Mantick et al v. Wisner et al Reminder to Counsel: Case Consolidated for Discovery; All Non-Dispositive filings to be made in Lead Case #17-2623 ONLY, No. 2:2018cv02146 - Document 11 (D. Kan. 2018)
Court Description: MEMORANDUM AND ORDER granting in part and denying in part 7 Motion to Dismiss for Lack of Jurisdiction. The claims of Jessica Mantick are dismissed. The motion is granted as to Counts III and VI. The motion is also granted as to plaintiff's n egligent 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. Finally, some of plaintiff's claims may be time-barred. Signed by District Judge Carlos Murguia on 10/25/2018. Mailed to party Mark Wisner by regular mail. (tvn)
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Mantick et al v. Wisner et al Reminder to Counsel: Case Conso...made in Lead Case &#035;17-2623 ONLY Doc. 11 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS RICHARD MANTICK and JESSICA MANTICK, Plaintiffs, v. UNITED STATES OF AMERICA and MARK WISNER, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) Case No. 18-2146-CM-TJJ MEMORANDUM AND ORDER Plaintiffs Richard Mantick and Jessica Mantick bring 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 Richard Mantick and elicited unnecessary private information. Plaintiffs also allege several state law claims. This matter is before the court on defendant United States of America’s Motion to Dismiss (Doc. 7). Defendant argues that plaintiffs’ 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. Plaintiff Richard Mantick 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 Richard Mantick. Wisner was a physician’s assistant for the VA, and is a defendant in more than ninety pending civil suits before this court. -1Dockets.Justia.com 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. Plaintiff Jessica Mantick Defendant moves to dismiss the claims of plaintiff Jessica Mantick because they are derivative of the claims of plaintiff Richard Mantick. Plaintiff Richard Mantick was the patient. Plaintiff Jessica Mantick was merely present during some of the medical appointments. Kansas does not recognize a separate cause of action for spousal loss of consortium due to injuries to the other spouse. Sayre v. City of Lawrence, No. 13-2291-RDR, 2013 WL 4482703, at *2 (D. Kan. Aug. 21, 2013) (citation omitted). Instead, “the right to recover for loss of consortium lies with the spouse who files an action for personal injuries, not the spouse who actually suffers the loss of consortium.” Stucky v. Health Care Prod., Inc., 794 F. Supp. 1069, 1070 (D. Kan. 1992). Plaintiff Jessica Mantick is not a proper party to this action, and the court dismisses her claims. Because the court dismisses the claims of plaintiff Jessica Mantick in their entirety, the references to “plaintiff” throughout the remainder of this order pertain to plaintiff Richard Mantick. -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 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. Statute of Repose Defendant claims that at least some of plaintiff’s claims are barred by Kansas’s four-year statute of repose. See Kan. Stat. Ann. § 60-513(c) (stating that, with respect to a “cause of action arising out of the rendering of or the failure to render professional services by a health care provider,” “in no event shall such an action be commenced more than four years beyond the time of the act giving rise to the cause of action”). Plaintiff disagrees, incorporating arguments made in other cases by reference. -3- The court makes the same rulings here as it has in other cases. First, Wisner was a health care provider, making § 60-513(c) applicable. See, e.g., Doe BF, 2017 WL 4355577, at *2; Almquist, 2017 WL 4269902, at *2. Second, § 60-513(c) applies to all of plaintiff’s claims, including battery. See, e.g., Doe BF, 2017 WL 4355577, at *2; Almquist, 2017 WL 4269902, at *2. Third, the FTCA administrative process tolls the statute of repose. See, e.g., Doe BF, 2017 WL 4355577, at *3; Almquist, 2017 WL 4269902, at *3. And fourth, equitable estoppel does not further toll the statute of repose. See, e.g., Doe BF, 2017 WL 4355577, at **3–*4; Almquist, 2017 WL 4269902, at *3–*4. In this case, the impact of these rulings is that some of plaintiff’s claims may be barred by the statute of repose. In his complaint, plaintiff alleges that he saw Wisner “between 2012 and 2014.” Taking these allegations as true, some of plaintiff’s claims likely happened before October 25, 2013, which was four years before plaintiff filed an administrative claim. Any such claims are therefore barred by the statute of repose. 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. -4- 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 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 D. E., 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. 7) is granted in part and denied in part. The claims of Jessica Mantick are dismissed. 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. Finally, some of plaintiff’s claims may be time-barred. -5- Dated this 25th day of October, 2018, at Kansas City, Kansas. s/ Carlos Murguia____________ CARLOS MURGUIA United States District Judge -6-
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