ORDER

MARCIA MORALES HOWARD, District Judge.

THIS CAUSE is before the Court on (1) Plaintiff's Motion for Partial Summary Judgment as to Defendant's Twelfth Affirmative Defense and Incorporated Memorandum of Law in Support of Same (Doc. 36; Garcia's First Motion), filed on April 2, 20151;

(2) Plaintiff's Motion for Partial Summary Judgment as to the Standard of Care Relating to Delivery of Robert Garcia's Sleep Study Report to His Primary Care Manager and Incorporated Memorandum of Law in Support of Same (Doc. 37; Garcia's Second Motion) (collectively "Garcia Motions"), filed on April 2, 20152; and (3) Defendant's Motion for Summary Judgment and Suppor[t]ing Memorandum of Law (Doc. 48; United States' Motion), filed on June 1, 2015.3 On April 27, 2015, the United States filed Defendant's Memorandum in Opposition to Plaintiff's Motion for Partial Summary Judgment as to Defendant's Twelfth Affirmative Defense (Doc. 45; United States' Response to Garcia's First Motion) and Defendant's Memorandum in Opposition to Plaintiff's Motion for Partial Summary Judgment as to the Standard of Care Relating to Delivery of Robert Garcia's Sleep Study to His Primary Care Manager (Doc. 46; United States' Response to Garcia's Second Motion).4 On June 30, 2015, Plaintiff, Monica Garcia, filed Plaintiff's Response and Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment (Doc. 52; Garcia's Response).5 With the Court's leave, see Docs. 55, 60, the United States filed its Reply in Support of USA's Motion for Summary Judgment (Doc. 56; United States' Reply) on August 3, 2015,6 and Mrs. Garcia filed Plaintiff's Sur-Reply to Defendant's Reply in Support of Its Motion for Summary Judgment (Doc. 61; Garcia's Surreply) on September 21, 2015. Accordingly, this matter is ripe for review.

I. Background7

On June 11, 2010, Robert Garcia attended an appointment with Captain (now Major) Scott Schafer, a certified physician's assistant, at the 673rd Medical Group at Joint Base Elmendorf-Richardson outside Anchorage, Alaska. Doc. 48-2 at 31-35. Maj. Schafer observed that Mr. Garcia "said he is . . . concerned with his sleep. He stated his wife's been telling him that he snores heavily[,] and he also mentioned not getting a full night of sleep lately." Id. at 32. Maj. Schafer further observed that Mr. Garcia had "no formal [history] of insomnia or sleep apnea; does not have [diagnosed] primary snoring." Id. at 34. Maj. Schafer noted that Mr. Garcia complained of ongoing sleep problems, increasing daytime somnolence, morning fatigue, and snoring problems, and that Mr. Garcia stated he had never had therapy for the problem but had been taking over-the-counter Tylenol PM daily. Id. Mr. Garcia denied having trouble falling asleep at night and denied falling asleep at work, in the car, and watching movies or television but reported waking up throughout the night. Id. Mr. Garcia reported he occasionally drank alcohol one to two hours before bed. Id. Additionally, Mr. Garcia denied any history of sleep apnea or restless-leg syndrome. Id. That same day, Maj. Schafer referred Mr. Garcia on a routine basis to the 673rd Medical Group's Sleep Disorder Center ("the Sleep Lab") for a sleep study. Id. In the meantime, Mr. Garcia attended several other appointments at Maj. Schafer's request and saw Maj. Schafer on August 16, 2010, for a follow-up appointment. Id. at 10-30.

On August 16, 2010, Mr. Garcia participated in a split-night sleep study8 conducted by Registered Polysomnographic Technologist Nancy Johnston. Johnston Depo. at 9; Ashman Depo. at 79, 118; Doc. 48-2 at 4-5. The study results were sent out for review by independent contractor Dr. Daron Scherr, a physician specializing in sleep medicine. Johnston Depo. at 36-37; Ashman Depo. at 50, 93.9 Dr. Scherr issued a report, which included a diagnosis of "Severe Obstructive Sleep Apnea (OSA) with significant oxyhemoglobin desaturation"10 and a recommendation that Mr. Garcia begin treatment with a continuous-positive-airway-pressure ("CPAP") machine.11 Doc. 48-2 at 6-9. On August 25, 2010, Dr. Scherr's report was uploaded to the Department of Defense's electronic medical-record system, id. at 8, but was never sent to Maj. Schafer or Mr. Garcia, Schafer Depo. at 63-64; Herold Depo. at 85.

On October 5, 2010, Mr. Garcia saw Dr. Eric Ashman, a neurologist and the director of the Sleep Lab at the time, for a follow-up appointment to discuss the sleep-study results. Ashman Depo. at 74-75, 100; Doc. 48-2 at 1-3. Dr. Ashman discussed the results and treatment options with Mr. Garcia, and Mr. Garcia chose to begin treatment with a CPAP machine. Ashman Depo. at 100; Doc. 48-2 at 3. Dr. Ashman ordered the CPAP machine, Doc. 48-2 at 3, and the medical-equipment provider approved the order on October 12, 2010, Herold Depo. at 56. On October 16, 2010, before he received the CPAP machine, Mr. Garcia died. Doc. 1 ¶ 20; Doc. 29 ¶ 20. Although a medical examiner did not perform an autopsy or toxicological testing to determine Mr. Garcia's cause of death, see Doc. 52-4; Kreitzer Depo. at 90, the death certificate listed respiratory failure and obstructive sleep apnea as his causes of death, Doc. 52-4.

On December 29, 2010, Mrs. Garcia, her daughters (Jessica and Erica Garcia), and the Estate of Mr. Garcia filed administrative claims with the Department of the Air Force, and the United States denied them initially on November 22, 2011, and on reconsideration on August 12, 2012.12 Doc. 1 ¶ 9; Doc. 29 ¶ 9. Mrs. Garcia then filed this lawsuit on December 20, 2012, alleging that federal employees and the medical facilities at JBER negligently failed to timely evaluate and treat Mr. Garcia's obstructive sleep apnea. Doc. 1 (Complaint). On March 18, 2013, the United States answered the Complaint. Doc. 5 (Answer). With the Court's leave, and without opposition from Mrs. Garcia, the United States filed an Amended Answer on October 16, 2014. Doc. 29. On April 2, 2015, Mrs. Garcia filed her First and Second Motions for partial summary judgment, and on June 1, 2015, the United States filed its Motion for summary judgment.

II. Standard of Review

Under Rule 56, Federal Rules of Civil Procedure (Rule(s)), "[t]he court shall 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." Rule 56(a). The record to be considered on a motion for summary judgment may include "depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials." Rule 56(c)(1)(A).13 An issue is genuine when the evidence is such that a reasonable jury could return a verdict in favor of the nonmovant. See Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996) (quoting Hairston v. Gainesville Sun Publ'g Co., 9 F.3d 913, 919 (11th Cir. 1993)). "[A] mere scintilla of evidence in support of the non-moving party's position is insufficient to defeat a motion for summary judgment." Kesinger ex rel. Estate of Kesinger v. Herrington, 381 F.3d 1243, 1247 (11th Cir. 2004) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)).

The party seeking summary judgment bears the initial burden of demonstrating to the court, by reference to the record, that there are no genuine issues of material fact to be determined at trial. See Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). "When a moving party has discharged its burden, the non-moving party must then go beyond the pleadings, and by its own affidavits, or by depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590, 593-94 (11th Cir. 1995) (internal citations and quotation marks omitted). Substantive law determines the materiality of facts, and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248. In determining whether summary judgment is appropriate, a court "must view all evidence and make all reasonable inferences in favor of the party opposing summary judgment." Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir. 1995) (citing Dibrell Bros. Int'l, S.A. v. Banca Nazionale Del Lavoro, 38 F.3d 1571, 1578 (11th Cir. 1994)). "Where the nonmoving party has failed to make a sufficient showing `to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial,' there exist no genuine issues of material fact." Mize, 93 F.3d at 742 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)).

III. Discussion14

It is well-established that the United States is immune from suit unless it has consented to be sued, and its consent to be sued defines the terms and conditions upon which it may be sued. United States v. Mitchell, 445 U.S. 535, 538 (1980). The Federal Tort Claims Act ("FTCA") provides that the United States may be held liable for money damages for "injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment" in the same manner and to the same extent as a private person under like circumstances. 28 U.S.C. § 1346(b)(1); Turner ex rel. Turner v. United States, 514 F.3d 1194, 1203 (11th Cir. 2008). Thus, the "FTCA is a specific, congressional exception" to the United States' sovereign immunity. Suarez v. United States, 22 F.3d 1064, 1065 (11th Cir. 1994). As such, the waiver of sovereign immunity permitted under the FTCA "must be scrupulously observed, and not expanded, by the courts." Id. While the FTCA waives the United States' sovereign immunity from suit in federal courts for the negligent actions of its employees, this waiver of sovereign immunity is subject to several exceptions, Cohen v. United States, 151 F.3d 1338, 1340 (11th Cir. 1998), including for performance of or failure to perform a discretionary function, 28 U.S.C. § 2680(a), and for acts or omissions of an independent contractor, see 28 U.S.C. § 2671; Means v. United States, 176 F.3d 1376, 1379-80 (11th Cir. 1999).

Pursuant to the FTCA, the liability of the United States is determined "in accordance with the law of the place where the act or omission occurred," 28 U.S.C. § 1346(b)(1), which, in this case, is the state of Alaska. Under Alaska law, a plaintiff bringing an action based on medical malpractice must prove the following by a preponderance of the evidence:

AS § 09.55.540(a). There is no presumption of negligence. AS § 09.55.540(b).

"In medical malpractice actions[,] the jury ordinarily may find a breach of professional duty only on the basis of expert testimony . . . [except] in non-technical situations where negligence is evident to lay people." Kendall v. State, Div. of Corrs., 692 P.2d 953, 955 (Alaska 1984). Alaska Statutes section 09.20.185 governs expert-witness qualifications in medical-malpractice actions.15 Under that provision, an expert is competent to testify on the issue of the appropriate standard of care if he or she is:

AS § 09.20.185(a).

A. United States' Objections to Experts

Citing Liebsack v. United States, 731 F.3d 850 (9th Cir. 2013), the United States contends that Mrs. Garcia has failed to proffer experts competent to testify as to the standards of care applicable to Dr. Ashman and Johnston. United States' Motion at 9, 11-12. It argues that Alaska Statutes section 09.20.185(a) must be construed narrowly such that Mrs. Garcia would need expert opinions from a neurologist to opine on the standard of care applicable to Dr. Ashman and from a registered polysomnographic technologist to opine on the standard of care applicable to Johnston. Id. at 8-9, 11-12. Mrs. Garcia responds that the statute requires an expert who specializes in a field or matter that is at issue in the case and that she bears the burden of establishing violation of a standard of care ordinarily exercised by providers "in the field or specialty in which the defendant is practicing." Garcia's Response at 8-10. As such, she argues, Dr. Kreitzer—a specialist in sleep medicine with expertise in sleep-clinic operation—is competent to testify because the field at issue in this case is sleep medicine, and Dr. Ashman was practicing in sleep medicine (not neurology) when he was the director of the Sleep Lab. Id. She does not respond to the United States' contention that no expert is competent to testify as to the standard of care applicable to Johnston. See generally Garcia's Response; Garcia's Surreply.

The Court does not address whether Dr. Kreitzer is competent to testify as an expert in this case. As explained infra, his opinions do not create a genuine dispute for trial because they do not establish that any specific federal employee was negligent in a way that proximately caused Mr. Garcia's death. Thus, whether he is a competent expert witness under Alaska law is immaterial. Similarly, whether any of Mrs. Garcia's experts is competent to opine as to the standard of care applicable to Johnston is immaterial because, as discussed infra, no expert opined that Johnston violated any standard of care.

B. Mrs. Garcia's Claims

The parties agree that, to succeed on her claims under the FTCA, Mrs. Garcia must identify specific government employees who she contends were negligent. See United States' Motion at 17; Garcia's Response at 5-11; Garcia's Surreply at 3-4. Indeed, "[t]he alleged tortfeasor's status as an `employee of the government' is the sine qua non of liability under the FTCA." Means, 176 F.3d at 1379 (quoting 28 U.S.C. § 1346(b)(1); citing Sheridan v. United States, 487 U.S. 392, 400-01 (1988)). As such, a claim can proceed against the United States under the FTCA only to the extent the person purportedly responsible for the alleged harm was a government employee. "The FTCA defines an `employee of the government' to include `officers or employees of any federal agency, members of the military or naval forces of the United States, . . . and any persons acting on behalf of a federal agency in any official capacity." Id. (quoting 28 U.S.C. § 2671). "Whether an individual is an employee of the United States for purposes of the FTCA is determined by federal law." Id. As such, the Court will focus on the people who Mrs. Garcia contends were negligent: Maj. Schafer, Dr. Rebecca Briscoe, the "sleep lab personnel" (Johnston, Sayuri Jackson,16 Sgt. Dyson, and Sgt. Hess17), and Dr. Ashman. See Garcia's Response at 5-11. The United States contends that Mrs. Garcia has presented no evidence establishing that any of those people was negligent, see United States' Motion at 9-14, 17; United States' Reply at 1-7; in response, Mrs. Garcia contends that her experts' opinions establish that some or all of those people violated applicable standards of care, which contributed to the delay in Mr. Garcia's treatment that purportedly led to his death, see Garcia's Response at 5-11; Garcia's Surreply at 3-4.

1. Maj. Schafer

Mrs. Garcia contends that Maj. Schafer "was negligent in three primary ways": (1) failing to follow up after referring Mr. Garcia for a sleep study to ensure that he was timely scheduled for one; (2) failing to ensure that he obtained a copy of Dr. Scherr's report; and (3) failing to ensure that Mr. Garcia received a copy of the report. Garcia's Response at 6-7. The United States argues that Maj. Schafer appropriately ordered the sleep study, and there is no evidence that he could have affected its scheduling; Mrs. Garcia's own expert stated that the failure to send the report to Maj. Schafer was not Maj. Schafer's fault; there is no evidence that Maj. Schafer would or should have ordered the CPAP machine himself or could have obtained an earlier appointment with a physician had he scheduled an appointment with Mr. Garcia before Dr. Ashman saw Mr. Garcia; and no expert opined that the failure to provide Mr. Garcia with Dr. Scherr's report was Maj. Schafer's fault. United States' Motion at 12-14; United States' Reply at 1-4.

As to Mrs. Garcia's first contention, Dr. Herold opined that Maj. Schafer "should have proceeded with more urgency to evaluate Mr. Garcia for obstructive sleep apnea." Herold Depo. at 38, 64-65; Herold Report at 5. Although he did not elaborate on what Maj. Schafer should have done to ensure a more timely sleep study, his earlier testimony suggests that he believed Maj. Schafer should have called the Sleep Lab to try to expedite the evaluation. See Herold Depo. at 19-20 (stating that Dr. Herold would call specialists to try to expedite evaluation of more urgent matters). Dr. Curry opined that Maj. Schafer did not deviate from the usual standard of care because he ordered the sleep study and had no control over its scheduling. Curry Depo. at 41; Curry Report at 2. As such, whether Maj. Schafer violated a standard of care in failing to follow up on his referral is arguably in dispute. However, this dispute is not a material dispute for trial.

The record evidence shows that Maj. Schafer ordered the sleep study on June 11, 2010, the same day Mr. Garcia first complained of sleep problems, see Schafer Depo. at 37, and Mrs. Garcia does not argue that he should have done so more quickly. Notably, Dr. Herold acknowledged that Maj. Schafer did not need to request the sleep study on an "urgent" or "stat" basis. See Herold Depo. at 42-43. Mrs. Garcia points to no evidence suggesting that Maj. Schafer had any control over scheduling the sleep study or supporting an inference that an earlier appointment would have been available. It would be unreasonable to infer, without any supporting evidence, that Maj. Schafer could have expedited Mr. Garcia's study by following up with the Sleep Lab, particularly in light of evidence that (1) the Sleep Lab was created to address "the low local capability" for performing sleep studies, see Rust Depo. at 17, and (2) the Sleep Lab itself had a documented significant wait list at the time delaying appointments, see Ashman Depo. at 107-12 (discussing clinic's wait list as of September 2010, which had 70 patients and resulted in appointments scheduled at least 45 days out). Any finding that Maj. Schafer's alleged negligence contributed to the delay in evaluation purportedly leading to Mr. Garcia's death would require unfounded speculation that a phone call from Maj. Schafer more likely than not would have led to Mr. Garcia receiving an earlier appointment for a sleep study.18 Mrs. Garcia has pointed to no evidence to support such an inference. As such, Mrs. Garcia has not made a sufficient showing to establish that Maj. Schafer's alleged negligence in failing to follow up on his referral proximately caused Mr. Garcia's death.

As to Mrs. Garcia's second contention, Dr. Herold opined that Maj. Schafer should have directed Mr. Garcia to return for a follow-up appointment after the sleep study as a fail-safe to ensure that he received the report and Mr. Garcia timely received appropriate care and that his failure to do so was a violation of the standard of care, Herold Depo. at 16, 59-61. Dr. Curry opined that the failure to provide Maj. Schafer with the report did not present a standard-of-care issue as to Maj. Schafer. Curry Depo. at 39-40. As such, whether Maj. Schafer violated a standard of care in failing to schedule a follow-up after the sleep study to ensure he received the report is arguably in dispute. Mrs. Garcia contends that, had Maj. Schafer scheduled the follow-up appointment, he could have ordered the CPAP machine on his own, rather than wait for one of the Sleep-Lab physicians to do so. Garcia's Response at 6-7. Although Maj. Schafer testified that he could have done so, see Schafer Depo. at 72, 74, Mrs. Garcia points to no more than "a mere scintilla" of evidence suggesting that Maj. Schafer would have or should have done so. Indeed, Maj. Schafer testified that he had only ordered a CPAP machine two or three times in his career, and only after the patients had already met with a specialist and agreed with the specialist on that treatment but encountered difficulties in actually obtaining the equipment; he otherwise had only ever ordered replacement parts for patients already established on CPAP treatment; and, in light of the severity of Mr. Garcia's obstructive sleep apnea, he might have written a prescription for the machine if necessary after Mr. Garcia had followed up with a specialist.19 Id. Moreover, Dr. Hershner opined that she did not believe that Maj. Schafer had the background to order CPAP equipment. Hershner Depo. at 39. Thus, any inference that he would have ordered the CPAP machine on his own without Mr. Garcia first having followed up with a specialist would be unreasonable. Moreover, Mrs. Garcia does not point to any expert opinion that Maj. Schafer would have violated a standard of care if he had been able to order the CPAP machine but declined to do so in favor of deferring to the specialist. Indeed, in response to a question asking whether it would be appropriate for a physician's assistant "to want the specialty provider to be the one that has the follow-up after the sleep study," Dr. Herold opined that it is "the typical expectation" that a referring provider would want the referral specialist "to bring the whole thing to completion. . . . Not just say, [`]well, I'll start the evaluation, but you got to go to your primary doctor to figure all this out.[']"20 Herold Depo. at 62. Mrs. Garcia also points to no evidence suggesting that Maj. Schafer could have gotten Mr. Garcia an earlier appointment with Dr. Ashman or another physician at the Sleep Lab or elsewhere had he seen Mr. Garcia for a follow-up appointment; again, Mrs. Garcia identifies no evidence supporting an inference that Maj. Schafer could have shortened the delay, and such an inference would be unreasonable in light of the documented wait list at the Sleep Lab. See Ashman Depo. at 107-12. As such, Mrs. Garcia has not made a sufficient showing to establish that Maj. Schafer's alleged negligence in failing to schedule a follow-up appointment and ensure he received Dr. Scherr's report proximately caused Mr. Garcia's death.

As to Mrs. Garcia's third contention, although Dr. Herold opined that the failure to provide Mr. Garcia with Dr. Scherr's report was a violation of the standard of care, he did not opine that that failure was attributable to Maj. Schafer. See Herold Depo. at 85. Moreover, Mrs. Garcia points to no evidence suggesting or supporting an inference that Mr. Garcia could have or would have obtained timely care had he received Dr. Scherr's report. As such, Mrs. Garcia has not made a sufficient showing to establish that Maj. Schafer violated a standard of care in failing to ensure that Mr. Garcia received Dr. Scherr's report or that any alleged violation proximately caused Mr. Garcia's death.

In short, although there are genuine disputes as to whether Maj. Schafer violated an applicable standard of care as well as whether delays in Mr. Garcia's evaluation and treatment caused his death, Mrs. Garcia fails to connect the two, as she points to no evidence suggesting that Maj. Schafer's alleged negligence caused any delay in Mr. Garcia's evaluation or treatment.

2. Dr. Briscoe

Citing Dr. Herold's deposition, Mrs. Garcia contends that Dr. Briscoe, Maj. Schafer's supervising physician during the relevant time frame, breached the standard of care applicable to a physician supervising a physician's assistant by failing to ensure that Maj. Schafer timely obtained a sleep study for Mr. Garcia. Garcia's Response at 7. The United States responds that Mrs. Garcia had not previously identified Dr. Briscoe as a potentially negligent employee or even as a person with knowledge of the case; there is insufficient evidence to establish that Dr. Briscoe was in fact Maj. Schafer's supervising physician; and Dr. Herold's opinion fails to account for the manner in which Dr. Briscoe actually supervised Maj. Schafer. United States' Reply at 4-5.

Assuming Dr. Briscoe was Maj. Schafer's supervising physician,21 Mrs. Garcia has identified no evidence suggesting that Dr. Briscoe was actually negligent. Dr. Herold opined that Maj. Schafer's supervising physician should have recognized the unacceptable delay in obtaining a sleep study for Mr. Garcia and advised Maj. Schafer to follow up. Herold Depo. at 72-74. But his opinion is based on an assumption that Dr. Briscoe reviewed all of Maj. Schafer's charts—or, at the very least, that she reviewed Mr. Garcia's chart specifically. Mrs. Garcia points to no evidence supporting that assumption, and, indeed, Maj. Schafer testified that Dr. Briscoe did not review or sign off on all of his charts. Schafer Depo. at 18. Instead, he testified, she would conduct yearly performance reviews and serve as a general resource for any questions he had. Id. at 18-19. He testified that 10 to 20 charts would be subject to peer review every month but that his supervising physician was not necessarily the person who reviewed his charts. Id. at 19. He further testified that he did not know whether anyone had reviewed Mr. Garcia's chart during the relevant time frame. Id. at 21-22. Mrs. Garcia points to no evidence supporting a conclusion that the standard of care requires a supervising physician to review every chart of a patient seen by a physician's assistant. Because Mrs. Garcia has presented no evidence that Dr. Briscoe either should have reviewed or did review Mr. Garcia's chart, she cannot establish that Dr. Briscoe violated any standard of care.

3. The Sleep-Lab Personnel

Mrs. Garcia "submits that at least one, if not all, of these individuals [(Johnston, Jackson, Dyson, and Hess)] had the responsibility to forward Dr. Scherr's report to" Maj. Schafer and remind him by e-mail that the report was available for his review. Garcia's Response at 7-8. The United States responds that Mrs. Garcia had previously argued that the Sleep-Lab personnel were not key witnesses; did not identify Ms. Jackson or Sgts. Dyson or Hess in her initial disclosures, discovery responses, or expert reports; has not disclosed an expert competent to opine on the standards of care owed by any of the identified personnel; and has not shown that any of them actually failed to perform any assigned duty. United States' Reply at 5-6.

The evidence establishes that the failure to forward Dr. Scherr's report to Maj. Schafer and inform him that the report was available violated a standard of care. See Herold Depo. at 82-84 (finding violation of standard of care); Kreitzer Depo. at 108-09 (same); Hershner Depo. at 30-37 (same).22 However, Mrs. Garcia points to no evidence suggesting who among Mss. Johnston and Jackson and Sgts. Dyson and Hess, if any of them, actually had the responsibility to ensure delivery of Dr. Scherr's report to Maj. Schafer and inform him of its availability. Instead, she relies on an assumption that one of them must have had that responsibility. See generally Garcia's Second Motion; see also Garcia's Response at 7-8. But "a party's mere belief and/or speculation is not based on personal knowledge and is not competent summary judgment evidence." Riley v. Univ. of Ala. Health Servs. Found., P.C., 990 F.Supp.2d 1177, 1187 (N.D. Ala. 2014) (internal quotation marks omitted); see also Foster v. Biolife Plasma Servs., LP, 566 F. App'x 808, 811 (11th Cir. 2014) (citing Rule 56(c)(4), stating that speculative testimony not based on personal knowledge is insufficient to oppose a motion for summary judgment). Although, as Mrs. Garcia's experts opined, someone breached a standard of care in failing to forward the report to Maj. Schafer and notify him that it was available for review, Mrs. Garcia fails to cite any evidence establishing who that person was or whether he or she was a government employee.23 As such, she cannot establish that any of the identified Sleep-Lab personnel were negligent.24 Moreover, as discussed supra at 14-16, Mrs. Garcia also fails to point to any evidence suggesting that the failure to provide the report to Maj. Schafer or notify him proximately caused Mr. Garcia's death.

4. Dr. Ashman

In an effort to avoid the consequences of her inability to identify a specific employee responsible for forwarding Dr. Scherr's report to Maj. Schafer, Mrs. Garcia seeks to impute to Dr. Ashman the negligence of the unidentified individual(s) responsible for forwarding Dr. Scherr's report, arguing that Dr. Ashman had the final responsibility to ensure that patients of the Sleep Lab received timely care. Garcia's Response at 8. The United States argues that Mrs. Garcia failed to provide a competent expert to opine on the standard of care applicable to Dr. Ashman, that no expert opined that Dr. Ashman breached a standard of care, and that, in any event, Mrs. Garcia's argument essentially amounts to a contention that Dr. Ashman negligently supervised his staff and so is barred by the discretionary-function exception. United States' Motion at 9-11; United States' Reply at 6-7.

The United States is accurate that no expert opined that Dr. Ashman breached any standard of care. Dr. Herold testified that he was not providing any opinion as to whether Dr. Ashman violated a standard of care. Herold Depo. at 48-53. As to Dr. Kreitzer, in response to a question asking whether he was "offering an opinion that Dr. Ashman breached the standard of care in some way," Dr. Kreitzer testified, "I do not feel he breached. I think he did everything appropriately." Kreitzer Depo. at 106.25 And as for Dr. Simons, in response to a question asking whether he was opining that there was "a system failure here as opposed to a particular provider such as Major Schafer or Dr. Ashman violating a standard of care," Dr. Simons responded, "Correct," with the caveat that he did not know whether someone in particular was responsible for any of the identified system failures. Simons Depo. at 64-65. Although Mrs. Garcia's experts opined that the failure to forward Dr. Scherr's report to Maj. Schafer and the delay in providing Mr. Garcia with a follow-up appointment at the Sleep Lab violated the standard of care, none of them attributed those shortcomings to inadequate supervision of the Sleep Lab. Without an expert opinion supporting her claim, she cannot establish that Dr. Ashman was negligent.26 See Kendall, 692 P.2d at 955.

5. Dr. Scherr

Neither party contends that Dr. Scherr was negligent in any way. See Garcia's First Motion at 3, 5, 7-8; United States' Response to Garcia's First Motion at 11-13; United States' Motion at 16; Garcia's Response at 3 n.4. Nevertheless, apparently in an abundance of caution, the United States contends that a genuine dispute exists as to whether Dr. Scherr was negligent. See United States' Response to Garcia's First Motion at 11-13; see also United States' Motion at 16. Regardless, the United States argues, and Mrs. Garcia does not dispute, that Dr. Scherr was an independent contractor, not an employee of the United States. United States' Motion at 3 & n.2; see generally Garcia's First Motion; Garcia's Response; Garcia's Surreply. As such, the United States cannot be liable for Dr. Scherr's negligence. See Means, 176 F.3d at 1379-80 (plaintiff may not recover against United States for torts of independent contractor). Mrs. Garcia argues in her First Motion that Alaska Statutes section 09.17.080(a)(2) precludes the United States from allocating fault to Dr. Scherr because the United States did not join him as a party to the case despite having had an opportunity to do so. Garcia's First Motion at 6-7. Although the FTCA requires application of state law to determine liability, it does not waive the United States' sovereign immunity at all to the extent the alleged harm was caused by an independent contractor of the government. See Means, 176 F.3d at 1380-81 (holding that, because individuals who allegedly committed tortious acts were not government employees, court did not have jurisdiction over claims). Because the United States cannot be held liable for Dr. Scherr's acts or omissions, whether he was negligent is immaterial. As discussed, in order to prevail, it is incumbent upon Mrs. Garcia to identify specific employees of the United States whose negligence proximately caused Mr. Garcia's death, so she has the burden of producing evidence that someone other than Dr. Scherr was responsible for the delays in Mr. Garcia's evaluation and treatment. Moreover, because the United States would be immune from suit to the extent Mr. Garcia's death resulted from Dr. Scherr's negligence, the Alaska statutory provision requiring Dr. Scherr's joinder is simply inapplicable; that is, there is no basis for referring to Alaska law because the FTCA would not confer subject-matter jurisdiction in the first place. Cf. Camozzi v. Roland/Miller & Hope Consulting Grp., 866 F.2d 287, 289 n.7 (9th Cir. 1989) (holding that discretionary-function exception is not overridden by state tort rules because "[t]he extent of the immunity of the United States to suit is governed by section 2680(a), which cannot be preempted by state law"). Applying section 09.17.080(a)(2) to preclude the United States from avoiding liability for Dr. Scherr's negligence would effectively allow Alaska law to override the boundaries of the FTCA's limited waiver of the United States' sovereign immunity. Such an outcome is not supported by the law.

IV. Conclusion

In summary, Mrs. Garcia alleges that the delays in evaluating and treating Mr. Garcia's obstructive sleep apnea violated the standard of care and ultimately caused his death. She provides expert opinions to that effect. But she does not point to any evidence connecting those delays to negligent acts or omissions by any particular employee of the United States. Without identifying any tortfeasor employed by the United States, Mrs. Garcia cannot state a claim against the United States under the FTCA. In light of the foregoing, the United States is entitled to summary judgment in its favor. Its Motion is therefore due to be granted in its entirety and the Garcia Motions are due to be denied as moot.27 Accordingly, it is hereby

ORDERED:

DONE AND ORDERED.