Carlson v. United States of America <b><font color="red">Reminder to Counsel: Case Consolidated for Discovery All Non-Dispositive filings to be made in Lead Case 17-2081 ONLY</b></font>
2:17-cv-02102
D. Kan.Oct 2, 2017Background
- Plaintiff Trent Carlson, a veteran, sued the United States and VA physician’s assistant Mark Wisner under the FTCA and state tort laws, alleging improper/unnecessary genital exams and intrusive questioning during VA visits (counts: medical malpractice, negligent supervision/hiring/retention, negligent infliction of emotional distress, outrage, battery, invasion of privacy).
- Defendants moved to dismiss under Fed. R. Civ. P. 12(b)(1) and (6), asserting lack of jurisdiction, statute-of-repose bar, discretionary-function exception, and other defenses previously raised in related cases against Wisner.
- The court treated this case alongside numerous similar suits involving Wisner and applied its prior analyses where applicable, but considered new allegations in Carlson’s amended complaint asserted to show intentional sexual assault and constitutional violations by the VA.
- The court found (1) the Kansas four-year statute of repose for health-care-provider claims (Kan. Stat. Ann. § 60-513(c)) applies to Carlson’s claims but is tolled during FTCA administrative exhaustion; (2) equitable estoppel does not toll the repose; (3) Carlson adequately pleaded that Wisner’s conduct was within the scope of employment (slight-deviation analysis); (4) the VA Immunity Statute plausibly allows FTCA relief for battery-type claims here; and (5) negligent hiring/retention claims were barred by the discretionary-function exception, but negligent supervision and outrage survived; negligent infliction of emotional distress and invasion‑upon‑seclusion were dismissed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Application of Kan. Stat. Ann. § 60-513(c) (4-year statute of repose) | Wisner not a "health care provider" under § 60-513d or claims like battery/outage/privacy are not governed by § 60-513(c) | § 60-513(c) covers claims arising from professional services by health-care providers, so it applies | § 60-513(c) applies to Carlson’s claims (four-year repose) |
| Tolling of statute of repose during FTCA administrative exhaustion | Administrative claim tolls repose | Repose not tolled; a private defendant wouldn’t get tolling | Repose tolled during FTCA administrative process (preempted when exhaustion would otherwise bar claim) |
| Equitable estoppel to toll repose | VA misconduct and concealment permit estoppel | Repose creates substantive right; not subject to equitable estoppel | Equitable estoppel unavailable to toll repose here (limited to fraud in Kansas) |
| Scope of employment (O’Shea slight-deviation test) | Wisner’s acts were intentional sexual misconduct outside employment | Wisner’s conduct moved beyond negligence and scope | Allegations plausibly show conduct was a slight deviation and within scope; FTCA waiver stands |
| VA Immunity Statute / 28 U.S.C. § 2680(h) (battery exception) | Claims are non-battery professional torts or intentional assaults outside FTCA coverage | VA Immunity Statute permits FTCA remedies for such VA battery-related claims | Court found plaintiff plausibly alleged applicability of VA Immunity Statute allowing FTCA claims to proceed |
| Discretionary-function exception for negligent hiring/retention/supervision | VA failed mandatory duties and acted with deliberate indifference (constitutional duties) | Hiring/retention/discipline decisions are discretionary; exception bars such claims | Negligent hiring and retention dismissed under discretionary-function exception; negligent supervision survives (distinct claim) |
| Negligent infliction of emotional distress and invasion of privacy | Willful/wanton conduct removes need for physical injury; privacy/intrusion claim sufficient | Claims barred by lack of requisite physical injury or duplicative/insufficient pleading; discretionary-function defense | Negligent infliction of emotional distress dismissed (no physical injury; duplicative); invasion‑upon‑seclusion dismissed for failure to state a claim; outrage survives |
Key Cases Cited
- O’Shea v. Welch, 350 F.3d 1101 (10th Cir. 2003) (sets out the slight-deviation factors for scope-of-employment analysis)
- Fulghum v. Embarq Corp., 785 F.3d 395 (10th Cir. 2015) (statute of repose creates substantive right not generally subject to equitable tolling)
- Loumiet v. United States, 828 F.3d 936 (D.C. Cir. 2016) (discusses discretionary-function exception and constitutional-violation arguments)
- F.D.I.C. v. Meyer, 510 U.S. 471 (1994) (FTCA does not create liability for constitutional torts)
- Majors v. Hillebrand, 349 P.3d 1283 (Kan. Ct. App. 2015) (negligent infliction of emotional distress requires qualifying physical injury except for willful/wanton conduct)
- Robinson v. Shah, 936 P.2d 784 (Kan. Ct. App. 1997) (addresses equitable estoppel and repose in medical-malpractice context)