West v. U.S., 83-1842

• Citation: 729 F.2d 1120
• Decision Date: 25 June 1984
• Docket Number: No. 83-1842,83-1842
• Parties: L. Ann WEST, as Mother and Administrator of the Estate of Lorri West, et al., Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 1120

729 F.2d 1120

L. Ann WEST, as Mother and Administrator of the Estate of Lorri West, et al., Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.

No. 83-1842.

United States Court of Appeals Seventh Circuit.

Argued Nov. 3, 1983.

Decided March 14, 1984.

Rehearing and Rehearing En Banc Granted June 25, 1984.

*

Robert E. Nesemann, Hely, Royster, Voelker & Allen, Peoria, Ill., for plaintiffs-appellants.

L. Lee Smith, Asst. U.S. Atty., Gerald D. Fines, U.S. Atty., Peoria, Ill., for defendant-appellee.

Before CUMMINGS, Chief Judge, CUDAHY, Circuit Judge, and KELLEHER, Senior District Judge ^*.

CUDAHY, Circuit Judge.

This case concerns the application of the Federal Tort Claims Act to injuries suffered by children of members of the armed forces where those injuries are connected with a parent's military service. Under Feres v. United States, 340 U.S. 135, 146, 71 S.Ct. 153, 159, 95 L.Ed. 152 (1950), 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." The complaint in the case before us alleges that a soldier's children were born with birth defects resulting from the Army's negligent mistyping of their father's blood in connection with his pre-induction physical examination. The district court concluded that the Feres doctrine barred the action and dismissed the complaint for lack of subject matter jurisdiction. ¹ For the reasons stated below, we reverse and remand for further proceedings.

I.

Because the district court dismissed the complaint for lack of subject matter jurisdiction, we take as true all factual allegations in the complaint and construe them in the light most favorable to the plaintiffs. According to the complaint, Stanley West was inducted into the United States Army on January 15, 1971. Before his induction, Army doctors performed a physical examination which included the taking of a blood sample. After his induction, Stanley received his identification ("dog") tags which listed his blood type as "A-Negative." According to the complaint, Stanley's blood type is actually "A-Positive," and the Army was negligent in mistyping his blood.

In 1973, Stanley was discharged from the Army and married L. Ann West. Ann's blood type is "A-Negative." On March 21, 1979, Ann gave birth to twin daughters, Lindsay and Lorri. Both were born with birth defects resulting from the incompatibility between their parents' blood types. Despite extensive medical treatment, Lorri died when she was one week old. Lindsay survived, but she has required extensive medical treatment for her condition.

The theory of the complaint is that the Army's negligence in mistyping Stanley's blood at his pre-induction physical examination was a proximate cause of Lorri's death and Lindsay's injuries which resulted from the incompatibility between their parents' blood types. We emphasize that the record before us presents no issues concerning proximate cause, duty or the medical basis for the plaintiffs' claims. We intimate no views on the merits of the claim; we address here only the question of subject matter jurisdiction.

The Wests filed their complaint under the Federal Tort Claims Act. 28 U.S.C. Sec. 1346 and Secs. 2671-2680. Stanley and Ann were not physically injured by the Army's alleged negligence; their claims all derive from the injuries of their daughters. ² The United States moved to dismiss the complaint for lack of subject matter jurisdiction and for failure to state a claim upon which relief could be granted. The district court concluded that the daughters' alleged injuries arose out of or were incident to Stanley's military service and that subject matter jurisdiction was therefore lacking under the doctrine of Feres v. United States, 340 U.S. 135, 146, 71 S.Ct. 153, 159, 95 L.Ed. 152 (1950).

II.

In Feres the Supreme Court held 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." 340 U.S. at 146, 71 S.Ct. at 159. The FTCA does not explicitly bar such actions for service-connected injuries, but the Supreme Court concluded that Congress had not intended to permit members of the armed forces to sue for such injuries. The Court acknowledged that it had few guides for its interpretation and suggested that if Congress disagreed, it could readily correct the problem. 340 U.S. at 138, 71 S.Ct. at 155. Congress has not amended the FTCA to permit such claims. In recent years the Court has reaffirmed Feres and expanded its scope to bar third-party claims for indemnification based upon injuries to service personnel. See Chappell v. Wallace, --- U.S. ----, ----, 103 S.Ct. 2362, 2365, 76 L.Ed.2d 586 (1983) (Feres doctrine is important protection for military discipline); Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 673, 97 S.Ct. 2054, 2058, 52 L.Ed.2d 665 (1977) (barring claims for indemnification).

Plaintiffs argue that Feres does not apply to this case because the alleged negligent conduct occurred before Stanley was inducted into the service and because the injuries to his daughters occurred after his discharge. The government contends that the alleged negligent mistyping of Stanley's blood was incident to his military service and that the case therefore falls within the Feres doctrine. In our view, the alleged negligence was "incident" to Stanley's military service, but that conclusion does not bar these claims based on injuries to his daughters.

Several cases have addressed the Feres doctrine with regard to alleged negligence in pre-induction physical examinations. In Joseph v. United States, 505 F.2d 525 (7th Cir.1974); Redmond v. United States, 331 F.Supp. 1222 (N.D.Ill.1971); and Healy v. United States, 192 F.Supp. 325 (S.D.N.Y.), aff'd, 295 F.2d 958 (2d Cir.1961), plaintiffs alleged that military doctors negligently failed to diagnose physical conditions which should have disqualified the individuals from military service. In Joseph and Healy, the individuals went into basic training where the strenuous activities aggravated the conditions which should have disqualified them from service. While it was clear in both cases that the alleged negligence occurred before the individuals entered military service, the courts held that because the injuries occurred in basic training--obviously an essential part of military service--the Feres doctrine applied to bar the actions. Injuries to service personnel that occurred during basic training were incident to military service and thus squarely within the Feres holding. This court in Joseph suggested that the doctrine probably would not apply to malpractice which occurred in a pre-induction physical and which resulted in immediate injury. 505 F.2d at 526 n. 1. At the time of the pre-induction physical, the individual is still a civilian, and the Feres doctrine does not prohibit recovery by civilians injured by non-combatant military activity. ³

In this case, the alleged negligence may have occurred when Stanley was still a civilian. The mistyping of his blood might have occurred immediately, before his induction, or it might have occurred later when, for example, his dog tags may have been misprinted. However, in our view the appropriate inquiry is the broader question whether the Army's alleged negligence was "incident" to the service member's military service. We think that the allegedly negligent mistyping of Stanley's blood was incident to his military service. The purpose of the blood typing at the pre-induction physical is not to determine whether the person is fit for military service but is instead to provide information on dog tags and in personnel records for future medical treatment in the military. According to the complaint, Stanley did not learn the results of the blood typing until he was issued his dog tags in basic training. (If he had not been inducted, there would have been no reason for the Army to inform him of the results of the blood test.) According to the complaint, the Army's negligence was not completed until the Army issued Stanley his dog tags and thus negligently informed him of his blood type. Under these circumstances, therefore, the Army's alleged negligence was incident to Stanley's military service.

III.

The more difficult issue in this appeal arises from the fact that it was Stanley's daughters, not Stanley, who were allegedly injured by the Army. The Feres holding was that the government is not liable under the FTCA "for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service." 340 U.S. at 146, 71 S.Ct. at 159 (emphasis supplied). However, Feres also bars claims that derive from injuries to service personnel; for example, Feres itself and one of its companion cases involved claims by civilian survivors of servicemen who died in military service.

In applying Feres to tort claims by family members of military personnel, two lines of cases have emerged. In the first line, courts have interpreted the doctrine to bar the claims of family members which derive from the injury to the service member, including, for example, claims for loss of consortium or companionship. See, e.g., DeFont v. United States, 453 F.2d 1239 (1st Cir.) (denying spouse's claims for mental anguish and loss of support and companionship), cert. denied, 407 U.S. 910, 92 S.Ct. 2436, 32 L.Ed.2d 684 (1972); Van Sickel v. United States, 285 F.2d 87 (9th Cir.1960) (denying family's claims for wrongful death based on military doctors' negligence); Harrison v. United States, 479 F.Supp. 529 (D.Conn.1979) (denying wife's claim for loss of consortium), aff'd mem., 622 F.2d 573 (2d Cir.), cert. denied, 449 U.S. 828, 101 S.Ct. 93, 66 L.Ed.2d 32 (1980). See also Lombard v. United States, 690 F.2d 215, 225 nn. 17 & 18 (D.C.Cir.1982) (co...