Ortiz v. USA et al

Filing 76

ORDER. The United States' 37 Motion to Dismiss, converted to a motion for summary judgment pursuant to Fed. R. Civ. P. 56, is granted. Plaintiff's 58 Motion to Defer Ruling on Defendant USA's Motion to Dismiss [Doc. 37] and Allow Time for Discovery is denied. This case is dismissed in its entirety. Within 14 days of this Order, defendant United States of America may file its bill of costs with the Clerk of the Court. By Judge Philip A. Brimmer on 9/30/13.(mnfsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 12-cv-01731-PAB-KMT
JORGE ORTIZ, as next friend and parent of I.O., a minor,
Plaintiff,
v.
UNITED STATES OF AMERICA, by and through Evans Army Community Hospital,
Defendant.

ORDER

This matter is before the Court on the Motion to Dismiss [Docket No. 37] filed by
defendant the United States of America. Plaintiff Jorge Ortiz, as next friend and parent
of minor child I.O., asserts a claim of negligence against the United States of America
pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b) and §§ 26712680.1 Defendant requests that the Court dismiss plaintiff’s negligence claim pursuant
to Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction. Because defendant’s
Rule 12(b)(1) motion attacks the Court’s subject matter jurisdiction based on Feres v.
United States, 340 U.S. 135 (1950), the Court will convert defendant’s motion to

1

On December 20, 2012, the Court dismissed without prejudice the following
defendants: Kathryn M. Zamboni-Cutter, M.D., Stephen Jones, M.D., Donald Robinson,
M.D., Catherine Hadley, R.N., C.N.M., Kris Peters, R.N., Dodi Johnson, R.N., Carol
Putzi, R.N., Elizabeth DiCampli, R.N., Renee Williams, R.N., Ann Boland, R.N., Sunhee
Lee, R.N., Mary Goecker, R.N., Annie Mai, R.N., Andrea Novian, L.P.N., Theresa
Maximenko, L.P.N., Cindy Rau-Sobotka, C.R.N.A., Koko Cantrell, C.R.N.A., Emily
LeClair, C.R.N.A. from this case. Docket No. 61. The United States is now the only
remaining defendant.

dismiss into one for summary judgment given that jurisdictional issues are intertwined
with the merits of plaintiff’s case. Pringle v. United States, 208 F.3d 1220, 1224 (10th
Cir. 2000). However, as discussed below, additional discovery is not necessary to
resolve this motion on the merits because, even assuming disputed facts favorably to
plaintiff, plaintiff’s claims are barred by the Feres doctrine.
I. BACKGROUND2
On March 16, 2009, Captain Heather Ortiz was admitted to Evans Army
Community Hospital (“EACH”), a military hospital located on the Fort Carson Army base
in Colorado Springs, Colorado, for the operative delivery of her child, I.O., via
caesarean section. Docket No. 8 at 6, ¶ 49. In March 2009, Captain Ortiz was an
active duty service member with the United States Air Force. Docket No. 37-1 at 1,
¶¶ 2-3. In preparation for the caesarean section, registered nurse Elizabeth DiCampli
administered Zantac,3 a drug commonly used as a preoperative medication to prevent
aspiration of gastric acid, to Captain Ortiz. Docket No. 8 at 7, ¶ 56; Docket No. 37-2 at
1-2, ¶¶ 6-8. DiCampli knew or should have known that Captain Ortiz was allergic to
Zantac. Docket No. 8 at 7, ¶¶ 51-52. After administering Zantac, DiCampli left the

2

The following facts are drawn from plaintiff’s Redacted Complaint [Docket No. 8]
and declarations the parties submitted in connection with the motion to dismiss [Docket
Nos. 37-1, 37-2 and Docket Nos. 57-1 to 57-3]. These facts are assumed to be true
unless otherwise indicated.
3

Zantac is the trade name for ranitidine, which is a drug commonly administered
prior to a caesarian section in order to prevent pulmonary damage. Docket No. 57-1 at
2, ¶ 5. Dr. Kathryn Zamboni Cutter states in her affidavit that she ordered the
administration of Zantac to reduce Captain Ortiz’s risk of chemical pneumonitis. Docket
No. 37-2 at 2, ¶ 7.
2

operating room and did not return for twenty minutes. Id. at ¶¶ 59-60. Captain Ortiz
suffered an allergic reaction as a result of the Zantac. Id. at ¶ 58.
The medical care Captain Ortiz received after the administration of Zantac was
negligent. Id. at ¶ 61. First, DiCampli administered Benadryl4 to Captain Ortiz, which
was negligent because the Benadryl caused a drop in Captain Ortiz’s blood pressure,
rendering Captain Ortiz hypotensive.5 Id. at 8, ¶¶ 62-64. Second, the military medical
staff failed to provide adequate medical care to treat Captain Ortiz’s blood pressure
after the administration of Benadryl. Id. at ¶¶ 66-67. Third, the military medical staff
failed to monitor the fetal monitoring strips during the caesarean section. Id. ¶¶ 68-70.
As a result of the military medical staff’s negligent administration of Benadryl and
negligent monitoring of the fetal monitoring strips, I.O. suffered severe injuries including,
but not limited to, “a hypoxic brain injury which has resulted in cerebral palsy.” Id. at 89, ¶ 72.
Dr. Kathryn Zamboni-Cutter, the board certified obstetrician who oversaw
Captain Ortiz’s caesarean section, submitted a declaration in support of defendant’s
motion to dismiss. Docket No. 37-2. In her declaration, Dr. Zamboni-Cutter states that
she ordered the administration of Benadryl “as a prophylactic medication to counter any
potential allergic reaction” that Captain Ortiz might have suffered as a result of the
Zantac. Id. at 2, ¶ 10. Dr. Zamboni-Cutter states that the administration of “both

4

Benadryl is the trade name for diphenhydramine, which is an antihistamine that
is usually administered to counter allergic reactions. Docket No. 57-1 at 2, ¶ 6.
5

Hypotension occurs in a pregnant woman when the blood flow is inadequate to
perfuse the uterus and the placenta, potentially causing harm to a fetus. Docket No.
57-1 at 3, ¶ 7
3

Zantac and Benadryl was for the benefit of Captain Ortiz, not for the benefit of I.O.” Id.
at ¶ 12. Plaintiff disputes this fact and, in support, presents the affidavits of Dr. Aaron
Caughey and registered nurse Kathy Andersen who both state that Benadryl was
administered during delivery to prevent the risk of injury to Captain Ortiz and to I.O.6
See Docket No. 57-1 at 2, ¶ 6; Docket No. 57-2 at 2, ¶ 6.
On July 3, 2012, plaintiff filed this case, asserting claims of negligence against
defendant based on the military medical staff at EACH committing malpractice during
Captain Ortiz’s caesarean section. See Docket No. 8. On October 9, 2012, defendant
filed the present motion to dismiss pursuant to Rule 12(b)(1) of the Federal Rules of
Civil Procedure, arguing that the Court lacks subject matter jurisdiction over this case.
See Docket No. 37.
II. STANDARD OF REVIEW
Summary judgment is warranted under Federal Rule of Civil Procedure 56 when
the “movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986). A disputed fact is “material” if
under the relevant substantive law it is essential to proper disposition of the claim.
Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001). Only disputes
over material facts can create a genuine issue for trial and preclude summary
judgment. Faustin v. City & Cnty. of Denver, 423 F.3d 1192, 1198 (10th Cir. 2005). An

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Viewing this evidence in a light most favorable to plaintiff, the Court will assume
that the Benadryl was administered for the benefit of both Captain Ortiz and I.O. Adler
v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998).
4

issue is “genuine” if the evidence is such that it might lead a reasonable jury to return a
verdict for the nonmoving party. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir.
1997).
III. ANALYSIS
A. FTCA Claim
Defendant argues that the Court lacks subject matter jurisdiction because
plaintiff’s medical negligence claim is barred by Feres v. United States, 340 U.S. 135
(1950), which held that the FTCA does not waive sovereign immunity of the United
States for claims brought against the United States by active-duty service members.
Given that “the United States may not be sued without its consent and . . . the existence
of consent is a prerequisite for jurisdiction,” United States v. Mitchell, 463 U.S. 206, 212
(1983), defendant asserts that the Court has no subject matter jurisdiction over this
case. Docket No. 37 at 7-10. Specifically, defendant claims that, because Captain
Ortiz’s medical care at the time of plaintiff’s delivery was incident to her military service,
the Feres doctrine applies even though plaintiff and I.O. are civilians. Id. at 5-7. In
response, plaintiff asserts that, because I.O. was not an active duty service member,
her claim is not barred by Feres. Docket No. 57 at 2-3. Plaintiff claims that, because
the administration of Benadryl and the monitoring of the fetal monitoring strips was for
the benefit of both Captain Ortiz and I.O., the Feres doctrine does not bar I.O.’s claim
since it is based on an injury that is independent from any injury Captain Ortiz suffered.
Docket No. 57 at 2-3, ¶ 3; Docket No. 57-1 at 2, ¶ 6.

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1. The Feres Doctrine
The FTCA waives the sovereign immunity of the United States and allows suits
against the federal government for injuries caused by the negligence of government
employees acting within the scope of their employment to the same extent that a
private individual would be liable for such negligence. 28 U.S.C. § 1346(b); Mitchell,
463 U.S. at 212. In Feres, the Supreme Court interpreted the FTCA as not waiving
sovereign immunity for actions brought by active duty military personnel. 340 U.S. at
146. Specifically, the Supreme Court held that the federal government is not “liable
under the Federal Tort Claims Act for injuries to servicemen where the injures arise out
of or are in the course of activity incident to service,” id., which has become known as
the “incident to service” test. The Supreme Court has identified three rationales for the
Feres doctrine: first, the distinctly federal nature of the relationship between the
government and members of its armed forces; second, the existence of the Veterans’
Benefits Act, which provides a form of no-fault compensation for injured members of
the military; and, third, the special relationship between a service member and his or
her superiors. United States v. Shearer, 473 U.S. 52, 57 (1985). These three
rationales comprise the “special factors” analysis some courts use to determine the
applicability of the Feres doctrine to a particular case. Ricks v. Nickels, 295 F.3d 1124,
1128-29 (10th Cir. 2002).
In recent years, the Supreme Court has broadened the Feres doctrine so that it
now encompasses “at a minimum all injuries suffered by military personnel that are
even remotely related to the individual’s status as a member of the military.” Pringle v.

6

United States, 208 F.3d 1220, 1223-24 (10th Cir. 2000) (emphasis in the original); see
also Ricks, 295 F.3d at 1127-28 (collecting cases). Nevertheless, the Supreme Court
has emphasized that it has never deviated from the “incident to service” test. United
States v. Johnson, 481 U.S. 681, 686 (1987). Because Feres “cannot be reduced to a
few bright-line rules[,] each case must be examined in light of the statute as it has been
construed in Feres and subsequent cases.” Shearer, 473 U.S. at 57.
2. Lack of Alternative Remedy
Plaintiff argues that, as a civilian, I.O. has no other form of compensation for her
injuries were the Feres doctrine to preclude her FTCA claim. Docket No. 57 at 9.
Some courts have considered this argument under the special factors test and found it
relevant. See, e.g., Romero v. United States, 954 F.2d 223, 226 (4th Cir. 1992).
However, the Tenth Circuit and the Supreme Court have determined that the argument
is irrelevant. As stated in Ricks, 295 F.3d at 1129 n. 4, “whether a servicemember has
adequate federal remedies for his injuries is ‘irrelevant.’ United States v. Stanley, 483
U.S. 669, 683 (1987) (“The special factor that counsels hesitation is not the fact that
Congress has chosen to afford some manner of relief in the particular case, but the fact
that congressionally uninvited intrusion into military affairs by the judiciary is
inappropriate.” (alterations omitted)).”
Obviously, application of Feres to this case, assuming plaintiff could prove
liability, would have a devastating effect on plaintiff’s family. Cerebral palsy is a
disabling condition that has undoubtedly greatly diminished the quality of I.O.’s life and
burdened her family with enormous medical costs. However, as many other courts

7

have noted, the often harsh consequences of the application of Feres are a
consequence of sovereign immunity.
3. Applicability of Feres Doctrine to Third Party Civilians
Plaintiff argues that Feres does not apply to either him or to I.O. because they
are civilians and Captain Ortiz is not a party to the suit. See Docket No. 57 at 5-7. The
Supreme Court, however, has held that the Feres doctrine precludes suits by third
parties for claims that derive directly or indirectly from injuries to service members
incident to military duty. See, e.g., Stencel Aero Eng’g Corp. v. United States, 431 U.S.
666, 673 (1977) (noting that, “where the case concerns an injury sustained by a soldier
while on duty, the effect of the action upon military discipline is identical whether the
suit is brought by the soldier directly or by a third party”). As a result, the fact that
plaintiff and I.O. are not service members, by itself, does not preclude application of the
Feres doctrine.
4. Applicability of Feres Doctrine to Medical Malpractice Claims by
Children of Servicewomen Involving Prenatal or Obstetrical Harm
Plaintiff claims that “civilian dependents who are victims of malpractice during the
prenatal and labor and delivery time period also routinely recover for their injuries
pursuant to the FTCA.” Docket No. 57 at 6. Courts considering such claims have used
different approaches for their analyses. Some courts have applied the special factors
analysis, see Scales v. United States, 685 F.2d 970, 974 (5th Cir. 1982); Del Rio v.
United States, 833 F.2d 282, 287 (11th Cir. 1987); some courts have applied the
“genesis test,” see Irvin v. United States, 845 F.2d 126 (6th Cir. 1988); and some courts
have applied what can be characterized as a “sole purpose” or “independent injury”
8

test. See Romero, 954 F.2d at 225-227; Brown v. United States, 462 F.3d 609, 613616 (6th Cir. 2006). The Court examines these cases below.
a. Special Factors Analysis
In Scales, the son of a servicewoman sued the United States based on allegedly
negligent prenatal treatment that his mother received during basic training in the Air
Force. The son claimed the government’s negligence resulted in him contracting
congenital rubella syndrome with attendant serious health problems. 685 F.2d at 971972. The court in Scales considered the three special factors identified by the Supreme
Court as supporting the Feres doctrine, but noted that the third factor, preserving
military discipline, “stands out as the most important consideration.” Id. at 973. Scales
held that the Feres doctrine barred the son’s claim. The court reasoned that, “[i]f we
accept the argument that a suit brought by Charles’ mother would tend to undermine
military discipline, which we must since it is the law, then it is impossible to see how the
result should be different if Charles sues the government instead.” Id. at 974. The
court also noted, independent of the special factors analysis, that
Charles’ allegations of negligence . . . focus entirely on the medical
treatment that Air Force physicians gave his mother. The treatment
accorded his mother is inherently inseparable from the treatment
accorded Charles as a fetus in his mother’s body.
Id.
In Del Rio, a servicewoman and her children sued the United States based on
the allegedly negligent prenatal care she received while she was on active duty, which
caused one of her twin sons to live only five days and the other to have bodily injuries.
833 F.2d at 284. The court applied all three of the special factors, believing that,
9

although United States v. Shearer, 473 U.S. 52, 56-57 (1985), emphasized the third
factor, United States v. Johnson, 481 U.S. 681 (1987), “unequivocally expanded the
Feres analysis to include all three rationales.” 833 F.2d at 285-286. Applying these
factors to the servicewoman’s claim, the court found that the Feres doctrine precluded
it. However, the court found that the “three Feres rationales clearly are not present in a
suit by the child of a service person for the negligence of military medical staff.” Id. at
287. The court determined that the first two special factors were inapplicable and that,
as to the third factor, “suit by a civilian child for the negligent administration of prenatal
care need not impair the esprit de corps necessary for effective military service, nor will
it require the court to second-guess a decision by military personnel unique to the
accomplishment of a military mission.” Id. The court thus ruled that Feres did not bar
the children’s negligence claim against the United States. The Court does not find the
analysis of Del Rio helpful here.
The fact that Del Rio used the third special factor to determine the effect of the
children’s suit on military discipline is inconsistent with the Tenth Circuit’s analysis in
Ricks, 295 F.3d at 1129-1130. In Ricks, the Tenth Circuit noted that the Supreme
Court in United States v. Stanley, 483 U.S. 669, 681 (1987), “explicitly rejected a
‘special factors’ analysis which would consider how military discipline would actually be
affected in a particular case.” In Stanley, the Supreme Court stated that a “test for
liability that depends on the extent to which particular suits would call into question
military discipline and decisionmaking would itself require judicial inquiry into, and
hence intrusion upon, military matters.” Id. at 682. Instead, Stanley held that

10

application of the “‘incident to service’ test, by contrast, provides a line that is relatively
clear and that can be discerned with less extensive inquiry into military matters.” Id. at
683. Because Del Rio rests on a prediction about the effect the children’s suit would
have on military discipline, which both Stanley and Ricks state is inappropriate, the
Court does not consider Del Rio to be persuasive authority.
b. The Genesis Test
The genesis test evolved from the Supreme Court’s decision in Stencel, which
held that a third party’s claim that was derivative of a serviceman’s claim is also barred
under Feres.7 431 U.S. at 673. The Supreme Court found that the third party’s claim
was one which had a basis in the serviceman’s claim and would not exist but for the
serviceman’s claim. Id. Some appellate courts have expanded Stencel to bar
derivative claims where the injury to a dependent had its “genesis” in a service-related
injury to the service member. See Irvin, 845 F.2d at 130 (listing cases); Hinkie v. United
States, 715 F.2d 96, 98-99 (3d Cir. 1983); Minns v. United States, 155 F.3d 445, 44950 (4th Cir. 1998); Mossow v. United States, 987 F.2d 1365, 1369-70 (8th Cir. 1993);
Monaco v. United States, 661 F.2d 129, 133 (9th Cir. 1981); Lombard v. United States,
690 F.2d 215, 226 (D.C. Cir. 1982).

7

In Stencel, a serviceman was injured because of an aircraft malfunction. The
serviceman sued the aircraft manufacturer, and the manufacturer sued the United
States for indemnity. The Supreme Court found that the rationale for the Feres doctrine
applied with equal force whether a suit is brought by the serviceman or by a third party,
and barred the manufacturer’s claim under Feres. Stencel, 431 U.S. at 673.

11

In Irvin, a former servicewoman and her husband, individually and on behalf of
their deceased child, brought an FTCA claim against the United States for providing
negligent prenatal care. 845 F.2d at 127. After noting that “[m]any other courts have
also denied independent claims of family members when the genesis of the injury was
an injury to an active duty service person,” id. at 130, the court cited that portion of
Scales where the Fifth Circuit stated that, because the “treatment accorded his mother
is inherently inseparable from the treatment accorded Charles as a fetus in his mother’s
body,” a lawsuit by the child would place the court in the position of “questioning the
propriety of decisions or conduct of fellow members of the Armed Forces,” which Feres
seeks to avoid. Scales, 685 F.2d at 974. Irvin therefore adopted the genesis test as
being consistent with Supreme Court precedent and barred the child’s claim. 845 F.2d
at 131.
Application of the genesis test to plaintiff’s claim on behalf of I.O. results in a
finding that his claim is barred. The genesis of I.O.’s injury was an injury to her mother.
The complaint alleges that hospital employees gave Zantac to Captain Ortiz, Docket
No. 8 at ¶ 56, that “[a]s a result of the negligent administration of Zantac,” Captain Ortiz
had an allergic reaction, id. at ¶ 58, and that Captain Ortiz was then given Benadryl, id.
at ¶ 62, which caused her to become hypotensive, id. at ¶ 64, a condition that negligent
fetal monitoring did not discover. Id. at ¶¶ 68-70. Thus, an injury to the mother -- an
allergic reaction to Zantac -- necessitated the administration of the drug that caused
hypotension and resultant hypoxia in I.O.

12

c. Sole Purpose or Independent Injury Test
In an effort to avoid application of the genesis test, plaintiff cites cases where
courts distinguished medical treatment given for the benefit of the mother from
treatment given for the benefit of the fetus. In Romero, active duty spouses and their
son, Joshua, filed suit against the United States under the FTCA alleging that negligent
prenatal care provided to the mother resulted in the son’s cerebral palsy. 954 F.2d at
224. The mother had congenital cervical weakness. Plaintiffs claimed that the doctors
should have placed sutures in the mother’s cervix to minimize the risk of premature
labor, which could then be removed immediately before normal labor. Plaintiffs argued
that the failure to place such sutures caused the son to be born prematurely and
thereby caused his cerebral palsy. Id. at 225. The court held that “claims brought by
civilians and civilian dependents of service members who have directly sustained
injuries from military personnel are not Feres-barred.” Id. It therefore held that Feres
did not bar the claim of the son. In reaching this conclusion, the court found that the
congenital cervix condition, while placing the fetus at risk of injury, did not affect the
mother’s health. Thus, had the sutures been placed in the mother, their “sole purpose
would have been directed at preventing injury to Joshua.” Id. “Because the purpose of
the treatment was to insure the health of a civilian, not a service member, Feres does
not apply.” Id. Romero also specifically held that application of the genesis test was
inappropriate. It found that the son’s “injury did not derive from any injury suffered by a
service member, but was caused when the government breached an affirmative duty of

13

care owed directly to him.” Id. at 226. Romero applied the three special factors in
support of its conclusion as well. Id.
In Brown, the civilian husband of an active duty wife sued the United States
based on a military doctor’s recommendation that his wife, who was trying to have a
child, discontinue taking prenatal vitamins. The wife followed his advice, conceived
during a time period when she was not taking the vitamins, and later gave birth to a
daughter with a neural tube defect from lack of folic acid, which the prenatal vitamins
contained. The wife experienced no physical injuries from the allegedly negligent
prenatal treatment. 462 F. 3d at 611. The court held that the Feres doctrine did not
apply “because Melody’s injury was not derivative of any injury to her mother but was,
rather, the result of negligence affecting Melody directly (albeit in utero).” Id. at 612. As
in Romero, the court also applied the three special factors analysis in support of its
ruling. Id. at 613-614.
Romero and Brown distinguished cases such as Scales and Irvin on the ground
that the injury to the child in utero was either the result of a medical procedure directed
(or not directed) solely at the fetus or that the injury occurred to the child and not to the
mother. However, when this test is applied here, the result is the same as application
of the genesis test. First, the allergic reaction to Zantac was a harm to Captain Ortiz,
not to I.O. As the court in Brown acknowledged, “we would be obliged by Irvin to apply
the Feres doctrine to bar the plaintiff’s claim on his daughter’s behalf had the injury to
the child been caused by an injury to her mother.” 462 F.3d at 614. Second, plaintiff
admits that “Benadryl was given to prevent injury and to benefit both Ms. Ortiz and I.O.,”

14

Docket No. 57 at 13, which distinguishes this case from both Romero and Brown. Even
putting aside the fact that the Benadryl was given to prevent or counteract a harm to
Captain Ortiz, the alleged causative agent of I.O.’s harm was, according to plaintiff,
given for both Captain Ortiz’ and I.O.’s benefit. Thus, any challenge to the
administration of Benadryl would call into question military decision-making regarding
active duty service members that lies at the heart of the Feres doctrine.8 See Hayes v.
United States on Behalf of United States Army, 44 F.3d 377, 378-79 (5th Cir. 1995)
(“Medical malpractice by a physician employed by the military, in a military hospital, and
in the course of treatment of a person in active military service has been clearly held to
fall within ‘the course of activity incident to service.’” (citation omitted)); Connell v.
Copeland, 417 F. App’x 3, 4 (D.C. Cir. 2011) (same).
Alternatively, plaintiff argues that, “after the administration of Benadryl, the
providers were required to monitor the unborn child,” which monitoring is “treatment
provided solely for the benefit of the civilian baby.” Docket No. 57 at 15. Plaintiff’s
claim with regard to the fetal monitoring strips is also barred by the Feres doctrine as it
is derived from the injury caused by the administration of Zantac and Benadryl.
Plaintiff’s causal theory with regard to the monitoring strips is necessarily derived from
the injury suffered by Captain Ortiz as a result of the administration of Zantac and
Benadryl. In other words, but for the administration of the Zantac and Benadryl to

8

Plaintiff argues that injuries are not “incident to service” where treatment is
directed “primarily towards the civilian,” citing Brown. Docket No. 57 at 6 (emphasis
added). However, neither Brown nor any other case that the Court has found excepts
an FTCA claim in similar circumstances based on treatment primarily directed at the
unborn child.
15

Captain Ortiz, failure to review the fetal monitoring strips in this case would not have
caused I.O. injuries. Thus, given that plaintiff’s fetal monitoring claim necessarily
derives from Captain Ortiz’s service-related injury, the Court finds that plaintiff’s claim
for negligence based on the failure to review the fetal monitoring strips is barred by the
Feres doctrine. Pringle, 208 F.3d at 1223.
In summary, regardless of what test is applied, the result is the same. A special
factors analysis focused on the third factor, as in Scales, leads to the conclusion that
allowing I.O.’s claim would call into question military decisionmaking and discipline
since the medical care provided to Captain Ortiz cannot be meaningfully distinguished
from that provided to I.O. Use of the genesis test shows that the alleged negligence
that harmed I.O. stemmed from a harm to her mother. And use of the sole purpose or
independent injury test shows that Captain Ortiz had an injury (allergic reaction) that
was independent of any injury to I.O. that the medical providers treated with the
purpose of benefitting Captain Ortiz and I.O., but not solely I.O. Each of these different
analyses is simply a context specific variant of the underlying principle, the incident to
service test. Here, the Court finds that the harm to I.O. was incident to the service of
her mother, Captain Ortiz. Plaintiff’s claims are therefore barred by the Feres doctrine.
B. Motion to Defer Ruling on Motion to Dismiss to Allow for Discovery
Plaintiff has filed a Motion to Defer Ruling on Defendant USA’s Motion to
Dismiss [Docket No. 58], requesting that the Court delay ruling on defendant’s motion to
dismiss because the resolution of the jurisdictional question “requires resolution of an
aspect of” the substantive claim at issue. Docket No. 58 at 3, 2-3, ¶ 2. Plaintiff argues

16

that there are disputed questions of fact regarding for whose benefit the military medical
staff provided the Benadryl. Id. at, ¶ 3. Plaintiff claims that additional discovery will
help him resolve that issue and argues that discovery is necessary because all of the
medical information is within the sole possession of defendant. Id. at 4, ¶¶ 5-6.
A party may seek limited discovery under Rule 56(d) of the Federal Rules of Civil
Procedure in order to respond to a summary judgment motion. Rule 56(d) allows a
court to stay or deny a summary judgment motion in order to permit further discovery if
the nonmovant states by affidavit that it lacks facts necessary to oppose the motion.
Price ex rel. Price v. W. Res., Inc., 232 F.3d 779, 783 (10th Cir. 2000). In order to be
afforded relief, plaintiff must show (1) that necessary probable facts are not available,
(2) why those facts cannot be presented currently, (3) “what steps have been taken to
obtain these facts,” and (4) “how additional time will enable [plaintiff] to” obtain those
facts and rebut the motion for summary judgment. Comm. for First Amendment v.
Campbell, 962 F.2d 1517, 1522 (10th Cir. 1992).
The Court finds that plaintiff has not met his burden of showing that additional
discovery will likely change the outcome of defendant’s motion. Plaintiff’s own expert,
Dr. Aaron Caughey, states in his affidavit that the administration of the Benadryl was for
the benefit of both Captain Ortiz and I.O. Docket No. 57-1 at 2, ¶ 6. Given the fact that
the Benadryl was not administered solely for the benefit of I.O., plaintiff’s case is
distinguishable from Brown and Romero and, therefore, the Court finds additional
discovery irrelevant to the resolution of the jurisdictional issue. Furthermore, defendant
states that plaintiff is in possession of the fetal monitoring strips, Docket No. 62 at 3,

17

and plaintiff has not explained why further discovery regarding the fetal monitoring
strips will alter the application of the Feres doctrine in this case. Even if plaintiff
deposed the military medical staff present at the time of the delivery, it will not discount
the fact that plaintiff admits that the medical treatment in this case was in part to benefit
Captain Ortiz. Accordingly, the Court will deny plaintiff’s request for additional
discovery.
IV. CONCLUSION
For the foregoing reasons, it is
ORDERED that the United States’ Motion to Dismiss [Docket No. 37], converted
to a motion for summary judgment pursuant to Fed. R. Civ. P. 56, is GRANTED. It is
further
ORDERED that Plaintiff’s Motion to Defer Ruling on Defendant USA’s Motion to
Dismiss [Doc. 37] and Allow Time for Discovery [Docket No. 58] is DENIED. It is further
ORDERED that this case is dismissed in its entirety. It is further
ORDERED that, within 14 days of this Order, defendant United States of
America may file its bill of costs with the Clerk of the Court.

DATED September 30, 2013.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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