TOMASZ OSZCZYPALA GABRIELA ZATORSKA v. UNITED STATES OF AMERICA (2024)

ORDER

THIS CAUSE comes before the Court for consideration of Defendant United States of America's (the “Government”) Motion for Summary Judgment, the response in opposition thereto, and the reply. (Dkts. 42, 44, 47) Upon consideration of the relevant filings, case law, and being otherwise fully advised, the Court GRANTS Defendant's Motion for Summary Judgment.

I. BACKGROUND

Tomasz D. Oszczypala (“Mr. Oszczypala”) lives at 410 Lakewood Drive in Oldsmar, Florida, with his wife, Gabriela I. Zatorska (“Ms. Zatorksa”). (Dkt. 46 at 1) On January 8, 2021, Mr. Oszczypala was sitting on his back patio when he heard a continuous loud aircraft engine noise, which persisted for several minutes. (Dkt. 22 at 9) Four Marine Corps F/A-18 fighter jets had taken off from St. Pete-Clearwater International Airport at approximately 7 – 7:15 pm, flying north through Oldsmar airspace. (Dkt. 46 at 1) According to Plaintiffs, the lowest aircraft of the four was between 4,400-4,647 feet away from their house during the flyover. (Id. at 1-2) The Government, however, stipulates that the lowest aircraft of the four was at least 4,400-4,647 feet away from Plaintiffs’ house during the flyover. (Id. at 2) The parties agree that the pilots acted within the course and scope of their employment. (Id.)

Mr. Oszczypala claims that, as the fighter jets flew in the air, he began to experience sudden severe bilateral earache as the noise got louder, eventually experiencing further symptoms over the following days. (Dkt. 22 at 9) On Monday, January 11, 2021, he went to seek medical care with primary care Dr. Kundra and with otolaryngologist (commonly referred to as an “ENT”) Dr. Merchant on January 13, 2021. (Dkt. 46 at 2)

On November 16, 2022, Plaintiffs, who are proceeding pro se, initiated this action against the Government. Plaintiffs allege the Government is liable for negligence as against Mr. Oszczypala, pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C § 1346(b). (Dkt. 22 at 7) Mr. Oszczypala claims damages in the amount of $1,000,000.00 for physical and emotional injuries. (Id. at 3) Ms. Zatorska sues the Government for loss of consortium due to her husband's injuries. (Id. at 4)

On July 24, 2023, the Court entered a Case Management and Scheduling Order (“CMSO”). (Dkt. 23) The order imposed deadlines for the Parties’ expert disclosures – February 26, 2024, for Plaintiffs and March 26, 2024, for Defendant. (Id. at 2) Plaintiffs did not disclose any experts on that date, so Defendant emailed Mr. Oszczypala asking him if he would like an extension. (See Dkt. 42-9) Mr. Oszczypala told Defendant that “[c]urrent legal provisions of FTCA limit attorneys’ fees and discourage them to fight for justice for injured individuals. Without an attorney it is very difficult for Pro se litigants to fight for justice. I don‘t plan on bringing any expert witnesses. But thanks for the reminder.” (Id.) (emphasis added)

On June 10, 2024, the Government filed its motion for summary judgment. (Dkt. 42) Therein, the Government contends that it is entitled to summary judgment because Mr. Oszczypala cannot prove causation, and he has failed to set forth any evidence to show that the Government breached a duty owed to him. (Id. at 1) Because Ms. Zatorska's loss of consortium claim is a derivate right, and she may recover only if her husband has a cause of action, Ms. Zatorska's claim must necessarily fail. (Id. at 1-2) Plaintiffs filed their response in opposition on July 12, 2024. (Dkt. 44) Therein, Mr. Oszczypala claims the Government breached a duty of care owed to him. (Id. at 1) He further contends that “Dr. Merchant's causation is valid.” (Id. at 2) Accordingly, Plaintiffs assert that the Court should deny summary judgment. On August 5, 2024, the Government filed its reply. (Dkt. 47) The motion is now ripe for review.

II. STANDARD OF REVIEW

The Court must “grant summary judgment 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); see also Waddell v. Valley Forge Dental Assocs., Inc., 276 F.3d 1275, 1279 (11th Cir. 2001) (explaining that “[s]ummary judgment is proper if the pleadings, depositions, and affidavits show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law”). For a factual dispute between the parties to defeat summary judgment, the factual dispute must be “both genuine and material.” Miccosukee Tribe of Indians of Fla. v. United States, 516 F.3d 1235, 1243 (11th Cir. 2008). A fact is material if it “affect[s] the outcome of the suit under the governing law,” and is genuine “if a reasonable trier of fact could return judgment for the non-moving party.” Id.

A court will “construe the facts and draw all inferences in the light most favorable to the nonmoving party and when conflicts arise between the facts evidenced by the parties, [the court will] credit the non[-]moving party's version.” Davis v. Williams, 451 F.3d 759, 763 (11th Cir. 2006) The role of the jury is to weigh the evidence and determine credibility, “[t]herefore, if the determination of the case rests on which competing version of the facts or events is true, the case should be submitted to the trier of fact and the motion for summary judgment denied.” Hodgetts v. City of Venice, Fla., 794 F. Supp. 2d 1265, 1271 (M.D. Fla. 2011)

A moving party discharges its burden on a motion for summary judgment by pointing out to the Court that there is an absence of evidence to support the non-moving party's case. Denney v. City of Albany, 247 F.3d 1172, 1181 (11th Cir. 2001) (citation omitted). When a moving party has discharged its burden, the non-moving party must then designate specific facts (by its own affidavits, depositions, answers to interrogatories, or admissions on file) that demonstrate there is a genuine issue for trial. Porter v. Ray, 461 F.3d 1315, 1320-1321 (11th Cir. 2006) (citation omitted). The party opposing a motion for summary judgment must rely on more than conclusory statements or allegations unsupported by facts. Evers v. Gen. Motors Corp., 770 F.2d 984, 986 (11th Cir. 1985) (“conclusory allegations without specific supporting facts have no probative value.”). “If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact ․ the court may grant summary judgment if the motion and supporting materials ․ show that the movant is entitled to it.” Fed. R. Civ. P. 56(e).

III. DISCUSSION

“The FTCA represents a limited congressional waiver of sovereign immunity for injury or loss caused by the ‘negligent or wrongful act or omission’ of a government employee ‘acting within the scope of his office or 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 act or omission occurred.’ ” Shivers v. United States, 1 F.4th 924, 928 (11th Cir. 2021) (quoting 28 U.S.C. § 1346(b)(1)). As such, “the source of substantive liability under the FTCA is state law, not federal law.” Jones v. United States, Case No. 22-13381, 2024 U.S. App. LEXIS 4659, 2024 WL 837054, at *2 (11th Cir. 2024) (quoting Shivers, 1 F.4th at 928)). Accordingly, the proper inquiry for this Court is to determine whether Mr. Oszczypala's claims support liability under Florida law.

“The elements of a negligence claim under Florida law are: (1) a legal duty on the defendant to protect the plaintiff from particular injuries; (2) the defendant's breach of that duty; (3) the plaintiff's injury being actually and proximately caused by the breach; and (4) the plaintiff suffering actual harm from the injury.” Zivojinovich v. Barner, 525 F.3d 1059, 1067 (11th Cir. 2008) (citing Clay Elec. Coop., Inc. v. Johnson, 873 So. 2d 1182, 1185 (Fla. 2003)). “Under Florida law, the plaintiff bears the burden of proof on all four elements of negligence, including causation.” Mustafa v. United States, Case No. 21-20633-CIV, 2022 WL 18023353, at *11 (S.D. Fla. Sept. 15, 2022).

Here, Mr. Oszczypala claims that the airplane flyover caused him hearing loss, tinnitus, and hyperacusis (sensitivity to sound). (Dkt. 42-4) Mr. Oszczypala also claims to suffer from associated mental injuries. (Id.) As the Government correctly notes, none of these claimed injuries are readily observable. See Rivera v. Royal Caribbean Cruises, Ltd., 711 F. App'x 952, 955 (11th Cir. 2017) (depression and anxiety must be established by expert testimony because it is not readily observable); Maag v. Silversea Cruises, Ltd., No. 18-21535-civ-Williams/Torres, 2019 U.S. Dist. LEXIS 67152 at * (S.D. Fla. Apr. 18, 2019), report and recommendation adopted, No. 18-21535-civ-Williams/Torres, 2019 U.S. Dist. LEXIS 84538 (S.D. Fla., May 10, 2019) (plaintiff's hearing loss is not a readily observable medical condition).

Consequently, Plaintiff must submit expert testimony to establish that the flyover caused his alleged injuries. See, e.g., Willis v. Royal Caribbean Cruises, Ltd., 77 F.4th 1332, 1338 (11th Cir. 2023) (“Looking to Florida negligence law, we find the same rule: non-readily observable injuries require expert medical evidence to prove causation.”); Rivera, 711 F. App'x at 954 (“When the causal link between alleged injuries and the incident at issue is not readily apparent to a lay person, expert medical testimony as to medical causation is typically required.”) Here, Mr. Oszczypala has failed to submit any expert medical testimony to establish either his physical or mental injuries. As such, summary judgment is due to be GRANTED in favor of the Government. See Rementer v. United States, 8:14-cv-642-T-17MAP, 2017 U.S. Dist. LEXIS 40631 at *51 (M.D. Fla. Mar. 21, 2017) (“In the negligence context under Florida law, “lay testimony is legally insufficient to support a finding of causation where the medical condition involved is not readily observable.”). Mr. Oszczypala's arguments, for a contrary result, are misplaced.

First, Mr. Oszczypala claims he “disclosed non-retained expert witnesses on many occasions” (Dkt. 44 at 7), pointing to his Amended Initial Disclosures for support. (See Dkt. 44-3) Because his treating physicians are not retained experts, Mr. Oszczypala suggests they can testify under Fed. R. Civ. P. 26(a)(2)(C)¹ —including on the issue of causation—without providing a Rule 26(a)(2)(B) written report. Id. While the Court agrees that treating physicians are generally not required to produce a Rule 26(a)(2)(B) report, see Cedant v. United States, 75 F.4th 1314 (11th Cir. 2023), the problem for Mr. Oszczypala is that he never identified his treating physicians as experts in Rule 26(a)(2)(C) disclosures. As noted above, he expressly informed the Government that “[he did not] plan on bringing any expert witnesses.” (See Dkt. 42-9)

Mr. Oszczypala suggests that his Rule 26(a)(1) initial disclosures serve as an adequate substitute for Rule 26(a)(2) expert disclosures. He is wrong. Rule 26(a)(1) initial disclosures are distinct from Rule 26(a)(2) expert disclosures. See Fed. R. Civ. P. 26(a)(2)(A) (stating Rule 26(a)(2) expert disclosures must be made “in addition to the disclosures required by Rule 26(a)(1)”). And if a party fails to identify a witness as an expert as required by Rule 26(a)(2), the party is not allowed to use that witness's testimony unless the failure was substantially justified or harmless. Fed. R. Civ. P. 37(c)(1). Mr. Oszczypala has failed to explain why his failure to disclose his treating physicians as experts was either substantially justified or harmless. (See generally, Dkt. 44)

Second, Mr. Oszczypala asserts that he “disclosed physician and medical opinion letter[s] when filing [the] administrative claim” during the FTCA administrative process. (Dkt. 44 at 7) As a result, he claims he did not need to comply with the expert disclosure requirement under Rule 26. He is mistaken. Mr. Oszczypala was not relieved of his obligation to comply with Rule 26(a)(2)’s expert disclosure requirement simply because he disclosed physician and medical records during the FTCA administrative process.

Finally, to the extent Mr. Oszczypala attempts to make expert disclosures at this stage of the case, the Court rejects such an attempt. Plaintiffs’ expert report disclosure deadline was February 26, 2024. (See Dkt. 23 at 2) Defendant's expert report disclosure deadline was March 26, 2024. (Id.) The rebuttal expert report disclosure deadline was April 9, 2024. (Id.) Plaintiffs never moved for an extension to their expert report disclosure deadline. Discovery then closed on May 10, 2024. (Id.) Plaintiffs never moved for an extension to the discovery deadline. Thereafter, knowing that Plaintiffs were not introducing any experts, the Government filed its motion for summary judgment. See Poole v. Gee, 8:07-cv-912-EAJ, 2008 U.S. Dist. LEXIS 48356 at *6 (M.D. Fla. June 10, 2008), report and recommendation adopted, 2008 U.S. Dist. LEXIS 116637 (M.D. Fla. Aug. 8, 2008) (untimely disclosure filed two weeks after discovery closed “deprived [Defendant] of the opportunity to depose the [Plaintiffs] expert, challenge [his or her] credentials, retain an expert of [Defendant's] choosing, or conduct expert-related discovery”). Simply put, as the Government correctly notes, “a discovery do-over would needlessly expend Court resources, and additional discovery to resurrect the case after the United States has filed its motion for summary judgment would prejudice Defendant.” (Dkt. 47 at 3)

Because Mr. Oszczypala has failed to submit medical expert evidence opining on the issue of causation, he cannot prove causation — an essential element of his claim. See Rodriguez, 2021 U.S. Dist. LEXIS 195991 at *18 (citing Allison v. McGhan Med. Corp., 184 F.3d 1300, 1322 (11th Cir. 1999)). Accordingly, there is no genuine issue of material fact as to medical causation, and Mr. Oszczypala's negligence-based claim fails. Further, because Mr. Oszczypala's claim fails, Ms. Zatorska's derivate loss of consortium claim also fails. See ACandS, Inc. v. Redd, 703 So. 2d 492, 494 (Fla. 3d DCA 1997) (“[a wife's] claim for loss of consortium is derivative in nature and wholly dependent on her husband's ability to recover.”) (quoting Faulkner v. Allstate Ins. Co., 367 So. 2d 214, 217 (Fla.1979)). The Government is entitled to summary judgment.

IV. CONCLUSION

Accordingly, it is hereby ORDERED as follows:

1. Defendant's Motion for Summary Judgment (Dkt. 42) is GRANTED.

2. The Clerk is directed to enter final judgment in favor of Defendant United States of America and against Plaintiff.

3. Following the entry of judgment, the Clerk is directed to terminate any pending motions and deadlines and thereafter CLOSE this case.

DONE and ORDERED in Tampa, Florida, this 30th day of December 2024.

FOOTNOTES

1.   Fed. R. Civ. P. 26(a)(2)(C) provides: “Unless otherwise stipulated or ordered by the court, if the witness is not required to provide a written report, this disclosure must state: (i) the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705; and (ii)a summary of the facts and opinions to which the witness is expected to testify.”

MARY S. SCRIVEN UNITED STATES DISTRICT JUDGE