United States District Court, D. Kansas
MEMORANDUM AND ORDER
MURGUIA UNITED STATES DISTRICT JUDGE
Steven Lafrinere brings this case against defendants United
States of America and Mark Wisner, pursuant to the Federal
Tort Claims Act (“FTCA”), 28 U.S.C. §§
1346(b), 2671 and 38 U.S.C. § 7316(a), (f), alleging
that Wisner conducted improper and/or unnecessary physical
examinations of plaintiff and elicited unnecessary private
information. Plaintiff also alleges several state law claims.
This matter is before the court on defendant United States of
America’s Motion to Dismiss (Doc. 17). Defendant argues
that plaintiff’s complaint should be dismissed for lack
of subject matter jurisdiction and because it fails to state
a claim under Federal Rules of Civil Procedure 12(b)(1) and
(6). Plaintiff initially failed to timely respond to the
motion. But upon the court’s order, plaintiff showed
good cause for the oversight, and the court will therefore
consider the merits of plaintiff’s response brief. For
the reasons set forth below, the court grants
defendant’s motion in part and denies it in part.
is a veteran who sought treatment at the Dwight D. Eisenhower
VA Medical Center (“VA”) located in Leavenworth,
Kansas. Wisner treated and provided medical care for
plaintiff. Wisner was a physician’s assistant for the
VA, and is a defendant in more than eighty pending civil
suits before this court.
claims in this case are similar to claims in a number of
other cases this court has considered. See, e.g.,
Anasazi v. United States, No. 16-2227, 2017 WL
2264441, at *1–*2 (D. Kan. May 23, 2017); Doe D. E.
v. United States, No. 16-2162, 2017 WL 1908591, at
*1–*2 (D. Kan. May 10, 2017). The court will not repeat
the details of them here. Highly summarized, they are: (1)
Count I: Negligence – Medical Malpractice; (2) Count
II: Negligent Supervision, Retention and Hiring; (3) Count
III: Negligent Infliction of Emotional Distress; (4) Count
IV: Outrage; (5) Count V: Battery; and (6) Count VI: Invasion
the court has set forth the governing legal standards in a
number of other cases involving the same parties and similar
claims. The court does not repeat them here, but applies them
as it has in the past. See, e.g., Anasazi,
2017 WL 2264441, at *2; Doe D. E., 2017 WL 1908591,
the FTCA, the United States has waived its sovereign immunity
for injuries caused by the “negligent or wrongful act
or omission” of a federal government employee while
that employee is “acting within the scope of his office
or employment, 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).
court has repeatedly held that plaintiffs with similar
allegations to those here have sufficiently alleged that
Wisner’s conduct was within the scope of his
employment. See, e.g., Doe BF v. United
States, No. 17-2088, 2017 WL 4355577, at *4–*5 (D.
Kan. Oct. 2, 2017); Almquist v. United States, No.
17-2108, 2017 WL 4269902, at *4–*5 (D. Kan. Sept. 25,
2017); Anasazi, 2017 WL 2264441, at *4; Doe D.
E., 2017 WL 1908591, at *4. The court also has held that
plaintiffs with similar allegations have presented plausible
claims that the VA Immunity Statute applies, allowing them to
pursue remedies under the FTCA for claims arising out of a
battery. See, e.g., Doe BF, 2017 WL
4355577, at *5; Almquist, 2017 WL 4269902, at *5;
Anasazi, 2017 WL 2264441, at *5; Doe D. E.,
2017 WL 1908591, at *4. The court likewise allows plaintiff
to proceed in this case.
II – Negligent Supervision, Hiring, and
court has previously dismissed other plaintiffs’ claims
for negligent hiring and retention based on the discretionary
function exception to the FTCA. See, e.g.,
Anasazi, 2017 WL 2264441, at *8–*9; Doe D.
E., 2017 WL 1908591, at *8. This outcome remains
appropriate despite plaintiff’s argument that the VA
had mandatory duties under the U.S. Constitution. Doe
BF, 2017 WL 4355577, at *5–*6; Almquist,
2017 WL 4269902, at *5–*6.
the negligent supervision claim, the court has allowed this
claim to proceed in the past. See, e.g., Doe
BF, 2017 WL 4355577, at *6; Almquist, 2017 WL
4269902, at *6; Anasazi, 2017 WL 2264441, at *7;
Doe D. E., 2017 WL 1908591, at *6. For the reasons
the court has set forth in other related opinions,
defendant’s motion is denied with respect to
plaintiff’s claim for negligent supervision.
III and IV – Negligent Infliction of Emotional Distress
court has previously held, a claim for negligent infliction
of emotional distress must include a qualifying physical
injury. Majors v. Hillebrand, 349 P.3d 1283, 1285
(Kan. Ct. App. 2015). This rule does not apply, however, when
the conduct is willful or wanton. Id. (citing
Hoard v. Shawnee Mission Med. Ctr., 662 P.2d 1214,
1219–20 (Kan. 1983)). Plaintiff attempts again to plead
a plausible claim by alleging willful and wanton conduct, but
this court has already held that this characterization of
plaintiff’s claim is duplicative of plaintiff’s
outrage claim. Again, the court dismisses plaintiff’s
claim for negligent infliction of emotional distress in part
for failure to allege a physical injury and in part as
duplicative of the outrage claim.
court has allowed plaintiffs to proceed with outrage claims
in all of the cases previously identified. See,
e.g., Doe BF, 2017 WL 4355577, at *7;
Almquist, 2017 WL 4269902, at *7; Anasazi,
2017 WL 2264441, at *10; Doe D. E., 2017 WL 1908591,
at *9–*10. Plaintiff ...