Heilman v. U.S., 83-1400

• Decision Date: 10 April 1984
• Docket Number: No. 83-1400,83-1400
• Citation: 731 F.2d 1104
• Parties: Sandra C. HEILMAN and Dr. Andrew M. Linz, Executors of the Estate of F. William Heilman Jr., aka Bill Heilman, aka F. Wm. Heilman, aka Frank W. Heilman Jr., aka F. William Heilman, Deceased, and Sandra C. Heilman, in her own right, Appellants, v. UNITED STATES of America and United States Department of the Navy, Appellees.
• Court: U.S. Court of Appeals — Third Circuit

Page 1104

731 F.2d 1104

Sandra C. HEILMAN and Dr. Andrew M. Linz, Executors of the Estate of F. William Heilman Jr., aka Bill Heilman, aka F Wm. Heilman, aka Frank W. Heilman Jr., aka F. William Heilman, Deceased, and Sandra C. Heilman, in her own right, Appellants, v. UNITED STATES of America and United States Department of the Navy, Appellees.

No. 83-1400.

United States Court of Appeals Third Circuit.

Argued Jan. 23, 1984.

Decided April 10, 1984.

Goncer M. Krestal, Norman Perlberger (argued), James R. Kahn, Blank, Rome, Comisky & McCauley, Philadelphia, Pa., for appellants.

J. Paul McGrath, Asst. Atty. Gen., Edward S.G. Dennis, Jr., U.S. Atty., Dawn MacPhee, Ass't U.S. Atty., Philadelphia, Pa., Robert S. Greenspan, John C. Hoyle, Appellate Staff, Civil Div., Dept. of Justice, Joan M. Bernott (argued), Special Litigation Counsel, Torts Branch, Civil Div., Dept. of Justice, Washington, D.C., for appellees.

Before ADAMS, and GARTH, Circuit Judges, and BROTMAN, District Judge. ^*

OPINION OF THE COURT

GARTH, Circuit Judge.

Sandra Heilman and Andrew Lind, as Executors ("the Executors"), and Sandra Heilman in her own right, ¹ brought this action against the United States and the Department of the Navy for the wrongful death of F. William Heilman (Heilman). The complaint alleges that Heilman was exposed to radiation resulting from atomic tests in which he participated (1) while he was enlisted in the Navy from 1944 to 1947, and (2) while he was employed as a civilian consultant to the Navy from 1947 to 1955. Heilman subsequently contracted multiple myeloma, a cancer of the bone marrow, and died in 1981 from complications arising out of that disease. The Executors contend that the myeloma resulted from the previous exposures to radiation, and that the United States should have warned Heilman of the dangers of radiation in order that he might seek prompt medical treatment.

The United States moved to dismiss the case under Fed.R.Civ.P. 12(b)(1) and 12(b)(6), contending that: (1) recovery for injuries suffered while Heilman was enlisted in the Navy is barred by the Feres doctrine, and (2) compensation for injuries received while a civilian federal employee is available exclusively through the Federal Employees Compensation Act (FECA), 5 U.S.C. Sec. 8116(c). The district court agreed, and dismissed the action. We affirm.

I.

The complaint alleges that F. William Heilman served on active duty with the Navy at the Pearl Harbor Naval Shipyard from 1944 to 1947. During that time, he participated in numerous atomic tests, including "Operation Crossroads," the "washdowns" following "Shot Baker" in the Pacific, and the "scientific investigation of TBM-3" which had been "deep-sixed" from the U.S.S. Independence.

Heilman was also retained as a civilian employee of the Navy following his discharge in 1947, serving as a radiological safety monitor and engineer. In the course of his employment, he participated in the monitoring and decontamination of radioactive ships and aircraft, and the dumping of radioactive materials at sea. ²

The complaint contends, inter alia, that subsequent to Heilman's discharge from the Navy, the United States was negligent in failing to:

1. obtain, compile, and review complete records on Heilman's participation in the testing of atomic weapons;

2. affirmatively seek out Heilman and warn him of the dangers and risks associated with radiation exposure;

3. provide Heilman with necessary examinations, diagnostic care, and medical treatment in light of his exposure.

See Complaint p 15(a)-(h), App. at 6a-7a. The Executors contend that this "failure to warn" delayed the detection and treatment of Heilman's cancerous condition, thereby exacerbating its severity and ultimately leading to his death. The Government having moved under Fed.R.Civ.P. 12(b)(1) and 12(b)(6) to dismiss the Complaint, we are obliged to credit as true all allegations of the Executors' pleadings. E.g., McKnight v. Southeastern Pennsylvania Transportation Authority, 583 F.2d 1229 (3d Cir.1978).

II.

We address first whether damages arising out of Heilman's military service are actionable in the courts. The liability of the United States for injuries received by members of the armed forces has been the subject of numerous judicial opinions, all of which stem from the seminal case of Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950). In Feres, the Supreme Court held that the Federal Tort Claims Act did not waive the sovereign immunity of the United States for injuries suffered incident to military service, and therefore the courts had no jurisdiction to entertain the suit. See also Chappell v. Wallace, --- U.S. ----, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983). Our threshold inquiry must therefore be whether Feres bars recovery for Heilman's death.

In determining whether the Feres doctrine is applicable to a given set of facts, this Court has held that the proper focus is "not upon when the injury occurred or when the claim became actionable, but rather the time of, and circumstances surrounding the negligent act." Henning v. United States, 446 F.2d 774, 777 (3d Cir.1971), cert. denied, 404 U.S. 1016, 92 S.Ct. 676, 30 L.Ed.2d 664 (1972). We therefore look to the time when the allegedly tortious Government conduct occurred; if that conduct arose while the claimant was still a member of the military, then his action is barred.

Under this analysis, it is clear at the outset that no recovery is possible for the injuries suffered by Heilman due to the original exposure to radiation which occurred while he was stationed in the Pacific. The decision to expose him to that radiation was made while he was an enlisted man in the Navy, and therefore the United States is immune from liability for that decision under Feres and Henning. As we understand the Executors' position, they do not argue that they could collect for such injuries caused by the initial exposure.

In an attempt to circumvent Feres, however, the Executors seek recovery not for the original decision of the Government to expose Heilman to radiation, but rather for the Government's failure to warn him of the dangers of such radiation which allegedly occurred subsequent to his discharge from the Navy. They contend that this negligent act was committed when Heilman was a civilian, and thus recovery is not barred. Presumably, damages would be calculated by determining in some way what injuries would have been avoided had Heilman received adequate warning.

This "failure to warn" theory of recovery has not received liberal acceptance by the courts. ³ This Court, for instance, has expressly rejected a failure to warn as an independent basis of recovery, when that failure arises from the same operative conduct which caused the original injuries. In Henning, 446 F.2d 774, the plaintiff alleged that military doctors negligently misread his x-rays and failed to diagnose his tubercular condition. Although the original misdiagnosis occurred during military service and thus was clearly precluded by Feres, Henning alleged that the doctors were further negligent in failing to warn him of his condition after discharge.

The Henning Court, however, rejected these arguments. It found that a "failure to warn" does not constitute a "continuous tort" which would terminate only when plaintiff was finally notified of his condition. Rather, the Court found that any negligence in failing to warn Henning occurred but once, when the doctors first misdiagnosed the ailment. Henning, 446 F.2d at 778. Thus, this Court, among others, holds that, even if there exists any duty to warn, it arises only at the time when the Government first knew or should have known of the hazardous condition, and any breach of that duty begins and ends at that time.

Since, in most situations, the dangerous nature of a particular hazard is known at the time of contact or exposure, any breach of a duty to warn would arise contemporaneously under Henning. If that breach arose when the claimant was in military service, then recovery is barred by Feres. In their briefs and at oral argument, however, the Executors contended that, in this case, the duty to warn Heilman did not arise until after his discharge, since historically, the United States was not aware of the dangers of radiation until some time after 1947. If true, this might present the unusual situation in which a duty to warn of a hazardous condition arises after exposure to that hazard has occurred.

In Broudy v. United States, 722 F.2d 566 (9th Cir.1983) (Broudy II ), the complaint also alleged that the decedent was exposed to radiation during military service. It further alleged that the Government did not learn of the dangers of radiation until after the deceased had been discharged. Id. at 568. See also Broudy v. United States, 661 F.2d 125, 128-29 (9th Cir.1981) (Broudy I ) ("Government's failure to warn ... might constitute [cognizable] act if the Government learned of the danger after [decedent] left the service"). The Ninth Circuit held that the claim for post-discharge failure to warn should not be dismissed, but rather must be heard on the merits, at least until it could be determined whether such failure to warn was a cognizable tort under applicable state law. ⁴

We need not reach the issues addressed by Broudy II, however, since it is clear to us that the pleadings, which we must take as true, do not allege a failure to warn which arose subsequent to discharge, and therefore the complaint cannot sustain the argument found persuasive by the Broudy II court. Paragraph 10 of the complaint avers that, by compelling Heilman to participate in atomic testing:

defendants knowingly, intentionally, deliberately, recklessly, and/or negligently exposed F. William Heilman, and others similarly situated, to high and dangerous levels of radiation, without their knowledge, permission, awareness and consent, knowing that said exposure posed a...