Hill v. USA
Filing
11
ORDER granting 6 Motion to Dismiss for Failure to State a Claim. Signed by Judge Michael R. Barrett on 7/20/18. (ba)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
David L. Hill,
Plaintiff,
-vs-
Case No. 1:17-cv-769
United States of America,
Judge Michael R. Barrett
Defendant.
ORDER
This matter is now before the Court upon Defendant’s Motion to Dismiss (Doc. 6)
for failure to state a claim upon which relief may be granted under Rule 12(b)(6) of the
Federal Rules of Civil Procedure and Plaintiff’s opposition thereto (Doc. 7).
For the reasons stated herein, Defendant’s Motion to Dismiss is GRANTED.
I. BACKGROUND
Plaintiff David L. Hill is an Army veteran of the United States, residing in Warren
County, Ohio. (Doc. 1 at ¶¶ 2, 12). Plaintiff suffers from service-connected posttraumatic
stress disorder (PTSD) and currently has a thirty percent disability rating. (Id. at ¶13). In
2015 or 2016, Plaintiff sought a change in his disability rating for chronic fatigue
syndrome (“CFS”). (Id. at ¶14). On February 1, 2016, Plaintiff logged on to the
Department of Veterans Affairs (“VA”) E-benefits website and saw a diagnosis for
Human Immunodeficiency Virus (“HIV”) with the CFS diagnosis; Plaintiff asserts he was
previously unaware of any exposure to or tests for HIV. (Id. at ¶17-18, 20). Plaintiff
alleges that he believed he was HIV positive and contacted his doctor for testing; the
subsequent testing came back negative for HIV. (Id. at ¶23). The amount of time
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between Plaintiff’s E-benefits notification and the negative test results is unknown.
Plaintiff asserts the misdiagnosis caused him to “suffer[] extensive damages, pain and
suffering, extreme distress, and other damages.” (Id. at PageID 6).
Plaintiff alleges, for the first time in the Response to Defendant’s Motion to
Dismiss, that the HIV misdiagnosis caused an “exacerbation” of his PTSD, which
“already cause[d] depression, anxiety, and panic attacks.” (Doc. 7 at PageID 27).
Plaintiff also claims the misdiagnosis generated “actual physical peril” because the VA
knew Plaintiff’s disability status, and the information “did not come from a medical
professional,” but rather from the E-benefits website. (Id.)
II. STANDARD
Plaintiff brings a claim for negligent infliction of emotional distress (NIED) under
the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671, et seq., seeking $500,000 in
damages for distress arising from a misdiagnosis of HIV; the HIV diagnosis was
communicated through the E-benefits website, a VA medical portal. Defendant waives
sovereign immunity under the FTCA concerning the substantive aspects of the case. 28
U.S.C. § 1346(b)(1). Ohio law applies, as the state in which the alleged tort occurred. 28
U.S.C. § 1402.
To survive a motion to dismiss, the complaint must put the defendant on fair
notice of the claim asserted, as well as the grounds for the claim. See Bush v. United
States, Case No. 1:13-cv-587, 2013 WL 5722802, at *2 (S.D. Ohio Sept. 17, 2013)
(citing Bell Atlantic Corp v. Twombly, 550 U.S. 544, 555 (2007)). The complaint “must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly,
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550 U.S. at 570). Together, these two conditions are the standard for whether a plaintiff
has failed to state a claim upon which relief may be granted.
III. ANALYSIS
The FTCA grants a limited waiver of the sovereign immunity of governmental
parties in actions involving tort claims against the United States. See Levin v. United
States, 568 U.S. 503, 506-07 (2013). Whether a FTCA claim can be made out against
the United States depends upon whether a private individual under like circumstances
would be liable under state law. See, e.g., Huffman v. United States, 82 F.3d 703, 705
(6th Cir. 1996). The law of the state in which the alleged tort occurred governs the
substantive questions at issue. See Bell v. United States, 854 F.2d 881, 885 (6th Cir.
1988). To survive Defendant’s Motion to Dismiss, Plaintiff must clearly state a claim for
NIED under Ohio tort law.
Plaintiff’s complaint (Doc. 1) alleges that the effects of the HIV misdiagnosis were
“a state of extreme emotional distress and shock,” (Id. at ¶21), “extreme and cruel
emotional distress,” (Id. at ¶29), and “extensive damages, pain and suffering, extreme
distress, and other damages.” (Id. at ¶30). Plaintiff adds additional claims in the
Response to Defendant’s Motion to Dismiss (Doc. 7), alleging “an exacerbation of his
service connected PTSD, which already causes depression, anxiety, and panic attacks,”
and “[his] PTSD was aggravated.” (Id. at PageID 27). Plaintiff does not include any
details on how specifically his PTSD was exacerbated. Furthermore, Plaintiff does not
explicitly assert any manifestation of physical trauma from the misdiagnosis. 1
1
An example of an explicit assertion of symptoms physically manifested from negligent
behavior, albeit in the context of Michigan law, is found in the dicta of Krueger v. United
States of America, Case No. 17-cv-10574, 2017 WL 5467743, at *12 (E.D. Mich. Nov.
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As further discussed below, the elements of NIED are only met when a
defendant's negligence produces an actual threat of physical harm, either to the plaintiff
or to another person. See Heiner v. Moretuzzo, 73 Ohio St.3d 80, 82 (1995). To prevail
under the former category (i.e. not as a bystander to an accident), Ohio plaintiffs must
assert – among other facts – allegations establishing: (1) Plaintiff’s emotional distress
was caused by a contemporaneous physical injury; or (2) Defendant exposed Plaintiff to
“actual physical peril” that resulted in emotional distress. Id. at 86-87 (citation omitted).
For example, one Ohio plaintiff prevailed when his emotional distress was
caused by narrowly escaping a falling sheet of glass dropped by a negligent defendant;
the glass’s near miss constituted “actual physical peril.” Shultz v. Barberton Glass Co., 4
Ohio St.3d 131 (1983). However, Ohio courts have uniformly held that medical
misdiagnoses are not actionable where “actual physical peril” was never imminent –
even if a plaintiff believed it to be, as in the instant case.
In 1995, the Ohio Supreme Court established the state’s modern test for NIED
claims in Heiner: “Ohio courts have limited recovery for negligent infliction of emotional
14, 2017). The plaintiff claimed that the emotional distress of the VA barring him access
to the benefits and care he was entitled to as an honorably discharged veteran
exacerbated his service-related PTSD. Id. The District Court for the Eastern District of
Michigan noted the plaintiff’s amended complaint specifically alleged chest pains arising
from the emotional distress and refuted the Government’s claim that the plaintiff did not
clearly state any “physical manifestation of [the] distress.” Id. The veteran-plaintiff’s
claim was ultimately dismissed under the FTCA for failing to state an actionable tort
under Michigan law, which limits a cause of action for NIED to circumstances where a
plaintiff suffers a mental disturbance from witnessing a negligent injury to a third party.
See Duran v. Detroit News, Inc., 200 Mich. Ct. App. 622, 629 (1993) (citation omitted)).
As further discussed infra, no such explicit physical manifestation is alleged in
Plaintiff’s complaint. To be clear, the Court is not holding that allegation regarding chest
pain would save Plaintiff’s complaint as a matter of law. Rather, the Court notes Krueger
to show that – even if Ohio law allowed a Plaintiff to pursue a PTSD exacerbation theory
– Plaintiff failed to mention any specific symptoms like the plaintiff in Krueger.
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distress to such instances as where one was a bystander to an accident or was in fear
of physical consequences to his own person." 73 Ohio St.3d at 85-86. The latter
category of “physical consequences” must be either a “contemporaneous injury” or a
risk of “actual physical peril” to the plaintiff. Id. at 86-87 (citing High v. Howard, 64 Ohio
St.3d 82, 85, 592 N.E.2d 818, 820–821 (1992)). Plaintiff mischaracterizes Heiner’s
interpretation of earlier precedent (Schultz and Paugh v. Hanks, 6 Ohio St.3d 72
(1983)), which affirmed that the “actual-peril” requirement is the only other method 2 to
establish liability without an actual injury at the time of the alleged negligence.
Regardless of the condition of the plaintiff, Heiner characterizes the misdiagnosis of HIV
as a “mere fear of nonexistent peril” insufficient to establish NIED. 73 Ohio St.3d at 86;
see also Criswell v. Brentwood Hosp., 49 Ohio App.3d 163, 551 N.E.2d 1315 (1989).
This approach has been robustly affirmed in the last two decades, and Ohio federal
courts, including this one, have repeatedly followed the precedent set by the Ohio
Supreme Court and declined to expand tort liability further. 3
2
Ohio courts have occasionally applied a single exception – inapplicable here – to the
requirement to establish NIED claims in cases that involve abuses of human remains.
See Chesher v. Neyer, 392 F.Supp.2d 939, 955-56 (S.D. Ohio 2005) (recognizing an
exception to the “actual-peril requirement” in cases involving the mishandling of a
corpse); see also Carney v. Knollwood Cemetery Ass’n, 33 Ohio App.3d 31, 34, 514
N.E.2d 430, 433 (1983) (“[There is] no general availability of recovery for infliction of
emotional distress without accompanying physical injury. Abuse of dead bodies,
however, has received extraordinary treatment in the courts.”).
3
See McGrath v. Nationwide Mutual Insur. Co., 295 F.Supp.3d 796, 815 (S.D. Ohio
2018); Hunter v. Hamilton County et al., Case no. 1:15-cv-540, 2016 WL 2744832, at *6
(S.D. Ohio May 10, 2015); Snyder v. United States, 990 F.Supp.2d 818, 834 (S.D. Ohio
2014) (holding that “unnerving” experiences during an arrest based on mistaken
identity, including being subjected to a cavity search, were not “actual physical peril”
sufficient to establish a claim for NIED); Range v. Douglas, 878 F.Supp.2d 869, 895
(S.D. Ohio 2012) (Barrett, J.) (stating merely being informed of upsetting information is
not sufficient for a NIED claim).
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Although the HIV misdiagnosis likely caused Plaintiff sincere emotional distress,
Ohio law requires a real physical harm, experienced or threatened, to establish a valid
NIED claim. In Heiner, Justice Douglas aptly addressed the dissonance between the
alleged harm and the legally-correct decision to dismiss by stating, “the facts of [the]
case remind us that not every wrong is deserving of a legal remedy.” 73 Ohio St.3d at
88. Similarly, while the distress caused in Plaintiff’s case may be genuine, it is not
actionable under a claim of NIED in Ohio. Furthermore, Plaintiff makes no attempt to
demonstrate he was actually in peril of contracting HIV or at risk of any other physical
injury at any time between the misdiagnosis and the corrected test results.
To circumvent Heiner, Plaintiff attempts to argue that the misdiagnosis did indeed
cause contemporaneous injury because it exacerbated his pre-existing condition of
PTSD. (Doc. 7 at PageID 27). This argument is problematic because: (1) Plaintiff cites
no authority showing that the Ohio Supreme Court recognizes such a theory of liability;
(2) even if Plaintiff could cite such authority, he makes this argument for the first time in
his opposition brief, although it is well settled that a party may not “amend” its complaint
via Motion to Dismiss briefing 4; and (3) as discussed in footnote 1, the Court has
concerns regarding whether the generalized allegations survive the Twombly-Iqbal
standard. Accordingly, Plaintiff’s argument is insufficient to survive Rule 12(b)(6) of the
Federal Rules of Civil Procedure for failure to state a claim upon which relief may be
granted.
4
See Bishop v. Lucent Technologies, Inc., 520 F.3d 516, 521 (6th Cir. 2008)
(“Ordinarily, when the omission of a critical allegation in a complaint is highlighted by a
defendant's motion to dismiss, the appropriate method for adding new factual
allegations is to request leave to amend the complaint in conjunction with responding to
the motion to dismiss.”) (citing Harvey v. Great Seneca Fin. Corp., 453 F.3d 324, 328
(6th Cir. 2006)).
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IV. CONCLUSION
Based on the foregoing, Plaintiff has failed to state an actionable claim for
negligent infliction of emotional distress under Ohio tort law. Accordingly, the
Defendant’s Motion to Dismiss (Doc. 6) is GRANTED.
IT IS SO ORDERED.
Michael R. Barrett
/s/_____________________
Michael R. Barrett
United States District Judge
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