Molsbergen v. U.S.

• Decision Date: 15 May 1985
• Docket Number: No. 84-1626,84-1626
• Citation: 757 F.2d 1016
• Parties: , 1 Fed.R.Serv.3d 1051 Irma MOLSBERGEN, Plaintiff-Appellant, v. UNITED STATES of America; United States Department of Defense; United States Department of the Navy; United States Veterans Administration; United States Nuclear Regulatory Commission, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1016

757 F.2d 1016

53 USLW 2521, 1 Fed.R.Serv.3d 1051

Irma MOLSBERGEN, Plaintiff-Appellant, v. UNITED STATES of America; United States Department of Defense; United States Department of the Navy; United States Veterans Administration; United States Nuclear Regulatory Commission, Defendants-Appellees.

No. 84-1626.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Oct. 5, 1984.

Decided April 9, 1985.

As Amended May 15, 1985.

James Geagan, Hoberg, Finger, Brown & Cox & Molligan, San Francisco, Cal., for plaintiff-appellant.

Paul Figley, Dept. of Justice, Washington, D.C., for defendants-appellees.

Appeal from the United States District Court for the Northern District of California.

Before BROWNING, ANDERSON, and REINHARDT, Circuit Judges.

REINHARDT, Circuit Judge:

I. FACTUAL BACKGROUND

Appellant Irma Molsbergen is the widow of John Martens Molsbergen, a former pilot with the U.S. Navy, who died from cancer on January 8, 1981. Subsequent to Mr. Molsbergen's death, appellant filed administrative claims with the Department of Defense, the Department of the Navy, the Veterans Administration and the Nuclear Regulatory Commission. These claims were denied on January 20, 1983.

On June 16, 1983, appellant filed a complaint against the United States Government, among others, pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. Sec. 1346(b) (1982), and the United States Constitution. ¹ Appellant alleged that Mr Molsbergen's death resulted from his exposure to radiation subsequent to the 1945 detonation of an atomic bomb over Nagasaki, Japan. ²

In count one of her complaint, appellant alleged that while Mr. Molsbergen was on active duty in the U.S. Navy, he was ordered to participate in a mission "at Nagasaki, Japan immediately after [the] detonation." Appellant alleged that in the course of the mission, Mr. Molsbergen was exposed to ionizing radiation which caused his eventual death. Appellant further alleged that subsequent to Mr. Molsbergen's discharge from the Navy, the government learned of certain dangers related to radiation exposure. Appellant alleged that by failing to warn Mr. Molsbergen of these dangers once it became aware of them, the government breached a legal duty which resulted in Mr. Molsbergen's death.

In count two of her complaint, appellant alleged that the government intentionally exposed Mr. Molsbergen to ionizing radiation without obtaining his consent. Contrary to the averments contained in count one, appellant alleged that the government was fully aware of the danger involved with such exposure when it ordered Mr. Molsbergen to participate in the mission. Appellant further alleged that the government ordered Mr. Molsbergen to participate in the mission for purposes of human experimentation.

In count three of her complaint, appellant alleged that the government's conduct deprived Mr. Molsbergen of certain constitutional protections. Specifically, appellant alleged that the government violated Mr. Molsbergen's rights to life and liberty, secured by the Fifth Amendment to the United States Constitution.

The district court dismissed all three counts of the complaint for lack of subject matter jurisdiction. Relying principally on Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1952), the district court concluded that the FTCA's waiver of sovereign immunity did not extend to appellant's claim for in-service human experimentation (count two). The district court also held that Feres barred appellant's claim for the government's failure to warn Mr. Molsbergen subsequent to its learning that his life or health were in jeopardy (count one). The district court interpreted count two of appellant's complaint as an admission against count one, concluding that since the allegations contained in count one conflicted with those contained in count two, appellant had merely attempted "to divide one in-service wrongful act continuing past discharge into pre- and post-discharge wrongful acts." Finally, the district court concluded that Feres barred appellant's constitutional claim (count three).

In this appeal, appellant contests only the dismissal of count one of her complaint. ³ Because we conclude that the district court erred in its application of the relevant law, we reverse and remand the matter for reinstatement of that count.

II. APPLICABILITY OF THE FERES DOCTRINE

A. Appellant's Inconsistent Averments

As a threshold matter, we note that the district court erred in construing count two of appellant's complaint as an admission against count one and in concluding that count one was therefore barred by Feres. Indeed, to permit such a construction would undermine the clear intent of the Federal Rules of Civil Procedure, which explicitly authorize litigants to present alternative and inconsistent pleadings. Pursuant to Rule 8(e)(2), "[a] party may set forth two or more statements of a claim or defense alternatively or hypothetically." The Rule further provides that "[a] party may also state as many separate claims or defenses as he has regardless of consistency." Id. Clearly, a policy which permits one claim to be invoked as an admission against an alternative or inconsistent claim would significantly restrict, if not eliminate, the freedom to plead inconsistent claims provided by Rule 8(e)(2). Thus, courts have been reluctant to permit one pleading to be read as a judicial or evidentiary admission against an alternative or inconsistent pleading. See Douglas Equipment, Inc. v. Mack Trucks, Inc., 471 F.2d 222 (7th Cir.1972); Continental Insurance Co. v. Sherman, 439 F.2d 1294 (5th Cir.1971); Giannone v. United States Steel Corp., 238 F.2d 544 (3d Cir.1956); McCormick, Evidence Sec. 265 (2nd ed. 1972). Cf. Ryan v. Foster and Marshall, 556 F.2d 460, 463 (9th Cir.1977) (plaintiffs' assertion of inconsistent and alternative claims may not be construed as a waiver by plaintiffs of their rights to recovery under either claim).

In light of the liberal pleading policy embodied in Rule 8(e)(2), we hold that a pleading should not be construed as an admission against another alternative or inconsistent pleading in the same case under the circumstances present here. Shipek v. United States, 752 F.2d 1352, 1356 (9th Cir. 1985). ⁴ Thus, in this case, the district court should have examined counts one and two of appellant's complaint independently. Properly analyzed, count one of appellant's complaint alleges that subsequent to Mr. Molsbergen's discharge, the government learned of a risk to which it had exposed Mr. Molsbergen and negligently failed to warn him of prospective harm.

B. Applicability of Feres to Appellant's Allegation of Post-Discharge Negligence

In Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), the Supreme Court held that "the Government is not liable for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service." Id. at 146. However, as we have previously held, Feres does not bar a claim for a post-discharge failure to warn. In Broudy v. United States, 661 F.2d 125 (9th Cir.1981) ("Broudy I"), this court addressed an issue identical to that raised by appellant in count one of her complaint. At issue in Broudy I was the validity of a cause of action under the FTCA for post-discharge injuries sustained by a former member of the armed forces as a result of his exposure to radiation while on active duty. Although we concluded that a claim predicated on the government's decision to expose the veteran to radiation was barred by Feres, we reasoned that under certain circumstances, a claim for injuries resulting from the government's failure to warn the veteran of the danger associated with radiation exposure could properly be asserted under the FTCA. Specifically, we held that

if the Appellant can allege and prove an independent post-service negligent act on the part of the Government, her claim would be cognizable under the FTCA. The Government's failure to warn Major Broudy of and monitor any possible injuries arising from his exposure to radiation might constitute such an act if the Government learned of the danger after Major Broudy left the service.

Id. at 129.

In count one of her complaint, appellant has alleged that Mr. Molsbergen was exposed to radiation while he was in military service; that the government learned of the potential effects of such exposure subsequent to Mr. Molsbergen's discharge; that the government breached a duty to warn Mr. Molsbergen of these potential effects once it became aware of them; and that Mr. Molsbergen's death resulted from breach of the government's duty to warn. Thus, appellant's allegations are limited to the government's conduct subsequent to Mr. Molsbergen's discharge. Because the allegations contained in count one of appellant's complaint meet the requirements we articulated in Broudy I, we conclude that she has stated a cause of action which is not barred by Feres and which is cognizable under the FTCA. See Shipek v. United States, 752 F.2d 1352, 1356 (9th Cir.1985); Seveney v. United States, 550 F.Supp. 653, 660 (D.R.I.1982); Everett v. United States, 492 F.Supp. 318, 325-26 (S.D.Ohio 1980); Thornwell v. United States, 471 F.Supp. 344, 352 (D.D.C.1979).

III. EXISTENCE OF A DUTY TO WARN

Having concluded that appellant's claim is not barred by Feres, we must next determine whether, upon learning of the dangers associated with radiation exposure, the government incurred a duty to warn Mr. Molsbergen. The government may be held liable for claims brought pursuant to the FTCA only if a private person would, under similar circumstances, be liable pursuant to the law of the place where the act or omission occurred. 28 U.S.C. Sec. 1346(b) (1976). Here, the alleged wrongdoing occurred in California, the state in which appellant and her husband were domiciled. We therefore inquire into whether, under California law, a private party...