23-1165-cv (L) Carroll v. United States

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 13th day of December, two thousand twenty-four. Present: ROBERT D. SACK, WILLIAM J. NARDINI, EUNICE C. LEE, Circuit Judges. _____________________________________ ROBERT CARROLL, Plaintiff-Appellant, v. 23-1165 (L), 23-7960 (Con) UNITED STATES OF AMERICA, on behalf of the Department of Veterans Affairs at the Stratton Veterans Hospital, Albany, NY, Defendant-Appellee. _____________________________________

For Plaintiff-Appellant: ROBERT B. CARROLL, pro se, Connelly, NY

For Defendant-Appellee: KAREN FOLSTER LESPERANCE, Assistant United States Attorney, of Counsel, for Carla B. Freedman, United States Attorney for the Northern District of New York, Albany, NY

Appeal from a judgment of the United States District Court for the Northern District of

New York (Glenn T. Suddaby, District Judge).

1 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment is AFFIRMED.

Plaintiff-Appellant Robert Carroll appeals from a judgment of the United States District

Court for the Northern District of New York (Glenn T. Suddaby, District Judge), entered on June

13, 2023, in favor of the United States. Carroll brought this pro se lawsuit under the Federal Tort

Claims Act (“FTCA”),

et seq., alleging negligence, medical malpractice, and

vicarious liability by the Department of Veterans Affairs at the Stratton Veterans Hospital. In an

order dated July 27, 2020, the district court dismissed the complaint in part pursuant to Federal

Rule of Civil Procedure 12(b)(6), determining that Carroll’s claims based on a 2014 administrative

complaint to the Department of Veterans Affairs were untimely and not tolled by the continuous

treatment doctrine. See Carroll v. United States, No. 1:19-CV-1230 (GTS/DJS),

, at *6–8 (N.D.N.Y. July 27, 2020). The court later granted summary judgment for the

Government on the remaining claims, determining that Carroll failed to establish a prima facie

case of medical malpractice under New York law, in large part because he failed to present expert

testimony to support his claim. See Carroll v. United States, No. 1:19-CV-1230 (GTS/DJS),

, at *5–8 (N.D.N.Y. June 13, 2023). The court also denied Carroll’s request for a 90-

day extension to obtain an expert.

. We assume the parties’ familiarity with the case.

I. Dismissal Decision

We review de novo an order granting a motion to dismiss under Federal Rule of Civil

Procedure 12(b)(6). Sharikov v. Philips Med. Sys. MR, Inc.,

, 166 (2d Cir. 2024). 1

A complaint survives a motion to dismiss if it pleads facts that, taken as true and with all reasonable

1 Unless otherwise indicated, when quoting cases, all internal quotation marks, alteration marks, emphases,

footnotes, and citations are omitted.

2 inferences drawn in the plaintiff’s favor, state a plausible claim to relief.

Carroll’s suit arising from his 2014 administrative claim was untimely and not tolled

by the continuous treatment doctrine. An FTCA claimant must file suit within six months after

the mailing of the agency’s denial of the claim.

(b). Carroll did not file his

complaint in federal court until more than four years after denial of his 2014 administrative

claim, making his complaint untimely as to that claim. And Carroll does not explain how the

continuous treatment doctrine, which defers the running of the limitations period until the end

of treatment, see Williamson ex rel. Lipper Convertibles, L.P. v. PricewaterhouseCoopers

LLP,

(2007), would apply to a delay in filing a federal claim after an

administrative complaint has been denied. For these reasons, we conclude that the district

court properly dismissed Carroll’s claims arising from his 2014 administrative complaint as

time-barred and not subject to tolling.

II. Summary Judgment Decision

We review a district court’s grant of summary judgment de novo, construing facts in the

light most favorable to the non-moving party and resolving ambiguities and drawing all reasonable

inferences against the moving party. Kee v. City of New York,

, 157–58 (2d Cir. 2021).

Summary judgment must be granted only if “the movant shows that there is no genuine dispute as

to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a).

Carroll’s FTCA medical malpractice claim is evaluated under the law of New York. See

Corley v. United States,

, 84–85 (2d Cir. 2021) (citing, inter alia,

(b)(1)). Under New York law, “except as to matters within the ordinary experience and

knowledge of laymen, in a medical malpractice action, expert medical opinion evidence is required

3 to demonstrate merit.” Fiore v. Galang,

(1985); see also Einaugler v. Sup.

Ct. of State of N.Y.,

(2d Cir. 1997) (acknowledging “nearly one hundred years

of New York cases” requiring expert evidence in civil tort actions for medical malpractice).

Carroll did not provide the testimony or opinion of a medical expert. Instead, he claimed

that the situation spoke for itself and indicated his intent to rely on the rule of McDermott v.

Manhattan Eye, Ear & Throat Hosp.,

, 27–30 (1964), by eliciting expert testimony

from the Government’s witnesses at trial.

We agree with the district court that Carroll’s medical malpractice claim is not within the

ordinary experience and knowledge of a layperson. For instance, he contends that it was not

relevant whether he could distinguish between pain in his lower thoracic spine versus his upper

lumbar spine, because it was a neurologist’s responsibility to differentiate these sources “given a

report of T12 pathology in the 2012 lumbar MRI” and his continual reports of pain above the

lumbar region. He also recounted his medical history with various hospitals dating back to 1991,

and claims that the hospital staff at Stratton Veterans Hospital failed to consider diagnoses of

thoraco-lumbar stenosis, synovial cysts, and radiculopathy while attributing his chronic symptoms

to cervical myelopathy. An average layperson would not be able to understand the issues in this

case, or the mistakes allegedly made by Carroll’s physicians, without the help of a medical expert.

Carroll’s reliance on McDermott is misplaced. Carroll’s ability to cross-examine the

Government’s witnesses at trial does not mean he has met his evidentiary burden at summary

judgment. Instead of providing favorable medical expert testimony, he provided only an

unsupported promise of future evidence, which was simply not enough to show that a genuine

dispute of material fact existed.

4 For these reasons, we conclude that the district court properly granted summary judgment

for the Government.

Finally, the district court did not abuse its discretion in declining to grant Carroll an

extension to obtain expert testimony under Federal Rule of Civil Procedure 56(d), see Cox v. Dep’t

of Just.,

, 213 (2d Cir. 2024), because he did not adequately support his request with

details about his prior efforts to obtain expert testimony, see Elliott v. Cartagena,

,

493 (2d Cir. 2023).

* * *

We have considered Carroll’s remaining arguments and find them unpersuasive.

Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk

5