United States District Court, W.D. Missouri, Central Division
SANDRA J. KOTTMAN, Plaintiff,
UNITED STATES OF AMERICA and RICHARD A. SCHMALTZ, Defendants.
NANETTE K. LAUGHREY, UNITED STATES DISTRICT JUDGE
United States of America and Richard Schmaltz move to dismiss
for lack of subject matter jurisdiction, or in the
alternative, failure to state a claim. Doc. 8. The motion is
case is the second one to have come before this Court
concerning injuries that Sandra Kottman sustained during an
on-the-job incident at a federal hospital. See Kottman v.
Schmaltz, U.S. District Court, Western District of
Missouri, Case no. 2:14-cv-04085-NKL (Kottman I).
Both Kottman I and the case currently before the
Court, Kottman II, concern the same underlying
facts. More specifically, Kottman was employed as a
registered nurse by the U.S. Department of Veterans Affairs
at the Harry S Truman Veterans Hospital in Columbia,
Missouri. Dr. Richard Schmaltz was employed as the
hospital's Chief of Surgery. On May 27, 2011, Kottman was
working in the operating room, helping to prepare a patient
for a surgery to be performed by Dr. Schmaltz. When the
doctor entered the operating room, he was dissatisfied with
the manner in which the patient had been prepared, and
forcefully placed his hand on Kottman's back near the
base of her neck. Viewing the facts as alleged by Kottman,
she was injured by Dr. Schmaltz's actions.
2013, Kottman sued Dr. Schmaltz in Missouri state court for
battery. In March 2014, while the state court case was still
pending, the United States Attorney General certified
pursuant to 28 U.S.C. § 2679(d) that Dr. Schmaltz was
acting in the course and scope of his employment with the
Veterans Administration at the time of the incident. The
United States then removed the state court case to federal
court, on behalf of Dr. Schmaltz. See Kottman I,
Doc. 1. The United States filed a motion to substitute the
United States as the sole party-defendant pursuant to 28
U.S.C. § 2679(d) and moved to dismiss due to
Kottman's failure to exhaust administrative remedies
pursuant to the Federal Tort Claims Act. Id., Docs.
3-4. Kottman responded by challenging the Attorney
General's scope-of-employment certification.
Id., Docs. 7-9.
December 4, 2014, after allowing limited discovery, this
Court conducted an evidentiary hearing, including taking the
live testimony of Kottman and Dr. Schmaltz, concerning the
Attorney General's certification. The Court made oral
findings of fact and conclusions of law on the record.
Id., Doc. 41. The Court found that Dr. Schmaltz
intentionally touched Kottman for the purpose of drawing her
attention and the attention of others in the operating room
to the situation with the patient, but that he did not do so
for the purpose of punishing Kottman. Id. The Court
held that although the conduct technically met the definition
of common law assault, the conduct was nonetheless within the
course and scope of Dr. Schmaltz's employment under
Missouri law. Id. Therefore, the Court held, the United
States would be substituted as the sole defendant, and that
the case would be dismissed without prejudice for
Kottman's failure to exhaust administrative remedies. 28
U.S.C. §§ 1346(b), 2401(b), and 2675(a). The
IT IS ORDERED AND ADJUDGED that pursuant to the ruling
entered by the Honorable Nanette Laughrey on December 4,
2014, the Court found that Defendant Schmaltz's touching
of Plaintiff's back took place in the scope and course of
Dr. Schmaltz's employment. The Court granted the United
States' motion to substitute the United States as party
defendant. The Court also granted the United States'
motion to dismiss, without prejudice, for failure to exhaust
Doc. 42. No one appealed the judgment.
filed the case currently before this Court in January 2017,
against both the United States and Dr. Schmaltz. She alleged
that after the Kottman I judgment, she filed her
administrative claim pursuant to the Federal Tort Claims Act,
but that the Attorney General ultimately denied her claim on
the basis that the FTCA does not cover intentional conduct.
alleges that in view of this Court's finding in
Kottman I that the touching took place in the scope
and course of Dr. Schmaltz's employment, for the sole
purpose of accomplishing his duties as a surgeon for the VA,
without any motive to cause Kottman harm, her
“injuries…are compensable under the FTCA.”
Doc. 10, p. 4, ¶¶ 19-21. She further alleges that
the Veterans Administration negligently supervised Dr.
22. Additionally, Plaintiff has learned that Dr. Schmaltz
behaved inappropriately on prior occasions in the VA
operating room. In one instance, he “barged in,
shouting orders, ” and “threw a bovie across the
room” striking the Operating Room Nurse Manager. (A
bovie is an electronic medical instrument frequently used to
cauterize smaller blood vessels.)
23. Dr. Schmaltz has been recognized by the VA as an
excellent surgeon. Yet, for several years prior to his
incident with Plaintiff, it was reported that his behavior
and temperament with operating room staff had deteriorated.
Because Dr. Schmaltz was such an accomplished surgeon,
Defendant USA (VA) ignored reports of his operating room
behavior; and specifically the incident of throwing a medical
device that struck a co-worker.
24. Given the high stress level of the operating room,
Defendant USA (VA) should have foreseen that Dr.
Schmaltz's conduct would eventually result in injury.
25. Defendant USA (VA) was negligent in failing to take
action to control the conduct of Dr. Schmaltz following the
deterioration of his behavior in the operating room,
especially after the outburst when the medical device was
thrown, striking a co-worker.
26. As a result of all of these actions and inactions,
Plaintiff was injured and permanently disabled.
Doc. 10, p. 4. Finally, Kottman alleges that denying her any
relief would violate her federal and state constitutional
discussed below, the Court concludes that it lacks subject
matter jurisdiction because Dr. Schmaltz is absolutely immune
from suit and the United States has sovereign immunity from
the claims. Kottman's constitutional claims also fail.
The legal framework
Federal government employees and absolute
immunity-Kottman's claims against Dr.
enacted the Federal Employees Liability Reform and Tort
Compensation Act, Pub. L. No. 100-694, 102 Stat. 4563 (1988),
commonly referred to as the “Westfall Act, ”
“to protect Federal employees from personal liability
for common law torts committed within the scope of their
federal employment[, ]” id., at 100-694,