Stephen Tripodi v. David Fero

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 26, 2024
• Docket: 22-16680
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 26 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

STEPHEN TRIPODI, No. 22-16680

Plaintiff-Appellant, D.C. No. 3:20-cv-08322-CDB

v. MEMORANDUM* DAVID FERO; UNITED STATES OF AMERICA,

Defendants-Appellees.

Appeal from the United States District Court for the District of Arizona Camille D. Bibles, Magistrate Judge, Presiding

Submitted March 20, 2024** San Francisco, California

Before: FRIEDLAND, SANCHEZ, and H.A. THOMAS, Circuit Judges.

Plaintiff-Appellant Stephen Tripodi appeals the district court’s order

granting the United States summary judgment in his medical malpractice case

against the Department of Veterans Affairs (“VA”). We have jurisdiction under 28

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). U.S.C. § 1291 based on the district court’s entry of final judgment. We affirm.

1. This case concerns mental health treatment that Tripodi received at

the Northern Arizona VA Health Care System (the “Prescott VA”). In 2020,

Tripodi sued David Fero—a psychologist who had examined him during a VA

benefits application—in Arizona state court for breach of fiduciary duty, fraud, and

intentional infliction of emotional distress. The United States removed to federal

court and substituted itself as the proper defendant under the Federal Tort Claims

Act (“FTCA”), 28 U.S.C. §§ 1346(b) and 2671 et seq.

Following motions practice and the filing of amended complaints, the

district court narrowed Tripodi’s claims to medical malpractice against three

providers at the Prescott VA: Joan Malone, a Nurse Practitioner (“NP”) board-

certified in psychiatric nursing; (2) Victoria Wood, a board-certified Physician’s

Assistant (“PA”) specializing in psychiatric care; and (3) Arvind Yekanath, a

medical doctor board-certified in psychiatry.

2. The FTCA “allows a plaintiff to bring certain state-law tort suits

against the Federal Government.” Brownback v. King, 141 S. Ct. 740, 745 (2021);

see also 28 U.S.C. §§ 1346(b)(1), 2674. “[S]ubstantive law of the place where the

act or omission complained of occurred” governs FTCA claims. Yako v. United

States, 891 F.2d 738, 745 (9th Cir. 1989); see also 28 U.S.C. § 1346(b)(1).

Because the acts or omissions concerning Tripodi’s mental health treatment

2 occurred in Arizona, substantive Arizona law governs.

Arizona statute governs medical malpractice claims in the state. Ariz.

Rev. Stat. §§ 12-561–573. The elements of a medical malpractice suit in Arizona

are that (1) the “health care provider failed to exercise that degree of care, skill and

learning expected of a reasonable, prudent health care provider in the profession or

class to which he belongs within the state acting in the same or similar

circumstances”; and (2) “[s]uch failure was a proximate cause of the injury.” Ariz.

Rev. Stat. § 12-563. Unless malpractice is grossly apparent, a plaintiff must prove

breach of the standard of care through expert testimony. Rasor v. Nw. Hosp., LLC,

243 Ariz. 160, 163 (2017).

3. The district court rightly held that, based on the mental health

treatment Tripodi received at Prescott VA for bipolar disorder, he could not

establish the essential elements of a medical malpractice action without expert

testimony. Tripodi thus had to proffer expert testimony to establish the essential

elements of his medical malpractice case. Because Arizona law governs an expert

witness’s competency regarding a claim or defense in a state law claim, any expert

testimony that Tripodi offered had to be provided by witnesses competent under

Arizona law. See Fed. R. Evid. 601; Liebsack v. United States, 731 F.3d 850, 856

(9th Cir. 2013) (applying state law on the competency of expert witnesses in FTCA

actions); Higgenbottom v. Noreen, 586 F.2d 719, 722 (9th Cir. 1978) (“The

3 competence of witnesses is for the court to decide in accordance with state law if

state law ‘supplies the rule of decision.’”).

Tripodi failed to disclose qualified expert witnesses to opine that the medical

services NP Malone, PA Wood, and Dr. Yekanath provided fell below the standard

of care. In response to Defendant’s motion for summary judgment, Tripodi

designated Dr. Craig Bash, Dr. “Cecilia Carpio,” Dr. Marvin Firestone, and

Registered Nurse Carolyn O’Lenic as expert witnesses. No individual was

disclosed or provided an expert report in accordance with Federal Rule 26(a)(2) of

Civil Procedure. Moreover, Tripodi did not explain how any of the individuals is

qualified as an expert on the appropriate standard of care for a psychiatric nurse

practitioner, physician’s assistant, or psychiatrist. See Ariz. Rev. Stat. § 12-2604

(requiring an expert witness to specialize in the same area and have been in “active

clinical practice” or the “instruction of students” in the “same health profession as

the defendant”).

While Dr. Cecilia Carpio-Lacoursiere was a psychiatrist who saw Tripodi

four times at the Prescott VA in 2017, her qualifications might have allowed her to

opine on the standard of care and any breach thereof only by Dr. Yekanath—not

NP Malone or PA Wood. See Ariz. Rev. Stat. § 12-2604. Her testimony,

however, would have had to be based on review of Tripodi’s medical records

because she treated Tripodi three years prior to Dr. Yekanath treating him. See

4 Goodman v. Staples The Off. Superstore, LLC, 644 F.3d 817, 825 (9th Cir. 2011)

(“[A] treating physician is only exempt from Rule 26(A)(2)(B)’s written report

requirement to the extent that [her] opinions were formed during the course of

treatment.”). Tripodi was thus still required to disclose her as an expert and

provide an expert report under Rule 26(a)(2)(B), both of which he failed to do.

4. The district court did not abuse its discretion in its determinations on

expert qualifications at the summary judgment stage. See ACLU of Nev. v. City of

Las Vegas, 333 F.3d 1092, 1097 (9th Cir. 2003). Tripodi therefore failed to proffer

sufficient evidence to establish a genuine issue of material fact with respect to the

essential elements of the standard of care he received and its alleged breach. See

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The district court properly

granted summary judgment for the United States.1

AFFIRMED.

1 To the extent Tripodi appeals the VA’s decision to deny him disability benefits, the district court correctly dismissed those claims over which the Board of Veterans’ Appeals and the United States Court of Appeals for Veterans Claims hold exclusive jurisdiction. See 38 U.S.C. § 511; Veterans for Common Sense v. Shinseki, 678 F.3d 1013, 1021 (9th Cir. 2012) (en banc).