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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-GRJ

UNITED STATES OF AMERICA,

Defendant.

_______________________________/

ORDER GRANTING MOTION TO DISMISS

This is a Federal Tort Claims Act case. The plaintiff, Russell Gault, alleges 

that he checked himself in to a VA hospital to address an “elevated mood episode” 

related to his bipolar disorder. See ECF No. 5 (“FAC”) at 6, 12. The facts—accepted 

at this point as true—are from Gault’s amended complaint.

Unable to sleep, Gault asked the nurse to increase his room temperature, but 

the nurse responded by lowering it. Id at 6. When Gault asked again, the nurse raised 

the temperature “significantly,” rendering the room “uninhabitable.” Id. at 6, 11. 

Gault asked them to move him to a different room, but nurses refused, mocking him 

instead. Id. at 11. Because Gault could not sleep, his mood episode worsened, and 

he “began shouting uncontrollably.” Id. at 12. Some seventeen hours after Gault 

arrived, nurses offered him a seclusion room. Id. By that point, Gault’s mood episode 

had worsened to the point that he was “shouting[] and banging on the walls.” Id.

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After Gault finally lied down, the nurses entered the seclusion room and injected 

him with sedatives. Id.

Gault filed an FTCA administrative claim, seeking damages for emotional 

distress that flowed from how he was treated. Id. at 9. The administrative claim was 

rejected, and Gault filed this suit. ECF No. 1 at 1. The government moved to dismiss 

for lack of subject-matter jurisdiction and failure to state a claim. ECF No. 12 at 2, 

5.

The magistrate judge issued a report and recommendation, concluding the 

court should dismiss on the merits. I have reviewed that report and recommendation, 

and I have considered de novo the issues Gault raised in his objections. ECF Nos. 

23, 24. I conclude the court lacks jurisdiction to consider any medical malpractice 

claim and that Gault should be given another opportunity to plead a claim for 

negligent infliction of emotional distress.

First, before proceeding to the merits, I must determine the issue of subjectmatter jurisdiction. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 

(1998) (noting that courts may not “assume[e]” jurisdiction to reach a “merits 

question [that] is more readily resolved,” even when “the prevailing party on the 

merits would be the same as the prevailing party were jurisdiction declined”).

Under the FTCA, individuals can sue the United States only to the extent “a 

private person . . . would be liable in the law of the place where the act or omission 

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occurred.” 28 U.S.C. § 1346(b)(1). Thus, this court only has subject-matter 

jurisdiction over any claims Gault could have brought against a private person under 

Florida law. See Ochran v. United States, 273 F.3d 1315, 1317 (11th Cir. 2001) 

(“[U]nless the facts support liability under state law, the district court lacks subject 

matter jurisdiction to decide an FTCA claim.”).

Here, § 95.11(4)(b) substantively limits the scope of a medical malpractice 

claim. That provision is not a “statute of limitation” but a “statute of repose.” See 

Merkle v. Robinson, 737 So. 2d 540, 542 n.6 (Fla. 1999). A statute of repose is a 

“substantive statute” that “provides a substantive right to be free from liability after 

the established time period.” Houck Corp. v. New River, Ltd., Pasco, 900 So. 2d 601, 

603 (Fla. 2d DCA 2005) (citation omitted); cf. also Bryant v. United States, 768 F.3d 

1378, 1382 (11th Cir. 2014) (North Carolina statute of repose was a “substantive 

limit on a plaintiff’s right to file an action” that precluded FTCA recovery). Because 

§ 95.11(4)(b) limits the scope of a Florida medical malpractice claim, Gault is timebarred. The court thus lacks subject-matter jurisdiction over his claims, to the extent 

they are medical-malpractice claims.

On the merits, the magistrate judge determined that Gault had not alleged facts 

that would support a medical malpractice claim. Given my decision on jurisdiction, 

I need not address that issue. See Citizens for a Better Env’t, 523 U.S. at 94.

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The magistrate judge also liberally construed the complaint to assert other tort 

claims, including intentional or negligent infliction of emotional distress. See

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (noting that pro se 

complaints should be liberally construed). Those do not have the same subjectmatter-jurisdiction problem the malpractice claims would have, because the same 

four-year statute of repose does not apply. See § 95.11(3); see also Phillips v. United 

States, 260 F.3d 1316, 1318 (11th Cir. 2001) (holding state statutes of limitations 

inapplicable in FTCA suits).

The report and recommendation concluded that there are no facts to support 

intentional infliction of emotional distress, and I agree. It further concluded that there 

are no facts to support negligent infliction of emotional distress because Gault’s 

emotional trauma caused him no physical injury. ECF No. 23 at 13. But Florida law 

does not always require such an injury. 

“If the plaintiff has suffered an impact, Florida courts permit recovery 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). “The essence of impact . . . is that [an] outside force or 

substance, no matter how large or small, visible or invisible, and no matter that the 

effects are not immediately deleterious, touch or enter the plaintiff’s body.” Zell v. 

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Meek, 665 So. 2d 1048, 1050 n.1 (Fla. 1995) (quoting Eagle-Picher., 481 So. 2d at 

527)); see also id. (noting that “rather slight” impact is sufficient).

To recover under an impact theory, the plaintiff need not allege that all his 

emotional distress stemmed from an impact; however, the impact must contribute to 

the distress in some way. In Willis v. Gami Golden Glades, LLC, the plaintiff was 

robbed in a parking lot after a hotel security guard told her to park there. 967 So. 2d 

846, 848 (Fla. 2007). The robber held a gun to the plaintiff’s head and patted her 

down, apparently searching for money. Id. at 850. The Florida Supreme court held 

that the robber’s conduct constituted an “impact” for purposes of the NIED claim, 

but it did not require that all emotional distress stem from that impact, rather than 

the robbery as a whole. Id. at 851; cf. Eagle-Picher, 481 So. 2d at 527 (explaining 

that an impact allows recovery for emotional distress “stemming from the incident 

during which the impact occurred, and not merely the impact itself”). On the other 

hand, a woman who suffered a heart attack after being trapped in an elevator and 

jumping to escape could only recover for NIED against the property owner if the 

jump impact, not just her fear of being trapped, at least partially caused her emotional 

distress. See Arditi v. Grove Isle Ass’n, Inc., 905 So. 2d 151, 153 (Fla. 3d DCA 

2004).

Here, Gault alleges that VA staff injected him with sedatives after negligently 

exacerbating his mental illness. FAC at 12. A needle jab may be sufficient to 

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constitute an impact, but the impact may not be linked closely enough to Gault’s 

emotional distress to state a claim. At this point, he has not alleged sufficient facts

to show that the needle jab contributed to his emotional distress, so the motion to 

dismiss will be granted. But I cannot say that any amendment would be futile, so I 

will grant Gault’s request for leave to amend.

The motion to dismiss (ECF No. 12) is GRANTED. Gault’s claims are 

dismissed for lack of subject matter jurisdiction to the extent they are medical 

malpractice claims. Gault’s ordinary negligence claims are dismissed for failure to 

state a claim. Gault has 14 days to file a Second Amended Complaint presenting 

ordinary negligence claims (but not any medical malpractice claims). If he does not 

timely amend, the case will be dismissed without further notice.

The magistrate judge’s report and recommendation (ECF No. 23) is approved 

in part. It is adopted to the extent not inconsistent with this order. The magistrate 

judge will conduct further appropriate proceedings. 

SO ORDERED on September 9, 2021.

s/ Allen Winsor

United States District Judge

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