Lackro v. Kao

748 F.Supp.2d 445

Barry LACKRO, et al., Plaintiffs,

v.Gary KAO, et al., Defendants.

Civil Action No. 10–940.

United States District Court, E.D. Pennsylvania.

Oct. 8, 2010.

Mitchell L. Paul, Philadelphia, PA, for Plaintiffs.Richard Mentzinger, Jr., Gregory B. David, U.S. Attorney's Office, Adrian R. King, Post And Schell P.C., Thomas M. Savon, Naulty Scaricamazza & McDevitt, Ltd., Philadelphia, PA, for Defendants.

MEMORANDUM

EDUARDO C. ROBRENO, District Judge.I. INTRODUCTION

Plaintiffs Barry Lackro and Beverly Lackro (collectively, “Plaintiffs”) brought this medical malpractice action as husband and wife seeking redress for injuries sustained during a brachytherapy procedure administered by Dr. Gary Kao (“Dr. Kao”) at the Philadelphia VA Medical Center (“PVAMC”). Dr. Kao, enclosing a certification of employment from the United States Attorney (“U.S. Attorney”), asserts that he was an employee of the United States during the time in question and that his actions were within the scope of his employment with the United States. Consequently, Dr. Kao seeks to be dismissed from Plaintiffs' suit under the Federal Tort Claims Act (“FTCA”) as amended by the Westfall Act. The FTCA affords certain federal employees absolute immunity from state law tort claims for which the United States is subject to liability under the FTCA. Plaintiffs agree that the FTCA provides a basis for dismissing Dr. Kao from the suit. However, Plaintiffs seek limited discovery of ninety days to ensure Dr. Kao was, in fact, an employee of the United States acting within the scope of his employment.

Ultimately, whether Plaintiffs are entitled to the limited discovery they seek turns on when the right to discovery attaches following a U.S. Attorney's certification of employment. Plaintiffs posit the right is absolute. Dr. Kao, on the other hand, asserts that Plaintiffs must proffer specific facts which rebut the U.S. Attorney's certification before proceeding against him and undertaking even limited discovery. Somewhat confusingly, both views find support from controlling precedent in this Circuit. The Court concludes, however, that Dr. Kao's position is governing and that Plaintiffs have not met their burden of demonstrating the requisite specific facts which would entitle them to discovery. Thus, as set forth more fully below, Dr. Kao's motion to dismiss will be granted.

II. BACKGROUNDA. Jurisdiction

This Court has original jurisdiction over Plaintiffs' suit because the United States is a defendant and the suit is for medical malpractice. See 28 U.S.C. § 1346(b)(1) (“[T]he district courts ... shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages ... for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment ....”). Plaintiffs aver they have filed an administrative claim with the Department of Veterans Affairs and that six months have elapsed without disposition of the claim. ( See Am. Compl. ¶ 1.) The United States admits this allegation. ( See Answer ¶ 1.) Therefore, Plaintiffs have exhausted their administrative remedies and are entitled to bring their suit in this forum. See 28 U.S.C. § 2675(a) (action under Section 1346(b)(1) is inappropriate “unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency .... The failure of an agency to make final disposition of a claim within six months ... [is] deemed a final denial ....”).¹

B. Facts

Lackro is a “highly decorated United States veteran, having served two tours of duty as a first lieutenant with Army Special Forces in Vietnam during the Vietnam War.” (Am. Compl. ¶ 13.) While in Vietnam, Lackro was exposed to Agent Orange. ( Id. ¶ 14.) In 2004, Lackro was diagnosed with prostate cancer which Plaintiffs seem to attribute to Lackro's exposure to Agent Orange. ( See id. (“In 2004, Mr. Lackro was diagnosed with prostate cancer, a well known result of exposure to Agent Orange.”).) Lackro received treatment for his cancer at medical centers owned and operated by the Department of Veterans Affairs and ultimately underwent a prostate brachytherapy procedure at PVAMC on January 10, 2005. ( Id. ¶¶ 16, 17.)

Brachytherapy is a procedure “performed by a radiation oncologist, where a number of metal ‘seeds' containing radioactive material are surgically implanted into the patient's prostate so as to destroy the cancer cells within the prostate.” ( Id. ¶ 18.) Plaintiffs allege this treatment was administered and/or approved by Dr. Kao who was “acting as the agent, apparent agent, servant and/or employee of one or more of the entities named as defendants.” ( Id. ¶ 19.)

Plaintiffs assert that, during the brachytherapy procedure, many of the radioactive seeds were misplaced into healthy tissues. ( Id. ¶ 22.) Consequently, Lackro (1) received an inadequate dose of radiation to his prostate; and (2) received an excessive dose of radiation to healthy tissues. ( Id. ¶¶ 23, 24.) Plaintiffs allege Lackro's prostate cancer recurred as a direct and proximate result of this error. ( Id. ¶ 25.) Plaintiffs also allege that Lackro suffers from medical ailments that are direct and proximate results of the misplacement of the seeds. ( Id. ¶ 26.)

III. LEGAL STANDARD

In considering a motion to dismiss for failure to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6), the court must “accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the non-moving party.” DeBenedictis v. Merrill Lynch & Co., Inc., 492 F.3d 209, 215 (3d Cir.2007) (internal citations omitted). In order to withstand a motion to dismiss, a complaint's “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 & n. 3, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). This “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. at 555, 127 S.Ct. 1955 (internal citation omitted). Although a plaintiff is entitled to all reasonable inferences from the facts alleged, a plaintiff's legal conclusions are not entitled to deference and the court is “not bound to accept as true a legal conclusion couched as a factual allegation.” Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) (cited with approval in Twombly, 550 U.S. at 555, 127 S.Ct. 1955).

The pleadings must contain sufficient factual allegations so as to state a facially plausible claim for relief. See, e.g., Gelman v. State Farm Mut. Auto. Ins. Co., 583 F.3d 187, 190 (3d Cir.2009). A claim possesses such plausibility “ ‘when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.’ ” Id. (quoting Ashcroft v. Iqbal, ––– U.S. ––––, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009)). In deciding a Rule 12(b)(6) motion, the court is to limit its inquiry to the facts alleged in the complaint and its attachments, matters of public record, as well as undisputedly authentic documents if the complainant's claims are based upon these documents. See Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir.1994); Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir.1993).

With this standard of review in mind, the Court turns to consider the merits of Dr. Kao's motion.

IV. DISCUSSION

Dr. Kao asserts that he should be dismissed as a party under the FTCA as amended by the Westfall Act, which shields from liability United States employees who act within the scope of their office or employment. Dr. Kao has enclosed a certification of the scope of his employment alongside his motion to dismiss. The certification, which is signed by the U.S. Attorney for the Eastern District of Pennsylvania, states:

I hereby certify that I have read the Plaintiffs' First Amended Complaint. Based on the information now available to me with respect to allegations contained therein, I find that defendant, Gary Kao, M.D., was an employee of the United States Department of Veterans Affairs and was acting within the scope of his office or employment at the time of the conduct alleged in the Plaintiffs' First Amended Complaint. (Def's Mot. to Dismiss, Ex. A.) ² Dr. Kao also encloses a declaration from Gerald Morelli, the Director of Human Resources for PVAMC, that further states Dr. Kao was employed by the United States during the events in question and was acting within the scope of his employment with the United States.

Plaintiffs, in turn, seek review of the certification via limited discovery of ninety days. In support of this request, Plaintiffs submit two exhibits which allegedly raise a factual question as to the U.S. Attorney's certification. The first exhibit is an excerpt of a hearing before the House Committee on Veterans' Affairs from 2009 in which Dr. Kao is identified as an associate professor of radiation oncology within the department of radiology at the University of Pennsylvania. The second exhibit contains excerpts of a report from the Department of Veterans Affairs Office of Inspector General which explains that PVAMC performed brachytherapy under a contract with the University of Pennsylvania during the period in which Lackro received brachytherapy at PVAMC.

A. Legal Standard

The FTCA permits plaintiffs to recover against the United States in medical malpractice actions, but it prohibits suits against the employee of the United States whose acts or omissions may have led to the suit. See 28 U.S.C. § 2679(b)(1); see also McNiff v. Asset Mgmt. Specialists, Inc., 337 F.Supp.2d 685, 691 (E.D.Pa.2004) (...