Schindler v. U.S.
Decision Date | 09 October 1981 |
Docket Number | No. 79-1725,79-1725 |
Citation | 661 F.2d 552 |
Parties | Charles SCHINDLER, and Mary Schindler, Individually and as Next Friend of Karl Michael Schindler, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee. |
Court | U.S. Court of Appeals — Sixth Circuit |
Lawrence S. Katkowsky, Keller & Katkowsky, Southfield, Mich., for plaintiffs-appellants.
James K. Robinson, U. S. Atty., Detroit, Mich., Thaddeus B. Hodgdon, U. S. Dept. of Justice, Katherine S. Gruenheck, Anthony Steinmeyer, Dept. of Justice, Civ. Div., Washington, D. C., for defendant-appellee.
Before JONES, Circuit Judge, CECIL, Senior Circuit Judge, and BERTELSMAN, District Judge. *
This is an appeal from the dismissal of a complaint and amended complaint seeking damages against the United States under the Federal Tort Claims Act. 28 U.S.C. §§ 1346(b), 2671-80 (FTCA) 1 The gravamen of the claim is that the United States negligently granted a license to a private company for the manufacture of polio vaccine according to a certain formula.
The complaints alleged that employees of the Department of Health, Education and Welfare (HEW) negligently failed to require Lederle Laboratories, a Division of American Cyanamid Company, to comply with licensing requirements of the Public Health Services Act, as amended, 42 U.S.C. § 262(d), and with the regulations promulgated pursuant thereto. The complaints further alleged that HEW employees in 1963 wrongfully granted a license to Lederle Laboratories to manufacture and distribute the product Orimune, i. e., a live, oral polio vaccine, combining Sabin vaccine strains, Types 1, 2, and 3 ("trivalent"). Vaccine manufactured in accordance with this formula, it is alleged, was in July, August and September, 1975, administered to plaintiff-appellant Karl Schindler, causing him to contract paralytic poliomyelitis in February, 1976. It is contended that by reason of this alleged negligent licensing, the United States is liable under the Federal Tort Claims Act. 2
The complaints were very carefully drawn to allege that the claimed negligence of the United States consisted in failing to observe certain specific requirements of regulations previously enacted, rather than in formulating policy. 3
The trial court held that it needed to hear more evidence to determine whether the claim for relief attempted to be alleged against the United States was subject to this discretionary function exception, and declined to pass on the issue. It held, however, that as a matter of law the United States had no duty to the plaintiffs under state negligence law, which the FTCA adopts by reference. 28 U.S.C. § 1346(b). We reverse because of the latter ruling and remand for further proceedings.
In Downs v. United States, 5 this court held that the functions of the federal government which were immunized by the discretionary function exception were "those involving policy formulation, as distinguished from the day-to-day activities of persons not engaged in determining the general nature of the Government's business." That opinion extensively reviewed the legislative history of the FTCA and the decisions of the Supreme Court of the United States and lower courts interpreting it. This discussion need not be repeated here. Suffice it to say here that the "policy-making" test for determining discretionary functions under the FTCA is in accord with the weight and trend of authority, and has received general approval by the commentators. 6
In the lower court and here, plaintiff has principally relied on Griffin v. United States. 7 Griffin held that the approval by an agency of the United States of a certain lot of polio vaccine in contravention of the specific requirements of applicable federal regulations was not subject to the discretionary function exception and, moreover, constituted actionable negligence per se. In reaching this holding and awarding substantial damages to the plaintiff who had contracted polio as a proximate result, as the district court found, of ingesting some of the improperly tested lot of vaccine, the Griffin courts followed the same "policy-making test" prevailing in this circuit under Downs, supra. Thus, the appellate court emphasized:
8
Of course, it may immediately be seen that there is a factual difference between the facts alleged in the complaints in this case and those proved in Griffin. Griffin concerned the government's negligence in testing a specific lot of vaccine, some of which the plaintiff ultimately ingested, and which proximately caused her to contract polio. This case involves the alleged negligent approval by the government of the formula for a type of polio vaccine, some of which type the plaintiff's minor is alleged to have ingested some 13 years later. What the cases have in common, at least when the matter is construed on the face of the pleadings as it must be at this stage of the proceedings, is that both approvals were granted in violation of detailed federal regulations expressly intended to provide controlling criteria.
Whether or not the obvious factual differences place this case within the discretionary function exception, the trial court did not decide. It held that further evidence would be required before it could determine whether or not policy-making functions were involved in the decision complained of. The trial court stated in its opinion granting the dismissal of the action:
We agree with the trial court that this issue is not ripe for resolution because of the multiple considerations involved. 9 Whether or not the agency decision complained of, which was made under the complex regulations set forth in the complaint, involved policy making on the part of the government requires further factual analysis, and perhaps expert testimony. However, for the reasons stated below, we disagree with the trial court's dismissal of the action.
The trial court went on in its opinion to hold that the complaint must be dismissed because the government, under Michigan law, would have no duty to any individual such as the plaintiff but only to the public in general. In reaching this conclusion, the trial court relied on Michigan case law pertaining to the liability of municipal corporations.
Principally, the district court relied on the decision of this court in Gerneth v. City of Detroit. 10 There, this court affirmed the dismissal of a complaint alleging negligence on the part of the city in conducting an investigation of the license application of a private patrolman employed as a guard at a bus station. This person, after the city's approval of his license as a private policeman, shot the plaintiff. In affirming the conclusion that liability would not lie in such a situation, this court concluded that the Michigan courts in determining the liability of a Michigan municipal corporation would follow the reasoning of the Supreme Court of Florida to the effect that:
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