Summary
finding that a claim filed with VA alleging that Secret Service agents harassed the claimant while he was hospitalized at a VA facility was governed by 28 C.F.R. § 14.2(b) and that the VA was the "appropriate Federal agency" even for a claim involving the Secret Service
Summary of this case from MOHAMMAD v. VA ROOMING HOUSEOpinion
Civil Action No. 04-0114, Section: I/5.
March 31, 2005
ORDER AND REASONS
Before the Court are (1) a motion to dismiss plaintiffs' claims against the United States Secret Service for lack of subject matter jurisdiction; (2) a motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure; and (3) a supplemental motion for summary judgment, filed on behalf of defendant, the United States of America. Plaintiffs, Bertha Thomas, Robert Thomas, and Elizabeth Thomas, oppose the motions. For the following reasons, the motion to dismiss is DENIED. The motions for summary judgment are GRANTED.
Rec. Doc. No. 22.
Rec. Doc. No. 14.
Rec. Doc. No. 18.
BACKGROUND
This case arises out of the death of John Henry Thomas which occurred on July 11, 1999. Plaintiffs, Bertha Thomas, Robert Thomas, and Elizabeth Thomas are the decedent's mother, father, and sister, respectively.In December, 1998, the decedent was diagnosed by the staff at the Veterans Administration Medical Center ("VAMC") with a condition called myelofibrosis. Subsequently, the decedent underwent treatment for that condition at the VAMC. According to plaintiffs' complaint, on July 9, 1999, the attending nurses and physicians at the VAMC tested the decedent's blood and discovered that he had a severe anemic condition. Plaintiffs contend that the treatment of the decedent's condition required a blood transfusion in order to prolong his life. Plaintiffs allege that the staff at the VAMC negligently, knowingly, willfully, and intentionally failed to provide the decedent with the blood transfusion which, according to plaintiffs, would have saved his life. Plaintiffs claim that the VAMC's negligent failure to provide the blood transfusion to the decedent violated hospital regulations and caused the decedent immense pain, suffering, and mental anguish.
Plaintiffs also allege that while the decedent was hospitalized at the VAMC, the staff at the hospital violated its own security regulations by permitting agents of the United States Secret Service ("Secret Service") access to the decedent. Plaintiffs allege that agents of the Secret Service interrogated the decedent during his hospitalization for myelofibrosis and threatened to give him lethal injections to "put him out of his misery." Plaintiffs allege that the VAMC's failure to control access to the decedent and the conduct of the Secret Service caused the decedent pain and suffering and hastened his death.
Rec. Doc. No. 1, "Comp.", ¶ 14.
On July 10, 2001, plaintiffs presented an administrative tort claim to the Veterans Administration ("VA"). In that claim, plaintiffs alleged that the VAMC failed to give the decedent a necessary blood transfusion on July 9, 1999, and that the decedent was denied protection from harm and privacy while hospitalized at the VAMC when the VAMC permitted Secret Service agents to interrogate the decedent and threaten him with bodily harm while he was seriously ill. The VA denied plaintiffs claim on July 5, 2002, addressing only the allegations pertaining to the alleged negligent medical treatment of the decedent while hospitalized at the VAMC.
See Rec. Doc. No. 22, Ex. B.
See id.
Rec. Doc. No. 21, Ex. 1.
On January 12, 2004, plaintiff filed this lawsuit invoking 42 U.S.C. §§ 1981, 1983, and the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b). Plaintiffs allege claims arising out the VAMC's treatment of the decedent's myelofibrosis, the conduct of the Secret Service, and claims based upon alleged violations of the decedent's due process and equal protection rights pursuant to the Fourteenth Amendment to the United States Constitution. On December 27, 2004, the United States filed a motion for summary judgment seeking dismissal of plaintiffs' medical malpractice claim against the VAMC. Thereafter, on February 15, 2005, the United States filed a supplemental motion for summary judgment seeking dismissal of plaintiffs' claims to the extent such claims against the VAMC are based upon violations of federal regulations, dismissal of plaintiffs' tort claims based upon the alleged conduct of the Secret Service, and dismissal of plaintiffs' constitutional claims alleged pursuant to 42 U.S.C. §§ 1981 and 1983. On March 8, 2005, the United States filed a motion to dismiss plaintiffs' claims based upon the conduct of the Secret Service for lack of subject matter jurisdiction.
Rec. Doc. No. 22.
LAW AND ANALYSIS
I. Summary Judgment StandardPursuant to Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56 (c). Once the moving party carries its burden pursuant to Rule 56(c), the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). That burden is not satisfied by creating merely some metaphysical doubt as to the material facts, by conclusory allegations, unsubstantiated assertions or by only a scintilla of evidence. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (citations omitted). The materiality of facts is determined by "the substantive law's identification of which facts are critical and which facts are irrelevant." Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Therefore, a fact is material if it "might affect the outcome of the suit under the governing law." Id. A dispute about a material fact is genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Matsushita, 475 U.S. at 587, 106 S. Ct. at 1356 (internal quotation omitted).
In order to demonstrate that summary judgment should not lie, the nonmoving party must "go beyond the pleadings and by her own affidavits, or by the 'depositions, answers to interrogatories, and admissions on file,' designate 'specific facts showing that there is a genuine issue for trial.'" Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986); Auguster v. Vermillion Parish School Board, 249 F.3d 400, 402 (5th Cir. 2001). A court will resolve factual controversies in favor of the nonmoving party, "but only when there is an actual controversy, that is, when both parties have submitted evidence of contradictory facts." Little, 37 F.3d at 1075. The Court will not, however, in the absence of any proof, assume that the nonmoving party could or would prove the necessary facts. See id. (citing Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888, 110 S.Ct. 3177, 3188, 111 L.Ed.2d 695 (1990)).
[T]he plain language of Rule 56(c) "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.Celotex, 477 U.S. at 322-23, 106 S.Ct. at 2552; Munoz v. Orr, 200 F.3d 291, 307 (5th Cir. 2000) ("A complete failure of proof as to one element requires summary judgment against the entirety of the claim.") (citation omitted).
II. Plaintiffs' Section 1981 and Section 1983 Claims
Plaintiffs allege civil rights claims pursuant to 42 U.S.C. §§ 1981 and 1983, contending that the conduct of the VAMC and the Secret Service violated the decedent's right to due process and denied the decedent equal protection of the law.
With respect to plaintiffs' § 1983 claim, such claim is properly construed as a Bivens claim because plaintiffs allege that the conduct of federal actors, rather than state actors, violated the decedent's constitutional rights. See Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 397, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Bivens is the federal counterpart of § 1983 and it affords a victim of unconstitutional conduct by a federal actor or agent, who cannot be liable pursuant to § 1983, a direct remedy under the United States Constitution. Abate v. Southern Pac. Transp. Co., 993 F.2d 107, 110 n. 14 (5th Cir. 1993). However, Bivens provides a cause of action only against government officers in their individual capacities. Affiliated Professional Home Health Care Agency v. Shalala, 164 F.3d 282, 286 (5th Cir. 1999) (citation omitted). A plaintiff does not have a Bivens action against a federal agency. Federal Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 486, 114 S. Ct. 996, 1006, 127 L.Ed.2d 308 (1994). Because the purpose of Bivens is to deter the conduct of the individual federal officer, a damages action directly against a federal agency would undermine the deterrent effects of the Bivens. See Meyer, 510 U.S. at 486, 114 S. Ct. at 1006. Plaintiffs have sued the United States alleging claims against the Secret Service and the VA. Plaintiffs have not sued any federal official in their individual capacity. Therefore, plaintiffs cannot maintain a Bivens action.
Additionally, because plaintiffs' claims are predicated on the conduct of federal actors, plaintiffs' due process and equal protections claims arise under the Fifth Amendment instead of the Fourteenth Amendment. See Coggin v. Longview Indep. Sch. Dist., 337 F.3d 459, 463-64 (5th Cir. 2003) (citation omitted); Richard v. Hinson, 70 F.3d 415, 416-17 (5th Cir. 1995) ("Although petitioner asserts that his Fourteenth Amendment equal protection rights were violated, his claims [against the federal government] actually arise under the Fifth Amendment which protects parties from unjustifiable discriminatory applications of law.").
Plaintiffs argue that they have not named any individual officers as defendants because the United States failed to make initial disclosures naming of the individual officers responsible for the conduct alleged in the complaint in violation of Fed.R.Civ.P. 26(a)(1). Even assuming that the government had such information available to it and failed to make such disclosures, none of plaintiffs' pleadings show an intent to sue any individual officer of the federal government. Moreover, plaintiffs never filed a motion to compel before the United States Magistrate Judge nor did they ever raise any issue pertaining to individual federal officers prior to the filing of the instant motions for summary judgment. In such circumstances, plaintiffs' belated reliance on the government's alleged failure to disclose the names of individual officers is insufficient to withstand the government's motion for summary judgment with respect to plaintiffs' constitutional claims.
With respect to plaintiffs' claims pursuant to § 1981, the Fifth Circuit has "long recognized that suits against the United States brought under the civil rights statutes are barred by sovereign immunity." Affiliated, 164 F.3d at 286 (dismissing claims brought pursuant to, inter alia, § 1981). The sovereign immunity of the United States from lawsuits alleging violations of the civil rights statutes extends to claims brought against federal officials in their official capacity and claims against agencies of the federal government. See id. (holding sovereign immunity precludes a lawsuit pursuant to §§ 1981 and 1983 against the Secretary of the Department of Human Services in her official capacity); Unimex Inc. v. United States Dep't of Housing and Urban Development, 594 F.2d 1060, 1061 (5th Cir. 1979) (per curiam) (holding that sovereign immunity precludes a § 1981 claim against the United States Department of Housing and Urban Development); see also Newsome v. E.E.O.C., 37 Fed. Appx. 87, 2002 WL 971379, *4 (5th Cir. 2002) (unpublished) (holding a plaintiff cannot bring a civil rights claim against the E.E.O.C. or E.E.O.C. officials for violations of the constitution because the United States has not consented to be sued pursuant to the civil rights statutes). Accordingly, plaintiffs' § 1981 claim against the United States and the named federal agencies is barred by sovereign immunity.
III. Plaintiffs' FTCA Claims
The FTCA constitutes a limited waiver of sovereign immunity and courts must strictly construe all waivers of the federal government's sovereign immunity resolving all ambiguities in favor of the sovereign. See Leleux v. United States, 178 F.3d 750, 754 (5th Cir. 1999) (citiations omitted); Linkous, 142 F.3d at 275 (citing United States v. Nordic Village, Inc., 503 U.S. 30, 33, 112 S.Ct. 1011, 1014, 117 L.Ed.2d 181 (1992)). Pursuant to the FTCA, "[t]he United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages." 28 U.S.C. § 2674. The federal district courts have exclusive jurisdiction over claims against the United States for injury or loss of property, or personal injury or death caused by the negligent or wrongful act of a government employee "under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b). The purpose of the FTCA is to compensate victims of governmental negligence "in circumstances like those in which a private person would be compensated for private person negligence." Sant v. United States, 896 F. Supp. 639, 640-41 (W.D.La. 1995). Because the alleged conduct occurred in Louisiana, Louisiana law applies to plaintiff's FTCA claims. Bustamonte v. United States Dept. of Veterans Affairs, 107 Fed. Appx. 426, 427, 2004 WL 1834598, *1 (5th Cir. May 17, 2004) (unpublished); see Tindall v. United States, 901 F.2d 53, 55 (5th Cir. 1990).
In order to analyze plaintiffs' FTCA claim, this Court applies the well-established rule that pro se complaints, however inartfully drafted, are held to less stringent standards than formal pleadings drafted by lawyers and must be liberally construed. E.g., Hughes v. Rowe, 449 U.S. 5, 9-10, 101 S. Ct. 173, 176, 66 L. Ed.2d 163 (1980); Macias v. Raul A. (Unknown), Badge No. 153, 23 F.3d 94, 100 n. 10 (5th Cir. 1994). Construing the allegations in plaintiffs' administrative tort claim and the instant complaint liberally, the Court discerns three distinct tort claims. First, plaintiffs' allege a wrongful death/medical malpractice action arising from the VAMC's alleged failure to provide the decedent with a necessary blood transfusion in order to treat the decedent's myelofibrosis. Second, plaintiffs have alleged that the VAMC violated its own security regulations and the decedent's right to privacy by permitting access to the decedent by the Secret Service. Third, plaintiffs allege facts which give rise to an assault claim or, alternatively, a claim for intentional infliction of emotional distress claim based upon the allegations that the Secret Service interrogated, harassed, and threatened the decedent with a lethal injection. Because the government's motion to dismiss plaintiffs' claim involving the Secret Service implicates this Court's jurisdiction, the Court addresses plaintiffs' third claim first.
A. Timely Presentment to the "Appropriate Federal Agency"
The United States has moved to dismiss any claim based upon the conduct of the Secret Service on the ground that such a claim was not timely presented to the Secret Service.
The FTCA provides in pertinent part:
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.A. § 2401(b). 28 U.S.C. § 2675(a) provides in pertinent part:
An action shall not be instituted upon a claim against the United States . . . unless the claimant shall have first presented the claim to the appropriate Federal agency. . . .
It is well-settled that the two-year time limitation for presentment of a tort claim against the United States is jurisdictional. Flory v. United States, 138 F.3d 157, 159 (5th Cir. 1998) (citations omitted).
The applicable federal regulation states in pertinent part:
For purposes of the provisions of 28 U.S.C. 2401(b), 2672, and 2675, a claim shall be deemed to have been presented when a Federal agency receives from a claimant, his duly authorized agent or legal representative, an executed Standard Form 95 or other written notification of an incident. . . .28 C.F.R. § 14.2(a). Subsection (b)(1) of the regulation states:
A claim shall be presented to the Federal agency whose activities gave rise to the claim. When a claim is presented to any other Federal agency, that agency shall transfer it forthwith to the appropriate agency, if the proper agency can be identified from the claim, and advise the claimant of the transfer. If transfer is not feasible the claim shall be returned to the claimant. The fact of transfer shall not, in itself, preclude further transfer, return of the claim to the claimant or other appropriate disposition of the claim. A claim shall be presented as required by 28 U.S.C. 2401(b) as of the date it is received by the appropriate agency.28 C.F.R. § 14.2(b)(1) (emphasis supplied).
The transfer regulation, 28 C.F.R. § 14.2(b)(1) has been construed "to allow constructive filing ( i.e. a relation back) of claims presented within the limitations period of § 2401(b) but delivered to the wrong agency and neither transferred to the proper agency nor returned to the claimant." Bukala v. United States, 854 F.2d 201, 203 (7th Cir. 1988). However, "courts have allowed constructive filing only where the wrong agency received the claim and had ample time to transfer it to the appropriate agency before the statute of limitations expired, but failed to do so." Johnson v. United States, 906 F. Supp. 1100, 1007 (S.D.W.Va. 1996).
It is undisputed that the decedent died on July 11, 1999. It is also undisputed that plaintiffs' administrative tort claim was filed on July 10, 2001, one day prior to the expiration of the two-year statute of limitations. Relying on subsection (b)(1) of the federal regulation, the government contends that service of plaintiffs' administrative tort claim on the VA one day prior to the expiration of the statute of limitations for harm caused by the Secret Service is insufficient to satisfy the statutory requirement that an administrative claim be timely presented to the "appropriate Federal agency." 28 U.S.C. §§ 2401(b), 2675(a). The government argues that plaintiffs' claim is untimely because it was not presented to the Secret Service and it was not presented to the VA in sufficient time to permit the VA to transfer plaintiffs' administrative claim to the Secret Service prior to the expiration of the statute of limitations. With respect to the latter argument, the government asserts that plaintiffs' cannot claim that their administrative tort claim was constructively filed because one day would have been an insufficient time to effect a transfer to the Secret Service.
The Court is unpersuaded by the government's argument because subsection (b)(1) and the cases upon which the government relies do not apply to the facts of this case. By its terms, the regulatory transfer provision applies when an administrative tort claim is presented to an agency "other" than an agency "whose activities gave rise to the claim." § 14.2(b)(1). Courts have construed and applied the transfer regulation when an administrative claim was presented to or misdelivered to the "wrong" agency, i.e., an agency not implicated by the claimants' claim. Bakula, 854 F.2d at 202-03 (permitting constructive filing of an administrative tort claim addressed to the VA but misdelivered to the EEOC); Johnson, 906 F.Supp. at 1107 (declining to find that a claim was timely constructively filed when the claim alleged that the USDA's activities gave rise to the claim, but the claim was misdelivered to the United States Attorney at the eleventh hour); Lotrionte v. United States, 560 F. Supp. 41, 42 (S.D.N.Y. 1983) (finding that a wrongful death claim against the VA was not timely filed by delivery to the Public Health Service because the Public Health Service had nothing to do with claims against the VA and the claim was filed at the end of the two-year period of limitation leaving insufficient time to permit a timely transfer).
Plaintiffs' administrative tort claim involved conduct of the VAMC and the claim was addressed and properly delivered to the VA. Although plaintiffs' administrative claim raised allegations that implicated the actions of more than one federal agency, transfer of plaintiffs' administrative tort claim would have been inappropriate because the conduct of the VAMC gave rise to plaintiffs' allegations asserted in their administrative tort claim. Plaintiffs' medical malpractice and invasion of privacy claims are clearly premised on the alleged conduct of the VAMC. Moreover, to the extent that plaintiffs allegations are asserting a claim against the Secret Service for its conduct, such a claim cannot be as neatly separated from plaintiffs' claims against the VAMC as the government's argument suggests. The thrust of plaintiffs' claims with respect to the Secret Service is that the Secret Service was allegedly permitted to threaten, harass, and interrogate the decedent while he was hospitalized at the VAMC as a result of the VAMC's violations of its own security regulations regarding the decedent's privacy. As alleged in both plaintiffs' administrative tort claim and the complaint, the conduct of the VAMC and the Secret Service combined to cause the decedent emotional and physical distress.
See Comp., ¶ 15; Rec. Doc. No. 22, Ex. B., Pl. Administrative Claim, at 2, #10.
The circumstances present in this case are contemplated by subsection (b)(2) of the federal regulation upon which the government relies. 28 C.F.R. § 14.2(b)(2) provides:
When more than one Federal agency is or may be involved in the events giving rise to the claim, an agency with which the claim is filed shall contact all other affected agencies in order to designate the single agency which will thereafter investigate and decide the merits of the claim. In the event that an agreed upon designation cannot be made by the affected agencies, the Department of Justice shall be consulted and will thereafter designate an agency to investigate and decide the merits of the claim. Once a determination has been made, the designated agency shall notify the claimant that all future correspondence concerning the claim shall be directed to that Federal agency. All involved Federal agencies may agree either to conduct their own administrative reviews and to coordinate the results or to have the investigations conducted by the designated Federal agency, but, in either event, the designated Federal agency will be responsible for the final determination of the claim.Id. (emphasis supplied). The plain language of subsection (b)(2) imposes an affirmative obligation on the government to contact "all other affected agencies" and coordinate the investigation and determination of administrative tort claims that may involve more than one federal agency. See id. There is no provision in subsection (b)(2) for transfer of such a claim and no requirement that such a claim be filed with every affected agency. The Court finds that under the circumstances present in this case, plaintiffs presented their administrative tort claim to "the appropriate Federal agency," 28 U.S.C. § 2675(a), and the government is not entitled to dismissal for lack of jurisdiction on that ground. Accordingly, the Court turns to the merits of plaintiffs' claims.
28 C.F.R. § 14.2(b)(3) addresses the claims procedure when a claimant does present a claim to more than one federal agency. See § 14.2(b)(3). However, there is no requirement that claimants filing claims against multiple agencies with respect to the same incident file the claim with each affected agency.
The Court notes, however, that to say that plaintiffs' submitted their claim to the appropriate federal agency does not completely answer the question of whether all of plaintiffs' claims were submitted timely. The government's reliance on the transfer provision appears to rest on its assumption that all of plaintiffs' claims arise within the context of plaintiffs' wrongful death action and, therefore, the date of the decedent's death, July 11, 1999, is the date on which all of plaintiffs' claims accrued. Focusing on that date, the United States does not contest that plaintiffs' presentment of the administrative tort claim, on July 10, 2001, was timely filed and presented to the appropriate agency in accordance with 28 U.S.C. §§ 2401(b) and 2675(a) to the extent that the claims pertain to the VAMC. Instead, the government argues only for the dismissal of plaintiffs' claims against the Secret Service based on the assertion that the claims were presented to an improper agency in insufficient time to effect a transfer.
Notwithstanding the government's recognition that plaintiffs have alleged several discrete claims, the government fails to recognize that the timeliness of each claim against each affected agency must be assessed independently. See Raddatz v. United States, 750 F.2d 791, 795 (9th Cir. 1984) (holding that when an FTCA plaintiff alleges tort claims involving more than one federal agency, the timeliness of each claim is assessed independently). "A cause of action under federal law accrues within the meaning of § 2401(b) 'when the plaintiff knows or has reason to know of the injury which is the basis of the action.'" Ramming v. United States, 281 F.3d 158, 162 (5th Cir. 2001) (quoting Brown v. Nationsbank Corp., 188 F.3d 579, 589-90 (5th Cir. 1999) (internal quotes and citations omitted)). Therefore, even if plaintiffs' claims were presented to the appropriate federal agency, the timeliness of each claim submitted to such agency depends on when such claim accrued. There are no facts alleged in the administrative tort claim presented to the VA, the complaint, or any evidence before this Court tending to show when the plaintiffs knew or had reason to know of the facts giving rise to their claims that the VAMC allegedly violated the decedent's privacy rights, allegedly violated its own security and privacy regulations, and that the Secret Service gained access to the decedent and allegedly threatened and harassed him. Therefore, this Court cannot determine, on the present motion, when all of plaintiffs' claims accrued.
B. Wrongful Death/Medical Malpractice
The United States moves for summary judgment dismissing plaintiff's medical malpractice claim because plaintiffs have failed to tender any expert witness reports in accordance with this Court's preliminary conference order. The government argues that, in this case, expert testimony will be necessary to establish the applicable standard of care and such testimony will be required to support plaintiffs' claim that the physicians at the VAMC breached such standard of care. In support of the motion, the government submits two unsworn documents from two Louisiana doctors stating, in relevant substance, that myelofibrosis is a terminal condition, that transfusions were the only available treatment given the decedent's other medical problems, and that because the decedent failed to respond positively to transfusions, the decision to use pallative care rather than to continue with the transfusions was appropriate.
This Court's preliminary conference order provides that written reports of plaintiffs' experts, including treating physicians, who may be witnesses for plaintiffs shall have been provided to defendant no later than December 20, 2004. Rec. Doc. No. 7, at 2. This Court's order also provided that "[t]he Court will not permit any witness, expert or fact, to testify . . . unless there has been compliance with this Order as it pertains to the witness . . . without an order to do so issued on motion for good cause shown." Id. at 3.
See Rec. Doc. No. 14, Exs. A B.
In order to establish a claim for medical malpractice in Louisiana, a plaintiff must establish by a preponderance of the evidence the standard of care applicable to the particular physician, a violation by the physician of that standard of care, and a causal connection between the physician's alleged negligence and the plaintiff's injuries. La.Rev.Stat. § 9:2794(A); Pfiffner v. Correa, 643 So.2d 1228, 1233 (La. 1994); Martin v. East Jefferson Gen. Hosp., 582 So.2d 1272, 1276 (La. 1991). Prior to 1994, a majority of the Louisiana court of appeal cases had held that expert testimony was necessary in order for a plaintiff to sustain a medical malpractice claim. See Pfiffner, 643 So.2d at 1233 (citing cases). However, in Pfiffner, the Louisiana Supreme Court held that "expert testimony is not always necessary in order for a plaintiff to meet his burden of proof in establishing a medical malpractice claim." Id. at 1234. The Pfiffner court stated that there were certain cases involving obvious negligence for which no expert testimony would be required. Id. For example, a lay person can infer negligence "where the physician does an obviously careless act, such as fracturing a leg during examination, amputating the wrong arm, dropping a knife, scalpel, or acid on a patient, or leaving a sponge in a patient's body." Id. at 1233. The court also stated that expert testimony is not necessary when the defendant/physician testifies as to the standard of care and his breach of that standard of care, or when the alleged negligence consists of violating a statute and/or the hospital's bylaws. Id. at 1234. However, the Pfiffner court noted that in most cases, because of the complex medical and factual issues involved, a plaintiff without independent expert testimony will likely fail to sustain his burden of proving his claim of medical malpractice unless the medical and factual issues are such that a lay jury could perceive negligence in the physician's conduct as well as any expert could, or the defendant/physician testifies as to the standard of care and there is objective evidence, including the physician's testimony, that demonstrates a breach of the applicable standard of care. Id.
Applying these principles, courts have continued to require expert testimony in medical malpractice cases when the medical and factual issues are complex and are outside the province of a lay juror's common knowledge. See Coleman v. Deno, 813 So.2d 303, 317 (La. 2001) (holding that expert testimony was required both to establish whether the standard of care for an emergency physician was breached and to evaluate such a claim); Edwards v. Raines, 799 So.2d 1184, 1188 (La.App. 2d Cir. 2001) (holding that expert medical testimony is required to determine whether a physician breached the standard of care applicable to endoscopic procedures); Vinson v. Salmon, 786 So.2d 913, 916 (La.App. 2d Cir. 2001) (holding that expert medical testimony is required to establish a breach of the standard of care with respect to the treatment and diagnosis of an acid burn).
In this case, plaintiff has alleged that the physicians and staff and the VAMC were negligent in failing to give the decedent a blood transfusion which, according to plaintiffs, was required to save the decedent's life. The Court finds that the medical and factual issues in this case do not fall within the Pfiffner "obvious negligence" exception to the general rule that "expert witnesses who are members of the medical profession are necessary sources of proof in medical malpractice actions to determine whether the defendant doctor possessed the requisite decree of skill and knowledge, or failed to exercise reasonable care and diligence." Martin, 582 So.2d at 1277; Ferrell v. Minden Family Care Ctr., 704 So.2d 969, 973 (La.App. 2d Cir. 1998) (applying the general rule in the context of a case involving the treatment of a woman in anaphylactic shock).
Rec. Doc. No. 1, ¶ 10.
Plaintiffs have the burden of proving the degree of skill and knowledge possessed by physicians practicing in Louisiana, the degree of care ordinarily exercised by Louisiana physicians treating myelofibrosis and that the VAMC physician either lacked the required degree of skill and knowledge, or failed to exercise reasonable care in failing to administer a blood transfusion to treat the decedent's myelofibrosis. See La.Rev.Stat. § 9:2794(A). Such factual and medical issues are beyond a lay factfinder's common knowledge and, accordingly, the Court finds that plaintiffs cannot sustain their burden of proof absent expert medical testimony.
Plaintiffs have not offered any expert medical evidence in opposition to the government's motion for summary judgment nor do they suggest that they can meet their burden of proof at trial. Instead, plaintiff's argue that summary judgment is inappropriate in this case because the government failed to disclose the statements from the physicians submitted in support of the summary judgment motion in violation of Fed.R.Civ.P. 26(a)(1). Plaintiffs argue that the government's failure to provide plaintiffs with the physicians' opinions is unfairly prejudicial and that such failure requires denial of the government's summary judgment motion.
The physicians' statements submitted by the government are unsworn, not in affidavit form, and do not contain any indication that the physicians are qualified to render medical opinions in this case. As such, those documents do not constitute competent summary judgment evidence and the Court shall disregard the physicians' opinions stated therein. See Duplantis v. Shell Offshore, Inc., 948 F.2d 187, 191 (5th Cir. 1991) (holding that an unsworn expert letter not in affidavit form and not containing information with respect to expert qualifications is incompetent summary judgment evidence). Because the Court will not consider the documentary evidence submitted by the government, plaintiffs are not under any obligation to rebut that evidence.
However, the government may be entitled to summary judgment even absent the documentary evidence submitted in support of the motion. As stated by the Fifth Circuit:
[I]f the moving party will not bear the burden of proof at trial, "[e]ver since if not before Celotex, '[t]he moving party need not produce evidence negating the existence of a material fact, but need only point out the absence of evidence supporting the nonmoving party's case.'" Saunders v. Michelin Tire Corp., 942 F.2d 299, 301 (5th Cir. 1991) (quoting Latimer v. Smithkline French Laboratories, 919 F.2d 301, 303 (5th Cir. 1990)).Id. at 190. The government has pointed to the absence of expert medical testimony which, as this Court has held, is necessary to establish an essential element of plaintiffs' medical malpractice claim. Therefore, in accordance with established summary judgment procedure, once such absence of evidence has been identified, plaintiffs must "go beyond the pleadings and by [their] own affidavits, or by the 'depositions, answers to interrogatories, and admissions on file,' designate 'specific facts showing that there is a genuine issue for trial.'" Celotex, 477 U.S. at 324, 106 S.Ct. at 2553; Duplantis, 943 F.2d at 592. Because plaintiffs cannot produce any expert medical testimony to establish the applicable standard of care and a breach thereof, the government is entitled to summary judgment dismissing plaintiffs' medical malpractice/wrongful death claim against the VAMC.
To the extent that plaintiffs claim that the conduct of the Secret Service caused or contributed to the decedent's death, such a claim also fails for lack of expert testimony with respect to medical causation. "Even if a jury would be able to infer negligence from a physician's conduct [without expert testimony], plaintiff must still provide expert testimony to establish a causal connection between his injury and that negligence." Blazevich v. Walker, 2003 WL 21135715, *3 (May 14, 2003 E.D.La.). In the context of a medical malpractice wrongful death action, a plaintiff must demonstrate that a defendant's conduct was a "substantial factor" in causing a decedent's death. Hastings, 498 So.2d at 720. A defendant's conduct "need not be the only causative factor; it need only increase the risk of harm." Id. (citations omitted). Given the undisputed fact that the decedent was hospitalized with a diagnosis of myelofibrosis, a reasonable factfinder could not, in the absence of expert medical testimony, conclude that any of the Secret Service's conduct alleged in the complaint was a substantial factor in causing the decedent's death.
C. Invasion of Privacy/Assault/Intentional Infliction of Emotional Distress Claims
Plaintiffs allege that the VAMC violated its own privacy regulations while the decedent was hospitalized at the VAMC by permitting access to the decedent by the Secret Service. Plaintiffs have also alleged that certain unidentified Secret Service agents "constantly interrogated the decedent, and threatened to give him lethal injections to put him out of his misery since he was critically ill." Plaintiffs allege that the conduct of the VAMC and the Secret Service increased the decedent's mental agony and caused him needless pain and suffering.
See Comp., ¶ 11-13.
Comp., ¶ 14.
See Comp., ¶¶ 13, 15.
In support of summary judgment, the government raises two arguments. First, the government argues that summary judgment is appropriate because there is an absence of record evidence with respect to any contact between the Secret Service and the decedent while he was hospitalized at the VAMC. Second, the government argues that, with respect to the conduct of the Secret Service, plaintiffs' claim should be construed as an assault claim and, as such, it is barred against the United States pursuant to the FTCA's limitation on the waiver of sovereign immunity with respect to assault claims. See 28 U.S.C. § 2680(h). Because the government's second argument is a jurisdictional argument based upon the United States' sovereign immunity, the Court turns to that argument first.
28 U.S.C. § 2680(h) provides that the FTCA does not apply to:
Any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights: Provided, That, with regard to acts or omissions of investigative or law enforcement officers of the United States Government, the provisions of this chapter and section 1346(b) of this title shall apply to any claim arising, on or after the date of the enactment of this proviso, out of assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution. For the purpose of this subsection, "investigative or law enforcement officer" means any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law.
The United States has "generally waived it sovereign immunity from tort liability for the negligent or wrongful acts or omissions of its agents who act within the scope of their employment." Truman v. United States, 26 F.3d 592, 594 (5th Cir. 1994). "However, the exceptions to the FTCA's waiver of sovereign immunity that appear in 28 U.S.C. § 2680 limit the federal courts' jurisdiction to hear FTCA claims and, if applicable, bar a suit brought against the government." Id. One exception in § 2680 retains the government's sovereign immunity for "[a]ny claim arising out of assault, [or] battery. . . ." § 2680(h). Ordinarily, the FTCA bars a claim based upon conduct that constitutes an assault even though the same conduct may constitute another tort not listed in § 2680(h). See id. The government contends that plaintiffs' claim is barred by § 2680(h) because, regardless of the label attached to plaintiffs' claims regarding the Secret Service, the FTCA's waiver of sovereign immunity does not extend to conduct which in essence constitutes assault or battery. See id. ("If the conduct upon which a claim is based constitutes a claim 'arising out of any one of the torts listed in section 2680(h), then the federal courts have no jurisdiction to hear that claim").
The government's argument is unavailing because § 2680(h) includes an important proviso which is directly implicated in this case:
Provided, That, with regard to acts or omissions of investigative or law enforcement officers of the United States Government, the provisions of this chapter and section 1346(b) of this title [, the FTCA,] shall apply to any claim arising . . . out of assault [and/or] battery. . . . For the purpose of this subsection, "investigative or law enforcement officer" means any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law.
Because plaintiffs allegations involve conduct allegedly committed by the Secret Service, § 2680(h) does not bar such a claim regardless of whether plaintiffs' claim arises out of conduct which constitutes an assault. Accordingly, the government is not entitled to summary judgment dismissing plaintiffs' claims based upon the alleged conduct of the Secret Service based upon the limitation on the waiver of the United States' sovereign immunity contained in § 2680(h).
Agents of the Secret Service are unquestionably "investigative or law enforcement" officers within the meaning of the statute. See 18 U.S.C. § 3056 (setting forth the power of the United States Secret Service to arrest and execute warrants).
Turning to the government's first argument, the United States contends that there is no evidence that the Secret Service had any contact with the decedent. In its initial summary judgment motion, the government asserts that the VA has not been able to learn anything about plaintiffs' allegations that the Secret Service had any contact with the decedent. Additionally, in conjunction with its motion to dismiss (converted to a motion for summary judgment), the government submits the declaration of an administrative officer of the Secret Service stating under oath that a search of agency-wide files maintained electronically by the Secret Service reveal no record involving the decedent, John Henry Thomas.
See Rec. Doc. No. 14, memorandum in support, at 1 n. 1.
See Rec. Doc. No. 22, Ex. A, declaration of Olga Bass.
In response, to the government's motion for summary judgment, plaintiff, Elizabeth Thomas, attached an unsworn signed statement purporting to be an affidavit which states that she witnessed the Secret Service enter her brother's hospital room and threaten and harass him. In response to the declaration of the administrative officer of the Secret Service, Elizabeth Thomas attached an affidavit in which she averred that she is the estranged wife of William Jefferson Clinton. Also, Ms. Thomas attached a second unsworn signed statement in which she asserts, inter alia, that (1) the decedent had received several telephone calls from "a Ms. Janet Reno" at his home while she was residing with the decedent at his home prior to his hospitalization; (2) that she had answered such telephone calls and overheard Hillary Rodham Clinton in the background making a derogatory reference to her resemblance to Aunt Jemima; and (3) that she overheard Mrs. Clinton express worry that Ms. Thomas would seek maintenance as President Clinton's first wife. Ms. Thomas alleged status as President Clinton's first wife appears to be the basis for the Secret Service's alleged contact with her brother while he was hospitalized at the VAMC.
See Rec. Doc. No. 19, Ex. A.
See Rec. Doc. No. 25, Exs. A, B.
The Court finds that plaintiffs' evidence is insufficient to create a genuine issue of material fact with respect to the allegations of invasion of privacy and assault based upon the presence of the Secret Service. Plaintiffs' evidence, at best, merely creates a "metaphysical doubt as to the material facts" and is rife with "conclusory allegations" and "unsubstantiated assertions" which are insufficient to sustain their burden on summary judgment. See Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (citations omitted)
Accordingly, for the above and foregoing reasons,
IT IS ORDERED that the motion to dismiss for lack of subject matter jurisdiction is DENIED. IT IS FURTHER ORDERED that the government's motions for summary judgment are GRANTED and plaintiffs' claims DISMISSED WITH PREJUDICE, each party to bear its own costs.