Lafrinere v. The United States of America et al

Filing 23

MEMORANDUM AND ORDER granting in part and denying in part 17 Motion to Dismiss for Lack of Jurisdiction. IT IS THEREFORE ORDERED that defendant's motion to dismiss (Doc. 17) is granted in part and denied in part. The motion is granted as to C ounts III and VI. The motion is also granted as to plaintiff's negligent hiring and retention claim in Count II, but denied as to plaintiff's negligent supervision claim in Count II, as well as Counts IV and V. Signed by District Judge Carlos Murguia on 12/12/2017. (tvn)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

STEVEN LAFRINERE,
Plaintiff,
v.
UNITED STATES OF AMERICA and
MARK WISNER,
Defendants.

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Case No. 17-2199

MEMORANDUM AND ORDER
Plaintiff Steven Lafrinere brings this case against defendants United States of America and
Mark Wisner, pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671 and 38
U.S.C. § 7316(a), (f), alleging that Wisner conducted improper and/or unnecessary physical
examinations of plaintiff and elicited unnecessary private information. Plaintiff also alleges several
state law claims. This matter is before the court on defendant United States of America’s Motion to
Dismiss (Doc. 17). Defendant argues that plaintiff’s complaint should be dismissed for lack of subject
matter jurisdiction and because it fails to state a claim under Federal Rules of Civil Procedure 12(b)(1)
and (6). Plaintiff initially failed to timely respond to the motion. But upon the court’s order, plaintiff
showed good cause for the oversight, and the court will therefore consider the merits of plaintiff’s
response brief. For the reasons set forth below, the court grants defendant’s motion in part and denies
it in part.
Plaintiff is a veteran who sought treatment at the Dwight D. Eisenhower VA Medical Center
(“VA”) located in Leavenworth, Kansas. Wisner treated and provided medical care for plaintiff.

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Wisner was a physician’s assistant for the VA, and is a defendant in more than eighty pending civil
suits before this court.
The claims in this case are similar to claims in a number of other cases this court has
considered. See, e.g., Anasazi v. United States, No. 16-2227, 2017 WL 2264441, at *1–*2 (D. Kan.
May 23, 2017); Doe D. E. v. United States, No. 16-2162, 2017 WL 1908591, at *1–*2 (D. Kan. May
10, 2017). The court will not repeat the details of them here. Highly summarized, they are: (1) Count
I: Negligence – Medical Malpractice; (2) Count II: Negligent Supervision, Retention and Hiring; (3)
Count III: Negligent Infliction of Emotional Distress; (4) Count IV: Outrage; (5) Count V: Battery; and
(6) Count VI: Invasion of Privacy.
Likewise, the court has set forth the governing legal standards in a number of other cases
involving the same parties and similar claims. The court does not repeat them here, but applies them
as it has in the past. See, e.g., Anasazi, 2017 WL 2264441, at *2; Doe D. E., 2017 WL 1908591, at *2.
Scope of Employment
Under the FTCA, the United States has waived its sovereign immunity for injuries caused by
the “negligent or wrongful act or omission” of a federal government employee while that employee is
“acting within the scope of his office or employment, under circumstances where the United States, if a
private person, would be liable to the claimant in accordance with the law of the place where the act or
omission occurred.” 28 U.S.C. § 1346(b).
This court has repeatedly held that plaintiffs with similar allegations to those here have
sufficiently alleged that Wisner’s conduct was within the scope of his employment. See, e.g., Doe BF
v. United States, No. 17-2088, 2017 WL 4355577, at *4–*5 (D. Kan. Oct. 2, 2017); Almquist v. United
States, No. 17-2108, 2017 WL 4269902, at *4–*5 (D. Kan. Sept. 25, 2017); Anasazi, 2017 WL
2264441, at *4; Doe D. E., 2017 WL 1908591, at *4. The court also has held that plaintiffs with

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similar allegations have presented plausible claims that the VA Immunity Statute applies, allowing
them to pursue remedies under the FTCA for claims arising out of a battery. See, e.g., Doe BF, 2017
WL 4355577, at *5; Almquist, 2017 WL 4269902, at *5; Anasazi, 2017 WL 2264441, at *5; Doe D. E.,
2017 WL 1908591, at *4. The court likewise allows plaintiff to proceed in this case.
Count II – Negligent Supervision, Hiring, and Retention
The court has previously dismissed other plaintiffs’ claims for negligent hiring and retention
based on the discretionary function exception to the FTCA. See, e.g., Anasazi, 2017 WL 2264441, at
*8–*9; Doe D. E., 2017 WL 1908591, at *8. This outcome remains appropriate despite plaintiff’s
argument that the VA had mandatory duties under the U.S. Constitution. Doe BF, 2017 WL 4355577,
at *5–*6; Almquist, 2017 WL 4269902, at *5–*6.
As for the negligent supervision claim, the court has allowed this claim to proceed in the past.
See, e.g., Doe BF, 2017 WL 4355577, at *6; Almquist, 2017 WL 4269902, at *6; Anasazi, 2017 WL
2264441, at *7; Doe D. E., 2017 WL 1908591, at *6. For the reasons the court has set forth in other
related opinions, defendant’s motion is denied with respect to plaintiff’s claim for negligent
supervision.
Counts III and IV – Negligent Infliction of Emotional Distress and Outrage
As this court has previously held, a claim for negligent infliction of emotional distress must
include a qualifying physical injury. Majors v. Hillebrand, 349 P.3d 1283, 1285 (Kan. Ct. App. 2015).
This rule does not apply, however, when the conduct is willful or wanton. Id. (citing Hoard v.
Shawnee Mission Med. Ctr., 662 P.2d 1214, 1219–20 (Kan. 1983)). Plaintiff attempts again to plead a
plausible claim by alleging willful and wanton conduct, but this court has already held that this
characterization of plaintiff’s claim is duplicative of plaintiff’s outrage claim. Again, the court

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dismisses plaintiff’s claim for negligent infliction of emotional distress in part for failure to allege a
physical injury and in part as duplicative of the outrage claim.
The court has allowed plaintiffs to proceed with outrage claims in all of the cases previously
identified. See, e.g., Doe BF, 2017 WL 4355577, at *7; Almquist, 2017 WL 4269902, at *7; Anasazi,
2017 WL 2264441, at *10; Doe D. E., 2017 WL 1908591, at *9–*10. Plaintiff has once again placed
his outrage claim outside the discretionary function exception.
Count VI – Invasion of Privacy
Finally, the court has repeatedly addressed plaintiff’s allegations for invasion of privacy and
found that they fail to state a claim. See, e.g., Anasazi, 2017 WL 2264441, at *10–*11; Doe, 2017 WL
1908591, at *10. Plaintiff has not made any arguments here that justify altering the court’s analysis.
This claim is therefore dismissed for the same reasons previously given.
IT IS THEREFORE ORDERED that defendant’s motion to dismiss (Doc. 17) is granted in
part and denied in part. The motion is granted as to Counts III and VI. The motion is also granted as
to plaintiff’s negligent hiring and retention claim in Count II, but denied as to plaintiff’s negligent
supervision claim in Count II, as well as Counts IV and V.
Dated this 12th day of December, 2017, at Kansas City, Kansas.

s/ Carlos Murguia____________
CARLOS MURGUIA
United States District Judge

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