Roosevelt Pollard, as surviving spouse v. United States of America

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-1304
ROOSEVELT POLLARD, as surviving spouse, and
as Personal Representative of the Estate of
Veronica Pollard, deceased,
Plaintiff - Appellant,
and
VERONICA POLLARD,
Plaintiff,
versus
UNITED STATES OF AMERICA,
Defendant - Appellee,
and
RAJ R. GUPTA; STERLING MEDICAL CORPORATION;
HUMANA MILITARY HEALTHCARE, INCORPORATED,
a/k/a Humana Incorporated, a/k/a Humana
Military Healthcare Services, Incorporated,
Defendants.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District Judge.
(CA-02-764)
Submitted: January 9, 2006 Decided: February 2, 2006

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Before NIEMEYER, LUTTIG, and KING, Circuit Judges.
Reversed and remanded by unpublished per curiam opinion.
Bruce J. Klores, Lesley Zork, BRUCE J. KLORES AND ASSOCIATES,
Washington, D.C.; Peter R. Masciola, Washington, D.C.; Robert A.
Graham, Eugene R. Fidell, FELDESMAN TUCKER LEIFER FIDELL, L.L.P.,
Washington, D.C., for Appellant. Rod J. Rosenstein, United States
Attorney, Larry D. Adams, Assistant United States Attorney, OFFICE
OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).

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PER CURIAM:
Sergeant Roosevelt Pollard appeals the district court’s
dismissal of his medical malpractice claims against the United
States. For the reasons that follow, we reverse and remand.
I.
This appeal arises out of a medical malpractice action brought
by plaintiff-appellant Sergeant Roosevelt Pollard and his now
deceased wife Veronica Pollard against the United States and
various health care providers at the Dwight D. Eisenhower Army
Medical Center (“DDEAMC”) in Fort Gordon, Georgia. The relevant
facts are as follows.
In early October 1998, Veronica Pollard sought treatment at
DDEAMC, complaining of a mass in her right breast. J.A. 24. A
biopsy performed that day showed atypical cells, and a surgical
removal and biopsy of the tumor performed on October 14, 1998,
confirmed that the mass was cancerous. Id. Immediately after
removal, the tumor was sent to an active duty Army pathologist --
Dr. Stephen Adams -- for further analysis. Id. at 78-80.
On October 26, 1998, a team of physicians at DDEAMC met to
discuss Mrs. Pollard’s condition and to decide on a course of
treatment. Id. at 61-65. The doctors did not have the benefit of
Dr. Adams’ analysis because he had not yet completed it. On
December 1, 1998, Mrs. Pollard was scheduled to meet with a

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civilian oncologist -- Dr. Raj Gupta -- working under contract at
DDEAMC. However, Dr. Gupta discovered that the pathology reports
necessary to advise Mrs. Pollard were not available and that Dr.
Adams had not yet sent samples of the malignant tissue for
laboratory testing. Id. at 78-81.
When Mrs. Pollard returned for a rescheduled appointment on
December 15, 1998, Dr. Gupta had the pathology reports from Dr.
Adams. Dr. Adams’ reports described the tumor as .5 centimeters,
but, according to the Pollards, it was more than twice that size
(1.1 centimeters). Id. at 338, 421. Dr. Gupta relied on Dr.
Adams’ report in making his recommendations to Mrs. Pollard. Id.
at 90. Dr. Gupta explained to Mrs. Pollard that the tumor was
“very small,” and that “tumors that are this small have a very good
prognosis” and often do not require chemotherapy. Id. Dr. Gupta
nevertheless recommended that Mrs. Pollard undergo chemotherapy.
Id. However, Mrs. Pollard never underwent chemotherapy, due in
part to her relocation to England (where Sgt. Pollard was assigned)
in December 1998.
In June 2000, Mrs. Pollard was diagnosed with metastatic
cancer in her chest wall and right breast. She returned to the
United States for treatment at Walter Reed Army Medical Center in
Washington, D.C., where she underwent several major surgeries.
Despite the efforts of the doctors, Mrs. Pollard’s cancer continued
to spread. She died of metastatic cancer on December 29, 2003.

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On March 11, 2002, the Pollards filed suit against the United
States, alleging that the DDEAMC physicians negligently diagnosed
and treated Mrs. Pollard’s cancer. The Pollards later amended
their complaint to include causes of action against Dr. Gupta (Mrs.
Pollard’s primary treating oncologist), Sterling Medical
Corporation (Dr. Gupta’s immediate employer), and Humana Military
Healthcare (the general contractor).
In December 2003, the United States filed a motion for summary
judgment. The majority of the United States’ memorandum in support
of its motion was dedicated to its argument that the district court
lacked jurisdiction over the claims against the United States under
the Federal Tort Claims Act (“FTCA”) because the DDEAMC physicians
were independent contractors, and the FTCA waives the United
States’ sovereign immunity only for torts committed by its
employees and not for torts of independent contractors. See id. at
382-94. At places, however, the United States’ jurisdictional
arguments bled over into arguments on the merits, with the United
States asserting that “the surgery and pathology services provided
by DDEAMC . . . did not violate the standard of care or cause [Mrs.
Pollard’s] cancer.” Id. at 384; see also id. at 389-90. The
United States’ assertions that its physicians were not negligent
were unsupported by any citations to the record.
In February 2004, Sgt. Pollard filed a response to the United
States’ motion for summary judgment. He argued that the district

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court had jurisdiction because Dr. Gupta was an employee rather
than an independent contractor. Id. at 420-21. Sgt. Pollard
further argued that, even if Dr. Gupta was an independent
contractor, the claims against the United States could not be
dismissed for lack of jurisdiction in their entirety because the
Pollards had also alleged that Dr. Adams was negligent, and it was
undisputed that Dr. Adams was an employee of the United States.
Id. at 421-22. Sgt. Pollard’s memorandum briefly recited the facts
underlying Dr. Adams’ alleged negligence, including the two-month
delay in producing the reports and the alleged misreporting of the
tumor’s size. Id. Sgt. Pollard’s memorandum did not provide any
citations to the record to support these allegations.
On June 30, 2004, the district court dismissed all of the
claims against the United States for lack of jurisdiction. Id. at
563. The district court agreed with the United States that Dr.
Gupta was an independent contractor and that his negligence thus
could not subject the United States to liability under the FTCA.
Id. at 555-58. As for the claim that Dr. Adams was negligent, the
district court concluded that Sgt. Pollard “proffered no evidence”
in support of his claims and that his “bare allegations” were
“insufficient to overcome a motion for summary judgment.” Id. at
558. However, rather than entering summary judgment for the United
States with respect to the claims premised upon Dr. Adams’ conduct,

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the district court dismissed the claims against the United States
in their entirety for lack of jurisdiction.
After the claims against the United States were dismissed, the
remaining claims against Dr. Gupta and the other defendants were
tried to a jury. The jury returned a verdict for the defendants,
concluding that Dr. Gupta was negligent, but that his negligence
did not cause Mrs. Pollard’s injuries. Id. at 565.
II.
On appeal, Sgt. Pollard does not contest the district court’s
conclusion that Dr. Gupta was an independent contractor and that
the claims against the United States were therefore properly
dismissed for lack of jurisdiction insofar as they were premised
upon his negligence. Instead, Sgt. Pollard argues only that the
district court erred in dismissing the claims against the United
States insofar as they were premised upon the actions of Dr. Adams
because Dr. Adams was an employee of the United States. The United
States does not dispute that Dr. Adams was an employee rather than
an independent contractor.
The district court clearly erred in dismissing for lack of
jurisdiction the claims against the United States insofar as they
were premised upon allegations that Dr. Adams was negligent. The
district court appeared to believe that whenever a claim brought
against the United States under the FTCA fails, for whatever

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reason, the appropriate course is to dismiss for lack of
jurisdiction. See J.A. 558 (“When a court concludes that the
United States is not liable for a party’s actions pursuant to the
FTCA, the proper practice is to dismiss the suit for want of
jurisdiction.”). To the extent that this was the district court’s
understanding, it was mistaken. Of course, when a court concludes
that the FTCA does not waive the United States’ sovereign immunity
with respect to the claims at issue -- for example, because the
claims allege torts committed by independent contractors rather
than employees -- the proper course is to dismiss for lack of
jurisdiction. See Williams v. United States, 50 F.3d 299, 304 (4th
Cir. 1995). But where the claims fail, not because they do not
come within the scope of the FTCA’s waiver of sovereign immunity,
but simply because of a lack of proof, the proper course is to
enter judgment for the United States. Because it was uncontested
that Dr. Adams was an employee of the United States -- and that the
claims against the United States premised upon his conduct
therefore fell within the scope of the FTCA’s waiver of sovereign
immunity -- it was error for the district court to dismiss those
claims for want of jurisdiction.
In its brief on appeal, the United States argues that “[t]he
district court’s decision should be affirmed even if the more
appropriate procedural vehicle would have been summary judgment
rather than dismissal for lack of subject matter jurisdiction.”

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Appellee’s Br. at 14. The United States fails to grasp that
dismissal for lack of jurisdiction and entry of summary judgment
are distinct dispositions with different consequences. We cannot
affirm a judgment dismissing claims for lack of jurisdiction on the
“alternate ground” that summary judgment would have been
appropriate. At very least, we would be required to reverse and
remand with instructions to enter judgment for the United States.
Even if the United States had requested that we reverse and
remand with instructions to enter summary judgment in its favor, we
would decline to do so because the United States failed to meet its
burden as the moving party. The United States points out that the
district court specifically addressed the claims premised upon Dr.
Adams’ conduct and concluded that, in the absence of any citations
to the record, Sgt. Pollard’s “bare allegations” of negligence were
“insufficient to overcome a motion for summary judgment.” J.A.
558. However, the district court misapplied the burden-shifting
scheme associated with a motion for summary judgment. Before the
burden ever shifts to the non-movant to come forward with record
evidence establishing a genuine issue of material fact, the movant
must first carry the initial burden of “pointing out to the
district court” those portions of the record that show “that there
is an absence of evidence to support the nonmoving party’s case.”
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986); see also id. at
323 (“Of course, a party seeking summary judgment always bears the

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*The United States also argues that summary judgment should be
entered in its favor because any error committed by the district
court was harmless in light of the jury’s subsequent finding that
Dr. Gupta’s negligence did not cause Mrs. Pollard’s injuries. We
reject this argument. The fact that the jury found that Dr.
Gupta’s negligence did not cause Mrs. Pollard’s injuries says
nothing whatsoever about whether Dr. Adams’ negligence, if any
there be, caused Mrs. Pollard’s injuries.
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initial responsibility of . . . identifying those portions of the
‘pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any,’ which it believes
demonstrate the absence of a genuine issue of material fact.”)
(quoting Fed. R. Civ. P. 56(c)); Adickes v. S. H. Kress & Co., 398
U.S. 144, 160 (1970) (“[W]here the evidentiary matter in support of
the motion [for summary judgment] does not establish the absence of
a genuine issue, summary judgment must be denied even if no
opposing evidentiary matter is presented.”) (quoting Advisory
Committee Note on 1963 Amendment to subdivision (e) of Rule 56.).
Because the United States’ assertions that Dr. Adams’ conduct was
not negligent were not supported by any citations to portions of
the record showing a lack of a genuine issue of material fact, the
burden of producing record evidence to the contrary never shifted
to Sgt. Pollard. We cannot therefore remand with instructions to
enter summary judgment for the United States on the ground that
Sgt. Pollard failed to cite record evidence showing that Dr. Adams
was negligent, for the burden to do so was never properly his, the
United States having failed to carry its own burden. * Instead, we

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remand with instructions to adjudicate the summary judgment motion
with respect to the claims premised upon Dr. Adams’ conduct, with
such supplemental briefing as the district court deems necessary.
CONCLUSION
For the reasons stated herein, the judgment of the district
court dismissing the claims against the United States is reversed
insofar as the claims were premised upon Dr. Adams’ actions, and
the case is remanded for proceedings not inconsistent with this
opinion. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
REVERSED AND REMANDED

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