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Clayton v. United States

United States District Court, D. Kansas

April 11, 2018

JEFFREY A. CLAYTON and SARAH DUFF, Plaintiffs,
v.
UNITED STATES OF AMERICA and MARK WISNER, Defendants.

          MEMORANDUM AND ORDER

          CARLOS MURGUIA United States District Judge

         Plaintiffs Jeffrey Clayton and Sarah Duff bring 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 Jeffrey Clayton and elicited unnecessary private information. Plaintiffs also allege several state law claims. This matter is before the court on defendant United States of America's Motion to Dismiss (Doc. 13). Defendant argues that plaintiffs' 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). For the reasons set forth below, the court grants defendant's motion in part and denies it in part.

         Plaintiff Jeffrey Clayton 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 Clayton. Plaintiff Sarah Duff is Clayton's wife. Wisner was a physician's assistant (“PA”) for the VA, and is a defendant in more than eighty pending civil suits before this court.

         The claims in this case are virtually identical to those in a number of other cases this court has considered. See, e.g., Anasazi v. United States, No. 16-2227-CM, 2017 WL 2264441, at *1-*2 (D. Kan. May 23, 2017); Doe D. E. v. United States, No. 16-2162-CM, 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 of Privacy - Intrusion Upon Seclusion.

         Likewise, the court has set forth the governing legal standards in a number of other cases involving the same parties and 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, at *2.

         Plaintiff Sarah Duff

         Defendant moves to dismiss the claims of plaintiff Sarah Duff because she failed to file an administrative claim. Plaintiffs did not respond this argument.

         To establish subject matter jurisdiction under the FTCA, a plaintiff must present all causes of action in an administrative claim. Haceesa v. United States, 309 F.3d 722, 734 (10th Cir. 2002) (“If there are multiple claimants in an FTCA case, each claimant must individually satisfy the jurisdictional requirements of filing a proper claim.”) Sarah Duff did not file an administrative claim, and the court therefore dismisses her claims for lack of subject matter jurisdiction. In any event, as this court has previously held, Kansas does not recognize a separate cause of action for spousal loss of consortium due to injuries to the other spouse. Sayre v. City of Lawrence, No. 13-2291-RDR, 2013 WL 4482703, at *2 (D. Kan. Aug. 21, 2013) (citation omitted). The court would therefore dismiss Sarah Duff's claims for loss of consortium even if she had properly exhausted them.

         Because the court dismisses the claims of plaintiff Sarah Duff in their entirety, the references to “plaintiff” throughout the remainder of this order pertain to plaintiff Jeffrey Clayton.

         Scope of Employment

         Under 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).

         As defendant acknowledges, this 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.

         Statute of Repose

         Defendant claims that at least some of plaintiff's claims are barred by Kansas's four-year statute of repose. See Kan. Stat. Ann. § 60-513(c) (stating that, with respect to a “cause of action arising out of the rendering of or the failure to render professional services by a health care provider, ” “in no event shall such an action be commenced more than four years beyond the time of the act giving rise to the cause of action”). Plaintiff disagrees, referencing four arguments made in other cases in opposition to defendant's position: (1) Section 60-513(c) does not apply to plaintiff's claims because Wisner was not a “health care provider”; (2) In any event, ...


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