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KELLY v. UNITED STATES

April 24, 1981

Edward C. KELLY and Marie Kelly, his wife
v.
UNITED STATES of America and Certain Past and Present Officers and Officials of the United States Department of Defense Joint Chiefs of Staff, Department of the Navy, the Atomic Energy Commission, the United States Navy and the Veterans Administration, whose names will be inserted when ascertained, each individually and in his official capacity



The opinion of the court was delivered by: LUONGO

Plaintiff Edward Kelly alleges that while serving in the United States Navy in 1946 he and numerous other servicemen were exposed to nuclear radiation during the Navy's tests of nuclear weaponry in the South Pacific. Kelly contends that he developed cancer as a result of this exposure. He is joined in this action by his wife. Defendants are the United States, and unknown officials of the various federal agencies involved in the testing program who gave the orders resulting in Kelly's exposure to radiation.

Kelly has moved for certification of this action as a class action on behalf of all other naval personnel who participated in the same nuclear testing. He seeks damages under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. and for violation of his constitutional rights, and an injunction directing the United States to warn all members of the class of the dangers posed by their exposure to radiation. The United States has moved to dismiss on the ground of sovereign immunity, and the parties have stipulated that I should postpone decision on the class certification motion until after resolving the motion to dismiss.

 I. The Tort Claims

 A. Application of the Federal Tort Claims Act

 The United States first contends that Kelly may not bring this action under the Federal Tort Claims Act (FTCA), because the occurrence of which he complains took place at sea, and therefore his exclusive remedy is under the Public Vessels Act, 46 U.S.C. § 781 et seq. Until recently, under the Supreme Court's early decision in The Plymouth, 70 U.S. (3 Wall.) 20, 18 L. Ed. 125 (1865), if the cause of action arose at sea, under the "locality" rule there was admiralty jurisdiction over the action. In Executive Jet Aviation v. City of Cleveland, 409 U.S. 249, 93 S. Ct. 493, 34 L. Ed. 2d 454 (1972), however, the Supreme Court criticized the locality rule as fortuitously creating admiralty jurisdiction in cases where the tort alleged had little to do with traditional maritime activities. 409 U.S. at 253-268, 93 S. Ct. at 497-504. In Executive Jet, the Court held that a jet aircraft crash over navigable waters was not sufficient to create admiralty jurisdiction, and established the rule that for admiralty jurisdiction to exist the wrong complained of must "bear a significant relationship to traditional maritime activity." In an earlier case, Rodrigue v. Aetna Casualty & Surety Co., 395 U.S. 352, 89 S. Ct. 1835, 23 L. Ed. 2d 360 (1969), the Court held that there was not admiralty jurisdiction over an accident which occurred on oil-drilling rigs anchored in the Gulf of Mexico, because the accident in question "had no more connection with the ordinary stuff of admiralty than do accidents on piers." 395 U.S. at 360, 89 S. Ct. at 1839.

 Here, the tortious conduct alleged by Kelly exposure to radiation and subsequent failure to warn him of the effects of the exposure, is scarcely the "ordinary stuff of admiralty." Certainly the decisions to conduct the tests, and to have military personnel at the sites, were not made on board ship. On the contrary, maritime activity was obviously not central to the test program, because land sites were chosen for similar nuclear testing. See, e.g., Jaffee v. United States, 592 F.2d 712 (3d Cir.), cert. denied, 441 U.S. 961, 99 S. Ct. 2406, 60 L. Ed. 2d 1066 (1979).

 Accordingly, I hold that if Kelly has a colorable tort claim, it is properly raised under the Federal Tort Claims Act.

 B. Application of the Feres Doctrine

 The United States next contends that even if Kelly has properly stated a claim under the FTCA, his action is barred by the judicially created immunity from tort claims arising out of military service. Feres v. United States, 340 U.S. 135, 71 S. Ct. 153, 95 L. Ed. 152 (1950). In Feres, the personal representative of a serviceman who perished in a fire at an army barracks brought suit under the FTCA alleging that the United States was negligent in housing troops in an unsafe building. The Court held that considerations of public policy required the conclusion 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.

 Kelly concedes that his claims against the United States for deliberate and negligent exposure to radiation fall within the Feres doctrine and must be dismissed. But he contends that his claim against the United States for negligent failure to warn him of the dangers posed by his exposure to radiation constitutes a separate tort occurring after his discharge from the military, and therefore does not fall within the prohibition of Feres. See United States v. Brown, 348 U.S. 110, 75 S. Ct. 141, 99 L. Ed. 139 (1954).

 The Court of Appeals for the Third Circuit has not yet ruled whether "an allegation that governmental officials knew of the risk of ongoing damage from ingested radioactive particles and deliberately or negligently failed to warn (the claimant) of the ongoing hazard after (he) left military service" would be actionable under the Federal Tort Claims Act. Jaffee v. United States of America, No. 79-1543, (3d Cir., Feb. 20, 1980), slip. op. at 5 (Jaffee II ) (vacated for rehearing). There are, however, two decisions from within this circuit which are relevant to Kelly's position. In Henning v. United States, 446 F.2d 774 (3d Cir. 1971) a serviceman was given a chest x-ray by an Army physician which reflected symptoms of tuberculosis in October, 1963. The physician's report failed to recognize the presence of tuberculosis, and as a result the tubercular condition was not properly diagnosed until June, 1964. The serviceman contended that his suit under the FTCA was not barred by the Feres doctrine because he was alleging post-discharge negligence in the Army's failure to advise him of his condition after he had left the service. The court appeared to accept the general proposition that post-discharge failure to warn of a dangerous condition could give rise to an action notwithstanding Feres. It held, however, that the plaintiff's allegations did not suffice to establish that two separate torts had been committed one pre-discharge and one post-discharge:

 
While it cannot be disputed on this record that Henning's tubercular condition grew steadily worse after the negligence of the (Army) authorities properly to read his x-rays prior to discharge, that failure occurred but once and Henning's disaster is due to that failure. To support Henning's claim we would have to treat the (Army's) failure as a continuous one terminating only in June 1964 when Henning was informed of his tubercular condition. 446 F.2d at 778.

 In Henning, the circuit court cited with apparent approval Schwartz v. United States, 230 F. Supp. 536 (E.D.Pa.1964). *fn1" In Schwartz, while in the Army the plaintiff was injected with a radioactive dye by Army physicians. The dye was subsequently proven to be carcinogenic, and the plaintiff in fact developed cancer at the site where the dye had been injected. After discharge, the plaintiff visited Veterans Administration (VA) clinics on several occasions, and each time there were symptoms of some abnormality where the dye had been. Notwithstanding these symptoms, the VA physicians made no attempt to review the plaintiff's prior records to determine possible causes. The court held, inter alia, that once the dye was proven to be dangerous, the Army or VA doctors had a duty to search past medical records to determine whether it had been used in treatment, and to warn those who had been treated with the dye of its dangers. Id. at 540. It is not clear from the court's opinion, however, whether in its view the Army had a general duty to warn extending to all ...


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