M.J. v. La Maestra Family Clinic Inc.

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 M.J., an individual, Case No.: 23-cv-395-W-BLM 12 Plaintiff, ORDER GRANTING IN PART AND 13 v. DENYING IN PART DEFENDANT’S MOTION [DOC. 37] 14 UNITED STATES OF AMERICA; ALEX KAMSI, D.C.; et al, 15 Defendants. 16 17 18 Pending before the Court is the Government’s motion for summary judgment or 19 dismissal on grounds that the Court lacks subject matter jurisdiction because Plaintiff’s 20 tort claims against the United States do not fall within the limited waiver of sovereign 21 immunity provided by the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346, 2671– 22 80. The Government also moved for partial summary judgment on grounds that 23 Plaintiff’s expert witness failed to provide sufficient evidence of the standard of care. 24 Plaintiff opposed the motion, and the Government replied. 25 The Court decides the matter on the papers submitted and without oral argument. 26 See Civ. L.R. 7.1(d)(1). For the reasons provided here, the Court GRANTS IN PART 27 AND DENIES IN PART the motion as explained here. (Doc. 37.) 28 // 1 I. BACKGROUND 2 Plaintiff M.J. alleged that her chiropractor repeatedly sexually assaulted her during 3 treatments over approximately two years. Plaintiff received chiropractic treatment at La 4 Maestra Community Health Center (“La Maestra”), a federally funded health care 5 facility. Plaintiff was treated there by Alex Kamsi, D.C. (“Kamsi”) for several years. At 6 different points in time while Kamsi was treating Plaintiff, La Maestra learned of two 7 other patients who reported that Kamsi sexually assaulted them. La Maestra learned of 8 Plaintiff’s complaint against Kamsi when it received a letter from Plaintiff’s counsel. 9 During investigations of the other two complaints, Kamsi denied that any of the alleged 10 sexual misconduct occurred. With respect to Plaintiff’s complaint, Kamsi denied all 11 allegations of any sexual misconduct and any negligence related to her care. (See Supp’l 12 Table of Exhibits “Supp’l TOE” [Doc. 41-7] at 14–42.) Accordingly, the central facts 13 regarding the allegations of sexual misconduct and medical malpractice are disputed. 14 The United States moved for dismissal or summary judgment primarily on grounds that 15 the Court lacks subject matter jurisdiction over Plaintiff’s claims and for partial summary 16 judgment on grounds that Plaintiff’s expert witness testimony is insufficient to survive 17 summary judgment on a medical malpractice claim. 18 19 A. Procedural Background 20 Plaintiff filed her First Amended Complaint (“FAC”) on March 23, 2023. She 21 described four causes of action arising from her alleged sexual abuse during chiropractic 22 treatment. (FAC [Doc. 5].) On June 7, 2023, the Court granted the parties’ joint motion 23 and ordered, in relevant part, that (1) the United States of America is substituted in place 24 of La Maestra as to the FAC’s First, Second, and Third Claims, (2) the United States of 25 America is substituted in place of Kamsi as to the FAC’s Second and Third Claims for 26 medical negligence, exclusive of alleged acts of sexual misconduct or any acts Kamsi 27 took for his personal benefit outside his duties as a chiropractor at La Maestra, and (3) the 28 FAC’s Third Claim for medical negligence brought under 22 U.S.C. § 2702 is dismissed 1 with prejudice. (Doc. 14.) The United States of America was substituted for La Maestra 2 entirely and for Kamsi, in part, under the Federally Supported Health Centers Assistance 3 Act (“FSHCAA”), 42 U.S.C. § 233(g)-(n). After the Court’s June Order, the claims 4 remaining against the United States are Plaintiff’s “Claim One” for negligent hiring, 5 supervision, or retention of employee and her “Claim Two” for negligence. Plaintiff’s 6 “Claim Four” for gender violence against Kamsi is not addressed by the parties or by this 7 Court Order. 8 9 B. Factual Background 10 Alex Kamsi became licensed as a chiropractor in 2003, and his license has been 11 active since. (Jt. Stmt. Facts [Doc. 41-5] at 4.) La Maestra established a new department 12 offering chiropractic services in 2018. (Rodriguez Am. Decl. [Doc.41-2] ¶¶ 4–5.)1 La 13 Maestra interviewed several chiropractic service provider companies and contracted with 14 Chiropractic Service Corps. (“CSC”), a third-party entity to vet and provide one of its 15 independent chiropractors to La Maestra and to supervise that chiropractor’s work caring 16 for La Maestra patients. (Id. ¶ 5.) CSC provided its employee, Kamsi, to La Maestra and 17 18 19 1 Plaintiff objected to the Government’s declarations on two grounds. (Doc. 42.) First, Plaintiff objected that declarations did not satisfy the language required by 28 U.S.C. § 1746. Second, Plaintiff 20 objected that the amended declarations (which are identical to the originals except in the amendments’ 21 addition of the § 1746 language and the correction of one phrase in Dr. Javier Rodriguez’s declaration) are newly presented in reply and therefore may not be considered. (Id.; see also Sotomayor Decl. ¶ 3.) 22 Plaintiff requested the exclusion of all declarations entirely. Plaintiff’s objections are overruled. Federal Rule of Civil Procedure 56(e) permits the Court to “give an opportunity to properly support or 23 address [a] fact,” even assuming the Government failed “to properly support an assertion of fact . . . as required by Rule 56(c).” Also, section 1746 does not prohibit the Court from permitting the amendment 24 here. See Silverman v. Mendiburu, 785 Fed. App’x 460 (9th Cir. 2019). “A declaration need only 25 ‘substantially’ comport with the model language set forth in 28 U.S.C. § 1746.” United States v. Backlund 588 Fed. App’x 525 (9th Cir. 2014) (citing Commodity Futures Trading Comm’n v. Topworth 26 Int’l Ltd., 205 F.3d 1107, 1112 (9th Cir. 2000)). Plaintiff is not prejudiced by the amendment because the amended declarations are in all material respects identical to the originals except for the addition of 27 the section 1746 language Plaintiff identified. Both the original and amended declarations establish facts necessary for the Court to determine its subject matter jurisdiction which may be considered at any 28 1 vouched for its thorough review of him, including background checks and his 2 professional experience in chiropractic diagnosis and treatment. (Id. ¶ 6.) On behalf of 3 the clinic, Dr. Javier Rodriguez, who had been La Maestra’s Chief Medical Officer since 4 2018, interviewed Kamsi. (Id. ¶¶ 2–3, 6, 9–10.) La Maestra’s human resources 5 department conducted two of its own independent background checks of Kamsi, and no 6 negative findings resulted. (Fernandez Am. Decl. ¶¶ 6–12.) 7 Kamsi began providing chiropractic treatment to La Maestra patients at the health 8 clinic on September 28, 2018, as an employee of CSC who was in turn an independent 9 contractor with La Maestra. (Id. ¶ 16.) Kamsi’s professional service at La Maestra began 10 about one month after accepting employment with CSC. (Table of Exhibits Part 1 “TOE 11 1” [Doc. 38] at 14; Supp’l TOE [Doc. 41-7] at 14–42.) Kamsi’s work at La Maestra was 12 supervised both by Dr. Rodriguez and by the CSC supervisor who visited La Maestra 13 occasionally to review Kamsi’s patient files and discuss his performance with La Maestra 14 staff. (TOE 1 at 4.) Neither CSC nor La Maestra provided Kamsi training in the 15 performance of chiropractic treatment, but both provided him training on policies and 16 protocols. (TOE 1 at 17–18; Fernandez Decl. ¶¶ 13–15, 20.) Part of this training was 17 annual training on sexual harassment prevention mandated by La Maestra, including in 18 relationships between doctor and patient. (TOE 1 at 21–22; Fernandez Decl. ¶¶ 14, 20.) 19 In September 2019, Plaintiff began to suffer from neck and back pain. (M.J. Decl. 20 [40-2] ¶ 2.) She sought chiropractic treatment. (Id.) Kamsi was the only covered 21 chiropractor within San Diego under Plaintiff’s medical insurance. (Id.) Plaintiff’s first 22 appointment with Kamsi was on or about September 9, 2019. Plaintiff brought her 23 daughter with her to an early appointment because (1) English is not Plaintiff’s first 24 language and (2) her daughter speaks English. (Id. ¶ 4; see also Table of Exhibits Part 2 25 “TOE 2” [Doc. 39] at 20.) After that, Plaintiff continued to see Kamsi about every two 26 weeks for chiropractic treatment. (Id. ¶ 4.) All communications between Kamsi and 27 Plaintiff were in English, even though Plaintiff’s responses were limited to short answers 28 or a few words. (TOE 1 at 12.) Plaintiff’s daughter accompanied Plaintiff for about the 1 first six visits, and Plaintiff also attended her daughter’s separate appointments with 2 Kamsi, except the first. (M.J. Decl. ¶ 4; TOE 1 at 30.) 3 After this point, the parties dispute most of the material facts regarding what 4 occurred between Plaintiff and Kamsi during treatment. Plaintiff declared that Kamsi 5 began to make inappropriate comments early in the treatment: he told her daughter that 6 Plaintiff smelled good and had a “nice body;” he asked her daughter if Plaintiff was 7 “available” and made comments to Plaintiff’s daughter about having sex before marriage. 8 (M.J. Decl. ¶ 4.) Plaintiff also felt uncomfortable when Kamsi batted his eyes toward her 9 or “would softly rub my exposed skin from my elbow to my shoulder” during 10 chiropractic manipulations. (Id.) 11 Plaintiff declared that Kamsi’s untoward conduct became more serious over time. 12 On or about January 17, 2020, Plaintiff attended her appointment alone and there Kamsi 13 urged her to get massages as an additional treatment. She declared that Kamsi instructed 14 her to meet him at an off-site address unknown to Plaintiff and not affiliated with La 15 Maestra. (Id. ¶ 5.) Plaintiff’s daughter looked up the address and texted Kamsi to 16 confirm that the address was the location of another medical clinic. (Id. ¶ 6.) When she 17 received no response, Plaintiff’s daughter told Kamsi that Plaintiff would not attend. 18 (Id.) At the next regular appointment, Kamsi again told Plaintiff to get a massage and 19 gave her a second, unknown address that was not affiliated with La Maestra. (Id.) 20 Plaintiff discovered the address was a three-bedroom apartment and did not ever go to the 21 second address. (Id.) 22 Plaintiff averred that over time Kamsi began to have her lie on her stomach with 23 her legs raised and to stroke, squeeze, and touch her buttocks, explaining that he was 24 “doing his job,” when she questioned him. (Id. ¶ 7.) Plaintiff declared that Kamsi put his 25 hands between her legs, twice groping her vagina. (Id.) While manipulating Plaintiff’s 26 shoulders, Plaintiff declared that Kamsi placed his hands on her breasts. (Id.) Plaintiff 27 also declared that Kamsi continued to bat his eyes at her and to hug her at the end of 28 appointments. (Id.) 1 Plaintiff declared that on or about February 12, 2020, Kamsi hypnotized her into a 2 deep sleep. (Id.) She declared that she remembered no other details except that she 3 awoke to Kamsi hugging her and touching her back. (Id.) Plaintiff also declared that 4 Kamsi tried to financially manipulate her by claiming he was underpaid and requesting 5 an additional cash payment of $230 from her. (Id. ¶ 8.) Kamsi testified that he received 6 $200 from Plaintiff during about August 2020, for his birthday, and that he returned the 7 money about a year later, upon her demand, after attempting to decline the money 8 originally. (TOE 1 at 47–55.) 9 On about October 1, 2020, La Maestra became aware that G.R., a patient of Kamsi, 10 accused him of trying to “forcefully kiss” her, after luring her to the same off-site 11 location that he told Plaintiff to go for a massage. (Rodriguez Depo. [Doc.40-3] at 19– 12 23; Rodriguez Am. Decl. [Doc.41-2] ¶¶ 17–21.) On October 2, 2020, Dr. Rodriguez 13 spoke with Kamsi, who confirmed that he provided chiropractic services outside of La 14 Maestra, at the location where G.R. alleged the assault occurred. According to 15 Dr. Rodriguez, until that time, no one at La Maestra knew that Kamsi had a practice 16 outside of La Maestra. (Rodriguez Am. Decl. [Doc.41-2] at ¶¶ 24–26.) La Maestra’s 17 policies do not prohibit health care providers from working outside of La Maestra or in 18 private practice, but the policies do require providers disclose those facts and prohibit 19 providers from referring patients to themselves at another location. (Id. at ¶ 27.) Dr. 20 Rodriguez counseled Kamsi accordingly. (Id. at ¶ 28.) On October 5, 2020, Dr. 21 Rodriguez and La Maestra’s Vice President met with Kamsi regarding G.R.’s allegations, 22 and there Kamsi admitted to referring patients to a facility unrelated to La Maestra and 23 “flatly denied the allegation that he tried to kiss a patient.” (Id. at ¶¶ 29–31.) In response 24 to G.R.’s allegations, La Maestra (1) instructed Kamsi not to make gestures with patients 25 that could be misconstrued, (2) counseled Kamsi on appropriate behavior; (3) had Kamsi 26 sign an agreement that he would not refer patients to himself at a facility outside La 27 Maestra, (4) followed up with G.R.; (5) recommended that G.R. see a different 28 chiropractor, and (6) accepted G.R.’s requests that she remain anonymous and that no 1 complaint be pursued. (Id. at ¶¶ 33–41.) Kamsi told La Maestra that the police contacted 2 Kamsi about G.R.’s report. (Id. at ¶¶ 40–46.) La Maestra concluded the investigation 3 after finding that (1) the police did not continue their investigation with La Maestra, (2) 4 no other witnesses existed to contact and (3) G.R. was satisfied with La Maestra’s inquiry 5 and conclusion to the investigation. (Id.) Dr. Rodriguez testified that based on these 6 facts, La Maestra determined in its discretion that Kamsi would continue to provide 7 chiropractic services. (Id. at ¶ 46.) On November 16, 2020, shortly after G.R.’s report, 8 La Maestra hired Kamsi as its employee. (Rodriguez Am. Decl. at ¶ 50; see also TOE 1 9 at 24, 49–57, 63–68, 79.) 10 Later, La Maestra learned that a second patient, L.S., made allegations of sexual 11 misconduct against Kamsi. In March 2022, La Maestra received notice from Blue Cross 12 Blue Shield of California (“BCBS”), stating that L.S. accused Kamsi of sexually 13 assaulting her during treatment at La Maestra on or about December 15, 2021. 14 (Rodriguez Depo. at 36–40; Plaintiff’s Exh. C [Doc.40-3] at 43–46.) L.S. made her 15 original report to her insurer. (Id.) La Maestra investigated the report and learned that 16 Kamsi was on medical leave on the alleged date and was having medical treatment 17 around that time, did not have any appointments at La Maestra on that date, denied the 18 allegations, and wrote a detailed written response, denying L.S.’s allegations. (Rodriguez 19 Am. Decl. at ¶¶ 54–58.) La Maestra never attempted to contact L.S. to directly seek her 20 report. (Rodriguez Depo. [Doc. 40-3] at 36, 38–40.) Dr. Rodriguez closed La Maestra’s 21 investigation into L.S.’s allegations based upon these facts: (1) BCBS did not follow-up 22 for any additional information from La Maestra, (2) in Dr. Rodriguez’s experience, 23 managed care plans typically do not give notice of a conclusion of the investigation, (3) 24 Kamsi saw no patients at La Maestra on the alleged date, and (4) L.S. never made a 25 report to La Maestra. (Rodriguez Am. Decl. at ¶ 59.) Dr. Rodriguez testified that based 26 on these facts, La Maestra determined in its discretion that the matter was concluded. (Id. 27 at ¶ 60.) At his deposition, in response to the question, “And you took [Kamsi’s] word 28 for it again?” Dr. Rodriguez testified, “Yes.” (Rodriguez Depo. at 39.) 1 According to the operative complaint, Plaintiff “did not disclose the maltreatment 2 right away because it was not culturally appropriate for her to speak out about it and she 3 was afraid, and she still needed medical treatment.” (FAC ¶ 31.) On July 18, 2022, La 4 Maestra became aware of Plaintiff’s complaints against Kamsi, when it received a letter 5 from her attorneys indicating a claim would be filed. (Rodriguez Decl. ¶ 62; TOE 172– 6 178.) According to Dr. Rodriguez, he began an investigation into the matter. Upon 7 reviewing Plaintiff’s medical chart, he saw a note from Plaintiff’s psychologist at La 8 Maestra that on July 28, 2022, Plaintiff told her psychologist that she was inappropriately 9 touched by a male medical provider whose name was not disclosed and that she had 10 given the doctor $230. (Rodriguez Decl. ¶¶ 63–66.) On August 2, 2022, Dr. Rodriguez 11 confronted Kamsi, who denied all claims of sexual misconduct, claimed that the money 12 was a birthday present from Plaintiff, and said that his treatment of Plaintiff was over. 13 (Id. ¶¶ 67–68, 70–72.) La Maestra placed Kamsi on administrative leave on August 5, 14 2022, pending further investigation. (Id. ¶ 74.) On September 29, 2022, Kamsi resigned 15 from La Maestra before completion of the investigation. (Id. ¶ 75.) 16 17 II. LEGAL STANDARD 18 The Government moved for dismissal under Federal Rule of Civil Procedure 19 12(b)(1) or for summary judgment under Federal Rule of Civil Procedure 56(c). Rule 20 12(b)(1) allows a defendant to file a motion to dismiss for lack of subject matter 21 jurisdiction. While a claim of sovereign immunity is technically not a pure jurisdictional 22 issue, it is “quasi jurisdictional” and a “Rule 12(b)(1) [motion] is still the proper vehicle 23 for invoking sovereign immunity from suit.” Pistor v. Garcia, 791 F.3d 1104, 1111 (9th 24 Cir. 2015). When evaluating sovereign immunity on a Rule 12(b)(1) motion, the Court 25 must start with the presumption that the United States is immune from suit, and it is 26 Plaintiff’s burden to show that the United States has expressly consented to be sued in 27 this way. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). 28 1 Summary judgment is appropriate under Rule 56(c) where the moving party 2 demonstrates the absence of a genuine issue of material fact and entitlement to judgment 3 as a matter of law. See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 4 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). A party seeking summary judgment always 5 bears the initial burden of establishing the absence of a genuine issue of material 6 fact. Celotex, 477 U.S. at 323. The moving party can satisfy this burden in two ways: (1) 7 by presenting evidence that negates an essential element of the nonmoving party’s case; 8 or (2) by demonstrating that the nonmoving party failed to make a showing sufficient to 9 establish an element essential to that party’s case on which that party will bear the burden 10 of proof at trial. Id. at 322-23. “Disputes over irrelevant or unnecessary facts will not 11 preclude a grant of summary judgment.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors 12 Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). 13 If the moving party meets its initial burden, the nonmoving party cannot defeat 14 summary judgment merely by demonstrating “that there is some metaphysical doubt as to 15 the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 16 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986); Triton Energy Corp. v. Square D 17 Co., 68 F.3d 1216, 1221 (9th Cir. 1995) (citing Anderson, 477 U.S. at 252) (“The mere 18 existence of a scintilla of evidence in support of the nonmoving party’s position is not 19 sufficient.”). Rather, the nonmoving party must “go beyond the pleadings and by her own 20 affidavits, or by ‘the depositions, answers to interrogatories, and admissions on file,’ 21 designate ‘specific facts showing that there is a genuine issue for trial.’” Celotex, 477 22 U.S. at 324 (quoting Fed. R. Civ. P. 56(e)). When making this determination, the court 23 must view all inferences drawn from the underlying facts in the light most favorable to 24 the nonmoving party. See Matsushita, 475 U.S. at 587. “Credibility determinations, the 25 weighing of evidence, and the drawing of legitimate inferences from the facts are jury 26 functions, not those of a judge, [when] ruling on a motion for summary 27 judgment.” Anderson, 477 U.S. at 255. 28 1 “The district court may limit its review to the documents submitted for the purpose 2 of summary judgment and those parts of the record specifically referenced 3 therein.” Carmen v. San Francisco Unified School Dist., 237 F.3d 1026, 1030 (9th Cir. 4 2001). Therefore, the court is not obligated “to scour the record in search of a genuine 5 issue of triable fact.” Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996). 6 7 III. ANALYSIS 8 The Government requested dismissal of (1) Plaintiff’s Claim One for negligent 9 hiring, supervision, or retention for lack of subject matter jurisdiction on grounds of 10 sovereign immunity and (2) Plaintiff’s Claim Two for negligence for the same reason 11 with respect to specific theories of the claim. 12 13 A. The FTCA’s Waiver of Sovereign Immunity 14 The Federal Tort Claims Act contains a limited waiver of the federal government’s 15 sovereign immunity. Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 217–18 (2008) (citing 16 28 U.S.C. § 1346(b)(1)). Plaintiff bears the burden to identify an unequivocal expression 17 of Congressional waiver of sovereign immunity allowing her negligence claims against 18 the federal government. Holloman v. Watt, 708 F.2d 1399, 1401 (9th Cir. 1983) (citing, 19 in relevant part, United States v. Mitchell, 445 U.S. 535, 538 (1980)). Absent the United 20 States of America’s unequivocally expressed consent to suit, an action against it must be 21 dismissed for lack of jurisdiction. Gilbert v. DaGrossa, 756 F.2d 1455, 1458 (9th Cir. 22 1985) (citing Mitchell, 463 U.S. 206; Hutchinson v. United States, 677 F.2d 1322, 1327 23 (9th Cir. 1982)). 24 The FTCA is the “exclusive means by which a party may sue the United States for 25 money damages . . . in tort.” 28 U.S.C. § 2679. The “district courts . . . shall have 26 exclusive jurisdiction of civil actions on claims against the United States, for money 27 damages [] for injury [] caused by the negligent or wrongful act or omission of any 28 employee of the Government while acting within the scope of his office or employment . 1 . . if a private person, would be liable to the claimant in accordance with the law of the 2 place where the act or omission occurred.” 28 U.S.C. § 1346(b). An “employee of the 3 Government” includes “officers and employees of any federal agency,” but excludes “any 4 contractor with the United States.” 28 U.S.C. § 2671; Edison v. United States, 822 F.3d 5 510, 517 (9th Cir. 2016). Exceptions to the FTCA’s waiver of sovereign immunity “are 6 to be strictly construed.” Bibeau v. Pac. Nw. Resch. Found., Inc., 339 F.3d 942, 945 (9th 7 Cir. 2003) (affirming lack of subject matter jurisdiction over claim for negligent 8 supervision and oversight of scientific experiments as barred by the discretionary 9 function exception). 10 11 B. The Discretionary Function Exception Deprives the Court of Jurisdiction Over Plaintiff’s Claim One for Negligent Hiring, 12 Supervision, or Retention 13 The United States moved for summary judgment or dismissal on Plaintiff’s “Claim 14 One,” that La Maestra negligently hired, supervised, or retained Kamsi, on grounds that 15 the decision falls within the discretionary function exception to the FTCA’s waiver of 16 sovereign immunity. The federal courts “lack jurisdiction over any claim to which the 17 [FTCA’s] discretionary-function exception applies.” Alfrey v. United States, 276 F.3d 18 557, 561 (9th Cir. 2002); 28 U.S.C. § 2680(a). The Government bears the burden of 19 proving that the discretionary function exception applies. Vickers v. United States, 228 20 F.3d 949, 950 (9th Cir. 2000) (citing Sigman v. United States, 217 F.2d 696, 702 & n.4 21 (9th Cir. 1992)). Notwithstanding the Government’s burden, the plaintiff “must advance 22 a claim that is facially outside the discretionary function exception” to survive dismissal. 23 Doe v. Holy See, 557 F.3d 1066, 1084 (9th Cir. 2009) (citing Prescott v. United States, 24 973 F.2d 696, 702 & n.4 (9th Cir. 1992)). 25 The discretionary function exception bars claims based on an act or omission of a 26 Government employee, “exercising due care [] 27 28 1 exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or 2 performance of the failure to exercise or perform a discretionary 3 function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused. 4 5 28 U.S.C. § 2680(a) (emphasis added).2 6 A two-part test determines if the discretionary function exception applies. The first 7 step evaluates “whether the challenged action involved an element of choice or judgment, 8 for it is clear that the exception ‘will not apply when a federal statute, regulation, or 9 policy specifically prescribes a course of action for an employee to follow.’” Vickers v. 10 United States, 228 F.3d 944, 949 (9th Cir. 2000) (citing Berkovitz v. United States, 486 11 U.S. 531, 536 (1988)). If choice or judgment is exercised, the second step looks at 12 whether “that choice or judgment is of the type Congress intended to exclude from 13 liability—that is, whether the choice or judgment was one involving social, economic, or 14 political policy.” Id. (citing Gaubert, 499 U.S. at 324). 15 16 1. Element of Judgment or Choice 17 “When a statute or regulation allows a federal agent to act with discretion, there is 18 a ‘strong presumption’ that the authorized act is based on an underlying policy decision.” 19 Nurse v. United States, 226 F.3d 996, 1001 (9th Cir. 2000) (citing Gaubert, 499 U.S. at 20 324). However, conduct cannot be discretionary if it violates a legal mandate. Id. at 21 1002 (citing U.S. Fidelity & Guar. Co. v. United States, 837 F.2d 116 (3d Cir. 1988)). In 22 evaluating whether the federal agent’s conduct falls within the discretionary-function 23 exception, the focus is on the “nature of the conduct rather than the status of the actor.” 24 Id. (citing Gaubert, 499 U.S. at 324). 25 26 27 2 The purpose behind the exception is to “prevent judicial ‘second guessing’ of legislative and administrative decisions grounded in social, economic and political policy through the medium of an 28 1 Here, Plaintiff alleged that La Maestra negligently hired, supervised, and retained 2 Kamsi. (FAC at 5–7.) In support of this cause of action, Plaintiff alleged that (1) Kamsi 3 was unqualified and incompetent, (2) La Maestra failed to have adequate policies in place 4 to ensure safe and medically appropriate care, (3) La Maestra failed to investigate claims 5 of Kamsi’s medical malpractice, and (4) La Maestra negligently supervised Kamsi’s 6 patient billing and medical documentation and record keeping. (Id. at 7.) Plaintiff’s FAC 7 did not allege or identify a mandatory provision that curtails La Maestra’s discretion in 8 hiring, supervising, or retaining Kamsi. Plaintiff also did not allege that La Maestra 9 failed to investigate a crime or assault, or sexual misconduct. Instead, Plaintiff alleged 10 that the International Chiropractors Association’s code of professional ethics provides 11 standards applicable to Kamsi, including that a chiropractor “shall not take physical, 12 emotional, or financial advantage of . . . any pat[i]ent.” (FAC at ¶¶ 34–37.) Plaintiff 13 alleged that because “La Maestra delegated Plaintiff’s medical care to Kamsi” it had a 14 duty to supervise Kamsi. (Id. at ¶ 38.) La Maestra knew of two other chiropractic 15 patients who reported sexual assault by Kamsi, but Plaintiff’s allegations and the 16 evidence before the Court are silent as to any law, rule, or policy applicable to La 17 Maestra that required it to investigate the allegations made by G.R. or L.S. in a particular 18 manner other than the way in which it did.3 19 20 21 3 Plaintiff’s First Amended Complaint did not allege negligent failure to investigate a crime or sexual 22 misconduct. (FAC at 5–7.) Even if the Court could read such a claim from the pleading’s factual allegations, Plaintiff does not identify a policy, rule, or law that proscribes the way that La Maestra must 23 conduct such an investigation, despite the fact that two other allegations of similar sexual misconduct occurred during Plaintiff’s treatment. See, e.g., Sabow v. United States, 93 F.3d 1445, 1451–54 (9th Cir. 24 1996). Plaintiff did not allege that La Maestra failed to investigate the allegations of sexual misconduct, 25 and the undisputed evidence demonstrated that it did investigate both reports, even if it failed to independently seek out L.S.’s report of misconduct. See Vickers, 228 F.3d 944 at 953 (“discretion in the 26 conduct of an investigation . . . does not extend to the question of whether to report to superiors or to investigate at all an allegation of misuse of Service-issued firearms”) (emphasis in original). Plaintiff 27 instead alleged that La Maestra failed to investigate claims of Kamsi’s medical malpractice as part of her claim for negligent hiring, supervision, or retention. (FAC ¶ 41.) “[T]he discretionary function 28 1 In Vickers v. United States, the Ninth Circuit addressed the FTCA’s discretionary 2 function exception in the context of a claim for negligent supervision or retention of an 3 employee. 228 F.3d at 950. “[D]ecisions relating to the hiring, training, and supervision 4 of employees usually involve policy judgments of the type Congress intended the 5 discretionary function exception to shield.” Id. (holding in part that the discretionary 6 function exception prohibited a negligent supervision and retention claim arising from the 7 sufficiency of handgun qualification or training). In the Ninth Circuit, claims of 8 negligent hiring, supervision, and training of employees are barred under the FTCA 9 because those decisions “fall squarely within the discretionary function exception.” 10 Nurse v. United States, 226 F.3d 996, 1001 (9th Cir. 2000). Decisions to retain are also 11 categorically discretionary decisions, even in the context of a negligent decision with 12 respect to an employee accused of sexual misconduct. Doe v. Holy See, 557 F.3d 1066, 13 1083-85 (9th Cir. 2009) (explaining that discretionary function in the context of the 14 Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1330, 1602-1611, closely parallels the 15 exception to the FTCA and concluding that the negligent hiring, supervision, and failure 16 to warn claims were barred). 17 Plaintiff argued in opposition that the Affordable Care Act, 42 U.S.C. § 18114, 18 (“ACA”), specifically prescribed the mandated course of action by La Maestra, thereby 19 removing La Maestra’s conduct from the discretionary function exception. Plaintiff 20 argued that she suffered discrimination on the basis of sex, sexual orientation, gender 21 identity, or sex characteristics, as prohibited by the ACA. Plaintiff argued that the ACA 22 statutorily obligated La Maestra “to act in such a manner so as to not deny her the 23 benefits of healthcare.” (Opp’n. [40] at 27.) The Court disagrees with this reading of the 24 ACA’s application to the discretionary function exception. For La Maestra to have no 25 discretion in the hiring, supervision, or retention of Kamsi, it must have had “no rightful 26 27 investigation so long as the agency does not violate a mandatory directive.” Vickers, 228 F.3d at 951 28 1 option but to adhere to the directive.” Berkovitz v. United States, 486 U.S. 531, 536 2 (1988). “[I]ts actions must be governed by a specific federal statute, regulation, or 3 policy.” A.M. v. United States, No. 19-CV-1108-TWR-AGS, 2020 WL 6276021, 2020 4 U.S. Dist. LEXIS 198380 (S.D. Cal. Oct. 23, 2020) (citing Berkovitz, 486 U.S. at 536). 5 While true that La Maestra’s decision makers do not have discretion to violate 6 constitutional rights or federal statutes, Nat'l Union Fire Ins. v. United States, 115 F.3d 7 1415, 1421 (9th Cir. 1997), the ACA does not set forth a specific course of action that La 8 Maestra had to follow in determining whether and how to hire, supervise, and retain 9 Kamsi. See Fata v. United States, No. 2:22-4399-MGL, 2023 WL 8455256, at *2, 2023 10 U.S. Dist. LEXIS 217034 (D.S.C. Dec. 6, 2023), affirmed Fata v. United States, 2024 11 U.S. App. LEXIS 9789 (Apr. 23, 2024). The ACA does not describe a specific course of 12 action that La Maestra had to follow to accomplish the anti-discrimination goals of the 13 ACA. The ACA “merely provide[s] guidance and bestow[s] discretion upon federal 14 actors to implement the policy goals in the appropriate manner.” Id. at *2. “No 15 [identified] regulation or policy required [La Maestra] to do something that it failed to do. 16 No individual violated any specific regulation or policy” identified. Nat'l Union Fire Ins. 17 v. United States, 115 F.3d 1415, 1421 (9th Cir. 1997). 18 Although not binding authority, the reasoning of the Fourth Circuit panel in Lins v. 19 United States, 847 Fed.App’x 159, 165–66 (4th Cir. Feb. 17, 2021), is also persuasive. 20 There, a former patient brought an FTCA claim, alleging negligent hiring, supervision, 21 and retention after his Veterans Affairs Medical Center therapist had a sexual relationship 22 with him and the therapist’s supervisors, who knew of the conduct, did not comply with 23 VA policy on patient safety and abuse prevention. Id. at 160, 165. “Because the VA 24 acted contrary to a mandatory [VA] policy that dictated how it should supervise its 25 employees, its actions cannot be shielded by the discretionary function exception.” Id. at 26 27 28 1 166 (citing Gaubert, 499 U.S. at 324). No such prescription of La Maestra’s supervisory 2 conduct, investigatory demands, or retention policies appears in this case. The ACA is 3 insufficiently specific about La Maestra’s mandatory conduct in decisions to hire, 4 supervise, or retain Kamsi as a heath care provider to preclude the application of the 5 discretionary function exception to Plaintiff’s claim. 6 Here, it is conceivable that the challenged actions (the hiring, supervision, and 7 retention of Kamsi, particularly after La Maestra learned of other patients’ allegations of 8 his sexual misconduct) might have been restricted to conduct set forth by a federal law, 9 rule, or policy, such that the decision-makers had no “rightful option but to adhere to the 10 directive.” See Berkovitz, 486 U.S. at 536. However, Plaintiff does not identify any 11 federal statute, regulation, or policy binding La Maestra to a specific course of action in 12 determining whether to hire Kamsi, how to supervise him, how to initiate an investigation 13 after each allegation of sexual misconduct, the scope of that investigation, how or when 14 to conclude such an investigation, or whether or how to retain Kamsi after he was 15 accused of sexual misconduct with patients but neither investigation concluded that any 16 misconduct occurred. See id.; A.M., No. 19-CV-1108-TWR-AGS, 2020 WL 6276021. 17 Having considered the applicable law and the arguments before the Court, La 18 Maestra was not precluded from using its judgment and choice in deciding whether and 19 how to hire, supervise, and retain Kamsi as it did. See Vickers, 228 F.3d at 949. As such, 20 step one of the discretionary function exception is satisfied. 21 // 22 // 23 // 24 25 4 No party raised, and the Court does not decide here, whether La Maestra’s policies of hiring, 26 supervision, or retention rise to the level required by Berkovitz, 486 U.S. at 536, on the basis of its designation as a federally funded facility under FSHCAA. But see A.M. v. United States, No. 19-CV- 27 1108-TWR-AGS, 2020 WL 6276021, 2020 U.S. Dist. LEXIS 198380 (S.D. Cal. Oct. 23, 2020) (citing Berkovitz, 486 U.S. at 536). 28 1 2. Social, Economic, or Political Policy Considerations 2 The Court considers next “whether that judgment is of the kind that the 3 discretionary function exception was designed to shield.” Gaubert, 499 U.S. at 322-23. 4 In the Ninth Circuit, decisions involving hiring, supervision, and training routinely, but 5 not categorically, fall within the discretionary function exception. The distinction turns 6 upon whether the challenged decisions involve policy judgments of the type Congress 7 intended the exception to remove from judicial review. See Vickers, 228 F.3d at 950 8 (collecting cases); Nurse, 226 F.3d at 1001–02; Gager v. United States, 149 F.3d 918, 9 921–22 (9th Cir. 1998). This rule applies even to claims involving the negligent retention 10 of an employee accused of sexual misconduct. Holy See, 557 F.3d at 1083-85 11 (discretionary function in the context of FISA rather than FTCA); see also Lins, 847 12 Fed.App’x at 165–66 (discretionary function exception did not apply to claim that 13 supervisors failed to report inappropriate conduct between VA employee and patient 14 because clear VA policy “dictated how it should supervise its employees” on that matter); 15 Stout v. United States, 721 Fed.App’x 462, 467 (6th Cir. Jan. 12, 2018); A.M., 2020 WL 16 6276021, at *6; 2020 U.S. Dist. LEXIS 198380, at *16–20 (holding that the decision of a 17 federally qualified health center, regarding supervision and retention of a doctor accused 18 of sexual contact with patients, was subject to policy considerations until his license was 19 suspended); M.G. v. United States, No. 19-CV-1252-TWR-AHG, 2020 WL 6271186, at 20 *5–6 (S.D. Cal. Oct. 23, 2020) (holding that the discretionary function exception barred 21 plaintiff’s claim for negligent supervision and retention of a physician despite his history 22 and practice of attempted sexual contact with patients). 23 In this case, as in A.M., it may be that La Maestra, after learning of the other 24 reports of Kamsi’s sexual misconduct, decided to counsel him as it did and retain him “to 25 balance insuring public safety and providing fairness to the accused, or to address staffing 26 and funding concerns.” See A.M., 2020 WL 6276021, at *6; see also M.G., 2020 WL 27 6271186, at *5–6. “These types of social, economic, or political policy 28 considerations . . . are precisely the kinds of judgments the discretionary function 1 exception was designed to shield.” A.M., 2020 WL 6276021, at *6. There is no evidence 2 that Kamsi was ever (1) determined to have committed the alleged conduct or (2) 3 prohibited from practicing under his license. No evidence supports the conclusion that 4 La Maestra was not free to evaluate such social, economic, or political policy 5 considerations here. On the pleadings, undisputed facts, applicable law, and the 6 arguments of the parties, the discretionary function exception applies to Plaintiff’s claim 7 against La Maestra for negligent hiring, training, supervision, or retention. 8 9 3. Plaintiff’s Opposition Based Upon “Related Function” 10 Plaintiff argued that the FSHCAA’s “related function” provision, 42 U.S.C. 11 § 233(a), permits her negligent hiring, supervision, or retention claim to proceed under 12 the FTCA despite the discretionary function exception. Plaintiff relied upon Brignac v. 13 United States, 239 F. Supp. 3d 1367 (N.D. Ga. 2017), which similarly involved a plaintiff 14 alleging sexual assault by a physician during treatment at an FSHCAA entity. In 15 Brignac, the plaintiff opposed the United States’ motion to dismiss, under Fed. R. Civ. P. 16 12(b), and argued that while the discretionary function exception generally covers 17 employment decisions, it does not apply when “the Government fails to act after notice of 18 illegal behavior.” 239 F. Supp. 3d at 1380–81. The Northern District of Georgia 19 considered all allegations true as it was required to do under Rule 12(b). Id. at n.3. Prior 20 to hiring the offender, the United States knew or should have known, based on the 21 allegations, that he had “an admitted record of sexually assaulting patients when 22 employed as a physician,” he had been previously terminated for “sexually assaulting 23 three inmate patients” and, more than a month before he assaulted the plaintiff, the 24 offender had been “indicted [] for sexually abusing an inmate.” Id. at 1371, 1381 25 (emphasis added). 26 Here, the undisputed facts are critically distinct from Brignac. There is no prior 27 indictment for conduct similar to the alleged sexual assault and misconduct. In this case, 28 the police did not intervene despite being involved in the first investigation; there is no 1 admission by Kamsi of any similar conduct at any time; and Kamsi denied the 2 allegations. For these reasons, Brignac is inapposite. The Court lacks jurisdiction to hear 3 Plaintiff’s cause of action for negligent hiring, supervision, and retention, and 4 accordingly dismisses Plaintiff’s “Claim One.” (FAC at 5–7.) 5 6 C. Jurisdictional Limitations to Plaintiff’s Claim Two for Negligence 7 Plaintiff’s remaining cause of action against the United States is “Claim Two” for 8 negligence. The Government’s motion argued that the Court lacks subject matter 9 jurisdiction to the extent that Plaintiff’s negligence claim (1) arises out of the time when 10 Kamsi was not employed by La Maestra and was employed by a third-party service 11 provider who separately contracted with La Maestra, (2) arises out of Kamsi’s sexual 12 misconduct while La Maestra employed him because such conduct falls outside the scope 13 of employment, (3) is based on alleged misrepresentations, including omissions, under 14 the FTCA’s misrepresentation exception, and (4) is based on alleged sexual misconduct 15 under the FTCA’s intentional tort exception. (See Motion [Doc. 37] at 9.) Finally, the 16 Government argued that, to the extent Plaintiff’s negligence claim alleges medical 17 malpractice, the United States is entitled to summary judgment because (1) such a claim 18 is not cognizable based on sexual misconduct and (2) no evidence of negligence exists to 19 support a violation of the standard of care. (Motion at 9–10.) 20 21 1. Employee of CSC 22 The Court must resolve whether the FTCA’s waiver captures the acts and 23 omissions of a doctor at a federally supported health care center who is employed by a 24 third-party service provider that contracted with the federally supported health care 25 center. La Maestra hired Kamsi as its employee on November 16, 2020. (Fernandez 26 Decl. at ¶ 17.) Earlier, from September 18, 2018, through November 15, 2020, Kamsi 27 was employed instead by CSC, who contracted with La Maestra to provide chiropractors 28 for the newly established department. (Fernandez Decl. ¶¶ 16–17.) During this time, 1 there is no evidence that Kamsi contracted with La Maestra for the provision of services. 2 The Government moved for dismissal or summary judgment on any acts or omissions 3 during the time that CSC employed Kamsi on the basis that the FTCA’s waiver does not 4 reach a physician providing health care services to a federally funded facility as an 5 employee of a third-party service provider who contracted with the medical center. 6 Plaintiff argued that Kamsi’s provision of health care service to a federally supported 7 health care center makes Kamsi an independent contractor to La Maestra and therefore 8 covered by the FTCA’s waiver under 42 U.S.C. § 233(g). 9 The Federally Supported Health Centers Assistance Act (“FSHCAA”), 42 U.S.C. 10 § 233, extended the FTCA’s waiver of sovereign immunity to certain public health 11 entities, their employees, and qualified contractors receiving federal grants under 42 12 U.S.C. § 254(b). 42 U.S.C. § 233(a). The FSHCAA also extends the FTCA’s waiver of 13 sovereign immunity to “any contractor of such an entity who is a physician or other 14 licensed or certified care practitioner.” Id. at § 233(g)(1)(A) (emphasis added); El Rio 15 Santa Cruz Neighborhood Health Ctr. v. United States HHS, 396 F.3d 1265, 1276–77 16 (D.C. Cir. 2005). A contractor must be an “individual” to receive FTCA coverage. 42 17 U.S.C. § 233(g)(5)(A)–(B). While the FSHCAA expanded the FTCA’s waiver “to 18 include certain contract physicians for medical malpractice,” those contractors are limited 19 to individual physicians who contract directly with the federally supported health centers. 20 Briggs v. United States, No. 14-CV-5608-RBL, 2015 WL 4459323, at *4 (W.D. Wash. 21 July 21, 2015); see also Dedrick v. Youngblood, 200 F.3d 744, 746 (11th Cir. 2000 (“The 22 statutory expansion of governmental liability under the FTCA does not apply [] because 23 there is no direct contractual relationship between the eligible entity and the 24 physician.”)).5 25 26 5 This rule is also supported by the D.C. Circuit’s analysis. El Rio Santa Cruz, 396 F.3d at 1277. 27 In El Rio Santa Cruz, individual practitioners who contracted with an FSHCAA entity through their professional corporations submitted sufficient evidence of individually signed contracts with the 28 1 Plaintiff argued that Kamsi’s acts or omissions, even while employed by CSC, are 2 covered by the FTCA’s waiver of sovereign immunity because Dr. Rodriguez supervised 3 him at La Maestra. The Court disagrees primarily because, as explained above, there is a 4 legally insufficient relationship in this case between Kamsi and La Maestra, prior to his 5 employment there, to support the FTCA’s application. However, even Plaintiff’s 6 argument regarding Dr. Rodriguez’s control over Kamsi fails to create a sufficient nexus 7 to support the waiver’s application to Kamsi prior to La Maestra hiring him. “A critical 8 element in distinguishing an agency from a contractor is the power of the Federal 9 Government to control the detailed physical performance of the contractor.” United 10 States v. Orleans, 425 U.S. 807, 814, 96 S. Ct. 1971, 48 L. Ed. 2d 390 (1976) (cleaned 11 up). “Under the FTCA, the United States is subject to liability for the negligence of an 12 independent contractor only if it can be shown that the government had the authority to 13 control the detailed physical performance of the contractor and exercised substantial 14 supervision over its day-to-day activities.” Laurene v. Dep’t of Navy, 50 F.3d 112, 113 15 (9th Cir. 1995) (citing Orleans, 425 U.S. at 814–15). This day-to-day control must 16 amount to substantial supervision. Autery v. United States, 424 F.3d 944, 957 (9th Cir. 17 2005)). “[C]ircuit courts are unanimous in holding that a contract physician is not an 18 employee of the government under the FTCA.” Carillo v. United States, 5 F.3d 1302, 19 1304 (9th Cir. 1993) (collecting cases). In order for a contract physician to be covered by 20 the FTCA’s waiver, the type of control over the physician’s conduct must be control over 21 the practice of medicine or the diagnosing and treatment of patients and not just control 22 23 24 panel remanded to the agency to reconsider FTCA coverage previously denied in the face of such 25 evidence. Id. Here, there is no evidence that Kamsi himself contracted with La Maestra, on his own or through his professional corporation. The evidence demonstrates that CSC, a professional service 26 provider, hired Kamsi as its employee. There is no evidence to permit the Court to conclude that the FSHCAA extended the FTCA waiver to cover Kamsi’s provision of chiropractic services during the 27 time those services were provided through La Maestra’s contract with CSC. Absent clear waiver of sovereign immunity, none may be created by the Court. See, e.g., Dep’t of the Army v. Blue Fox, Inc., 28 1 over hourly schedules or administrative duties. Carillo, 5 F.3d at 1305; Sisto v. United 2 States, 8 F.4th 820, 829–30 (9th Cir. 2021). 3 Finally, in the context of the FTCA’s overlap with another statute expanding 4 FTCA waiver to federally funded health care centers, the Ninth Circuit has held that 5 physicians practicing at a federally funded medical center through their employment with 6 a third-party service provider are not employees or contractors for purposes of FTCA’s 7 waiver. Sisto, 8 F.4th at 828 (addressing the Indian Self-Determination and Education 8 Assistance Act (“ISDEAA”)’s expansion of FTCA waiver to medical malpractice claims 9 against health service providers, where the facility contracted with a third-party service 10 company for the provision of physicians). The Sisto plaintiffs argued that the treating 11 physician qualified as a covered employee, despite the fact that they were employees of 12 the third-party professional services provider. Id. at 824–26. Relying on the statutory 13 text and the service contract at issue in the case, the Ninth Circuit concluded that no 14 employer-employee relationship existed between the health care providers and the 15 medical facility. Id. at 826. The Ninth Circuit’s ISDEAA and contractual language 16 analysis is not controlling in this case, but as here, the Sisto plaintiffs also argued that the 17 functional control exerted over the physician by the facility was sufficient that they be 18 covered employees. The Ninth Circuit rejected this argument because plaintiffs 19 “point[ed] to nothing that shows that [the facility] had actual ‘control over [the 20 physician’s] practice of medicine.’” Id. at 830 (quoting Carillo, 5 F.3d at 1305 and 21 adding emphasis). Similarly, here, Plaintiff failed to provide evidence that Dr. Rodriguez 22 controlled Kamsi’s practice of chiropractic, as opposed to his schedule or administrative 23 functions. As such, the Court concludes that La Maestra did not control Kamsi’s “actions 24 in administering care to a degree or in a manner that rendered him an employee of the 25 government when he treated [Plaintiff],” at least with respect to the time when Kamsi 26 was an employee of CSC. See id. 27 For these reasons, the Court lacks subject matter jurisdiction over Plaintiff’s 28 negligence claim to the extent it arises out of Kamsi’s acts or omissions while he was 1 employed by CSC and was not individually in contract with La Maestra. This 2 conclusion, on its own, permits Plaintiff’s negligence claim against the United States 3 during the time in which Kamsi was employed by La Maestra to proceed. Accordingly, 4 the Court must turn to the Government’s other grounds for its motion for summary 5 judgment or dismissal. 6 7 2. The Alleged Sexual Misconduct Falls Outside the Scope of Employment 8 To the extent that Plaintiff’s negligence claim is based on her allegations of 9 Kamsi’s sexual misconduct during his chiropractic treatment of her, such conduct does 10 not fall within the scope of Kamsi’s employment. The FTCA’s waiver of sovereign 11 immunity is limited to certain torts committed by government employees acting within 12 the scope of their employment. 28 U.S.C. § 1346(b). In addition, federal employees are 13 immune from personal liability only when acting “within the scope of their official duties 14 and the conduct is discretionary in nature.” Adams v. United States, 420 F.3d 1049, 1052 15 (9th Cir. 2005) (emphasis in original). The scope of the employment is determined by 16 the law of respondeat superior in the state of the alleged tort—here, California. See 17 Pelletier v. Fed. Home Loan Bank of San Francisco, 968 F.2d 865, 876 (9th Cir. 1992) 18 (abrogated on other grounds by Pettibone v. Russell, 59 F.4th 449, 453 (9th Cir. 2023)). 19 “Under California law, an intentional tort is within the scope of employment if it 20 had ‘a causal nexus to the employee’s work’ []or was ‘an immediate outgrowth thereof . . 21 . a sexual tort will not be considered engendered by the employment unless its 22 motivating emotions were fairly attributable to work-related events or conditions.” 23 Ferguson v. Horizon Lines, Inc., 602 Fed. App’x 664, 666 (9th Cir. 2015) (internal 24 citations omitted) (citing in relevant part Lisa M. v. Henry Mayo Newhall Mem’l Hosp., 25 12 Cal. 4th 291, 301 (Cal. 1995). “California courts have rarely held that employees who 26 have engaged in sexual misconduct with third parties acted within the scope of their 27 employment.” Tate v. United States, 2018 WL 6444887, at *3 (C.D. Cal. Oct. 30, 2018); 28 see also Lowery v. Reinhardt, 2008 WL 550083, at *6 (E.D. Cal. Feb. 27, 2008). 1 With regard to his treatment of patients, Kamsi’s employment is limited to the 2 conduct authorized by a chiropractor’s California license. Section 7 of the Chiropractic 3 Act defines the scope of authorized practice by a license issued under the Act. Cal. Bus. 4 & Prof. Code § 1000-7; Tain v. State Board of Chiropractic Examiners, 130 Cal. App. 5 4th 609, 618 (2005). A chiropractic license “shall authorize the holder thereof to practice 6 chiropractic in the State of California as taught in chiropractic schools or colleges; and, 7 also, to use all necessary mechanical, and hygienic and sanitary measures incident to the 8 care of the body.” Cal. Bus. & Prof. Code § 1000-7; Tain, 130 Cal. App. 4th at 618–19. 9 In Lowery, the district court addressed the “scope of employment” limitation to an 10 FTCA claim, where plaintiff alleged that her physician sexually assaulted her during her 11 appointments at the federally funded healthcare facility and the two engaged in 12 inappropriate sexual relations outside the facility as well. 2008 WL 550083, at *1. In 13 Lowery as here, California law applied to the scope of employment test. Id. at *5. There 14 the district court concluded as a matter of law that no subject matter jurisdiction existed 15 because “the alleged sexual relations . . . were not an ‘outgrowth’ of his employment, nor 16 was the risk of sexual relations with patients ‘inherent’ in his working environment’ or 17 ‘typical’ of or ‘broadly incidental’ to the enterprise of [the federally funded healthcare 18 facility].” Id. at *6. Assuming that the conduct occurred as alleged, the court determined 19 the physician’s “actions . . . were taken for personal gratification, were unconnected to 20 his employment, were not incidental to his duties as a physician, and were a substantial 21 deviation from his duties as a physician for personal purposes.” Id. In addition, the court 22 concluded that the “actions were not a generally foreseeable consequence of [the 23 facility’s] enterprise” and that “the alleged sexual misconduct was personal in nature (not 24 motivated or triggered by anything in the employment activity), and was unusual and 25 startling in the context of a medical professional’s duties.” Id. 26 Here, as in Lowery, the Court lacks subject matter jurisdiction over Plaintiff’s 27 negligence claim because Kamsi’s alleged sexual misconduct falls outside the scope of 28 Kamsi’s employment. The risk of sexual misconduct with patients is neither “inherent in 1 his working environment” or “typical” of or “broadly incidental” to the enterprise of 2 chiropractic treatment. Id. (quoting Lisa M., 12 Cal. 4th at 299). Neither was Kamsi’s 3 alleged sexual misconduct a generally foreseeable consequence of La Maestra’s provision 4 of his chiropractic services. See id. Finally, Kamsi’s alleged sexual misconduct is not 5 professional in nature but rather personal. See id. (citing Delfino v. Agilent Tech., Inc., 6 145 Cal. App. 4th 790, 812 (Cal. Ct. Ap. 2007)). As such, the alleged offense falls 7 outside the scope of his employment. For that reason, the Court lacks subject matter 8 jurisdiction over Plaintiff’s negligence claim to the extent it arises out of alleged sexual 9 misconduct.6 10 Finally, the United States of America seeks partial summary judgment on any 11 alleged medical malpractice claim on the grounds there is no expert evidence to support a 12 conclusion that Kamsi violated the standard of care. The Government argued that 13 Plaintiff’s expert witness chiropractor, Wayne M. Whalen, D.C., does not opine on 14 whether Kamsi failed to meet the chiropractic standard of care with respect to Plaintiff’s 15 treatment. The Government argued that Plaintiff’s claims are for intentional sexual 16 misconduct that fall outside of any professional obligations and not for Kamsi’s 17 negligence in chiropractic diagnosis or treatment. Whalen’s report stated that “sexually 18 19 20 6 In opposition, Plaintiff argued that Kamsi’s failure to respond to her requests for admission 21 rendered the request admitted and “conclusively established unless the court on motion permits withdrawal or amendment of the admission.” Hadley v. United States, 45 F.3d 1345, 1348 (9th Cir. 22 1995) (addressing Fed. R. Civ. P. 36(a)). The Government replied that Kamsi is a pro se defendant who never responded to the requests for admission and argued that Plaintiff’s request lacked the requisite 23 notification to a pro se party. The Government suggested that the admissions may not be used against Kamsi, based on the notification, and argued that they cannot be used against the United States, a 24 distinct party. The Court need only resolve now that the failure to respond by pro se Kamsi may not be 25 deemed admissions of the United States. See 8A C. Wright, A. Miller, & R. Marcus, Federal Practice and Procedure § 2264, at 571–72, 580 (1994); Higgins v. Farr Fin., 2011 WL 13257721, at *2, 2011 26 U.S. Dist. LEXIS 170794, at *5 (N.D. Cal. Jul. 20, 2011); Becerra v. Asher, 921 F. Supp. 1538 (S.D. Tex. 1996), aff’d, 105 F.3d 1042 (5th Cir. 1997), citing 8A Charles A. Wright, Arthur R. Miller & 27 Richard L. Marcus, Federal Practice & Procedure § 2264 at 571–72 & 580 (1994), cert. denied, 522 U.S. 824 (1997). 28 1 inappropriate conduct towards at least three patients clearly fell below the standard of 2 care” and “kissing a patient, touching the breasts, touching the vaginal area, or inserting a 3 finger in the anus would be considered gross and severe departures from the standard of 4 care observed by other chiropractors.” (Whalen Report [Doc. 40-3] at 77, 78.) Because 5 the Court concludes that the alleged conduct and omissions fall outside the scope of 6 employment as a matter of law, the Court need not reach the sufficiency of the expert 7 witness report. With respect to claims remaining against Kamsi, the Court does not opine 8 on the applicability or sufficiency of Plaintiff’s expert witness report. Kamsi is not 9 precluded, as a result of this order, from raising this challenge in future. 10 11 3. The Court Lacks Jurisdiction Over Plaintiff’s Negligence Claim Based on Alleged Misrepresentations, Including Omissions 12 13 The Government also moved for dismissal or summary judgment on Plaintiff’s 14 negligence claim to the extent it is based on La Maestra’s failure to warn her of other 15 allegations by patients that Kamsi sexually assaulted them. The misrepresentation 16 exception to the FTCA’s sovereign immunity waiver “covers both claims of negligent 17 misrepresentation and claims of fraudulent misrepresentation,” Pauly v. U.S. Dep’t of 18 Agric., 348 F.3d 1143, 1151 (9th Cir. 2003), and applies to affirmative misstatements and 19 omissions, Green v. United States, 629 F.2d 581, 584–85 (9th Cir. 1980) (holding the 20 misrepresentation exception forecloses an FTCA claim that the government failed to 21 provide information that it had a duty to provide). Plaintiff’s opposition does not address 22 this basis for the Government’s motion. When the moving party meets its initial burden, 23 the nonmoving party must “go beyond the pleadings and by her own affidavits, or by ‘the 24 depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts 25 showing that there is a genuine issue for trial.’” Celotex, 477 U.S. at 324 (quoting Fed. 26 R. Civ. P. 56(e)); Carmen, 237 F.3d at 1030. Therefore, to the extent that Plaintiff 27 grounded her negligence claim in an argument that La Maestra should have disclosed to 28 her, but did not, other reports against Kamsi of sexual misconduct, the Court dismisses 1 the claim for lack of subject matter jurisdiction under the misrepresentation exception to 2 the FTCA. 3 4 4. The Court Lacks Jurisdiction Over Intentional Torts Under the FTCA 5 The United States also sought dismissal or partial summary judgment of Plaintiff’s 6 negligence claim on grounds that the allegations of sexual misconduct or sexual assault 7 are barred by the FTCA’s intentional torts exception. The FTCA excepts from its 8 consent to liability “[a]ny claim arising out of assault, battery, false imprisonment, false 9 arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, 10 or interference with contract rights.” 28 U.S.C. § 2680(h); Millbrook v. United States, 11 569 U.S. 50, 52 (2013). The operative First Amended Complaint did not describe any 12 claim as one for assault or battery, but the factual basis for Claim Two for negligence 13 arises from Kamsi’s alleged sexual assault of Plaintiff. In her opposition, Plaintiff did not 14 argue that Kamsi committed an intentional tort. Instead, Plaintiff described her claims as 15 sounding in (1) medical malpractice and (2) negligent hiring, training, and supervision. 16 (Opp’n [Doc. 40] at 2, ll. 12–20; id. at 16–29.) Therefore, neither the Complaint nor the 17 opposition appear to set forth an intentional tort. Nonetheless, the United States moves to 18 dismiss or enter judgment on such a claim. To the extent that Plaintiff grounded her 19 claims against the United States in Kamsi’s intentional sexual assault or battery of 20 Plaintiff, the Court dismisses the claim for lack of subjection matter jurisdiction under the 21 intentional tort exception to the FTCA. No party raised, and the Court does not address, 22 any intentional tort claim against Kamsi prior to his employment by La Maestra. 23 24 III. CONCLUSION 25 For the foregoing reasons, the Court GRANTS the motion to dismiss for lack of 26 subject matter jurisdiction and accordingly DISMISSES FOR LACK OF SUBJECT 27 MATTER JURISDICTION (1) Plaintiff’s Claim One for negligent hiring, supervision, 28 and retention and (2) Plaintiff’s Claim Two for negligence to the extent consistent with 1 Order. The Court DENIES the motion for partial summary judgment on the 2 sufficiency of Plaintiff's expert evidence on the standard of care. Plaintiffs claims 3 || against Kamsi, to the extent that the United States was not substituted for him, survive 4 Order. Plaintiff's “Claim Four” is not addressed by this Order. 5 IT IS SO ORDERED. 6 Dated: December 12, 2024 \ [pe Dor 8 Hn. 1 omas J. Whelan 9 United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28