Sorrell v. United States Department of Veterans Affairs

MOTION to Dismiss for Lack of Jurisdiction , MOTION for More Definite Statement

D. Ariz.March 13, 2017

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 ELIZABETH A. STRANGE Acting United States Attorney District of Arizona ADAM R. SMART Assistant U.S. Attorney Arizona State Bar No. 007676 Two Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: 602-514-7500 Facsimile: 602-514-7760 Email: adam.smart@usdoj.gov Attorneys for Defendant IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Lonnie Sorrell, Plaintiff, vs. Department of Veterans Affairs, Defendant. CIV-16-03802-PHX-DLR MOTION TO DISMISS COMPLAINT AND FOR A MORE DEFINITE STATEMENT ON ANY REMAINING CLAIMS Defendant Department of Veterans Affairs, by and through undersigned counsel, respectfully moves to dismiss Plaintiff Lonnie Sorrell’s complaint (Doc. 1.) pursuant to Fed. R. Civ. P. 12(b)(1) for the reason that this Court lacks subject matter jurisdiction over the Amended Complaint because Plaintiff is challenging the benefits determination by the VA following his Compensation and Pension Exam in September 2013. To the extent there is more to Plaintiff’s claims, Defendant moves for a more definite statement with regard to such additional claims pursuant to Fed. R. Civ. P. 12(e), and for compliance with A.R.S. § 12-2603. Undersigned certifies that he attempted to speak with Plaintiff on several occasions concerning the contents of this motion. However, each time undersigned contacted Mr. Sorrell, using the phone number he provided to the Court, Plaintiff hung up on him. Case 2:16-cv-03802-DLR Document 10 Filed 03/13/17 Page 1 of 13 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 MEMORANDUM OF POINTS AND AUTHORITIES I. Introduction After a prior, almost identical complaint was dismissed by this Court on August 12, 2016 for lack of jurisdiction, Plaintiff filed the instant complaint in this Court. Plaintiff asserts that he is bringing this action under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671-2680. (Doc. 1.) With little specific information, Plaintiff makes vague allegations that he was injured as a result of negligence by “VA Medical Practitioners.” (Id. at pp. 3-7.) However, reading the complaint in conjunction with the documents he attached to the complaint demonstrates that Mr. Sorrell is actually challenging the VA’s denial of benefits for claimed carpel tunnel syndrome and related conditions and which conditions he also claims are “service connected.” This denial was based, in part, on a September 2013 exam conducted by a VA practitioner who concluded that Mr. Sorrell did not have the claimed disability. It is the results of this benefits examination and ultimate denial by the agency based in part on this examination that Mr. Sorrell is challenging. This is not a medical malpractice claim, it is a benefits challenge. This court has been stripped of its jurisdiction to hear such challenges by the Veterans’ Judicial Review Act of 1988 (“VJRA”). Accordingly, the complaint should be dismissed. To the extent that the Court believes there may be a potential medical malpractice claim in Plaintiff’s allegations aside from his obvious disagreement with the results of the benefits examination, Defendant is unable to respond to the allegations as currently set forth and thus requests the Court order a more definite statement from Plaintiff detailing the specifics of such claim. In addition, in conjunction with the order requiring a more definite statement, Defendant also requests that the Court order compliance with A.R.S. § 12–2603, which requires certain certifications at the commencement of a medical malpractice case. II. Procedural Background Plaintiff submitted a “Claim for Damage, Injury or Death,” otherwise known as SF- 95, to Defendant on December 5, 2014. (Doc. 1-1, p. 1.) The Amount of Claim (Id. at Case 2:16-cv-03802-DLR Document 10 Filed 03/13/17 Page 2 of 13 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 ¶ 12b) stated by Plaintiff was simply “Pending Settlement Negotiations,” rather than a sum certain. Id. On March 31, 2015, because he had been informed that the claim needed a sum certain, 1 Plaintiff resubmitted his SF-95, with a sum certain of $800,000 shown as the amount of claim. (Doc. 1-1, pp. 2-3, 19.) On July 17, 2015, Plaintiff filed a complaint in the Superior Court of Arizona, Maricopa County raising nearly identical claims as those asserted here. (Case No. 2:16- cv-293, Doc. 1-1, pp. 9-14.) On or about September 9, 2015, Defendant issued its denial of Plaintiff’s administrative claim. (Doc. 1-1, pp. 23-24.) On December 9, 2015, Defendant received Plaintiff’s request that Defendant reconsider the denial of Plaintiff’s claim. (Case No. 2:16- cv-293, Doc. 3-1, pp. 11-12.)2 On February 1, 2016, Defendant removed Plaintiff’s prior state court lawsuit to this Court pursuant to 28 U.S.C. § 1442. (Case No. 2:16-cv-293, Doc. 1.) On August 12, 2016, this Court dismissed that action for lack of subject matter jurisdiction under the derivative jurisdiction doctrine. (Case No. 2:16-cv-293, Doc. 30.) On November 3, 2016, Plaintiff filed the instant action asserting the same claims raised in his prior action. (Doc. 1.) III. Factual Background While Plaintiff’s complaint is extremely light on details, he does attach approximately fifty pages of documents to his complaint that contain more information about his claims and medical treatment. 1 A claim under the FTCA is not “presented . . . to the appropriate federal agency” as required by 28 U.S.C. § 2675(a) unless it contains “a sum certain damages claim.” Blair v. I.R.S., 304 F.3d 861, 864 (9th Cir. 2002) (quoting Warren v. United States Dep't of Interior Bureau of Land Mgmt., 724 F.2d 776, 780 (9th Cir. 1984) (en banc)). 2 This information from Plaintiff’s prior case is being provided by way of background only, Defendant is not relying on this material as a basis for its motion. In addition, the VA denied Mr. Sorrell’s request for reconsideration on January 3, 2017; however, as he is permitted to file suit six months after a timely request for reconsideration has been submitted if no response has yet been given, 28 U.S.C. § 2675(a), that date has no bearing on the timeliness of his complaint. Case 2:16-cv-03802-DLR Document 10 Filed 03/13/17 Page 3 of 13 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 While at first blush it may appear that Plaintiff asserts a malpractice claim in his complaint, a closer reading of the complaint and the materials he submitted with the complaint shows in reality he is challenging the outcome of a Compensation and Pension Exam he received at the Phoenix VA on September 17, 2013 in connection with an application for VA benefits. (Doc. 1-1, pp. 10-12, ¶ IV.1.-22.) A VA rating specialist, not a medical examiner, makes the determination of whether a veteran is entitled to disability benefits. See, e.g., Cory v. Shinseki, No. 07-3311, 2009 WL 2476645, at *9 (Vet. App. Aug. 14, 2009). A VA ratings specialist is not a physician. Thus, if there is insufficient medical evidence for the VA ratings specialist to decide the claim, pursuant to 38 C.F.R. § 3.159(c)(4)(i), the VA must provide a claimant a medical opinion or examination assuming the other requirements in the section are met. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006), as amended (Aug. 7, 2006); Cory, 2009 WL 2476645, at *9-*10. This type of examination is referred to as a Compensation and Pension Examination or “C & P Exam.” Smith v. Colvin, No. 3:14CV404TSL-JCG, 2015 WL 5541217, at *6 (S.D. Miss. Sept. 17, 2015). This is the examination that occurred on September 17, 2013, to assist the VA ratings specialist determine whether he would obtain a service connected disability rating for his claims of carpel tunnel syndrome and related hand/wrist conditions. (Doc. 1, p. 11, ¶¶ 11-12.) Plaintiff asserts that the provider conducting the C & P Exam reached an incorrect conclusion regarding his disability because the provider did not perform certain tests or ignored certain evidence that he brought to the provider’s attention. (See id. at p. 14 (“PARAGRAPH NUMBER FIVE (5) is in ERROR because the Department of Veterans’ Affairs relied upon INADEQUATE MEDICAL EXAMINATIONS to deny entitlement to a disability rating in excess of 10 PERCENT FOR “BILATERAL CARPAL TUNNEL SYNDROME (Both Arms) AND TRIGGER FINGERS, SCEONDARY TO SERVICE CONNECTED CYST/RIGHT WRIST.”); and p. 17 (same).) Plaintiff challenges the VA practitioner’s determination that he did not have “Bilateral Carpel Tunnel Syndrome (Both Arms) and Trigger Fingers,” the method by which the examination Case 2:16-cv-03802-DLR Document 10 Filed 03/13/17 Page 4 of 13 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 was conducted, and essentially wanted the VA to designate another provider to perform the exam, i.e. a “specialist.” (Doc. 1, p. 3, ¶ 1, & p. 4; Doc. 1-1, pp. 40-41.) At the heart of his claim seems to be Plaintiff’s contention that he had already been diagnosed with these conditions by an outside provider prior to the September 2013 C & P Exam. (See Doc. 1-1, p. 42 (2008 carpel tunnel test); p. 44 (trigger finger diagnosis).) In other words, he is disputing the VA’s determination that he is not entitled to benefits, because he asserts he had earlier diagnoses of the conditions upon which he is basing his claim for disability. This is a common argument raised in the Court of Appeals for Veterans Claims in appeals related to benefits determinations. See, e.g., Cory, 2009 WL 2476645, at *10. His claim for relief shows that he is seeking a reversal of this determination.3 (Doc. 1, p. 7, ¶¶ 1-2.) IV. Motion to dismiss for lack of subject matter jurisdiction A. Legal standards Once the moving party has asserted lack of subject matter jurisdiction, the burden is on the party asserting jurisdiction; the court will presume that there is no jurisdiction until proved otherwise. In re Dynamic Random Access Memory (DRAM) Antitrust Litig., 546 F.3d 981, 984-85 (9th Cir. 2008); Juniel v. Laboratory Corp. of America, 2013 WL 2297180, at *1 (D. Ariz. May 24, 2013) (citing Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)). A motion to dismiss for lack of subject matter jurisdiction may be made in one of two ways: either as a facial or a factual challenge to the existence of federal jurisdiction. White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). A facial challenge asserts that the pleadings are insufficient to support subject matter jurisdiction. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). A factual challenge asserts that there is no actual existence of jurisdiction. Id. When a party makes a factual challenge the court is not required to presume the truth of the factual allegations and may consider 3 That he has a claim for $800,000.00 as well does not change the essential nature of Plaintiff’s claim; he only added that when the VA explained to him the requirement for a sum certain on an SF-95 before they would consider the claim. Case 2:16-cv-03802-DLR Document 10 Filed 03/13/17 Page 5 of 13 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 other properly presented evidence in the record for the purposes of determining the existence of subject matter jurisdiction. Id.; Faubion v. United States, No. CV09-8076- PCT-DGC, 2010 WL 148215, at *2 (D. Ariz. Jan. 12, 2010). Here there is, in fact, no jurisdiction over Plaintiff’s claim. B. This court lacks subject matter jurisdiction over Plaintiff’s claims because he is challenging the VA’s benefits determination Plaintiff is challenging the VA’s determination of benefits, i.e., whether the VA properly denied him service connected disability benefits for his claimed carpel tunnel syndrome and related hand/wrist issues. As such, the claim must be dismissed because the sole avenue to challenge the VA’s decision regarding Plaintiff’s disability claim is the Board of Veterans’ Appeals. With the Veterans’ Judicial Review Act of 1988 (“VJRA”), “Congress [] created a scheme conferring exclusive jurisdiction over claims affecting veterans’ benefits to some federal courts, while denying all other federal courts any jurisdiction over such claims.” Veterans for Common Sense, 678 F.3d 1013, 1020 (9th Cir. 2012). Pursuant to the VJRA, the Board of Veterans’ Appeals has exclusive jurisdiction over the VA’s decisions regarding the provision of veterans’ benefits.4 See 38 U.S.C. § 511(a) (the Board decides all issues under any law affecting the provision of benefits to veterans); Id. § 7104(a) (the Board of Veterans’ Appeals has exclusive jurisdiction over VA’s benefits decisions). If a veteran’s appeal to the Board of Veterans’ Appeals is unsuccessful, the veteran may appeal the Board’s decision to the Court of Appeals for Veterans’ Claims, which has exclusive jurisdiction to review the VBA’s decision. 38 U.S.C. § 7252(a). If still unsuccessful, veterans may seek a third level of review in the United States Court of Appeals for the Federal Circuit. 38 U.S.C. §§ 7252, 7292(c). The Federal Circuit’s appellate jurisdiction to review and decide any challenge is also exclusive. 38 U.S.C. § 7292(c). The Federal 4 Under 38 C.F.R. § 20.3(e) “Benefits” include “any payment, service, ... or status, entitlement to which is determined under laws administered by the Department of Veterans Affairs pertaining to veterans and their dependents and survivors.” Case 2:16-cv-03802-DLR Document 10 Filed 03/13/17 Page 6 of 13 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 Circuit’s decision is then subject to final review by the Supreme Court upon certiorari. 38 U.S.C. § 7292(c); 28 U.S.C. § 1254. In this case, as explained above, the content of the materials Plaintiff filed with this Court demonstrates he seeks review of the VA’s decision to deny his claim for disability benefits. (See also Doc. 1-1, p. 2 (identifying date and day of “accident” to be October 4, 2013, the date the VA sent the denial of his benefits claim (see Doc. 1-1, pp. 25-26)).) Plaintiff’s claim lies with the Board of Veterans’ Appeals and should be denied for lack of subject matter jurisdiction. See Veterans for Common Sense, 678 F.3d at 1013 (affirming district court’s decision that it lacked jurisdiction to review claims related to the provision of veterans’ benefits); Sheppard v. United States, No. CV-15-00574-PHX-DJH, 2015 WL 12658461, at *2 (D. Ariz. Aug. 3, 2015); see also Haas v. Oregon Health & Sci. Univ., CV-13-01290-PHX-GMS, 2014 WL 900726 *2 (D. Ariz. Mar. 7, 2014) (holding that this Court lacked jurisdiction to review the VA’s denial of the plaintiff's request to pay for a kidney transplant). As demonstrated by Plaintiff’s own highlights, the VA informed him as much. (See Doc. 1-1, pp. 23-24.) Plaintiff also recognized this in his own correspondence with the VA which he attached to his complaint wherein Plaintiff states that he “WISHES TO CONTINUE AN APPEAL TO THE BOARD OF VETERANS’ APPEALS.” (Doc. 1-1, p. 32.) Plaintiff’s attempt to challenge the VA’s determination based on the examining doctor’s conduct does not escape the VJRA’s exclusivity, as the VJRA applies to the underpinning actions associated with the VA’s benefit decisions. See Wright v. United States, 3:14-CV-03008-CRB, 2015 WL 1205263 *4 (N.D. Cal. Mar. 16, 2015) (dismissing for lack of jurisdiction where the plaintiff alleged “that VA physicians and many other defendants participated in ‘corruption’ of her medical files); Zuspann v. Brown, 60 F.3d 1156, 1157 (5th Cir. 1995) (finding lack of jurisdiction where veteran challenged a physician’s conclusion that “chemical sensitivity was the incorrect diagnosis for the veteran’s condition); Corbin v. Dep’t of Veteran Affairs, No. 215CV01174MHHSGC, 2015 WL 10384134, at *3 (N.D. Ala. Dec. 11, 2015), report and recommendation adopted, Case 2:16-cv-03802-DLR Document 10 Filed 03/13/17 Page 7 of 13 8 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 No. 215CV01174MHHSGC, 2016 WL 808106 (N.D. Ala. Mar. 2, 2016) (“a plaintiff may not circumvent the § 511 restriction on judicial review by couching a challenge to the denial of benefits as a constitutional claim or, for that matter, a tort claim”); Weaver v. United States, 98 F.3d 518, 519 (10th Cir. 1996) (finding no jurisdiction where the claimant sued for conspiracy, fraud, and misrepresentation, claiming that VA employees concealed his medical records); Price v. United States, 228 F.3d 420, 422 (D.C. Cir. 2000) (noting that “courts have consistently held that a federal district court may not entertain constitutional or statutory claims whose resolution would require the court to intrude upon the VA’s exclusive jurisdiction”); see c.f. Recinto v. U.S. Dep't of Veterans Affairs, 706 F.3d 1171, 1175 (9th Cir. 2013) (VJRA barred review of plaintiffs’ due-process claim). In fact, a challenge to whether the medical opinion or examination upon which a benefits decision is made was sufficient is a common challenge in the Court of Veterans Appeals. See, e.g., Cory, 2009 WL 2476645, at *10; D‘Aries v. Peake, 22 Vet. App. 97, 104 (2008) (a medical opinion is adequate where it is based upon the veteran’s medical history, examinations, and also describes the disability in sufficient detail); Ruddle v. Shinseki, No. 12-0973, 2013 WL 3063748, at *2 (Vet. App. June 19, 2013) (“there is no per se requirement that an examiner review the claims file or any particular evidence to render an adequate examination and opinion”); Cox v. Nicholson, 20 Vet. App. 563, 569 (2007) (“[T]he Board is entitled to assume the competence of a VA examiner.”). Accordingly, this Court lacks subject matter jurisdiction over Plaintiff’s claim challenging the VA’s determination that he does not have a service connected disability of carpel tunnel syndrome and related hand/wrist issues, and it should be dismissed. V. To the extent Plaintiff is also attempting to assert a medical malpractice claim the claim is unintelligible and Plaintiff should be required to replead the claim with more specificity and comply with A.R.S. § 12-2603. A. More Definite Statement As explained above, Plaintiff is in actuality challenging the VA’s determination, based on the results of his C & P Exam, that Plaintiff does not have a service connected disability for his claimed carpel tunnel syndrome and related hand/wrist conditions. To the Case 2:16-cv-03802-DLR Document 10 Filed 03/13/17 Page 8 of 13 9 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 extent there is more to Plaintiff’s claims beyond this improper challenge, it is impossible to tell what those might be. A complaint guides the parties’ discovery, putting the defendant on notice of the evidence it needs to adduce in order to defend against the plaintiff’s allegations. Coleman v. Quaker Oats Company, 232 F.3d 1271, 1292 (9th Cir.2000). Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that plaintiff's complaint set forth: “a short and plain statement of the claim showing that the pleader is entitled to relief.” Notice to a defendant of the mere existence of grievance is not sufficient, the complaint must at least set forth enough details so as to provide defendant and the court with a fair idea of the basis of the complaint and the legal grounds claimed for recovery. Self Directed Placement Corp. v. Control Data Corp., 908, F.2d 462, 466 (9th Cir.1990). If a pleading fails to specify the allegations in a manner that provides sufficient notice, prior to responding to the pleading, a defendant can move for a more definite statement under Rule 12(e). The motion must point out “the defects complained of and the details desired.” Fed. R. Civ. P. 12(e). Here, it is unclear what appointments Plaintiff is complaining of, some of which may have been over thirty years ago, and in some instances he appears to be asserting a claim without any causation – i.e. that a purported failure to diagnose a condition he had already been diagnosed with in prior, private medical appointments somehow caused him harm (without any specification of how that might have occurred). Much of his complaint consists of “legal conclusions cast in the form of factual allegations” which are not plausibly drawn from the limited factual allegations. Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994). In addition, simply attaching nearly fifty pages of administrative filings to a complaint is insufficient to remedy these defects, especially when many of the attachments themselves are confusing. See Martinez v. Davey, No. 116CV1658MJSPC, 2017 WL 35502, at *2 (E.D. Cal. Jan. 4, 2017). As explained in Morris v. United States, even where there is a general claim of injury as a result of purportedly negligent treatment, to be able to raise appropriate defenses to such a claim it is important that Plaintiff identify “when the alleged act or omission[s] Case 2:16-cv-03802-DLR Document 10 Filed 03/13/17 Page 9 of 13 10 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 occurred” and “which Government employee(s) committed the alleged negligent act[s] or omission[s].” Morris v. United States, No. CIV06-2058-PHX-SMM, 2007 WL 1521716, at *2 (D. Ariz. May 22, 2007). Accordingly, Defendant requests that, if the Court determines that this motion to dismiss on the basis of the VJRA’s exclusivity does not fully resolve Plaintiff’s claims, that the Court order that Plaintiff identify the specific harm to him, and what specific examination or treatment at the VA was the cause of that harm.5 B. Plaintiff must comply with A.R.S. § 12-2603 In addition, to the extent the Court allows Plaintiff to proceed in this manner, Defendant requests the Court order Plaintiff to comply with the requirements of A.R.S. § 12-2603. This Court has discussed A.R.S. § 12-2603 as follows: The purpose of A.R.S. § 12–2602.01, renumbered § 12–2603, was “to curtail the filing of frivolous lawsuits against health care professionals and the filing of frivolous nonparty at fault designations by health care professionals.” The public policy behind the statute was to curtail rising medical costs related to malpractice insurance and litigation. Under A.R.S. § 12–2603, the preliminary expert opinion affidavit must show that the claims amount to a violation of the applicable standard of care resulting in liability and that the medical acts caused the claimed damages. Under A.R.S. § 12–2603(B), “the preliminary expert opinion affidavit shall contain at least the following information.” 1. The expert’s qualifications to express an opinion on the health care professional's standard of care or liability for the claim. 2. The factual basis for each claim against a health care professional. 3. The health care professional’s acts, errors, or omissions that the expert considers to be a violation of the applicable standard of care resulting in liability. 4. The manner in which the health care professional’s acts, errors or omissions caused or contributed to the damages of other relief sought by the claimant. An “Expert means” a person who is qualified by knowledge, skill, experience, training or education to express an opinion regarding a licensed health care professional's standard of care or liability for the claim. A.R.S. § 12–2603(H)(2). If the claimant certifies that the claim does not require expert testimony, defendant may challenge that assertion, and the court shall resolve 5 Defendant also requests that Defendant be required to amend the complaint to name the proper party defendant for any such claim, the United States, not the Department of Veterans Affairs. See Kennedy v. United States Postal Service, 145 F.3d 1077, 1078 (9th Cir. 1998). Case 2:16-cv-03802-DLR Document 10 Filed 03/13/17 Page 10 of 13 11 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 the issue, set a date for compliance, and stay all proceedings until compliance is attained. A.R.S. § 12–2603(D). Moreland v. Barrette, No. CV 05-480 TUC DCB, 2006 WL 3147651, at *4-*5 (D. Ariz. Oct. 31, 2006). This Court has regularly imposed these requirements on plaintiffs in FTCA cases. See Mann v. United States, No. CV 13-1224-TUC-CKJ, 2014 WL 4230810, at *6 (D. Ariz. Aug. 27, 2014) (collecting cases). In Simon v. Maricopa Medical Center, the Arizona Court of Appeals explained the proper procedure where a party fails to comply with the certification requirements at the initial stage of the case: Section “12–2603 erects an orderly procedure by which the respective parties can litigate what expert witness testimony will be necessary and what experts must therefore be disclosed ....” Sanchez v. Old Pueblo Anesthesia, P.C., 218 Ariz. 317, 323, ¶ 20, 183 P.3d 1285, 1291 (App.2008). Dismissal without prejudice is appropriate if 1) the claimant certifies that no expert opinion is necessary, 2) the defendant files a motion contending that expert opinion is necessary, 3) the superior court grants the motion and sets a date to provide a preliminary affidavit, and 4) the claimant fails to comply by that date. A.R.S. § 12–2603(D), (E), (F). We do not think that the Legislature intended dismissal as a first resort for failure to comply with any other part of A.R.S. § 12–2603. Simon v. Maricopa Med. Ctr., 225 Ariz. 55, 64, 234 P.3d 623, 632 (Ct. App. 2010). We are still at the preliminary stages of this process in this case. Here Plaintiff has not made a certification either way. Thus Plaintiff must amend his complaint to make the necessary certification (under pain of dismissal if he fails to do so), allow Defendant to challenge that certification if necessary, and provide the required preliminary affidavit by a date set by this Court if the certification would require one.6 6 Note that diagnosis and treatment of carpel tunnel syndrome or trigger finger, or its causation is not a matter of such common knowledge that expert opinion testimony is unnecessary. See Hayes v. Fed. Bureau of Prisons, No. CIV. 12-CV-577 PJS, 2014 WL 1027480, at *12 (D. Minn. Jan. 30, 2014), report and recommendation adopted in part, rejected in part, No. 12-CV-0577 PJS/FLN, 2014 WL 1017954 (D. Minn. Mar. 17, 2014) (dismissal of claim based on need for expert testimony on claims related to treatment of trigger finger was adopted); Soto v. Grananda Hills Cmty. Hosp., No. B147555, 2002 WL 539027, at *5 (Cal. Ct. App. Apr. 11, 2002) (affirming summary judgment against the plaintiff because she had no expert testimony regarding treatment which allegedly caused trigger finger); Holt v. Knox Cty., Tenn., No. 3:12-CV-465-PLR-CCS, 2014 WL 1784054, at *1 (E.D. Tenn. May 5, 2014) (striking lay opinion testimony about causation of carpel tunnel syndrome); Foamex v. W.C.A.B. (Kozak), No. 249 C.D. 2008, 2008 WL 9404925, at *5 (Pa. Commw. Ct. Oct. 23, 2008) (requiring expert testimony to establish cause of carpel tunnel syndrome). Case 2:16-cv-03802-DLR Document 10 Filed 03/13/17 Page 11 of 13 12 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 For the foregoing reasons, if the motion to dismiss for lack of subject matter jurisdiction does not resolve all claims, Defendant respectfully requests that the Court enter an order for a more definite statement and to require Plaintiff to amend his complaint to additionally include the required certification under A.R.S. § 12-2603, and set a date by which Plaintiff must provide a preliminary affidavit if his certification would require one. VI. Conclusion This Court lacks subject matter jurisdiction over the complaint because at its heart Plaintiff’s claim is a challenge to the VA’s denial of his application for disability benefits. To the extent the Court believes that Plaintiff may be trying to assert a different, medical malpractice claim, Defendant moves for a more definite statement for more specifics on that claim and moves to require Plaintiff to comply with the certification requirement of A.R.S. § 12-2603 and set a deadline for production of a preliminary affidavit if the certification would require one be produced. Respectfully submitted this 13th day of March, 2017. ELIZABETH A. STRANGE Acting United States Attorney District of Arizona s/Adam R. Smart ADAM R. SMART Assistant U.S. Attorney Case 2:16-cv-03802-DLR Document 10 Filed 03/13/17 Page 12 of 13 13 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 CERTIFICATE OF SERVICE I hereby certify that on this 13th day of March, 2017, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and served a copy, via first-class mail, postage prepaid, of the document to the following recipient who is not a CM/ECF registrant: Lonnie Sorrell 418 South Colorado Street Chandler, Arizona 85225 Plaintiff, Pro Se s/ Adam R. Smart U.S. Attorney’s Office Case 2:16-cv-03802-DLR Document 10 Filed 03/13/17 Page 13 of 13