
USCA1 Opinion

	




       No. 96-2357                                   WILLIAM MAGEE,                                Plaintiff, Appellant,                                         v.                              UNITED STATES OF AMERICA,                                Defendant, Appellee.                                ____________________                    APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                    [Hon. Nancy J. Gertner, U.S. District Judge]                                ____________________                                       Before                           Stahl and Lynch, Circuit Judges,                         and O'Toole*, U.S. District Judge.                                ____________________            Francis J. Caruso, III                                  with whom                                             Paul J. Gillespie                                                              and                                                                   Gillespie &       Associates were on brief for appellant.            Julie                   S.                      Schrager, Assistant United States Attorney, with whom       Donald K. Stern, United States Attorney, was on brief for appellee.                                ____________________                                    July 31, 1997                                ____________________       *Of the District of Massachusetts, sitting by designation.                      STAHL, Circuit Judge.  Plaintiff-appellant William            Magee appeals the grant of summary judgment in favor of            defendant-appellee, the United States, with respect to his            personal injury action under the Federal Tort Claims Act, 28            U.S.C. S 1346(b) ("FTCA").                                      Background                      This case arose out of an automobile accident in            which Peter Puzzanghera, an outpatient at the Veterans            Administration Medical Center in Bedford, Massachusetts            ("VAMC") rear ended Magee. As a result of the accident, Magee            suffered physical injuries and property damage for which he            seeks damages from the federal government. By way of            background, we describe the relationship between the Veterans            Administration ("VA") and Puzzanghera in order to explain how            Magee came to sue the United States.                      Puzzanghera has long battled chronic, paranoid            schizophrenia. In August, 1988 he was involuntarily committed            to Metropolitan State Hospital. In July, 1989, he was            transferred to VAMC where he remained as an inpatient until            late June, 1990. On June 20, 1990, he was discharged to the            Fort Hill Community Care Home and continued to receive            treatment at VAMC on an outpatient basis.                      Puzzanghera's treatment at VAMC included periodic            intermuscular injections of Prolixin Decanoate ("Prolixin").            VAMC physicians prescribed Prolixin to help Puzzanghera manage                                         -2-                                          2            his schizophrenia. Following the onset of this treatment,            Puzzanghera experienced restlessness and difficulty in moving            his tongue, side effects that his doctors have attributed to            the Prolixin.                      VAMC has established a policy entitled Veterans            Driver Evaluation Program for the purpose of aiding veterans in            obtaining driver's licenses from the Massachusetts Registry of            Motor Vehicles ("RMV"). Pursuant to this policy, VA doctors            refer "selected patients whose rehabilitative prospects might            be enhanced by having a driver's permit or license" to a VA            psychologist for evaluation as to suitability. Depending on            the outcome of this evaluation, the psychologist either            determines that the patient is not a suitable candidate for a            license, or submits a letter of support to the RMV on behalf of            the patient. The letter details the patient's medical            treatment and indicates that beyond the information in the            letter, the VA knows of no "contraindication" to the RMV's            consideration of the patient for restoration or continuance of            driving privileges. The VA acknowledges in the letter,            however, that the final decision regarding a given patient's            driving privileges rests with the RMV.                      At some time prior to April 1990, Puzzanghera            requested his treating physician, Dr. Albert Gaw, to assist him            in obtaining a driver's license. Dr. Gaw referred Puzzanghera            to Dr. Robert Avey, a counselling psychologist at VAMC. After                                         -3-                                          3            Dr. Avey evaluated Puzzanghera, he sent a letter to the RMV on            his behalf. Puzzanghera subsequently received driving            privileges.                      In the afternoon of October 29, 1990, while Magee sat            in his car at a red light, Puzzanghera rear ended Magee's car,            causing bodily injury to Magee and damage to his vehicle. A            police officer who arrived shortly after the accident noted            that Puzzanghera appeared "very slow and deliberate in his            actions." The officer performed two field sobriety tests which            Puzzanghera "passed with no problem." Puzzanghera informed the            officer that he was an outpatient at VAMC and had recently            received a shot of Prolixin. In fact, Puzzanghera had received            this shot approximately four hours prior to the accident.                      Magee filed a complaint against the United States            under the FTCA in which he alleged that the VA negligently            allowed or enabled Puzzanghera to qualify for and obtain a            driver's license while on Prolixin, negligently failed to warn            Puzzanghera of the side effects of Prolixin, negligently failed            to properly monitor and supervise Puzzanghera's Prolixin            treatment, and negligently "fail[ed] in other respects that            will be shown at trial." According to Magee, the VA's            negligence caused his injuries. The district court granted            summary judgment in favor of the United States on all of            Magee's allegations. This appeal followed.                                         -4-                                          4                                 Standard of Review                      We review the award of summary judgment                                                             de novo                                                                   .  See            Ortiz-Pinero v. Rivera-Arroyo, 84 F.3d 7, 11 (1st Cir. 1996).            Summary judgment is appropriate in the absence of a genuine            issue of material fact, when the moving party is entitled to            judgment as a matter of law.   See Fed. R. Civ. P. 56(c). A            fact is material when it has the potential to affect the            outcome of the suit.  See J. Geils Band Employee Benefit Plan            v. Smith                      Barney                              Shearson,                                        Inc., 76 F.3d 1245, 1250-51 (1st            Cir.), cert. denied, 117 S. Ct. 81 (1996). Neither party may            rely on conclusory allegations or unsubstantiated denials, but            must identify specific facts derived from the pleadings,            depositions, answers to interrogatories, admissions and            affidavits to demonstrate either the existence or absence of an            issue of fact. See Fed. R. Civ. P. 56(c) & (e). The district            court's analysis does not bind us.    See Mesnick v.  General            Elec. Co.                    , 950 F.2d 816, 822 (1st Cir. 1991). Instead, we may            affirm or reverse on any independently sufficient ground. See            id.                                     Discussion                      The FTCA vests federal district courts with            jurisdiction over claims against the United States for damages            caused by                       the negligent or wrongful act or omission                      of any employee of the Government while                      acting within the scope of his office or                      employment, under circumstances where the                                         -5-                                          5                      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.             28 U.S.C. S 1346(b). Fourteen statutory exceptions limit this            otherwise broad waiver of sovereign immunity. See 28 U.S.C. S            2680. To evaluate a claim brought pursuant to the FTCA,            therefore, we must first determine whether an exception            precludes the claim, and, if not, whether a private actor in            the state where the conduct occurred would be liable to the            plaintiff under the circumstances. We conclude that the            discretionary function exception to the FTCA bars Magee's claim            with respect to the VA's actions regarding Puzzanghera's            driver's license.  We also conclude that Massachusetts            statutory law precludes his claims of negligent treatment.              A.  The Letter                      As indicated, several exceptions limit the breadth of            the government's potential liability under the FTCA. One, the            discretionary function exception, operates to deprive a            district court of jurisdiction over                                             1.  The district court analyzed Magee's complaint in negligence            terms, holding that Mass. Gen. Laws ch. 123, S 36B precluded            some of Magee's claims and that he failed to establish the            elements of common law negligence on his remaining claims. In            arriving at our conclusion we depart from the reasoning of the            district court in determining that the discretionary function            exception to the FTCA bars Magee's claims arising out of the            VA's efforts on behalf of Puzzanghera's driver's license. We            reiterate, however, that in evaluating an appeal from the grant            of summary judgment, we may affirm for any independently            sufficient ground supported by the record.  See Mesnick, 950            F.2d at 22.                                          -6-                                          6                      [a]ny claim . . . based upon the exercise                      or performance or the failure to exercise                      or perform a discretionary function or                      duty on the part of a federal agency or an                      employee of the Government, whether or not                      the discretion involved be abused.             28 U.S.C. S 2680(a);                                 see                                     Kelly v.                                              United States                                                          , 924 F.2d 355,            360 (1st Cir. 1991) ("When a claim is covered by the            discretionary function exception, it must be dismissed for lack            of subject matter jurisdiction.").                       Though not abundantly clear from the statutory            language, ample authority guides our determination of whether            the discretionary function exception serves to bar a claim            against the government.  See, e.g., United States v. Gaubert,            499 U.S. 315, 322-25 (1991); United                                                 States v. Berkovitz, 486            U.S. 531, 536-39 (1988); Attallah v. United                                                         States, 955 F.2d            776, 782-83 (1st Cir. 1991);                                         Irving v.                                                   United States                                                               , 909 F.2d            598, 600-03 (1st Cir. 1990). First, we must determine whether            the conduct in question was discretionary in nature.      See            Gaubert, 499 U.S. at 322; Attallah, 955 F.2d at 783. If the            conduct was discretionary in nature, we must then consider            whether it "[was] of the kind that the discretionary function            exception was designed to shield."                                               Gaubert, 499 U.S. at 322-23            (internal quotation and citation omitted); see Attallah, 955            F.2d at 783.                      The discretionary nature of governmental conduct            depends on whether that conduct involved an element of judgment            or choice.  See  Gaubert, 499 U.S. at 322. We evaluate the                                         -7-                                          7            nature of the conduct rather than the status of the actor to            determine "'whether the action is a matter of choice for the            acting employee.'"    Attallah, 955 F.2d at 783 (quoting            Berkovitz, 486 U.S. at 536). An action, for example, does not            involve an element of choice "if a federal statute, regulation            or policy specifically prescribes a course of action for an            employer to follow, because [t]he employer has no rightful            option but to adhere to the directive."  Gaubert, 499 U.S. at            322 (internal quotation and citation omitted).                      The language of VAMC's Veterans Driver Evaluation            Program contemplates a series of steps VA staff must undertake            upon deciding to assist a veteran in obtaining a driver's            license. The program, however, cannot be characterized as            requiring a particularized course of conduct for the VAMC            staff.  See, e.g., Kelly, 924 F.2d at 360-61 (interweaving of            "imperatives with weaker, precatory verbs and generalities" may            be more characteristic of discretion than of mandatory            directives). Within those steps, the program leaves broad            discretion to VA psychologists in their evaluation of the            patient and their ultimate decision whether to write to the RMV            on the patient's behalf. The program also grants broad            discretion to treating physicians in deciding whether to refer            interested patients to a psychologist for evaluation.                      The uncontroverted deposition of Dr. Robert Avey, the            VA counselling psychologist who wrote on behalf of Puzzanghera,                                         -8-                                          8            underscores the discretionary nature of the process. Dr. Avey            testified that his evaluation protocol included reviews of            patient treatment histories, interviews with patients and            consultations with other professionals such as physicians or            social workers if necessary, all aimed at gauging the propriety            of facilitating the restoration of a given patient's driving            privileges. Thus, we are satisfied that VAMC's program is            sufficiently discretionary to meet the first inquiry of the            discretionary function exception. See                                                  Gaubert, 499 U.S. at 322            (indicating that conduct involving element of choice or            judgment is discretionary).                       Having determined that the action was discretionary,            we turn to the second inquiry, whether the decision of VA            doctors to assist Puzzanghera in applying for his driver's            license was "of the kind that the discretionary function            exception was designed to shield."   Id. at 322-23 (internal            quotation and citation omitted). The exception does not serve            to protect all discretionary actions of governmental employees.            Instead, it "protects only governmental actions and decisions            based on considerations of public policy."       Id. at 323            (internal citation omitted). In this way, the exception serves            its purpose of preventing "judicial second guessing" of            legislative and administrative decisions grounded in social,            economic, and political policy through the medium of an action                                         -9-                                          9            in tort.  See Attallah, 955 F.2d at 783; Irving, 909 F.2d at            600.                      As the Supreme Court has indicated, "it will most            often be true that the general aims and policies of the            controlling [program] will be evident from its text."                                                                  Gaubert,            499 U.S. at 324. A government statute or program that allows            the government actor discretion creates a presumption that the            isolated discretionary act reflects the same considerations            which led to promulgation of the program.      See id. The            exception is not reserved solely for planning level decisions            establishing programs.  See id. at 323. The exception also            protects "the actions of Government agents involving the            necessary element of choice and grounded in the social,            economic or political goals. . . ."    Id. In short, "the            discretionary function exception insulates the Government from            liability if the action challenged . . . involves the            permissible exercise of policy judgment." Berkovitz, 486 U.S.            at 537.                       We view VAMC's decision to assist Puzzanghera in            obtaining a driver's license as a clear, permissible exercise            of policy judgment. As we have already stated, the policy            contemplates significant discretion on the part of the VA staff            at every step of the process. The Veterans Driver Evaluation            Program includes a clearly stated policy objective, "to assist            veterans to apply for driving privileges" in cases where                                        -10-                                         10            driving privileges are likely to enhance the patient's            rehabilitative prospects. This objective folds neatly into the            VA's mission of providing a range of care and assistance for            veterans. A series of judgments leading up to the ultimate            decision under this program, whether to write to the RMV, all            involve considerations of veteran rehabilitation.                      Magee unpersuasively argues that VAMC's assistance to            Puzzanghera in obtaining a driver's license constituted part of            his medical treatment. In  Collazo v. United States, 850 F.2d            1, 3 (1st Cir. 1988), we held that a claim of negligent medical            treatment by a government actor, unaccompanied by any            discretionary, policy based conduct, falls outside the            parameters of the discretionary function exception. We            distinguished conduct made on purely medical grounds from            conduct made pursuant to governmental policy, pointing out that            where "only professional, nongovernmental discretion is at            issue, the discretionary function exception does not apply."            Id. at 3 (internal quotation omitted).                      The decision to write a letter to the RMV on            Puzzanghera's behalf fell within the parameters of VAMC's            rehabilitative policy. Puzzanghera, not VAMC physicians,            initiated the process by asking for a driver's license            referral. Pursuant to the program, Dr. Avey, a counseling            psychologist and not Puzzanghera's treating psychiatrist, made            the ultimate decision to write a letter to the RMV on behalf of                                        -11-                                         11            Puzzanghera. The program creates a general process applicable            to all patients seeking a license; it did not constitute part            of Puzzanghera's individualized medical treatment. Puzzanghera            did not receive his license, for example, to help control his            schizophrenia. Rather, the decision to write a letter of            support was made in contemplation of his rehabilitative needs.                      We conclude that VAMC's efforts on Puzzanghera's            behalf with respect to the Veterans Driver Evaluation Program            fall within the discretionary function exception to the FTCA.            Accordingly, that exception bars the portion of Magee's claim            that rests on the VA's efforts on behalf of Puzzanghera's            driver's license.             B.  The Prolixin                      Magee also claims that the VA's negligent medical            treatment of Puzzanghera caused his injuries. Specifically,            Magee claims that the VA failed to properly monitor and            supervise Puzzanghera's Prolixin treatment and failed to warn            him adequately of the adverse side effects he might experience            as a result of the Prolixin doses. Magee attributes the                                            2.  We point out that "where the government is performing a            discretionary function, the fact that the discretion is            exercised in a negligent manner does not make the discretionary            function exception to the FTCA inapplicable."  Attallah, 955            F.2d at 784 n. 13 (citing                                      Berkovitz, 486 U.S. at 539). Whether            VAMC negligently exercised its discretion with respect to            Puzzanghera's driver's license, therefore, is irrelevant to our            analysis.                                         -12-                                         12            accident to that alleged negligent failure to warn Puzzanghera            and properly supervise his treatment.                      This claim derives from Puzzanghera's specific            medical treatment, which as we have indicated, falls outside            the protection of the discretionary function exception.   See            Collazo, 850 F.2d at 3. We do not identify, nor does the            government point us to, any other statutory exception that            might bar this claim. In the absence of a statutory exception,            the FTCA imposes liability on the government for conduct of its            employees within the scope of their employment "under            circumstances where the United States, if a private person,            would be liable to the claimant in accordance with the law of            the place" where the conduct occurred. 28 U.S.C. S 1346(b).            "To identify the applicable rule of substantive law,"            therefore, "the FTCA directs us to determine the substantive            law that would apply to 'a private individual under like            circumstances' in the jurisdiction where the injury occurred."            In re All Maine Asbestos Litig.                                          , 772 F.2d 1023, 1027 (1st Cir.            1985) (quoting  United                                     States v.  Muniz, 374 U.S. 150, 153            (1963)); see Kelly, 924 F.2d at 359. We turn to the law of            Massachusetts, the situs state, to determine whether Magee can            hold the government liable in this case.                      We agree with the district court that Magee failed to            provide evidence in the record from which a jury could have            found that the VA's treatment of Puzzanghera caused the                                        -13-                                         13            accident.  See                            Borden v.                                     Betty Gibson Assoc., Inc.                                                             , 574 N.E.2d            1020, 1022 (Mass. App. Ct. 1991) (indicating that causation is            necessary to recovery for negligence). Magee points to the            Prolixin shot Puzzanghera received four hours prior to the            accident, the various side effects Puzzanghera experienced as            a result of the Prolixin, namely restlessness and difficulty            controlling his tongue, the police officer's notation that            Puzzanghera appeared slow and deliberate at the scene of the            accident, Magee's own impression of Puzzanghera at the scene,            and Puzzanghera's inability to remember the details of the            accident.                       Magee does not, however, explain how any of these            pieces of evidence, either in isolation or in the aggregate,            would allow a jury to conclude that the VA's alleged negligent            treatment of Puzzanghera caused the accident. Nothing in the            record suggests, for example, that the restlessness or tongue            control side effects somehow caused Puzzanghera to drive into            Magee. Nor does the record offer a basis to conclude that the            police officer's characterization of Puzzanghera related to his                                            3.  We note that Mass. Gen. Laws ch. 123, S36B would appear to            bear on the question of whether VAMC had any duty to Magee.            Given that the Massachusetts Supreme Judicial Court has not yet            construed S 36B and our own conclusion that the record fails to            support at least one essential element of negligence, we need            not determine the applicability of S 36B to this case.                                         -14-                                         14            treatment at VAMC. In short, Magee lacks any evidence that            would allow a jury to base a conclusion as to causation on            anything other than speculation.  See id. (indicating that a            recovery in negligence cannot be based on speculation as to            causation).                                      Conclusion                      For the foregoing reasons, we affirm the district            court's disposition of Magee's complaint.                      Affirmed.  Costs to Appellee.                                            4.  Magee's expert, Dr. Catherine Larned, points to            Puzzanghera's medical records and notes that on one occasion            (June 12, 1990) Puzzanghera appeared "somewhat lethargic" at an            appointment, and that on another occasion (June 19, 1990)            Puzzanghera reported that a nap on his lunch break caused him            to return late to work. The record, however, in no way            supports even an inference that Puzzanghera was either            experiencing these indications at the time of the accident, or            that they were caused in any way by Puzzanghera's treatment at            VAMC.                                        -15-                                         15
