The opinion of the court was delivered by: JAMES FRANCIS, Magistrate Judge
MEMORANDUM OPINION AND ORDER
This case concerns a personal injury claim by Evette Nin
against Dr. Brian Hun Liao, a dentist, and the United States of
America (the "Government"). Dr. Liao has made a motion for
summary judgment, and in the alternative, has moved for an order
dismissing the action due to the spoilation of evidence critical
to his defense. He has also requested permission to amend his
answer to add an affirmative defense of culpable conduct by the
plaintiff. Both the Government and the plaintiff have likewise
made motions for summary judgment. In addition, the plaintiff has
moved for imposition of monetary sanctions against Dr. Liao's
attorneys, Daniel Nessim, Esq. and Aaronson, Rappaport, Feinstein
and Deustch, LLP, for violating Rule 11(b) of the Federal Rules of Civil
Procedure. The parties have agreed to the disposition of this
case by a United States Magistrate Judge in accordance with
28 U.S.C. § 636(c). For the reasons that follow, Dr. Liao's motion
for summary judgment and his request for a dismissal of the
action are denied, while permission to amend his answer is
granted. The Government's motion for summary judgment is denied.
The plaintiff's motion for summary judgment is also denied, as is
the plaintiff's motion for the imposition of Rule 11 sanctions.
On September 14, 2001, Evette Nin initiated this case as a
medical malpractice action in the Supreme Court of the State of
New York, Bronx County. (Verified Complaint, attached as Exh. A
to Dr. Liao's Notice of Motion for Summary Judgment ("Def. Liao
Mot.")). Ms. Nin alleges that the defendants "departed from
accepted and proper dental practices and standards and [were]
negligent and committed malpractice" in extracting one of her
wisdom teeth. (Complaint ("Compl."), ¶ 8, attached as Exh. A to
Declaration of John P. Cronan dated July 16, 2004 ("Cronan
Decl.")). Specifically, she charges that Dr. Liao failed to take
proper x-rays, which prevented him from identifying the location
of a nerve that was ultimately severed during the surgery.
(Compl., ¶ 8). This nerve damage caused the plaintiff to suffer a
permanent parasthesia. (Compl., ¶ 8). Ms. Nin also claims that
Dr. Salyk, Dr. Liao's supervisor, is liable for her injuries, as
he improperly reviewed the films and failed to advise Dr. Liao to
order additional x-rays. (Compl., ¶ 9). In addition, Ms. Nin asserts
that Dr. Salyk is responsible because he failed to refer her to a
qualified surgeon once aware of her parasthesia, even though this
could have rectified the problem. (Compl., ¶ 9). Ms. Nin further
alleges that the defendants failed to obtain her informed consent
with respect to the dental treatment by not notifying her of the
possible consequences of the surgery and not identifying
alternatives to the procedure. (Compl., ¶¶ 13-17). According to
Ms. Nin, the treatment period in which the dental malpractice
occurred ran from May 18, 2000, through November 2, 2000.
(Compl., ¶ 7).
Ms. Nin originally named Dr. Liao and Morris Heights Health
Center ("Morris Heights"), the clinic at which she was treated,
as defendants. (Def. Liao Mot., Exh. A). On October 18, 2002, the
Government filed a Notice of Removal to the United States
District Court for the Southern District. (Notice of Removal and
Substitution, 02 Civ. 8308, attached as Exh. D to Def. Liao
Mot.). It moved to substitute the United States for Morris
Heights, as the Government is the proper party when a suit is
filed under the Federal Tort Claims Act. The Government also
moved to dismiss the plaintiff's claims against it without
prejudice due to Ms. Nin's failure to exhaust her administrative
remedies. These motions were granted in an Order dated May 5,
2003. (Memorandum Opinion and Order, dated 2003, attached as Exh.
E to Def. Liao Mot.). After complying with the exhaustion
requirements, the plaintiff filed a new action against Dr. Liao
and the United States of America on June 27, 2003. (Def. Liao Mot., Exh. F). That action was
consolidated with the original action by Stipulation and Order
dated October 30, 2003. (Def. Liao Mot., Exh. H). Following the
completion of discovery, the parties filed the instant motions.
Pursuant to Rule 56 of the Federal Rules of Civil Procedure,
summary judgment is appropriate where "the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law." Fed.R.Civ.P.
56(c); accord Marvel Characters, Inc. v. Simon, 310 F.3d 280,
285-86 (2d Cir. 2002); Andy Warhol Foundation for the Visual
Arts, Inc. v. Federal Insurance Co., 189 F.3d 208, 214 (2d Cir.
1999). The moving party bears the initial burden of demonstrating
"the absence of a genuine issue of material fact." Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986). Where the moving party
meets that burden, the opposing party must come forward with
"specific facts showing that there is a genuine issue for trial,"
Fed.R.Civ.P. 56(e), by "a showing sufficient to establish the
existence of [every] element essential to that party's case, and
on which that party will bear the burden of proof at trial."
Celotex, 477 U.S. at 322.
In assessing the record to determine whether there is a genuine
issue of material fact, the court must resolve all ambiguities and draw all factual inferences in favor of the
nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986); Vann v. City of New York, 72 F.3d 1040, 1048-49 (2d
Cir. 1995). But the court must inquire whether "there is
sufficient evidence favoring the nonmoving party for a jury to
return a verdict for that party," Anderson, 477 U.S. at 249
(citation omitted), and grant summary judgment where the
nonmovant's evidence is conclusory, speculative, or not
significantly probative. Id. at 249-50. "The litigant opposing
summary judgment may not rest upon mere conclusory allegations or
denials, but must bring forward some affirmative indication that
his version of relevant events is not fanciful." Podell v.
Citicorp Diners Club, Inc., 112 F.3d 98, 101 (2d Cir. 1997)
(internal quotations and citations omitted); accord Matsushita
Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986) (a nonmoving party "must do more than simply show that
there is some metaphysical doubt as to the material facts");
Goenaga v. March of Dimes Birth Defects Foundation, 51 F.3d 14,
18 (2d Cir. 1995) (nonmovant "may not rely simply on conclusory
statements or on contentions that the affidavits supporting the
motion are not credible"). In sum, if the court determines that
"the record taken as a whole could not lead a rational trier of
fact to find for the non-moving party, there is no `genuine issue
for trial.'" Matsushita, 475 U.S. at 587 (quoting First
National Bank of Arizona v. Cities Service Co., 391 U.S. 253,
288 (1968)). 2. Government's Jurisdictional Motion
The Government contends that the Court lacks subject matter
jurisdiction over the plaintiff's claims against it because the
United States, as sovereign, is generally immune from suit except
insofar as it has consented to be sued. See United States v.
Mitchell, 463 U.S. 206, 212 (1983); United States v. Testan,
424 U.S. 392, 399 (1976). In the absence of a waiver of sovereign
immunity, a federal court lacks subject matter jurisdiction over
a case against the Government. United States v. Sherwood,
312 U.S. 584, 586 (1941); Williams v. United States, 947 F.2d 37,
39 (2d Cir. 1991). Accordingly, the boundaries of the court's
jurisdiction are defined by the scope of any waiver of sovereign
immunity. See Mitchell, 463 U.S. at 212.
The Federal Tort Claims Act (the "FTCA") waives the immunity of
the United States with respect to torts committed by Government
employees. 28 U.S.C. §§ 1346(b), 2671; see Guttridge v. United
States, 927 F.2d 730
, 731 (2d Cir. 1991). The Federally
Supported Health Centers Assistance Act ("FSHCAA") defines an
"employee" as including "any officer, governing board member, or
employee of [a covered] entity and any contractor of [a covered]
entity who is a physician or other licensed or certified health
care practitioner." 42 U.S.C. § 233(g)(1)(A). An individual is
considered a contractor only if:
(A) the individual normally performs on average at
least 32 1/2 hours of service per week for the entity
for the period of the contract; or
(B) in the case of an individual who normally
performs an average of less than 32 1/2 hours of
services per week for the entity for the period of the contract, the individual
is a licensed or certified provider of services in
the fields of family practice, general internal
medicine, general pediatrics, or obstetrics and
42 U.S.C. § 233(g) (5). The Government argues that Dr. Liao was
neither an employee nor a contractor of Morris Heights, as he was
employed through Lutheran Medical Center and does not meet the
FSHCAA definition of a contractor. The plaintiff does not contest
this, but rather contends that this Court has subject matter
jurisdiction because the Government is liable for Dr. Ronald
Salyk's actions. While neither party disputes that Dr. Salyk is
an employee under the FSHCAA, the parties differ as to whether or
not Dr. Salyk played a role in causing the plaintiff's injuries.
If liability can be imputed to Dr. Salyk, this Court has clear
subject matter jurisdiction; however, if Dr. Salyk is in no way
implicated in the plaintiff's injuries, this Court must grant the
Government's motion for summary judgment, as the Government
cannot be held liable for Dr. Liao's acts.
The Government argues that Dr. Liao is exclusively responsible
for any alleged negligence. However, the plaintiff's medical
expert has cited Dr. Salyk's failure to refer the plaintiff to an
oral surgeon as a cause of the plaintiff's continued parasthesis.
(Deposition of John McIntyre dated May 19, 1999 ("McIntyre
Dep."), attached as Exh. E to the Declaration of Anastasios
Tonorezos dated Aug. 17, 2004 ("Tonorezos Decl."), at 50-51).
Consequently, it is disputed whether all acts of negligence may
be imputed to Dr. Liao or whether Dr. Salyk bears any
responsibility. Dr. Salyk may also have caused the plaintiff's injury through
his alleged failure to properly supervise Dr. Liao. (McIntyre
Dep. at 51). The Government argues that Dr. Salyk's supervision
falls under the FTCA "discretionary function" exception, which
provides that no claims may be brought against the Government to
the extent that they are "based upon the exercise or performance
of 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. § 2680(a). This exception ensures that the principle of
separation of powers is protected, as it prevents "the judiciary
from deciding questions consigned to the executive and
legislative branches of the government." Caban v. United
States, 671 F.2d 1230, 1233 (2d Cir. 1982); see Canadian
Transport Co. v. United States, 663 F.2d 1081, 1087 (D.C. Cir.
1980); Hendry v. United States, 418 F.2d 774, 780-83 (2d Cir.
1969). In United States v. Gaubert, 499 U.S. 315, 324 (1991),
the Supreme Court set out a two-prong test to determine whether
this exception applies. The first inquiry is whether the conduct
violated a mandatory regulation, and the second is whether the
decision at issue was a permissible exercise of policy judgment.
Id.; Berkovitz v. United States, 486 U.S. 531, 536-37 (1988).
There was no mandatory regulation at issue in the instant case;
therefore, only the second prong must be addressed.
An activity involves an exercise of policy judgment when "the
question is not negligence but social wisdom, not due care but
political practicability, not reasonableness but economic expediency." Blessing v. United States, 447 F. Supp. 1160, 1170
(E.D. Pa. 1978). Determining the method and extent of supervision
constitutes an exercise of discretionary authority. See United
States v. Varig Airlines, 467 U.S. 797
, 819 (1984); Moreno v.
United States, 965 F. Supp. 521, 527 (S.D.N.Y. 1997); Berghoff
v. United States, 737 F. Supp. 199, 204 (S.D.N.Y. 1989). This
does not mean, however, that the medical advice given by a
supervisor to a contractor is not subject to the standards of due
[T]he judgments arrived at by the doctors are not
different in kind or complexity from those which
courts are accustomed to entertain when tort suits
are bought [sic] against private physicians. The fact
that judgments of government officials occur in areas
requiring professional expert evaluation does not
necessarily remove those judgments from the
examination of courts by classifying them as
discretionary functions under the Act. To the extent
that the medical profession establishes no set rules
to accommodate the handling of a particular medical
case, the individual doctor's judgment in that case
should be measured by the standards of due care.
Hendry, 418 F.2d at 783. Therefore, while Dr. Salyk was acting
within his discretionary authority when determining whether or
not to supervise Dr. Liao, the actual advice he rendered to Dr.
Liao is not covered by the discretionary function exception.
There is a question of material fact as to whether Dr. Salyk
correctly reviewed and assessed the x-ray(s) taken by Dr. Liao,