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Saofaigaalii v. United States

United States District Court, D. Hawaii

June 23, 2016



          Susan Oki Mollway United States District Judge


         Before the court is Defendant United States' Motion for Summary Judgment on Plaintiff Toatuga Saofaigaalii's claim asserting medical negligence under the Federal Tort Claims Act ("FTCA"). The United States argues that Saofaigaalii's claim is barred by the FTCA's two-year statute of limitations. The United States also contends that it is entitled to summary judgment because Saofaigaalii has not identified any medical expert opinion regarding the relevant standard of care or causation relevant to his medical negligence claim, as required by Hawaii law.

         Although Saofaigaalii, who is proceeding pro se from his home in American Samoa, filed no opposition to the United States' motion, this court denies the motion on the ground that the United States has not met its burden as the movant of showing entitlement to summary judgment.

         II. BACKGROUND.

         Saofaigaalii is a fifteen-year veteran of the United States Army who served during the Vietnam era. See ECF No. 1-19, PageID # 40. He lives in American Samoa but travels to Hawaii periodically to receive medical treatment at Tripler Army Medical Center, a hospital run by the Department of the Army. See ECF No. 1-1, PageID # 7.

         On March 12, 2007, Saofaigaalii sought medical treatment at Tripler to remove a kidney stone. See ECF No. 43, PageID # 195. After a first surgery proved unsuccessful, the doctors allegedly recommended a second surgery. See Id. According to a reviewing physician at Tripler, complications arose as the treating physicians tried to administer spinal anesthesia, and spinal anesthesia ended up being attempted six or seven times. See ECF No. 43-4, PageID # 245.

         After the second surgery, Saofaigaalii, although allegedly in "excruciating" pain, was discharged by Tripler. See id.; see also ECF No. 1-16, PageID #s 33-34. When the pain did not subside, he went to Tripler's emergency room, but was allegedly only given pain medication and told that the surgery had been a success. See ECF No. 1-18, PageID # 38; see also ECF No. 1-16, PageID #s 33-34. Saofaigaalii then returned to his home in American Samoa. See ECF No. 1-16, PageID # 34.

         Still in pain, Saofaigaalii came back to Oahu and was readmitted to the Tripler emergency room on May 4, 2007. See ECF No. 43, PageID # 197. On May 12, 2007, Saofaigaalii met with a Tripler physician, who explained that Saofaigaalii had a spinal infection likely caused by the Tripler urological procedures or the "introduction of skin flora with the spinal anesthesia attempts." See ECF No. 43-4, PageID # 246. The physician's attending note states:

Had long counselling [sic] session with patient and his son today about the likely etiology of the infection in his back, his current treatment, and what the future will hold for his treatment. He demonstrates excellent insite [sic] into the process and understands where we think he is currently. All of their questions were answered to their satisfaction.

See id., PageID #s 197-98.

         Saofaigaalii met with a Veteran Affairs counselor on September 26, 2007, who provided him with a "21-4138" form for disability compensation benefits pursuant to 38 U.S.C. § 1151. See ECF No. 1-15, PageID # 32. Saofaigaalii filed his claim for disability compensation benefits that same day. See id. As part of his claim, Saofaigaalii submitted letters by family members alleging that his treating physicians had been negligent. See ECF No. 1-17, PageID # 37 ("My father has suffered enough and the doctors should be disciplined for their negligence to his case."); ECF No. 1-16, PageID # 35 ("The whole point of my statement is that justice must be carried out and these doctors should be questioned for their negligence [sic] acts because if they had taken precautions then I think nothing would happen at all."); id., PageID # 34 ("After the surgery, [Saofaigaalii] was released right away instead of being admitted to a recovery ward to see how he was reacting to the procedure they did. I think that this was an act of negligence because it seems that the life of patients were not the priority at this time; the surgeons just wanted to get over it and authorized that he was well enough to go back to the hotel.").

         On March 21, 2008, the VA denied Saofaigaalii's claim for disability compensation benefits. See ECF No. 1-19, PageID # 40. The decision stated:

Although Tripler treatment records noted complications resulted from spinal anesthesia for a urological procedure, VA care or lack thereof did not cause your chronic headaches, numbness and pain to both lower extremities, lower back pain, and bacterial infection to the vertebra as a result of spinal anesthesia for kidney stone surgery.
For your information, claims under 38 U.S.C. [§] 1151 apply only to facilities over which the Secretary of the Veterans Affairs has direct jurisdiction. Tripler Army Medical Center is not considered to be a VA facility for purposes of 38 U.S.C. [§] 1151.

ECF No. 1-20, PageID # 41. The VA's denial letter invited Saofaigaalii to appeal the decision, stating, "If you do not agree with our decision, you should write us and tell us why. You have one year from the date of this letter to appeal the decision." ECF No. 54-4, PageID # 318. Saofaigaalii, relying on these instructions, filed an appeal with the VA.

         On August 12, 2010, when Saofaigaalii was in Hawaii for a medical check up, he stopped by the VA to check on the status of his appeal and was told by a counselor that it had been denied. See ECF No. 1-12, PageID # 27. Saofaigaalii claims that the "V.A. advised me to put my Claim straight to Tripler Hospital." See id.

         On October 7, 2010, Saofaigaalii mailed to a Brigadier General assigned to Tripler a letter that summarized his negligence claim against Tripler. See ECF No. 1-10, PageID #s 22-25. When Saofaigaalii received no response, he sent another letter on November 15, 2010. See ECF No. 43, PageID # 198. On March 16, 2011, Saofaigaalii wrote to the VA requesting assistance because he "stilled [sic] not heard of anything from Tripler Army Medical Center." ECF No. 1-9, PageID # 21.

         On March 23, 2011, Katharyne Clark, [1] a Judge Advocate assigned to Tripler, wrote a letter to Saofaigaalii, stating that his letters to Tripler had been forwarded to her. See ECF No. 43-3, PageID # 233. Her letter further stated, "In reading your letters, it appears you wish to file a tort claim against the United States. I have enclosed several blank copies of Standard Form SF-95, Claim for Damage, Injury, or Death." See id. The letter was allegedly mailed to Saofaigaalii's address in American Samoa sometime around March 23, 2011. Saofaigaalii's position in this case, including during the hearing on the present motion, is that he never received the letter.

         Saofaigaalii alleges that he continued to suffer from the injuries caused by the Tripler procedure and was in a coma from February to March 2013. See ECF No. 1-4, PageID # 12.

         According to Saofaigaalii,

I was in COMA for two (2) months in Tripler Army Medical Center from February thru March 2013. I was in ICA, and than PROGRESSIVE CARE UNIT, and than to the ward, and than after that, I was transferred to the CFA. I was Discharged from CFA on October 03, 2013. I returned to Home in American Samoa on October 09, 2013 on Special Flight. I am not still fully recover for my situations since I was in Hospital. My conditions is come very slowly to recover from COMA.

Id. (grammar and spelling as in the original).

         In September 2013, Saofaigaalii met with a Tripler Medical Claims Judge Advocate, Yvette Soto. See ECF No. 43-1, PageID # 204. After discussing the claim with Saofaigaalii, Soto provided him with an SF-95 form. See id. Saofaigaalii allegedly mailed the completed SF-95 form to Tripler on September 27, 2013.

         See ECF No. 43, PageID # 198. Saofaigaalii backdated the form to October 7, 2010, the date on which he had mailed his first letter to the Brigadier General at Tripler. See ECF No. 43, PageID # 198. He hand-delivered another copy of the completed SF-95 form to an employee at Tripler on September 30, 2013. See ECF No. 43, PageID # 198.

         On March 14, 2014, the Tort Claims Division of the Department of the Army denied Saofaigaalii's FTCA claim. See ECF No. 1-3, PageID # 10. The basis for the denial was that his claim was barred by the two-year statute of limitations pursuant to 28 U.S.C. § 2401(b). See id. Saofaigaalii filed a motion for reconsideration by the Army that was denied on August 19, 2014. See ECF No. 1-2, PageID # 8.

         Saofaigaalii filed his Complaint in this court on October 9, 2014, suing Tripler and the Department of the Army. See ECF No. 1. His Complaint alleges that the two medical procedures at Tripler were negligently performed and resulted in his suffering severe injuries, including headaches, numbness and pain in both lower extremities, lower back pain, bacterial infection in his vertebrae, a broken piece of metal left in his kidney or stomach, inability to maintain an erection and painful urination, stress, and emotional distress to himself as well as his family members. See id., PageID # 196.

         As the United States has previously noted, see ECF No. 25-1, PageID # 111, individual federal agencies cannot be sued under the FTCA. Instead, the proper defendant in an FTCA case is the United States. Indeed, as explained later in this order, the analysis of whether Saofaigaalii's claims have been timely filed may also implicate actions by the VA, which is under the United States' umbrella.

         During the present litigation, the United States served a Request for Admissions on Saofaigaalii on September 10, 2015. See ECF No. 43, PageID # 199. The United States agreed to extend the deadline for Saofaigaalii to respond to November 13, 2015. See id. On or about November 18, 2015, the United States received a letter from Saofaigaalii, which stated in relevant part:

I would like to Thank You for your letter was send to me dated on October 06, 2015. To be honestly to you that I stilled have those two Boxes you had send me. I have been read and read to understand about all these documents, but stilled no experienced to know anything about Law or Justice System. That is the reasons why I have not send any respond.
I would like to apologized about my part it is incompleted. I have seek for someone to help me but I could not find anyone.
Sir, I do not know what else can I do? Let me know if I can do anything else.

Id., PageID # 200 (grammar and spelling as in the original). Despite further extensions of the deadline, Saofaigaalii has not responded to the United States' RFAs. See id.

         The expert disclosure deadline also passed on January 6, 2016. Saofaigaalii has not filed or served on the United States any expert disclosures pursuant to Rule 26(a)(2) of the Federal Rules of Civil Procedure. See id.


         Summary judgment shall be granted when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a) (2010). See Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000). A movant must support his position that a material fact is or is not genuinely disputed by either "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for the purposes of the motion only), admissions, interrogatory answers, or other materials"; or "showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed.R.Civ.P. 56(c). One of the principal purposes of summary judgment is to identify and dispose of factually unsupported claims and defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). Summary judgment must be granted against a party that fails to demonstrate facts to establish what will be an essential element at trial. See id. at 323. A moving party without the ultimate burden of persuasion at trial--usually, but not always, the defendant--has both the initial burden of production and the ultimate burden of persuasion on a motion for summary judgment. Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000).

         The burden initially falls on the moving party to identify for the court those "portions of the materials on file that it believes demonstrate the absence of any genuine issue of material fact." T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (citing Celotex Corp., 477 U.S. at 323). "When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (footnote omitted).

         The nonmoving party must set forth specific facts showing that there is a genuine issue for trial. T.W. Elec. Serv., Inc., 809 F.2d at 630. At least some "‘significant probative evidence tending to support the complaint'" must be produced. Id. (quoting First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 290 (1968)). See Addisu, 198 F.3d at 1134 ("A scintilla of evidence or evidence that is merely colorable or not significantly probative does not present a genuine issue of material fact."). "[I]f the factual context makes the non-moving party's claim implausible, that party must come forward with more persuasive evidence than would otherwise be necessary to show that there is a genuine issue for trial." Cal. Arch'l Bldg. Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir. 1987) (citing Matsushita Elec. Indus. Co., 475 ...

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