Coward v. United States of America et al

Filing 58

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT re 44 Motion for Summary Judgment. Signed by JUDGE ALAN C. KAY on 08/14/2017. The Court DENIES the government's motion on the basis that the admini strative claim was not timely filed but GRANTS summary judgment to the government on the basis that a reasonable jury could not find for Plaintiff on the element of causation. The Court also DISMISSES the BOP, Dr. David Ackley, and all Doe entities a s improper parties to an FTCA action. (eps, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
___________________________________
)
WILLIAM COWARD,
)
)
Plaintiff,
)
)
vs.
) Civ. No. 16-00273 ACK-RLP
)
UNITED STATES OF AMERICA,
)
)
Defendant.
)
___________________________________)

ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
For the reasons set forth below, the Court GRANTS
Defendant the United States of America’s Motion for Summary
Judgment, ECF No. 44.
BACKGROUND
Plaintiff William Coward (“Plaintiff”) has been
experiencing vision loss since September 2010 and has been
diagnosed with various eye conditions, including Glaucoma,
Central Vein Occlusion, Cystoid Macular Edema, and Cataracts.
Defendant United States’ Concise Statement of Facts ¶ 2, ECF No.
45 (“U.S. CSF”).

Plaintiff was prescribed eye medications in

order to treat his glaucoma and reduce eye pressure, including
Cosopt (Dorzolamide) and Lumigan.

Declaration of Jennifer

Ringwood, Attach 1-009, 1-015, 1-023.

- 1 -

On May 5, 2011, Plaintiff entered the custody of the
Bureau of Prisons (“BOP”) at the Federal Detention Center of
Honolulu (“FDC Honolulu”) to begin serving a prison sentence.
U.S. CSF ¶ 1.

He was prescribed Cosopt upon incarceration.

U.S. CSF ¶ 7.

After a June 13, 2011 office visit, he was also

prescribed Latanoprost (Xalatan), but the prescribing doctor
noted after a July 22, 2011 visit that no medications had
apparently been initiated and repeated the prescriptions for
Cosopt and either Xalatan or its pharmaceutical equivalent
Lumigan.

See Vickers Attach 2-009 to 2-014.

On August 31,

2011, Plaintiff was transferred from FDC Honolulu to a
Residential Reentry Center, after which he did not have any
medical visits with or otherwise receive new treatment from a
BOP medical provider.

U.S. CSF ¶ 9.

Plaintiff was released to

home confinement on December 12, 2011 and completed his sentence
on January 3, 2012.

Id. ¶ 10.

Around the time his sentence ended, Plaintiff filed an
administrative claim with the BOP alleging that the medical
staff at FDC Honolulu was negligent in failing to administer
prescribed medications to him until July 2011, which allegedly
caused partial vision loss in both eyes.

Plaintiff’s Concise

Statement of Facts ¶ 7, ECF No. 51 (“Pl. CSF”); U.S. CSF ¶ 11;
Vickers Attach 2-002.
2016.

The BOP denied this claim on January 20,

U.S. CSF ¶ 11.
- 2 -

Plaintiff filed his complaint in federal court on May
31, 2016.

Compl., ECF No. 1.

The government filed its motion

for summary judgment on April 19, 2017.

ECF No. 44 (“Motion”).

Plaintiff filed his opposition on July 14, 2017.
(“Opp.”).

ECF No. 54

The government filed its reply on July 21, 2017.

No. 55 (“Reply”).

ECF

On July 24, 2017, Plaintiff amended his

concise statement of facts to specifically dispute portions of
the government’s statement of facts. 1

ECF No. 56. (“Pl. Am.

CSF”).
The Court held a hearing on the government’s Motion on
Wednesday, August 9, 2017.
STANDARD
Summary judgment is proper where there is no genuine
issue of material fact and the moving party is entitled to
judgment as a matter of law.

Fed. R. Civ. P. 56(a).

Federal

Rule of Civil Procedure (“Rule”) 56(a) mandates summary judgment
“against a party who fails to make a showing sufficient to
establish the existence of an element essential to the party’s

1

Plaintiff’s amended statement of facts appears to be a response
to the government’s contention that Plaintiff should be deemed
to have admitted the facts in its CSF for failure to dispute
with record citations. See Reply at 2 & n.2. At the hearing,
the government orally moved to strike the amended statement of
facts. While the Court notes that Plaintiff’s substantively
amended filing does not appear proper, it is unnecessary to
decide this motion in view of the Court’s decision to grant
summary judgment to the government.
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case, and on which that party will bear the burden of proof at
trial.”

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see

also Broussard v. Univ. of Cal., 192 F.3d 1252, 1258 (9th Cir.
1999).
“A party seeking summary judgment bears the initial
burden of informing the court of the basis for its motion and of
identifying those portions of the pleadings and discovery
responses that demonstrate the absence of a genuine issue of
material fact.”

Soremekun v. Thrifty Payless, Inc., 509 F.3d

978, 984 (9th Cir. 2007) (citing Celotex, 477 U.S. at 323); see
also Jespersen v. Harrah’s Operating Co., 392 F.3d 1076, 1079
(9th Cir. 2004).

“When the moving party has carried its burden

under Rule 56[(a)] its opponent must do more than simply show
that there is some metaphysical doubt as to the material facts
[and] come forward with specific facts showing that there is a
genuine issue for trial.”

Matsushita Elec. Indus. Co. v. Zenith

Radio, 475 U.S. 574, 586–87 (1986) (citation and internal
quotation marks omitted); see also Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247–48 (1986) (stating that a party cannot
“rest upon the mere allegations or denials of his pleading” in
opposing summary judgment).
“An issue is ‘genuine’ only if there is a sufficient
evidentiary basis on which a reasonable fact finder could find
for the nonmoving party, and a dispute is ‘material’ only if it
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could affect the outcome of the suit under the governing law.”
In re Barboza, 545 F.3d 702, 707 (9th Cir. 2008) (citing
Anderson, 477 U.S. at 248).

When considering the evidence on a

motion for summary judgment, the court must draw all reasonable
inferences on behalf of the nonmoving party.

Matsushita Elec.

Indus. Co., 475 U.S. at 587; see also Posey v. Lake Pend Oreille
Sch. Dist. No. 84, 546 F.3d 1121, 1126 (9th Cir. 2008) (stating
that “the evidence of [the nonmovant] is to be believed, and all
justifiable inferences are to be drawn in his favor”) (internal
citation and quotation omitted).
DISCUSSION
I.

Plaintiff’s Claim and the Parties
Plaintiff claims that BOP staff negligently failed to

administer prescribed eye medications 2 to him which resulted in
vision loss, in violation of its statutory duty under 18 U.S.C.
§ 4042(a)(2) to provide the safekeeping and care of inmates.
Compl. ¶¶ 8-10, ECF No. 1; Pl. CSF ¶¶ 4-5; 18 U.S.C. §
4042(a)(2) (the BOP shall “provide suitable quarters and provide

2

The parties disagree as to whether Plaintiff’s claim is that he
did not receive either Cosopt (Dorzolamide) or one of the
supplemental medications Latanoprost (Xalatan) or Lumigan, or
just that he did not receive the supplemental medication.
Compare Pl. Am. CSF ¶ 1 with Declaration of Harry Yee, Ex. A
(Expert Report of Dr. David Mai) and Reply at 11-12. As this is
a disputed fact, the Court will read the record in the light
most favorable to Plaintiff and take as true here that Plaintiff
did not receive either medication.
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for the safekeeping, care, and subsistence of all persons
charged with or convicted of offenses against the United States,
or held as witnesses or otherwise”).

This claim arises under

the Federal Tort Claims Act (“FTCA”), which establishes federal
jurisdiction over civil suits for money damages against the
United States for
injury or loss of property, or personal
injury or death caused by the negligent or
wrongful act or omission of any employee of
the Government while 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)(1); Compl. ¶ 2, ECF No. 1.
In order to assert his FTCA claim, Plaintiff must show
that Hawaii would recognize a cause of action in negligence
against a private individual for the conduct alleged.

See Bolt

v. United States, 509 F.3d 1028, 1031 (9th Cir. 2007) (“As the
party seeking federal jurisdiction, Bolt must therefore
demonstrate that Alaska law would recognize a cause of action in
negligence against a private individual for like conduct.”).
Plaintiff contends that his claim is merely one of simple
negligence, rather than medical malpractice.

See Opp. at 4.

However, as the government notes, this is a distinction without
a difference here.

Reply at 11.

“[M]edical malpractice cases

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have been predicated on the negligent failure of a physician or
surgeon to exercise the requisite degree of skill and care in
treating or operating on a patient.” 3

Bernard v. Char, 79 Haw.

371, 377, 903 P.2d 676, 682 (Haw. Ct. App. 1995), aff’d 79 Haw.
362, 903 P.2d 667 (1995).

Plaintiff’s claim that BOP staff

“fail[ed] to take care of the inmate even after they were told
what he needed,” see Opp. at 4, is thus merely a claim for
negligent failure to treat.

See id. at 6 (noting expert opinion

that “[t]he failure to properly treat Plaintiff’s eye condition,
glaucoma, while he was incarcerated damaged his optic nerve”).
As such, this Court will treat Plaintiff’s claim as one for
medical malpractice.

See Mettias v. United States, No. CIV. 12-

00527 ACK, 2015 WL 1931082, at *30 (D. Haw. Apr. 21, 2015),
appeal dismissed (Nov. 19, 2015) (analyzing FTCA claim against
government hospital for injuries arising from surgery under
Hawaii medical malpractice standard).

3

The relevant difference between the two claims is that a
medical malpractice claim, unlike ordinary negligence, generally
requires that the standard of care and causation must be
established through expert medical testimony, as discussed infra
at 19-20. See Bernard v. Char, 79 Haw. 371, 377, 903 P.2d 676,
682 (Haw. Ct. App. 1995) (noting that the elements of negligence
and medical malpractice are the same, except that “unlike the
ordinary negligence case, it is the general rule that a
malpractice case based on negligent treatment cannot be
established without expert medical testimony to support it.”).
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The government also challenges the inclusion of the
BOP, former BOP employee Dr. David Ackley, and the John Doe
defendants as improper parties, which Plaintiff does not
dispute.

Motion at 3 n.1; Reply at 2 n.2; see generally Opp.

The Ninth Circuit has noted that “the United States is the only
proper defendant in an FTCA action.”

Kennedy v. U.S. Postal

Serv., 145 F.3d 1077, 1078 (9th Cir. 1998).

The Court thus

agrees that the BOP, former BOP employee Dr. David Ackley, and
the various John Doe defendants are not proper parties.

See

Seina v. Fed. Det. Ctr. Honolulu, No. CV 16-00051 LEK/BMK, 2016
WL 916367, at *4 (D. Haw. Mar. 7, 2016) (dismissing claim where
FDC Honolulu, its Health Services Unit, the DOJ, BOP, and
individual federal employees, but not the United States, were
named as defendants); see also FDIC v. Craft, 157 F.3d 697, 706
(9th Cir. 2008) (“Although [FTCA] claims can arise from the acts
or omissions of United States agencies...an agency itself cannot
be sued under the FTCA.”).

Accordingly, the Court DISMISSES the

BOP, Dr. David T. Ackley, and the various Doe defendants.
II.

Timely Filing of an FTCA Claim
Under 28 U.S.C. § 2401(b), “[a] tort claim against the

United States must first be presented in writing to the
appropriate federal agency within two years of its accrual, and
suit must be brought within six months of denial of the claim by

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the agency to which it was presented.”

Bartleson v. United

States, 96 F.3d 1270, 1276 (9th Cir. 1996); 28 U.S.C. § 2401(b)
(“A tort claim against the United States shall be forever barred
unless it is presented in writing to the appropriate Federal
agency within two years after such claim accrues or unless
action is begun within six months” after the date of the
agency’s notice of final denial of the claim).
Section 2401(b) is a non-jurisdictional claimsprocessing rule.

See Kwai Fun Wong v. Beebe, 732 F.3d 1030,

1038 (9th Cir. 2013).

The time limitations in § 2401(b) thus

constitute an affirmative defense, which the defendant must
plead and prove.

See Saofaigaalii v. United States, No. 14-

00455 SOM/KSC, 2016 WL 3527095, at *6 (D. Haw. June 23, 2016)
(“‘Because the FTCA's statute of limitations is not
jurisdictional, failure to comply with it is merely an
affirmative defense which the defendant has the burden of
establishing.’”) (quoting Schmidt v. United States, 933 F.2d
639, 640 (8th Cir. 1991)); see also Weil v. Elliott, 859 F.3d
812, 815 (9th Cir. 2017) (“A non-jurisdictional time bar is an
affirmative defense....”).

- 9 -

The issue here is whether Plaintiff’s administrative
claim was presented to the BOP within two years of accrual. 4
Motion at 4; Opp. at 2-6.

The BOP received Plaintiff’s

administrative claim as early as December 30, 2013. 5
7.

See

Pl. CSF ¶

Thus, in order to determine whether Plaintiff’s claim is

4

Plaintiff argues that because 28 U.S.C. § 2401(b) is framed in
the disjunctive, his claim does not present timeliness issues as
his complaint was filed in federal court within six months of
when the BOP denied his administrative claim. Opp. at 2-4.
However, “[e]ven though written in the disjunctive, the law is
well established that a suit is time-barred unless a claim is
filed with the agency within two years of accrual and the suit
is not filed within six months of the denial of the claim.”
Bohol v. United States, No. CIV 10-00227 JMS/LEK, 2010 WL
2485933, at *3 n.5 (D. Haw. June 17, 2010) (emphasis in
original)(citing Dyniewicz v. United States, 742 F.2d 484, 485
(9th Cir. 1984), which holds that both jurisdictional hurdles
must be met); see also Sanchez v. United States, 740 F.3d 47, 50
n.6 (1st Cir. 2014) (“We read this disjunctive language as
setting out two deadlines, both (not just either) of which must
be satisfied.”). As such, the apparent timeliness of
Plaintiff’s federal complaint does not resolve the instant issue
of whether his administrative claim was timely filed with the
BOP.
5

The parties disagree on the exact date the BOP received
Plaintiff’s administrative claim. See Reply at 4; Pl. Am. CSF ¶
2. The government asserts that the claim was received on
January 3, 2014. U.S. CSF. ¶ 11. Plaintiff has provided a
certified mail receipt showing that the claim was delivered on
December 30, 2013. Geshell Decl., Ex. 2; see also Pl. Am. CSF ¶
2. Because the outcome here does not depend on which of these
dates is operative, the Court need not resolve that issue. In
addition, the fact that Plaintiff gave a copy of his claim to
FDC Honolulu on December 20, 2013 is irrelevant because the
claim must have been delivered to the BOP’s Western Regional
Office in order to be properly presented. See 28 C.F.R. §
543.31(c) (providing that claims must be mailed or delivered to
the BOP regional office of the region where the claim occurred).
- 10 -

time-barred, the Court must determine whether the claim accrued
prior to December 30, 2011.
“The date on which an FTCA claim accrues is determined
by federal law.”

Bartleson, 96 F.3d at 1276; see also

Poindexter v. United States, 647 F.2d 34, 36 (9th Cir. 1981)
(courts must look to “federal law for the limitations of time
within which the action must be brought.”); Santillo v. United
States, No. 3:10-CV-02469 AJB, 2011 WL 2729243, at *2–3 (S.D.
Cal. July 13, 2011) (noting that the FTCA, unlike § 1983 or
Bivens actions, has its own statute of limitations and does not
borrow state law).

Thus, as the government correctly asserts

and contrary to Plaintiff’s contention, Hawaii Revised Statutes
§ 657-13, which tolls civil claims of imprisoned individuals
during the period of imprisonment, did not operate to toll the
two-year period on Plaintiff’s claim here. 6

See Reply at 4-5;

Opp. at 5-6; Haw. Rev. Stat. § 657-13; see also Warren v. CIA,
210 F. Supp. 3d 199, 203 (D.D.C. 2016) (“[T]he clock was running
on plaintiff's [FTCA] claims while he was in prison and, under

6

Indeed, as the government points out, § 657-13 does not toll
claims made under the state tort claims act, which further
confirms its inapplicability to the FTCA. Reply at 5-6; see
Whittington v. Hawaii, 72 Haw. 77, 79, 806 P.2d 957 (Haw. 1991)
(refusing to apply § 657-13 tolling to claims under the state
tort liability act, which was modeled on the FTCA).

- 11 -

any of the parties' proposed dates of accrual, the claims
expired before he was released.”). 7
Rather, for a medical malpractice claim under federal
law, “accrual does not occur until a plaintiff knows of both the
existence of an injury and its cause.”

Hensley v. United

States, 531 F.3d 1052, 1056 (9th Cir. 2008); see also Bartleson,
96 F.3d at 1277 (“An FTCA claim accrues when the plaintiff
discovers, or in the exercise of reasonable diligence should
have discovered, the injury and its cause.”) (internal citation
and quotation omitted).

In a failure to treat or diagnose a

case such as this, “the injury is the development of the problem
into a more serious condition which poses greater danger to the
patient or which requires more extensive treatment.”

Augustine

v. United States, 704 F.2d 1074, 1078 (9th Cir. 1983) (emphasis
in original).

“[I]t is only when the patient becomes aware or

through the exercise of reasonable diligence should have become
7

In addition, Plaintiff appears to contend that he may be
entitled to equitable tolling. See Opp. at 3; Aug. 9, 2017
Hr’g; Reply at 6-7. However, Plaintiff has not sufficiently
shown that he has been diligently pursuing his rights and that
some extraordinary circumstance stood in his way such that he is
entitled to equitable tolling. See Pace v. DiGuglielmo, 544
U.S. 408, 418 (2005). The mere fact of Plaintiff’s
incarceration does not constitute an extraordinary circumstance
warranting equitable tolling. See Bills v. Clark, 628 F.3d
1092, 1097 (9th Cir. 2010) (“We have long recognized a general
rule that equitable tolling is available where the prisoner can
show extraordinary circumstances were the cause of an untimely
filing.”).

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aware of the development of a pre-existing problem into a more
serious condition that his cause of action can be said to have
accrued for purposes of section 2401(b).”

Id.

However, “a

claim does not wait to accrue until a party knows the precise
extent of an injury.”

Raddatz v. United States, 750 F.2d 791,

796 (9th Cir. 1984); see also Mamea v. United States, No. CIV.
08-00563 LEK, 2010 WL 3384854, at *8 (D. Haw. Aug. 23, 2010)
(finding that plaintiff discovered her injury when she learned
that her previously diagnosed kidney stone condition had
developed into acute renal failure, not when her kidneys had in
fact failed).
In Augustine, the Ninth Circuit reversed the district
court’s dismissal of the plaintiff’s medical malpractice claim
as time-barred.

704 F.2d at 1079.

The plaintiff alleged that

Air Force dentists failed to diagnose the possible cancerous
nature of a growth on his palate and failed to treat or advise
him to seek further treatment of the growth.

See id. at 1076.

The Ninth Circuit rejected the government’s argument that the
plaintiff was aware of his injury for purposes of accrual when
he learned of the existence of the bump and held instead that
the injury at issue was the development of the bump from a
controllable medical condition into an incurable metastatic
cancer.

See id. at 1078.

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In Benitez v. United States, the court determined that
the plaintiff’s claim accrued when he had a seizure and injured
himself falling out of his upper bunk.

No. CIV. 13-00668 SOM,

2014 WL 2881452, at *7 (D. Haw. June 24, 2014).

The plaintiff

had informed the prison medical personnel of his seizure
condition for which he had been taking medication and requested
a lower bunk in order to reduce the risk of injury in the event
he fell.

Id. at *3.

However, he was assigned to an upper bunk,

and his claim accrued when he fell out of bed and was injured
because he was then aware of his injury and its cause.

Id. at

*7.
The government argues that Plaintiff’s claim accrued
while he was in BOP custody from May 5, 2011 to August 31, 2011.
See Motion at 4-5, 7.

It is undisputed that prior to his

incarceration, Plaintiff had been diagnosed with various vision
problems including glaucoma, had suffered vision loss, and was
using prescribed eye medication.

U.S. CSF ¶¶ 2-6; Ringwood

Attach 1-015 (listing continued prescriptions for Cosopt and
Lumigan).

Plaintiff also does not dispute that he was aware of

these conditions and of the BOP’s perceived deficiencies in
treating these conditions while he was at FDC Honolulu.
U.S. CSF ¶¶ 7-8; Pl. CSF ¶¶ 4-5.

See

As such, the government

asserts that Plaintiff either knew or should have known of his

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claim at that time.

See Motion at 5, 7 (“Plaintiff knew of his

condition and its treatment during his time in custody and was
therefore ‘on clear notice’ of any facts needed to pursue a
claim.”).
However, in order to establish when Plaintiff’s claim
accrued, the Court must determine when he was injured or should
have been aware of his injury.

The government’s position

appears to be that since the injurious conduct by BOP medical
providers occurred while he was in BOP custody, Plaintiff’s
claim must have accrued during that time as well.
4-5; Reply at 3-4.

See Motion at

However, accrual “is not the date on which

the wrong that injures the plaintiff occurs, but the date –
often the same, but sometimes later – on which the plaintiff
discovers he has been injured.”

Cada v. Baxter Healthcare

Corp., 920 F.2d 446, 450 (7th Cir. 1990).

As the Supreme Court

has recognized, “[t]hat [the plaintiff] has been injured in fact
may be unknown or unknowable until the injury manifests
itself....”

United States v. Kubrick, 444 U.S. 111, 122 (1979).

As such, while the allegedly negligent acts occurred while
Plaintiff was in BOP custody, it does not necessarily follow
that his injury became manifest during that time.
Both parties appear to agree that Plaintiff’s injury
is actual eye damage and resulting vision loss, rather than the
- 15 -

increased risk of eye damage and vision issues from elevated eye
pressure. 8

Motion at 5-6 (arguing that “Plaintiff was aware of

his perceived deficiencies in the BOP’s care and his alleged
resulting vision loss at the time of his transfer to a
residential reentry center on August 31, 2012.”); Opp. at 6
(describing result of alleged negligence to be optic nerve
damage).

However, neither party has sufficiently pinpointed

exactly when Plaintiff’s eye damage and vision loss occurred or
when he should have known he was injured.
In addition, the Court has been unable to locate
evidence in the record supporting the government’s position that
Plaintiff lost vision while in custody.

Indeed, the Court has

not been able to determine when Plaintiff’s further vision loss
occurred or when he discovered damage to his optic nerve.

As

confirmed by the experts for both parties, Plaintiff’s vision
records do not appear to show any measurable change in his
vision or optic nerve which might indicate injury.

See

Declaration of Harry Yee, Ex. A (Expert Report of Dr. David Mai)
(“Mai Report”) (“[T]here is no evidence in the medical record

8

The Court notes that had the injury here been defined as the
elevation of Plaintiff’s eye pressure and the increased risk of
damage to his vision and optic nerve, the Court’s analysis of
the record regarding whether Plaintiff knew or should have known
that his glaucoma had developed into a more serious condition
while he was incarcerated might differ.
- 16 -

for Mr. Coward losing eye function or eye tissue as a result of
not receiving Xalatan from 6/13/11 to 7/25/11.”); Declaration of
R. Steven Geshell, Ex. 6, Deposition of Christopher M. Tortora,
M.D. at 42:3-24 (“Tortora Dep.”) (opining that failure to
receive medications would not likely result in vision changes
over two months); 43:9-44:24 (noting that that he did not “have
any objective evidence of how much damage was done to
[Plaintiff’s] vision” while he was incarcerated).
The government also argues that the fact that
Plaintiff “expressed his displeasure” to medical staff regarding
his treatment shows his awareness of the facts giving rise to
the claim.

Motion at 5; U.S. CSF ¶ 8.

Plaintiff’s medical

records note that he “verbalize[d] frustration with the prison’s
medical guidelines stating ‘I was treated on the outside and now
I have to start all over again.’”

Ringwood Attach 1-001.

While

this evidence supports that Plaintiff perceived the treatment to
be deficient, it does not evidence that he was or should have
been aware that he had suffered vision loss or other injury to
his eye.
Although the Ninth Circuit has recognized that
“‘identification of both the injury and its cause may be more
difficult where the claim is failure to diagnose or treat a preexisting condition,’” Raddatz, 750 F.2d at 796 (quoting

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Augustine, 704 F.2d at 1078), it nonetheless remains the
government’s burden to establish when the claim accrued for
purposes of a defense under § 2401(b).
WL 3527095, at *6.

See Saofaigaalii, 2016

As the Court cannot determine on this record

as a matter of law when Plaintiff knew or should have known of
his injury, it cannot conclude that that Plaintiff’s claim
accrued prior to December 30, 2011.

See Benitez, 2014 WL

2881452, at *7 (finding that the plaintiff’s claim accrued when
he was injured falling out of bed, not when he informed the
prison staff of his seizure condition and requested a lower
bunk).

Accordingly, since the government has not shown that

Plaintiff’s administrative claim was presented to the BOP more
than two years beyond the date it accrued, the Court must DENY
the government’s motion on this basis. 9
III. Evidence of Causation and Injury
The government also asserts that it is entitled to
summary judgment because Plaintiff cannot show causation and
resulting injury from the alleged negligence.

Motion at 9-14.

Under Hawaii law, a medical malpractice claim requires the
plaintiff to show: “(1) a duty requiring the defendant to
conform to a certain standard of conduct, (2) a failure on the
9

The Court declines to address the government’s contention that
Plaintiff’s injury is not a continuing injury for purposes of
accrual, see Motion at 6-7, as Plaintiff does not contest the
government’s position. See generally Opp.
- 18 -

defendant's part to conform to that standard, (3) a reasonably
close causal connection between the conduct and the resultant
injury, and (4) actual loss or damage.”

Mettias v. United

States, No. CIV. 12-00527 ACK, 2015 WL 1931082, at *30 (D. Haw.
Apr. 21, 2015), appeal dismissed (Nov. 19, 2015) (citing
Takayama v. Kaiser Found. Hosp., 82 Haw. 486, 498–99, 923 P.2d
903, 915–16 (Haw. 1996)); see also Knodle v. Waikiki Gateway
Hotel, Inc., 60 Haw. 376, 385, 742 P.2d 377, 383 (Haw. 1987));
Bernard, 79 Haw. at 377, 903 P.2d at 682.
“With respect to causation, ‘[i]n a medical
malpractice action, a plaintiff must show with reasonable
medical probability a causal nexus between the physician's
treatment or lack thereof and the plaintiff's injury.’”
Mettias, 2015 WL 1930182, at *31 (quoting Craft v. Peebles, 78
Haw. 287, 305, 893 P.2d 138, 156 (Haw. 1995)).

Expert medical

testimony is generally required to establish proximate or
contributory causation. 10

See Barbee v. Queen's Med. Ctr., 119

Haw. 136, 158, 194 P.3d 1098, 1120 (Haw. Ct. App. 2008), as
10

In limited circumstances, Hawaii does not require expert
testimony in a medical malpractice action under the common
knowledge exception, which is similar to the doctrine of res
ipsa loquitor. See Barbee, 119 Haw. at 159, 194 P.3d at 1121.
However, this exception only applies in circumstances a lay
person could easily grasp, such as a surgeon leaving a sponge
inside a patient, the use of unsterile instruments, or a burn
from a hot water bottle. See id. Plaintiff’s case does not fit
within this rarely applied exception, and thus expert testimony
is required.
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corrected (Nov. 5, 2008) (“[I]n a medical malpractice case, a
plaintiff must establish proximate or contributory causation
through the introduction of expert medical testimony.”); see
also Bernard, 79 Haw. at 377, 903 P.2d at 682 (“[U]nlike the
ordinary negligence case, it is the general rule that a
malpractice case based on negligent treatment cannot be
established without expert medical testimony to support it.”).
The medical opinions offered by such experts “‘must be
grounded upon a reasonable medical probability as opposed to a
mere possibility because possibilities are endless in the field
of medicine.’”

Davis v. United States, No. CIV. 07-00461 ACK-

LEK, 2009 WL 1455976, at *31 (D. Haw. May 26, 2009) (quoting
Miyamoto v. Lum, 104 Haw. 1, 15-16, 84 P.3d 509, 523-24 (Haw.
2004)).

Whether the defendant’s conduct is a substantial factor

in bringing about the harm is the “touchstone” of causation.
Knodle, 69 Haw. at 390, 742 P.2d at 386 (“Substantial factor in
bringing about the harm, therefore, is still the touchstone when
the issue of causal relation must be submitted to the jury.”)
(internal citation and quotation omitted).

“[W]hen an expert

merely testifies that a defendant’s action or inaction might or
could have yielded a certain result, such testimony is devoid of
evidentiary value and fails to establish causation.”

Barbee,

119 Haw. at 163, 195 P.3d at 1125 (emphasis in original).

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In Barbee, the plaintiff experienced internal bleeding
after a July 2001 surgery, which resulted in his placement in
ICU and which required a second surgery.
194 P.3d at 1103-04.

119 Haw. at 141-42,

After discharge, the plaintiff was

admitted to the hospital on various subsequent occasions and was
diagnosed with insufficient blood flow to his intestines in July
2002.

Id. at 143, 194 P.3d at 1105.

In October 2002 he was

readmitted to the hospital and died in December 2002.

Id.

The

evidence at trial showed that damage to the plaintiff’s kidneys
and brain was “ongoing and progressive,” that his hemoglobin
level was “likely incompatible with life,” and if he had not had
the first surgery, “he would not have been in ICU” the next day.
Id. at 163, 194 P.3d at 1125.

The court concluded that this “at

most established that it was possible” that the defendants’
actions had caused the plaintiff’s death and thus did not show
causation to a reasonable medical probability.

Id. (“In effect,

the jury was left to speculate that Defendants’ action or
inaction might or could have resulted in [the plaintiff’s] death
17 months later.”) (internal citation and quotation omitted).

Plaintiff contends that his expert, Dr. Tortora,
opined sufficiently on causation to survive summary judgment.
See Opp. at 6.

In his report, Dr. Tortora noted that elevated

eye pressure “can cause ongoing damage to the vision and

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permanent damage to the optic nerve,” that Plaintiff’s eye
pressure was “dangerously high” and thus that “there is a
significant likelihood that the elevated intraocular pressure
over a period of months has affected and will continue to affect
his overall visual health.”

Tortora Report.

Dr. Tortora

clarified in his deposition that “by damage to his vision or by
affecting his visual health, [he was] referring to the fact that
the optic nerve is damaged by elevated pressure; and any damage
to the optic nerve is likely to have longer-term consequences,”
and that his opinion was being offered to a reasonable medical
probability. 11

Tortora Dep. at 44:5-9; 51:16-21.

However, even with this clarification, Dr. Tortora’s
statement does not create a dispute of fact on causation.

Dr.

Tortora testified repeatedly at his deposition that there was no
objective medical evidence regarding whether Plaintiff was
harmed.

Tortora Dep. at 24:2-4 (Whether elevated pressure

causes serious damage “varies from one individual to another and
we can’t tell exactly how much it affected Mr. Coward’s
11

The Court notes that in forming his opinion, Dr. Tortora did
not examine Plaintiff and did not review Plaintiff’s prison
medical records, which he admitted would have been useful.
Tortora Dep. at 16:12-20; 36:25-37:1; 52:5-13. Additionally,
Dr. Tortora relied in part on a representation from Plaintiff’s
counsel that Plaintiff did not receive medication while
incarcerated. Tortora Dep. at 54:12-18. As the parties dispute
this fact, compare U.S. CSF ¶ 7 with Pl. Am. CSF ¶ 1, the Court
will construe the record in the light most favorable to
Plaintiff and take as true that he did not receive medication.
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vision”); 42:22-24 (“[W]e don’t really have a way to assess
whether his vision got better, worse, or was affected in one way
or the other.”); 44:22-24 (“So, I don’t have any objective
evidence of how much damage was done to his vision over that
time frame.

So, I can only rely on what the standard of care

is.”); 47:15-18 (“I agree, as I stated, that there is no testing
that was done prior to or after his incarceration that would be
able to give us a – an assessment of whether there was damage
done to his vision or not.”); 48:12-15 (“There is no way to
really assess whether that – what happened caused him permanent
damage which is affecting his vision to this day.”); 48:21-23
(“So, I agree with Dr. Mai [the government’s expert] that there
is no way to really assess whether damage was done to the vision
and to the eye or not.”).
Given that Dr. Tortora lacked objective evidence
regarding whether Plaintiff’s eyes and vision were damaged from
the alleged negligence, an expert opinion concluding that there
is a causal connection would be speculative.

See Major League

Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 311 (2d
Cir. 2008) (“An expert's opinions that are without factual basis
and are based on speculation or conjecture are similarly
inappropriate material for consideration on a motion for summary
judgment.”).

Such speculation is insufficient to demonstrate

causation and avoid summary judgment.
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Haines v. Honolulu

Shipyard, Inc., 125 F. Supp. 2d 1020, 1031 (D. Haw. 2000) (to
avoid summary judgment, as “[a] party must set forth specific
evidence to demonstrate causation, and cannot rely on mere
speculation or conjecture....”).
Rather, Dr. Tortora’s opinion was based only on the
standard of care, as he explicitly admitted at his deposition.
See Tortora Dep. at 48:16-20 (Dr. Tortora’s “concern is whether
or not [Plaintiff] received the standard of care that he should
have.”); 44:22-24 (Dr. Tortora “[could] only rely on what the
standard of care is.”).

And while Dr. Tortora indicated that it

is possible for elevated eye pressure to cause eye damage and
visual health issues, he admitted that the effect of elevated
pressure “varies from one individual to another and we can’t
tell exactly how much it affected Mr. Coward’s vision....”
Tortora Dep. at 23:23-24:4; 42:25-43:5.

Dr. Tortora’s limited

opinion thus does not provide a basis for a reasonable jury to
conclude that the alleged negligence was a substantial factor in
Plaintiff’s claimed vision loss here.

Knodle, 69 Haw. at 390,

742 P.2d at 386 (“Substantial factor in bringing about the harm,
therefore, is still the touchstone of when the issue of causal
relation must be submitted to the jury.”) (internal citation and
quotation omitted).
Indeed, it is undisputed that prior to his
incarceration, Plaintiff had already begun to experience vision
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loss.

See U.S. CSF ¶¶ 2-6 (noting that Plaintiff described his

vision as “failing” and describing poor vision measurements).
Dr. Tortora admitted in his deposition that Plaintiff’s vision
improved slightly between his March 7, 2011 examination (preincarceration) and his October 7, 2011 examination (post-release
from FDC Honolulu).

Tortora Dep. at 39:7-40:3.

Plaintiff now

claims that his vision has since worsened and is significantly
impaired.

See Declaration of William Coward ¶¶ 3, 7.

However,

Dr. Tortora does not address the possibility that Plaintiff’s
vision might have declined further even without the alleged
negligence.

As in Barbee, a jury would be left to speculate as

to what caused the subsequent vision loss, especially in light
of the improvement in Plaintiff’s vision after he was released
from FDC Honolulu.

See Barbee, 119 Haw. at 163, 194 P.3d at

1125.
Dr. Tortora’s opinion thus only establishes the
possibility that the alleged negligence caused Plaintiff’s
injuries; it does not show causation to a reasonable medical
probability.

However, “[t]he mere co-existence of negligence

and injury...is not in itself sufficient to establish this
necessary causal relationship.”

See Mitchell v. Branch, 45 Haw.

128, 131, 363 P.2d 969 (Haw. 1961).

Because a reasonable jury

could not find on this record that the alleged negligence caused

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Plaintiff’s claimed injuries, the Court accordingly GRANTS the
government’s Motion for Summary Judgment.
CONCLUSION
For the foregoing reasons, the Court DENIES the
government’s motion on the basis that the administrative claim
was not timely filed but GRANTS summary judgment to the
government on the basis that a reasonable jury could not find
for Plaintiff on the element of causation.

The Court also

DISMISSES the BOP, Dr. David Ackley, and all Doe entities as
improper parties to an FTCA action.

The Court DIRECTS the Clerk

to enter judgment in favor of Defendant.

IT IS SO ORDERED.
DATED:

Honolulu, Hawaii, August 14, 2017.

________________________________
Alan C. Kay
Sr. United States District Judge

Coward v. United States of America, Civ. No. 16-00273 ACK-RLP, Order Granting
Defendant’s Motion for Summary Judgment.

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