Compart's Boar Store, Inc. v. United States of America, The
Filing
93
ORDER granting 47 Motion to Dismiss/General; denying 84 Motion for Partial Summary Judgment. IT IS HEREBY ORDERED THAT: 1. Defendant's motion to dismiss or for summary judgment 47 is GRANTED, and this action is DISMISSED WITHOUT PREJU DICE for lack of jurisdiction. 2. Plaintiff's motion for partial summary judgment 84 is DENIED insofar as it seeks a ruling that the Court has jurisdiction over this case and DENIED AS MOOT insofar as it seeks a ruling on the merits of any of the government's defenses. LET JUDGMENT BE ENTERED ACCORDINGLY. (Written Opinion) Signed by Judge Patrick J. Schiltz on August 7, 2015. (CLG)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
COMPART’S BOAR STORE, INC.,
Case No. 12‐CV‐3090 (PJS/JJK)
Plaintiff,
v.
ORDER
UNITED STATES OF AMERICA,
Defendant.
Gary W. Koch and Matthew C. Berger, GISLASON & HUNTER LLP, for
plaintiff.
Friedrich A.P. Siekert, UNITED STATES ATTORNEY’S OFFICE, for
defendant.
Plaintiff Compart’s Boar Store, Inc. (“CBS”) brings various claims against the
United States under the Federal Tort Claims Act (“FTCA”). 28 U.S.C. §§ 1346(b), 2671 et
seq. CBS’s claims arise out of disease testing performed by the government on swine
that CBS intended to export to China. The government reported that some of the tests
performed on some of the swine were “inconclusive.” That report ultimately led not
only to CBS losing the particular export deal for which the swine were being tested, but
also to CBS being altogether banned from exporting swine to China. CBS alleges that
the government acted negligently both in conducting the tests and in reporting the
results of the tests.
This matter is before the Court on the government’s motion to dismiss or for
summary judgment and on CBS’s motion for partial summary judgment. The
government asks that all of CBS’s claims be dismissed for lack of jurisdiction or,
alternatively, that judgment be entered in the government’s favor. CBS seeks dismissal
of some of the government’s defenses—specifically, the defenses of lack of jurisdiction,
contributory negligence, and comparative fault. For the reasons that follow, the Court
grants the government’s motion to dismiss for lack of jurisdiction and denies CBS’s
motion in its entirety.
I. BACKGROUND
A. CBS’s Business
CBS raises breeding‐stock swine—that is, swine that are sold to pork producers
who use them to breed and produce other pigs for slaughter. C. Compart Dep. 123‐24;
J. Compart Dep. 9‐10. At the time of the events giving rise to this action, CBS’s breeding
stock was primarily raised at facilities in three Minnesota towns: Princeton, Melrose,
and Hamberg. J. Compart Dep. 22; C. Compart Dep. 82‐86. CBS’s Princeton herd was
certified as specific‐pathogen free in 1987, and no outside swine have entered that
facility since then. C. Compart Dep. 81‐82; 84‐85. The certification required CBS to
populate the Princeton facility with swine that were born using a specific surgical
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procedure and then raised for several weeks in a sterile environment. C. Compart
Dep. 84‐85; J. Compart Dep. 34‐37.
CBS used offspring from the Princeton herd to establish the Melrose and
Hamberg herds, and no outside swine have entered either of those facilities since the
herds were established. C. Compart Dep. 83‐86. CBS conducts monthly tests at each
facility to ensure that the herds remain disease‐free. C. Compart Dep. 59‐60, 64‐65.
B. PRRS and the Chinese Export Protocol
Porcine respiratory reproductive syndrome (“PRRS”) is a viral disease that can
spread rapidly through swine herds. Def. Ex. 14 ¶ 1; C. Compart Dep. 35, 64, 260, 727;
J. Compart Dep. 158‐59. PRRS can cause pneumonia, lethargy, feeding problems, and
spontaneous abortions. J. Compart Dep. 70.
The United States imposes testing and inspection requirements on swine and
other livestock intended for export. See 9 C.F.R. § 91.3. The export of pigs to China is
governed by the Quarantine and Health Requirements of the People’s Republic of
China for Swine Exported from the United States (“the Export Protocol”). Def. Ex. 115.
Under the Export Protocol, only swine that come from facilities that have been free of
PRRS for at least two years can be exported to China. Id. ¶ 5.6.
Swine selected for export to China must also undergo a battery of tests and
quarantine procedures. Specifically, the Export Protocol dictates that all swine must
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first test negative for PRRS using an immonufluorescent antibody (“IFA”) test.
Id. ¶ 5.7.8. After the initial IFA testing, the swine must be isolated in a quarantine
facility approved by the United States Department of Agriculture (“USDA”) for at least
30 days before export. Id. ¶ 6. During the quarantine, all swine must again test
negative for PRRS using the IFA test, and a sample of ten percent of the pigs must also
be tested using a virus‐isolation (“VI”) test. Id. (The VI test is described below.)
The Export Protocol requires that all testing be performed by the National
Veterinary Services Laboratory (“NVSL”) in Ames, Iowa. Id. NVSL is overseen by the
Animal and Plant Health Inspection Service, which is part of USDA. Id. ¶¶ 1, 6;
J. Compart Dep. 46‐47.
C. The Virus Isolation Test
As noted, the Export Protocol requires that ten percent of the quarantined pigs be
tested for PRRS using the VI test. Unlike the IFA test, which reveals the presence of
antibodies, the VI test reveals an active viral infection. Jenkins‐Moore Dep. 63‐64.
NVSL created a standard operating procedure for administering the VI test. Def.
Exs. 14, 96; Jenkins‐Moore Dep. 126‐131, 152. Under this procedure, two different types
of cells—known as “SAM” cells and “MARC” cells—are inoculated with tissue or
serum samples. Def. Ex. 14 ¶¶ 1‐2, 5. The resulting cultures are observed for
“cytopathic effect” (that is, cell damage) over a number of days. Olson Dep. 41, 160‐61.
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(Cytopathic effect may indicate the presence of a virus. Olson Dep. 41.) At the end of
this period, the cultures are frozen and thawed, and the process is repeated. Def. Ex. 14
¶ 5. The cultures are placed onto fresh SAM and MARC cells and again observed for
cytopathic effect. Id. If any cytopathic effect is observed, NVSL repeats the process
again with yet more fresh SAM and MARC cells. Id. Finally, the cultures are stained
and examined for fluorescence. Id. ¶¶ 5‐6. The presence of fluorescence generally
indicates the presence of the PRRS virus. Id. ¶ 5; Olson Dep. 253‐54. This final step is
similar to the IFA test described above. Def. Ex. 14 ¶ 5; Olson Dep. 91‐92; Lowe
Dep. 195‐96.
D. August 2011 Export
From 2009 to early 2011, China suspended all swine imports from the United
States due to the H1N1 virus. C. Compart Dep. 190‐91, 253‐54. China began permitting
swine imports from the United States again in March 2011. J. Compart Dep. 112. At the
time, CBS was one of a handful of farms in the United States that were considered safe
enough to export breeding stock to China. C. Compart Dep. 170.
Shortly after China began permitting imports again, Ag World International
Corporation (“Ag World”), a livestock export company, secured a contract to export
breeding‐stock pigs to China in August 2011. C. Compart Dep. 317‐18; Def. Exs. 502‐
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503. In June 2011, Chinese buyers selected 367 pigs from CBS to be included in the Ag
World shipment. C. Compart Dep. 334‐35; Def. Ex. 509.
In late June 2011, Dr. Daniel Tomsche, a licensed and USDA‐accredited
veterinarian hired by CBS, drew blood from the selected pigs and sent the samples to
NVSL for the pre‐quarantine tests. Tomsche Dep. 28; C. Compart Dep. 335, 340‐41. All
pigs tested negative for PRRS. C. Compart Dep. 345‐47. CBS then placed the selected
pigs in a USDA‐approved quarantine facility. C. Compart Dep. 348‐49; Frank Decl. ¶ 3.
As noted, the Export Protocol required that, before being exported to China, the
selected swine had to be quarantined for 30 days and then tested again for PRRS.
In July, Dr. Tomsche drew blood from the quarantined pigs to be used for the
IFA and VI tests. Tomsche Dep. 29‐30; C. Compart Dep. 385‐86, 389. NVSL conducted
the IFA tests and reported the results as negative. Def. Exs. 511‐513. NVSL also
conducted the VI tests and observed no cytopathic effect. Swenson Decl. ¶ 15(d), (e), (f),
(h).
As noted, at the very end of the VI‐testing process—after the cells are examined
for cytopathic effect—the cells are stained and examined for fluorescence. On August 9,
2011, lab technician Annette Olson observed fluorescence in distinct cells on ten of the
stained MARC slides. Olson Dep. 11, 261‐63; Def. Ex. 31; Swenson Decl. ¶ 15(i). The
fluorescence was unusual. Normally, a positive slide will “light up with almost a bright
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apple green fluorescence,” whereas a negative slide will look “almost black.” Olson
Dep. 44. These particular MARC slides did not look like either a positive or a negative
slide; the slides had some fluorescence, but the fluorescence was not as bright as Olson
typically observed on positive slides. Olson Dep. 44‐46.
Olson showed the slides to other people in the lab, including Dr. Sabrina
Swenson (her supervisor) and Dr. Beverly Schmitt (Dr. Swenson’s supervisor). Olson
Dep. 46‐48. Olson did not feel comfortable characterizing the results as either positive
or negative. Olson Dep. 73‐74. Dr. Swenson contacted outside experts, who opined that
if PRRS was present there should be cytopathic effect. Def. Ex. 22. (Again, no
cytopathic effect had been observed.) Similarly, Olson contacted her former supervisor,
who opined that he would expect there to be cytopathic effect if PRRS was present. Def.
Ex. 31. Meanwhile, NVSL conducted additional testing on the CBS samples. Swenson
Decl. ¶ 15(i)‐(l). The same unexplained fluorescence was observed in some of the
samples, but again no cytopathic effect was observed. Swenson Decl. ¶ 15(i)‐(l).
CBS first learned of the problem with the VI test on August 10. C. Compart
Dep. 421, 429. In an effort to address the problem, CBS submitted additional samples
from the ten suspect animals to the University of Minnesota for testing. C. Compart
Dep. 431‐32, 468. All samples tested negative for PRRS. Def. Ex. 47.
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On August 12, NVSL issued a final report on the CBS swine stating that no
evidence of PRRS was observed in any of the samples, with the exception of ten
samples whose results were “inconclusive.” Def. Ex. 15 at 8. The report explained that
limited areas of staining were observed on the MARC cells, that no staining was
observed on the SAM cells, that no cytopathic effect was observed in any of the cells,
and that all other tests were negative for PRRS. Def. Ex. 15 at 8; C. Compart Dep. 466
(CBS received the official NVSL report on August 12).
At that point, CBS knew that it would not be able to participate in the August
2011 shipment of swine to China. C. Compart Dep. 466‐67. CBS attempted to get its
swine approved for inclusion in a September shipment to China, but on August 17,
China suspended all imports from CBS. C. Compart Dep. 480‐82; Def. Ex. 195; Williams
Dep. 120‐23. Later re‐testing of the original samples came up negative, as did testing of
new samples submitted to NVSL. Def. Exs. 19, 20, 21, 36; Williams Dep. 150.
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II. ANALYSIS
A. Standard of Review1
The United States moves under Rule 12(b)(1) of the Federal Rules of Civil
Procedure to dismiss CBS’s complaint for lack of subject‐matter jurisdiction. In ruling
on such a motion,
“the trial court may proceed as it never could under 12(b)(6)
or Fed. R. Civ. P. 56. Because at issue in a factual 12(b)(1)
motion is the trial court’s jurisdiction—its very power to
hear the case—there is substantial authority that the trial
court is free to weigh the evidence and satisfy itself as to the
existence of its power to hear the case. In short, no
presumptive truthfulness attaches to the plaintiff’s
allegations, and the existence of disputed material facts will
not preclude the trial court from evaluating for itself the
merits of jurisdictional claims.”
Osborn v. United States, 918 F.2d 724, 730 (8th Cir. 1990) (quoting Mortensen v. First Fed.
Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir.1977)).
1
The government does not identify a standard of review for its motion. CBS
recites only the standard applicable to summary‐judgment motions. Because the
government is moving to dismiss for lack of jurisdiction, the correct standard is that
recited above. The Court notes, however, that the standard of review makes no
difference, as the government would be entitled to judgment even under the standard
applicable to summary‐judgment motions.
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B. Jurisdiction
The United States enjoys sovereign immunity and therefore may not be sued
unless it consents. Hinsley v. Standing Rock Child Protective Servs., 516 F.3d 668, 671 (8th
Cir. 2008). Under the FTCA, the United States has consented to being sued for damages
for injury or loss of property, or personal injury or death
caused by the negligent or wrongful act or omission of any
employee of the Government while acting within the scope
of his office or employment, under circumstances where the
United States, if a private person, would be liable to the
claimant in accordance with the law of the place where the
act or omission occurred.
28 U.S.C. § 1346(b)(1). The FTCA includes a number of exceptions to this waiver of
immunity. “If one of the exceptions applies, the bar of sovereign immunity remains.”
Dolan v. U.S. Postal Serv., 546 U.S. 481, 485 (2006).
CBS brings five somewhat overlapping claims against the government:
(1) negligence; (2) veterinary medical malpractice; (3) negligent inspection; (4) negligent
performance of undertaking to render services; and (5) negligent performance of
undertaking of services to others. Although couched as five separate counts, CBS’s
claims boil down to two allegedly negligent acts: (1) negligent reporting—that is, a claim
that the government acted negligently when it reported the results of the VI test as
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inconclusive; and (2) negligent testing—that is, a claim that the government acted
negligently when it conducted the VI test.2
The government argues that the Court lacks jurisdiction over CBS’s claims
because they fall within various exceptions to the FTCA’s waiver of sovereign
immunity. The Court need address only one of those exceptions: the discretionary‐
function exception.
1. Negligent Reporting
The government argues that the discretionary‐function exception to the waiver of
sovereign immunity bars CBS’s claim that the government acted negligently in
reporting the results of the VI test as inconclusive. The Court agrees.
The discretionary‐function exception deprives courts of jurisdiction over any
claim “based upon the exercise or performance or the failure to exercise or perform a
discretionary function or duty on the part of a federal agency or an employee of the
Government, whether or not the discretion involved be abused.” 28 U.S.C. § 2680(a).
The purpose of the discretionary‐function exception is to “prevent judicial ‘second‐
guessing’ of legislative and administrative decisions grounded in social, economic, and
2
In its briefing, CBS contends that NVSL’s VI‐testing procedures do not conform
to accepted scientific standards. At oral argument, however, CBS clarified that it is not
basing any claim on this allegation, but instead bases its negligent‐reporting claim on
NVSL’s alleged failure to follow its own standard operating procedure.
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political policy through the medium of an action in tort . . . .” United States v. Gaubert,
499 U.S. 315, 323 (1991) (citation and quotations omitted).
Courts undertake a two‐part inquiry to determine whether the discretionary‐
function exception applies. First, a court asks whether the challenged conduct was
discretionary—that is, whether it involved an element of judgment or choice. Id. at 322.
The exception does not apply if a federal employee is sued for violating a statute,
regulation, or mandatory policy that prescribes a specific course of conduct that the
employee must follow. Id. In such a case, the employee is required to obey the statute,
regulation, or policy; she does not have discretion to do otherwise. Id.
If no such statute, regulation, or mandatory policy exists, the challenged conduct
is deemed to be discretionary, and the court moves on to the next step of the inquiry,
which asks whether the challenged conduct involved the kind of policy judgment that
the discretionary‐function exception is intended to protect. Id. at 323‐25. When
government policy provides discretion, an employee exercising such discretion is
presumed to be exercising protected policy judgment. Id. at 324; Metter v. United States,
785 F.3d 1227, 1231 (8th Cir. 2015). The plaintiff bears the burden of rebutting this
presumption. Demery v. U.S. Dep’t of Interior, 357 F.3d 830, 833 (8th Cir. 2004). The
employee’s subjective intent is irrelevant; the question is whether the employee’s
actions “are susceptible to policy analysis.” Gaubert, 499 U.S. at 325.
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CBS argues that the conduct that it challenges—NVSL’s reporting the results of
the VI test as inconclusive—was not discretionary because NVSL was required by a
mandatory policy to report the results as negative. CBS points to NVSL’s standard
operating procedure for the VI test, which provides that “[i]f no [cytopathic effect] is
observed [after the second culture], the cultures are discarded and the specimen is
reported as negative for PRRS virus isolation.” Def. Ex. 14 ¶ 5. Because NVSL observed
no cytopathic effect, CBS argues, the standard operating procedure required NVSL to
report a negative result.3
CBS’s argument misconstrues the standard operating procedure. In particular,
CBS overlooks the fact that later in the same standard operating procedure appears a
section entitled “Special Notes,” which sets forth additional steps for qualifying pigs for
export to China. Def. Ex. 14 ¶ 6. This section requires that, after the SAM and MARC
cells are cultured and examined for cytopathic effect, “[a]t least one coverslip from one
inoculated Leighton tube per sample and one inoculated chambered slide per sample is
stained by IFA as described above and examined for specific fluorescence. Results are
3
Notably, CBS’s own expert, Dr. James Lowe, does not agree that NVSL should
have reported the test as negative solely on the basis of the lack of cytopathic effect,
notwithstanding the presence of the staining. Lowe Dep. 251 (testifying that a negative
report under such circumstances would be “dishonest”). Rather, Dr. Lowe testified that
NVSL should not have reported any results but instead should have kept testing. Lowe
Dep. 251‐53. Dr. Lowe further testified that staining was required under the protocol
regardless of the presence of cytopathic effect. Lowe Dep. 257‐58.
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entered into the laboratory information management system (LIMS) and reported as
requested.” Def. Ex. 14 ¶ 6. Unlike the general procedure cited by CBS, the specific
procedure that applies to pigs intended for export to China requires both staining and
reporting of the results of the staining regardless of whether cytopathic effect is
observed. CBS thus cannot show that NVSL failed to follow its standard operating
procedure.4
CBS has another problem: Even if CBS could show that NVSL failed to follow its
standard operating procedure, CBS cannot show that the standard operating procedure
is mandatory. The only evidence in the record about whether the standard operating
procedure is mandatory suggests that, in fact, NVSL personnel have discretion to
deviate from it:
Q.
So I am assuming that, for each test, there’s a
standard operating procedure that lab personnel are
to follow.
A.
Yes.
Q.
What is the significance of having a standard
operating procedure? What’s the scientific reason to
have one?
4
Similarly, to the extent that CBS contends that NVSL had to report the samples
as negative for PRRS because the staining did not resemble the bright staining typically
observed on the positive control slides, CBS has not identified a policy that requires a
negative report under those circumstances. Likewise, to the extent that CBS contends
that NVSL was required to perform additional tests or take other action to validate the
test results, CBS has not identified a policy requiring such action.
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A.
So you can perform the test the same way so you can,
hopefully, replicate the results if you need to. So
every sample is treated the same way.
Q.
It is important to follow the SOP, right?
A.
Yes.
Q.
It is kind of the Bible of what you guys do, isn’t it?
A.
The SOP is, essentially, a recipe that we follow.
Q.
You don’t deviate from it?
A.
If we deviate, we mention it on our paperwork.
Jenkins‐Moore Dep. 65 (emphasis added). Moreover, even if the standard operating
procedure were ambiguous regarding the extent to which it was mandatory, it would
not supply the clear, mandatory directive necessary to deprive government employees
of discretion. See C.R.S. by D.B.S. v. United States, 11 F.3d 791, 799‐801 (8th Cir. 1993)
(policy that was unclear and insufficiently specific did not deprive government of
discretion).
In short, CBS has failed to establish either that NVSL violated its standard
operating procedure or that NVSL’s standard operating procedure was mandatory.
Clearly, then, the decision by NVSL personnel to report the results of the VI test as
inconclusive was discretionary.
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The next question is whether the decision to report the results of the VI test as
inconclusive involved the kind of policy judgment that the discretionary‐function
exception is meant to protect. Gaubert, 499 U.S. at 322‐23. The Court has little trouble
concluding that it did. NVSL was testing the pigs for export to China, the world’s most
populous country. The unusual results of the VI test—results that were neither clearly
positive nor clearly negative—presented the lab with a dilemma. Incorrectly reporting
the results as negative could have undermined China’s confidence in NVSL testing—
and that, in turn, could have had broad implications for trade with China and harsh
consequences for swine breeders in the United States (including CBS). It bears
emphasizing that at the time that NVSL was trying to decide how to report the results
of the VI test, China had only recently lifted its ban on swine imports from the United
States. At the same time, incorrectly reporting the results as positive could have had
harsh consequences for CBS. Determining what to do in this sensitive situation plainly
involved a high level of discretionary judgment and considerations of public policy. See
Berkovitz v. United States, 486 U.S. 531, 537 (1988) (“The exception, properly construed,
therefore protects only governmental actions and decisions based on considerations of
public policy.”).
CBS contends that NVSL did not actually exercise any policy judgment when it
decided how to report the results of the VI test. Instead, CBS argues, NVSL’s internal
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and external communications reflect that lab personnel believed that they must have
made a mistake of some kind in conducting the test. CBS further contends that there
are factual disputes concerning who decided to report the results as inconclusive and
why that person made that decision.
The Court may resolve factual disputes in deciding whether it has jurisdiction to
hear a claim. Osborn, 918 F.2d at 730. The Court need not do so, however, because the
factual disputes identified by CBS relate to the subjective intent of NVSL personnel, and
the subjective intent of NVSL personnel is irrelevant for purposes of determining the
applicability of the discretionary‐function exception. See Gaubert, 499 U.S. at 325 (“The
focus of the inquiry is not on the employee’s subjective intent in exercising the
discretion conferred by statute or regulation, but on the nature of the actions taken and
on whether they are susceptible to policy analysis.”); Herden v. United States, 726 F.3d
1042, 1047 (8th Cir. 2013) (en banc) (“the exception applies whether or not a defendant
in fact engaged in conscious policy‐balancing”) (citation, brackets, and quotations
omitted).
At bottom, the question for the Court is simply whether NVSL’s decision to
report the results of the VI test as inconclusive was susceptible to a policy analysis.
Gaubert, 499 U.S. at 325. Because the answer to that question is clearly “yes,” CBS’s
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negligent‐reporting claim falls within the discretionary‐function exception and must be
dismissed for lack of jurisdiction.
2. Negligent Testing
CBS next alleges that NVSL negligently performed the VI test. CBS cannot
identify what NVSL did wrong, but broadly contends that, given the overwhelming
evidence that its pigs were not infected with PRRS, somebody at NVSL must have done
something wrong to cause the inconclusive test results. In essence, then, CBS invokes the
doctrine of res ipsa loquitur.
This claim fails for two reasons. First, by invoking the doctrine of res ipsa
loquitur, CBS is conceding that it cannot identify a specific negligent act or omission
committed by a specific employee of NVSL. See Brewster v. United States, 542 N.W.2d
524, 528‐29 (Iowa 1996).5 But if CBS cannot identify a specific negligent act or omission
committed by a specific employee of NVSL, CBS necessarily cannot show that the act or
omission that caused the inconclusive results violated a mandatory policy or did not
“involve an element of judgment or choice.” Gaubert, 499 U.S. at 322 (brackets,
quotations, and citation omitted). Likewise, CBS cannot rebut the presumption that the
allegedly negligent act or omission involved the kind of policy judgment that the
5
The Court applies Iowa law because, under the FTCA, the government’s liability
is determined “in accordance with the law of the place where the act or omission
occurred.” 28 U.S.C. § 1346(b)(1).
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discretionary‐function exception was meant to protect. Metter, 785 F.3d at 1231. As a
result, CBS cannot establish that its negligent‐testing claim falls outside of the
discretionary‐function exception, and the Court therefore lacks jurisdiction over the
claim.6
Second, even if the Court had jurisdiction over this claim, the Court would
dismiss the claim on the merits. To succeed on a negligence claim under the doctrine of
res ipsa loquitur, “the occurrence [must be] such as in the ordinary course of things
would not happen if reasonable care had been used.” Brewster, 542 N.W.2d at 529
(citation and quotations omitted). There is no dispute that the standard of care for
laboratory testing is not within the common experience of laypeople. Accordingly,
expert testimony is necessary to establish that the staining observed on the MARC
slides would not have occurred in the absence of negligence. Cf. id. at 530 (expert
testimony may be used to establish that the accident would not have happened in the
absence of negligence).
6
The Eighth Circuit has not conclusively decided whether, in FTCA cases, the
plaintiff bears the burden to show that the discretionary‐function exception does
not apply. Hart v. United States, 630 F.3d 1085, 1089 n.3 (8th Cir. 2011). Nevertheless, the
Eighth Circuit has strongly hinted that the burden rests with the plaintiff, and, in any
event, it is clear that the plaintiff bears the burden to rebut the presumption that a
discretionary decision did not involve policy considerations. Id.; Demery, 357 F.3d
at 833. Absent more guidance from the Eighth Circuit, the Court follows the general
rule that the proponent of federal jurisdiction bears the burden to show that such
jurisdiction exists. Jones v. United States, 727 F.3d 844, 846 (8th Cir. 2013).
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CBS has no such expert testimony. CBS’s expert, Dr. Lowe, never testified that
abnormal test results would not ordinarily occur unless someone was negligent. To the
contrary, Dr. Lowe testified that abnormal results are everyday occurrences in
laboratory testing7 and are “nobody’s fault.” Lowe Dep. 214. Because CBS has no
evidence that the VI‐test results could not have occurred in the absence of negligence,
CBS cannot proceed on its res ipsa loquitur theory. And because CBS cannot identify
any specific negligent act or omission that produced the inconclusive VI‐test results,
CBS cannot proceed on a traditional negligence theory. In short, CBS cannot prove that
NVSL acted negligently in conducting the VI test.
For these reasons, the Court would grant the government’s motion for summary
judgment on the merits of the negligent‐testing claim, if the Court had jurisdiction over
that claim. But because the Court does not have jurisdiction over that claim, the Court
will dismiss the claim without prejudice. Hart v. United States, 630 F.3d 1085, 1091 (8th
Cir. 2011).
7
See Lowe Dep. 30 (“Even if the test were performed adequately, all tests have
varying degrees of accuracy.”); Lowe Dep. 214 (“It’s a biological system. Things go
wrong all the time. It’s nobody’s fault.”); Lowe Dep. 233 (“It’s not called negative. It’s
called no‐test and you start over. It happens every day.”); Lowe Dep. 243 (“The test
didn’t perform the way it was supposed to happen, which happens all the time.”).
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ORDER
Based on the foregoing, and on all of the files, records, and proceedings herein,
IT IS HEREBY ORDERED THAT:
1.
Defendant’s motion to dismiss or for summary judgment [ECF No. 47] is
GRANTED, and this action is DISMISSED WITHOUT PREJUDICE for
lack of jurisdiction.
2.
Plaintiff’s motion for partial summary judgment [ECF No. 84] is DENIED
insofar as it seeks a ruling that the Court has jurisdiction over this case
and DENIED AS MOOT insofar as it seeks a ruling on the merits of any of
the government’s defenses.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: August 7, 2015
s/Patrick J. Schiltz
Patrick J. Schiltz
United States District Judge
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