Oskar v. The United States of America

Filing 26

ORDER denying 13 Motion for Summary Judgment; denying 13 Motion to Dismiss. Signed by U.S. District Judge Karen E. Schreier on 2/26/2016. (JLS)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
JOHN RAYMOND OSKAR III,

4:14-CV-04144-KES

Plaintiff,
ORDER DENYING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT
OR DISMISSAL

vs.
UNITED STATES OF AMERICA,
Defendant.

Defendant, the United States of America, moves for summary judgment
on all claims asserted by plaintiff, John Raymond Oskar III, or, in the
alternative, for partial dismissal of Oskar’s claims. Oskar resists the motion.
For the following reasons, the court denies the motion.
BACKGROUND
The facts viewed in the light most favorable to Oskar, the non-moving
party, are as follows:
Oskar is a veteran. He received medical care at the Veterans
Administration Medical Center (VMAC) in Sioux Falls, South Dakota for acute
pancreatitis/hepatitis. Oskar sought treatment for his condition on March 31,
2008. In early April of 2008, Dr. Gill, a surgeon at the VMAC, suggested that
Oskar be transferred to another facility where pancreatic surgeries are more
commonly performed. But Oskar was discharged from the VMAC on April 10,
2008.

Oskar returned to the VMAC in September of 2009 and was admitted for
treatment of his pancreatitis ailment. He was transferred to Sanford Health’s
facilities on September 28, 2009, for emergency surgery due to a necrotizing
pancreatitis condition. Oskar alleges that his intensified illness was caused by
the VMAC’s failure to ascertain whether his bowel perforation was resolved
surgically and whether the medication prescribed by the VMAC caused his
pacreatitis.
Oskar initiated his lawsuit acting pro se and alleged that the government
was liable for medical malpractice. The VMAC received Oskar’s administrative
complaint on August 19, 2010, and denied the complaint on March 6, 2012.
The VMAC also denied Oskar’s request for reconsideration on March 26, 2014.
Oskar filed suit in this court on September 11, 2014. Docket 1. The
government moves for summary judgment or, in the alternative, for partial
dismissal of Oskar’s claims. Docket 13. Oskar obtained legal counsel, who
noted her appearance for the first time on November 24, 2015. Docket 17.
LEGAL STANDARD
Summary judgment on all or part of a claim is appropriate when the
movant “shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see
also In re Craig, 144 F.3d 593, 595 (8th Cir. 1998). The moving party can meet
its burden by presenting evidence that there is no dispute of material fact or
that the nonmoving party has not presented evidence to support an element of
its case on which it bears the ultimate burden of proof. Celotex Corp. v. Catrett,

477 U.S. 317, 322-23 (1986). Once the moving party has met this burden,
“[t]he nonmoving party may not ‘rest on mere allegations or denials, but must
demonstrate on the record the existence of specific facts which create a
genuine issue for trial.’ ” Mosley v. City of Northwoods, Mo., 415 F.3d 908, 910
(8th Cir. 2005) (quoting Krenik v. Cty. of Le Sueur, 47 F.3d 953, 957 (8th Cir.
1995)). “Further, ‘the mere existence of some alleged factual dispute between
the parties is not sufficient by itself to deny summary judgment. . . . Instead,
the dispute must be outcome determinative under prevailing law.’ ” Id. (quoting
Get Away Club, Inc. v. Coleman, 969 F.2d 664, 666 (8th Cir. 1992)). The facts,
and inferences drawn from those facts, are “viewed in the light most favorable
to the party opposing the motion” for summary judgment. Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting United
States v. Diebold, Inc., 369 U.S. 654, 655 (1962)).
DISCUSSION
I.

Medical Opinion Evidence
Oskar alleges that the government is liable for medical malpractice.

Under the Federal Tort Claims Act (FTCA), courts apply “the law of the place
where the act or omission occurred.” 28 U.S.C. § 1346(b)(1). According to
Oskar’s complaint, the acts or omissions occurred in South Dakota. Thus, the
court applies South Dakota law.
In South Dakota, “[t]he general rule in medical malpractice cases is that
negligence must be established by the testimony of medical experts” because “a
verdict in a malpractice case based on inferences stemming from speculation

and conjecture cannot stand.” Magbuhat v. Kovarik, 382 N.W.2d 43, 46 (S.D.
1986). But the general rule “does not exclude the opinions and conclusions of
lay witnesses on subjects which are within the common knowledge and
comprehension of persons possessed of ordinary education, experience and
opportunity.” Id. Here, Oskar alleges that he developed diabetes and a
potentially lethal case of necrotizing pancreatitis as a result of the
government’s negligent examination, diagnosis, and treatment. Oskar’s claims
necessitate a determination of the standard of care that is required when a
patient is treated for pancreatitis. This is not an issue within the common
knowledge of lay people. See Kostel v. Schwartz, 756 N.W.2d 363, 383 (S.D.
2008) (“The complexity of neurosurgery does not pose that kind of self-evident
situation [where expert opinion testimony is unnecessary]”); Luther v. City of
Winner, 674 N.W.2d 339, 346 (S.D. 2004) (noting that “the typical lay person
would have no idea how to design and construct a sidewalk under the
conditions on Winner's Main Street”).
Because determining the standard of care in this case is not within the
common knowledge of lay people, Oskar must present expert testimony. Under
the court’s scheduling order, Oskar was given until June 12, 2015, to
designate an expert and to disclose his expert’s report. Docket 10 at 2. That
deadline has passed, and Oksar has not designated an expert. The government
argues that it is entitled to summary judgment because Oskar has not come
forward with expert opinion evidence substantiating his medical malpractice
claims.

Oskar filed a signed declaration while the government’s motion was
pending and after he obtained the assistance of legal counsel. See Docket 22.
Oskar attests that he is a retired veteran who is unfamiliar with the intricacies
of the legal system. Id. at 2. According to Oskar, he did not comprehend fully
the importance of procuring expert opinion evidence in a timely manner. Id. at
7. But now that he has hired an attorney who is familiar with the legal system,
Oskar asks the court for an opportunity to retain an expert and to substantiate
his malpractice claims with expert opinion evidence. Id. Oskar has also
included excerpts from his medical records that, if substantiated, could lend
credence to his claims. See Docket 1 at 2-5.
Under Rule 56(e), the court may exercise its discretion in situations such
as this where “a party fails to properly support an assertion of fact or fails to
properly address another party’s assertion of fact as” ordinarily required. Fed.
R. Civ. P. 56(e). The court may “give an opportunity to properly support or
address the fact” or “issue any other appropriate order.” Fed. R. Civ. P. 56(e)(1),
(4). The Advisory Committee spoke directly to this point when Rule 56 was
amended in 2010:
The choice among possible orders should be designed to encourage
proper presentation of the record. Many courts take extra care with
pro se litigants, advising them of the need to respond and the risk
of losing by summary judgment if an adequate response is not
filed. And the court may seek to reassure itself by some
examination of the record before granting summary judgment
against a pro se litigant.
Fed. R. Civ. P. 56 Advisory Committee Notes (2010 Amendment). Although
Oskar is no longer acting pro se, he was acting pro se while the deadline to

designate an expert lapsed. Additionally, the government’s position is akin to
receiving a judgment by default rather than on the merits. The court finds,
therefore, that the interests of justice would best be served by allowing Oskar
additional time to obtain and support his claims with expert opinion evidence.
See Roberts v. Browning, 610 F.2d 528, 536 (8th Cir. 1979) (“However, even if a
district judge feels that summary judgment in a given case is technically
proper, sound judicial policy and the proper exercise of judicial discretion may
prompt him to Deny the motion and permit the case to be developed fully at
trial”). Thus, the court’s scheduling order will be amended to provide Oskar
this additional opportunity.
Oskar is cautioned, however, that expert opinion evidence will be
required to substantiate his arguments going forward. If Oskar again fails to
produce expert opinion evidence, summary judgment may be entered against
him. Cf. Moran v. United States Dep’t of Health & Human Servs., No. CIV 053036, 2007 WL 963490 at *4 (D.S.D. Mar. 28, 2007) (granting summary
judgment where plaintiff failed to support a medical malpractice claim with
expert opinion evidence).
II.

Statute of Limitations
The government moves under Federal Rule of Civil Procedure 12(b)(1)

and 12(h)(3) for partial dismissal of Oskar’s claims due to a lack of subject
matter jurisdiction. According to the government, Oskar’s malpractice claims
should be dismissed to the extent that those claims rely on events that
occurred outside the two-year statute of limitations applicable to claims against

the government. The government asserts that Oskar’s allegations concerning
March and April of 2008 are untimely because the VAMC did not receive
Oskar’s administrative complaint until August 2010.
The statute of limitations for commencing certain civil suits against the
government is established under the FTCA. It provides in relevant part that
A tort claim against the United States shall be forever barred
unless it is presented in writing to the appropriate Federal agency
within two years after such claim accrues or unless action is begun
within six months after the date of mailing, by certified or
registered mail, of notice of final denial of the claim by the agency
to which it was presented.
28 U.S.C. § 2401(b). The government argues that compliance with the FTCA’s
two-year statute of limitations is a jurisdictional prerequisite to maintaining
suit in federal court. The Supreme Court, however, has considered the same
argument the government makes here. See United States v. Kwai Fun Wong,
135 S. Ct. 1625, 1629 (2015). In Kwai Fun Wong, the government argued that
§ 2401(b)’s statute of limitations imposed a jurisdictional restriction on the
power of federal district courts to hear FTCA claims. Id. The Court disagreed. It
held unequivocally that “Section 2401(b) is not a jurisdictional requirement.
The time limits are just time limits, nothing more.” Id. at 1633. Thus, the
government’s motion to dismiss is denied.
Construing the government’s motion as one for summary judgment, the
court denies the motion. The government’s position is that Oskar’s claims
accrued more than two years before his administrative claim was filed with the
VMAC. Generally, a claim “accrues” under the FTCA at the time of the

plaintiff’s injury. Osborn v. United States, 918 F.2d 724, 731 (8th Cir. 1990).
“Courts recognize, however, an exception for medical malpractice cases, in
which the injury and cause are not immediately known. Under the ‘discovery
rule,’ which [the Eighth Circuit Court of Appeals] applies to medical
malpractice cases under the FTCA, the claim accrues when the plaintiff
discovers, or should have discovered the cause of injury.” Id. (internal citations
omitted); see also Flores v. United States, 689 F.3d 894, 901 (8th Cir. 2012).
The Eighth Circuit has explained that
The rationale behind the modified rule is to protect plaintiffs who
are blamelessly unaware of their claim because the injury has not
yet manifested itself or because the facts establishing a causal link
between the injury and the [tortious activity] are in the control of
the tor[t]feasor or are otherwise not evident.
Garza v. United States Bureau of Prisons, 284 F.3d 930, 934 (8th Cir. 2002)
(quoting Diaz v. United States, 165 F.3d 1337, 1340 (11th Cir. 1999) (alteration
in original). “Therefore . . . the plaintiff may show that he had no reason to
believe he had been injured by an act or omission by the government.” Id.
Additionally, under the continuous treatment doctrine, “a cause of action
accrues when tortious treatment ends, rather than when awareness of the
injury begins.” Sell v. United States Dep’t of Justice, 585 F.3d 407, 411 (8th Cir.
2009). Viewing the facts in the light most favorable to Oskar, it is not clear
when he discovered the cause of his injury. Additionally, the allegedly tortious
treatment Oskar received could have continued up through September 2009. If
so, Oskar would have been well within the two-year limitations period by filing

his administrative complaint in August 2010. Thus, summary judgment is
denied.
CONCLUSION
The government is not entitled to summary judgment or to an order of
dismissal on Oskar’s claims. Oskar will be given an opportunity to substantiate
his malpractice claims with expert opinion evidence. Thus, it is
ORDERED that the government’s motion for summary judgment or, in
the alternative, to dismiss (Docket 13) is denied.
Dated February 26, 2016.
BY THE COURT:
/s/Karen

E. Schreier

KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE