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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

EDDIE MARCELLE WHEELER,

Plaintiff,

v. CASE NO. 1:03-cv-00140-MP-AK

UNITED STATES OF AMERICA,

Defendant.

________________________________/

O R D E R

This matter is before the Court on Doc. 81, Third Report and Recommendation of the

Magistrate Judge, which recommends granting Defendant’s motion for partial summary

judgment and dismissing Plaintiff’s claims against Defendant for medical care provided by Dr.

Terkonda, Doc. 46, and recommends denying Defendant’s motions for summary judgment for

failure to procure expert testimony and lack of subject matter jurisdiction, Docs. 40 and 44. The

Magistrate Judge filed the Report and Recommendation on Tuesday, June 27, 2006. The parties

have been furnished a copy of the Report and Recommendation and have been afforded an

opportunity to file objections. Pursuant to Title 28, United States Code, Section 636(b)(1), the

Court must make a de novo review of those portions to which an objection has been made. Both

Parties have filed objections to the Magistrate’s Report. For the following reasons, the

Magistrate’s Report and Recommendation is adopted in part and declined in part.

I. Plaintiff’s Objection to the Magistrate’s Recommendation that Defendant’s Motion for 

Partial Summary Judgment, Doc. 46, be Granted

The Court agrees with the Magistrate that Defendant’s Motion for Partial Summary

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Judgment, Doc. 46, should be granted. The liability of the United States under 28 U.S.C. § 2674,

the Federal Tort Claims Act (FTCA), for the actions of Dr. Raj Purush Terkonda is wholly

predicated on an employment relationship between Dr. Terkonda and the Gainesville Veteran’s

Affairs Medical Center (VA). Defendant states that Dr. Terkonda was actually employed by the

University of Florida College of Medicine (UF), and worked at the VA solely as an independent

contractor pursuant to a contract between UF and the VA. This contract expressly states that

physicians provided by UF to the VA “shall not be considered VA employees for any purpose.” 

Plaintiff objects to the Magistrate’s recommendation, and states that even if Dr. Terkonda

is an independent contractor, he was under the direct control of the VA. Applying the “control

test” of Logue v. United States, 412 U.S. 521 (1973), the Court agrees with the Magistrate that

Dr. Terkonda was not an employee of the Defendant. Because Dr. Terkonda, although working

at the VA, was in fact employed and controlled by UF pursuant to the terms of his contract, he

cannot be considered an employee of the United States. Therefore, the Defendant cannot be held

liable under the FTCA for the acts of Dr. Terkonda, and partial summary judgment is granted as

to all of Plaintiff’s claims related to the medical care provided by Dr. Terkonda.

II. Defendant’s Objection to the Magistrate’s Recommendation that Defendant’s Motion

for Summary Judgment, Doc. 40, be Denied

In its Motion for Summary Judgment, Doc. 40, Defendant argues that because Plaintiff

has failed to procure an expert to testify as to the prevailing professional standard of care, he

cannot establish a prima facie case of negligence. While the Court agrees with the Defendant

that Plaintiff will need expert testimony to establish the standard of care at trial, the Court agrees

with the Magistrate that Defendant has not met its burden of demonstrating the absence of a

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genuine issue of material fact.

Defendant objects to the Magistrate’s finding that the April 26, 2002, letter from Dr.

Charles Graper serves as a contrary expert opinion to establish either the “prevailing professional

standard of care” or a breach of the standard of care. Under Florida law, expert testimony is

generally required to establish the standard of care in a particular medical field except when the

breach is so obvious as to be apparent to persons of common experience. FLA. STAT. ch.

766.102. In his letter, Dr. Graper states that Plaintiff was “seen by another practitioner who did

a unilateral reduction leaving the opposite side still dislocated,” and that he performed surgery to

remove hardware and loose screws. Doc. 65, ex. 1. Although Dr. Graper’s letter alone would

not constitute a contrary expert opinion at trial, the posture here is different. 

Florida case law shows that summary judgment is generally disfavored in medical

malpractice suits unless it can be conclusively shown that the non-movant cannot offer proof to

support their position. See McCoy v. Hoffmeister, 435 So.2d 989, 990 (Fla. 5th DCA 1983). For

the issue here–failure to procure expert testimony– the Florida cases on point state that summary

judgment is appropriate only when the moving party conclusively demonstrates that the nonmoving party is unable to produce an expert who will testify that the defendant was negligent. 

See Williams v. McNeil, 442 So.2d 269, 271 (Fla. 1st DCA 1983), Holl v. Talcott, 191 So.2d 40,

44-46 (Fla. 1966). Because Plaintiff has produced a letter from Dr. Graper that links the

Defendant to the dislocation of Plaintiff’s jaw and loose screws at the repair site, Defendant has

not met the burden to demonstrate conclusively the inability of Plaintiff to produce an expert to

establish the standard of care or breach thereof. Accordingly, Defendant’s Motion for 

Summary Judgment, Doc. 40, is denied.

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III. Defendant’s Objection to the Magistrate’s Recommendation that Defendant’s Motion

for Summary Judgment for Lack of Subject Matter Jurisdiction, Doc. 44, be Denied

The Magistrate also recommends that Defendant’s Motion for Summary Judgment for

Lack of Subject Matter Jurisdiction, Doc. 44, be denied. Defendant presents numerous

objections to the Magistrate’s findings on this issue. First, Defendant objects to the statement in

the Magistrate’s Report that the Defendant stipulated to subject matter jurisdiction in this case in

a prior discovery report. The Rule 26(f) report stated: “This Court has jurisdiction over this

action pursuant to the Federal Torts Claims Act.” Doc. 38 at 4. Although Defendant is correct

that parties cannot neither give a court subject matter jurisdiction where it does not exist, nor

waive any objection to a lack of such jurisdiction, the Magistrate does not suggest either

possibility. After reaffirming its prior finding that the Plaintiff did not fail to exhaust

administrative remedies, the Magistrate states that “Defendant has stipulated to the jurisdiction

of this Court.” Doc. 81 at 7. The Court takes this to mean that because Plaintiff’s claim is

timely, the Court has jurisdiction to hear the claim under the FTCA, which Defendant has

previously agreed applies. 

Defendant also objects to the refusal of the Magistrate to reconsider the issue of

exhaustion of remedies in light of new evidence. The Magistrate’s Reports states: “This Court

has decided this issue and the question of exhaustion is closed. (See Doc. 31).” Id. Although

Defendant is correct that a case must be dismissed whenever it appears that a court lacks subject

matter jurisdiction, here this is not the case. The additional facts stated in Defendant’s Motion

for Summary Judgment, Doc. 44, merely flesh out the argument previously presented in

Defendant’s Motion to Dismiss, Doc. 20, that Plaintiff’s claim accrued on the date of

injury, December 9, 1999. In the Second Report and Recommendation, The Magistrate rejected

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Defendant’s Motion to Dismiss and stated that the Defendant had not provided enough evidence

to challenge the critical issue: when the “Plaintiff knew or should have known that the initial

surgery may have caused his additional pain and jaw dysfunction.” Because the Magistrate did

not explain why the newly presented evidence still does not warrant summary judgment, the

Court will determine whether the additional evidence removes jurisdiction to hear this action.

The critical issue is when Plaintiff knew of the existence and the cause of his injury. The

FTCA statute of limitations requires a plaintiff to present tort claims against the United States to

the appropriate federal agency within two years after the claim accrues, which occurs “once the

plaintiff discovers her injury is probably attributable to some act of those who treated her.” Price

v. United States, 775 F.2d 1491, 1491 (11th Cir. 1985), see also United States v. Kubrick. 444

U.S. 111 (1979). In its Statement of Undisputed Facts in Support of Defendant’s Motion for

Summary Judgment, Defendant lists the numerous visits between January 24, 2000, and May 2,

2001, during which Plaintiff sought treatment from VA doctors following the original surgery.

Defendant states that Plaintiff knew of the existence and cause of his injury during these dates

because he repeatedly told VA medical providers that he was having problems with his jaw–that

his mouth would hardly open, that his jaw was shoved back, and that his teeth were not lined up. 

Doc. 45. In contrast, Plaintiff states in a sworn affidavit that he did not learn of the cause of his

injury until he sought a second opinion from Dr. Graper between October and November 2001,

and then underwent a second surgery. Doc. 24.

Defendant cites several cases from other circuits to support the proposition that Plaintiff’s

repeated opportunities to ask medical professionals about his continued pain demonstrate that the

claim accrued before the visit to Dr. Graper. Dawkins v. United States, 208 F.3d 213 (6th Cir.

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2000)(holding that a FTCA claim brought in 1999 for surgeries performed in 1955 and 1958 was

untimely); Edwards v. United States, 1999 U.S. App. LEXIS 2688 (4th Cir. 1999). While

Plaintiff’s repeated visits to the VA following surgery may be relevant in evaluating whether he

had actual or imputed knowledge of the injury and the critical fact of who injured him, the Court

believes that several decisions from this circuit are more apposite. 

In Burgess v. United States, the plaintiff suffered broken clavicles during birth, and

permanent nerve damage was discovered twenty days after discharge from the hospital. The

court found that the relevant starting point for the accrual of the FTCA action was not the broken

bones, but rather the nerve damage resulting from the broken bones “since plaintiff’s parents did

not know of the existence of the injury until the physicians made them aware of it.” 744 F.2d

771, 775 (11th Cir. 1984). In Chamness v. United States, 835 F.2d 1350 (11th Cir. 1988),

plaintiff was diagnosed shortly after her birth with numerous disabilities, including profound

mental retardation, but plaintiff’s mother claimed that the cause of plaintiff’s injuries were

unknown until three years later. During plaintiff’s birth, her mother had been given various

drugs to assist delivery, one of which had caused plaintiff’s mental retardation. The court,

applying the second prong of Kubrick, stated that if the injury is the type whose cause is not

apparent, and if the plaintiff has not been actively misled as to the cause of the injury, then the

focus of the analysis is whether the plaintiff has exercised due diligence in uncovering the cause

of their injury. The statute of limitations under the FTCA will not begin to run for a plaintiff

until that plaintiff actually discovers, or in the exercise of due diligence should have discovered,

the cause of their injury.

Although Plaintiff Wheeler repeatedly complained of problems with his jaw following

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surgery on December 9, 1999, because these complaints mirrored the symptoms he experienced

before surgery, the cause of his injuries may not have been readily apparent. Plaintiff presented

to Dr. Hamdam following the initial injury with complaints of pain, inability to close his mouth, 

and that his teeth did not fit right. Doc. 65 at 5-7. Because Plaintiff complained of the same

problems during the repeated visits to the VA between 2000 and 2001, it is unlikely that he was

put on notice that the acts of the Defendant were the cause of the pain, and thus he was not in

“possession of the critical facts that he has been hurt and who ha[d] inflicted the injury.” 

Kubrick, 444 U.S. 111, 122. Indeed, a reasonable person instead could conclude that the initial

surgery was not efficacious, rather than negligently performed. As the Magistrate notes in the

Second Report and Recommendation: 

From the facts provided by the Plaintiff, it is entirely feasible that Plaintiff did not

know that there was hardware left in his jaw or that his jaw remained dislocated

until he had a second surgery, and he would therefore not have connected his

injury (the continued pain and dysfunction, not the original fractures) to anything

that had been done previously by the Defendant. 

Doc. 31 at 7. The Court agreed with the Magistrate’s analysis then, and the Court continues to

agree with the Magistrate that summary judgment is not appropriate now because Plaintiff’s

affidavit is sufficient to raise a genuine issue of material fact as to when his claim accrued. 

This does not suggest any ruling on the merits of this issue, but only that at this time,

Plaintiff has raised enough of a genuine issue of material fact to survive dismissal. While

Defendant has documented the numerous visits by Plaintiff to the VA following surgery, and the

numerous complaints by Plaintiff to the treating physicians, nothing in the record shows that

Plaintiff was in possession of the “critical facts” to warrant dismissal for lack of subject matter

jurisdiction. Therefore, Defendant’s Motion for Summary Judgment, Doc. 44, is denied.

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IV: Defendant’s Objection to Recommendation that Counsel be Appointed for Plaintiff

Defendant’s final objection to the Magistrate’s Report is the recommendation that

counsel be appointed for Plaintiff, who has been proceeding pro se. Specifically, Defendant

objects to the Magistrate’s finding that “[o]nce counsel makes an appearance, new pleadings will

need to be filed, and a new scheduling order entered, at which point expert witnesses will be

named.” Doc. 81 at 9. Defendant argues that because it is ready to proceed to trial, the initial

injury occurred over five years ago, and discovery has already concluded, it would be prejudiced

by such appointment . Additionally, Defendant states that Plaintiff’s case is not so exceptional

or difficult as to justify appointment of counsel.

This case has proceeded under the assumption that Plaintiff was treated by the employees

of the Defendant, and therefore no other party was personally served and the United States was

substituted as the sole defendant pursuant to 28 U.S.C. §2679. As stated previously, Plaintiff’s

attending surgeon, Dr. Terkonda, actually performed the surgery at issue in this case, but was not

employed by the Defendant. Although Plaintiff has named other physicians in his amended

complaint–Drs. Darby Marshall, John Westine, and Sivetha Collins–it is unclear from the record

their role in this case, their relation to the Defendant, or any potential liability on their part. 

The Court agrees with the Magistrate that “[n]arrowing Plaintiff’s general claim of

malpractice to specific medical personnel and attaching liability to the Defendant can only be

accomplished by extensive and complicated discovery procedures far above the abilities of this

pro se Plaintiff.” Id. While the appointment of counsel for the Plaintiff would ensure

streamlined discovery, fewer delays, and possibly a quicker resolution, the Court does not have

the funds to hire a lawyer for the Plaintiff. Therefore, the Court declines to adopt the

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Magistrate’s recommendation that a lawyer be appointed for the Plaintiff. Because of the new

complexities of this case, the Court highly recommends that Plaintiff seek legal representation. 

If Plaintiff does not have the resources to pay for lawyer, Plaintiff should contact the Florida Bar

or a legal services organization to inquire into the possibility of a lawyer representing Plaintiff 

pro bono. 

Therefore, after considering the objections to the Magistrate’s Report, Defendant’s

motions for summary judgment, Docs. 40 and 44, must be denied at this stage because a

reasonable fact finder evaluating the evidence could draw more than one inference from the

facts, and this inference introduces a genuine issue of material fact. Because the evidence shows

that Dr. Terkonda is not an employee of the Defendant, partial summary judgment must be

granted and all claims against Defendant based on the actions of Dr. Terkonda must be

dismissed. With the complexity this adds to this case, the Court again recommends that Plaintiff

should seek legal representation so that this case may be efficiently resolved. Accordingly, it is

hereby 

ORDERED AND ADJUDGED:

1. The Magistrate Judge’s Report and Recommendation, Doc. 81, is adopted and

incorporated by reference in this order.

2. Defendant’s motion for partial summary judgment, Doc. 46, is granted, and

Plaintiff’s claims against the Defendant under the FTCA for medical care

provided by Dr. Terkonda are dismissed.

3. Defendant’s Motion for Summary Judgment, Doc. 40, is denied.

4. Defendant’s Motion for Summary Judgment for Lack of Subject Matter

Jurisdiction, Doc. 44, is denied.

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DONE AND ORDERED this 6th day of November, 2007

 s/Maurice M. Paul 

 Maurice M. Paul, Senior District Judge

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