds it does not have subject matter jurisdiction to entertain any FTCA suits against Tyler. Accordingly, CCC and Sistrunk's claims against Tyler are DISMISSED for lack of subject matter jurisdiction. Because of this jurisdictional dismissal, Tyler's motion for summary judgment is moot.
III
Under FRCP 35(a), a court may "order a party to submit to a physical or mental examination." Such an order may be made "only on motion for good cause" noticed by the opposing party. Id. Rule 35 examinations require: (1) the non-movant's physical or mental condition to be "in controversy" and (2) the movant affirmatively to demonstrate "good cause" for the examination. Schlagenhauf v. Holder, 379 US 104, 117 (1964). See Wilson v. Dalton, 2001 US App LEXIS 27039, **6 (9th Cir 2001) (applying the "in controversy" and "good faith" requirements of Schlagenhauf to Rule 35 examinations).
In this case, both parties concede that Sistrunk's physical condition is "in controversy." Doc # 39 at 3; Doc #35 at 4. But there is disagreement whether United States has shown good cause in requesting Sistrunk to undergo an orthopedic examination.
"Rule 35 does not limit the number of examinations a court may order. Nor would such a limitation be a judicious one." Peters v. Nelson, 153 FRD 635, 637 (D Iowa 1994). Each request for an examination "must turn on its own facts" and "must be supported by good cause." Id at 638. The burden of showing good cause rests with the movant. Id (citing Schlagenhauf, 379 US at 118-19.).
United States asserts that there is good cause for the additional examination because Sistrunk alleges a permanent and complex injury that could have been caused by work-related accidents other than the one involving Tyler. Doc #36 at 4. Accordingly, if a complex or permanent injury is at issue, it is appropriate to seek opinions from "several medical specialties" in order to conduct a proper causation analysis. Id. Courts have held that a "complex" injury may require several examinations from different specialists. Peters, 153 FRD at 639.
Sistrunk does not deny that her injury is not complex. Rather, she counters that good cause does not exist because the orthopedic exam would be duplicative and cumulative of the already conducted neurological exam. Doc #39 at 5. Plaintiff states that "the fields of orthopedics and neurology are closely related" and "a practitioner in one field [commonly] expresses [his or her] opinion in the other field." Id. Apparently, to Sistrunk, a neurologist and orthopedist are interchangeable. Sistrunk summarizes her argument by reminding the court that "it doesn't take a weatherman to tell you which way the wind is blowing." Id at 6. Sistrunk claims United States should be able to "tell which way the wind is blowing" based only upon the neurological examination. In fact, the wind blows in Sistrunk's face.
Sistrunk's attempt to negate United States' "good cause" arguments does not persuade. Another court has considered, and rejected, the same argument offered by Sistrunk. See Sauer v. Burlington Northern Railroad Co, 169 FRD 120 (D Minn 1996). InSauer, the plaintiff maintained that "since he had submitted to a neurological examination at the defendant's insistence, he should not be required to * * * undergo an orthopedic examination." Id at 122. The court rejected the plaintiff's argument stating that "where the re-examination will draw upon the expertise of a different, but medically appropriate discipline, we can find no basis upon which the plaintiff may validly object." Id at 124 (emphasis added). The Sauer court found neurology and orthopedics to be different disciplines potentially requiring separate physical examinations. The court finds Sauer to be persuasive and thus finds no merit in Sistrunk's objections to the good cause shown by United States.
Accordingly, the court GRANTS United States' motion to compel an orthopedic medical examination of Sistrunk. Because the objections relating to this motion have stalled the discovery process in this case, the court ORDERS the orthopedic examination to occur within 30 days of this order. The court also moves the expert disclosure deadline from October 15, 2004, to December 15, 2004 in order to accommodate the new evidence produced from the orthopedic examination.
IV
In sum, the court DISMISSES all claims against Tyler for lack of subject matter jurisdiction. The court TERMINATES Tyler's motion for summary judgment as moot. Doc #35. The court GRANTS United States' motion to compel an orthopedic medical examination pursuant to FRCP 35. Doc #35.
IT IS SO ORDERED.