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Cox v. United States

United States District Court, D. Alaska

May 3, 2019

JOHN COX, as personal representative for the ESTATE OF GENGHIS MUSKOX, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          ORDER

          H. RUSSEL HOLLAND, UNITED STATES DISTRICT JUDGE

         Motion to Strike; Motion for Summary Judgment

         Defendant moves for summary judgment.[1] This motion is opposed.[2] In support of his opposition, plaintiff offers an expert affidavit.[3] Defendant moves to strike plaintiff's expert affidavit.[4] The motion to strike is opposed.[5] Oral argument was requested on the motion for summary judgment and has been heard.

         Facts

         Plaintiff is John Cox, as the personal representative for the Estate of Genghis Muskox. Defendant is the United States of America.

         Paul Vermillion served in the United States Army from January 4, 2005 through August 22, 2007.[6] During part of that time, Vermillion was deployed to Iraq.[7]

         After his discharge, Vermilion “received care at VA facilities in Honolulu, Hawaii; Anchorage, Alaska; Dallas, Texas; San Antonio, Texas; and Long Beach, California[.]”[8] It is undisputed that Vermillion was diagnosed with PTSD and treated by various VA medical providers for his PTSD.

         On December 5, 2013, Vermillion killed Genghis Muskox. Vermillion was charged with first degree murder the next day.[9] On August 4, 2016, Vermillion entered into a plea agreement with the State of Alaska and pled guilty to manslaughter. At the sentencing hearing, the State explained that it accepted the plea because there was a risk of an acquittal either based on an accident theory or a self-defense theory.[10]

         On November 23, 2015, plaintiff filed a complaint in State Superior Court against Vermillion and his father, alleging, among other things, that “Vermillion negligently and/or recklessly and/or intentionally struck and/or shot Genghis Muskox in Cooper Landing, Alaska, thereby causing serious injury and the death of Genghis Muskox for which the defendants are liable.”[11] That case settled and was dismissed pursuant to the parties' stipulation on April 20, 2017.[12]

         On September 26, 2016, plaintiff commenced this action in which plaintiff asserts a negligence claim under the Federal Tort Claims Act (FTCA). Plaintiff alleges that defendant “provided inadequate medical care to Paul Vermillion, including but not limited to, mental health and/or drug and/or alcohol screening and/or treatment, which was below the standard of care.”[13] Plaintiff alleges that “defendant's negligent and/or grossly negligent and/or reckless medical care of Paul Vermillion was a substantial factor in causing the death of Genghis Muskox. . . .”[14]

         On February 3, 2017, defendant filed a third-party complaint against Paul Vermillion for allocation of fault.[15] Defendant alleged that if the court were to find defendant liable to plaintiff, the majority of fault should be allocated to Vermillion.[16] Defendant's third-party complaint was dismissed on April 10, 2017 because “[f]ault can be allocated in this action to the third-party defendant, without his continued presence in the litigation.”[17]

         Defendant now moves for summary judgment on plaintiff's FTCA claim.

         Discussion

         Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The initial burden is on the moving party to show that there is an absence of genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). If the moving party meets its initial burden, then the non-moving party must set forth specific facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). In deciding a motion for summary judgment, the court views the evidence of the non-movant in the light most favorable to that party, and all justifiable inferences are also to be drawn in its favor. Id. at 255. “[T]he court's ultimate inquiry is to determine whether the ‘specific facts' set forth by the nonmoving party, coupled with undisputed background or contextual facts, are such that a rational or reasonable jury might return a verdict in its favor based on that evidence.” T.W. Elec. Service, Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 631 (9th Cir. 1987).

         Defendant first argues that it is entitled to summary judgment because the court lacks subject matter jurisdiction. “The FTCA ‘waives the sovereign immunity of the United States for actions in tort' and ‘vests the federal district courts with exclusive jurisdiction over suits arising from the negligence of Government employees.'” Valadez-Lopez v. Chertoff, 656 F.3d 851, 855 (9th Cir. 2011) (quoting Jerves v. United States, 966 F.2d 517, 518 (9th Cir. 1992)). “This waiver allows the government to be sued ‘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.'” Morales v. United States, 895 F.3d 708, 713 (9th Cir. 2018) (quoting 28 U.S.C. § 1346(b)(1)). “‘[I]n order to state a claim within the FTCA's waiver of sovereign immunity, [a plaintiff] must allege negligence (1) by ‘officers or employees of a[] federal agency[.]'” Valadez-Lopez, 656 F.3d at 858 (quoting 28 U.S.C. § 2671)). “Essential to establishing jurisdiction is knowing who provided the care in order to determine if those providers were in fact ‘employees' of the Government.” Morris v. United States, No. CIV 06-2058-PHX-SMM, 2007 WL 1076695, at *3 (D. Ariz. April 6, 2007).

         Defendant argues that the court lacks subject matter jurisdiction because plaintiff has not identified any specific provider who provided negligent care to Vermillion. Rather, plaintiff has generally alleged that “defendant provided inadequate medical care to Paul Vermillion[.]”[18] Moreover, defendant argues that plaintiff's expert, Dr. Goldstein, did not identify any specific provider who allegedly provided inadequate medical care. At his deposition, Dr. Goldstein was asked “are you saying generally the VA failed, or can you point to a specific provider that” failed to provide adequate medical care to Vermillion.[19] Dr. Goldstein answered, “[n]o specific provider but that the VA providers, and there were a number of them, over a long period of time at some point [threw] in the towel and did not take measures to ensure [Vermillion] was receiving effective treatment for his PTSD. . . .”[20]Dr. Goldstein testified that he assumed all of Vermillion's providers were VA employees.[21]Dr. Goldstein testified that “I can't pinpoint a specific doctor. It's the whole group of his providers over the years [who] failed to come up with an effective treatment plan which included . . . first line agents that would be likely to control and benefit [Vermillion's] PTSD symptoms.”[22] Dr. Goldstein agreed that he was “saying generally as a whole the [VA] failed Mr. Vermillion in treating him[, ]” that “[n]obody stepped forward to coordinate and implement a treatment plan that was likely to be effective.”[23] Dr. Goldstein was asked whether he was “going to surprise [defense counsel] at trial by coming up with” “a specific instance where a specific doctor provided inadequate care, ” and Dr. Goldstein replied: “Well, [Vermillion] had multiple providers over the course of many years. So I can't single out any one provider, and there won't be any last minute surprises in that regard.”[24]

         Defendant argues that because plaintiff has not identified a specific provider or a specific act of negligence, there is no way to determine whether plaintiff's FTCA claim is against a government employee. Defendant argues that it is quite possible that some of the VA providers were independent contractors, against whom FTCA claims cannot be asserted. See Edison v. United States, 822 F.3d 510, 517 (9th Cir. 2016) (quoting 28 U.S.C. § 2671) (“[t]he FTCA's limited waiver of sovereign immunity explicitly excludes ‘any contractor with the United States' from its definition of ‘[e]mployee of the government'”).

         Plaintiff has identified specific individuals who failed to provide adequate care to Vermillion. Dr. Goldstein determined that all of the medical providers at the VA who treated Vermillion after 2009 failed to provide adequate care for Vermillion's PTSD. Plaintiff identified these individuals in his response to defendant's interrogatory that asked, in part, for plaintiff to “[s]tate and describe in full and complete detail each act and/or omission on the part of the United States, its employees, agents and/or servants which you contend constituted negligence as referred to in the Complaint[.]”[25] Plaintiff is alleging that Vermillion's course of treatment was inadequate. This list sufficiently identifies the medical providers who were ...


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