Ellsworth v. United States of AmericaMOTION to Dismiss CaseD. Ariz.September 19, 2016 - 1 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 JOHN S. LEONARDO United States Attorney District of Arizona Laurence G. Tinsley, Jr. Assistant United States Attorney Arizona State Bar No. 012581 Two Renaissance Square 40 N. Central Ave., Suite 1200 Phoenix, Arizona 85004 Telephone: 602-514-7500 Email: laurence.tinsley@usdoj.gov Attorneys for Defendant IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Susan Ellsworth, Personally and as Personal Representative of the Estate of James Dennis Ellsworth, Jr., Plaintiff, v. United States of America, Defendant. 3:16-CV-08150-DMF MOTION TO DISMISS PURSUANT TO RULES 12(b)(1) AND 12(b)(6) Defendant United States moves to dismiss the First Cause of Action of Plaintiff’s $200 million claim in this wrongful death case. This count is improper and should be dismissed under Rule 12(b)(6) because Plaintiff cannot properly bring a claim for a Decedent’s pain, suffering or mental anguish under well-established case law in Arizona. Second, Plaintiff’s institutional negligence claim against the United States, alleged in ¶ 19 of the Complaint (Dkt. 1, at 6), is also invalid under Rule 12(b)(1) because the United States has never waived sovereign immunity under the Federal Tort Claims Act (FTCA) for these types of claims. Further, tort claims against the United States are limited to claims against “federal employees,” i.e., natural persons, as a matter Case 3:16-cv-08150-DMF Document 9 Filed 09/19/16 Page 1 of 7 - 2 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 of law. I. Standard of review. When considering a motion to dismiss for failure to state a claim under Rule 12(b)(1), the Court takes as true all allegations of material facts and construes them in a light most favorable to the non-moving party. See Hicks v. Small, 69 F.3d 967, 969 (9th Cir.1995). A complaint should not be dismissed unless it appears beyond doubt that a plaintiff can prove no set of facts in support of his or her claim which would entitle him or her to relief. Id. Further, dismissal under Rule 12(b)(6) can be based on “the lack of a cognizable legal theory” or “the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir.1990). II. Factual background. Plaintiff alleges that Decedent was a mental health patient at the Veterans Affairs Medical Center in Northern Arizona (VAMC) and that he suffered depression, anxiety, paranoia and fear. Complaint (Dkt. 1), ¶ 13. Plaintiff alleges that on September 14, 2014, Decedent came to the VAMC and presented with increased anxiety and paranoia and hallucinations. Id. at ¶ 14. Plaintiff alleges that despite his psychiatric maladies, Decedent was not admitted to the hospital and was not properly assessed for a risk of suicide. She also alleges that unspecified providers at the VAMC failed to review Decedent’s psychotropic drugs or perform an assessment of his use of his current drugs. Id. at ¶ 15. According to the complaint, soon after leaving the VAMC, Decedent committed suicide by hanging himself. Plaintiff alleges in ¶ 21 that as a direct and proximate cause of the alleged negligence, Decedent “suffered severe pain and suffering and mental anguish and thereby sustained damages in the amount of $100,000,000.” Id. Finally, Plaintiff also alleges a systemic negligence claim against the United States, claiming that Defendant was negligent in its ownership, operation, management, supervision, and control of the VAMC. Id. at ¶ 19. Case 3:16-cv-08150-DMF Document 9 Filed 09/19/16 Page 2 of 7 - 3 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 III. Arizona’s substantive law precludes claims for a decedent’s pain, suffering and mental anguish in a wrongful death case. For medical malpractice claims brought under the FTCA (28 U.S.C. §§ 1346(b) and 2671 et seq.), liability is determined by the substantive law of Arizona. Richards v. U.S., 369 U.S. 1, 8-10 (1962); Louie v. U.S. 776 819, 824 (9th Cir.1985). In Arizona, wrongful death actions only compensate statutory beneficiaries for damages that they have suffered due to a decedent’s death. They do not compensate for injuries suffered by the decedent. Gartin v. St. Joseph’s Hospital and Medical Center, 156 Ariz. 32, 749 P. 941 (Ct.App.1988). In Gartin, the court specifically held that under Arizona’s statutes wrongful death damages compensate the statutory beneficiaries for damages arising from their decedent’s death, rather than for injuries suffered by the decedent himself or herself. Id. at 943. The Court also noted that under Arizona’s survival statute, Every cause of action…shall survive the death of the person entitled thereto or liable therefor, and may be asserted by or against the personal representative of such person, provided that upon the death of the person injured, damages for pain and suffering of such injured person shall not be allowed. A.R.S. § 14- 3110. Id. at 945 (emphasis added). Likewise, in Bither v. Country Mut. Ins. Co., 226 Ariz. 198, 201, 245 P.3d 883, 886 (Ct.App.2010), the Court held that “a wrongful death action compensates statutory beneficiaries for damages such beneficiaries have suffered due to the decedent's death, but does not compensate for injuries suffered by the decedent.” Further, the Arizona courts have held that decedents who die prior to recovery of damages cannot recover for pain and suffering: “The Legislature apparently contemplated that once an injured person is dead he cannot benefit from an award for his pain and suffering.” Harrington v. Flanders, 2 Ariz.App. 265, 267, 407 P.2d 946, 948 (1965). Finally, assuming Plaintiff is attempting to bring a claim on behalf of Decedent’s Estate, as the complaint’s caption intimates, the Estate is only entitled to recover for Case 3:16-cv-08150-DMF Document 9 Filed 09/19/16 Page 3 of 7 - 4 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 economic losses that Decedent himself would have sustained, i.e., recovery of damages he incurred from the time of the alleged events until his death. This only includes “damages in the nature of hospital and medical expenses.” Gartin at 945. Here, Plaintiff has made no allegations that Decedent incurred this type of economic loss. This is another reason to dismiss this claim. IV. Plaintiff cannot bring a systemic or institutional claim under the FTCA as alleged in ¶ 19 of the complaint. The FTCA, 28 U.S.C. § 2671, et seq. and 28 U.S.C. §§ 1346(b)(1), authorizes suits against the United States for damages for personal injury caused by the negligent or wrongful act or omission of any employee of the government while acting within the scope of his or her employment. United States v. Orleans, 425 U.S. 807, 813-16 (1976); Blackburn v. United States, 100 F.3d 1426, 1429 (9th Cir.1996) (the FTCA waives the Government’s sovereign immunity for tort claims arising out of the negligent conduct of government employees acting within the scope of their employment). The FTCA provides that the United States may be held liable for the negligent conduct of its employees “in the same manner and to the same extent as a private individual under like circumstances.” 28 U.S.C. § 2674 (emphasis added). In ¶ 19 of her complaint, Plaintiff has not identified any federal employee who was involved in the allegedly negligent ownership, operation, management, maintenance, supervision, or control of the VAMC. Rather, Plaintiff only alleges that the United States as an institution breached various duties – without identifying who its employees were. Under the FTCA, Plaintiff’s institutional claims against the United States and its agencies as a whole are legally infirm. The FTCA defines “employee of the government” to include “officers and employees of any federal agency” as well as “persons acting on behalf of a federal agency in an official capacity.” 28 U.S.C. § 2671. It does not provide for suits against institutional defendants. Thus, as a matter of law the FTCA liability provisions for individual employee conduct do not apply to institutional entities such the United States or the VAMC – or to unnamed individuals putatively Case 3:16-cv-08150-DMF Document 9 Filed 09/19/16 Page 4 of 7 - 5 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 employed by these entities. In a medical malpractice case, Meier v. United States, 310 Fed.Appx. 976 (9th Cir.2009), the plaintiff sued the United States under the FTCA, alleging that the negligent hiring, training, and supervision of a Veteran’s Administration doctor caused him injury during several colonoscopy procedures – similar to Plaintiff’s negligent management and supervisory claims in ¶ 19. The district court granted the United States’ motion to dismiss, holding that the United States had not waived sovereign immunity for these claims. Meier v. United States, 2006 WL 3798160, 3-4 (N.D.Cal.2006). It held that the VA hospital was not a “person” and therefore not subject to suit for purposes of the FTCA. Id. On appeal, the Ninth Circuit affirmed the district court. It adopted the rationale of Adams v. United States, 420 F.3d 1049, 1050 (9th Cir.2005), which held that the word “‘persons’...does not include corporations” under the FTCA, and noting that the purpose of the FTCA limits “persons” to individuals. Meier, 310 Fed.Appx. at 979. The Ninth Circuit in Meier expressly held that the proper application of Adams immunizes agencies and other organizations or institutional defendants from suit. Thus, if a plaintiff sued a medical practitioner for negligence and added claims for negligence on the part of the hospital, he or she could not recover under the FTCA for systemic negligence of the hospital. This holding directly pertains to Plaintiff’s systemic claims stated in ¶ 19, and demonstrates that Plaintiff’s claims for negligent ownership, operation, management, maintenance, supervision and/or control are improper. In Meier, the Ninth Circuit held that “[t]o establish jurisdiction under the FTCA, [Plaintiff] must show that the VA would be liable under California law if it were a private ‘person.’” Id. It found that the district court had correctly dismissed Meier’s claims against the VA because “persons” does not include corporate entities under the FTCA. Id. The same rationale applies to any agency of the United States or other organization that would constitute a corporate entity rather than a “person” under the FTCA, Adams, and Meier. Case 3:16-cv-08150-DMF Document 9 Filed 09/19/16 Page 5 of 7 - 6 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Accordingly, this Court has no jurisdiction over Plaintiff’s claims in ¶ 19 because the United States has never waived sovereign immunity for claims of systemic or institutional negligence. Sovereign immunity is only waived “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). Under the FTCA’s language, the government may only be sued where an individual person would be liable under state tort law. Sovereign immunity bars Plaintiff from alleging systemic ownership, operations or management claims because these theories rely on “corporate” liability. Plaintiff failed to allege specific negligence on the part of a natural person. See also Mathis v. U.S. WL 4352291, *1-2 (D.Ariz.2011) (vague and conclusory claims asserted against unnamed “medical staff” are insufficient to state a medical malpractice claim under Rule 8(a)(2), Fed.R.Civ.P.; “therefore, claims asserted against unnamed medical staff are dismissed for failure to state a claim.”); Ponders v. U.S., 2014 WL 2612315, *2 (S.D.Fla.2014) (summary judgment granted due to plaintiff’s failure to identify a federal employee who was negligent); Adams v. U.S., supra (the terms “person” and “employee of the government” used in 28 U.S.C. § 2671 do not include institutions such as corporations). Conclusion Count I should be dismissed. Plaintiff has improperly sought to bring a $100,000,000 claim on behalf of Decedent for his pain, suffering, and mental anguish and brings no claim for economic loss on behalf of his Estate. This is improper under the substantive law of the place, i.e., Arizona’s wrongful death statutes. Further, the FTCA precludes systemic or institutional negligence claims against the United States, which Plaintiff alleges in ¶ 19 of her complaint. Plaintiff has failed to allege that any individual employees violated any standards of care. Thus these allegations should also be dismissed. For all the foregoing reasons, Defendant’s motion to dismiss should be granted. Case 3:16-cv-08150-DMF Document 9 Filed 09/19/16 Page 6 of 7 - 7 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Respectfully submitted this 19th day of September, 2016. JOHN S. LEONARDO United States Attorney District of Arizona s/ Laurence G. Tinsley, Jr. Laurence G. Tinsley, Jr. Assistant United States Attorney CERTIFICATE OF SERVICE I hereby certify that on September 19, 2016, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrant(s): Erin Steffin, Esq. Law Office of Erin Steffin 3260 N. Hayden Road, Suite 210 Scottsdale, AZ 85251 s/ Irene Millsaps United States Attorney’s Office Case 3:16-cv-08150-DMF Document 9 Filed 09/19/16 Page 7 of 7
