Doe v. United States of America et al
Filing
73
MEMORANDUM AND ORDER granting in part and denying in part 61 Motion for Summary Judgment. The court grants summary judgment on plaintiff's claim for negligent supervision, but the remainder of the case will proceed to trial. Signed by District Judge Carlos Murguia on 1/6/2020. (hw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JOHN DOE P.M.,
Plaintiff,
v.
UNITED STATES OF AMERICA and
MARK WISNER,
Defendants.
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Case No. 16-2315
MEMORANDUM AND ORDER
This case is one of nearly one hundred cases brought by veterans against the United States of
America and Mark Wisner. The veterans involved—including plaintiff John Doe P.M.—sought
treatment at the Dwight D. Eisenhower VA Medical Center (“VA”) located in Leavenworth, Kansas.
Wisner was a physician’s assistant for the VA. In that capacity, Wisner treated and provided medical
care for veterans, including plaintiff. But Wisner did not only provide medical care; on countless
occasions, he also conducted improper and unnecessary physical examinations of the veterans’ genitals
and recta and made inappropriate sexual comments during medical appointments. Since the filing of
these civil cases, Wisner has been convicted in the Leavenworth County District Court of criminal
sodomy, aggravated sexual battery, and sexual battery. He is currently serving a sentence of over
fifteen years in prison.
The court has already reviewed the allegations in this case (and all other connected cases) on a
motion to dismiss filed by defendant United States. After considering that motion, the claims
remaining in this case are (1) Count I: Medical Malpractice – Negligence; (2) Count II: Negligent
Supervision; and (3) Count III: Outrage/Intentional Infliction of Emotional Distress. Like other
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veterans treated by Wisner, plaintiff brings his claims against defendant United States pursuant to the
Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671 and 38 U.S.C. § 7316(a), (f).
This matter is before the court on defendant United States of America’s Motion for Summary
Judgment (Doc. 61). Defendant asks the court to grant summary judgment on several grounds: (1)
Wisner was not acting within the scope of his employment; (2) because Wisner’s actions were
intentional, they are barred by the FTCA; (3) plaintiff did not administratively exhaust his negligent
supervision claim; and (4) plaintiff’s negligent supervision claim is barred by the FTCA’s
discretionary function exception. For the following reasons, the court denies the motion in part and
grants it in part.
I.
Factual Background1
The uncontroverted facts in this case are disheartening. Unfortunately, they are nearly the same
facts as those in the other related civil suits before this court. Highly summarized, Wisner was
employed by the VA from September 28, 2008 through June 28, 2014. During that time, he saw
between 750 to 1,000 patients. The VA employed Wisner, in part, to conduct physical examinations of
patients, which may have involved sensitive, intimate, or uncomfortable matters. Wisner conducted
medically-documented examinations of plaintiff in an exam room at the Leavenworth VA facility,
while the facility was open and operating. Wisner’s medically-documented genital exams were part of
his overall physical examinations. At least some portions of the medical care that Wisner provided
plaintiff was for a valid medical purpose—to provide diagnostic care. Other portions were not for
valid medical purposes.
1
The court’s recitation of the uncontroverted facts is significantly shorter than the facts proposed by both parties, but
particularly than the facts proposed by plaintiff. Many proposed facts are not material to the court’s rulings here. And
plaintiff made numerous citations to the allegations—as opposed to stipulations—in the pretrial order, which are not
evidence. Plaintiff also at times did not cite to particular pages in the record and included full exhibits instead of relevant
excerpts. Both practices are in violation of Fed. R. Civ. P. 56(c)(1) and D. Kan. R. 56.1, and the court has not considered
facts cited in this manner.
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According to medical records, plaintiff saw Wisner on multiple occasions between March 1,
2011 and April 19, 2014. The parties appear to assume that plaintiff was subjected to unnecessary and
improper examinations of his genitals, although they do not specifically refer to direct evidence of
these examinations.2 Upon reviewing the excerpt of plaintiff’s deposition provided by defendant, the
court notes a description of at least one time Wisner examined plaintiff’s genitals without gloves.
(Doc. 62-6, at 12–13.) Plaintiff testified at his deposition that, at every visit, Wisner made a comment
“remarking on the aesthetic appearance of [plaintiff’s] penis. Wow, you’ve got a nice penis. Oh, I bet
that really keeps the ladies smiling, keeps them up all night. Stuff like that.” (Id. at 13.)
The record contains an OIG memorandum memorializing a January 23, 2015 interview with
Wisner, conducted by OIG Special Agent Baker and Lt. Detective Joshua Patzwald of the
Leavenworth County Sheriff’s Office. The memorandum does not mention plaintiff’s name; it
contains primarily general statements. It was also written before plaintiff filed an administrative claim.
The memorandum reflects the following “admissions” by Wisner:3
Wisner crossed the professional line in providing purported genital exams to patients.
Wisner knew that what he was doing to patients was wrong and that he lacked self-control.
Wisner provided genital exams to satisfy his own curiosity.
For his own pleasure, Wisner performed genital exams on patients when they were not
medically indicated or necessary.
2
Plaintiff did refer to the expert report of Dr. Thomas D. Kelley III, where Dr. Kelley recounts his understanding of the
facts relating to plaintiff, which include genital examinations on nearly every visit. This is inadmissible hearsay.
Nevertheless, because defendant does not dispute that Wisner subjected plaintiff to these examinations (and because the
court independently found evidence of at least one examination in the record), the court proceeds on the assumption that
they occurred.
3
Note that these “admissions” have only been recorded in the OIG Memorandum of Interview. When Wisner appeared for
deposition in these cases, he invoked his Fifth Amendment right to remain silent. Plaintiff argues that this entitles him to
adverse inferences against the United States. Defendant responds that plaintiff has not identified the relevant factors for
determining whether to apply an adverse inference. In any event, the court need not resolve this issue for purposes of its
rulings here.
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Wisner chose his victims, who were attractive and had a similar body type.
To avoid getting caught, Wisner falsified medical records, including failing to document
multiple genital exams.
Wisner practiced under the supervision of various physicians. Dr. Daniel Cline was one of the
collaborating physicians at the VA. Under VHA Directive 1063, Dr. Cline was responsible for
providing clinical oversight, consultation, and patient care management assistance to Wisner. Dr.
Cline and other collaborating physicians were responsible under the same directive for monitoring
Wisner’s clinical activities to ensure they were within the authorized scope of practice. And the Chief
of Service at the VA was responsible for taking action to correct any discovered deficiencies in
Wisner’s practice.
As necessary, the court will incorporate additional uncontroverted facts throughout this
Memorandum and Order.
II.
Standard of Review
Summary judgment is appropriate if the moving party demonstrates that there is “no genuine
issue as to any material fact” and that it is “entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). In applying this standard, the court views the evidence and all reasonable inferences therefrom
in the light most favorable to the nonmoving party. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670
(10th Cir. 1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
III.
Discussion
A.
Scope of Employment
Defendant first argues that Wisner’s conduct was not within the scope of his employment. The
court addressed this issue previously, when ruling on defendant’s motion to dismiss. Defendant argues
that while plaintiff’s allegations may have been enough to survive dismissal, the evidence produced
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during discovery now conclusively shows that Wisner was not acting within the scope of his
employment.
Under the FTCA, the United States is liable only for tortious acts committed by employees
“acting within the scope of [their] office or employment.” 28 U.S.C. § 1346(b)(1). “Scope of
employment” is determined by the law of the place where the accident occurred. Fowler v. United
States, 647 F.3d 1232, 1237 (10th Cir. 2011); see also 28 U.S.C. § 1346(b)(1). In Kansas, an
employee acts within the scope of his 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) (citing Pattern Instructions Kansas 3d 107.06; Williams v. Cmty.
Drive-In Theater, Inc., 520 P.2d 1296, 1301–02 (Kan. 1974)). The test is not whether the employer
expressly authorized or forbid the conduct. Id. Instead, the court asks whether the employer should
have fairly foreseen the conduct from the nature of the employment and the duties relating to it. Id.;
see also Commerce Bank of St. Joseph, N.A. v. State, 833 P.2d 996, 999 (Kan. 1992). Scope of
employment is generally a factual determination, but the court may resolve this question as a matter of
law when only one reasonable conclusion can be drawn from the evidence. See Wayman v. Accor N.
Am., Inc., 251 P.3d 640, 646 (Kan. Ct. App. 2011) (citing O’Shea, 350 F.3d 1101).
As he previously argued, plaintiff claims that Wisner’s conduct was within the scope of his
employment because it was a “slight deviation” from his duties. In O’Shea v. Welch, the Tenth Circuit
reviewed the Kansas jury instruction on scope of employment, and determined that it is compatible
with the slight deviation analysis. O’Shea, 350 F.3d at 1106. “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
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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.
Under the slight deviation analysis, an employee could pursue dual purpose ventures without
the conduct amounting to an entire departure from the scope of employment. Id. at 1107. “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.
The court reviews the following factors to determine 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) the freedom allowed the employee in
performing his job responsibilities. Id. at 1108 (citation omitted).
Applying these factors, the court determines that an issue of fact remains as to whether Wisner
engaged in a slight deviation. The court will not discuss full application of the factors here. Defendant
bears the burden of showing it is entitled to summary judgment, and defendant has not discussed the
factors in detail. Rather, defendant merely focuses on Wisner’s intent and the fact that defendant did
not hire Wisner to sexually molest patients—a fact that seems rather obvious. Defendant also
discusses non-binding cases that made findings such as “an employer will not be held liable as a matter
of law merely because the employment situation provided the opportunity for the servant’s wrongful
acts or the means to carry them out.” Bodin v. Vagshenian, 462 F.3d 481, 486–87 (5th Cir. 2006); see
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also Barsamian v. City of Kingsburg, 597 F. Supp. 2d 1054, 1068 (E.D. Cal. 2009) (“That the
employment brought the tortfeasor and victim together in time and place is not enough.”).
The error that defendant makes is treating the situation as if Wisner did not conduct the
unnecessary and improper examinations in the context of a longer medical appointment. It is tempting
to regard Wisner’s conduct as non-incidental because of (1) the number of victims involved; (2)
Wisner’s conviction for the same conduct; and (3) Wisner’s recorded admissions of intent. But the
evidence shows a triable issue regarding whether Wisner’s actions were incidental given the time,
place, intent, and context of his improper actions. The court will make this determination at trial.
B.
Intentional Torts/VA Immunity
Defendant next argues that 28 U.S.C. § 2680(h) bars plaintiff’s claims because the FTCA does
not apply to claims arising out of a battery. The FTCA exempts from the waiver of sovereign
immunity “[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.” 28 U.S.C. § 2680(h). Under the FTCA’s general provisions, the United States remains
immune for claims arising out of these enumerated intentional torts. See id.
Again, however, plaintiff argues that the VA Immunity Statute applies, which essentially
creates an “exception to the exception.” This law allows for a remedy against the United States under
the FTCA for damages arising from the provision of medical services 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).
Once again, the court determines that a genuine issue of fact remains as to whether the VA
Immunity statute applies. In support of its argument, defendant primarily relies on Tenth Circuit law
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identifying the purpose of the VA Immunity statute. In Franklin v. United States, 992 F.2d 1492,
1500 (10th Cir. 1993), the Tenth Circuit stated, “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.” See H.R. Rep. No. 100-191,
100th Cong., 2d Sess. 19 (1988), reprinted in 1988 U.S.C.C.A.N. 432, 450.
But while fixing an inconsistent tort-characterization problem may have been a driving force
behind the VA Immunity Statute, the language of the statute itself does not limit its waiver to claims of
medical battery. See Ingram, 728 F.3d at 1249. The statute covers any claim arising out of the
provision of VA medical services—not just medical batteries:
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, 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, § 7416(f) provides a
remedy under the FTCA for claims of intentional torts, including false arrest and false
imprisonment.
Id.
Defendant also argues that even if the statute extends beyond medical battery, it still contains
the requirement that any battery must be committed by VA personnel “in furnishing medical care or
treatment.” 38 U.S.C. § 7316(f). According to defendant, Wisner was most certainly not “furnishing
medical care or treatment” when he sexually molested plaintiff. But once again, defendant would have
this court, as a matter of law, look only at Wisner’s discrete act of conducting improper genital and
rectal examinations—not the surrounding actions of conducting a medical appointment. Despite
Wisner’s admissions during his OIG interview, there remains a gray area around what actions
constituted providing medical care and what actions were entirely unnecessary and improper. In
deciding what constitutes “furnishing medical care or treatment,” the court does not use the Kansas test
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for scope of employment; defendant is correct on this count. But cf. Ingram, 728 F.3d at 1248–49
(discussing relevant acts of VA employees as those taken “within the scope of their employment”)
(quoting Franklin, 992 F.2d at 1500). But this does not mean that, as a matter of law, Wisner’s
improper actions were not taken in the context of delivering medical care or treatment. This question
is reserved for the court as the trier of fact.
C.
Administrative Exhaustion – Negligent Supervision
Defendant next argues that plaintiff failed to administratively exhaust his claim for negligent
supervision. Plaintiff’s SF-95 form only mentions Wisner’s conduct—not any negligent supervision
by those who supervised Wisner. Plaintiff responds that both this court and the VA have previously
recognized a claim of negligent supervision in this case. In the VA’s denial of plaintiff’s SF-95 claim,
plaintiff represents that the VA referenced a negligent supervision claim.4 And the court did not
previously sua sponte dismiss the negligent supervision claim for failure to exhaust.
“[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 “negligent supervision” or any action/inaction of supervisors in his
administrative claim. If this case were a stand-alone case (and not one of nearly one hundred similar
cases), the government could have reasonably concluded that an investigation into the VA’s
supervisory actions was unnecessary. Cf. Lopez v. United States, 823 F.3d 970, 977 (10th Cir. 2016)
(“Nothing in Lopez’s administrative claim provided the government with notice that it needed to
investigate whether the VA Hospital was negligent in credentialing and privileging Kindt, and it was in
4
In support of this argument, plaintiff cites Exhibit W to his response memorandum. Exhibit W is not the denial of
plaintiff’s SF-95 form, and the court has not located the denial in the record. Even if the court assumes that the form reads
as plaintiff represents, however, the content does not save plaintiff’s claim.
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turn deprived of any opportunity to settle this potential claim without litigation.”). Of course, this is
not a stand-alone case, and if the VA referenced a negligent supervision claim in its denial of
plaintiff’s claim, the VA likely did so because it had referenced a negligence supervision claim in most
(if not all) other related denials. Nevertheless, plaintiff does not explain why the VA’s interpretation
of his claim should excuse his failure to identify the claim in his SF-95 form. For an FTCA claim,
each individual claimant must exhaust his individual claims prior to suit. Haceesa v. United States,
309 F.3d 722, 734 (10th Cir. 2002). The court therefore determines that plaintiff failed to exhaust his
negligent supervision claim, and grants summary judgment on this claim.
D.
Discretionary Function Exception
Finally, defendant asks the court to grant summary judgment on plaintiff’s negligent
supervision claim because defendant has not waived its sovereign immunity as to this claim. The court
already determined that plaintiff failed to exhaust this claim. But, even if plaintiff had shown that the
claim was effectively exhausted because the VA investigated it without prompting by plaintiff, the
court addresses the validity of the claim below.
The discretionary function exception limits the FTCA’s waiver of sovereign immunity when
the governmental conduct at issue involves an element of judgment or choice. See 28 U.S.C. §
2680(a); Franklin Sav. Corp. v. United States, 180 F.3d 1124, 1130 (10th Cir. 1999). “[T]he
discretionary function exception will not apply when a federal statute, regulation, or policy specifically
prescribes a course of action for an employee to follow.” Franklin Sav. Corp., 180 F.3d at 1130
(quoting Berkovitz v. United States, 486 U.S. 531, 536 (1988)). If the employee has no rightful option
but to adhere to the directive, then sovereign immunity is waived and the court has jurisdiction to
consider the case. Id.
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The court performs a two-pronged analysis in determining whether defendant’s conduct falls
within the exception (the “Berkovitz test”). Id. First, the court decides whether the governmental
conduct “is a matter of choice for the acting employee,” because without an element of judgment or
choice, conduct cannot be discretionary. Id. Specifically, the court considers if there is a federal
statute, regulation, or policy “sufficiently specific [and mandatory] to remove decision[-]making under
[it] from the discretionary function exception.” Elder v. United States, 312 F.3d 1172, 1177 (10th Cir.
2002); see also Franklin Sav. Corp., 180 F.3d at 1131. Second, if the conduct does involve judgment
or choice, the court determines “whether that judgment is of the kind that the discretionary function
exception was designed to shield.” Franklin Sav. Corp., 180 F.3d at 1130. Congress’s intent in
maintaining governmental immunity for discretionary functions was to “prevent judicial ‘secondguessing’ of legislative and administrative decisions grounded in social, economic, and political policy
through the medium of an action in tort.” Id. (quoting Berkovitz, 486 U.S. at 536–37).
The court strictly construes the discretionary function exception in favor of the United States.
United States Dep’t of Energy v. Ohio, 50 U.S. 607, 615 (1992). Plaintiff bears the burden of showing
the discretionary function exception does not apply. Hardscrabble Ranch, LLC v. United States, 840
F.3d 1216, 1220 (10th Cir. 2016). And before the court applies the Berkovitz test, the court must
define the harm-causing conduct. Sydnes v. United States, 523 F.3d 1179, 1183 (10th Cir. 2008); see
also Mahon v. United States, 742 F.3d 11, 14 (1st Cir. 2014) (stating that “[a] court must first zero in
on the conduct that supposedly caused the harm” when deciding whether the discretionary function
exception applies). The exception does not apply when a discretionary decision essentially interrupts
the causation between the alleged non-discretionary conduct and the plaintiff’s injuries. See Clark v.
United States, 695 F. App’x 378, 386 (10th Cir. 2017) (“To circumvent the discretionary function
exception, the mandatory duty alleged must be one whose breach bears a causal relationship to the
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Plaintiffs’ injuries, thereby giving rise to their cause of action against the government.”) (citing
Franklin Savings Corp., 180 F.3d at 1132–33); Johnson v. U.S., Dep’t of Interior, 949 F.2d 332, 339–
40 (10th Cir. 1991).
Plaintiff again argues that defendant lacked discretion in certain supervisory duties; VHA
Directive 1063 mandates some discrete supervisory actions by Wisner’s supervising physician.
Specifically, VHA Directive 1063 required Wisner’s supervising physician to (1) be in weekly contact
to discuss clinical management issues and (2) review five randomly-selected patient encounter notes
each quarter. The evidence before the court demonstrates that this was not done. When the court ruled
on defendant’s motion to dismiss, the court determined that plaintiff, by identifying these two
mandatory duties, had sufficiently placed his negligent supervision claim outside the discretionary
function exception. This is no longer the case.
Plaintiff brings this claim as a negligent supervision claim. And perhaps in a broad, generic
sense, the VA did fail to adequately supervise Wisner. To a layperson, it certainly may seem so. But
unfortunately, the court does not apply the standards of a layperson when deciding whether the United
States has waived its sovereign immunity. Here, even if the United States effectively waived its
immunity for actions that violated VHA Directive 1063—failing to be in weekly contact to discuss
clinical management issues and failing to review five randomly-selected patient encounter notes each
quarter—there is no evidence in the record that failing to take these non-discretionary actions was the
cause of plaintiff’s harm. There is no evidence in the record suggesting that completing either of these
required tasks would have prevented plaintiff’s harm.
Indeed, only a disciplinary action in response to weekly contact or review of patient encounter
notes could have prevented plaintiff’s harm. Disciplinary actions remain a discretionary decision;
particular disciplinary actions are not required. See VHA Dir. 2004-029, at A-2 (“The Chief of Staff
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(COS) is responsible for seeing that such reviews are conducted and for assuring that clinical service
chiefs take appropriate action to correct discovered deficiencies.”) (emphasis added); VHA Dir. 1063,
at A-7 (“The Chief of Staff is responsible for ensuring that reviews are conducted and action is taken
to correct any discovered deficiencies.”) (emphasis added). These policies do not direct any specific
discipline that must be taken. These policies—not the policies relating to contact and review—are the
ones that are directly connected to plaintiff’s harm.
Wisner’s supervisor may not have followed the directives to have weekly contact with Wisner
and review five patient encounter notes quarterly. But any action taken with respect to problems
potentially discovered as a result was discretionary. See Clark, 695 F. App’x at 386 (“Even if the
inspections might have revealed dangerous conditions, as the district court explained the Plaintiffs
have identified only a discretionary duty or function to determine specifically how to remediate those
specific conditions and thereby potentially avert their injuries.”); see also Mahon, 742 F.3d at 15
(holding that the failure to require a risk-management assessment was not the relevant conduct to
evaluate, because the government retained discretion whether to implement risk-management
recommendations); Gen. Dymanics Corp., 139 F.3d at 1285–86 (holding that the relevant act was the
prosecution’s discretionary decision to prosecute—not the prior act of negligently investigating and
preparing a report that was relied on by the prosecution). And it is improper for plaintiff to attempt to
isolate the non-discretionary duties (which lack direct causation) from the discretionary duties (for
which there is evidence of causation). See Johnson, 949 F.2d at 339 (“The gathering of information
from an individual reporting a potential problem and the communication between rangers is
inextricably tied to the [discretionary] rescue decision.”); cf. Hardscrabble Ranch, LLC, 840 F.3d at
1222 (“The existence of some mandatory language does not eliminate discretion when the broader
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goals sought to be achieved necessarily involve an element of discretion.”) (citation and internal
quotation marks omitted).
Earlier in this case, the court applied Johnson to bar plaintiff’s claims for negligent hiring and
negligent retention. It is now clear that Johnson applies to plaintiff’s negligent supervision claim, as
well. Merely labeling the claim as one for negligent supervision does not mean that that harm
stemmed from a failure to supervise; the court must look to the nature of the harm-producing agent.
See Fothergill v. United States, 566 F.3d 248, 252 (1st Cir. 2009) (“[T]he applicability of the
discretionary function exception turns on the nature and quality of the harm-producing conduct, not on
the plaintiffs’ characterization of that conduct.”). Here, there is no genuine issue of material fact
whether the non-discretionary conduct caused plaintiff’s harm. The first step of Berkovitz is therefore
not met.
Plaintiff makes a few additional arguments that the court did not address above. They do not
change the outcome. First, plaintiff again argues that defendant had non-discretionary duties relating
to hiring and retention. But the court already dismissed these claims. Second, plaintiff argues that the
Kansas Physician Assistant Licensure Act provides non-discretionary duties. Again, the court already
rejected this argument, as the duties must be federal—not state. And third, plaintiff claims that 38
U.S.C. § 1710 requires that the VA provide non-discretionary “competent medical services,” citing
Jackson v. Kelly, 557 F.2d 735, 738 (10th Cir. 1977) in support. But Jackson was not a negligent
supervision case under the FTCA. Instead, Jackson was against the military physician himself for
medical malpractice. Plaintiff has not shown how application of this statute and case extends to an
action for negligent supervision.
As for the second step, the court has already held that personnel decisions such as employee
discipline are the type of policy judgments intended to be addressed by the discretionary function
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exception. See, e.g., Anasazi v. United States, No. 16-2227, 2017 WL 2264441, at *8 (May 23, 2017)
(citing Sydnes, 523 F.3d at 1186). Plaintiff has not met his burden of showing that the decisions
whether and how to discipline Wisner fall outside this general rule. Plaintiff bears the burden of doing
so, and in the absence of such proof, the court must determine that defendant is entitled to sovereign
immunity for this claim.
IT IS THEREFORE ORDERED that defendant’s motion for summary judgment (Doc. 61) is
denied in part and granted in part. The court grants summary judgment on plaintiff’s claim for
negligent supervision, but the remainder of the case will proceed to trial.
Dated this 6th day of January, 2020, at Kansas City, Kansas.
s/ Carlos Murguia____________
CARLOS MURGUIA
United States District Judge
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