Greenhalgh v. United States of America

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
PAMELA GREENHALGH,
Individually, and as Personal
Representative of the Estate of Edward
C. Greenhalgh, on behalf of said Estate,
Plaintiffs,
vs.
UNITED STATES OF AMERICA,
Defendant.
Case No. 3:21-cv-00052-JMK
ORDER GRANTING
DEFENDANT’S MOTION
TO AMEND
Before the Court at Docket 15 is the Government’s Motion to Amend the
FTCA Scope Certification for Dr. Madhuri Kadiyala (“the Motion”). The Motion has been
fully briefed,1 and oral argument was held before the Court on April 4, 2021, at 10 a.m. in
Anchorage, Alaska. 2 For the foregoing reasons, the Motion is GRANTED.
I. 	BACKGROUND
Plaintiff filed her Complaint on March 9, 2021, alleging medical negligence
by 	several 	physicians 	at 	Alaska 	Native 	Medical 	Center 	(“ANMC”), 	including
1 See Docket 16; Docket 18.
2 Docket 27.
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Dr. Kadiyala.3 Plaintiff’s spouse, Edward Greenhalgh, began treatment at ANMC in June
2014 and died in February 2019. 	Plaintiff alleges that Mr. Greenhalgh was subject to
medical malpractice throughout his treatment period, resulting in his death.4 	Plaintiff
alleges that Mr. Greenhalgh’s physicians were acting within the scope of their federal
employment at ANMC during the treatment period. 5 	Because ANMC is an agent of the
United States, Plaintiff’s claims are governed by the Federal Torts Claim Act (“FTCA”),
28 U.S.C. § 2671 et seq.
Relying on information provided by ANMC,6 the Government asserted in its
Answer that Dr. Kadiyala was an employee of ANMC from “March 7, 2016, to
December 29, 2017.” 7 In November 2021, the Government discovered that Dr. Kadiyala
was not an employee of ANMC until April 4, 2016.8 	The Government now moves to
amend its scope certification for Dr. Kadiyala from “March 7, 2016, to December 29,
2017” to “April 4, 2016, to December 29, 2017.” The Government also moves to amend
paragraph twelve of its Answer to reflect the revised scope.
3 Docket 1 at ¶ 11.
4 Id. at ¶¶ 16–25.
5 Id. at ¶ 12. ANMC is an Alaska Native self-determination contractor under the Indian
Self-Determination and Education Assistance Act of 1975 and is owned and operated by the
Alaska Native Tribal Health Consortium (“ANTHC”), a tribal health organization. 	As such,
ANMC is an agent of the United States vis-à-vis the Indian Health Service. See Docket 1 at ¶ 9;
Docket 6 at ¶ 9.
6 Docket 15 at 5.
7 Docket 6 at ¶ 12; see also Docket 15 at 2 (“As is the standard practice, the United States
made the scoping certification through its Answer because the jurisdictional issue was raised in
the Complaint. If Plaintiff had named Dr. Kadiyala as a defendant, the United States would have
filed an independent scoping certification and requested to be substituted as defendant.”).
8 Docket 15 at 5.
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II. 	LEGAL STANDARD
Once a scheduling order has been entered pursuant to Federal Rule of Civil
Procedure 16(b), a party must show “good cause” for failing to amend its pleading by the
court-imposed deadline.9 If the party shows good cause to modify the schedule, the Court
“should freely give leave [to amend] when justice so requires.” 10 Here, justice requires the
Court to consider both the doctrine of judicial admissions and the Westfall Act, 28 U.S.C.
§ 2679.
Factual assertions in pleadings, unless amended, are considered judicial
admissions that are conclusively binding on the party who made them.11 	This is equally
true for jurisdictional facts. 12 The district court has discretion to accept or reject a judicial
admission;13 however, when a “party making an ostensible judicial admission explains the
error in a subsequent pleading or by amendment, the trial court must accord the explanation
due weight.”14
In the present case, the judicial admission in the Government’s Answer
relates to its “scope certification.” 	The FTCA waives the United States’ sovereign
immunity for claims of negligence caused by employees of the federal government during
9 Fed. R. Civ. P. 16(b)(4). Under the Court’s Scheduling and Planning Order, the parties
were required to file motions to amend by October 18, 2021. See Docket 11 at 7.
10 Fed. R. Civ. P. 15(a)(2).
11 American Title Ins. Co. v. Lacelaw Corp., 861 F.2d 224, 226 (9th Cir. 1988).
12 De La Maza v. United States, 215 F.2d 138, 140 (9th Cir. 1954) (“[I]f jurisdiction herein
were an issue to be proven factually, it is well settled that one may stipulate to facts from which
jurisdiction may be inferred.”).
13 Singer v. State Farm Mut. Auto. Ins. Co., 116 F.3d 373, 376 (9th Cir. 1997) (citing Am.
Title Ins. Co., 861 F.2d at 227).
14 Sicor Ltd. v. Cetus Corp., 51 F.3d 848, 859–60 (9th Cir. 1995).
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the scope of their employment.15 	Under the Westfall Act, the Attorney General is
authorized to issue a certification that “the defendant employee was acting within the scope
of his office or employment at the time of the incident out of which the claim arose.”16 The
scope certification serves to substitute the United States as the party defendant.17 Pursuant
to the regulations implementing the Westfall Act, “[a] certification under this section may
be withdrawn if a further evaluation of the relevant facts or the consideration of new or
additional evidence calls for such action.” 18
III. 	DISCUSSION
Both parties agree that the Government expressly stated in its Answer that
Dr. Kadiyala was an ANMC employee starting on March 7, 2016. 	The question before
this Court is whether the Government may withdraw that admission, and, in doing so,
amend its Answer to state that Dr. Kadiyala began her federal employment on April 4,
2016.
The Government explains that (1) it is vested with the authority to withdraw
scoping certifications that it discovers were in error; (2) scoping is a jurisdictional question;
and (3) good cause exists for the amendment because the Government received new
information that identified the scoping error after the deadline to amend had passed.19 In
support, the Government offers Dr. Kadiyala’s employment agreement with ANMC, which
15 28 U.S.C. § 1346(b)(1).
16 28 U.S.C. § 2679(d)(1).
17 Id.
18 28 C.F.R. § 15.4(c).
19 Docket 15 at 3, 4, 6.
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states that “[t]he term of this Agreement is two years, beginning April 4, 2016,”20 and
Dr. Kadiyala’s contract with ANMC as a CompHealth independent contractor from
January 1, 2014, through April 1, 2016.21
In her Opposition, Plaintiff argues that (1) the Government is bound by its
judicial admission that Dr. Kadiyala was a federal employee as of March 7, 2016;
(2) Dr. Kadiyala was, in fact, a federal employee for that time period; (3) any amendment
would be extremely prejudicial to Plaintiff; and (4) the Government is equitably estopped
from seeking leave to amend.22 	However, at oral argument, Plaintiff conceded that the
documents provided by the Government show that Dr. Kadiyala was likely not a federal
employee before April 4, 2016. Plaintiff argues that justice still requires the Government
to be bound to its judicial admission because she relied on that admission.
According “due weight” to the Government’s explanation of its error, the
Court finds that the admission should be withdrawn.23 	When the Government filed its
Answer in May 2021, it relied on information provided by ANMC’s legal affairs office,
which stated that Dr. Kadiyala was an employee on March 7, 2016.24 During subsequent
discussions with Dr. Kadiyala, the Government suspected those dates were in error and
sought additional discovery from ANMC. In November 2021, one month after the deadline
to 	file 	a 	motion 	to 	amend, 	the 	Government 	received 	Dr. 	Kadiyala’s 	employment
20 Docket 15-1 at ¶ 5 (emphasis in original).
21 Docket 18-1.
22 Docket 16 at 1–2.
23 See Sicor Ltd. v. Cetus Corp., 51 F.3d 848, 859–60 (9th Cir. 1995).
24 Docket 15 at 2.
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documents. 	These documents unequivocally show that Dr. Kadiyala was a CompHealth
independent contractor, not a federal employee, until April 4, 2016.25 	The Government
then notified opposing counsel and filed the present motion. In sum, when the Government
made its admission, it was relying on the best information available to it, and when the
Government realized the error through additional discovery, it promptly moved to amend.26
The present situation is distinguishable from this Court’s recent decision in
Ahvakana v. United States.27 In Ahvakana, the Government waited seven years to allege
that plaintiffs filed their lawsuit two days before the FTCA’s six-month exhaustion period
had elapsed.28 This Court declined to withdraw the Government’s admission that plaintiffs
had exhausted their administrative remedies, noting that “[t]his is not a case where new
evidence was discovered, a mistake was quickly remedied, or new circumstances shed
doubt on previously established facts.” 	Accordingly, the Court concluded that the
Government’s explanation “that it simply forgot to review the dates” for nearly a decade
“does not carry much weight.”29 	Here, in contrast, new evidence that previously was
unavailable to the Government was revealed early in the litigation, and the Government
promptly responded. This explanation must be accorded due weight.30
25 Docket 15-1 at ¶ 5; Docket 18-1.
26 See Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992)
(“Rule 16(b)’s ‘good cause’ standard primarily considers the diligence of the party seeking the
amendment.”).
27 Ahvakana v. United States, Case No. 3:13-cv-00010-JMK, 2022 WL 489613 (D. Alaska
Feb. 17, 2022).
28 Id. at *2.
29 Id. at *6.
30 C.f. White v. United States, No. CV-10-08128-PCT-JRG, 2011 WL 6175933, at *3 (D.
Ariz. Dec. 9, 2011) (denying motion to amend scope of employment in FTCA case because “the
United States has not explained to the court why its position on [employee’s] employment status
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The Westfall Act supports—but does not command—this result. 	The
Government cites Jamison v. Wiley, in which the Fourth Circuit found that the Westfall
Act specifically permits the United States to withdraw a scope certification “if a further
evaluation of the relevant facts or the consideration of new or additional evidence calls for
such action.”31 The court remarked that it would be “inconceivable” that Congress could
have intended to give the Government power to issue scope certifications without also
giving it the authority to withdraw any certifications that were issued in error. 32 Here, the
Westfall Act encourages amendment, specifically because the Government acted with
diligence in exercising its authority. The Court notes, however, that the holding in Jamison
relates to Westfall Act substitution, not a motion to amend. To the extent the Government
suggests otherwise, the Court is unconvinced that the Westfall Act permits the Government
to avoid the “good cause” requirement of Rule 16 or retract judicial admissions without
proper explanation.33
Plaintiff argues that the Government should be bound by its admission,
regardless of the Westfall Act or any explanation of the error. Plaintiff cites a District of
has changed, nor has it offered any evidence that it was diligent in attempting to comply with the
. . . amendment deadline.”).
31 14 F.3d 222, 234 (4th Cir. 1994) (quoting 28 C.F.R. § 15.3(a)).
32 Id.
33 For example, in White v. United States, a party sued under the FTCA when a school bus
driver negligently drove off the road. In its Answer, the Government admitted that the driver was
a federal employee and acting within the scope of his employment. It then sought to withdraw that
admission by moving to amend under Rule 16. The Court did not find good cause to amend and
denied the motion. 	2011 WL 6175933, at *3; see also Sandoval v. United States, Civil Action
No. 7:21-cv-00291, 2021 WL 4990820, at *2 (S.D. Tex. Oct. 27, 2021) (treating statement in
Government’s answer that employee was acting within scope of federal employment as a binding
judicial admission).
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Montana decision adopting the Fourth Circuit’s test for whether the Court should exercise
its discretion in rejecting an admission.34 “In relieving a party of a judicial admission, the
court should be ‘convinced that [1] an honest mistake had been made, [2] the original
allegation was untrue, and [3] that justice requires relief.’”35 Plaintiff’s argument also fails
under this test.
In reference to the first and second factor, Plaintiff’s briefing asserts that
there was no mistake and that the admission is correct. 36 	However, at oral argument,
Plaintiff acknowledged that the employment contracts show that Dr. Kadiyala was, in fact,
an independent contractor before April 4, 2016.37 The evidence before the Court convinces
it that the original allegation was untrue, and an honest mistake had been made.38
Therefore, the first and second factor weigh in favor of amendment.
Regarding the third factor, Plaintiff argues that she would be unfairly
prejudiced by the amendment. The Government’s admission “lulled Pamela’s counsel into
allowing her suit to suffer dismissal, arguably beyond the limitations period. If Pamela is
now unable to proceed against Dr. Kadiyala, Pamela will have suffered forfeiture of a
34 Docket 16 at 5.
35 Hoffman v. GEICO Ins. Co., Cause No. CV 06-83-M-JCL, 2007 WL 9710396, at *8 (D.
Mont. Oct. 16, 2017) (quoting Coral v. Gonse, 330 F.2d 997, 998 n.1 (4th Cir. 1964)).
36 Docket 16 at 6–7.
37 When 	Plaintiff 	opposed 	the 	motion 	to 	amend, 	counsel 	had 	not 	yet 	received
Dr. Kadiyala’s independent contractor agreement that the Government appended to its Reply.
38 This finding is only for the purposes of this Order. 	If the Government amends its
Answer and scope certification, Plaintiff still may factually challenge the dates of Dr. Kadiyala’s
employment. 	See Gutierrez de Martinez v. Lamagno, 515 U.S. 417 (1995). 	The amendment
contemplated by this Order will simply release the Government from the binding effect of its
previous admission.
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sizeable portion of her damages.”39 When the Government certified that Dr. Kadiyala was
a federal employee starting March 7, 2016, it was “effectively and reliably signaling to the
undersigned that he could . . . allow the state action to abate.”40 	In sum, Plaintiff claims
that the statute of limitations has run against Dr. Kadiyala, and as such, amendment would
be “prejudicial in the extreme.” 41
The Court is not persuaded that Plaintiff will suffer such significant
prejudice. 	The impact of the amendment on Plaintiff’s case is limited to Dr. Kadiyala’s
conduct during the four-week period from March 7, 2016, to April 4, 2016. 	Plaintiff
confirmed that Dr. Kadiyala continued to treat Mr. Greenhalgh after April 4, 2016, and
Plaintiff may recover for Dr. Kadiyala’s alleged malpractice during that timeframe.42
Further, at oral argument, Plaintiff acknowledged that Dr. Kadiyala is one of three doctors
to treat Mr. Greenhalgh during the four-week period at issue. 	It simply is untrue that
Plaintiff now is “unable to proceed” against Dr. Kadiyala or otherwise try the suit on the
merits. 43
During oral argument, Plaintiff explained that this four-week period is crucial
to her case because, as Mr. Greenhalgh’s cancer developed, he was less likely to survive
39 Docket 16 at 8 n.14.
40 Id. at 12.
41 Id.
42 At oral argument, the parties disagreed about whether Dr. Kadiyala may be liable in the
present suit for her conduct before April 4, 2016. The Government argues that Dr. Kadiyala still
may be pled to this case before her federal employment; the Government simply will not represent
her. Plaintiff argues that the statute of limitations has run, such that Dr. Kadiyala cannot be named
as an individual. The Court does not address this issue because it does not affect its conclusion on
this Motion.
43 Docket 16 at 8, 12.
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treatment. 	According to Plaintiff, Dr. Kadiyala was one of the last doctors to treat
Mr. Greenhalgh while his cancer was still treatable; presumably, this window closed soon
after April 2016. However, Plaintiff’s own conduct does not support the dispositive nature
of these four weeks. Plaintiff first sued Dr. Kadiyala in both state and federal court.44 In
May 	2021, 	the 	Government 	answered 	Plaintiff’s 	federal 	Complaint, 	stating 	that
Dr. Kadiyala was a federal employee beginning March 7, 2016.45 	Because of the
Government’s admission, Plaintiff allowed the state court action to be dismissed.46
Plaintiff therefore chose to dismiss any claims against Dr. Kadiyala based on her conduct
before March 7, 2016—seemingly dismissing claims during the critical treatment window
that Plaintiff now claims is necessary to her case. 	Second, as the Government notes,
Plaintiff dismissed her state case in August 2019, before the parties’ deadline to amend in
the present case. 47 	While the Court accepts that Plaintiff relied on the Government’s
Answer, that reliance does not create such prejudice that the Court should bind the
Government to an admission which both parties acknowledge is incorrect.
Last, Plaintiff submits that the Government is equitably estopped from
seeking leave to amend.48 “Judicial estoppel is an equitable doctrine invoked by a court at
its discretion. Its purpose is to protect the integrity of the judicial process by prohibiting
44 Id. at 3; see also Pamela Greenhalgh v. Madhuri Kadiyala, M.D. et al, Case No. 3AN-
20-09012 CI (Alaska Super. Ct. Nov. 9, 2020).
45 Docket 6 at ¶ 12.
46 Docket 16 at 3–4.
47 See Docket 11 at 7; “Order re Dismissal for Failure to Serve,” Pamela Greenhalgh v.
Madhuri Kadiyala, M.D. et al, Case No. 3AN-20-09012 CI (Alaska Super. Ct. Aug. 23, 2021).
48 Docket 16 at 13–15.
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parties from deliberately changing positions according to the exigencies of the moment.”49
Plaintiff cites the requirements for equitable estoppel under Alaska state law: “the assertion
of a position by conduct or word, reasonable reliance thereon by another party, and
resulting prejudice.”50 	However, “[e]ven if these requirements are present, an estoppel
against the government will not be invoked if the public interest would be significantly
prejudiced.”51
As discussed, Plaintiff’s reliance on the Government’s Answer was not
entirely reasonable, as she dismissed her state court action before the deadline to amend,
and the Court does not find amendment will result in significant prejudice. 	More
importantly, the public interest would be significantly impacted if the Court refused
amendment. The Westfall Act explicitly authorizes the Government to withdraw its scope
certification upon discovery of new evidence.52 While this may not release the Government
from Rule 16(b)’s “good cause” requirement, it certainly permits the United States to seek
leave to amend—especially when amendment is not a result of bad faith or gamesmanship.
The public has great interest in the federal government only representing federal employees
as provided by law.53 	To evoke estoppel against the Government in this case would be
contrary to both public policy and the public interest.
49 Ah Quin v. Cnty. of Kauai Dept. of Transp., 733 F.3d 267, 270 (9th Cir. 2013) (internal
quotations and citation omitted).
50 Docket 16 at 14 (quoting Foster v. Hanni, 841 P.2d 164, 171 (Alaska 1992)).
51 VECO Int’l, Inc. v. Alaska Pub. Offices Comm’n, 753 P.2d 703, 709 (Alaska 1988)
(citing Mun. of Anchorage v. Schneider, 685 P.2d 94, 97 (Alaska 1984)).
52 28 C.F.R. § 15.4(c).
53 See 28 U.S.C. § 2679(d)(1).
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IV. 	CONCLUSION
For the above reasons, Defendant’s Motion to Amend at Docket 15 is
GRANTED. Defendant shall file its Amended Answer as soon as practicable.
IT IS SO ORDERED this 31st day of May, 2022, at Anchorage, Alaska.
/s/ Joshua M. Kindred
JOSHUA M. KINDRED
United States District Judge
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