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October 19, 1981

Howard E. HINKIE, Sr., et al.
UNITED STATES of America, et al.

The opinion of the court was delivered by: SHAPIRO



 Irene Hinkie is the wife of Howard E. Hinkie, Sr. ("Hinkie, Sr."), a former serviceman allegedly exposed to harmful doses of radiation during the 1955 Army nuclear testing in Nevada. She, Paul Hinkie (her son), and the estate of Timothy Hinkie (her deceased son), bring this action against the United States and against Reynolds Electric and Engineering Company ("REECO"). They charge that various injuries sustained by them were caused by defendants' negligence in the conduct of the "Teapot Dome" series of nuclear tests that took place in the Nevada desert in the 1950's. Hinkie, Sr. has stated a claim against REECO but not against the United States. Before us is the United States' motion to dismiss the claims of Irene, Paul and Timothy Hinkie on the ground that under Feres v. United States, 340 U.S. 135, 71 S. Ct. 153, 95 L. Ed. 152 (1950), the general waiver of sovereign immunity enacted in the Federal Torts Claims Act, 28 U.S.C. § 2671 et seq. ("FTCA"), does not apply to claims asserting injuries to a servicemen incident to military service. For the reasons which follow, defendant's motion will be denied.


 In ruling on the motion to dismiss, we must accept plaintiffs' allegations of fact. Plaintiffs allege that Hinkie, Sr. enlisted in the United States Army in 1953 and was trained as a pole lineman. (Amended Complaint, P 8). In February 1955, Hinkie, Sr. was ordered to Camp Desert Rock, Nevada to participate in nuclear testing programs. (Amended Complaint, P 9). Hinkie, Sr. neither requested nor volunteered to participate in the Desert Rock nuclear testing program. Between February and June of 1955, he participated in 17 or 18 nuclear tests; he was exposed to nuclear radiation from these tests and other sources of radiation at the Nevada test site. (Amended Complaint, PP 9, 10). Hinkie, Sr.'s duties in the field included laying and retrieving communication wires, operating a switchboard immediately prior to detonations, observing the nuclear explosion, and walking to "Ground 0." He was exposed to ionizing radiation and inhaled radioactive dust. (Amended Complaint, P 15).

 Prior to November 1978, the United States never gave Hinkie, Sr. any information on his cumulative radiation exposure from the nuclear tests nor has the United States ever informed Hinkie, Sr. of the adverse health effects which were known by the government to be associated with ionizing radiation. (Amended Complaint, P 13). At the time of the nuclear tests in which Hinkie, Sr. participated, the United States knew, or should have known, that exposure to ionizing radiation would have adverse effects on the health of human beings so exposed. One such adverse effect is the production of genetic defects in offspring conceived after such exposure. (Amended Complaint, PP 16, 17).

 Plaintiffs allege these negligent acts caused perturbations in the molecular substance of Hinkie, Sr., that is, breakages in the chromosomes as well as other forms of chromosomal alteration such as inversions, partial displacements, and deletions not amounting to a total breakage of the chromosomes. (Amended Complaint, P 21, P 33(a)). These perturbations in molecular substance of Hinkie, Sr. eventually formed parts of the bodies of Hinkie's deceased son (Timothy) and his son (Paul) that manifested themselves as defects at the time of their births. (Amended Complaint, P 21).

 Plaintiffs further allege that by the above-mentioned acts and omissions, the United States negligently caused the minor plaintiff (Paul Hinkie) to suffer from birth defects including Rubenstein-Taybies syndrome, lack of joints in his thumbs, constant uncontrollable twitching of his eyes, severe mental retardation and photophobia. (Amended Complaint, P 45). It is also alleged that as a proximate result of these acts and omissions on the part of the defendant United States, plaintiffs' decedent (Timothy Hinkie), was born on March 29, 1964 with severe and disabling birth defects, including but not limited to the lack of an esophagus and esophageal fistula, which caused him pain, mental anguish and his death on January 7, 1966. (Amended Complaint, P 39). Finally, it is alleged that as a result of the negligent acts and omissions of defendant United States, plaintiff Irene Hinkie suffered three miscarriages and mental anguish because of the congenital defects of her son Paul and death of her son Timothy.


 The facts alleged by plaintiffs Irene, Paul and the estate of Timothy Hinkie, with all inferences taken most favorably to them for purposes of defendant United States' motion to dismiss, state causes of action which are not barred by the FTCA on the ground that their injuries are service related.

 At common law the United States was immune from civil tort actions for damages. The FTCA, enacted by Congress in 1946, grants federal district courts exclusive jurisdiction of tort actions commenced against the United States. 28 U.S.C. § 1346. *fn1" The government's consent to such liability is limited by certain explicit statutory exceptions. 28 U.S.C. § 2680. *fn2" In addition, the Supreme Court has held that it is implicit that the FTCA does not permit government liability for injuries arising out of or in the course of activity incident to service; Feres v. United States, 340 U.S. 135, 146, 71 S. Ct. 153, 159, 95 L. Ed. 152 (1950) (no recovery under the FTCA for the death of an Army officer caused by fire in the barracks where he was quartered or for death or injury of members of the armed forces from Army medical malpractice). In Feres, the determining factor was the status of the injured party as a member of the armed forces on active duty at the time the cause of action arose.

 In Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 669, 97 S. Ct. 2054, 2056, 52 L. Ed. 2d 665 (1977), after a National Guardsman was awarded a government pension for injuries received in flight training, he brought an action against the United States and the contractor that manufactured the equipment causing his injuries. The contractor cross-claimed for indemnity from the United States. Summary judgment for the United States was affirmed because the serviceman's claim was barred as incident to military service; therefore, there could be no indemnity with regard to that claim. The Court, reaffirming the Feres doctrine stated, "(in) Feres v. United States, supra, the court held that an on-duty serviceman who is injured due to the negligence of Government officials may not recover against the United States under the Federal Tort Claims Act."

 The claim barred in Stencel was also for injury to an on-duty serviceman. However, the issue before us is the extent to which the Feres doctrine bars claims not of the serviceman ...

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