by film badges, which were represented as a reliable means of measuring radiation exposure. (Amended Complaint, P 11). Hinkie, Sr. was never given protective clothing to wear in the field. (Amended Complaint, P 12). The United States omitted to read and/or preserve the records from a large number of the film badges worn by Hinkie, Sr. The United States assured the safety of Hinkie, Sr. with a film badge program that it knew or had reason to know was inadequate. (Amended Complaint, P 18).
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.
The government's consent to such liability is limited by certain explicit statutory exceptions. 28 U.S.C. § 2680.
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 himself but of the civilian members of his family.
There have been two lines of cases regarding recovery by members of a serviceman's family since Feres. Members of a serviceman's family have recovered against the United States for injuries caused directly to them, independent of any injury to the serviceman, if they arise from non-combatant activities. Even the serviceman himself may recover consequential damages for such injuries. See, Costley v. United States, 181 F.2d 723 (5th Cir. 1950) (sergeant can maintain FTCA action for injuries to wife resulting from negligence incident to delivery of child in an Army hospital); Grigalauskas v. United States, 103 F. Supp. 543 (D.Mass.1951), aff'd, 195 F.2d 494 (1st Cir. 1952) (sergeant may recover consequential damages for injuries sustained by infant daughter at Army hospital); Fournier v. United States, 220 F. Supp. 752 (D.Miss.1963) (serviceman and daughter recovered for wife's death caused by negligence of government employees at an officers' club); Herring v. United States, 98 F. Supp. 69 (D.Colo.1951) (serviceman's wife may recover for injury as a patient in Army hospital; the status of injured party is determinative); Messer v. United States, 95 F. Supp. 512 (D.Fla.1951) (sergeant on active duty may recover for injury to wife caused by negligence of Army hospital employees); Wilscam v. United States, 76 F. Supp. 581 (D.Hawaii 1948) (Naval officer recovered for death of his minor child caused by negligence of Naval medical corpsman); 31 A.L.R.Fed. 146, 193 (1977).
However, recovery by family members has been barred under the Feres doctrine where the cause of action is ancillary or derivative to the serviceman's action for his own injury. In Feres, two of the three claims barred were wrongful death actions brought by widows of servicemen who died incident to their service.
Similarly, actions by family members for alleged injuries suffered themselves by reason of a serviceman's injury, that is, derivative injuries, have been held barred by the Feres doctrine. De Font v. United States, 453 F.2d 1239 (1st Cir. 1972), cert. denied, 407 U.S. 910, 92 S. Ct. 2436, 32 L. Ed. 2d 684 (1972) (serviceman's wife's action for mental anguish; child for loss of companionship); Harrison v. United States, 479 F. Supp. 529 (D.Conn.1979), aff'd without opinion, 622 F.2d 573 (2d Cir. 1980), cert. denied, 449 U.S. 828, 101 S. Ct. 93, 66 L. Ed. 2d 32 (1980) (serviceman's wife for loss of consortium); Wisniewski v. United States, 416 F. Supp. 599 (E.D.Wis.1976) (marital disharmony). See, In re Agent Orange, 506 F. Supp. 762, 780 (E.D.N.Y.1980).
This case does not fall neatly into either line of cases. It resembles the first line of cases allowing recovery for direct injuries to members of the serviceman's family rather than to the serviceman. Hinkie, Sr. brings no claim against the United States on his own behalf; Hinkie, Sr.'s representative action is a claim for Timothy's death. Paul and Irene claim damages for their own physical injuries. The Hinkies do not claim loss of the services or companionship of Hinkie, Sr. because of an injury to him, nor do they claim a loss because of his injury or death. But in these cases permitting recovery, the serviceman himself had not been directly injured. However, the Hinkies' claims occurred only because of the injury to Hinkie, Sr. The Hinkies' claim is that the chromosomal damage to Hinkie, Sr. caused the injuries to them just as the personal injury to or death of a serviceman gives rise to a cause of action for wrongful death or loss of companionship and consortium. In this respect, it resembles the second line of cases rejecting liability for derivative injuries.
In the following cases, like this case, a direct physical injury to a family member had allegedly been caused by some negligent action or omission of the United States with regard to the serviceman: Harten v. Coons, 502 F.2d 1363 (10th Cir. 1974), cert. denied, 420 U.S. 963, 95 S. Ct. 1354, 43 L. Ed. 2d 441 (1975) (wife's action for costs of pregnancy and child raising caused by negligent vasectomy on serviceman); Monaco v. United States, No. SC-79-0859 (N.D.Cal.1979) on appeal, No. 79-4787 (9th Cir.) (child's action for congenital birth defects caused by serviceman father's exposure to radiation); Jessup v. United States, No. 79-271-TUC-RMB (D.Ariz.1980) (family's action for hepatitis contracted by negligent failure to diagnose serviceman's hepatitis); In re Agent Orange, 506 F. Supp. 762, 781 (E.D.N.Y.1980) (children of veterans claim for genetic injury caused by parents' exposure to Agent Orange).
Recovery by family members was held to be barred by the Feres doctrine in Harten, Monaco, and Agent Orange, supra. The Harten court, applying the "incident to service test," held that the bar to the serviceman's recovery also barred the wife; the wife's claim was not considered independent of the serviceman's.
In both Monaco and Agent Orange the courts considered the claim of the serviceman's children independent but held determinative "whether plaintiff's injuries have as their genesis injuries allegedly sustained incident to the performance of military service." Monaco, Slip Op. at 3; Agent Orange, 506 F. Supp. at 781.
The Jessup court reached a contrary result. Applying the criteria stated by the Supreme Court as the rationale for the Feres doctrine in Stencel, it determined that the reasons underlying the FTCA exception barring servicemen suits were inapplicable to actions by family members for their direct physical injuries.
Under the "genesis incident to service" test enunciated in Monaco and Agent Orange, the chromosome injuries to Hinkie, Sr. bar the family's claims because his injuries are alleged as the cause of their own. However, this oversimplification would avoid the necessary analysis of policies underlying the Feres doctrine which the Supreme Court requires in determining its application to novel cases. Therefore, we reject applying the Feres bar to every action somehow involving an injured serviceman. That result does not follow from the Supreme Court's analysis of Feres in Stencel.
In Stencel, the Court held that a government contractor could not seek indemnity from the United States for damages to a member of the Armed Forces injured in the course of military service. The three factors justifying the Feres doctrine were:
First, the relationship between the Government and members of its Armed Forces is "distinctively federal in character,' ... it would make little sense to have the Government's liability to members of the Armed Services dependent on the fortuity of where the soldier happened to be stationed at the time of the injury. Second, the Veterans' Benefits Act establishes, as a substitute for tort liability, a statutory "no fault' compensation scheme which provides generous pensions to injured servicemen, without regard to any negligence attributable to the Government. A third factor was explicated in United States v. Brown, (348 U.S. 110, 112, 75 S. Ct. 141, 143, 99 L. Ed. 139 (1954)) ... namely "(t)he peculiar and special relationship of the soldier to his superiors, the effects of the maintenance of such suits on discipline, and the extreme results that might obtain if suits under the Tort Claims Act were allowed for negligent orders given or negligent acts committed in the course of military duty ....' (citations omitted). Stencel, 431 U.S. at pp. 671-72, 97 S. Ct. at 2058.
After setting out these three factors the Supreme Court stated,
We must therefore consider the impact of these factors where, as here, the suit against the Government is not brought by the serviceman himself, but by a third party seeking indemnification for any damages it may be required to pay the serviceman. Stencel at 672, 97 S. Ct. at 2058 (emphasis supplied).