United States District Court, D. Kansas
JEFFREY A. CLAYTON and SARAH DUFF, Plaintiffs,
UNITED STATES OF AMERICA and MARK WISNER, Defendants.
MEMORANDUM AND ORDER
MURGUIA United States District Judge
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.
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.
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.
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
moves to dismiss the claims of plaintiff Sarah Duff because
she failed to file an administrative claim. Plaintiffs did
not respond this argument.
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.
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
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).
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.
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, ...