Lombard v. United States, Civ. A. No. 81-0425.

• Decision Date: 30 September 1981
• Docket Number: Civ. A. No. 81-0425.
• Citation: 530 F. Supp. 918
• Parties: Theodore L. LOMBARD, et al., Plaintiffs, v. UNITED STATES of America, et al., Defendants.
• Court: U.S. District Court — District of Columbia

530 F. Supp. 918

Theodore L. LOMBARD, et al., Plaintiffs, v. UNITED STATES of America, et al., Defendants.

Civ. A. No. 81-0425.

United States District Court, District of Columbia.

September 30, 1981.

Peter R. Kolker, Washington, D. C., for plaintiffs.

Bruce E. Titus and Deborah C. Ratner, U. S. Dept. of Justice, Washington, D. C., for Federal defendants.

James C. Gregg and David M. Moore, Washington, D. C., for defendants Los Alamos Nat. Laboratory and University of California.

MEMORANDUM

GASCH, District Judge.

This is a suit for 35 million dollars in compensatory and punitive damages against the United States, various federal agencies, and eight individual defendants in their official and individual capacities. The plaintiffs, Theodore Lombard, his wife, and four children, allege that Mr. Lombard, during the course of his service in the United States Army, was exposed to radioactive substances without his knowledge or consent. As a result of this exposure, Mr. Lombard allegedly suffers various types of physical injuries, as well as somatic and genetic damage which he has passed to his children.¹ Mr. Lombard also alleges that after his discharge from the Army the defendants failed to warn him of the radiation exposure and its potential consequences. The case is before the Court on the defendants' motion to dismiss the complaint for lack of subject matter jurisdiction and the defendants' motion to strike the named individuals from the complaint.

DISCUSSION.

A. THE GOVERNMENT DEFENDANTS.

The complaint consists of four counts: in Count I Theodore Lombard alleges that the defendants are liable to him under the Federal Tort Claims Act ("FTCA") for exposing him to the radioactive materials and for willfully concealing information about the health risks of that exposure; in Count II Theodore Lombard alleges that the defendants are liable for the exposure and subsequent concealment under the First, Fifth, Ninth, and Tenth Amendments to the United States Constitution and under 42 U.S.C. § 1985(3); in Count III all plaintiffs, except Theodore Lombard, allege that the defendants are liable under the FTCA; in Count IV all plaintiffs, except Thomas Lombard, allege the defendants are liable under the same constitutional and statutory provisions raised in Count II.

A single legal issue, the scope of the doctrine set out in Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), determines whether this case can proceed against the United States, the named federal agencies, and the named individual defendants in their representative capacities. In Feres, the Supreme Court stated that "the Government is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service." Id. at 146, 71 S.Ct. at 159.

1. Feres Bars Liability to Theodore Lombard.

Count I of the complaint alleges that the defendants' failure to protect Theodore Lombard from the radiation makes them jointly and severally liable under the FTCA for the resulting injuries. Complaint, ¶ 38. Count II alleges similar liability under a constitutional theory. Id. ¶¶ 44-48. Both of these claims are barred by the doctrine of Feres. Any physical injury to Mr. Lombard caused by the radiation arose out of his activities incident to military service. Feres explicitly bars such actions under the FTCA. 340 U.S. at 146, 71 S.Ct. at 159; accord, e.g., Stencil Aero Engineering Corp. v. United States, 431 U.S. 666, 671, 97 S.Ct. 2054, 2057, 52 L.Ed.2d 665 (1977); Thornwell v. United States, 471 F.Supp. 344, 347 (D.D.C.1979); Misko v. United States, 453 F.Supp. 513, 514 (D.D.C.1978). Moreover, the courts have repeatedly read Feres to bar constitutional tort claims against the government. See, e.g., Thornwell, supra, 471 F.Supp. at 348; Misko, supra, 453 F.Supp. at 516; Rotko v. Abrams, 338 F.Supp. 46, 47 (D.Conn.1971), aff'd per curiam, 455 F.2d 992 (2d Cir. 1972). Consequently, any claim against the United States for injury to Mr. Lombard during his military service in 1944-46 is barred by the doctrine of sovereign immunity, and this Court does not have subject matter jurisdiction over these claims.

The plaintiffs try to circumvent Feres by alleging that the government's failure to warn Mr. Lombard, after his discharge from military service, of the possibility and extent of his radiation-caused injuries is a separate tort. This contention seems to be based on language in Judge Richey's opinion in Thornwell:

the military may commit an intentional act and then negligently fail to protect a soldier turned civilian from the dire consequences which will flow from the original wrong. This Court holds that, under such circumstances, the injured civilian may have a valid claim against the tortfeasors. The later negligence is a separate wrong, a new act or omission occurring after civilian status is attained ....

Thornwell, supra, 471 F.Supp. at 352.²

In Thornwell, the Court recognized that its theory of separate liability for a post-discharge failure to warn might lead to "the possibility that artful pleading may be employed to elevate one continuing act of negligence into separate wrongs." Thornwell, supra, 471 F.Supp. at 352. Indeed, the present case is factually distinguishable from Thornwell. In Thornwell, the original tort was "intentional," id. at 348, the drugging of the plaintiff with lysergic acid diethylamide (LSD) as a part of a covert experiment. Id. at 346. Here, on the other hand, the exposure of Mr. Lombard occurred incident to his regular military duties as "a result of the negligence" of the defendants. Complaint, ¶¶ 22, 34. This would suggest that the actions complained of are merely one continuing act of negligence. Thus, even under Judge Richey's formulation, liability would be barred by Feres.

Other courts have refused to characterize a sequence of events similar to that in this case as two separate torts. For instance, in In re "Agent Orange" Product Liability Litigation, 506 F.Supp. 762 at 779 (E.D.N.Y.1980), Judge Pratt described the government's failure to warn Vietnam veterans exposed to the defoliant Agent Orange as a single negligent act with effects that lingered after discharge. Similarly, in Reynolds v. Department of the Navy, C-2-75-427, Order, at 2 (S.D.Ohio, Feb. 8, 1976), the Court dismissed a complaint that alleged government liability for post-discharge failure to warn about radiation exposure because "any duty to warn must arise out of events which occurred during and incident to ... military service." Accord, Kelly v. United States, supra, 512 F.Supp. at 361. Because the injuries to Mr. Lombard arose out of his exposure to radiation during his military service, the failure to warn him does not constitute a separate tort. Therefore, Feres bars this Court from allowing Mr. Lombard's claim to proceed.

2. The Claims of Theodore Lombard's Wife and Children are also Barred by Feres.

Count III of the complaint alleges government liability under the FTCA to the wife and children of Theodore Lombard for mutagenic defects in the children allegedly caused by Theodore Lombard's exposure to radiation and for the mental anguish caused by these defects. Count IV alleges the same liability on a constitutional theory. Because none of these plaintiffs were in the military, their claims are more problematical than those of Mr. Lombard.

The issue of government liability for genetic damages to the children of servicemen exposed to hazardous substances has repeatedly been presented to federal courts in recent years, and the courts have uniformly held that Feres barred liability. In Monaco v. United States, C79-0860SW, slip op. at 3 (N.D.Cal. Oct. 31, 1979), the Court summarily held that even though the plaintiff had never been a member of the military, her injuries had their "genesis" in her father's exposure to radiation sustained "incident to the performance of military service." Consequently, the suit was barred by Feres. The Court found the child's injury to be "directly related to and to arise out of the injuries sustained by her father at the time he was a member of the United States Army." Id. at 4.

The theory developed in Monaco was relied on by the Court in the Agent Orange case to dismiss claims by the children of servicemen allegedly suffering genetic damage as a result of their fathers' exposure to the defoliant in Vietnam. In re "Agent Orange" Product Liability Litigation, MDL No. 381, Pretrial Order No. 26, at 30 (E.D. N.Y. Dec. 26, 1980). After repeating the rationale for dismissing the claim in Monaco, the court added: "To hold otherwise might open the door for governmental liability to countless generations of claimants having ever diminishing genetic relationship to the person actually injured." Id. at 31.

A closer examination of the factors outlined in Feres suggests that that result in Monaco and Agent Orange is correct. The FTCA represents "the culmination of a long effort to mitigate unjust consequences of sovereign immunity from suit." Feres, supra, 340 U.S. at 139, 71 S.Ct. at 157. Yet the effect of the Act is not "to visit the Government with novel and unprecedented liabilities." Id. at 142, 71 S.Ct. at 157. As the Supreme Court has pointed out, three considerations underlie the Feres doctrine:

First, the relationship between the government and members of its Armed Forces is "`distinctly federal in character,'" ... it would make little sense to have the Government's liability to members of the Armed Services dependent on the fortuity of where the soldier happened to be stationed at the time of the injury. Second, the Veterans' Benefits Act establishes, as a substitute for tort liability, a statutory "no fault" compensation scheme which provides generous pensions to injured servicemen, without regard to any negligence attributable to the Government. A third factor ... namely, "the particular and special relationship of

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