Andrulonis v. United States, 79-CV-847.

Citation593 F. Supp. 1336
Decision Date03 October 1984
Docket NumberNo. 79-CV-847.,79-CV-847.
PartiesJoanna ANDRULONIS, as Conservator of the Property of Jerome Andrulonis, Plaintiff, v. UNITED STATES of America; Glatt Air Techniques, Inc.; Glatt GmbH (Germany); Wisconsin Alumni Research Foundation, Inc.; Warf Institute, Inc.; Raltech Scientific Services, Inc.; Ralston Purina Company; Eli Lilly and Company; and John L. Thompson and Sons and Company, Defendants. UNITED STATES of America, Third-Party Plaintiff, v. NEW YORK STATE DEPARTMENT OF HEALTH, Third-Party Defendant.
CourtUnited States District Courts. 2nd Circuit. United States District Court of Northern District of New York

Roemer & Featherstonhaugh, Albany, N.Y., for plaintiffs; Dean J. Higgins, Albany, N.Y., of counsel.

Anderson Russell Kill & Olick, P.C., New York City, Paul F. Donahue Associates, Albany, N.Y., for defendant Glatt GmbH (Germany); Irene C. Warshauer, Marcy Louise Kahn, Robert P. Reichman, New York City, of counsel.

Carter, Conboy, Bardwell, Case & Blackmore, Albany, N.Y., for defendant Wisconsin Alumni Research Foundation; Jeffrey J. Tymann, Albany, N.Y., of counsel.

McNamee, Lochner, Titus & Williams, Albany, N.Y., for defendants, Raltech Scientific Services, Inc. and Ralston Purina Co.; Paul Scanlan, Albany, N.Y., of counsel.

Maynard, O'Connor & Smith, Schenectady, N.Y., for defendant Warf Institute, Inc.; Richard Gershon, Schenectady, N.Y., of counsel.

Ainsworth, Sullivan, Tracy & Knauf, Albany, N.Y., for defendants Eli Lilly and Co. and John L. Thompson & Sons & Co.; Thomas F. Tracy, Albany, N.Y., of counsel.

Galef & Jacobs, New York City, for defendant Glatt Air Techniques, Inc.; Christopher M. Houlihan, New York City, of counsel.

Frederick J. Scullin, Jr., U.S. Atty., Robert Abrams, Atty. Gen. of the State of N.Y., Albany, N.Y., for defendant New York State Dept. of Health; William Fanciullo, Asst. U.S. Atty., Kevan J. Acton, Asst. Atty. Gen., Albany, N.Y., of counsel.

Dept. of Justice, Civ. Div., Torts Branch, Washington, D.C., for U.S.; Lizabeth A. McKibben, Trial Atty., Washington, D.C., of counsel.


MUNSON, Chief Judge.

The defendant United States has renewed its Rule 12(b) motion to dismiss or for summary judgment under Rule 56 following the recent decision by the Supreme Court on the discretionary function exception to the Federal Tort Claims Act, 28 U.S.C. § 2680(a) (1982), FTCA, United States v. S.A. Empresa DeViacao Aerea Rio Grandense (Varig Airlines), ___ U.S. ___, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984), Varig. The Government's previous motion to dismiss was denied on December 19, 1983. After careful review of the parties' memoranda and after oral arguments on the motion, the court concludes that the challenged governmental conduct in the case at bar does not fall within the discretionary function exception to the Federal Tort Claims Act.

In Varig the Supreme Court held that the discretionary function exception to the FTCA precluded a negligence action against the Federal Aviation Administration challenging the regulatory scheme for the promotion of airplane safety and the Government's selected method for implementing the scheme. Plaintiffs in Varig alleged negligence in the FAA's certification and particularly the "spot-checking" method selected for insuring compliance with the FAA's safety regulations which allegedly caused in-flight fires and resulting death and injuries. It is significant to note that the plaintiffs in Varig did not allege specific acts of negligence on the part of FAA employees in the actual inspection of the defective planes. Instead, the plaintiffs were challenging the effectiveness of the FAA's spot-checking system in insuring compliance with safety regulations. The Court held that a challenge to the method selected by the FAA in the exercise of its regulatory authority implicated policy decisions; these policy decisions and their implementation were the type of exercise of discretionary authority that Congress intended to immunize from tort liability under the discretionary function exception, 28 U.S.C. § 2680(a). Varig, ___ U.S. at ___, 104 S.Ct. at 2768.

In the instant case plaintiffs make specific allegations of negligence on the part of the Government's employee Dr. Baer in carrying out his responsibilities with respect to the development of a method for orally immunizing wildlife against rabies. For the purposes of this motion the court will view the facts in the light most favorable to plaintiffs as the nonmoving parties, see Project Release v. Prevost, 722 F.2d 960, 968 (2d Cir.1983); Patrick v. LeFevre, 745 F.2d 153 at ___ (2d Cir.1984). Specific allegations of negligent conduct by Dr. Baer include: the production of the virus with an increased titer more hazardous to humans, failure to warn of the known hazards of the virus, written assurance given as to the safety of the virus and Dr. Baer's personal participation in the introduction of the virus into the "Uni-Glatt" machine when Dr. Baer knew or should have known that conditions at the Griffin Laboratory were unsafe. As a result of his exposure to the rabies virus at Griffin Laboratory, plaintiff developed rabies and suffered irreversible brain damage.

The specific allegations of negligence on the part of the individual governmental employee Dr. Baer are a far cry from the broad challenge asserted in Varig to the regulatory scheme developed by the FAA. None of the cases submitted by the Government which were decided subsequent to Varig, nor any case which the court has been able to locate independently, militate against adherence to this court's previous denial of the Government's motion to dismiss or for summary judgment.

The Government has presented five cases decided subsequent to Varig in which the discretionary function exception to the FTCA was held to preclude negligence actions against the federal government. None of the cases present factual situations similar to the instant case. However, a discussion of these cases may be worthwhile.

National Gas Pipeline Co. v. United States, 742 F.2d 502 (9th Cir.1984), presented a challenge to FAA safety inspections similar to that in Varig. Relying directly on Varig, the Ninth Circuit dismissed the claim against the Government. Similarly, the Third Circuit has recently held that claims based on the negligent exercise of regulatory authority by the federal Nuclear Regulatory Commission are barred by the discretionary function exception. General Public Utilities Corp. v. United States, 745 F.2d 239 (3d Cir.1984).

In Flammia v. United States, 739 F.2d 202 (5th Cir.1984), the Fifth Circuit applied the discretionary function exception to preclude an action against the Immigration and Naturalization Service INS by a police officer wounded in a burglary committed by a Cuban refugee. To the extent that the plaintiff alleged that the INS should not have admitted the particular person into the United States or released him from the "processing center"...

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4 cases
  • Andrulonis v. US
    • United States
    • U.S. District Court — Northern District of New York
    • December 15, 1989
    ...contention that the conduct of Dr. Baer that gave rise to this lawsuit was protected by § 2680(a). See Andrulonis v. United States, 593 F.Supp. 1336 (N.D.N.Y. 1984). In rejecting the Government's position, the court viewed the record in the light most favorable to plaintiffs. The court now ......
  • Maalouf v. Swiss Confederation
    • United States
    • U.S. District Court — District of Columbia
    • July 3, 2002
    ...on plaintiff in a post office, because the relevant decision did not arise from the agency's "statutory mission"); Andrulonis v. U.S., 593 F.Supp. 1336, 1338 (N.D.N.Y. 1984) (no immunity applied to a government scientist's conduct because his decisions involved "the exercise of professional......
  • Gonzalez v. US
    • United States
    • U.S. District Court — Southern District of New York
    • July 15, 1988
    ...those which courts are accustomed to entertain when tort suits are bought sic. against private physicians"); Andrulonis v. United States, 593 F.Supp. 1336, 1339 (N.D.N.Y.1984) (conduct of government scientist in development of rabies vaccine "presents the issues of negligence in the exercis......
  • Eisenberg v. Peoples Republic of China
    • United States
    • U.S. District Court — District of Massachusetts
    • February 10, 2023
    ......YI WANG, Defendant. Civil Action No. 22-cv-10194-ITUnited States District Court, D. MassachusettsFebruary 10, 2023 . ... . .           Indira. Talwani, United States District Judge. . .          On May. ...1994) (failure to warn of maritime. obstructions); Andrulonis v. United States, 593. F.Supp. 1336, 1338 (N.D.N.Y. 1984) (FTCA ......

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