1

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

RUSSELL KEITH GAULT,

Plaintiff,

v. Case No. 1:20-cv-123-AW-HTC

UNITED STATES OF AMERICA,

Defendant.

_______________________________/

ORDER GRANTING MOTION TO DISMISS

This Federal Tort Claims Act suit is based on alleged negligence during 

Russell Gault’s treatment for a manic episode. I dismissed Gault’s first amended 

complaint for lack of subject-matter jurisdiction over any medical malpractice 

claim—which is time-barred by Florida’s statute of repose—and for failure to state 

a negligent infliction of emotional distress (NIED) claim, because Gault failed to 

allege an impact that contributed to his emotional distress. ECF No. 25. After Gault 

repleaded, ECF No. 26 (SAC), the government moved to dismiss, arguing that Gault 

has again failed to state an NIED claim and that, at any rate, his claim still sounds in 

medical malpractice.

1 ECF No. 28 at 4, 6.

1 The government suggests a few times that Gault’s Second Amended 

Complaint was untimely. See ECF No. 28 at 1 n.1, 7. I decline to reach this issue 

because the government neither argues the point nor relies on it when requesting 

relief. See id. at 10 (requesting dismissal on jurisdictional and pleading grounds).

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The magistrate judge issued a report and recommendation agreeing that Gault 

failed to cure his NIED pleading deficiency.2 ECF No. 30 at 2. I have reviewed that 

report and recommendation and considered de novo the issues each side raised in 

response. ECF Nos. 31, 32, 33. I conclude that, although Gault cured the NIED

pleading deficiency identified in my earlier dismissal order, his colorable allegations 

fall within the scope of Florida’s medical malpractice scheme. Because Gault’s 

claim remains time-barred under that scheme, I now dismiss his Second Amended 

Complaint for lack of subject-matter jurisdiction, this time without leave to amend.

I. NIED THEORY

As noted before, a plaintiff who has suffered an impact may “recover[] for 

emotional distress stemming from the incident during which the impact occurred,”

even without a physical injury. Eagle-Picher Indus., Inc. v. Cox, 481 So. 2d 517, 

526 (Fla. 3d DCA 1985) (citation omitted). Still, the plaintiff must allege that that 

impact contributed to his emotional distress in some way. See Arditi v. Grove Isle 

Ass’n, Inc., 905 So. 2d 151, 153 (Fla. 3d DCA 2004).

The magistrate judge concluded that, as repleaded, “Gault’s emotional distress 

was not sufficiently related” to the alleged impact—the injection of a sedative—to 

2 The magistrate judge concluded that Gault stated an “ordinary” (that is, nonNIED) negligence claim, ECF No. 30 at 2, but Gault has disclaimed any intent to 

proceed under any negligence theory besides NIED, see ECF No. 33 at 2-3; SAC at 

1 (specifically alleging NIED claim).

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state an NIED claim. ECF No. 30 at 13. In the magistrate judge’s reading, Gault’s 

“heightened emotional distress was caused by sleep deprivation,” while “the 

injection was merely the remedy aimed at alleviating” that distress. Id. Because 

Gault admitted “he was out of control” and “could have harmed himself or others” 

without the sedative, the magistrate judge determined that “the injection [was] not 

linked to the exacerbation of” Gault’s distress.3Id. at 13-14.

I disagree. Gault specifically alleged that “the injection, and the fact that it 

was administered by [Nurse] Delaney, caused [his] mania to become so severely 

aggravated, and [his] emotional distress to become so great, that for the only time 

during [his] stay, [he] directed [his] outrage at a specific VA employee” by shouting 

an obscenity at her. SAC at 6 ¶ 20. He also alleged that “the peak of [his] emotional 

suffering occurred as the injection needle wielded by [Nurse] Delaney entered [his]

body.” Id. at 12 ¶ 2. These allegations—which the court accepts as true at this stage, 

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)—sufficiently plead that the injection 

contributed to his emotional distress.

3 The magistrate judge also concluded that Gault’s NIED claim is time-barred 

by the Florida medical-malpractice statute of repose because the claim “overlaps 

with the professional medical judgment of VA personnel, who determined that the 

injection was medically necessary.” ECF No. 30 at 14. But Gault does not claim the 

injection itself was medically negligent; indeed, he acknowledges it was medically 

necessary. See, e.g., ECF No. 33 at 4 (“I have never alleged that the injection 

administered to sedate me was negligent, IIED, or medical malpractice.”).

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That said, the Second Amended Complaint nonetheless fails to state an NIED 

claim. To the extent Gault alleges that Nurse Jordan negligently operated the 

hospital’s HVAC system,

4

the room temperatures Gault alleges—between 65 and 80 

degrees, see SAC at 3-4 ¶¶ 6, 8—are neither hot nor cold enough to trigger a general 

legal duty to avoid “unreasonable risk[]” of harm. Cf. Williams v. Davis, 974 So. 2d 

1052, 1056 (Fla. 2007) (“The [negligence] claimant must first demonstrate that the 

defendant owed a ‘duty, or obligation, recognized by the law, requiring the 

[defendant] to conform to a certain standard of conduct, for the protection of others 

against unreasonable risks.’” (quoting Clay Elec. Coop., Inc. v. Johnson, 873 So. 2d 

1182, 1185 (Fla. 2003)).

Gault also alleges that the VA nurses breached a duty to provide him with a 

place to sleep. See SAC at 3-4 ¶¶ 7, 10, 12; id. at 9-10 ¶ 1.A. Gault cites—as sources

of this duty—Maslow’s Hierarchy of Needs and the parental responsibility to 

provide one’s child with shelter. See ECF No. 29 at 5-6 ¶¶ 12-13. But Gault was

provided a place to sleep; he simply didn’t find it comfortable. See SAC at 3 ¶ 6 

4 Compare SAC at 3 ¶ 6 (Nurse “Jordan’s negligent operation of the building’s 

HVAC system caused my room to be uninhabitable . . . .”), and id. at 10 ¶ 2 (“But 

for [Nurse] Jordan negligently making my room uninhabitable the evening of 06 

May 2016, I would not have needed an alternate location to sleep.”), with id. at 9-10 

¶¶ 1.A-B (alleging, within “Breach of Duty” section, only “[f]ailing to provide me

with a location to sleep” and “[f]ailing to de-escalate [Gault’s] severe agitation”).

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(referring to “my room” becoming “uninhabitable”); id. at 4 ¶ 10 (“I repeatedly 

complained . . . that my room was uninhabitable”).

Ultimately, then, Gault is claiming the nurses had a duty to provide him with 

a different place to sleep. See SAC at 3 ¶ 7 (alleging that [Nurse] Branca “negligently 

stated that there was no[]” other place for Gault to sleep); id. at 4 ¶ 12 (alleging that 

four nurses “negligently failed to offer [the seclusion room] to me” for sleeping).

And, as discussed next, in that respect he’s clearly asserting medical malpractice.5

“[M]erely because ‘a wrongful act occurs in a medical setting does not 

necessarily mean that it involves medical malpractice.’” Nat’l Deaf Acad., LLC v. 

Townes, 242 So. 3d 303, 310 (Fla. 2018) (quoting with approval Joseph v. Univ. 

Behav. LLC, 71 So. 3d 913, 917 (Fla. 5th DCA 2011)). Things like spilling scalding 

hot tea on a patient, kicking a patient’s foot while adjusting a chair’s footrest, or 

failing to separate patients previously involved in altercations, constitute ordinary 

negligence even when occurring in a medical setting. Id. at 310-11 (first discussing 

Joseph, 71 So. 3d 913; then discussing Quintanilla v. Coral Gables Hosp., Inc., 941 

So. 2d 468 (Fla. 3d DCA 2006); and then discussing Tenet St. Mary’s Inc. v. 

Serratore, 869 So. 2d 729 (Fla. 4th DCA 2004)). “[F]or a claim to sound in medical 

malpractice, the act from which the claim arises must be directly related to medical 

5 The same is true of Gault’s allegations of breach based on failure to deescalate his manic episode—and Gault concedes as much. See ECF No. 29 at 5 n.1.

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care or services, which require the use of professional judgment or skill.” Id. at 305.

Further, “proving a medical malpractice claim requires establishing that the 

allegedly negligent act ‘represented a breach of the prevailing professional standard 

of care,’ as testified to by a qualified medical expert.” Id. at 309 (citing Fla. Stat. 

§§ 766.102(1) and (5)).

Any reasonable person would know, without expert testimony, that leaving 

altercation-prone people in close proximity—like spilling scalding liquid onto 

someone or kicking their foot—poses an unreasonable risk of harm. In contrast, the 

alleged duty to provide Gault with an alternate sleeping location is predicated on 

professional knowledge and judgment, such that proving breach would require 

expert testimony.

This is evident from the Second Amended Complaint. First, Gault directly 

alleges that, “[t]hrough their education and training, VA staff who provide treatment 

for bipolar patients should be well aware of the direct relationship between sleep

duration, and improvement of manic symptoms.” SAC at 3 ¶ 5 (emphasis added). 

He similarly alleges that, “[t]hrough their education and training, VA staff who 

provide treatment for bipolar patients should be able to easily foresee that sleep 

deprivation would have deleterious effects on patients suffering from acute manic 

episodes.” Id. at 12 ¶ 3 (emphasis added).

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Further, Gault cites medical journals for the proposition that sleep constitutes 

medical treatment for a manic patient (and lack thereof can worsen symptoms). See 

id. at 3 ¶ 4 (“Sleep is vital for treating manic episodes.” (citing National Institutes 

for Health)); id. at 3 ¶ 5 (“Sleep duration is more important than medication in the 

treatment of acute mania . . . .” (cleaned up) (citing same)); id. at 4 ¶ 9 (“[S]leep

deprivation can precipitate mania . . . .” (citing Psychology Today)). And he cites a 

medical journal to allege that “‘[a]ll nurses owe a legal duty of care to their patients,’

and nurses will ‘have a higher duty of care than someone who has limited or no

medical knowledge.’” SAC at 9 ¶ 2 (quoting Nursing Standard) (marks added); see 

also ECF No. 29 at 4 ¶ 4 (quoting same journal in response to government’s motion 

to dismiss). Finally, Gault cites the VA’s clinical guidelines as establishing a 

relevant duty of care. SAC at 9 ¶ 1.A (“Providers need to assist [bipolar] patients in 

keeping regular routines (e.g., bed times, wake times, exercise) and minimizing the 

impact of events that could disrupt their moods and daily/nightly stability.”

(emphasis removed)).

In short, the Second Amended Complaint plainly shows that—in order to 

prove negligence here—Gault will need to establish that the VA nurses’ conduct fell 

short of a professional standard of care when they failed to give Gault a different 

place to sleep during his manic episode. And he will need to present expert testimony 

to do so. For these reasons, Gault’s claim is for medical malpractice and not NIED.

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II. MEDICAL MALPRACTICE THEORY

In my earlier order, I already concluded that Florida’s 4-year statute of repose 

has time-barred any medical malpractice claim arising from Gault’s allegations in 

this case. ECF No. 25 at 2-3. As a result, I concluded that I lack subject-matter 

jurisdiction over any such claim. Id. at 3.

In response to the government’s latest motion to dismiss, Gault now says the 

statute of repose should have been tolled during the 6 months the FTCA barred him 

from suing after filing his administrative claim. See ECF No. 29 at 12-15; see also

28 U.S.C. § 2675(a) (permitting filing of FTCA suit only after federal agency has 

“finally denied” administrative claim and, at claimant’s option, deeming 

administrative claim finally denied if agency fails to act within 6 months). Gault’s 

claim was less than a month late. Compare ECF No. 1 (reflecting filing date of May 

22, 2020), with SAC at 3-6 ¶¶ 6-20 (alleging events occurring on May 6 and 7, 2016). 

So the tolling he proposes would render his claim timely.

Statutes of repose—which have different purposes and objectives than statutes 

of limitation—“generally may not be tolled, even in cases of extraordinary 

circumstances beyond a plaintiff’s control.” CTS Corp. v. Waldburger, 573 U.S. 1, 

9 (2014) (“Statutes of repose effect a legislative judgment that a defendant should 

‘be free from liability after the legislatively determined period of time.’” (quoting 

54 C.J.S., Limitations of Actions § 7, p. 24 (2010))). There is no reason to believe 

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Florida’s medical-malpractice statute of repose is an exception. Cf. Univ. of Miami 

v. Bogorff, 583 So. 2d 1000, 1003 (Fla. 1991) (“Even if there were fraudulent 

concealment by Dr. Koch, however, we find the Bogorffs’ complaint against Koch 

and the University of Miami barred by the repose period . . . .”); Kush v. Lloyd, 616 

So. 2d 415, 421 (Fla. 1992) (“Because its application has the potential . . . of barring 

a cause of action before it accrues, Florida has enacted few statutes of repose. 

However, the medical malpractice statute of repose represents a legislative 

determination that there must be an outer limit beyond which medical malpractice 

suits may not be instituted.”).

Some courts have held that the FTCA preempts Florida’s medical-malpractice

statute of repose, see, e.g., Huntoon v. United States, 2017 WL 11500195, at *3

(N.D. Fla. Sep. 23, 2017) (applying Wiersum v. U.S. Bank, N.A., 785 F.3d 483 (11th 

Cir. 2015), to find statute of repose conflict-preempted because it encourages

plaintiffs to “rush[] in to court” before agency review is complete, thereby 

“hinder[ing] important purposes underlying the FTCA”), but I find that position

unpersuasive. Gault could have complied with both statutes, even after allowing the 

administrative review process to run its course6—so the two don’t conflict. More 

6 As the government points out, Gault had over 18 months during the repose 

period in which the FTCA permitted him to file suit, including “over 75 days after 

the VA denied his claim.” ECF No. 36 at 4 ¶¶ 11-12.

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importantly, the FTCA neither expressly nor impliedly preempts state statutes of 

repose; instead, it expressly incorporates state substantive law. Augutis v. United 

States, 732 F.3d 749, 754 (7th Cir. 2013) (first citing 28 U.S.C. § 1346(b); and then 

citing Molzof v. United States, 502 U.S. 301, 305 (1992) (“[T]he extent of the United 

States’ liability under the FTCA is generally determined by reference to state law.”)).

At bottom, Gault had the same 4-year repose period during which to sue as 

any plaintiff suing a private defendant. To permit tolling here would allow Gault 

more time than a private plaintiff has—something contrary to what the FTCA 

provides: a cause of action against the government in situations “where the United 

States, if a private person, would be liable to the claimant in accordance with the law 

of the place where the act or omission occurred.” § 1346(b)(1); cf. also Benjamin v. 

U.S. Dep’t of Just., 2022 WL 1567768, at *2 (11th Cir. May 18, 2022) (per curiam)

(“Under the FTCA, the United States is subject to liability in a tort action in the same 

manner, and to the same extent, that a private individual would be under the law of 

the place where the tort occurred.” (emphasis added)). Gault offers no convincing 

argument (or persuasive authority) that the court should do so.

I therefore conclude, as before, that Gault’s medical malpractice claim istimebarred by Florida’s statute of repose, such that the court lacks subject-matter 

jurisdiction over his complaint. Further, because amendment would be futile—under

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the pleaded facts, Gault can only plausibly state a claim for medical malpractice—

his complaint must be dismissed without leave to amend.

CONCLUSION

The government’s motion to dismiss (ECF No. 28) is GRANTED, and Gault’s

Second Amended Complaint (ECF No. 26) is DISMISSED without leave to amend.

The clerk will enter judgment that says, “This case is dismissed for lack of subjectmatter jurisdiction.” The clerk will then close the file.

SO ORDERED on August 23, 2022.

s/ Allen Winsor

United States District Judge

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