Smith v. United States

• Decision Date: 14 April 1975
• Docket Number: Civ. A. No. C 74-193 Y.
• Citation: 392 F. Supp. 654
• Parties: Connie SMITH, as mother and next friend of Scott Smith, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Northern District of Ohio

392 F. Supp. 654

Connie SMITH, as mother and next friend of Scott Smith, Plaintiff, v. UNITED STATES of America, Defendant.

Civ. A. No. C 74-193 Y.

United States District Court, N. D. Ohio, E. D.

April 14, 1975.

John G. Lancione, Cleveland, Ohio, for plaintiff.

James C. Diggs, Asst. U. S. Atty., Cleveland, Ohio, Walter A. Oleniewski, Dept. of Justice, Trial Atty., Washington, D. C., for defendant.

ORDER

CONTIE, District Judge.

Defendant has moved the Court for summary judgment. Upon consideration and for the reasons stated below, the motion shall be granted.

This is a tort action against the United States under the Federal Tort Claims Act, 28 U.S.C. § 1346(b). It is prosecuted by Connie Smith, as Mother and next friend of Scott Smith. As the conduct resulting in this action occurred in the State of Texas, the law of that state is controlling herein. Richards v. United States, 369 U.S. 1, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962).

It appears that some time during the latter part of 1970, Connie Smith (hereinafter Mother) was a patient at the 2794th United States Air Force Dispensary at Kelley Air Force Base, Texas. It is alleged that she was in the first trimester of her pregnancy at the time and that the base physicians failed to properly diagnose and treat her for rubella (German measles). The complaint further alleges that as a proximate result of said negligence the plaintiff, Scott Smith, was born with serious and substantial birth defects. The Mother's cause of action has previously been dismissed.

Once a woman contracts rubella while in the first trimester of pregnancy there is a substantial likelihood that any child born of that pregnancy will have birth defects due to that infection. Furthermore, even if the defendant's physicians had properly diagnosed the rubella infection, there is no known medical treatment which could prevent or palliate either the abnormalities or the likelihood thereof. Thus, the physician's negligence was in no way a cause of the child's abnormalities. Clearly, therefore, such negligence was not the proximate cause of said abnormalities. As an essential element of this cause of action fails, summary judgment must be granted to defendant.

As alternative grounds for the granting of summary judgment, the Court finds that plaintiff has not suffered damages cognizable at law.

Assuming that the proximate causation problem could be surmounted, plaintiff's claim becomes:

". . . he would not have been born to suffer with an impaired body. In other words, he claims that the conduct of defendants prevented his mother from obtaining an abortion which would have terminated his existence, and that his very life is `wrongful.'" Gleitman v. Cosgrove, 49 N.J. 22, 227 A.2d 689, 692 (1967).

Thus, the measure of damages must be "the difference between his life with defects against the utter void of non-existence . . ." Gleitman v. Cosgrove, supra, at 692.

This Court concurs with the opinion of the Supreme Court of New Jersey in the Gleitman case that:

"It is logically

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