Doe OJ v. The United States of America et al

Filing 14

MEMORANDUM AND ORDER granting in part and denying in part 8 Motion to Dismiss for Lack of Jurisdiction. The motion is granted as to Counts III and V. 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 Count IV. Signed by District Judge Carlos Murguia on 09/13/2017. (cv)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

JOHN DOE OJ,
Plaintiff,
v.
UNITED STATES OF AMERICA and
MARK WISNER, P.A.
Defendants.

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Case No. 17-2209

MEMORANDUM AND ORDER
Plaintiff John Doe OJ 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 an improper and/or unnecessary physical examination 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. 8).
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). For the
reasons set forth below, the court grants defendant’s motion in part and denies it in part.
I.

Factual Background and Legal Standards
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.
Wisner was a physician’s assistant (“PA”) for the VA, and is a defendant in more than seventy pending
civil suits before this court.

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The claims in this case are virtually identical to those in a number of other cases this court has
considered. See, e.g., Anasazi v. United States, No. 16-2227-CM, 2017 WL 2264441, at *1–*2 (D.
Kan. May 23, 2017); Doe v. United States, No. 16-2162-CM, 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 – Intrusion Upon Seclusion.
Likewise, the court has set forth the governing legal standards in a number of other cases
involving the same parties and 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, 2017 WL 1908591, at *2.
II.

Discussion
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., Anasazi,
2017 WL 2264441, at *4; Doe, 2017 WL 1908591, at *4. The court also has held that plaintiffs with
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., Anasazi, 2017
WL 2264441, at *5; Doe, 2017 WL 1908591, at *4. While defendant disagrees with these rulings, it

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does not challenge these arguments again here. The court therefore turns to the arguments that
defendant does raise with respect to this plaintiff.
A.

Count II – Negligent Supervision, Hiring, and Retention

First, 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, 2017 WL 1908591, at *8. Plaintiff now asks the court to deny defendant’s
motion with respect to these claims because the VA had mandatory duties under the U.S. Constitution.
Plaintiff only makes this argument in his response brief, however—he does not allege constitutional
duties or violations in his complaint. Because the allegations of constitutional violations are not
included in plaintiff’s complaint, the court does not consider whether allegations of constitutional
violations would be sufficient to take plaintiff’s claims for negligent hiring and retention outside the
discretionary function exception. These claims are dismissed for the same reasons given before. See,
e.g., Anasazi, 2017 WL 2264441, at *8–*9; Doe, 2017 WL 1908591, at *8.
As for the negligent supervision claim, the court has allowed this claim to proceed. See, e.g.,
Anasazi, 2017 WL 2264441, at *7; Doe, 2017 WL 1908591, at *6. Defendant now proffers a new
argument for dismissal: plaintiff’s negligent supervision claim is subsumed in his negligent hiring and
retention claims, and it should likewise be dismissed under the discretionary function exception.
Specifically, defendant wants the court to disregard plaintiff’s characterization of his harm being based
on the VA’s negligent supervision of Wisner. Instead, defendant wants the court to look beyond
plaintiff’s characterization and see that the injuries were actually “caused by the VA’s decisions to
hire, retain, and discipline Wisner—decisions which are inherently discretionary and which this [c]ourt
has previously held fall squarely within the discretionary function exception.” (Doc. 9, at 11.) In other
words, defendant asks the court to hold that plaintiff’s negligent supervision claim is an impermissible

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attempt to circumvent the discretionary function exception, so it must be dismissed along with the
negligent hiring and retention claims.
The court has previously set forth the law at length on the discretionary function exception.
See, e.g., Anasazi, 2017 WL 2264441, at *6–*9; Doe, 2017 WL 1908591, at *5–*8. For brevity, the
court does not repeat it here, but incorporates it by reference.
Defendant’s new arguments are not persuasive for at least two reasons. First, plaintiff has
pleaded that he suffered damages because of defendant’s inadequate supervision of Wisner. The court
accepts these allegations as true at this stage of the litigation. Second, in Kansas, negligent supervision
is a separate cause of action from negligent hiring and retention. Marquis v. State Farm Fire & Cas.
Co., 961 P.2d 1213, 1223 (Kan. 1998). Negligent supervision is not subsumed into negligent hiring or
retention. For these reasons, as well as those the court has set forth in other related opinions,
defendant’s motion is denied with respect to plaintiff’s claim for negligent supervision.
C.

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. Center, 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
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.
Defendant also asks the court to dismiss both the negligent infliction of emotional distress
claim and the outrage claim under the discretionary function exception. Defendant argues that the

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conduct that is barred by the discretionary function exception in Count II is the same conduct alleged
in Counts III and IV—thereby making these counts also subject to the discretionary function
exception. But the court has held that plaintiff plausibly placed his supervision claim outside the
discretionary function exception. The same rationale applies to plaintiff’s claim of outrage (although
the court dismisses the negligent infliction of emotional distress claim on other grounds).
D.

Count V – Invasion of Privacy – Intrusion Upon Seclusion

Finally, the court has repeatedly addressed plaintiff’s allegations for invasion of privacy –
intrusion upon seclusion 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. 8) is granted in
part and denied in part. The motion is granted as to Counts III and V. 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 Count IV.
Dated this 13th day of September, 2017, at Kansas City, Kansas.

s/ Carlos Murguia________________
CARLOS MURGUIA
United States District Judge

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