                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 11a0696n.06

                                               Case No. 09-6308                                          FILED

                              UNITED STATES COURT OF APPEALS
                                                                                                   Sep 30, 2011
                                   FOR THE SIXTH CIRCUIT                                    LEONARD GREEN, Clerk

 MICHAEL GARDNER,                                             )
                                                              )
            Plaintiff-Appellant,                              )
                                                              )        ON APPEAL FROM THE
                   v.                                         )        UNITED STATES DISTRICT
                                                              )        COURT FOR THE MIDDLE
 UNITED STATES OF AMERICA,                                    )        DISTRICT OF TENNESSEE
                                                              )
            Defendant-Appellee.                               )
                                                              )
 _________________________________                            )

BEFORE: BOGGS and CLAY, Circuit Judges; and TARNOW,* Senior District Judge.

        TARNOW, Senior District Judge. Plaintiff-Appellant Michael Gardner filed suit under

the Federal Tort Claims Act (hereinafter “FTCA”), 28 U.S.C. §1346, 2671, et seq., against

Defendant-Appellee United States, alleging that due to the negligence of the government, through

its employees, in failing to treat his condition, he suffered from an impaired mental state that caused

him to be charged with aggravated assault and sentenced to a term of incarceration. The United

States filed a motion to dismiss, which the district court granted. Gardner now appeals. Gardner

also filed a motion asking us to certify two questions of state law to the Tennessee Supreme Court.

For the reasons that follow, we AFFIRM the district court’s dismissal of Gardner’s complaint and

DENY the motion for certification.




        *
           The Honorable Arthur J. Tarnow, Senior United States District Judge for the Eastern District of Michigan,
sitting by designation.
No. 09-6308
United States v. Gardner

                                       I. BACKGROUND

       On October 7, 2003, Gardner entered a Veterans Affairs hospital in Murfreesboro, Tennessee

with a shotgun and other firearms and opened fire on employees. Gardner was charged on

November 10, 2003 in a nine-count criminal complaint with three counts of attempting to kill an

employee of the United States, four counts of forcibly assaulting and intimidating an employee of

the United States, one count of using, carrying, and discharging a firearm during and in relation to

a violent crime, and one count of knowingly possessing a firearm in a federal facility, with intent to

use it in the commission of a crime.

       On December 10, 2004, Gardner pled guilty to aggravated assault under 18 U.S.C. §111. He

was sentenced in February 2005 to eight of years imprisonment, three years of supervised release,

and a $100 special assessment.

       On December 21, 2006, Gardner filed this suit under the FTCA in federal district court in

Tennessee against the United States, alleging that government employees were negligent in treating

him between July 2002 and October 2003. He states that due to this negligent treatment:

       Gardner became suicidal, dangerous and, left untreated, acted violently resulting in
       conviction and imprisonment. Specifically, Defendant’s employees/agents were
       negligent in failing to timely diagnose, manage and treat Michael Gardner for his
       depression and mental instability, which resulted in pain and suffering, emotional
       distress, permanent impairment, suicidal thoughts, impaired memory, a major
       depressive disorder, acute stress disorder and disassociative amnesia. As a direct and
       proximate result of the above negligent acts, negligent omissions, negligent medical
       treatment and/or medical malpractice by the Defendant’s, agents, employees and/or
       servants, Plaintiff Michael Gardner suffered a complete mental breakdown causing
       him to be charged with aggravated assault and sentenced to federal incarceration for
       eight (8) years.



                                                  2
No. 09-6308
United States v. Gardner

Compl. at 2. The complaint sought “damages resulting from the negligent treatment . . ., including

pain, suffering, mental anguish, loss of enjoyment of life, loss of earning capacity, and loss of

liberty” and requested a two-million-dollar judgment. Id. at 3.

          Gardner subsequently moved to file an amended complaint, which the district court permitted

over the government’s opposition. The amended complaint added one paragraph to the original

complaint, specifically including an allegation that Gardner was insane when he committed the

aggravated assault for which he had pled guilty. The added paragraph states:

          Plaintiff alleges that he was not of sound mind, had suffered a complete mental
          breakdown, was insane and not capable of appreciating the differences between right
          and wrong at the time he committed the acts as alleged in the criminal proceedings
          for which he was charged and pleaded guilty resulting in his sentencing to a federal
          prison. Plaintiff Michael Gardner’s impaired mental condition was the proximate
          result of the negligence of the United States, through its employee(s) in failing to
          treat him for his emotional and mental disorders in accordance with the recognized
          standards of professional practice.

Am. Compl. at 2.

          The government moved to dismiss the amended complaint on August 15, 2007, arguing that

Gardner’s claims were barred by collateral estoppel and, citing to various cases including Moss v.

Mid-South Hospital, 1989 WL 134666 (Tenn. Ct. App. 1989) (unpublished), Tennessee public

policy.

          Gardner argued in response that collateral estoppel did not apply. Noting that Moss was

unpublished, Gardner also filed a motion to certify to the Tennessee Supreme Court the question:

“Whether under Tennessee law a Plaintiff may bring a medical malpractice case based upon

psychiatric malpractice where it is alleged that as a result of a mental healthcare provider’s


                                                   3
No. 09-6308
United States v. Gardner

psychiatric malpractice the Plaintiff committed, while of unsound mind and insane, criminal acts

which resulted in incarceration.” Mot. for Certification of Questions of State Law to Tenn. Sup. Ct.

at 1. Gardner’s certification motion maintained that an Illinois Court of Appeals case, Boruschewitz

v. Kirts, 197 Ill. App. 3d 619 (Ct. App. 1990), cited Moss but did not follow its holding and that the

Tennessee Supreme Court had not ever reached the issue addressed in Moss.

       On April 7, 2008, the district court denied the certification motion without any explanation,

stating only that the motion was reviewed and was being denied.

       On September 30, 2009, the district court granted the government’s motion to dismiss.

Although the district court cited Moss in its order, it did not rely on Tennessee public policy as a

ground for dismissing the amended complaint. Rather, it concluded that collateral estoppel barred

Gardner’s claims. The court observed that Gardner had pled guilty to aggravated assault under 18

U.S.C. §111 and found that he “had a full and fair opportunity to litigate the issue of his mental

state”; therefore, he could not now claim insanity at the time of his criminal acts and “prove that the

medical malpractice was the proximate cause of his harm alleged: his incarceration for aggravated

assault.” Order and Mem. Op. Granting Summ. J. at 5.

       Gardner now appeals. Additionally, he moves this Court to certify two questions of state law

to the Tennessee Supreme Court, including the question he had previously asked the district court

to certify, as well as the question of whether collateral estoppel bars his claims under Tennessee law.




                                                  4
No. 09-6308
United States v. Gardner

                                         II. DISCUSSION

       A. Standard of Review

       This court “review[s] de novo the district court’s ruling on a motion to dismiss a claim.”

Jones v. City of Cincinnati, 521 F.3d 555, 559 (6th Cir. 2008). In order to defeat a motion to

dismiss, a party’s:

       complaint must contain either direct or inferential allegations respecting all material
       elements to sustain a recovery under some viable legal theory. We need not accept
       as true legal conclusions or unwarranted factual inferences, and conclusory
       allegations or legal conclusions masquerading as factual allegations will not suffice.
       [T]he complaint’s [f]actual allegations must be enough to raise a right to relief above
       the speculative level, and state a claim to relief that is plausible on its face.

Terry v. Tyson Farms, Inc., 604 F.3d 272, 275-76 (6th Cir. 2010) (citations and internal quotation

marks omitted). Moreover,:

       In determining whether to grant a Rule 12(b)(6) motion, the court primarily considers
       the allegations in the complaint, although matters of public record, orders, items
       appearing in the record of the case, and exhibits attached to the complaint, also may
       be taken into account. This circuit has further held that documents that a defendant
       attaches to a motion to dismiss are considered part of the pleadings if they are
       referred to in the plaintiff’s complaint and are central to her claim.

Amini v. Oberlin College, 259 F.3d 493, 502 (6th Cir. 2001) (citations, internal quotation marks, and

emphasis omitted).

       Additionally, “[t]he availability of collateral estoppel is a mixed question of law and fact

which this court reviews de novo.” Hammer v. INS, 195 F.3d 836, 840 (6th Cir. 1999).

       Finally, “[i]t is an established principle of law that a reviewing court can sustain the judgment

of a lower court on any ground that finds support in the record[,]” United States v. Anderson County,



                                                  5
No. 09-6308
United States v. Gardner

761 F.2d 1169, 1174-1175 (6th Cir. 1985), “including grounds not relied upon by the district court.”

Hensley Mfg. v. ProPride, Inc., 579 F.3d 603, 609 (6th Cir. 2009).

        B. Discussion

                1. FTCA

        Gardner filed this suit under the FTCA, which grants federal district courts jurisdiction over

civil actions seeking money damages against the United States for personal injury caused by

negligence of government employees acting within the scope of their employment “if 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(b)(1); see also Massachusetts Bonding & Ins. Co. v. United

States, 352 U.S. 128 (1956). Here, the underlying acts occurred in Tennessee; thus, its substantive

law controls. Under Tennessee law, “a plaintiff bringing a negligence action must prove: (1) a duty

of care owed by the defendant to the plaintiff; (2) conduct falling below the applicable standard of

care amounting to a breach of that duty; (3) an injury or loss; (4) causation in fact; and (5) proximate,

or legal cause.” Kellner v. Budget Car & Truck Rental, Inc., 359 F.3d 399, 403 (6th Cir. 2004)

(citations and internal quotation marks omitted).




                                                   6
No. 09-6308
United States v. Gardner

        While state law guides the underlying negligence claim, the parties do not dispute that federal

law controls the question of whether collateral estoppel bars this action.1 See Resp. to Certification

Mot. at 4; Reply to Certification Mot. at 2.

                2. Collateral Estoppel

        Collateral estoppel applies to a federal court’s decision if:

        (1) the precise issue raised in the present case must have been raised and actually
        litigated in the prior proceeding; (2) determination of the issue must have been
        necessary to the outcome of the prior proceeding; (3) the prior proceeding must have
        resulted in a final judgment on the merits; and (4) the party against whom estoppel
        is sought must have had a full and fair opportunity to litigate the issue in the prior
        proceeding.

Smith v. SEC, 129 F.3d. 356, 362 (6th Cir. 1997).

        Furthermore, “[n]o rule of law precludes a prior criminal conviction from having preclusive

effect in a subsequent civil proceeding between the government and the defendant.” Beaty, 245 F.3d

at 624. “A guilty plea is as much a conviction as a conviction following [a] jury trial.” Gray v.

Comm’r, 708 F.2d 243, 246 (6th Cir. 1983) (affirming lower court’s ruling that collateral estoppel

barred plaintiff’s complaint and observing that “[n]umerous federal courts have held that a

conviction for federal income tax evasion, either upon a plea of guilty, or upon a jury verdict of guilt,



        1
          In discussing the elements of the collateral estoppel doctrine, the district court referred to
the elements set forth in United States. v. Beaty, 245 F.3d 617, 624 (6th Cir. 2001) and also cited to
Allen v. McCurry, 449 U.S. 90, 94 (1980). Thus, federal law was considered. Although the Fifth
Circuit has concluded that federal collateral estoppel rules apply to FTCA claims, this Court has not
resolved the issue, although at least one district court in this Circuit has concluded that federal law
applies. See Donohue v. United States, 2006 WL 2990387 at *4 (S.D. Ohio 2006) (citing to Johnson
v. United States, 576 F.2d 606 (5th Cir. 1978)). Nevertheless, since the parties do not dispute the
issue, we assume that federal rather than state law controls.

                                                   7
No. 09-6308
United States v. Gardner

conclusively establishes fraud in a subsequent civil tax fraud proceeding through application of the

doctrine of collateral estoppel.”)

                        a. Gardner’s failed arguments

        Gardner argues on appeal that the district court erred in granting the motion to dismiss based

on collateral estoppel. He maintains that the district court’s “implied reasoning process appears to

have been that pleading guilty to a crime of intent somehow foreclosed proof of causation with

respect to the VA’s prior negligent treatment.” Br. of Appellant at 11. According to Gardner,

Tennessee law does not foreclose a psychiatric malpractice action simply because a person pleads

guilty to a crime or commits an intentional act. In support of this argument, Gardner cites a line of

Tennessee state cases involving situations where individuals committed suicide and suits were then

brought against care providers.2

        Gardner’s “suicide” argument (and the cases offered in support) was never raised below and

is therefore forfeited. See United States v. Ninety-Three Firearms, 330 F.3d 414, 424 (6th Cir. 2003)

(“This court has repeatedly held that it will not consider arguments raised for the first time on appeal

unless our failure to consider the issue will result in a plain miscarriage of justice”) (citation and

internal quotation marks omitted). However, irrespective of forfeiture, Gardner’s argument lacks

merit, as the cited cases specifically involve the intentional act of suicide (which is not illegal under



        2
         See Stewart v. Fakhruddin, 2010 WL 2134150 (Tenn. Ct. App. 2010); White v. Lawrence,
975 S.W.2d 525 (Tenn. 1998); Drake v. Williams, 2008 Tenn. App. LEXIS 240 (Ct. App. 2008).
Gardner also cites to Rains v. Bend of the River, 124 S.W.3d 580 (Tenn. Ct. App. 2003), where the
parents of a man who committed suicide brought suit against the seller of the ammunition used by
the decedent.

                                                   8
No. 09-6308
United States v. Gardner

Tennessee law, despite Gardner’s claims—without citation—to the contrary3) and were suits

resulting from failure to provide proper medical care. None of those cases involve an individual who

waived an insanity defense, plead guilty to a general intent crime in federal court, and then brought

suit against their medical provider claiming the provider’s negligence made them insane and caused

them to commit the crime.4 Those cases do not even discuss the issue of collateral estoppel.

       Gardner also contends that, when he pled guilty, he never conceded that improper medical

care was not a factor in his criminal acts and thus this issue, which is the gravamen of this suit, was

never actually litigated. His state of mind, in his view, “is irrelevant” to his civil action. However,

this argument misses the mark, as Gardner’s entire complaint is premised on a claim of negligent

treatment that resulted in his becoming insane and then committing the underlying offenses. Indeed,

Gardner amended his complaint to include the allegation that he was insane when he committed

aggravated assault. In such a suit, the fact finder would thus have to evaluate his state of mind.

       Gardner further directs the court to an Illinois state-court decision, Talarico v. Dunlap, 177

Ill. 2d 185 (1997), and a Kentucky state-court decision, Gossage v. Roberts, 904 S.W.2d 246 (Ky.

1995), maintaining that those cases support a holding that collateral estoppel does not bar the claims




       3
        Assisting someone in suicide is a crime under Tennessee law. See Tenn. Code Ann. §
39-13-216. An individual is also permitted to use force to prevent a suicide. Tenn. Code Ann. §
39-11-613. However, the act itself is not illegal.
       4
          Gardner also cites Turner v. Jordan, 957 S.W.2d 815 (Tenn. 1997) but that case has no
bearing on the instant matter. Collateral estoppel and the public policy issues raised in the instant
matter were not discussed. The case also involved a suit against a psychiatrist by a victim of an
attack, not a situation where the attacker was suing the psychiatrist.

                                                  9
No. 09-6308
United States v. Gardner

at issue here. Gardner’s reliance on these cases is misplaced, as both are state-law cases that do not

determine what federal law is regarding collateral estoppel.

                        b. Gardner’s differing standards argument

        Gardner additionally argues that since the test for establishing insanity in civil cases in

Tennessee differs from the test for proving insanity in federal criminal proceedings, the issue of

insanity being litigated in this matter is unlike what was addressed in the prior proceedings and

collateral estoppel would therefore not apply. The government argued before the district court that

the test for insanity is the same in both the criminal and civil contexts.

        The district court found that Gardner pled guilty in his criminal case to aggravated assault

under 18 U.S.C. §111, which is a general-intent crime that “requires only that a defendant intend to

do the act that the law proscribes.” United States v. Kimes, 246 F.3d 800, 806 (6th Cir. 2001)

(citation and internal quotation marks omitted). Gardner acknowledged that he was pleading guilty

because he was guilty and that he was “entering into this plea after being advised of and

understanding the potential for raising defenses and seeking sentencing departures based upon

mental health issues[.]” Tr. of Plea Hr’g Ex. 2, Dec. 10, 2004, at 14 (emphasis added). The district

court found that “[b]ecause Plaintiff cannot relitigate the question of his intent, he cannot now assert

that medical malpractice resulted in a complete mental breakdown– rendering him insane and

therefore devoid of intention– at the time of the criminal acts.” Order and Mem. Granting Summ.

J. at 5 (emphasis added).




                                                  10
No. 09-6308
United States v. Gardner

       We hold that the district court was correct that the issue of intent, for purposes of the instant

action, was already determined by Gardner’s guilty plea in his criminal case. Gardner, by his plea,

admitted he intended to do the act of aggravated assault. He cannot now deny that in this action.5

       Under federal law, insanity is an affirmative defense that may be raised in a criminal case.

18 U.S.C. §17 states: “It is an affirmative defense to a prosecution under any Federal statute that, at

the time of the commission of the acts constituting the offense, the defendant, as a result of a severe

mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his

acts. Mental disease or defect does not otherwise constitute a defense.” The defendant must prove

this defense by “clear and convincing evidence.” Id. Gardner waived this insanity defense in his

criminal case and pled guilty, thus conceding that he was not insane under the federal standard at the

time he committed his crime. Therefore, Gardner cannot now claim in his civil suit that, under the

federal insanity standard, he actually was insane at the time he committed the act.

       Accordingly, if the Tennessee standard for establishing insanity in civil cases contained the

same elements and required the same standard of proof as the federal standard, then collateral

estoppel, as the district court found, would bar Gardner’s suit.

       On the other hand, if Gardner were correct that the elements and standard of proof for

establishing insanity differ in the civil negligence context from the criminal context, his guilty plea

would not foreclose his ability to raise issues in this action regarding his mental state under

Tennessee law. A finding that he was insane under a state standard for insanity that differed from


       5
         Proof of his plea regarding his acts would be admissible in a trial in civil suit. See Fed. R.
Evid. 803(22).

                                                  11
No. 09-6308
United States v. Gardner

the federal standard (in that the elements differ and the standard of proof differ) would not conflict

with a conclusion in the negligence action that he intended to commit the act of aggravated assault,

which was necessary element. Such a finding would not negate his intent. See United States v.

Allen, 449 F.3d 1121, 1125 (10th Cir. 2006) (“insanity is, as the statute expressly says, an affirmative

defense. The fundamental concept of an affirmative defense is that it does not negate an element of

the adversary’s case.”); see also United States v. Vela, 624 F.3d 1148, 1156 n.11 (9th Cir. 2010)

(“We are satisfied that a jury could reasonably find that an insane person had a specific intent to

commit a crime and yet was unable to appreciate the nature and quality or the wrongfulness of his

acts”) (citation and internal quotation marks omitted); United States v. Gonyea, 140 F.3d 649, 651

(6th Cir. 1998) (“insanity is a defense to all crimes, regardless of whether they require general or

specific intent”); United States v. Willis, 1999 U.S. App. LEXIS 18298 at *18 (6th Cir. 1999)

(unpublished) (“We think it is important to distinguish between the use of psychological testimony

to negate an element of the crime and the use of such testimony as an affirmative defense to the

crime.”)

        It is ultimately unnecessary for this Court to resolve the parties’ dispute as to what the proper

elements and standard of proof are under Tennessee law for establishing insanity in a Tennessee civil

negligence action, as the district court’s ruling may be affirmed on grounds other than collateral

estoppel.




                                                   12
No. 09-6308
United States v. Gardner

                3. Public Policy

        Although the government argued before the district court that Tennessee public policy barred

Gardner’s claims, that court did not reach a decision on the issue. However, this ground also

supports the dismissal of the suit.

        In Moss, 1989 WL 134666, an individual convicted of murder filed a negligence action

against medical providers alleging that, as a result of their negligent treatment, he suffered from

mental illness and committed murder. The Tennessee Court of Appeals observed: “According to

our research, this is the first time a Tennessee appellate court has had an opportunity to address the

issue of whether a mental health care provider is subject to liability for injury to a former patient

caused by the former patient’s conviction of a crime. Very few courts throughout this country have

addressed this issue.” Id. at *2. The court went on to hold that Tennessee recognizes the general

rule:

        that a person cannot maintain an action if, in order to establish his cause of action,
        he must rely, in whole or in part, on an illegal or immoral act or transaction to which
        he is a party, or to maintain a claim for damages based on his own wrong or caused
        by his own neglect, . . . or where he must base his cause of action, in whole or in part,
        on a violation by himself of the criminal or penal laws . . . .

Id. at *2 (citation omitted). Since the plaintiff was seeking recovery for an injury caused by his own

criminal acts, the court concluded “that it would be, plain and simply, wrong as a matter of public

policy to allow recovery.” Id. at *2 (citation and internal quotation marks omitted).

        The government argued before the district court that Moss barred this suit. In response,

Plaintiff relied on a decision from the Illinois Court of Appeals, Boruschewitz v. Kirts, 197 Ill. App.

3d 619 (Ct. App. 1990), where a plaintiff who plead guilty but mentally ill to murder brought suit

                                                   13
No. 09-6308
United States v. Gardner

against medical providers for negligent treatment that he alleged led him to commit his illegal act.

The court found that the suit did not violate Illinois public policy and allowed it to proceed.

       Gardner again cites Boruschewitz on appeal in support of his argument that Tennessee

public policy permits this suit. However, the Illinois Supreme Court’s decision that Illinois public

policy did not bar the suit before it has little relevance to what Tennessee public policy permits.6

       Gardner also argues on appeal that the line of cases cited above regarding suicide

demonstrates that public policy permits this suit. However, that argument was not raised below and

is therefore forfeited. Regardless of forfeiture, Gardner’s argument fails, as those cases do not even

discuss Tennessee public policy pertaining to recovering damages for one’s own criminal acts. As

addressed above, they involve suits by parties against medical providers following a suicide, whereas

this case involves a party who waived a federal insanity defense, pled guilty to committing a felony,

and is now attempting to recover damages based on claims that the negligence of medical providers

caused him to go insane and commit the acts.

       Although Moss is an unpublished case and is therefore not controlling, it still may serve as

persuasive authority. See Hood v. Keller, 229 F. App’x 393, 398 n.5 (6th Cir. 2007) (unpublished)

(unpublished decisions of this Court “may constitute persuasive authority especially where there are

no published decisions which will serve as well”) (citation and internal quotation marks omitted);

see also Eady v. Morgan, 515 F.3d 587, 601 (6th Cir. 2008). Its facts are analogous to those in the



       6
         Prior to oral argument, Gardner submitted supplemental authority in support of his public
policy argument. However, the Georgia Court of Appeals’ decision in Bruscato v. O’Brien, 307 Ga.
App. 452 (Ct. App. 2010) has no bearing on Tennessee law.

                                                 14
No. 09-6308
United States v. Gardner

instant suit. Gardner has not offered a sufficient reason why this Court should disregard Tennessee

public policy as enunciated in Moss and instead rely on out-of-state cases and a line of Tennessee

cases that does not address the public policy concerns raised in this matter.

       Tennessee public policy therefore bars Gardner’s complaint.

               4. Motion for Certification

       Finally, Gardner moves this Court to certify two questions to the Tennessee Supreme Court:

       1) Whether under Tennessee law a Plaintiff is collaterally estopped (by virtue of a
       guilty plea to criminal charges) from pursuing a medical malpractice case based upon
       psychiatric malpractice where it is alleged that as a result of a mental healthcare
       provider’s psychiatric malpractice the Plaintiff committed, while of unsound mind
       and insane, criminal acts which resulted in a voluntary guilty plea and incarceration.

       2) Whether under Tennessee law a Plaintiff may bring a medical malpractice case
       based upon psychiatric malpractice where it is alleged that as a result of a mental
       healthcare provider’s psychiatric malpractice the Plaintiff committed, while of
       unsound mind and insane, criminal acts which resulted in incarceration. Compare
       Moss v. Mid-South Hospital, 1989 WL 1934666 (Tenn. Ct. App. 1989) with
       Boruschewitz v. Kirts, 197 Ill. App. 3d 619 (Ct. App. 1990).

Br. of Appellant at 1.

       “As the certification of an issue of state law to a state supreme court is a matter of the district

court’s discretion, we review certification decisions for an abuse of discretion.” Murphy v. Owens-

Corning Fiberglas Corp., 1997 U.S. App. LEXIS 30530 at *10-11 (6th Cir. 1997) (international

citation omitted) (unpublished). This Court has found that “[c]ertification is most appropriate when

the question is new and state law is unsettled. As the Tenth Circuit has noted, however, the federal

courts generally will not trouble our sister state courts every time an arguably unsettled question of

state law comes across our desks. When we see a reasonably clear and principled course, we will


                                                   15
No. 09-6308
United States v. Gardner

seek to follow it ourselves.” Pennington v. State Farm Mut. Auto. Ins. Co., 553 F.3d 447, 450 (6th

Cir. 2009) (citations and internal quotation marks omitted).

       Gardner’s request for certification of the first question, which was not raised before the

district court, lacks merit since both parties agree that the issue of whether collateral estoppel bars

the claims at issue is a question of federal law. Appellant’s Mot. Reply at 2.

       The district court did not abuse its discretion in denying Gardner’s certification motion as

to the second question, where the only basis for certification Gardner offered was that the Tennessee

Court of Appeals’ decision in Moss was unpublished and the Illinois Court of Appeals in

Boruschewitz concluded that plaintiff’s suit was not barred by Illinois public policy. How the Illinois

state courts interpret Illinois law has no bearing on how a Tennessee state court interprets Tennessee

law.

       Gardner also makes additional arguments regarding certification not raised below.

Regardless of forfeiture, the arguments lack merit, as Gardner again relies on the line of “suicide

cases.” As already discussed, said cases are not relevant to the issue of whether this suit may

proceed. Gardner further maintains that Tenn. Sup. Ct. R. 23 permits certification when there is no

controlling precedent on an issue but, as discussed above, there is persuasive authority supporting

the conclusion that public policy bars this suit.

                                        III. CONCLUSION

       For the foregoing reasons, we AFFIRM the district court’s dismissal and DENY Gardner’s

certification motion.



                                                    16
No. 09-6308
United States v. Gardner

        CLAY, Circuit Judge, concurring in the judgment. While I join the lead opinion in the

conclusion that the district court did not err in dismissing Gardner’s claim under Rule 12(b)(6), I

write separately both to clarify the issue of whether Gardner’s Federal Tort claim is barred by the

doctrine of collateral estoppel, and because I believe that the better path to resolving the issues

presented in this case would be to find that Gardner has failed to plead a sufficient factual basis to

make a plausible showing of each element of his claims of failure to warn and psychiatric

malpractice under Tennessee law.1

        I.      Collateral Estoppel

                A.      Legal Framework

        A party to litigation is collaterally estopped from raising an issue when:

        (1)     the issue in the subsequent litigation is identical to that resolved in [an]
                earlier litigation,
        (2)     the issue was actually litigated and decided in the prior action,
        (3)     the resolution of the issue was necessary and essential to a judgment on the
                merits in the prior litigation,
        (4)     the party to be estopped was a party to the prior litigation (or in privity with
                such a party), and
        (5)     the party to be estopped had a full and fair opportunity to litigate the issue.

Wolfe v. Perry, 412 F.3d 707, 716 (6th Cir. 2005).

        In addition to the considerations outlined above, “[i]n determining whether the defensive use

of collateral estoppel is appropriate, the court must also consider whether . . . it would be otherwise



        1
        Though the insufficiency of Gardner’s pleadings was not the district court’s primary basis
for dismissal under Rule 12(b)(6), this Court “may affirm the district court’s dismissal of a plaintiff’s
claims on any grounds, including grounds not relied upon by the district court.” Hensley Mfg. v.
ProPride, Inc., 579 F.3d 603, 609 (6th Cir. 2009).

                                                   17
unfair under the circumstances to permit the use of collateral estoppel.” Cobbins v. Tennessee Dept.

of Transp., 566 F.3d 582, 590 (6th Cir. 2009).

       We have held that collateral estoppel can be applied when the prior suit is criminal and the

subsequent suit civil, as long as the issues presented are identical. See United States v. Beaty, 245

F.3d 617, 624 (6th Cir. 2001) (“No rule of law precludes a prior criminal conviction from having

preclusive effect in a subsequent civil proceeding between the government and the defendant.”); see

also Emich Motors Corp. v. General Motors Corp., 340 U.S. 558, 568 (1951) (“It is well established

that a prior criminal conviction may work an estoppel in favor of the Government in a subsequent

civil proceeding.”)

               B.      Elements of Plaintiff’s Criminal Conviction and Civil Suit

       Gardner was convicted, by way of guilty plea, of one count of forcibly assaulting and

intimidating an employee of the United States, in violation of 18 U.S.C. § 111. The statutory

elements of assaulting a federal employee are as follows:

       (a) In general.–Whoever–

               (1) forcibly assaults, resists, opposes, impedes, intimidates, or
               interferes with any person designated in section 1114 of this title
               while engaged in or on account of the performance of official duties;
       ...

       shall . . . where such acts involve physical contact with the victim of that assault or
       the intent to commit another felony, be fined under this title or imprisoned not more
       than 8 years, or both.

       (b) Enhanced penalty.–Whoever, in the commission of any acts described in
       subsection (a), uses a deadly or dangerous weapon (including a weapon intended to
       cause death or danger but that fails to do so by reason of a defective component) or
       inflicts bodily injury, shall be fined under this title or imprisoned not more than 20
       years, or both.

                                                 18
18 U.S.C. § 111.

        Therefore, “Section 111(a)(1) contains four distinct elements; the government must show that

the defendant: (1) forcibly (2) assaulted, resisted, opposed, impeded, intimidated, or interfered with

(3) a federal officer (4) in the performance of his duties.” United States v. Kimes, 246 F.3d 800, 807

(6th Cir. 2001). “The element of force necessary for a conviction under this statute may be shown

by ‘such a threat or display of physical aggression toward the officer as to inspire fear of pain, bodily

harm, or death.’” United States v. Chambers, 195 F.3d 274, 277 (6th Cir. 1999) (quoting United

States v. Street, 66 F.3d 969, 977 (8th Cir. 1995)).

        We have held that assaulting a federal officer, as defined in 18 U.S.C. § 111, is a general

intent crime. See Kimes, 246 F.3d at 808. “Even to show general intent, however, ‘the Government

must prove beyond a reasonable doubt that the defendant knowingly, consciously, and voluntarily

committed an act which the law makes a crime.’” Id. at 807 (quoting United States v. Kleinbart, 27

F.3d 586, 592 (D.C. Cir. 1994)).

        Because Gardner brought his civil suit under the Federal Tort Claims Act, this Court looks

to the substantive law of the state where the alleged claim arose to determine the standard for

liability. See Premo v. United States, 599 F.3d 540, 545 (6th Cir. 2010). Tennessee has both a

statutory tort of failure to warn by a mental health professional, and a common law tort of psychiatric

medical malpractice. Under the statutory tort,

        IF AND ONLY IF

        (1) a service recipient has communicated to a qualified mental health professional or
        behavior analyst an actual threat of bodily harm against a clearly identified victim,
        AND


                                                   19
        (2) the professional, using the reasonable skill, knowledge, and care ordinarily
        possessed and exercised by the professional’s specialty under similar circumstances,
        has determined or reasonably should have determined that the service recipient has
        the apparent ability to commit such an act and is likely to carry out the threat unless
        prevented from doing so,

        THEN

        (3) the professional shall take reasonable care to predict, warn of, or take precautions
        to protect the identified victim from the service recipient’s violent behavior.

Tenn. Code Ann. § 33-3-206 (West 2010).

        Tennessee also has a common law tort of psychiatric negligence or psychiatric medical

malpractice. In order to present a prima facie case of psychiatric negligence, the plaintiff must show

“[1] a duty of care owed by the defendant to the plaintiff; [2] conduct falling below the applicable

standard of care that amounts to a breach of that duty; [3] an injury or loss; [4] cause in fact; and [5]

proximate cause.” McClung v. Delta Square Ltd. P’ship, 937 S.W.2d 891, 894 (Tenn. 1996).

        “The existence or nonexistence of a duty owed to the plaintiff by the defendant is a question

of law to be determined by the court.” Burroughs v. Magee, 118 S.W.3d 323, 327 (Tenn. 2003)

(citing Staples v. CBL & Associates, Inc., 15 S.W.3d 83, 89 (Tenn. 2000)). In addition to

determining whether a defendant “stands in some special relationship to either the person who is the

source of the danger, or to the person who is foreseeably at risk from the danger,” Turner v. Jordan,

957 S.W. 2d 815, 818 (Tenn. 1997), “considerations of public policy are also crucial in determining

the existence of . . . legal duty.” Bain v. Wells, 936 S.W.2d 618, 625 (Tenn. 1997).

        A showing of proximate cause and cause in fact require the following:

        Cause in fact refers to the cause and effect relationship between the defendant’s
        tortious conduct and the plaintiff’s injury or loss. Thus, cause in fact deals with the
        “but for” consequences of an act . . . . In contrast, proximate cause, or legal cause,

                                                   20
        concerns a determination of whether legal liability should be imposed where cause
        in fact has been established. Proximate or legal cause is a policy decision made by
        the legislature or the courts to deny liability for otherwise actionable conduct based
        on considerations of logic, common sense, policy, precedent and our more or less
        inadequately expressed ideas of what justice demands or of what is administratively
        possible and convenient.

Snyder v. LTG Lufttechnische GmbH, 955 S.W.2d 252, 256 n. 6 (Tenn.1997) (internal quotations

omitted). Therefore, in order to prove the fourth element of the medical malpractice tort, a plaintiff

must show that a defendant was the “but for” cause of the injury claimed, though under Tennessee

law the plaintiff need not show that the defendant was the sole cause of the injury. See White v.

Lawrence, 975 S.W.2d 525, 529 (Tenn. 1998); Smith v. Pfizer Inc., 688 F. Supp. 2d 735, 747 (M.D.

Tenn 2010). In order to demonstrate proximate cause, the plaintiff must show legal causation.

                C.      Analysis

        It is clear, upon analysis, that the issues presented in Gardner’s criminal conviction and his

civil litigation are not identical. Accordingly, collateral estoppel does not bar his current claim, and

the district court erred in concluding otherwise.

        In determining that Gardner was collaterally estopped from pursuing his medical malpractice

suit, the district court found that Gardner,

        admitted his intent to commit the assaults for which he was sentenced . . . . Through
        the plea, Plaintiff knowingly waived his right to go to trial to contest his intent and
        state of mind. The Court believes that Plaintiff had a fair and full opportunity to
        litigate the issue of his mental state . . . . Because Plaintiff cannot relitigate the
        question of his intent, he cannot now assert that medical malpractice resulted in a
        complete mental breakdown—rendering him insane and therefore devoid of
        intention—at the time of the criminal acts.

(R. 44: Dist. Ct. Op. at 5.)



                                                    21
       Though neither the district court nor the government make the point explicitly, the district

court’s collateral estoppel ruling is necessarily premised on the idea that the criminal adjudication

of Gardner’s “general intent” to commit assault is an issue that is identical to the “cause in fact”

element of the Tennessee common law psychiatric malpractice tort. The district court’s opinion also

relies on its understanding that Gardner would be required to prove that he was criminally insane at

the time of his crime, or at least that he did not “knowingly, consciously, and voluntarily” commit

the crime, in order to present a prima facie case of psychiatric malpractice.

       Under a pure statutory reading, the offense of assault on a federal officer and the tort of

psychiatric medical malpractice do not share common elements. On the contrary, neither the

statutory nor common law torts of medical negligence/malpractice require a showing of the patient’s

diminished capacity or intent. Nor does a finding that a patient intended to commit the harm for

which he brings suit preclude the finding of “but for” causation.

       Under Tennessee law, a patient or a third party may sustain a claim for psychiatric

malpractice, under the statute or common law, even when the patient commits an intentional

intervening act. See White, 975 S.W.2d at 530–31 (in psychiatric negligence case of patient who

committed suicide, holding that “[t]he fact that the deceased was not insane or bereft of reason” did

not preclude tort claim, and that a psychiatrist’s liability “may not be reduced by comparing his

negligent conduct with the decedent’s intentional act of committing suicide since the intentional act

was a foreseeable risk created by the defendant’s negligence”). Therefore, a criminal finding that

Gardner committed an intentional crime, or that he was not insane, does not preclude a claim of

psychiatric malpractice under Tennessee law.


                                                 22
        A finding that a patient intentionally committed an intervening act also does not preclude a

finding of proximate causation in this situation, because under Tennessee law “[a]n intervening act,

which is a normal response created by negligence, is not a superseding, intervening cause so as to

relieve the original wrongdoer of liability, provided the intervening act could have reasonably been

foreseen and the conduct was a substantial factor in bringing about the harm.” McClenahan v.

Cooley, 806 S.W.2d 767, 775 (Tenn. 1991), but see White, 975 S.W.2d at 530 (stating that an

intentional act “may constitute an intervening cause if it is a willful, calculated, and deliberate act

of one who has the power of choice,” but reserving determination for a jury).

        For these reasons, even if the government can show that Gardner actually litigated the issue

of his volition, sanity, or intent in the criminal case, the resolution of that issue is not implicated in

Gardner’s civil claims of medical negligence. Because a finding of general intent to commit a

criminal act does not preclude a finding of psychiatric negligence under Tennessee law, the issues

decided in Gardner’s criminal case are not identical to those raised in his civil suit, and the doctrine

of collateral estoppel cannot be properly applied.

        II.     Failure to State a Claim

                A.      Pleading Requirements

        We review a district court’s dismissal under Fed. R. Civ. P. 12(b)(6) de novo, “pursuant to

the same standards that should have been applied in the district court.” Fritz v. Charter Tp. of

Comstock, 592 F.3d 718, 722 (6th Cir. 2010). “For purposes of a motion for judgment on the

pleadings, all well-pleaded material allegations of the pleadings of the opposing party must be taken

as true, and the motion may be granted only if the moving party is nevertheless clearly entitled to


                                                   23
judgment.” JPMorgan Chase Bank, N.A. v. Winget, 510 F.3d 577, 581 (6th Cir. 2007) (internal

citations and quotation marks omitted).

        Because Gardner brought his claim under the Federal Tort Claims Act, 28 U.S.C. § 2674, his

pleadings are governed by Federal Rule of Civil Procedure 8, which requires Gardner’s complaint

to contain “a short and plain statement of the claim showing that the pleader is entitled to relief.”

Fed. R. Civ. P. 8(a)(2).

        “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed

factual allegations, a plaintiff’s obligation to provide the grounds of his entitlement to relief requires

more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will

not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations and quotations

omitted). Instead, “a complaint must contain sufficient factual matter, accepted as true, to state a

claim to relief that is plausible on its face.” Ashcroft v. Iqbal, —U.S.—, 129 S. Ct. 1937, 1949

(2009) (internal quotations omitted).

                B.      Analysis

        In his complaint, Gardner alleged that Department of Veterans Affairs employee, pharmacist

Vicki Bianchi, negligently treated Gardner by,

        failing to timely diagnose, manage and treat Michael Gardner for his depression and
        mental instability, which resulted in pain and suffering, emotional distress,
        permanent impairment, suicidal thoughts, impaired memory, a major depressive
        disorder, acute stress disorder and disassociative amnesia. As a direct and proximate
        result of the above negligent acts, negligent omissions, negligent medical treatment
        and/or medical malpractice by the Defendant’s, agents, employees and/or servants,
        Plaintiff Michael Gardner suffered a complete mental breakdown causing him to be
        charged with aggravated assault and sentenced to federal incarceration for eight (8)
        years.
        ...

                                                   24
       Plaintiff Michael Gardner’s impaired mental condition was the proximate result of
       the negligence of the United States, through its employee(s) in failing to treat him for
       his emotional and mental disorders in accordance with the recognized standards of
       professional practice.

(R. 37: Am. Compl. at 2–3.)

       As outlined above, the statutory tort for failure to warn requires a showing that (1) the patient

communicated an actual threat against an identifiable victim, (2) the mental health professional

reasonably determined, or should have determined, that the patient could, and likely would, carry

out the threat absent intervention, and (3) the mental health professional did not take reasonable care

to predict, warn of, or take precautions to protect the victim. See Tenn. Code Ann. § 33-3-206 (West

2010). The claim further requires that the defendant be a “qualified mental health professional,”

which is limited by statute to a psychiatrist, physician with expertise in psychiatry, psychologist,

psychological examiner, social worker with mental health experience, psychiatric nurse, or

professional therapist or counselor. See Tenn. Code Ann. § 33-1-101(20) (West 2010).

       Gardner does not allege any of the elements of a failure to warn claim. He does not claim

that he ever made a threat in the presence of a mental health professional, that the professional ever

assessed (or failed to assess) the threat for plausibility, or that the professional failed to take

reasonable care to protect the victim, which in this case, Gardner claims was himself. Furthermore,

Gardner brings his claim against a pharmacist, Vicki Bianchi. In doing so, he fails to plead that, or

in what manner, Bianchi qualifies as a mental health professional under the statute, or how a

pharmacist could fail (or succeed) in “providing medical and psychiatric care,” (R. 37: Am. Compl.

at 2), having never been required to obtain a medical degree or medical license.



                                                  25
          Gardner has also failed to provide a plausible pleading regarding the common law psychiatric

negligence tort. As above, the tort requires a showing of “[1] a duty of care owed by the defendant

to the plaintiff; [2] conduct falling below the applicable standard of care that amounts to a breach

of that duty; [3] an injury or loss; [4] cause in fact; and [5] proximate cause.” McClung, 937 S.W.2d

at 894.

          Gardner has not pled that a duty of care to prevent his crime was owed to him by the

pharmacist at the VA hospital, or that the care provided by the pharmacist fell below the level

required by that duty. See Bradshaw v. Daniel, 854 S.W.2d 865, 871 (Tenn. 1993) (describing

limitations on duty by stating that an actor “is under the affirmative duty to act to prevent another

from sustaining harm only when certain socially recognized relations exist which constitute the basis

for such legal duty”) (quoting Harper & Kime, The Duty to Control the Conduct of Another, 43 Yale

L.J. 886, 887 (1934)). While Gardner has pled an injury—“federal incarceration for eight (8) years

. . . pain, suffering, mental anguish, loss of enjoyment of life, loss of earning capacity, and loss of

liberty,” (R. 37: Am. Compl. at 2–3)—he has failed to plead facts sufficient to show that Defendants

were either the actual or proximate cause of that injury.

          Gardner does make the conclusory statement that his criminal actions were “a direct and

proximate result of the above negligent acts, negligent omissions, negligent medical treatment and/or

medical malpractice by the Defendant’s,” (Id. at 2), but pleads no facts to support this conclusion.

Gardner does not plead, for instance, facts that constitute the acts, omissions, or negligent medical

treatment that he alleges. Nor does he plead facts to support the claim that his “mental breakdown,”

as he describes it, post-dated the alleged negligence or would have been cured or contained by proper


                                                  26
pharmaceutical treatment. “While legal conclusions can provide the framework of a complaint, they

must be supported by factual allegations.” Iqbal, 129 S. Ct. at 1950. In this case, Gardner provides

no such factual allegations.

        Though Gardner pleads proximate cause, stating that his “impaired mental condition was the

proximate result of the negligence of the United States, through its employee(s) in failing to treat him

for his emotional and mental disorders in accordance with the recognized standards of professional

practice,” (R. 37: Am. Compl. at 3), Gardner also fails to show plausibility on this element. “As

[Tennessee state] cases dealing with proximate or legal causation have indicated, the crucial inquiry

is whether the defendant’s negligent conduct led to or made [the injury or harm] reasonably

foreseeable.” White, 975 S.W.2d at 530. In addition to the foregoing reasons, because Gardner has

not pleaded that his actions and the harms claimed—shooting co-workers in his workplace, pleading

guilty to the crime, and being incarcerated—should have been reasonably foreseeable to his

pharmacist based on her actions, he falls short in pleading this element of the tort.

        On the whole, the basis of Gardner’s tort claim it is startlingly unclear.2 And while “the

pleading standard Rule 8 announces does not require detailed factual allegations . . . it demands more

than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 129 S. Ct. at 1949

(internal quotations omitted). Gardner has not met this standard in his pleading, and I believe that

we should affirm the decision of the district court on this basis.



       2
         Though it is noted that Gardner appears to have filed an administrative claim with the
Department of Veteran’s Affairs, he neglected to append that claim, or any exhibits included therein,
to this complaint before the district court. (R. 37-1.) Therefore, we have only his pleadings to
consider in reaching a determination.

                                                  27
