Wade v. US
| Decision Date | 28 August 1990 |
| Docket Number | Civ. No. 89-00226 HMF. |
| Parties | Larry D. WADE and Vicky G. Wade, individually and as special administrators of the estate of Sheila Ilene Wade and as special administrators of the estate of Cecilia Ann Wade, Plaintiffs, v. UNITED STATES of America, Defendant. |
| Court | U.S. District Court — District of Hawaii |
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Mark S. Davis, Michael K. Livingston, Davis & Levin, Honolulu, Hawaii, for plaintiffs.
Daniel A. Bent, U.S. Atty., Theodore G. Meeker, Asst. U.S. Atty., Honolulu, Hawaii, for defendant.
ORDER DENYING DEFENDANT'S MOTION TO DISMISS OR IN THE ALTERNATIVE FOR SUMMARY JUDGMENT
Defendant United States of America (the "government") brings this motion to dismiss or in the alternative for summary judgment on plaintiff's claim under the Hawaii wrongful death statute. Haw.Rev. Stat. § 663-3 (1988). Plaintiffs oppose this motion. Defendant's motion came on for hearing on August 6, 1990. The court, having reviewed the motion and the memoranda in support thereof and in opposition thereto, having heard the oral arguments of counsel, and being fully advised as to the premises herein, finds as follows:
Plaintiffs Larry and Vicky Wade bring this action under the Federal Tort Claims Act, 28 U.S.C. § 1346 (1982 & Supp.1986), in their individual capacities and in their capacity as special administrators of the estates of Sheila Ilene Wade and Cecelia Ann Wade, twins who were stillborn on May 9, 1986.1 Plaintiffs allege that the stillbirth occurred solely as a result of the medical malpractice of physicians at Tripler Army Hospital (the "hospital"), an entity of the United States. Plaintiffs' complaint further alleges that physicians at the hospital were negligent in failing to place a cerclage on plaintiff Vicky Wade's allegedly incompetent cervix and in failing to discuss with her the advantages and disadvantages of using this device. Finally, plaintiffs assert that the twins would not have been stillborn if the cerclage had been used.
Defendant's argument on this motion is relatively simple; the government contends that plaintiffs have no cause of action under the Hawaii wrongful death statute for the wrongful termination of a fetus which was never born. In the alternative, the government moves for summary judgment on plaintiffs' claims under the wrongful death statute. Recognizing that a number of states have allowed plaintiffs to bring wrongful death actions for the death (using that term loosely) of a viable fetus, the government asserts that there is no genuine factual dispute that the Wade twins were not yet viable at the time of the stillbirth and that, for that reason, no action under the wrongful death action may lie in this case.
Plaintiff urges the court that defendant's motion should be properly characterized as a motion for partial dismissal and in the alternative for partial summary judgment. Defendant's motion attacks only those claims asserted under the Hawaii wrongful death statute as applied through the Federal Tort Claims Act. Plaintiffs assert that claim but also assert another claim for their "injury, pain, suffering, mental and emotional distress" as a result of the hospital's negligence. Complaint, p. 5. Because that suit is independent of the termination of the fetuses and those injuries are not among the types recoverable under the wrongful death statute, plaintiffs assert a cause of action outside that statute. Thus defendant's motion is properly characterized as one for partial dismissal and for partial summary judgment.
The federal defendants have brought their motion to dismiss pursuant to Fed.R. Civ.P. 12(b)(6). Rule 12(b) of the Federal Rules of Civil Procedure provides as follows:
Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto, except that the following defenses may at the option of the pleader be made by motion: ... (6) failure to state a claim upon which relief can be granted....
In considering a 12(b)(6) motion to dismiss, the general rule is that a complaint should not be dismissed on the pleadings "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957); Gillespie v. Civiletti, 629 F.2d 637 (9th Cir.1980); California ex rel. Younger v. Mead, 618 F.2d 618, 620 (9th Cir.1980).
In evaluating a complaint, any doubts should be construed in favor of the pleader. Ernest W. Hahn, Inc. v. Codding, 615 F.2d 830, 834-36 (9th Cir.1980). The complaint must be liberally construed, giving the plaintiff the benefit of all proper inferences. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974).
The Federal Tort Claims Act incorporates the law of the jurisdiction in which the allegedly tortious act occurred as the law to be applied in claims under it. The Act reads, in pertinent part:
Plaintiffs bring this suit in dual capacities. They sue in their individual capacities as parents of the twin fetuses. The Hawaii wrongful death statute delineates the types of people who may maintain a cause of action under it, and it includes parents of the deceased as one of those types. The statute allows a wrongful death action to be brought "... by the surviving spouse, children, father, mother, and by any person wholly or partly dependent upon the deceased person." Haw.Rev. Stat. § 663-3 (1988) (emphasis added). Thus plaintiffs may properly bring a wrongful death action in their individual capacities.
Plaintiffs also bring this suit in their capacity as special administrators of the estates of the twin fetuses. While the deceased's estate is not one of the entities enumerated in the above quoted statutory passage, a prior passage of the wrongful death statute provides that "... the deceased's legal representative, or any of the persons hereinafter enumerated, may maintain an action ..." under the statute. However, the statute clearly and severely narrows the scope of damages recoverable by the deceased's legal representative when it provides that, "the action shall be maintained on behalf of the persons hereinafter enumerated, except that the legal representative may recover on behalf of the estate the reasonable expenses of the deceased's last illness and burial." Haw.Rev. Stat. § 663-3 (1988). Thus the plaintiffs, in their capacity as special administrators of the estates of the twins, can only sue under the Act for the costs associated with the fetuses last illness and burial. Plaintiffs' complaint, however, advances no such claim for those expenses, so plaintiffs cannot maintain this action on behalf of the estates.
The central issue presented by this motion is whether a plaintiff may bring a suit under the Hawaii wrongful death statute for the death of a fetus which never sustained life outside its mother's womb. As all causes of action predicated upon the death of someone other than the plaintiff are entirely creations of statute, this motion presents an issue of statutory construction. The Hawaii statute allows an action for the death of a "person," but this case does not call for the court to make any moral, philosophical, or theological determination of what constitutes a person or a life. Such an approach would turn this case into an exercise in semantics when there is no indication that the Hawaii legislature placed some special significance in the word "person."
Rather this case merely calls for this court to determine whether the Hawaii legislature would extend recovery to proper plaintiffs under this statute for the death of a fetus. Both parties agree and research reveals that the Hawaii legislature never considered this issue and that nothing in the legislative history associated with this statute touches upon it. Similarly, it is equally clear that no court of the state of Hawaii has addressed this issue or any issue approximating it.
This claim arises under the Federal Tort Claims Act, which contains its own grant of jurisdiction to the federal courts. 28 U.S.C. § 1346 (1982 & Supp.1986). Nevertheless, the case turns upon a determination of Hawaii law, so the court is faced with a situation analogous to one in which it sits in diversity. In absence of controlling state law, a "federal court sitting in diversity must use its own best judgment in predicting how the state's highest court would decide the case." Takahashi v. Loomis Armored Car Serv., 625 F.2d 314, 316 (9th Cir.1980). In reaching its...
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