Cepeda v. United States

YESENIA CEPEDA, Plaintiff, v. UNITED STATES, et al., Defendants.

19 Civ. 5967 (LGS)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

July 21, 2020

OPINION AND ORDER

LORNA G. SCHOFIELD, District Judge:

Plaintiff Yesenia Cepeda alleges that Defendant United States violated the Federal Tort Claims Act ("FTCA") and that Defendant Michael Ingargiola committed medical malpractice, in violation of New York common law. Defendants move under Rule 12(b)(1) to dismiss Ingargiola from the lawsuit on the ground that he was a federal employee acting within the scope of his employment and to substitute the United States as the sole defendant. Plaintiff contends that she is entitled to limited jurisdictional discovery on whether Ingargiola was a federal employee acting within the scope of his employment. For the following reasons, the motion to dismiss is granted. The motion for discovery is denied.

I. BACKGROUND

The following facts are taken from the Second Amended Complaint ("SAC"), are accepted as true for purposes of this motion, see Hu v. City of New York, 927 F.3d 81, 88 (2d Cir. 2019), and are also taken from evidence filed as part of the submissions. Raymond Loubier Irrevocable Tr. v. Loubier, 858 F.3d 719, 725 (2d Cir. 2017).

In 2017, Plaintiff underwent bilateral breast reduction surgery at the Bronx VA Hospital (the "VA"). Plaintiff's surgery was performed by Drs. Jay Meisner and Ingargiola.

Ingargiola is a licensed physician in New York, and he holds himself out as a physician offering professional services for cosmetic surgery. At all times relevant to the SAC, he was a resident at the Icahn School of Medicine at Mount Sinai (the "Icahn School"). Under a contract between the VA and the Icahn School, Ingargiola performed medical services at the VA under the supervision of VA physicians. The SAC alleges that Ingargiola was not an employee of the VA, but a contractor, based on Ingargiola's LinkedIn webpage and a description of the Icahn School's residency program.

Before surgery, Ingargiola informed Plaintiff that she was a good candidate for breast reduction surgery based on certain factors, including her relatively low body mass index and breast size. After her surgery, Plaintiff experienced pain in her breasts and other complications for several weeks. Meisner told Plaintiff that these symptoms were not uncommon and did not provide her with any additional treatment. During a follow-up visit, Ingargiola "roughly pulled out [one of] the drains [from Plaintiff's breast], even though it had been stitched to [the] skin under her arm, causing [her] to bleed profusely." Meisner chastised Ingargiola for his aggressive handling of Plaintiff's wounds. A nurse later informed Plaintiff that part of the reason she was experiencing pain was because the stitches holding one of the drains were never properly removed.

Following the surgery, Plaintiff's breasts were asymmetrical and were not reduced to the size she requested. Plaintiff alleges that the disparity between her breasts may have been due to "the possibility that her breasts had not been operated on by the same person, but that instead [Meisner and Ingargiola had] each operated on one of her breasts." In addition, the surgery resulted in "disfiguring scars across her entire right breast," which, to this day, remain "jagged, discolored, uneven and . . . extremely painful." Although Plaintiff visited Meisner andIngargiola at weekly check-ups, they provided no treatment and merely observed her wounds and took pictures. When Plaintiff asked Meisner and Ingargiola about treatment for her scars, they told her to purchase over-the-counter scar treatment tape. The complications following surgery have severely limited Plaintiff's employment and other activities.

On June 25, 2019, Plaintiff filed a pro se complaint under the FTCA against the United States. After obtaining representation, Plaintiff filed the First Amended Complaint, adding claims for medical malpractice against Meisner and Ingargiola in their individual capacities. On November 18, 2019, the United States Attorney for the Southern District of New York, pursuant to 28 U.S.C. § 2679(d), certified that Meisner and Ingargiola are federal employees for the purposes of this suit and were acting within the scope of their employment when they provided medical care to Plaintiff. Plaintiff then removed Meisner as a defendant and filed the SAC, restating her allegations against the United States and Ingargiola.

II. STANDARD

An action against the United States under the FTCA is the exclusive remedy for injury "arising or resulting from the negligent or wrongful act or omission of any employee of the Government while acting with the scope of his office or employment." 28 U.S.C. § 2679(b)(1); Cannenier v. Skipper-Scott, No. 18 Civ. 2383, 2019 WL 764795, at *3 (S.D.N.Y. Feb. 20, 2019). "The only proper defendant to a tort claim under the FTCA is the United States." Cannenier, 2019 WL 764795, at *3 (quotation marks omitted) (citing Rivera v. United States, 928 F.2d 592, 609 (2d Cir. 1991)).

The FTCA states "that upon certification by the Attorney General that an employee was acting within the scope of his office or employment when he committed the allegedly negligent act, the United States shall be substituted as the defendant in place of the employee." Fountainv. Karim, 838 F.3d 129, 133 n.3 (2d Cir. 2016) (citing 28 U.S.C. § 2679(d)(1)). The "Attorney General's certification is 'the first, but not the final word' on . . . whether the United States is properly substituted as defendant." Smith v. Brown, 296 F. Supp. 3d 648, 655 (S.D.N.Y. 2017) (quoting Osborn v. Haley, 549 U.S. 225, 246 (2007)). A plaintiff may challenge the Attorney General's certification by alleging "with particularity facts relevant to the scope-of-employment issue." McHugh v. Univ. of Vt., 966 F.2d 67, 74 (2d Cir. 1992), abrogated in part on other grounds by Osborn, 549 U.S. at 247; accord Smith, 296 F. Supp. 3d at 655. "If the plaintiff satisfies this initial burden, the Court will then conduct a de novo review of the certification" to determine whether the employee was acting within the scope of his or her employment. Regnante v. Sec. & Exch. Officials, 134 F. Supp. 3d 749, 768 (S.D.N.Y. 2015). The plaintiff bears the burden of persuasion to rebut the certification by a preponderance of the evidence. See Bowles v United States, 685 F. App'x 21, 24 (2d Cir. 2017) (summary order) ("'[T]he United States . . . must remain the federal defendant in the action unless and until the District Court determines that the employee, in fact, and not simply as alleged by the plaintiff, engaged in conduct beyond the scope of his employment.'" (quoting Osborn, 549 U.S. at 231) (emphasis in original))); accord Green v. Hinds, 17 Civ. 5422, 2019 WL 624929, at *4 (E.D.N.Y. Feb. 14, 2019) ("A plaintiff challenging the scope of employment determination must come forward with particular facts establishing the defendant employees were not in fact acting within the scope of their employment."); Res Sols. Inc. v. Vernaglia, 438 F. Supp. 2d 280, 286 (S.D.N.Y. 2006).

In reviewing the certification, a "court applies state law principles pertaining to" the scope of employment. Bello v. United States, 93 F. App'x 288, 289 (2d Cir. 2004) (summary order); accord Smith, 296 F. Supp. 3d at 655. "Under New York law, an employee acts within the scope of his employment when (1) the employer is, or could be, exercising some control,directly or indirectly, over the employee's activities, and (2) the employee is doing something in furtherance of the duties he owes to his employer." Fountain, 838 F.3d at 135 (internal quotation marks omitted); accord Carlson v. Am. Int'l Grp., Inc., 89 N.E.3d 490, 500 n.6 (N.Y. 2017). Because the test is conjunctive, a plaintiff must rebut both prongs to show that an employee was acting outside the scope of his employment.

III. DISCUSSION

The motion to dismiss Ingargiola as a defendant is granted because Plaintiff does not allege facts with particularity showing that Ingargiola was acting beyond the scope of his employment. To the contrary, the SAC alleges facts that satisfy both tests under New York law showing that Ingargiola's challenged conduct was within the scope of his employment. See Fountain, 838 F.3d at 135.

First, the SAC pleads facts showing that the VA, as the employer, could and did exercise control over Ingargiola's activities at issue here. The SAC indicates that Ingargiola was working under the supervision of Meisner, who was a VA employee. Specifically, the SAC cites two websites showing that Ingargiola was working as a medical resident, in other words, as a physician in training. Meisner is described as an attending physician -- i.e., a physician employed by the VA -- with whom Ingargiola was working. The relationship between resident and attending physicians is one of control and supervision. Mann v. United States, 904 F.2d 1, 2 (2d Cir. 2000) ("[Ve]eterans' hospitals [can] employ interns and residents . . . to provide medical care when supervised by a licensed physician."); see also Lettman v. United States, No. 12 Civ. 6696, 2013 WL 4618301, at *3 (S.D.N.Y. Aug. 29, 2013). Illustrating this relationship, the SAC alleges that Meisner chastised Ingargiola when he allegedly failed to provide proper medical care to Plaintiff. At no point does the SAC allege that Ingargiola was acting outside the control,directly or indirectly, of Meisner or others at the VA. To the contrary, Ingargiola and Meisner appear to have treated Plaintiff in tandem during patient visits and during the surgery. On similar facts, courts have concluded that residents operate under the control of VA hospitals for FTCA purposes. See Ezekiel v. Michel, 66 F.3d 894, 903 (7th Cir. 1995) (finding that a resident operating at a VA hospital under a "high[] degree of supervision and control" by the medical staff was a federal employee for FTCA purposes); Costa v. U.S. Dep't...