Cholewa v. United States
| Decision Date | 24 January 2022 |
| Docket Number | Case No. 19-cv-12190 |
| Citation | 581 F.Supp.3d 871 |
| Parties | Trey CHOLEWA, Plaintiff, v. UNITED STATES of America and Jennifer Robinson, M.D., Defendants. |
| Court | U.S. District Court — Eastern District of Michigan |
Christopher Patrick Desmond, Vernon R. Johnson, Samuel H. Pietsch, Johnson Law, PLC, Detroit, MI, for Plaintiff.
Bradley Darling, U.S Department of Justice, Detroit, MI, for Defendant United States of America.
David A. Nacht, Nacht & Roumel, PC, Samuel L. Estenson, Deloof, Dever, Eby, Milliman, and Issa PLLC, Ann Arbor, MI, for Defendant Jennifer R. Robinson, M.D.
Plaintiff Sergeant Trey Cholewa filed the instant Federal Tort Claims Act ("FTCA") action against Defendants United States of America ("United States" or "Government") and Jennifer Robinson, M.D. ("Robinson") ECF No. 9. He alleges Defendant Robinson failed to provide him proper care and sexually harassed him while serving as his psychiatrist at the John D. Dingell VA Medical Center ("VA Center" or "VA") in Detroit, Michigan. Id.
Presently before the Court are Defendant United States’ Motion for Summary Judgment (ECF No. 56) and Defendant Robinson's Motion for Summary Judgment (ECF No. 57). The matters are fully briefed, and a hearing was held on January 14, 2022. For the following reasons, the Court will GRANT IN PART AND DENY IN PART Defendant United States’ Motion for Summary Judgment (ECF No. 56) and DENY Defendant Robinson's Motion for Summary Judgment (ECF No. 57).
Plaintiff is a veteran of the United States Marine Corps. ECF No. 56-2, PageID.670. He served five tours as a machine gunner and eventually reached the rank of sergeant. Id. at PageID.1391, PageID.1392. Plaintiff was medically discharged in May 2015. Id. at PageID.1397, PageID.1445. The VA determined he is 100% disabled and diagnosed him with sleep apnea, post-traumatic stress disorder ("PTSD"), migraines, and various physical problems with his back, eye, ankle, wrist, etc. ECF No. 56-3, PageID.816. The Social Security Administration found Plaintiff is similarly impaired. ECF No. 56-4. Nevertheless, upon his return, "[h]e plan[ned] on being a full-time father now as his wife works" and wanted "to use his GI bill to go back to college." ECF No. 63-4, PageID.2637.
After returning to Michigan, Plaintiff began receiving mental health treatment at the Detroit VA Center in June 2015. In September of that year, he began treating with Defendant Robinson, a psychiatrist at the VA Center. ECF No. 57-2, PageID.1450. Robinson's progress notes document 21 therapy sessions between herself and Plaintiff between September 2015 and June 2018. See ECF No. 57-17. However, the VA Center later determined she did not document all their sessions. ECF No. 56-9, PageID.1086.
Plaintiff testified Robinson began making amorous comments to him during their first session, ECF No. 57-2, PageID.1451, and escalated to massaging, kissing, and fondling him, id. at PageID.1484. He testified the sexual contact happened from March 2017 to August 2017, id. at PageID.1488, and occurred more than ten but less than twenty times, id. at PageID.1485. He further testified he and Robinson never had full sexual intercourse, id. , because they were usually interrupted, but she invited him to accompany her to a conference in Boston so they could "be alone," id. at 1478-79. However, Plaintiff did not go on this trip. Id. at PageID.1479.
Additionally, Plaintiff testified Robinson encouraged him to leave his wife. See, e.g., id. at PageID.1468-69, PageID.1474. While Plaintiff testified Robinson did not tell him she was thinking of leaving her husband, he did testify she told him she was moving closer to where he lived and hoped to run into him outside the VA Center. Id. at PageID.1476. Plaintiff ultimately filed for divorce in January 2018, and his wife countersued for divorce in April 2018. ECF No. 56-17. The divorce was finalized in October 2018. Id. Plaintiff admits he was having an affair with a woman other than Robinson leading up to the divorce. ECF No. 57-2, PageID.1440-41. However, he and his ex-wife had reconciled and gotten engaged again by the time Ms. Cholewa was deposed. ECF No. 56-15, PageID.1182-83.
Plaintiff did not report Robinson's alleged misconduct to anyone at the VA Center while it was ongoing. ECF No. 57-2, PageID.1486. He also testified Robinson actively attempted to hide her misconduct by placing her trashcan outside her office so the janitor would not interrupt them and having Plaintiff come straight to her office for his appointments without checking in at the front desk. Id. at PageID.1479-80.
Plaintiff stopped treating regularly with Robinson on August 22, 2017. ECF No. 57-17, PageID.1662. He returned to the VA Center on June 13, 2018 after unsuccessfully attempting to see a provider in the community. Id. That day, Plaintiff reported that he had been off his medication for a few months and his symptoms had "worsened severely," but that he had seen slight improvement after restarting his old medications. Id. This was his last recorded session with Robinson. See ECF No. 57-17. Plaintiff declined any follow-up appointments at the VA Center and requested a referral to a community provider. Id. at PageID.1663.
On June 19, 2018, Plaintiff began treating with Karen Brickner, M.A., a limited license psychologist at United Psychological Services ("UPS"). ECF No. 56-5, PageID.839. During his first session, he spoke about being "sexually harassed" by Robinson. ECF No. 63-10, PageID.2834. Plaintiff treated with Brickner at UPS until October 2018 but stopped showing up for reasons unknown to Brickner. ECF No. 56-6, PageID.850, PageID.852. Plaintiff restarted therapy with Brickner in December 2020 and was still going at the time the instant Motions were filed. Id. at PageID.850. He also underwent psychological and neuropsychological evaluation with Dr. Nida Hamid and discussed his experiences with Robinson with her. See, e.g. , ECF No. 63-5, PageID.2646-47.
On November 12, 2018, Plaintiff submitted a letter ("Notice of Intent") to the VA alleging Robinson "made several inappropriate sexual advances and comments toward him" and initiated sexual contact during his therapy appointments. ECF No. 56-9, PageID.1085. Subsequently, on November 19, 2018, Plaintiff filed an administrative tort claim with the same allegations. ECF No. 56-8, PageID.1078. In response, the VA Center conducted an administrative factfinding, which was carried out by Nicole Stromberg, M.D., Associate Chief of Staff-Mental Health. See ECF No. 56-9. Dr. Stromberg did not find concrete evidence to support Plaintiff's allegations. Id. at PageID.1090-91. However, she found Robinson's call volume with Patient concerning because Robinson had three times as many calls with Plaintiff as her next most contacted patient, she initiated 74% of the calls, and none of the calls were documented. Id. Dr. Stromberg was similarly concerned by Robinson's pattern of not documenting every treatment session and unwillingness to share even redacted personal phone records concerning. Id. Dr. Stromberg ultimately recommended Robinson "be relieved of all patient care duties." Id. at PageID.1091.
The VA Professional Standards Board did not adopt this recommendation and instead gave Robinson a written reprimand, placed her on "focused professional practice evaluation," and prohibited her from seeing outpatient veterans. ECF No. 56-10, PageID.1101-03; ECF No. 56-11; PageID.1107, ECF No. 56-7, PageID.1028-29. Robinson successfully completed this probationary period. Id. at PageID.1028.
However, during this litigation, Plaintiff produced audio and video recordings of himself and Dr. Robinson in her office. In one recording, Plaintiff refers to Robinson massaging and kissing him, and Robinson says she thinks she is in love with him. ECF No. 63-8, PageID.2818. After the Professional Standards Board reviewed these recordings and Robinson's deposition transcript, the VA summarily suspended and later revoked Robinson's clinical privileges. ECF No. 56-13.
Plaintiff initiated this action on July 25, 2019, bringing claims for medical malpractice, negligence, and medical battery. ECF No. 1. The initial Complaint only named the United States as a defendant, but Robinson was added in the Amended Complaint filed on November 25, 2019. See ECF No. 9.
Both Defendants moved to dismiss (ECF Nos. 13, 18), which the Court denied. ECF No. 31. Specifically, the Court held, inter alia , (1) "resolution of whether Dr. Robinson was acting within the scope of her employment requires a full factual record on the details of her therapy," id. at PageID.461; (2) any negligent hiring, retention, or supervision claims are subject to dismissal, but Plaintiff's claims are not otherwise barred by the FTCA's discretionary function exception, id. at PageID.465-66; and (3) dismissal under the FTCA's intentional tort exception was premature while the question of whether Robinson acted within the scope of her employment was unsettled¸ id. at PageID.468.
Now, both Defendants move for summary judgment on similar grounds.
"Summary judgment is appropriate when there is ‘no genuine dispute as to any material fact’ and the moving party ‘is entitled to judgment as a matter of law." F.P. Dev., LLC v. Charter Twp. of Canton, Michigan , 16 F.4th 198, 203 (6th Cir. 2021) (quoting Fed. R. Civ. P. 56(a) ). "A fact is material if its resolution will affect the outcome of the lawsuit." Id. The court must view the facts, and draw reasonable inferences from those facts, in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc. , ...
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