United States District Court, D. Hawaii
TOATUGA M. SAOFAIGAALII, Plaintiff,
UNITED STATES, Defendant.
ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY
Oki Mollway United States District Judge
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.
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.
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.
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.
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 #
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.
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.").
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.
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.
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.
March 23, 2011, Katharyne Clark,  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.
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.
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).
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.
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.
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.
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 #
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.
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.
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.
STANDARD OF REVIEW.
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).
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).
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 ...