Kottman v. U.S. & Richard A. Schmaltz

Decision Date21 September 2017
Docket NumberCase No. 2:17-cv- 04002-NKL
CourtU.S. District Court — Western District of Missouri

Defendants United States of America and Richard Schmaltz move to dismiss for lack of subject matter jurisdiction, or in the alternative, failure to state a claim. Doc. 8.1 The motion is granted.

I. Background

This case is the second one to have come before this Court concerning injuries that Sandra Kottman sustained during an on-the-job incident at a federal hospital. See Kottman v. Schmaltz, U.S. District Court, Western District of Missouri, Case no. 2:14-cv-04085-NKL (Kottman I). Both Kottman I and the case currently before the Court, Kottman II, concern the same underlying facts. More specifically, Kottman was employed as a registered nurse by theU.S. Department of Veterans Affairs at the Harry S Truman Veterans Hospital in Columbia, Missouri. Dr. Richard Schmaltz was employed as the hospital's Chief of Surgery. On May 27, 2011, Kottman was working in the operating room, helping to prepare a patient for a surgery to be performed by Dr. Schmaltz. When the doctor entered the operating room, he was dissatisfied with the manner in which the patient had been prepared, and forcefully placed his hand on Kottman's back near the base of her neck. Viewing the facts as alleged by Kottman, she was injured by Dr. Schmaltz's actions.

A. Kottman I

In May 2013, Kottman sued Dr. Schmaltz in Missouri state court for battery. In March 2014, while the state court case was still pending, the United States Attorney General certified pursuant to 28 U.S.C. § 2679(d) that Dr. Schmaltz was acting in the course and scope of his employment with the Veterans Administration at the time of the incident. The United States then removed the state court case to federal court, on behalf of Dr. Schmaltz. See Kottman I, Doc. 1. The United States filed a motion to substitute the United States as the sole party-defendant pursuant to 28 U.S.C. § 2679(d) and moved to dismiss due to Kottman's failure to exhaust administrative remedies pursuant to the Federal Tort Claims Act. Id., Docs. 3-4. Kottman responded by challenging the Attorney General's scope-of-employment certification. Id., Docs. 7-9.

On December 4, 2014, after allowing limited discovery, this Court conducted an evidentiary hearing, including taking the live testimony of Kottman and Dr. Schmaltz, concerning the Attorney General's certification. The Court made oral findings of fact and conclusions of law on the record. Id., Doc. 41. The Court found that Dr. Schmaltz intentionally touched Kottman for the purpose of drawing her attention and the attention of others in theoperating room to the situation with the patient, but that he did not do so for the purpose of punishing Kottman. Id. The Court held that although the conduct technically met the definition of common law assault, the conduct was nonetheless within the course and scope of Dr. Schmaltz's employment under Missouri law. Id.2 Therefore, the Court held, the United States would be substituted as the sole defendant, and that the case would be dismissed without prejudice for Kottman's failure to exhaust administrative remedies. 28 U.S.C. §§ 1346(b), 2401(b), and 2675(a). The Judgment provided:

IT IS ORDERED AND ADJUDGED that pursuant to the ruling entered by the Honorable Nanette Laughrey on December 4, 2014, the Court found that Defendant Schmaltz's touching of Plaintiff's back took place in the scope and course of Dr. Schmaltz's employment. The Court granted the United States' motion to substitute the United States as party defendant. The Court also granted the United States' motion to dismiss, without prejudice, for failure to exhaust administrative remedies.

Doc. 42. No one appealed the judgment.

B. Kottman II

Kottman filed the case currently before this Court in January 2017, against both the United States and Dr. Schmaltz. She alleged that after the Kottman I judgment, she filed her administrative claim pursuant to the Federal Tort Claims Act, but that the Attorney Generalultimately denied her claim on the basis that the FTCA does not cover intentional conduct.

Kottman alleges that in view of this Court's finding in Kottman I that the touching took place in the scope and course of Dr. Schmaltz's employment, for the sole purpose of accomplishing his duties as a surgeon for the VA, without any motive to cause Kottman harm, her "injuries...are compensable under the FTCA." Doc. 10, p. 4, ¶¶ 19-21. She further alleges that the Veterans Administration negligently supervised Dr. Schmaltz:

22. Additionally, Plaintiff has learned that Dr. Schmaltz behaved inappropriately on prior occasions in the VA operating room. In one instance, he "barged in, shouting orders," and "threw a bovie across the room" striking the Operating Room Nurse Manager. (A bovie is an electronic medical instrument frequently used to cauterize smaller blood vessels.)
23. Dr. Schmaltz has been recognized by the VA as an excellent surgeon. Yet, for several years prior to his incident with Plaintiff, it was reported that his behavior and temperament with operating room staff had deteriorated. Because Dr. Schmaltz was such an accomplished surgeon, Defendant USA (VA) ignored reports of his operating room behavior; and specifically the incident of throwing a medical device that struck a co-worker.
24. Given the high stress level of the operating room, Defendant USA (VA) should have foreseen that Dr. Schmaltz's conduct would eventually result in injury.
25. Defendant USA (VA) was negligent in failing to take action to control the conduct of Dr. Schmaltz following the deterioration of his behavior in the operating room, especially after the outburst when the medical device was thrown, striking a co-worker.
26. As a result of all of these actions and inactions, Plaintiff was injured and permanently disabled.

Doc. 10, p. 4. Finally, Kottman alleges that denying her any relief would violate her federal and state constitutional rights.

II. Discussion

As discussed below, the Court concludes that it lacks subject matter jurisdiction becauseDr. Schmaltz is absolutely immune from suit and the United States has sovereign immunity from the claims. Kottman's constitutional claims also fail.

A. The legal framework
1. Federal government employees and absolute immunityKottman's claims against Dr. Schmaltz.

Congress enacted the Federal Employees Liability Reform and Tort Compensation Act, Pub. L. No. 100-694, 102 Stat. 4563 (1988), commonly referred to as the "Westfall Act," "to protect Federal employees from personal liability for common law torts committed within the scope of their federal employment[,]" id., at 100-694, § 2(b), 102 Stat. at 4564. The core provision of the Westfall Act provides, in relevant part:

The remedy against the United States provided by [the FTCA] for injury or loss of property, or personal injury or death arising or resulting from the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment is exclusive of any other civil action or proceeding for money damages by reason of the same subject matter against the employee whose act or omission gave rise to the claim or against the estate of such employee. Any other civil action or proceeding for money damages arising out of or relating to the same subject matter against the employee or the employee=s estate is precluded without regard to when the act or omission occurred.

28 U.S.C. § 2679(b)(1) (emphasis added). In short, "[t]he Act provides a federal employee with absolute immunity from an ordinary tort suit if the suit arises out of acts performed within the scope of employment." Knowles v. United States, 91 F.3d 1147, 1154 (8th Cir. 1996).3

The Act assigns to the Attorney General the responsibility for assessing whether a federal employee was acting in the scope of employment and, if it is determined that the employee wasso acting, making a written certification. § 2679(d)(1). Upon certification, any pending civil action "shall be deemed an action against the United States" and "the United States shall be substituted as the party defendant," and if the action is pending in state court, it "shall be removed without bond at any time before trial by the Attorney General to the district court." § 2679(d)(1), (2).

A plaintiff may challenge a Westfall certification. Anthony v. Runyon, 76 F.3d 210, 212-13 (8th Cir. 1996) (citations omitted). In such case, the district court performs an independent review to determine whether the defendant federal employee was in fact acting within the scope of employment. Id. (citation omitted). If the district court agrees with the Westfall certification, then the United States is substituted as the defendant and the case proceeds in accordance with the FTCA. Id. (citing 28 U.S.C. § 2679(d)(4)). If the court finds the employee was acting outside the scope of employment, then the court must refuse to substitute the United States. Id.

2. Sovereign immunity, waiver, and exceptions—Kottman's claim against the United States.

Generally, sovereign immunity precludes the exercise of subject matter jurisdiction over a suit against the federal government or its agencies, absent a waiver of that immunity. FDIC v. Meyer, 510 U.S. 471, 475 (1994); United States v. Mitchell, 463 U.S. 206, 212 (1983). The "limitations and conditions upon which the government consents to be sued must be strictly observed, and exceptions thereto are not to be implied." Lehman v. Nakshian, 453 U.S. 156, 161 (1981).

The Federal Tort Claims Act provides a limited waiver of the United States' sovereign immunity, for claims of injury or loss that are:

[C]aused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment under circumstances where the United

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