Grunch v. United States

Decision Date18 February 1982
Docket NumberCiv. No. 81-10105.
Citation538 F. Supp. 534
PartiesRuth and Robert GRUNCH, Plaintiffs, v. UNITED STATES of America, Defendant.
CourtU.S. District Court — Western District of Michigan

Frank W. Brochert, Plunkett, Cooney, Rutt, Watter, Stanczyk & Pederson, P. C., Detroit, Mich., for plaintiffs.

Michael J. Hluchaniuk, Asst. U. S. Atty., E. D. Mich., Bay City, Mich., for defendant.

MEMORANDUM OPINION AND ORDER

JAMES HARVEY, District Judge.

Plaintiffs brought this action under the Federal Torts Claims Act, 28 U.S.C. §§ 1346, 2671 et seq. ("FTCA"), alleging a cause of action for "wrongful life." See generally Am.Jur.2d, New Topic Service, Right to Die; Wrongful Life, Section 70 (1979). The matter is presently before the Court on the government's motion to dismiss for lack of subject matter jurisdiction.

The essential facts of this action are not in dispute. Robert Grunch is a career N.C.O. employee of the United States Air Force. Ruth Grunch, a civilian, is his wife. In 1971 at a United States military base in Berlin, Germany, Mrs. Grunch underwent a sterilization procedure known as a tubal ligation. A year later, the military physician who had performed the sterilization procedure gave Mrs. Grunch a test known as a hysterosalpingogram as part of a study of sterilized women in which she agreed to participate. This test apparently involved injecting the patient with a dye to determine the success of the surgical procedure. Mrs. Grunch was never informed as to the results of this test.

Subsequently, Mr. and Mrs. Grunch came to be stationed at Wurtsmith Air Force Base in Oscoda, Michigan. In 1977 Mrs. Grunch, after experiencing some interuterine discomfort, consulted a physician at the base and, as part of his consultation, asked if it was possible for her to become pregnant. The doctor allegedly reviewed Mrs. Grunch's medical records, including the results of her hysterosalpingogram, and later informed her that she could not become pregnant. Less than two years later, Mrs. Grunch was informed that she was pregnant.

The government has moved to dismiss plaintiffs' complaint citing a specific statutory exemption in the FTCA, 28 U.S.C. § 2680(k), which provides:

The provisions of this chapter and section 1346(b) of this title shall not apply to —
. . . . .
(k) Any claim arising in a foreign country.

In response to this motion the plaintiffs assert that the "foreign country" exemption does not apply because their cause of action is in the nature of a "continuing tort," wherein acts of negligence took place in the United States as well as in Germany.

Discussion

The FTCA constitutes a waiver of the federal government's sovereign immunity, which otherwise would bar any and all actions for money damages against the United States. United States v. Orleans, 425 U.S. 807, 96 S.Ct. 1971, 48 L.Ed.2d 390 (1976); Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953). In the case of torts committed by military physicians, the exclusive remedy must be based on a cause of action under the act pursuant to 10 U.S.C. § 1089(a) which provides in pertinent part:

The remedy against the United States provided by sections 1346(b) and 2672 of title 28 for damages for personal injury ... caused by the negligent or wrongful act or omission of any physician ... of the armed forces ... shall hereafter be exclusive of any other civil action or proceeding by reason of the same subject matter against such physician...

While this subsection of the FTCA would appear to provide plaintiffs with a jurisdictional basis for proceeding in this Court on the present cause of action, the "foreign country" exemption of the FTCA, supra, takes that jurisdictional basis away.

In United States v. Spelar, 338 U.S. 217, 70 S.Ct. 10, 94 L.Ed. 3 (1949) the Supreme Court had an opportunity to consider the "foreign country" exemption of the FTCA. In summarizing its decision that a flight engineer's administratrix was barred from bringing a wrongful death action against the government for an accident occurring on a military airbase in Newfoundland, the Court stated:

... though Congress was ready to lay aside a great portion of the sovereign's ancient and unquestioned immunity from suit, it was unwilling to subject the United States to liabilities depending upon the laws of a foreign power. The legislative will must be respected.

Id. at 221, 70 S.Ct. at 12. This holding has been reaffirmed in subsequent cases by several lower federal courts. Leaf v. United States, 588 F.2d 733 (CA 9, 1978); Manemann v. United States, 381 F.2d 704 (CA 10, 1967); Gerritson v. Vance, 488 F.Supp. 267 (D Mass., 1980); Bryson v. United States, 463 F.Supp. 908 (ED Pa., 1978); In Re Paris Air Crash, 399 F.Supp. 732 (CD Cal., 1975).

Manemann v. United States, supra, involved a similar factual setting as the present case. Plaintiff, asserting jurisdiction under the FTCA, sought damages from the government for injuries allegedly caused by the negligence of a military medical staff member in Taiwan. The plaintiff had been tested for tuberculosis and advised that he was not infected with the disease while he was in Taiwan. Three years later, while residing in Colorado, the presence of tuberculosis was established and radical surgery was required. In order to avoid the bar of the "foreign country" exemption, 28 U.S.C. § 2680(k), plaintiff argued that his claim arose in Colorado where the damage actually appeared. The Court rejected that argument and held that:

Although an act of negligence, here the misdiagnosis, is not actionable without damage it is apparent that after damage occurs the initial premise of the tort is the act of negligence. The liability of the United States for the completed tort shall be "in accordance with the law of the place where the act or omission (negligence) occurred." 28 U.S.C. 1346(b). These statutory words "command application of the law of the place where the negligence occurred" and dispose of any conflict of law question in the first instance. Richards v. United States, 369 U.S. 1 at p. 9 82 S.Ct. 585, 7 L.Ed.2d 492. Appellant's claim is thus dependent upon the law of Taiwan, a foreign country, and falls within the exclusionary provision of section 2680(k). Id. at 705. (emphasis added)

The foregoing decision disposes, in part, of plaintiffs' attempt in this case to avoid the effect of the "foreign country" exemption of the FTCA. Plaintiffs assert that the damage suffered by them — the unexpected birth of a child — was the result of a "continuing tort" in which acts of negligence occurred both in Germany and in the United States. As impliedly suggested in Manemann, supra, however, the initial premise, or causal foundation, of the wrong which plaintiffs allege, is the negligent sterilization procedure...

To continue reading

Request your trial
5 cases
  • Vogelaar v. US
    • United States
    • U.S. District Court — Western District of Michigan
    • 25 Junio 1987
    ...States, 802 F.2d 1127, 1129-30 (9th Cir.1986); Manemann v. United States, 381 F.2d 704, 705 (10th Cir.1967); Grunch v. United States, 538 F.Supp. 534, 536 (E.D.Mich. 1982). In Richards v. United States, 369 U.S. 1, 9-10, 82 S.Ct. 585, 591, 7 L.Ed.2d 492 (1962), the Supreme Court held that l......
  • ROMERO BY ROMERO v. US
    • United States
    • U.S. District Court — Eastern District of Virginia
    • 15 Octubre 1992
    ...of action is extinguished when the primary cause of action fails for lack of subject matter jurisdiction. Cf. Grunch v. United States, 538 F.Supp. 534, 537 (E.D.Mich.1982). Since Joshua Romero's primary cause of action lacks subject matter jurisdiction, his parents' derivative causes of act......
  • Horvath v. Delida
    • United States
    • Court of Appeal of Michigan — District of US
    • 29 Septiembre 1995
    ...to trespass and nuisance claims, the doctrine had not been applied to a claim of "continuing negligence." Grunch v. United States, 538 F.Supp. 534, 537 (E.D.Mich., 1982). In this case, the trial court specifically rejected plaintiffs' request for a jury instruction on nuisance, finding that......
  • Heller v. United States, Civ. A. No. 84-3043.
    • United States
    • U.S. District Court — Eastern District of Pennsylvania
    • 21 Marzo 1985
    ...See Pelphrey v. United States, 674 F.2d 243 (4th Cir.1982); Manemann v. United States, 381 F.2d 704 (10th Cir.1967); Grunch v. United States, 538 F.Supp. 534 (E.D.Mich.1982). The United States retains its sovereign immunity unless it consents to be sued. United States v. Sherwood, 312 U.S. ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT