Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Anestis v. United States

United States District Court, E.D. Kentucky, Central Division

September 30, 2014


Page 855

For Tiffany Anestis, as Administratrix of the Estate of Cameron Anestis, Tiffany Anestis, as Mother & Next Friend Isabelle Anestis, Executor plaintiffs: Albert F. Grasch, Jr., Grasch Law, PSC, Lexington, KY; James L. Thomerson, Lexington, KY.

For Tiffany Anestis Individually, Plaintiff: Albert F. Grasch, Jr., Grasch Law, PSC, Lexington, KY; James L. Thomerson, Lexington, KY.

For USA, Defendants: Sabrina Underwood, LEAD ATTORNEY, Andrew James Victor, U.S. Department of Justice - Civil Division 888, Washington, DC.

Page 856


David L. Bunning, United States District Judge.


This matter is before the Court on three separate motions-Defendant's Motion to Dismiss for Lack of Subject Matter Jurisdiction (Doc. # 151), Defendant's Motion for Summary Judgment (Doc. # 152), and Plaintiffs' Motion for Partial Summary Judgment (Doc. # 153). For the reasons set forth below, the Court will deny both of Defendant's motions and grant Plaintiffs' motion.


This is a medical malpractice suit brought under the Federal Tort Claims Act. Cameron Anestis, now deceased, served in the United States Marine Corps and was deployed to Iraq for about nine months. (Doc. # 88-1, at 43).[1] Cameron's unit was demobilized, and he returned to his hometown of Lexington, Kentucky in April, 2009. ( Id.) Shortly after his return, both his parents and wife noticed signs of mental illness. ( Id. at 57-58; Doc. # 88-2, at 55). After emotionally describing a traumatic incident to his parents--involving the apparent death of two children--Cameron Anestis agreed to his parents requests that he seek medical treatment at the local Department of Veterans Affairs hospital. (Doc. # 88-2, at 59-60).

Cameron's efforts to seek treatment met with little success. He first sought help at the Leestown Road VA clinic, one of four divisions of the Lexington VA medical center, on August 17, 2009. (Doc. # 151-1, at 5). He was turned away by the intake clerk at the Leestown clinic, apparently because he had not enrolled in the VA system. (Doc. # 90-8, at 7-8). Under VA operating procedures, veterans who presented to the Leestown clinic in need of care were referred to another division of the Lexington VA system--the Cooper division--where the veteran could be properly enrolled. ( Id.) On the other hand, a veteran suffering from an obvious medical emergency would receive some baseline level of care: either a " code team" would administer care to the veteran or the intake clerk would call emergency responders. ( Id. at 50).

The intake clerk on duty at the time was Carol McIntosh, and McIntosh immediately worried about Cameron's mental state. Though he didn't mention suicide explicitly, McIntosh has reported that she felt Cameron was suicidal. (Doc. # 151-1, at 9; Doc. # 153, at 3). After chatting privately

Page 857

with Cameron and listening to him recount his traumatic experiences in Iraq, McIntosh explained that Cameron could not receive treatment at the Leestown VA clinic because the clinic did not accept walk-ins. (Doc. # 88-3, at 26-27). McIntosh advised that Cameron report to the Cooper division, where he could be " the computer" and access emergency care. ( Id. at 39).

The parties dispute where Cameron traveled next. Cameron left the Leestown clinic, apparently intending to seek treatment at the Cooper division. According to his father, Cameron was turned away from the Cooper division because he did not possess his DD214--essentially, his military discharge papers. (Doc. # 88-2, at 109). Plaintiffs also contend that multiple witnesses saw Cameron at the Cooper division on August 17. (Doc. # 153, at 5). However, the government argues that Cameron's father misinterpreted the August 17 phone call and that no witness testimony clearly establishes that Cameron Anestis sought treatment at the Cooper division. (Doc. # 151-1, at 9-10).

What happened next is uncontroversially tragic. Cameron returned home, hoping to find his DD214. (Doc. # 88-1, at 117-125). Though his wife Tiffany helped, the two were unable to locate the form, and Cameron became enraged. ( Id.) After an intense fight--during which Cameron physically assaulted his wife and threatened to kill her--Tiffany escaped to her baby's room and locked the door. ( Id.) It was there that she heard a single gunshot--the same gunshot that killed her husband. ( Id.) Cameron had committed suicide.

Believing that the VA had failed her husband, Tiffany pursued various administrative remedies before filing suit under the FTCA. Anestis v. United States, 749 F.3d 520, 524 (6th Cir. 2014), reh'g denied (June 30, 2014). The government moved to dismiss the claim, on the grounds that the Veterans Judicial Review Act (VJRA) deprived this Court of jurisdiction to hear the claim. ( Id.) This Court agreed, granting the motion and dismissing the case. ( Id.) However, on appeal the Sixth Circuit held that the VJRA applied only to benefits determinations, and as the decisions of the Leestown and Cooper VA clinics did not constitute a benefits determination, the VJRA did not deprive federal courts of jurisdiction over Anestis's claim. ( Id.) On remand, the parties have again raised issues that were not previously addressed prior to the appeal and subsequent remand. The government once again argues that the VA owed no duty to Cameron and that even if it had, its conduct did not cause Cameron's death; Plaintiffs ask the Court to rule, as a matter of law, that the VA both owed a duty to Cameron Anestis and breached that duty.


A. The Court will treat Defendant's Motion to Dismiss as a Motion for Summary Judgment.

Defendant is accurate that unless Plaintiffs possess a valid state law claim, the United States does not waive its sovereign immunity and thus cannot be sued. F.D.I.C. v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994). However, the Federal Tort Claims Act (FTCA) provides that the government will waive its immunity so long as " a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346. The " law of the place" is, for present purposes, the law of Kentucky. So the relevant inquiry here is whether Kentucky provides a cause of action that allows Plaintiffs to sue the United States. If not, the FTCA does not apply, and the

Page 858

Court has no jurisdiction to entertain the dispute. Meyer, 510 U.S. at 475 (" Sovereign immunity is jurisdictional in nature." ).

As multiple courts have recognized, the jurisdictional question in this context closely ties into the merits. If Plaintiffs have a valid cause of action, the FTCA waives the government's immunity. If Plaintiffs do not have a valid substantive cause of action, the FTCA bars the suit on jurisdictional grounds. A number of federal circuit courts have held that, because of this relationship between the merits of the claim and the Court's jurisdiction over it, Rule 12(b)(1) motions should be converted to Rule 56 motions. See, e.g., Bell v. United States, 127 F.3d 1226, 1228 (10th Cir. 1997); Montez v. Dep't of Navy, 392 F.3d 147, 150 (5th Cir. 2004). While the Sixth Circuit has not, to the Court's knowledge, explicitly held that Rule 12(b)(1) motions should always be converted in the FTCA context, it has held that " attack on subject-matter jurisdiction also implicates an element of the cause of action, then the district court should 'find that jurisdiction exists and deal with the objection as a direct attack on the merits of the plaintiff's claim.'" Id. Gentek Bldg. Products, Inc. v. Sherwin-Williams Co., 491 F.3d 320, 330 (6th Cir. 2007) (citing Williamson, 645 F.2d 404, 415-16 (5th Cir. 1981). Because of the overwhelming weight of authority, both from within this circuit and elsewhere, this Court will " find that jurisdiction exists" and " deal with the objection as a direct attack on the merits of plaintiff's claim."

B. Summary Judgment Standard

Accordingly, the Court will treat all pending motions as motions for summary judgment under Federal Rule of Civil Procedure 56. Under Rule 56, the non-moving party need only show that " there is a genuine issue of material fact." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). " Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . . The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If there is no issue of material fact, and it is clear that the non-moving party cannot show an essential element of his claim, then the Court will grant the motion and dismiss the non-movant's claim. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

With that standard in mind, the Court turns to the parties' respective motions.


A. The VA owed a duty to Cameron Anestis, and it breached ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.