Doe v. United States et al
Filing
161
MEMORANDUM OF DECISION UNDER RULE 52(a). Signed by District Judge Daniel D. Crabtree on 1/15/2021. Mailed to pro se party Mark E. Wisner by regular mail. (heo)
Case 2:16-cv-02267-DDC Document 161 Filed 01/15/21 Page 1 of 50
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JOHN DOE D.P.,
Plaintiff,
v.
Case No. 16-2267-DDC
UNITED STATES OF AMERICA AND
MARK WISNER,
Defendants.
MEMORANDUM OF DECISION UNDER RULE 52(a)
Over the course of a week in late September and early October of 2020, the court
conducted a bench trial via Zoom video technology with the active parties in this case, plaintiff
John Doe D.P. and defendant United States of America. Both parties consented to conducting
the trial in this fashion, given the global pandemic affecting our country and the courts.
Defendant Mark Wisner—who is an inmate in a Kansas correctional facility—did not participate
in the trial, although his deposition was taken to preserve testimony for trial.
Post-trial, the court allowed the parties to submit optional briefing and proposed findings
of fact. The court has reviewed the evidence from trial—including the evidence submitted for
review outside the virtual courtroom. At the conclusion of the parties’ presentation of evidence,
several evidentiary questions remained for the court’s decision. To the extent necessary to
resolve the case, the court makes the requisite determinations about relevance and admissibility
in this Memorandum of Decision. If this Memorandum of Decision does not refer to contested
evidence or its admissibility, the court found the evidence immaterial to its ruling and decided
that no ruling was necessary.
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At a very high level, this case involves allegations of repeated, improper touching of
plaintiff’s genitals during medical appointments with defendant Mark Wisner at the Veterans
Administration Medical Center in Leavenworth, Kansas. Plaintiff seeks to hold the United
States responsible for Wisner’s actions, on theories of medical malpractice and intentional
infliction of emotional distress. The United States doesn’t dispute plaintiff’s allegation that
Wisner examined plaintiff’s genitals when unnecessary, without gloves. Instead, the disputes
here focus on:
(1) whether the United States can be held liable at all for Wisner’s actions because
(a) the acts allegedly were not within the scope of his employment, and
(b) the acts allegedly were not taken “in furnishing medical care”; and, if the
United States is liable for Wisner’s conduct,
(2) whether Wisner caused plaintiff any—or, at most, minimal—injury.
Finally, the parties sharply disagree about the amount of a damage award—if plaintiff prevails.
As required by Fed. R. Civ. P. 52(a)(1), this Memorandum of Decision includes separate
findings of fact and conclusions of law. “A district court’s findings of fact ‘should be sufficient
to indicate the factual basis for the court’s general conclusion as to ultimate facts[,] . . . should
indicate the legal standards against which the evidence was measured[,] . . . [and] should be
broad enough to cover all material issues.’” OCI Wyo., L.P. v. PacifiCorp, 479 F.3d 1199, 1203
(10th Cir. 2007) (quoting Otero v. Mesa Cty. Valley Sch. Dist., 568 F.2d 1312, 1316 (10th Cir.
1977); further citations omitted). But “Rule 52(a) does not require the district court to set out its
findings and conclusions in excruciating detail.” Sierra Club, Inc. v. Bostick, 539 F. App’x 885,
902 (10th Cir. 2013) (Martinez, J., dissenting) (citation omitted). On the other hand, “too little
detail frustrates meaningful appellate review by requiring the parties and this court to guess at
2
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why the district court reached its conclusion.” OCI Wyo., L.P., 479 F.3d at 1204 (citation
omitted).
With these standards in mind, the court now turns to its Findings of Fact and Conclusions
of Law.
Findings of Fact
1. Plaintiff saw Wisner for medical appointments at least four times between August 21,
2013 and November 13, 2013. Plaintiff also testified that he saw Wisner in 2014 for
shoulder pain, but plaintiff did not know the date and Wisner did not memorialize an
appointment with plaintiff during 2014. During at least three appointments (two
appointments in October and one in November 2013), Wisner performed a genital
examination of plaintiff.1 He never wore gloves during any of those exams. None of the
genital examinations were medically justified.2
2. During the exams, Wisner made unnecessary and inappropriate sexual comments about
plaintiff’s penis. He commented, for example, “I’m sure the ladies must like this,” and
asked about plaintiff’s sexual practices and experiences while he was overseas.
1
It is unclear whether Wisner performed a genital examination on August 21, 2013. Plaintiff testified that
Wisner examined his genitals at every appointment, but plaintiff still would have been housed in the
“DOM”—a term that serves as shorthand for the VA’s “domiciliary” program, a housing program for
veterans with mental health issues, addiction issues, and homelessness—during this appointment. Plaintiff
also testified that Wisner did not perform genital exams while plaintiff was in the DOM. Plaintiff showed
difficulty remembering precise dates and appointments. Wisner complicated the task of identifying when
he saw plaintiff by omitting some appointments and actions from his records, likely as part of an effort to
avoid detection. The court finds the difference in being sexually molested three, four, or even five times
largely immaterial to deciding the issues here. And plaintiff’s unprecise memory is hardly a surprise
because, during this era, he was moving through life in a drug-induced haze. Plaintiff also testified that
Wisner performed a rectal exam at the November 13, 2013 appointment, and this exam is reflected in
Wisner’s notes. The court finds plaintiff’s testimony about this November exam credible and, quite clearly,
a heart-wrenching experience for plaintiff. Defendant’s arguments suggesting the rectal exam did not occur
because plaintiff did not mention it to Special Agent Kerry Baker or in his deposition are not persuasive.
2
In the other two Wisner-based cases tried before this one, the court heard testimony about the length of the
genital examinations—specifically, that they were longer than medically acceptable (which is between 30
seconds to one minute). In this case, plaintiff did not discuss how long the exams lasted. Dr. Kelley
testified that plaintiff made it clear to him that none of the genital exams lasted longer than a minute.
3
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3. Wisner also used unconventional disrobing practices with plaintiff. He would have
plaintiff lie on his back, and then Wisner would unfasten plaintiff’s belt and pants, pull
them down, and slide his hand underneath plaintiff’s boxer shorts to conduct the genital
examination.
4. While plaintiff felt uncomfortable during some of his visits with Wisner, he did not
realize, immediately, that Wisner was acting inappropriately and he did not stop seeing
Wisner for appointments.
5. Before plaintiff began seeing Wisner for medical appointments, he suffered from wartime
PTSD, generalized anxiety disorder, major depressive disorder, panic disorder without
agoraphobia, and chronic shoulder pain (after three surgeries on his shoulder).3 Plaintiff
also suffered from addiction to opiates and benzodiazepines. He had felt suicidal off and
on since 2009. Indeed, at one point in July 2013, plaintiff believed that he had hit “rock
bottom.” This sensation occurred before he even met Wisner.4 Wisner was aware of
plaintiff’s problems; indeed, he first met plaintiff while plaintiff was in the “DOM”
program at the VA.5 Plaintiff was in the DOM from July 2013 to October 2013. Despite
3
At trial, defendant offered Exhibits 443, 444, 445, and 446, which were statements made to support
plaintiff’s claims for VA disability in 2013 and were written by plaintiff’s family members and a treating
psychologist. Defendant argued that the exhibits were probative of plaintiff’s pre-existing conditions
before he met Wisner. The court initially ruled that the exhibits were inadmissible under Fed. R. Evid.
803(1), the “present sense impression” hearsay exception. But then, defendant argued that the exhibits
were instead admissible under Fed. R. Evid. 807, the residual exception to the rule against hearsay, because
the statements are supported by sufficient guarantees of trustworthiness and they are more probative on the
point for which they are offered than other evidence that defendant could acquire through reasonable
means. The court took defendant’s offer on this theory under advisement and provided plaintiff an
opportunity to file a responsive brief. Plaintiff did not file one. The court now concludes that Exhibits 443,
444, 445, and 446 qualify under Rule 807 and now admits them. The court has considered them when
evaluating plaintiff’s mental and physical condition prior to meeting Wisner.
4
Defendant argues this testimony suggests that plaintiff’s condition did not worsen after seeing Wisner. But
plaintiff’s testimony on this subject continued and he clarified that, initially, he thought July 2013 was
“rock bottom” but he now believes he did not hit rock bottom until later.
5
See supra note 1 and Findings of Fact ¶ 38 for further explanation of the DOM.
4
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knowing that plaintiff suffered from addiction, Wisner prescribed opiates and
benzodiazepines for plaintiff shortly after he was discharged from the DOM.6 Wisner
was even on call one night when plaintiff went to the emergency room after taking too
many benzodiazepines. The next day, plaintiff met with Wisner, plaintiff’s mother, VA
social worker Dawn Clouse, and, possibly Dr. Santos—plaintiff’s mental health provider.
Plaintiff’s mother expressed her concern about medications the VA was prescribing for
plaintiff, but Wisner told plaintiff’s mother that plaintiff was not addicted to the
medications and that he (Wisner) would take good care of plaintiff. The opposite was
true. Plaintiff was addicted and was afraid that Wisner would not continue his
prescriptions if he did not allow Wisner to examine his genitals at each appointment.
After Wisner stopped treating plaintiff, the VA started titrating plaintiff off the
mediations. But Wisner had convinced plaintiff that plaintiff’s shoulder pain gave him a
medically-valid reason for the opiate prescriptions, so when plaintiff’s prescriptions were
stopped, he turned back to street drugs7 and, eventually, heroin to reduce his pain.
A.
Findings About the Scope of Employment Question
The Work Which the VA Hired the Employee to Perform
6. Wisner was hired by the Department of Veterans Affairs (“VA”) in 2008 as a Physician
Assistant (“PA”).
6
In a pretrial motion in limine, defendant asked the court to exclude evidence of Wisner’s prescribing
practices because plaintiff failed to exhaust administrative procedures for a claim for negligent prescription.
As the court ruled before trial began, this evidence is probative of plaintiff’s relationship with Wisner and
why he might continue to engage in medical care despite Wisner’s improper touching. It also is probative
of the freedom Wisner had in providing medical care, which is a factor used to determine whether Wisner
was acting within the scope of his employment. (See p. 28 of this Memorandum of Decision.) Finally,
there was much trial testimony about plaintiff’s addictions. It is fair for plaintiff to use Wisner’s
prescription practices to explain some of the reason for his addictions and provide broader context.
7
Although the precise timing is unclear, plaintiff used street drugs and exhibited drug-seeking behavior by
obtaining multiple prescriptions from multiple physicians before July 2013.
5
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7. A PA administers basic medical care and screenings. These duties include genital, rectal,
and prostate examinations when medically indicated. These exams may involve
sensitive, intimate, or uncomfortable matters.
8. As a primary care provider, Wisner compiled the personal history of patients. In this
role, sometimes providers must ask questions about sensitive and private matters, like
sexual history, practices, and habits.
9. In short, Wisner was hired to conduct genital examinations, among other duties. He also
was expected to ask personal questions that might make patients uncomfortable—all with
the proper goal of compiling a comprehensive medical history.
The Freedom Allowed the Employee in Performing His Job Responsibilities
10. Wisner led the OEF-OIF Clinic (Operation Enduring Freedom and Operation Iraqi
Freedom) at the VA Medical Center in Leavenworth, Kansas. In that role, he had a great
deal of autonomy. He was the only primary care practitioner at the clinic, and was
responsible for nearly a thousand patients, although the VA had a 750-patient limit.
11. No supervisor or chaperone was required to be present during Wisner’s examinations of
male patients.
12. Daniel Cline, M.D. was Wisner’s first-line supervisor. Dr. Cline was unaware that he
was supposed to review Wisner’s charts, and he did not monitor Wisner’s activities.8
8
Defendant repeatedly has challenged this evidence’s admissibility—evidence about what Wisner’s
supervisors did or failed to do. Defendant maintains that this evidence is not relevant because the court has
dismissed plaintiff’s claims for negligent supervision. The court ruled before trial that evidence of this
nature was relevant to the foreseeability of Wisner’s conduct. This ruling stands. While it’s also true that
this evidence overtly supports a negligent supervision claim, the court already has granted summary
judgment against that claim. Still, the evidence about Dr. Cline’s monitoring omission tends to make it
more probable than not that the VA should have foreseen Wisner’s misconduct, and therefore is legally
responsible for it. The court has considered evidence showing what Wisner’s supervisors did and didn’t
do, and what various employees knew or didn’t know, as evidence germane to the foreseeability question.
6
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This omission violated VHA Directive 2004-029,9 which required monitoring and
evaluation of a PA’s clinical activities. No one at the VA told Dr. Cline about rules
governing him as a supervising doctor or ensured that he monitored Wisner’s clinical
activities.
13. In determining Wisner’s competency, Dr. Cline relied on what Wisner said he had done.
He did not investigate complaints about Wisner.
14. VHA Directive 1063 required oversight, consultation, and assistance with patient care
management, but the VA did not follow any of these requirements for Wisner.
15. VHA Directive 1063 gives PAs varying levels of autonomy based on their experience:
“full,” “limited,” and “supervised.” Wisner had full autonomy; that is, he had “full
leeway to do his job, make independent medical decisions, and decide what tests to order,
and perform diagnoses.”
16. Wisner thus enjoyed unfettered authority to decide when and how to conduct genital,
rectal, and prostate exams. The court finds that Wisner had substantial freedom—in
retrospect, far too much freedom—when performing his job duties.
The Incidental Acts Reasonably Expected by the Employer
17. The VA Eastern Kansas Health Care System issued a Policy Memorandum on February
5, 2010, to identify and address suspected abuse (including sexual abuse) among the
patient population. On May 21, 2013, the VA Eastern Kansas Health Care System issued
another Policy Memorandum addressing incidents of patient abuse.
18. The Leavenworth VA’s policies recognize the potential for patient abuse.
9
The Veterans Health Administration (“VHA”) issues national policies that govern patient care and
treatment in VA medical facilities. These policies are known as “VHA Directives.”
7
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19. Health care provider abuse is a known risk in the health care community.
20. Given the VA’s acknowledgment of the risk of patient abuse by the health care
community, the court finds the VA should have anticipated that acts of abuse could occur
in an unmonitored situation—particularly when the PA’s job, by its very nature, involved
sensitive and intimate examinations and discussions.
The Nature, Time, and Place of the Deviation
21. Wisner conducted all of his examinations during working hours, in an examination room
at the VA Medical Center in Leavenworth, Kansas.
22. When Wisner performed a genital exam, it consumed only a small fraction of the time he
spent with the patient during a clinical visit.
23. Dr. Thomas Kelley, plaintiff’s expert witness, credibly opined that Wisner’s conduct was
incidental to the genital exam, the physical exam, and his job at the VA. Also, Dr. Kelley
credibly opined that even if the genital exams of plaintiff were not medically indicated or
necessary, they still could serve a medical purpose because a medically-trained
professional can discover abnormalities during such an exam.
The Time Consumed in the Deviation
24. Wisner’s genital exams of plaintiff each lasted less than one minute.
25. Wisner’s inappropriate comments during the exam consumed no more than several
seconds.
26. In the context of a longer office visit, the time used for an inappropriate, ungloved genital
examination represented a small proportion of time.
8
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The Employee’s Intent
27. Wisner’s conduct manifested mixed motives. Wisner wanted to be thorough in his
exams, but also had an inappropriate sexual curiosity. As a health care provider, Wisner
aimed to be thorough. Dr. Kelley testified credibly about Wisner’s mixed motives. The
court found his testimony well-supported and consistent with the record as a whole.
Specifically, Dr. Kelley’s characterization of Wisner’s motives is consistent with
Wisner’s background in the military. It also comports with other facts showing that
Wisner appeared to conduct full physical examinations on his patients; he did not wholly
abandon his role as a health care provider during appointments. And during Wisner’s
January 23, 2015 interview with Agent Baker, Wisner told Agent Baker that “his method
was simply thoroughness in looking for any irregularities in their genitals.” (Ex. 406, at
WIS00034987.)
28. The court makes its factual finding about mixed motives despite some of Wisner’s other
statements during his January 23, 2015 interview with Agent Baker. In that interview,
Wisner admitted that he had crossed the professional line and performed excessive
genital exams. He conceded that he knew what he was doing was wrong but he lacked
self-control. He also admitted he had conducted genital exams to satisfy his own
curiosity. Wisner confessed that he would have conducted genital exams for his own
pleasure even when not medically indicated.
29. In that same interview, Wisner acknowledged that he chose victims who were attractive
and of a similar body-type. He also took steps to avoid getting caught. These steps
included falsifying medical records and failing to document some genital examinations
he performed.
9
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30. While this evidence underscores Wisner’s motive to satisfy his own “sexual curiosity,” it
does not negate the existence of other motives unrelated to his sexual curiosity. In
general terms, when one views Wisner’s job duties across his patient base as a whole,
conducting genital examinations was part of his job. It still was necessary to conduct
such examinations in many instances, and they still served a valid medical purpose
independent of Wisner’s prurient interests.
31. Moreover, Wisner’s answers were recorded by Agent Baker after his interview. They
were not transcribed in a deposition or sworn under oath. And according to Agent
Baker’s descriptions of Wisner’s responses, Wisner’s answers responded to questions
that appeared somewhat confrontational. While Wisner was not in custody when
interviewed, Agent Baker’s Memorandum of Interview uses many words suggesting he
had pressed the issue when Wisner answered in a way that appeared less than truthful or
until Wisner “admitted” one thing or another.10 The court gives Wisner’s “admissions”
during this interview slightly less weight than it would had the court heard Wisner’s
testimony live or via a deposition with admissible answers to review.
32. All of these facts considered, the court finds that Wisner acted with mixed motives.
10
Examples of “admissions” included in the Memorandum of Interview include:
“[Wisner] initially tried to rationalize the incident as a simple reaction but then admitted that what he
did was wrong.”
“Wisner eventually admitted that he crossed the professional line and was excessive in his genital
exams.”
“[Wisner] admitted that these exams were conducted to satisfy his own curiosity and that he ultimately
hid behind his ‘thoroughness’ as an excuse to examine their genitals.”
“[Wisner] admitted that he knew that what he was doing to these patients was wrong and that he had no
self-control.”
(Ex. 406, at WIS00034986 – WIS00034987.)
10
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Additional Findings on General Foreseeability
33. The VHA required its facilities to use a centralized and comprehensive policy on
reporting and tracking allegations of sexual misconduct at VHA facilities (among other
things). The Leavenworth VA wholly failed to comply with this directive. Its reporting
system was decentralized and lacked any coherent plan for tracking patient complaints.
The VA should have foreseen that this omission could produce serious problems if a VA
employee took advantage of his position in interactions with patients. The following
evidence demonstrates how the Leavenworth VA’s so-called tracking “system” made
Wisner’s conduct both foreseeable and, in actual fact, foreseen by the VA (albeit not
foreseen by supervisors in a position to remove Wisner from patient care).
a. Patient Advocate Richard Lawrenz used a Patient Advocate Tracking System
(“PATS”) to record complaints he received about health care providers. But other
VA Leavenworth employees used a “Report of Contact” form that they did not
enter into the PATS system. In fact, the VA’s social workers and medical
providers lacked access to PATS.
b. VA Social Worker Dawn Clouse received complaints about Wisner’s physical
exams. But she did not investigate any of the complaints she received. She did
not know of any centralized tracking system at VA Leavenworth for reporting
sexual assaults. Clouse told Agent Baker that while Wisner was at VA
Leavenworth, “she did not believe that there was a formal process in place” for
reporting patient complaints.
c. During 2011: A patient (“R.D.”) reported that Wisner failed to wash his hands
when performing a physical examination. But Clouse never brought this
11
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complaint to Rudy Klopfer’s attention. Klopfer was the Director and CEO of VA
Eastern Kansas Health Care System and, in that role, he principally was
responsible for ensuring that the PA supervising policies were implemented.
(During part of the time relevant to this lawsuit, Klopfer shared this responsibility
with others, including Dr. Anil Desai, Chief of Service).
d. February 17, 2012: Wisner’s supervisors, Dr. Desai and Dr. Cline, knew that
Wisner, at least twice, had performed knee injections without having privileges to
perform those procedures. In response, Dr. Desai merely recommended that
Wisner not carry out any procedures he did not have privileges to perform.
e. February 21, 2012: Lawrenz received a report from a patient (“T.S.”) who was
“uncomfortable” with comments Wisner made during a medical visit. The patient
also reported that Wisner used a scope to perform a rectal exam. Lawrenz issued
a “heads up” to Drs. Cline and Desai. He also coded the complaint as an
allegation of “negligence/malpractice.” Although the patient reported feeling
“violated,” Lawrenz did not report the complaints to the VA police because the
patient was not “graphic” when he described what had occurred. But in seven and
a half years, it was the only time Lawrenz coded a complaint in the PATS system
as “allegations of negligence/malpractice.”
f. During 2012: Another patient (“N.A.”) complained about Wisner to Clouse. The
patient said that he felt uncomfortable with Wisner’s genital exams and that
Wisner acted inappropriately during his exams. The patient demanded a new
provider.
12
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g. March 29, 2012: Another patient (“J.D.”) reported to VA police that Wisner had
sexually assaulted him during a medical appointment. Specifically, J.D. alleged
that Wisner sexually assaulted him the day before his report in an exam room by
putting his hand down his underwear in his groin area without warning the patient
in advance. J.D. was admitted to the VA acute psychiatry unit that same day,
asserting he felt “homicidal” toward Wisner.
h. April 2, 2013: Another patient (“J.E.”) reported to the VA that he did not feel that
Wisner had his best interests at heart. According to the complaint, Wisner told
J.E. that he could “put more pain medication up his rear end and it wouldn’t do
any good.” J.E. requested another provider.
i. September 20, 2013: Another veteran reported to Lawrenz that he would like
another provider because he would be more comfortable with someone other than
Wisner.
34. Based on the fact that the VA had received these reports before plaintiff’s last visit with
Wisner on November 13, 2013,11 the court finds Wisner’s conduct toward plaintiff was
foreseeable to the VA. The VA certainly had all this information about Wisner’s
behavior while he was treating plaintiff; the problem was that various discrete silos
within the VA organization housed the reports. But the VA should have collected the
reports and complaints in a centralized manner that would have brought Wisner’s
widespread actions to the attention of decision-makers in a far more effective and timely
manner. The VA violated its own policies by failing to implement a centralized reporting
11
Again, plaintiff reports seeing Wisner once in 2014 for his shoulder injury. Because there is no evidence
revealing when that appointment occurred during 2014, the court has not considered reports about Wisner’s
conduct after 2013.
13
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mechanism, and this violation renders unpersuasive the VA’s argument that Wisner’s
conduct was unforeseeable because the right people at the VA did not know about it.12
B.
Whether Wisner’s Actions Were Taken “In Furnishing Medical Care”
35. The findings in this section take up the issue whether Wisner’s actions were taken “in
furnishing medical care.” This phrase comes from 38 U.S C. § 7316(f). Wisner’s job
duties at the VA included conducting genital exams. As noted earlier, every genital
examination occurred within the context of a longer medical appointment. The court
concludes that Wisner acted with mixed motives. Although none of Wisner’s genital
examinations of plaintiff were medically justified, Dr. Kelley testified that the genital
exams still might serve a valid medical purpose. And medical care—which Wisner was
providing to plaintiff—does not necessarily forfeit its status as medical care because a
provider failed to wear gloves, used improper disrobing techniques, or made
inappropriate comments.
36. On this issue, the court finds the testimony of defendant’s expert, Jeffrey Nicholson,
unpersuasive and unhelpful.13 Mr. Nicholson opined that Wisner stopped providing
medical care when his intent changed from providing medical care to committing
criminal activity. The court finds Mr. Nicholson’s theory unrealistic, illogical, and
unsupported. This on-again-off-again test—advanced by defendant here to define when a
12
The VA doesn’t explicitly argue that Wisner’s conduct was unforeseeable based on who knew about the
complaints. Instead, throughout this litigation, the VA has urged the court to take an overly narrow view of
foreseeability—urging the court to consider, exclusively, the nature of the employment and the duties
required by the position. Respectfully, the correct analysis requires more than just reviewing the job title
and duties assigned to the position. The court’s view is consistent with the Tenth Circuit’s use of the
“O’Shea factors,” as identified and applied later in this Memorandum of Decision. (See pp. 26–29 of this
Memorandum of Decision)
13
For this trial, the court received the testimony given by Mr. Nicholson in the earlier trial of Aaron
Leininger’s case. The parties stipulated to this procedure, and their agreement also preserved the objections
made during testimony in that earlier trial.
14
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medical provider is practicing medicine and when he is not—relies too heavily on
subjective measurements of intent. Mr. Nicholson admitted that his theory had not been
peer-reviewed, and the court finds it unpersuasive.
37. The court thus rejects Mr. Nicholson’s approach and finds that Wisner’s acts, even when
improper, were taken “in furnishing medical care.”
C.
Findings About Plaintiff’s Medical Malpractice Claim
38. Plaintiff first saw Wisner either while he was in the process of applying for serviceconnected disability benefits or he had just received a service-connected disability rating
of 70% for PTSD with major depression and anxiety. Plaintiff also had a 10% disability
rating for his shoulder injury. At the time, plaintiff was in the domiciliary program—the
DOM. Five months after plaintiff was released from the DOM, he was hospitalized
again. That time, plaintiff was hospitalized for more than 21 days, so the VA increased
his service-connected disability rating for PTSD to 100%. This increase became
permanent seven months later.
39. When plaintiff met Wisner, plaintiff was addicted to opiates and benzodiazepines, but he
was able to discontinue use of opiates while in the DOM, at least temporarily.
40. Failing to wear gloves when conducting a genital exam deviates from the standard of
care.
41. Wisner deviated from the standard of care at least three times, committing malpractice
when he conducted genital exams of plaintiff without wearing gloves.
42. These deviations arose from the scope of Wisner’s job duties.
43. Wisner also deviated from the standard of care when he performed unnecessary genital
exams of plaintiff. This occurred, at a minimum, on October 24, 2013, October 26, 2013,
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and November 13, 2013. All of these deviations arose from the scope of Wisner’s job
duties.
44. Wisner’s disrobing practices deviated from the standard of care as well. As Dr. Kelley
testified, the standard of care requires certain disrobing practices because of the sensitive
nature of the exams and the patient’s vulnerability when required to undress.
45. Finally, Wisner violated the standard of care with his inappropriate sexualized comments.
Although primary care practitioners must discuss sensitive information and, sometimes,
ask questions about a patient’s sexual history, practices, and habits, the manner Wisner
used to comment about plaintiff’s genitalia violated the standard of care.
46. Still, genital examinations can serve a valid medical purpose even if performed in a
fashion that deviates from the standard of care. And certainly, some portions of the
medical care Wisner provided plaintiff pursued a valid medical purpose: to provide
diagnostic care.
47. Wisner’s deviations from the standard of care harmed plaintiff.
48. Wisner’s deviations from the standard of care had long-term consequences for patients
like plaintiff. Such deviations can produce distrust, anger, humiliation, shame,
embarrassment, and emotional distress. These results are consistent with the injuries that
plaintiff credibly testified he has suffered since his encounters with Wisner.
49. The court does not find credible Mr. Nicholson’s theory that the standard of care
evaporated based on Wisner’s contemporaneous intent. More specifically, the court does
not accredit Mr. Nicholson’s view that the standard of care applied until the moment
Wisner’s intent changed—i.e., it essentially evaporated the moment when Wisner began
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acting on sexual curiosity or derived sexual pleasure from his genital exams. The court
found this testimony unpersuasive, and not based on a sound, peer-reviewed theory.
50. The court also rejects Mr. Nicholson’s theory that a criminal act cannot amount to
medical malpractice. As Dr. Kelley testified, breaching the standard of care and
committing a criminal act may occur, or co-exist, in the same moment. To say it another
way, the same action simultaneously may violate both the standard of care and the
criminal laws. A tortfeasor’s exposure to criminal liability does not foreclose a finding
that the tortfeasor’s wrongdoing also violated the professional standard of care. On this
point, the court found this testimony by Dr. Kelley logical and credible.
D.
Damages
51. The court finds that the preponderance of evidence established—and by a wide margin—
that plaintiff sustained additional PTSD because of his encounters with Wisner. To be
sure, plaintiff suffered from PTSD and a myriad of other problems before he ever
encountered Wisner. But this medical history does not eliminate the additional damage
plaintiff suffered because of Wisner’s tortious acts. In fact, it is the severity of plaintiff’s
pre-existing conditions that compounded the damage caused by Wisner. In reaching this
finding, the court finds the following testimony credible and significant:
a. Plaintiff experienced and described to Dr. Stephen Peterson—who completed a
forensic psychiatric evaluation of plaintiff and testified as one of his expert
witnesses at trial—shame-based dreams about Wisner and the VA. These dreams
revealed plaintiff’s feelings that he was responsible for what Wisner had done,
both because he didn’t stop it and because he didn’t tell anyone, exposing other
veterans to Wisner’s conduct as well.
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b. Plaintiff avoids eye contact when talking with others. In the military mindset, not
looking at others is a sign of weakness. This quality indicates that plaintiff is still
“beating himself up” over what happened with Wisner. Plaintiff is ashamed that
Wisner “duped” him, and he still sees images of the things Wisner did to him.
c. Because of Wisner, plaintiff has experienced decreased sex drive. He testified,
credibly, that he has not engaged in sexual relations with his girlfriend for more
than two years.
d. A few times each week, plaintiff feels like life is not worth living.14
e. Dr. Peterson opined credibly that Wisner’s actions worsened plaintiff’s PTSD.
As a result of Wisner’s acts, plaintiff’s existing PTSD worsened and he
experienced a new sexual trauma. The compound effect of this so-called
“complex PTSD” makes treatment more difficult.
f. Plaintiff received a letter from Agent Baker on August 14, 2014, alerting him that
the VA Office of Inspector General was reviewing allegations of inappropriate
conduct at the Leavenworth VA Medical Center. When plaintiff received the
letter, he immediately knew the letter was about Wisner even though the letter did
not specify. After reading it, plaintiff experienced a wide range of emotions,
including shock, fear, concern, shame, embarrassment, and humiliation. Plaintiff
melted down and blamed himself for not protecting himself.
14
This credible report about plaintiff’s sensation is troubling. But the court does take some solace in this
more positive fact: At the time Dr. Peterson examined him, plaintiff had not experienced suicidal ideation
in two years.
18
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g. The same day plaintiff received the letter from Agent Baker, he went to St. Luke’s
North Hospital because he was afraid he was going to kill himself.15 Plaintiff was
admitted as an inpatient to the hospital. This was the first time that plaintiff had
gone to an emergency room because he feared that he would take his own life.
The court views this timing as direct, compelling evidence of the effect of
Wisner’s conduct on plaintiff.
h. There was a distinct change in plaintiff’s psychiatric and addiction treatment,
post-Wisner.
i. Plaintiff testified that after he received the letter, his sadness, depression, anxiety,
and shame worsened.
j. Plaintiff’s drug use escalated after plaintiff received the letter. He felt
emasculated, tricked, experienced a loss of self-worth, and felt a need to “be
numb.” In January 2015, plaintiff was hospitalized again. Counting the January
2015 hospital stay, plaintiff was hospitalized 12 times after his encounters with
Wisner (10 of them followed receiving the letter from Agent Baker). Before
plaintiff began seeing Wisner, he had just one hospitalization.16
15
Plaintiff testified at trial that it was the following day. The discrepancy is immaterial.
16
Defendant argued in its closing argument that temporal proximity alone is insufficient to show that
plaintiff’s hospitalizations were connected to Wisner’s actions. So that it’s clear, the court’s finding does
not rest on the folly of post hoc ergo propter hoc. The court does not find that every hospitalization, postWisner, can be blamed on Wisner’s actions. But the court does note that there is a distinctive difference
between the number of hospitalizations pre- and post-Wisner (and, specifically, before and after receiving
the letter from Agent Baker). This difference, combined with persuasive and credible testimony by
plaintiff and Dr. Peterson, convinces the court that plaintiff’s mental health declined and his drug use
increased because of his interactions with Wisner.
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52. The court finds credible plaintiff’s assertion that requiring him to return to the VA for
psychotherapy renders treatment in that setting unlikely to succeed. In reaching this
finding, the court finds testimony about the following facts credible and significant:
a. Plaintiff has returned to the VA for treatment post-Wisner. He has an ongoing
“relationship,” of sorts, with Dr. Pattison, who provides plaintiff with Suboxone
to keep him off opiates and benzodiazepines. He sees Dr. Pattison for less than
20 minutes quarterly. But plaintiff has not had a psychotherapeutic relationship
since 2015.
b. In January 2015, plaintiff informed VA physician Dr. Gadt-Johnson that he had
experienced a major breach of trust by a VA staff member (referring to but not
naming Wisner). He also completed a “Challenging Beliefs Worksheet” about the
Wisner situation and how it made him feel about himself. At the time, plaintiff
had been inpatient for seven weeks and talking to Dr. Gadt-Johnson was one of
the hardest things plaintiff ever has done. Dr. Gadt-Johnson strongly encouraged
plaintiff to consider sharing the situation with his outpatient provider for followup, but plaintiff didn’t do so. Plaintiff explained he didn’t do so because he didn’t
trust the providers at the VA.
c. Plaintiff worries about being judged by VA health care providers. This concern is
particularly worrisome for VA providers he doesn’t know and those who knew
Wisner and those who plaintiff perceives as loyal to Wisner.17
17
The court does not find or even imply that VA providers actually remain loyal to Wisner. Given the guilty
verdicts against Wisner for aggravated criminal sodomy, aggravated sexual battery, and three other counts
of sexual battery in a Kansas state court, the court finds that today’s VA providers are not loyal to Wisner.
Instead, the court’s finding merely concludes that plaintiff harbors this concern.
20
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d. Plaintiff does not trust the VA. Because he experienced institutional betrayal, he
believes that everyone at the VA is “tainted.” The court is persuaded that this
view, even if untrue, is a belief that plaintiff sincerely holds.
e. Dr. Peterson opined that if plaintiff can find a doctor and therapist in the civilian
setting who he could trust, he could develop a therapeutic alliance again. He also
opined that plaintiff is almost completely unable to engage with the VA treaters.
The court finds Dr. Peterson’s testimony on this subject credible.
53. Also, in material part, the court finds credible plaintiff’s assertion that he can’t return to
the VA for his general health care—at least not for actual, meaningful appointments with
physicians or primary care practitioners—until a significant amount of time has passed
and plaintiff has participated in years of therapy. In reaching this finding, the court finds
plaintiff’s testimony about the following facts credible and significant:
a. Shortly after his experiences with Wisner, plaintiff was assigned a series of
primary care providers from the VA, but he never saw them. He testified that he
never will trust the VA with his medical care again. Plaintiff has things he needs
medical treatment for, but he is neglecting his health because he does not want to
return to the VA. For example, he has not had any bloodwork done for a number
of years and has not had a physical examination since his experiences with
Wisner.
b. Dr. Peterson credibly opined that returning to the same place where plaintiff was
victimized would exacerbate or trigger plaintiff’s PTSD.
54. The court finds that plaintiff’s inability to return to the VA for medical care, however,
has an outer limit. It is more likely than not that plaintiff, through extensive and effective
21
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psychotherapy and medication, can overcome his traumatic experiences with the VA.
Also, it’s more probable than not that that plaintiff can make this recovery by the time he
reaches age 65.18 But based on plaintiff’s credible testimony about his state of mind, the
court believes that plaintiff faces a long and difficult road and his passage through these
difficulties likely will include future challenges. The court cannot say with any level of
certainty that plaintiff will recover to a degree that he could begin using his VA health
benefits again anytime soon—particularly when Dr. Peterson testified that plaintiff will
need to continue psychotherapy indefinitely. But, the court finds by a preponderance of
evidence, plaintiff will recover sufficiently that he can begin using the VA’s medical
services again by the time he reaches age 65 and becomes eligible for Medicare.
55. Dr. Peterson recommends the following treatment for plaintiff, with the need for the
treatment specifically arising from Wisner’s actions:
a. medications estimated at $100 per month for each medication indefinitely,
including at least two or three of the following medications: Prazosin (for
nightmare suppression), Propranolol (also for plaintiff’s nightmares, but
specifically to decrease the intensity of the physical and psychological reaction
when a nightmare startles him from his sleep), and appropriate antidepressant
18
In his written Closing Argument Reply (Doc. 159), plaintiff argued he never will recover to the point that
one reasonably could expect him to begin using the VA again for health care. Both plaintiff and Dr.
Peterson testified to this conclusion. The court concludes, however, that plaintiff hasn’t carried his burden
of proof on this question. Simply put, plaintiff hasn’t proved that a reasonable person, in plaintiff’s
position, would choose to forego medical care in lieu of returning to the provider where plaintiff sustained
the abuse that he sustained. The evidence convinced the court of the powerful restorative value of
prolonged psychotherapy and related treatment. So, the court finds, plaintiff reasonably can return to the
VA after some 25 years of intensive treatment.
22
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medications focused on generalized anxiety disorder and PTSD (or mood
stabilization agents such as Abilify);19
b. private psychiatric medication monitoring on a quarterly basis, indefinitely, at
$350 per hour; and
c. trauma-focused, Ph.D.-level psychotherapy every other week for six to 12
months, then continuing monthly for five years, and then quarterly for an
indefinite amount of time, at a cost ranging from $175 to $300 per hour.
56. The court finds Dr. Peterson’s treatment recommendations generally supported and
appropriately tied to Wisner’s conduct, with one exception: Dr. Peterson recommended
private psychiatric medication monitoring on a quarterly basis. But plaintiff has been
receiving this monitoring from Dr. Pattison on a quarterly basis, averaging 16 to 18
minutes per appointment. Plaintiff has a therapeutic relationship with Dr. Pattison, even
though Dr. Pattison has only managed plaintiff’s substance abuse medication (Suboxone).
The court finds that it is feasible (and likely beneficial) for plaintiff to continue to receive
his medication management through Dr. Pattison and the VA.
57. Dr. Ward testified that the total present value of the PTSD treatment recommended by
Dr. Peterson (“PTSD Life Care Costs”) is $413,941.
19
Dr. Peterson was ambivalent whether plaintiff would need both types of nightmare medication and whether
plaintiff would need both an antidepressant and mood stabilizer. He testified plainly that plaintiff could
need one or both types of medication for his nightmares. His testimony on the antidepressant and mood
stabilizer was more confusing; on direct examination, Dr. Peterson affirmatively answered a question by
plaintiff’s counsel suggesting that two types of medical providers would need to discuss “appropriate
antidepressant medications or mood stabilization agents” for plaintiff. But on cross examination, Dr.
Peterson specified that he was recommending both antidepressants and mood stabilizers for plaintiff. Dr.
Peterson then concluded that he was recommending a total of three psychiatric medications in addition to
Suboxone. But the court finds the testimony on this issue clear on just one point: Dr. Peterson was not
recommending with sufficient certainty four different medications at $100 each per month, as Dr. John
Ward—plaintiff’s expert witness specializing in economics—assumed in his damage calculations.
23
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58. The court finds that Dr. Ward based his calculation, however, on assumptions that are
inconsistent with the evidence. Specifically, the court finds the following flaws with the
calculation for “PTSD Life Care Costs”:
a. Dr. Ward testified that the present value of plaintiff’s psychiatric medications was
about 60% of the total “PTSD Life Care Costs.” This calculates to around
$248,000 for medication. But Dr. Ward assumed that plaintiff needed four
separate medications, at a cost of $100 each, per month. Dr. Peterson’s testimony
about the number of medications that plaintiff needed, however, was unclear.
After reviewing his testimony closely, the court is uncertain how many types of
medication—in Dr. Peterson’s opinion—plaintiff will need. But plaintiff did not
meet his burden to show that he will need all four, or that each would average a
cost of $100 per month. To the contrary, defendant showed that the medications
could be purchased for much less on the internet. Moreover, Dr. Abrams testified
that, in his experience, prescriptions could be filled through, and covered by the
VA—even if prescribed by a non-VA provider. The court finds that plaintiff
could continue to fill his psychiatric prescriptions through the VA.
b. Dr. Ward calculated plaintiff’s medication-monitoring appointments at $350 per
quarter, indefinitely. But Dr. Peterson testified that the rate per hour was $350.
Plaintiff’s appointments with Dr. Pattison have averaged 16 to 18 minutes apiece,
and the court heard no evidence providing a basis to conclude that a full hour per
calendar quarter would be needed to discuss coordination of psychotherapeutic
medications, along with Suboxone. Inferring that it would take some amount of
time longer than plaintiff’s current appointments—perhaps up to 30 minutes,
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since the consultation will involve more medications—the court concludes that
Dr. Ward’s total for these appointments is inflated by at least half. Moreover, as
noted above, plaintiff’s current therapeutic relationship with Dr. Pattison suggests
that he could continue to see Dr. Pattison with the VA for his medication
management.
c. Also, there is some question whether Dr. Ward’s calculation for the cost of
psychotherapy is inflated. At a minimum, it is confusing. The testimony never
explained why Dr. Ward calculated the number of appointments as 4.3 per month
for nine months, when Dr. Peterson testified that plaintiff should receive
treatment every other week for six to 12 months.
59. Dr. Ward was asked to assume that plaintiff could never return to the VA for health care
and thus calculated the present value of the replacement cost of plaintiff’s VA health
benefits. To calculate this cost, Dr. Ward found the insurance plan that would provide
benefits most nearly like those provided by the VA. He then calculated the total cost,
including deductibles and premiums for health, dental, and vision insurance from
plaintiff’s current age—which is 38 years old—to age 65. This value is $625,012.
60. Dr. Ward then calculated the deductibles and cost of Medicare parts A, B, D, and F from
age 65 to plaintiff’s life expectancy of 78.45. That value is $306,674.
61. The total for the three elements of economic damages calculated by Dr. Ward—
replacement health care to age 65, Medicare costs after age 65, and PTSD Life Care
Costs—is $1,345,628.20
20
By the court’s math, $413,941 + $625,012 + $306,674 = $1,345,627. The court assumes the one dollar
difference is a rounding error. And in any event, it is immaterial.
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Conclusions of Law
A.
Wisner’s Actions Were Within the Scope of His Employment
1. The United States is liable under the FTCA only for tortious acts committed by its
employees while “acting within the scope of [their] office or employment.” 28 U.S.C. §
1346(b)(1).
2. The court determines “scope of employment” using the law of the place where the
allegedly tortious act occurred—in this instance, Kansas. Fowler v. United States, 647
F.3d 1232, 1237 (10th Cir. 2011); see also 28 U.S.C. § 1346(b)(1).
3. In Kansas, an employee acts within the scope of employment when (1) he performs
services for which he has been employed, or (2) he does anything “reasonably incidental
to [his employment].” O’Shea v. Welch, 350 F.3d 1101, 1103 (10th Cir. 2003) (quoting
Pattern Instructions Kansas 3d 107.06; Williams v. Cmty. Drive-In Theater, Inc., 520 P.2d
1296, 1301–02 (Kan. 1974)).21
21
The court notes that the Kansas Judicial Council has amended the Pattern Instructions Kansas 3d since
O’Shea cited them. The Pattern Instructions Kansas is now in its fourth edition. The current model
instruction omits much of the language quoted in O’Shea. In the fourth edition, the model instruction
simply recites, “The scope of employment is the complete range of activities an employee is authorized to
perform and those an employee might reasonably be expected to perform while carrying out the business of
the employer.” Pattern Instructions Kansas 4th 107.06. But the Comment to the revised pattern instruction
107.06 discussed O’Shea with apparent approval. Moreover, the Kansas Supreme Court relied on the
second edition of pattern instruction 7.04 (which became 107.06 in the third and fourth editions) in several
“scope of employment” cases. See, e.g., Williams, 520 P.2d at 1301–02; Commerce Bank of St. Joseph,
N.A. v. State, 833 P.2d 996, 999 (Kan. 1992). More recently, the Kansas Court of Appeals cited Williams
and Commerce Bank for the “scope of employment” standard, using the identical language from the second
and third editions of the model instruction, but attributing the language to the Kansas Supreme Court itself
and not the older pattern jury instructions. Farmers Bank & Trust v. Homestead Cmty. Dev., No. 120,671,
2020 WL 5849345, at *15 (Kan. Ct. App. Oct. 2, 2020). The Comment to the fourth edition of 107.06 also
cites Williams and Commerce Bank, again with apparent approval. Given this context, the court determines
that the language in Williams and Commerce Bank remains a valid expression of the Kansas standard for
determining whether conduct is within the scope of employment. The court concludes that the guidance in
O’Shea remains relevant and useful for evaluating employees’ conduct.
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4. As reiterated in O’Shea, the test does not ask whether the employer “expressly authorized
or forb[ade]” the conduct. 350 F.3d at 1103 (quoting Pattern Instructions Kansas 3d
107.06).
5. Instead, the controlling test asks whether the employer should have “fairly foreseen” the
conduct “from the nature of the [employment] and the duties relating to it.” Id. (quoting
Pattern Instructions Kansas 3d 107.06); see also Commerce Bank of St. Joseph, N.A. v.
State, 833 P.2d 996, 999 (Kan. 1992).
6. Applying this test to the evidence here reveals that a reasonable employer in the VA’s
position should have foreseen Wisner’s tortious conduct. Indeed, the VA actually did
foresee it. Multiple patients had complained to the VA about Wisner’s conduct before
and while he was treating plaintiff. And Wisner was in the health care business—one
where the risk for patient abuse is widely recognized. Indeed, the VA has issued a
variety of directives designed to minimize that risk. Wisner’s duties included meeting
one-on-one with patients in closed-door examination rooms. He engaged in full-body
exams and asked intimate and probing questions. All of Wisner’s conduct was well
within the scope of his employment.
7. In addition to this general determination, the parties agree that the “slight deviation” test,
O’Shea v. Welch, 350 F.3d at 1106, applies to determine whether an employee’s conduct
was “reasonably incidental” to his employment—thus rendering the conduct within the
scope of employment. The O’Shea case certainly involved different facts than this case,
but it provides helpful guidance showing how Kansas determines which actions are
reasonably incidental to employment, qualifying the actions as ones within the scope of
employment.
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8. “Application of the slight deviation analysis allows for more flexibility and accuracy in
the application of the law to each fact scenario. The Kansas pattern jury instruction[] . . .
does not express a bright-line rule but instead illustrates a type of slight deviation rule
which requires a determination of what is reasonably incidental to employment and what
conduct should have been fairly foreseen.” Id.
9. The slight deviation test allows an employee to pursue “dual purpose ventures” without
wholly departing from the scope of employment. Id. at 1107. In using the phrase “dual
purpose ventures,” the Tenth Circuit cited the following language from a California
appellate court case to help explain the term: “Where the employee may be deemed to be
pursuing a business errand and a personal objective simultaneously, he will still be acting
within the scope of his employment.” Id. (citing Felix v. Asai, 237 Cal. Rptr. 718, 722
(Cal. Ct. App. 1987)).
10. “An employee does not cease to be acting within the course of his employment because
of an incidental personal act, or by slight deflections for a personal or private purpose, if
his main purpose is still to carry on the business of his employer. Such deviations which
do not amount to a turning aside completely from the employer’s business, so as to be
inconsistent with its pursuit, are often reasonably expected and the employer’s assent
may be fairly assumed.” Id.
11. Under Kansas law, six factors control the analysis whether an employee has engaged in a
slight or substantial deviation: (1) the employee’s intent; (2) the nature, time, and place
of the deviation; (3) the time consumed in the deviation; (4) the work for which the
employee was hired; (5) the incidental acts reasonably expected by the employer; and (6)
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the freedom allowed the employee when performing his job responsibilities. Id. at 1108
(citation omitted).
12. Applying these factors to the court’s factual findings, the court concludes that Wisner
engaged in a slight deviation from his employment when he abused plaintiff, his patient.
Specifically, his intent was mixed. Wisner sought both to conduct thorough examinations
and also satisfy his sexual curiosity (factor 1). The deviations took place within the
context of longer medical examinations in a medical exam room during regular clinic
hours (factor 2). The deviations themselves lasted less than a minute (factor 3). Wisner
was hired to physically examine patients, which included genital and rectal examinations
when medically recommended (factor 4). The VA received many complaints about
Wisner’s practices before and while he was seeing plaintiff as a patient, making his
deviations foreseeable (factor 5). The VA was well aware of the risks of patient abuse,
rendering it reasonable to expect acts of sexual abuse could occur if it exercised legally
inadequate supervision—which it did (factor 5). Wisner was given wide latitude and
freedom to perform his job responsibilities. He was the only primary care provider in a
clinic with as many as 1,000 veteran patients. Although the VA was required to devote
oversight to his patient interactions, the evidence shows that it neglected to review his
activities (factor 6). In sum, all six factors favor the conclusion that Wisner’s deviation
from his employment duties was slight, not substantial.
13. Applying the Kansas scope of employment test, the court concludes that Wisner acted
within the scope of his employment, or reasonably incidental to it, when he conducted
improper and unnecessary genital examinations on plaintiff. The VA may therefore be
liable for Wisner’s conduct under the FTCA, absent some other bar to recovery.
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B.
The VA Immunity Statute Applies to Plaintiff’s Claims
14. The FTCA does not waive sovereign immunity for claims arising out of a battery. 28
U.S.C. § 2680(h) (exempting from its waiver “[a]ny claim arising out of assault, battery,
false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander,
misrepresentation, deceit, or interference with contract rights”).
15. But § 2680(h) also establishes a statutory “exception to the exception.” Specifically, the
VA Immunity Statute allows a remedy against the United States under the FTCA for
damages arising from medical services provided by health care employees of the VA
under 38 U.S.C. § 7316(a)(1), (f). Ingram v. Faruque, 728 F.3d 1239, 1245–46 (10th
Cir. 2013) (“‘[Section] 2680(h) does not bar application of the FTCA to [intentional] tort
claims arising out of the conduct of VA medical personnel within the scope of’ 38 U.S.C.
§ 7316(f).”) (citation omitted).
16. The Tenth Circuit has explained the rationale for the VA Immunity Statute: “In some
instances, State law characterize[d] an act of medical malpractice as an intentional tort,
leaving VA medical personnel potentially liable for an action for which the law intends
the Government to assume liability.” Franklin v. United States, 992 F.2d 1492, 1500
(10th Cir. 1993) (citing H.R. Rep. No. 100-191, 100th Cong., 2d Sess. 19 (1988),
reprinted in 1988 U.S.C.C.A.N. 432, 450).
17. The plain language of this exception-to-the-exception statute, however, does not confine
the statute’s waiver to claims of medical battery. Specifically, the Circuit has explained it
this way:
Although Congress was specifically concerned with medical battery, the
remedy available under § 7316(f) is not limited to battery. Instead, by
rendering 28 U.S.C. § 2680(h) inapplicable, § 7316(f) allows the United
States to be sued for “assault, battery, false imprisonment, false arrest,
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malicious prosecution, abuse of process, libel, slander, misrepresentation,
deceit, or interference with contract rights,” . . . . Thus, in the context of
VA health care employees providing medical care or treatment, § 7316(f)
provides a remedy under the FTCA for claims of intentional torts, including
false arrest and false imprisonment.
Ingram, 728 F.3d at 1249.
18. To apply, § 7316(f) requires only that a battery be committed by VA personnel “in
furnishing medical care or treatment.” 38 U.S.C. § 7316(f).22 Now, in the full
evidentiary context of a trial, the court recommits to the gravamen of its earlier rulings:
the VA Immunity Statute’s plain language controls, and it does not limit immunity to
claims of medical battery. Doe A.L. v. United States, No. 16-2627, 2020 WL 59861, at
*4 (D. Kan. Jan. 6, 2020); see also Doe S.B. v. United States, No. 16-2575, 2020 WL
59646, at *4 (D. Kan. Jan. 6, 2020); Doe P.M. v. United States, No. 16-2315, 2020 WL
59645, at *4 (D. Kan. Jan. 6. 2020); Doe D.P. v. United States, No. 16-2267, 2020 WL
59640, at *4 (D. Kan. Jan. 6, 2020).
19. As noted in the court’s Findings of Fact, Wisner’s improper actions were taken while he
furnished medical care or treatment. They occurred during medical appointments, and
while Wisner conducted medical and genital exams as part of his duties as a PA.
Although genital examinations were not medically indicated for plaintiff, they still could
22
The complete language of the statute requires that the negligent or wrongful act or omission be committed
“in furnishing medical care or treatment . . . while in the exercise of such person’s duties in or for the
Administration.” Defendant now argues—by incorporating its brief (Doc. 119) from John Doe P.M. v.
United States, No. 16-2315—that the last part of subsection(f) (“while in the exercise of such person’s
duties”) provides another reason for rejecting plaintiff’s position. According to defendant’s newest
argument, plaintiff contends that anything occurring during a medical appointment falls under § 7316(f).
And, defendant continues, plaintiff’s reading “violates the maxim that a Court must construe a statute to
give effect to all of its provisions.” (See Doc. 119 at 7 of the John Doe P.M. case, No. 16-2315.) But in the
court’s judgment, plaintiff doesn’t argue that any act during a medical appointment would qualify under §
7316(f). Instead, Wisner’s tortious acts fall under the statute—plaintiff argues—because they were part of
more extensive medical examinations. Also, they occurred while Wisner exercised his duties for the
Veterans Administration—which, in Wisner’s case, include providing medical care and treatment. The last
part of the statute does not render the “in furnishing medical care” language useless.
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serve a medical purpose—although Wisner conducted them improperly, without gloves.
The court again rejects defendant’s position that “sexual molestation” can never qualify
as “medical care or treatment.” (Case No. 16-2315, Doc. 119, at 6, 8.) Defendant’s
argument artificially compartmentalizes Wisner’s behavior in a fashion contradicting the
evidence. Defendant’s argument conflicts with the actual evidence showing how, when,
and where Wisner committed tortious acts. In so doing, defendant improperly simplifies
the analysis and glosses over the plain language of the statute. When Wisner touched
plaintiff, he did so within the larger context of a medical appointment and a physical
examination—a job duty he discharged regularly. The court concludes that Wisner was
engaged in the process of furnishing medical care when he committed his wrongful acts.
20. Defendant cites a recent Eleventh Circuit case to support its argument, Knezevich v.
Carter, 805 F. App’x 717 (11th Cir. 2020). The Eleventh Circuit decided this case after
the court’s earlier orders on this subject.23 In Knezevich, plaintiff brought a defamation
claim against his VA doctor because the VA doctor, while discussing a surgical
procedure with plaintiff, yelled into the hallway that the plaintiff was threatening him. A
nurse already had taken plaintiff’s vital signs, and the doctor had drawn the shape of an
incision on the plaintiff’s chest when the doctor’s outburst occurred. The Eleventh
Circuit separated the “harm-causing conduct”—the doctor’s hallway defamation of the
plaintiff—from the rest of the medical appointment, noting that checking vital signs and
drawing the incision’s shape were “not what allegedly caused [the plaintiff] harm.” Id. at
725.
23
Defendant does not actually cite Knezevich in this case, but instead incorporated its brief from John Doe
P.M. v. United States, 16-2315 (Doc. 119).
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21. Knezevich’s facts differ from the ones in this case. The tort alleged in Knezevich—
defamation—had a distinct beginning and end and was easily separated from the medical
care provided by the doctor. In contrast, in this case, the edges of the boundary
separating Wisner’s proper medical care from his wrongful conduct are far less distinct.
Wisner’s job included full genital examinations for his patients’ medical care. It was
never appropriate to conduct a genital exam without gloves, but performing the exam
itself still had a valid basis in medical care. Wisner just executed it improperly. And
even when not medically indicated, the examination still could serve a medical purpose.
The line dividing an intentional tort and from conduct not constituting an intentional tort
is much more muddled here than in Knezevich.
22. For these reasons, the court concludes that the rationale of Knezevich does not apply to
this case. It does not justify modifying the court’s earlier rulings defining the boundaries
of the operative phrase—“in furnishing medical care or treatment.”
23. Because Wisner’s improper actions were committed “in furnishing medical care or
treatment,” the VA Immunity Statute applies and, on these facts, waives the sovereign
immunity of the United States.
C.
Plaintiff Has Met the Elements of His Medical Malpractice Claim
24. Because plaintiff’s medical malpractice claim has survived defendant’s various
challenges, the court now must evaluate whether plaintiff has carried his burden to prove
all three elements of his claim. These elements are (1) a duty to meet or exceed a certain
standard of care; (2) a breach of that duty; and (3) the breach proximately caused the
33
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patient’s injury. Nold v. Binyon, 31 P.3d 274, 285 (Kan. 2001); Wozniak v. Lipoff, 750
P.2d 971, 975 (Kan. 1988).24
25. First: Duty. Plaintiff presented evidence—by way of expert testimony—establishing the
standard of care. That expert testimony provides the standard by a preponderance of the
evidence on the following subjects. One, gloves are always required when conducting
genital or rectal examinations under the relevant standard of care. Two, genital and rectal
examinations are not required at every visit; only when medically indicated or necessary.
Three, when genital or physical exams are conducted, certain disrobing practices should
be used and sensitive matters should be discussed in a proper manner. Four, Wisner, as a
PA, had a duty to comply with this standard of care.
26. Second: Breach. Plaintiff’s proof carried his evidentiary burden and thus proved that
Wisner breached the standard of care. Specifically, every time Wisner conducted a
genital examination without using gloves, he violated the standard of care. And all of the
genital examinations he conducted on plaintiff were unnecessary. This conduct also
violated the standard of care, as did Wisner’s disrobing practices and inappropriate sexual
commentary.
27. Third: Causation of Injury. Plaintiff also proved by a preponderance of the evidence that
he suffered harm as a proximate result of Wisner’s breach of the standard of care. The
court will address the extent of this harm in light of plaintiff’s pre-existing conditions
later in this Memorandum of Decision. But, for now, the court finds that Wisner’s acts
caused plaintiff harm independent of his pre-existing conditions.
24
The court only considers the merits of this claim with respect to the actions of Wisner himself as the
tortfeasor. While the court has considered the actions or inactions of other VA actors for purposes of its
foreseeability analysis and other contextual purposes, plaintiff only preserved a claim for recovery based on
Wisner’s actions.
34
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28. Because plaintiff has shown that all three elements of a medical malpractice claim are
met, the court next addresses the last element—the extent of damages plaintiff sustained
by Wisner’s conduct.25
D.
Damages
29. Plaintiff requests economic damages in the amount of $1,345,628—the value of
recommended treatment, plus the cost of private health care equivalent to what plaintiff
had earned the right to receive for free from the VA. In an earlier, related case, defendant
asked the court to place any economic damage award in a reversionary trust. In this case,
the court asked the parties to brief whether any award in this case should be placed in a
reversionary trust.
30. Plaintiff also requests non-economic damages in the total amount of $5,382,512, broken
down in this fashion: $1,345,628 for pain; $1,345,628 for suffering; $1,345,628 for
disability (PTSD); and $1,345,628 for mental anguish.
31. Kansas law governs the court’s consideration of plaintiff’s damages request. Hatahley v.
United States, 351 U.S. 173, 182 (1956) (“Under the [FTCA], damages are determined by
the law of the State where the tortious act was committed.”); 28 U.S.C. § 1346(b).
25
Plaintiff also seeks to recover on a claim for intentional infliction of emotional distress. But the court
already has determined that plaintiff is entitled to recover from the VA on his medical malpractice claim.
Any recovery for intentional infliction of emotional distress would duplicate plaintiff’s malpractice claim,
so the court need not address the claim further, except to note this one point: To the extent that plaintiff is
still trying to bring this claim against the VA for actions (or inactions) by Wisner’s supervisors, he may not
do so. Plaintiff administratively exhausted claims solely based on Wisner’s personal conduct. “[A]lthough
a plaintiff’s administrative claim need not elaborate all possible causes of action or theories of liability, it
must provide notice of the facts and circumstances underlying the plaintiff’s claims.” Estate of Trentadue
v. United States, 397 F.3d 840, 853 (10th Cir. 2005) (internal quotations omitted). Plaintiff did not mention
or otherwise reference any action or inaction by Wisner’s supervisors (or the VA as an entity) in his
administrative claim. For an FTCA claim, each individual claimant must exhaust his individual claims
before filing suit. Haceesa v. United States, 309 F.3d 722, 734 (10th Cir. 2002). The court therefore
concludes that plaintiff has failed to exhaust an intentional infliction of emotional distress claim based on
the actions of anyone other than Wisner. And even if the court were to consider the merits of an intentional
infliction of emotional distress claim, it would limit that claim to actions taken by Wisner himself.
35
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32. A plaintiff may recover for medical expenses and economic loss he is reasonably
expected to suffer in the future. Pattern Instructions Kansas 4th 171.02 (citing Kan. Stat.
Ann. § 60-249a). And a plaintiff may recover noneconomic loss for “pain, suffering,
disabilities, disfigurement and any accompanying mental anguish.” Id.
33. Kansas law allows a plaintiff to recover for aggravation or activation of a preexisting
condition. Pattern Instructions Kansas 4th 171.43 (“[I]f the plaintiff had a preexisting
physical ailment, defect or disability and you find this condition was aggravated or made
active causing increased suffering or disability, then the plaintiff is entitled to recover for
such increased suffering and disability.”) (citing Cott v. Peppermint Twist Mgt. Co., 856
P.2d 906 (Kan. 1993); Rowe v. Maule Drug Co., 413 P.2d 104 (Kan. 1966); and
Knoblock v. Morris, 220 P.2d 171 (Kan. 1950)).
34. Plaintiff undoubtedly suffered from PTSD and drug addiction before he ever encountered
Wisner. The court heard persuasive testimony that plaintiff’s condition was aggravated
after he learned that Wisner had manipulated him for sexual gratification. Likewise, the
court accredits plaintiff’s evidence that plaintiff continues to suffer from aggravated
PTSD. The court finds that plaintiff deserves to recover damages in some amount. The
court next examines, first, whether any economic damages are warranted, and, if so, how
much. The court then turns to non-economic damages. The analysis concludes with the
reversionary trust issue.
Economic Damages
35. Plaintiff requests two kinds of economic damages: value of recommended treatment for
his PTSD and anticipated costs of private health care, assuming he never returns to the
VA to receive care. The court concludes that the evidence supports an award allowing
36
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plaintiff to seek treatment—outside the VA—for his PTSD, depression, anxiety, and
other mental health and addiction problems caused by Wisner. Also, the evidence
supports an award of damages equivalent to the cost of securing private health care until
age 65. This award will enable plaintiff to secure equivalent health insurance to replace
the VA health care that, in effect, Wisner’s conduct took from plaintiff.
36. Allowing plaintiff to seek some treatment for his PTSD and related problems, outside the
resources provided by the VA, is supported by evidence about the nature of harm
inflicted by Wisner’s conduct.26 Requiring plaintiff to return to the VA for treatment
necessitated by wrongdoing inflicted on him by one of the VA’s providers is both unjust
and illogical. Also, here, it is likely to be unproductive. The court accredits the expert
testimony that plaintiff is unlikely to develop a trusting therapeutic alliance with VA
providers, i.e., open up to or trust VA providers to treat mental health issues caused by
one of their former colleagues. The court also accredits plaintiff’s testimony that—post-
26
The court heard evidence—over plaintiff’s objections—about another option for health care, the VA
Choice program. Plaintiff contends that evidence about availability of benefits through the VA Choice
program violates the collateral source rule. The court allowed testimony about VA Choice, but advised the
parties after the evidence was concluded that they could brief the issue whether the collateral source rule
applied. The court affirms its ruling that evidence about the possibility plaintiff could receive benefits
through the VA Choice program is not barred by the collateral source rule.
This rule precludes evidence of other benefits available to a plaintiff, offered to benefit a tortfeasor by
reducing its liability for damages. Martinez v. Milburn Enters., Inc., 233 P.3d 205, 221 (Kan. 2010). Here,
it is not clear that the VA Choice program always would be available to plaintiff—or that it would provide,
when available, benefits comparable to those provided for combat veterans at VA facilities. The court
therefore finds evidence about the program unhelpful in determining plaintiff’s damages (and, in any event,
inadmissible for that purpose).
But while the evidence is unhelpful, the court finds it admissible for another purpose: plaintiff’s damages
model asks the court to award plaintiff money so he can secure equivalent private health insurance because
he cannot return to the VA for care. Defendant offers evidence of the VA Choice program to show that
plaintiff has a viable way to continue using his VA benefits without having to return to the VA facilities
where he was sexually abused. For this purpose, the court finds evidence about the program, though
admissible without offending the collateral source doctrine, unhelpful to its damage analysis. At bottom,
the court’s decision to admit evidence of the VA Choice program does not affect the outcome of any issue
in this case.
37
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Wisner—he cannot trust the VA to treat his wartime trauma but that he believes he could
trust the right civilian therapist to treat both Wisner-related and wartime trauma. The fact
that plaintiff barely opened up to Dr. Gadt-Johnson after nearly seven weeks of intensive
inpatient treatment supports this conclusion.
37. Plaintiff credibly testified that he will seek the recommended treatment and that he
sincerely wants to improve his mental health. The court accredits plaintiff’s testimony on
this point, finding plaintiff’s statement sincere. Unfortunately, properly valuing the cost
of this treatment proves difficult.
38. Plaintiff presented evidence by his expert economist, Dr. Ward, designed to value the
cost of treatment for plaintiff’s PTSD and related problems. Dr. Ward opined that the
cost of securing this treatment is $413,941. But defendant’s cross-examination
persuasively challenged two components of Dr. Ward’s opinion.
39. First, Dr. Ward valued the cost of acquiring prescriptions recommended by Dr.
Peterson—plaintiff’s expert psychiatrist—at $248,000.27 But defendant’s crossexamination of Dr. Ward showed that his calculation was inflated by assumptions
contradicting Dr. Peterson’s testimony about the medications plaintiff needs. Also, the
evidence in this trial, unlike earlier trials of related cases, established that plaintiff could
fill prescriptions through VA pharmacy services even if prescribed by a non-VA doctor.
In this respect, this evidence distinguished the case from others already tried by the court.
Given plaintiff’s evidentiary shortfall, plaintiff has failed to carry his burden to establish
that the injury caused by defendant deprived him of access to the prescriptions he will
27
Dr. Ward did not specify a precise amount for these medications. He testified that the present value of
plaintiff’s psychiatric medications was about 60% of the total “PTSD Life Care Costs.” Sixty percent of
$413,941 is about $248,000.
38
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need. And even if he had proved that missing link, he has not proved the value of those
prescriptions by a preponderance of the evidence. The court thus declines to award
plaintiff any damages for “PTSD Life-Care Prescription Costs.”
40. Second, plaintiff seeks an award of $165,941 to pay for psychotherapy (sometimes called
“talk therapy”) and prescription management appointments.28 Once again, defendant
effectively challenged the accuracy of this calculation. Namely, it was difficult to discern
how much of this $165,941 is ascribed to prescription management and how much to
psychotherapy. But acting on the best information in the record, the court concludes that
$51,300 of the $165,941 figure consists of psychotherapy costs.29 The court concludes
that plaintiff has carried his burden to prove that Wisner’s conduct caused an injury
requiring substantial psychotherapy treatment for the rest of his life. Dr. Peterson
estimated the cost of this psychotherapy at $175 to $300 per hour and defendant didn’t
challenge that price range. Using the midpoint of this range—$237.50 per hour—the
court concludes the cost of securing this treatment is $51,300. This figure is derived
from the frequency and duration of treatment supported by Dr. Peterson’s expert opinion,
i.e., (a) an hour-long session, every other week for nine months (the midpoint of Dr.
Peterson’s opinion of six to 12 months) ($4,750); (b) 60 hour-long sessions, spread over
the next five years (one session per month) ($14,250); and (c) 136 hour-long sessions,
conducted quarterly (four per year), spread over 34 years, through plaintiff’s estimated
28
Again, Dr. Ward did not specify this amount in his testimony. This figure is reached by subtracting
$248,000 (for medication) from the total “PTSD Life Care Costs” of $413,941.
29
The court recognizes that $165,941 is the present value of future care, which means that Dr. Ward
projected costs into the future and then discounted the number to present value. The court does not have
evidence to explain Dr. Ward’s calculation process such that the court feels competent to apply it. The
court is therefore left to calculate values based only on the hourly provider charges and frequency of visits
that the evidence supports.
39
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life expectancy of age 78 ($32,300). The court thus awards a total of $51,300 to make
plaintiff whole for the cost of securing psychotherapy designed to treat PTSD and related
mental health problems caused by the VA’s employee, Wisner.
41. This leaves the second half of the second component of plaintiff’s PTSD treatment
damages. This portion of plaintiff’s request seeks damages to pay for prescription
management by an appropriately trained medical provider. Plaintiff seeks some portion
of the $165,941 as damages for the cost of securing medication management of
prescriptions to treat PTSD caused by Wisner’s conduct. The evidence established that
plaintiff has developed a sufficient relationship with the VA’s Dr. Pattison, who has
provided this service to plaintiff for the last four years. And, importantly, plaintiff has
continued to see Dr. Pattison in this capacity after he learned that Wisner had sexually
abused him. Given this evidence, the court concludes that plaintiff has failed to prove
that Wisner’s conduct—conduct for which the VA is liable—has deprived plaintiff of this
benefit. In sum, plaintiff has failed to prove that an award of some portion of $165,941
or, indeed, any award of damages to replace this service is warranted. Putting it simply,
plaintiff has not proved an injury warranting an award of damages based on this part of
his claim.
42. This conclusion leaves plaintiff’s next damage component. It seeks to recover the value
of plaintiff procuring ongoing private health care insurance. The evidence in this case
justifies such an award. Plaintiff has proved that the VA’s tortious conduct effectively
compromised his ability to receive necessary medical care from the VA. Indeed, plaintiff
effectively proved that the VA’s wrongful conduct quashed his right to access to VAprovided medical care. In the years since Wisner, plaintiff has not seen a primary care
40
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practitioner. He has neglected his physical health because he distrusts the providers in
the VA system. While Wisner was the actor, plaintiff testified credibly that Wisner’s
actions have caused plaintiff to lose trust in the entire VA system (even in doctors in
general). Plaintiff’s testimony, coupled with testimony by Dr. Peterson that validated
plaintiff’s distrust, convinces the court that Wisner’s actions caused plaintiff to lose trust
in the VA medical system. The court has no expectation that plaintiff would alter his
practices to utilize the VA for necessary preventative, maintenance, and diagnostic
care—rendering his VA health benefits useless to him.
43. At first blush, this form of damages seemed unusual to the court. But courts have
approved similar damage awards because a prevailing plaintiff should not be forced to
return time-after-time to his tortfeasor for care. See, e.g., Molzof v. United States, 6 F.3d
461, 468 (7th Cir. 1993) (“[W]e share the reluctance of other courts addressing this issue
to deny the plaintiff the freedom to choose his medical provider and, in effect, to compel
him to undergo treatment from his tortfeasor.”). The damages in Molzof and similar
cases involved future medical expenses directly caused by the tortfeasor, which
distinguishes them from this case’s claim. But still, they provide guidance that the court
finds persuasive: Because of Wisner’s conduct, plaintiff views the VA—Wisner’s former
employer—as his tortfeasor. This view is supported by the controlling law because the
United States is legally liable for Wisner’s conduct. The court concludes plaintiff has
proved that an award allowing him to secure health care through providers other than the
VA is necessary to make him whole. In summary form, by his combat service to the
United States, plaintiff had earned the right to free medical care at VA facilities.
Wisner’s conduct—conduct for which the United States is liable—deprived plaintiff of
41
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that right. Plaintiff has adduced persuasive evidence that one way to make him whole for
that loss is a damages award sufficient to replace that right by purchasing equivalent
private health care insurance. Defendant came forward with no evidence of an alternative
measure of damages for this loss.30
44. As noted earlier, the court is mindful that plaintiff has returned to the VA for some
mental health treatment after learning of Wisner’s transgressions. But using the VA for
necessary emergency treatment was justified; plaintiff’s drug use had spiraled, and he
was trying to get help from any available source. To hold that plaintiff should have
continued to succumb to his addictions and avoided the free care the VA offered is
illogical. The court thus awards plaintiff the present value of his VA health benefits, but
only through age 65, as calculated by Dr. Ward, in the total amount of $625,012. This
award does not include, however, Medicare costs from age 65 through plaintiff’s life
expectancy of 78.45 (which Dr. Ward valued at $306,674). The court next explains why
it does not award for the cost of health care after age 65.
45. Consistent with the court’s Findings of Fact above, the court concludes that awarding
plaintiff the value of VA health benefits after plaintiff becomes eligible for Medicare is
not supported by the evidence. By age 65, plaintiff will have had the opportunity to make
a substantial investment in his mental health—more than 25 years of private treatment, by
the court’s count. At trial, plaintiff demonstrated a strong desire to secure help for his
mental struggles and addictions. The evidence supports a determination that plaintiff,
30
Indeed, defendant’s only response to plaintiff’s injury is to redirect him to the VA and require him to secure
his health care from the tortfeasor who injured him in the first place. The evidence persuades the court that
a reasonable person in plaintiff’s position would not return to the VA for that purpose. And separately, the
evidence persuades the court that plaintiff will not return to the VA for that purpose. It is undisputed that
plaintiff has decided to forego important medical services offered by the VA because of Wisner’s conduct.
In the court’s judgment, defendant’s argument offers plaintiff no remedy at all for this injury.
42
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motivated by this desire and armed with the economic wherewithal provided by the
court’s award of damages, can recover to a degree that awarding damages for private
health benefits outside the VA after age 65 is unnecessary. The court therefore
determines that plaintiff should receive the value as calculated by Dr. Ward for VA
health benefits through age 65—$625,012. But an award addressing medical benefits
beyond that point is too speculative to tie to plaintiff’s injuries, as Kansas law requires.
46. Adding the lifetime “PTSD Life Care Costs” of $51,300 to the present value of VA
health benefits through age 65, the court awards plaintiff economic damages totaling
$676,312.
Non-Economic Damages
47. The court now turns to non-economic damages. Plaintiff asks for compensation for four
distinct injuries: pain, suffering, disability, and mental anguish. The court agrees that
plaintiff has suffered non-economic damages. But the court does not find plaintiff’s
calculation of those damages arising solely from Wisner’s actions persuasive. Plaintiff
asks the court to award $1,345,628 for each of the four types of injury, a total of nearly
$5.4 million.
48. Kan. Stat. Ann. § 60-249a requires that the trier of fact itemize the amount of noneconomic damages in the categories of (1) pain and suffering, (2) disability, and (3)
disfigurement, and any accompanying mental anguish. The same statute requires the
court to itemize those three categories of damages “to reflect those amounts awarded for
damages sustained to date and those awarded for damages reasonably expected to be
sustained in the future.” Id.
43
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49. Plaintiff’s requested damage categories do not align precisely with the itemization
required by Kansas law. Plaintiff also has not separated his request into damages to-date
and future damages. But plaintiff’s model nonetheless provides something of a starting
point and assists the court’s efforts to fashion its award.
50. The court believes that plaintiff has overreached by requesting distinct damages for (1)
pain, (2) suffering, (3) disability, and (4) mental anguish. To be sure, dividing his alleged
non-economic damages into these four categories provides a multiplier enabling a larger
request. But this approach is not grounded in Kansas law. Under the plain language and
structure of § 60-249a, the court must separate non-economic damages into three
categories: “(A) Pain and suffering, (B) disability, (C) disfigurement, and any
accompanying mental anguish.” Pain and suffering are not separated from one another.
And “mental anguish” is listed in the same statutory subsection (§ 60-249a(1)(C)) as
disfigurement—an injury plaintiff has not experienced here.31 The court therefore finds it
appropriate to limit (and itemize) the non-economic damages to the two categories
actually supported by the evidence: (1) pain and suffering (to-date and future) and (2)
disability (to-date and future).
31
Plaintiff cites Pattern Instructions Kansas 4th 171.02 to support his approach of itemizing damages into
four categories. In fairness, the court can accept the proposition that 171.02 suggests this approach—or at
least makes the appropriate approach murky. It provides, “Noneconomic loss includes pain, suffering,
disabilities, disfigurement and any accompanying mental anguish suffered as a result of plaintiff’s injuries
to date (and the noneconomic loss plaintiff is reasonably expected to suffer in the future) . . . .” The model
instruction also advises, “There is no unit value and no mathematical formula the court can give you for
determining items such as pain, suffering, disability, and mental anguish.” The placement of punctuation in
either sentence does not mirror the punctuation used in § 60-249a. In the first sentence of 171.02, pain and
suffering are separated a comma, but “any accompanying mental anguish” is not separated from
disfigurement by a comma—which either represents a conscious decision not to use an Oxford comma or
an indication that mental anguish is considered only if it accompanies disfigurement. In the second
sentence in 171.02, disfigurement is not mentioned and mental anguish is listed as a fourth item. The court
declines to speculate whether the model instruction’s slight differences from § 60-249a were intentional or
unintentional. Instead, the court believes the better approach is for the court to follow the language and
structure of the statute, not the language used in the pattern jury instruction.
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51. To say the least, quantifying non-economic damages represents a daunting task. In
Kansas, when courts instruct juries how to assess damages for pain and suffering, they
typically provide this guidance, “There is no unit value and no mathematical formula the
court can give you for determining items such as pain, suffering, disability, and mental
anguish. You must establish an amount that will fairly and adequately compensate the
plaintiff. This amount rests within your sound discretion.” Pattern Instructions Kansas
4th 171.02.
52. The trier of fact here is the court—not a jury. When assessing non-economic damages,
the court follows the guidance of the Kansas Pattern Instruction and the counsel of the
Kansas Supreme Court. That court has explained, “‘Pain and suffering have no known
dimensions, mathematical or financial. There is no exact relationship between money
and physical or mental injury or suffering, and the various factors involved are not
capable of proof in dollars and cents. For this very practical reason the only standard for
evaluation is such amount as reasonable persons estimate to be fair compensation for the
injuries suffered, and the law has entrusted the administration of this criterion to the
impartial conscience and judgment of jurors, who may be expected to act reasonably,
intelligently and in harmony with the evidence.’” Kan. Malpractice Victims Coal. v. Bell,
757 P.2d 251, 260 (Kan. 1988), disapproved of on other grounds by Bair v. Peck, 811
P.2d 1176 (Kan. 1991) (citation omitted); Tucker v. Lower, 434 P.2d 320, 327 (Kan.
1967) (“There is no exact yardstick by which pain and suffering can be measured and the
various factors involved are not capable of proof in dollars. For this reason the only
standard for evaluation is such amount as twelve reasonable persons estimate to be fair
compensation when that amount appears to be in harmony with the evidence and arrived
45
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at without passion or prejudice.”). While the standard isn’t particularly satisfying—
particularly when one reasonable person must apply it, not 12—the court is mindful of
two things. One, the Kansas Supreme Court is in charge of the legal standards deployed
under that state’s law. This court must follow them when, as here, they control an aspect
of a federal court lawsuit. And two, trying to define a workable measure for this kind of
damages is challenging legal work. The court’s observation about the Kansas standard
doesn’t imply that it could do a better job.
53. The caselaw reporting and reviewing jury awards of non-economic damages reflects the
unprecise nature of this endeavor, even within the same jurisdiction, and involving the
same defendant. Compare Howsmon v. Ricci, 1993 WL 794315 (Cal. Super. Ct. Trial
Div. 1993) (reporting $325,000 jury verdict for non-economic damages after doctor
negligently performed unnecessary rectal examination at physician’s office, committing a
sexual battery) with Prendergast v. Ricci, 1994 WL 847897 (Cal. Super. Ct. Trial Div.
1994) (reporting a $100,000 “general damages” jury verdict after same doctor performed
rectal examinations—plural—and sexually assaulted plaintiff during the exams); see also
Elk v. United States, 87 Fed. Cl. 70, 97 (Fed. Cl. 2009) (awarding $250,000 for pain and
suffering after Army officer sexually assaulted prospective soldier during recruitment
process). Plaintiff urges the court not to use this case law as guidance.32 But the court
has not used the examples to develop its numbers for non-economic damages. Instead,
32
Actually, plaintiff suggests the court should consider case law as guidance—he just wants the court to use a
different case than the ones identified above. See Doc. 159 at 26, citing Mirlis v. Greer, 952 F.3d 36 (2d
Cir. 2020), where a jury verdict for sexual acts was much higher. In Mirlis, a jury found that a Jewish rabbi
had sexually molested a student for years. The jury awarded $15 million in compensatory damages and the
court thereafter awarded $5 million in punitive damages. Presumably because this verdict was so much
higher than the cases the court cited, plaintiff suggests that jury verdicts may not be the best guideposts.
Plaintiff is correct; the verdicts in the cases the court reviewed varied wildly. This is why the court did not
use the sample cases as a starting point, but merely to make a point and as a cross-check.
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the court cites these examples to demonstrate how much awards vary and as a something
of a cross-checking device.
54. Using Kansas law for guidance, the court finds that an appropriate award for plaintiff’s
pain and suffering to-date is $170,000. For future pain and suffering, the court awards
$50,000. For plaintiff’s disability to-date, the court awards $110,000. For future
disability, the court awards $40,000. These amounts (totaling $370,000) represent the
value that the court—as finder of fact—attributes to the non-economic harm caused by
Wisner’s conduct exacerbating plaintiff’s pre-existing conditions. The record firmly
establishes that plaintiff’s conditions worsened after he learned that Wisner had
manipulated and sexually molested him.
55. For ease of reference, the court summarizes its damages awards in the following chart:
Plaintiff Doe D.P. Chart of Damages
Requested Amount
Economic Damages ‐ PTSD Life Care
$248,000
– Prescription
Economic Damages ‐ PTSD Life Care
$165,941
– Psychotherapy Cost
Economic Damages – PTSD Life Care
– Medical Management
Economic Damages – Total PTSD
$413,941
Life Care
Economic Damages – VA Health
$625,012
Care Replacement to Age 65
Economic Damages – VA Health
$306,674
Care Replacement from Age 65 – 78
TOTAL ECONOMIC DAMAGES
1,345,62833
Non‐Economic Damages ‐ Pain &
$1,345,628 x 4 =
Suffering To‐Date
$5,382,512
Non‐Economic Damages – Future
Pain & Suffering
33
See supra footnote 20.
47
Amount Awarded
$0
$51,300
$0
$51,300
$625,012
$0
$676,312
$170,000
$50,000
Case 2:16-cv-02267-DDC Document 161 Filed 01/15/21 Page 48 of 50
Non‐Economic Damages ‐ Disability
To‐Date
Non‐Economic Damages – Future
Disability
TOTAL NON‐ECONOMIC DAMAGES
TOTAL ECONOMIC + NON‐
ECONOMIC DAMAGES
$110,000
$40,000
$5,382,512
$6,728,139
$370,000
$1,046,312
Proposed Reversionary Trust
56. Finally, the court asked the parties to brief the propriety of placing any economic
damages in a reversionary trust—a measure defendant asks the court to impose. At the
end of the trial, the court explained to the parties that it had not yet made a determination
on liability; but, if the court did find for plaintiff and award damages to plaintiff, the court
might ask the parties to weigh in on defendant’s trust proposal. The court emphasized
this concern here because, sadly, plaintiff has experienced several relapses of his
substance abuse problems. The court was trying to identify legally available options, in
case of an award for plaintiff, to protect the award and plaintiff from the risks of
unlimited access to untethered funds. Plaintiff indicated in his brief that he opposes a
reversionary trust, but he is willing to entertain other mechanisms to ensure that funds for
future medical expenses are used for that purpose.
57. Tenth Circuit law has approved reversionary trusts when it is in a minor’s best interest.
Hull v. United States, 971 F.2d 1499, 1504 (10th Cir. 1992); Hill v. United States, 81
F.3d 118, 121 (10th Cir. 1996) (recognizing inherent authority to create a reversionary
trust if it is “in the best interests of the child”); cf. Duplan v. Harper, 188 F.3d 1195,
1202 (10th Cir. 1999) (“The damages belong to the true plaintiffs, the [parents], and the
district court would have erred in imposing a trust on this award in the absence of their
consent.”). But plaintiff here isn’t a minor and he hasn’t consented to a reversionary
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trust. To the contrary, he opposes it. Nevertheless, in at least one case, a court has
imposed a reversionary trust when the plaintiff was not a minor. See, e.g., Deasy v.
United States, 99 F.3d 354, 359–60 (10th Cir. 1996) (affirming district court’s award of
damages to fund veteran’s lifetime medical and psychiatric care outside the VA, when the
award was placed in a reversionary trust).
58. In an earlier related case, the court considered imposing a reversionary trust, but
ultimately decided that the evidence did not warrant it. Leininger v. United States, No.
16-2627-DDC, 2020 WL 6392458, at *19 (D. Kan. Nov. 11, 2020). But the damages
award in this case is greater and the evidence of plaintiff’s addiction struggles is more
extensive. The court believes some sort of trust is appropriate—but not a reversionary
trust. With a reversionary trust, the damages awarded to make plaintiff whole would
revert to defendant if not used by plaintiff for medical care. As in Leininger, the court
understands defendant’s concern that it might have to fund plaintiff’s psychiatric and
medical care twice, i.e., once by the damage award made in this Memorandum of
Decision and again if plaintiff presents himself at a VA clinic in the future. But this
concern still overlooks two important truths. One, the United States already owes
plaintiff veteran benefits for combat service he has rendered to the United States Marines.
And two, as in Leininger, plaintiff sustained significant psychiatric injuries by virtue of
that service. The court remains unconvinced that defendant’s concern merits imposing a
reversionary trust.
59. Hoping to balance the competing interests in the most just way possible, the court directs
plaintiff to submit a status report about his efforts, if any, to adopt procedures that would
protect the portion of plaintiff’s award of damages for funding his acquisition of private
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health care coverage—$676,312. Plaintiff must submit this report as soon as possible but
in no event later than 30 days after the date of this Memorandum of Decision. The court
will review that report and schedule appropriate proceedings following its review of
plaintiff’s report.
IS THEREFORE ORDERED that the court finds in favor of plaintiff and against
defendant. When the court concludes the post-trial proceedings about procedures for protecting
the health care component of its award, the court will direct the Clerk of Court to enter judgment
in plaintiff’s favor and against defendant United States in the amount of $1,046,312.
IT IS FURTHER ORDERED that plaintiff submit a status report about his efforts, if
any, to adopt procedures that would protect the portion of plaintiff’s award here of damages
awarded to fund his acquisition of private health care coverage as soon as possible, but no later
than 30 days after the date of this Memorandum of Decision.
IT IS FURTHER ORDERED that before the Clerk of Court enters judgment, plaintiff
must resolve his case against the other outstanding defendant, Mark Wisner. Plaintiff is
therefore ordered to show cause within 14 days of the date of this Order why his claims against
defendant Wisner should not be dismissed without prejudice for failure to prosecute. If plaintiff
seeks another resolution of his claims against defendant Wisner, he must identify that outcome
(and provide legal authority supporting his proposal) in his response to the show cause order.
IT IS SO ORDERED.
Dated this 15th day of January, 2021, at Kansas City, Kansas.
s/ Daniel D. Crabtree_______
Daniel D. Crabtree
United States District Judge
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