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Laloup v. United States

United States District Court, E.D. Pennsylvania

March 20, 2015




Page 341



I. Introduction

Plaintiffs Craig and Beverly LaLoup are suing the United States of America for negligent infliction of emotional distress by the Marine Corps in the course of its informing them that the body of their son, Marine Sergeant Brian LaLoup, had been returned to them without his heart after his death and autopsy while deployed in Athens, Greece.[1]

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After discovery, the LaLoups moved for partial summary judgment (the " PSJ" ). The Government responded with a motion to dismiss, or, in the alternative, motion for summary judgment (the " MTD" ).

In their motion for partial summary judgment, the LaLoups argue that the Government owed them a duty of care (1) not to withhold information from them as his next-of-kin about Sgt. LaLoup, the deceased service member, and (2) to take all necessary steps to preserve, recover, and return Sgt. LaLoup's remains to them. PSJ at 6, 8-9.

In response, the Government argues that we should dismiss the LaLoups' complaint because they cannot state a claim for negligent infliction of emotional distress under the Federal Tort Claims Act (" FTCA" ), as 28 U.S.C. § 2680(h) bars claims based upon a misrepresentation. MTD at 7. In the alternative, the Government argues that it, and not the LaLoups, is entitled to summary judgment because the LaLoups cannot establish the required duty between the Marine Corps and themselves to support their negligent infliction of emotional distress claim under Pennsylvania law. MTD at 11.

II. Standards of Review

As the LaLoups filed a motion for partial summary judgment and the Government filed a motion to dismiss, or, in the alternative, motion for summary judgment, we will discuss both legal standards as they apply to the arguments before us.

A. Motion to Dismiss

If we determine at any time that we lack subject-matter jurisdiction, we must dismiss the action. Fed.R.Civ.P. 12(h)(3). Parties may assert such a defense by motion. Fed.R.Civ.P. 12(b)(1). A motion under Rule 12(b)(1) may be treated as either a facial or factual challenge to the court's subject-matter jurisdiction. Gould Elecs. Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000). In reviewing a facial attack, we must only consider -- in the light most favorable to the plaintiff -- the allegations of the complaint and documents attached thereto. Id. But in a factual attack we may consider evidence outside the pleadings. Id. We may therefore consider affidavits, depositions, and testimony to resolve factual issues bearing on jurisdiction. Gotha v. United States, 115 F.3d 176, 179, 36 V.I. 392 (3d Cir. 1997), citing Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891-92 (3d Cir. 1977) (explaining that the court is free to weigh the evidence to satisfy itself as to the existence of its power to hear the case). Factual attacks under Rule 12(b)(1) differ markedly from motions under Rule 12(b)(6) and Rule 56 because " no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional

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claims." Mortensen, 549 F.2d at 891. The plaintiff bears the burden of showing that subject-matter jurisdiction exists. Id.

Our Court of Appeals has cautioned that district courts must be careful not to reach the merits of a case when deciding Rule 12(b)(1) motions, and so we are to demand less by way of jurisdictional proof than we would at the trial stage. CNA v. United States, 535 F.3d 132, 144 (3d Cir. 2008) (quoting Gould, 220 F.3d at 178). We are obliged to impose a lower factual showing than would be required to succeed on the merits of a plaintiff's claims at trial so that we do not prematurely dismiss claims that might be established given the benefit of discovery. S.R.P. ex rel. Abunabba v. United States, 676 F.3d 329, 344, 56 V.I. 901 (3d Cir. 2012); CNA, 535 F.3d at 145.

Where jurisdictional challenges are intertwined with merits challenges under the FTCA, our Court of Appeals has instructed district courts to treat such challenges as jurisdictional ones. See, e.g., CNA, 535 F.3d at 144 (explaining that the approach of the Third Circuit has been to " make disputes over the scope-of-employment requirement . . . jurisdictional." ); Gould, 220 F.3d at 178 (explaining that " when the merits and jurisdiction are closely related, a court may determine subject matter jurisdiction without reaching the merits . . . ." ).

The United States answered the amended complaint on August 6, 2014. See Def. Answer. We ordered the parties to complete discovery in October of 2014. See August 11, 2014 Order. We have therefore moved into the realm of a factual challenge to our subject-matter jurisdiction. See Mortensen, 549 F.2d at 891-92 (explaining that the court may make a factual evaluation under Rule 12(b)(1) at any stage of the proceeding after the answer has been served until after the trial has been completed). As we explained, a factual challenge to subject-matter jurisdiction is quite different from a facial one. Id. at 891. In a factual challenge, the plaintiff has the burden of persuasion to show that jurisdiction exists, and if the defendant presents evidence contesting any allegations in the pleadings, then the presumption of truthfulness does not attach to the plaintiff's allegations, and the plaintiff may present facts by affidavit, deposition, or evidentiary hearing. Moyer Packing Co. v. United States, 567 F.Supp.2d 737, 748 (E.D. Pa. 2008).

B. Summary Judgment

Fed. R. Civ. P. 56(a) provides:

A party may move for summary judgment, identifying each claim or defense -- or the part of each claim or defense -- on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. The court should state on the record the reasons for granting or denying the motion.

A party moving for summary judgment bears the initial burden of informing the district court of the basis for its argument that there is no genuine issue of material fact by " identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (internal quotations omitted). If the moving party meets this initial burden, Fed.R.Civ.P. 56 then obliges the non-moving party to show, via submissions beyond the pleadings, that there are genuine factual issues for trial. Id. at 324. We treat cross-motions for summary judgment as if they were two distinct, independent motions. Arnold Pontiac-GMC, Inc. v. General Motors Corp.,

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700 F.Supp. 838, 840 (W.D. Pa. 1988). In evaluating each motion, we consider the facts and inferences in the light most favorable to the non-moving party. Marzano v. Computer Sci. Corp. Inc., 91 F.3d 497, 501 (3d Cir. 1996).

There is a genuine issue of material fact only when there is sufficient evidence such that a reasonable juror could find for the party opposing the motion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (explaining further that a mere scintilla of evidence is insufficient). Material facts are those that would affect the outcome of the case under the governing law. Id. at 248. We may not make credibility determinations or weigh the evidence, and we must draw all reasonable inferences in favor of the non-moving party. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000); Armour v. County of Beaver, PA, 271 F.3d 417, 420 (3d Cir. 2001). Our function is to determine whether there is a genuine issue for trial, and we may not prevent a case from reaching a jury simply because we favor one of several reasonable views of the evidence. Abraham v. Raso, 183 F.3d 279, 287 (3d Cir. 1999) (citing Anderson, 477 U.S. at 249).

III. Factual Background

As the Government has made a factual attack as to our subject-matter jurisdiction under Rule 12(b)(1), and both parties have moved for summary judgment, we may consider matters outside the pleadings, including affidavits and depositions. We recite the facts pertinent to the resolution of the parties' motions.

On August 12, 2012, Marine Sergeant Brian LaLoup died of a self-inflicted gunshot wound while deployed on active duty in Athens, Greece. Amend. Compl. at ¶ ¶ 18, 32-37; MTD at 3; PSJ at 3. Upon Sgt. LaLoup's death, the Marine Corps began the process of notifying the next-of-kin -- his parents, Craig and Beverly LaLoup -- in accordance with its Casualty Assistance Calls Program (" the Program" ), as documented in Marine Corps Order 3040.4 (the " MCO" ), attached by the Government as MTD Ex. G.

When the Marine Corps must notify next-of-kin of a casualty incident, it appoints a Casualty Assistance Call Officer (" CACO" ). MTD Ex. G at 6; Dixon Dep. at 18:1-19:16. CACOs are " liaisons who assist with benefits, entitlements, burial, making sure the next of kin gets personally notified of the death, [and] assist[s] with copies of investigations." Castle Dep. at 27:9-15. The CACO's task begins with notifying the next-of-kin of the casualty incident, and, after this notification and condolence phase, the CACO assists the next-of-kin with mortuary affairs and funeral honors, benefits and entitlements, and transition to the Marine Corps' long-term assistance program. MTD Ex. G at 6 (notification and condolence); id. at 18 (mortuary affairs and funeral honors); id. at 27 (benefits and entitlements); id. at 31 (long-term assistance program). See also Dixon Dep. at 21:14-24:5.

The difficult task of notifying the LaLoups fell to Staff Sergeant (" SSgt." ) David McClendon. MTD at 3; McClendon Dep. at 31:15-33:6. In the early morning hours of August 12, 2012, SSgt. McClendon drove from Wilmington, Delaware, to Craig and Beverly LaLoup's home in Pennsylvania to notify them in person of Sgt. LaLoup's death. McClendon Dep. at 37:11-38:2. Gunnery Sergeant (" GySgt." ) Rick Montoya accompanied him.[2] Id. The

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LaLoups were not at home, but returned when their son, John, notified them that the two Marines were there waiting. Id. at 39:15-40:22.

After the LaLoups returned home, SSgt. McClendon and GySgt. Montoya confirmed that Sgt. LaLoup had died and attempted to complete their notification protocol. Id. at 46:4-10. Craig LaLoup interrupted the process and asked that the Marines leave them alone to grieve. Id.; see also Beverly LaLoup (" BL" ) Dep. at 32:15-33:20 (confirming that after informing her and her husband that their son had died, Mr. LaLoup asked the Marines to leave). SSgt. McClendon and GySgt. Montoya complied and left, in accordance with procedure. MTD at 4; MTD Ex. G at 14 (explaining that CACOs " must be aware of the [next-of-kin's] right to privacy" and " not stay longer than necessary" ). Before they left, the CACOs provided the LaLoups with a physical copy of the Personnel Casualty Report (" PCR" ). McClendon Dep. at 68:6-14. Later, the LaLoups found that report on the coffee table. BL Dep. at 33:21-34:1. The LaLoups learned by reading the paper left on their coffee table that Sgt. LaLoup had killed himself. Id. at 34:7-16.

The next day, August 13, the CACOs returned to complete the notification process and start on some of the funeral honors procedures. McClendon Dep. at 52:22-53:12. Mrs. LaLoup signed paperwork to receive the death gratuity that is paid to the primary next-of-kin for deceased service members. Id. at 52:22-53:12. From August 12 through August 20, SSgt. McClendon continued to gather information and check in on the LaLoups while Sgt. LaLoup's body remained in Greece. Id. at 97:13-98:16.

After Sgt. LaLoup's body arrived at Dover Air Force Base, the Armed Forces Medical Examiner Service (" AFMES" ) autopsied his body. MTD at 4. Mrs. LaLoup knew from the CACOs that AFMES would autopsy Sgt. LaLoup's body in Dover, Delaware. BL Dep. at 38:17-39:2. The autopsy revealed that Sgt. LaLoup's remains were incomplete because his heart was missing. MTD Ex. E (Aug. 22, 2012 Letter from the Armed Forces Medical Examiner to the Marines Casualty Office). AFMES sent the letter with this information to the Marine Corps liaison at Dover, SSgt. Michael Johnson. McClendon Dep. at 140:1-142:5. On August 22, SSgt. Johnson told SSgt. McClendon that Sgt. LaLoup's heart was missing. Id. at 83:9-21. SSgt. Johnson relayed that information to SSgt. McClendon so that SSgt. McClendon could ensure that Mrs. LaLoup signed the form that would allow the release of Sgt. LaLoup's incomplete body for burial. Id. at 140:1-142:5.[3]

SSgt. McClendon asked for guidance on how to approach discussing this topic with Mrs. LaLoup. Id. at 145:2-13. SSgt. Johnson advised him that he should tell Mrs. LaLoup that the heart was missing if she asked, but that if she did not inquire about the missing remains, he did not need to provide that detail. Id. at 145:2-13, 158:8-12. SSgt. McClendon understood this guidance to mean that he should tell Mrs. LaLoup that Sgt. LaLoup's body was not intact, and if she asked what was

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missing, he should tell her about the heart. Id. at 146:10-24.[4]

The parties disagree about what SSgt. McClendon said to Mrs. LaLoup in a telephone conversation on the night of August 23. MTD at 5. SSgt. McClendon had called Mrs. LaLoup to tell her that she needed to sign a form in order to have Sgt. LaLoup's remains released. McClendon Dep. at 152:17-153:9, 160:16-20. The parties dispute whether Mrs. LaLoup asked SSgt. McClendon what parts of Sgt. LaLoup's remains were missing and what SSgt. McClendon said in response.[5]

The day after the phone call, August 24, SSgt. McClendon visited Mrs. LaLoup at her place of employment. PSJ at 10. The parties do not dispute that SSgt. McClendon knew Sgt. LaLoup's heart was not with the rest of his remains when he made this visit. MTD at 4-5. Both SSgt. McClendon and Mrs. LaLoup agree that they did not discuss Sgt. LaLoup's remains during that visit. McClendon Dep. at 156:1-157:16; BL Dep. at 57:2-60:3. Rather, SSgt. McClendon explained what the CJMAB Form 1 said, and Mrs. LaLoup signed it. PSJ Ex. D; MTD Ex. F (Aug. 24, 2012 CJMAB Form 1, signed by Mrs. LaLoup and dated). The form authorized the release of Sgt. LaLoup's incomplete remains for burial but reserved Mrs. LaLoup's right to be notified if more remains were recovered. Id.[6]

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On August 29, Sgt. LaLoup was buried with full military honors. PSJ at 3. After the funeral, the LaLoups met with First Sergeant (" 1Sgt." ) Jonathan Dixon, another CACO. The parties dispute exactly how Sgt. LaLoup's non-intact remains came up in discussion, but by the end of the meeting, 1Sgt. Dixon had informed the LaLoups that Sgt. LaLoup's body was incomplete because his heart was missing.[7]

IV. Discussion

The LaLoups' claim for negligent infliction of emotional distress under the FTCA must have a basis in Pennsylvania tort law. See 28 U.S.C. § 1346(b). If the LaLoups' claim has a basis in Pennsylvania law, it also must not fall within any of the exceptions to the FTCA. See 28 U.S.C. § 2680(a)-(n). As Section 1346(b) is the rule, and Section 2680 is an exception thereto, we first consider the LaLoups' claim in light of Section 1346(b).

A. Section 1346(b) And Liability Under Pennsylvania Law

Both the LaLoups and the Government moved for summary judgment on the issue of whether the Marine Corps owed the LaLoups a duty of care under Pennsylvania law. MTD at 11-12; PSJ at 1. The LaLoups argue that the United States owed them, as next-of-kin, a duty of care based on a special relationship. PSJ at 1-2. The Government responds that Pennsylvania law only allows negligent infliction of emotional distress (" NIED" ) claims under narrow circumstances -- not present in this case -- and that there is no duty of care between the Marine Corps and the LaLoups as next-of-kin. MTD at 12.

The United States, by virtue of sovereign immunity, may not be sued without its consent. United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983) (" It is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction." ). We construe the scope of a waiver of sovereign immunity strictly and in favor of the sovereign. Lane v. Pena, 518 U.S. 187, 192, 116 S.Ct. 2092, 135 L.Ed.2d 486 (1996).

The FTCA gives district courts exclusive jurisdiction over

civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

28 U.S.C. § 1346(b)(1).

Because the statute looks to " the law of the place where the act or omission occurred," we must apply state substantive law to determine liability under the FTCA.

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In applying state substantive law, we apply the law as interpreted by that state's highest court. McKenna v. Pacific Rail Serv., 32 F.3d 820, 825 (3d Cir. 1994) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938)). Absent guidance from the state's highest court, we refer to decisions of the state's intermediate appellate courts for assistance in determining how the highest court would rule. Id.

The Pennsylvania Supreme Court has definitively recognized only three types of NIED claims. Hershman v. Muhlenberg Coll., 17 F.Supp.3d 454, 459 (E.D. Pa. 2014). A plaintiff may recover for NIED if he or she (1) suffered a physical injury causing the emotional distress, Kazatsky v. King David Mem'l Park, Inc., 515 Pa. 183, 527 A.2d 988, 992 (Pa. 1987), (2) did not suffer a personal impact but was in the zone of danger, Niederman v. Brodsky, 436 Pa. 401, 261 A.2d 84, 90 (Pa. 1970), or (3) witnessed an accident causing serious injury to a close family member. Sinn v. Burd, 486 Pa. 146, 404 A.2d 672, 686 (1979).

Recent case law has called into question the exclusivity of this list. In Toney v. Chester County Hospital, 614 Pa. 98, 36 A.3d 83 (Pa. 2011), an equally-divided Pennsylvania Supreme Court affirmed a Pennsylvania Superior Court decision that expanded NIED causes of action to include those predicated on certain special relationships. See Weiley v. Albert Einstein Med. Ctr., 2012 PA Super 106, 51 A.3d 202, 217 n.16 (Pa. S.Ct. 2012) (explaining that the Pennsylvania Supreme Court's decision in Toney had the effect of affirming the Pennsylvania Superior Court's decision since the Supreme Court was evenly divided, but that the opinion in affirmance has only persuasive, not precedential, value).

In Toney, the Pennsylvania Supreme Court decided that NIED claims predicated on pre-existing relationships are limited to those relationships " involving duties that obviously and objectively hold the potential of deep emotional harm in the event of breach . . . [and] the special relationships must encompass an implied duty to care for the plaintiff's emotional well-being. The potential emotional harm must not be the type that a reasonable person is expected to bear." 36 A.3d at 95. The Pennsylvania Supreme Court then held that " relationships involving life and death" fall into such a category, and therefore found that the doctor-patient relationship in the " sensitive and emotionally charged field of obstetrics" so qualified. Id.

In reviewing other states' jurisprudence on NIED liability based upon special relationships, the Pennsylvania Supreme Court observed " the undeniable truth that some negligent breaches of duties in preexisting relationships will give rise to severe emotional distress that should be compensable...However, equally true, is the fact that not all breaches of duties should result in compensable emotional distress claims." Id. at 91. Rather, those " relationships involving life and death fall within this category." Id. at 95. The Supreme Court observed that other jurisdictions had included " the relationship between the loved ones of the deceased and those responsible for caring for the corpse" as one such pre-existing relationship. Id. at 92.

Because the Toney decision was not precedential, the exact dimensions of NIED claims in Pennsylvania remain unresolved. Hershman, 17 F.Supp.3d at 458. Not all Pennsylvania courts predict that the Pennsylvania Supreme Court will eventually recognize NIED claims based upon the breach of a special relationship. Id. at 460 n.6 (collecting cases). Pennsylvania intermediate courts that recognized NIED claims based upon contractual or

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fiduciary relationships have found only certain doctor/patient relationships and the relationship between an adoption agency and adoptive parents to apply to support such a claim and refused to extend liability any further. Walsh v. University of Pittsburgh, 2015 WL 128104, *15 (W.D. Pa. Jan. 8, 2015) (Kelly, J.). Indeed, when Pennsylvania courts have found a basis for liability under the special relationship theory described in Toney, it has been in limited circumstances highly factually analogous to Toney. See Nicholson-Upsey ex rel. Nicholson v. Tuoey, No. 4525, 2013 WL 8596353, *11 (Pa. Com. Pl. May 6, 2013) (Bernstein, J.) (explaining that the case was " remarkably similar" to Toney).

Otherwise, Pennsylvania courts have not extended liability under the special relationship theory in Toney. In Weiley v. Albert Einstein Medical Center, the Pennsylvania Superior Court found that a hospital did not owe a deceased patient's next-of-kin a fiduciary duty of care sufficient to meet the duty element of a NIED claim on the basis of the limitation in Toney. 51 A.3d at 218. See also Freedman v. Fisher, 2014 WL 4931306, *3 (E.D. Pa. Sept. 30, 2014) (Ditter, J.) (explaining and approving of the reasoning in Toney that a relative's claim cannot derive from a duty to the patient, as " a doctor should be able to give all of his attention to the patient and not be worried about whether he has perceived and prevented any emotional distress, severe or otherwise, in one or more persons previously unknown to him, persons whom he may not have even met." ); Hershman, 17 F.Supp.3d at 460 n.8 (collecting cases where courts have refused to extend NIED liability). Notwithstanding the Pennsylvania Supreme Court's observation in Toney that the special relationship basis for liability is most likely to arise in circumstances encompassing life and death, courts applying Pennsylvania law have found special relationships to exist only in the context of obstetrics or adoption, not in burial or the disposition of remains.

We predict that the Pennsylvania Supreme Court will eventually recognize in a precedential opinion the " special relationship" basis for a NIED claim, but only under the very limited circumstances Toney described.

If Toney became precedential through a subsequent opinion, Pennsylvania lower courts faced with NIED claims based upon a special relationship theory would still proceed by first evaluating whether such a duty existed. In Toney, the Pennsylvania Supreme Court left " the legal question of whether a sufficient duty exists to [its] trial judges to decide on a case-by-case basis, at some point prior to trial," and advised such judges to consider a five-factor test. 36 A.3d at 95 & n.11. Trial judges are to determine whether a duty exists in a particular case by weighing several discrete factors, including the: (1) relationship between the parties, (2) social utility of the actor's conduct, (3) nature of the risk imposed and foreseeability of the harm incurred, (4) consequences of imposing a duty on the actor, and (5) overall public interest in the proposed solution. Id. (citing Bilt-Rite Contractors, Inc. v. The Architectural Studio, 581 Pa. 454, 866 A.2d 270, 281 (Pa. 2005)).

As we apply Pennsylvania substantive law to determine whether the Marine Corps owed the LaLoups a duty of care, we will proceed through the five-part test as Toney articulated it.

First, we consider the relationship between the parties. Sgt. Brian LaLoup -- as Craig and Beverly LaLoup's son and an enlisted Marine -- was the entire nexus of the relationship between the LaLoups and the Marine Corps. At all times, even when Sgt. LaLoup was a minor and his parents had to consent to his enlistment, Sgt. LaLoup's contractual obligations ran

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to the Armed Forces of the United States, and whatever reciprocal duties the Armed Forces undertook were to Sgt. LaLoup himself and not to his parents.[8] As part of his contract with the Marine Corps, Sgt. LaLoup designated a family member as his next-of-kin and to direct disposition of his body in the event of his death. MTD Ex. I at 20. Unsurprisingly, Sgt. LaLoup designated one of his parents. Id. Sgt. LaLoup's designation, however, does not constitute a pre-existing relationship between the Marine Corps and his parents. The relationship between the Marine Corps and the LaLoups commenced only upon Sgt. LaLoup's death and existed solely because of the Marine Corps' relationship with Sgt. LaLoup.

The Marine Corps' relationship with the LaLoups was neither the kind of " preexisting relationship" contemplated in Toney nor the type of contractual relationship that other states have found can ground NIED liability when the contract is for mortuary services. Rather, the relationship is akin to that of the hospital in Weiley where the duty of care was to the patient and there was no duty to the next-of-kin regarding the disposition of the patient's remains.[9] The lack of a pre-existing relationship between the Marine Corps and the LaLoups weighs against imposing a duty on the Government, the Marine Corps, or Marine CACOs.

Second, we consider the social utility of the actor's conduct. According to the MCO,[10] the Marine Corps' Casualty Assistance Calls Program is meant to " ensure survivors are properly notified of a casualty incident and to assure assistance in applying for all benefits and entitlements." MTD Ex. G at 1. All tasks described in the Program are to be " conducted in a manner that will promote the best interests of the casualty, the Next of Kin (NOK), and the Marine Corps." Id. CACOs are instructed that " [s]ympathy, courtesy, precise information, and service are the cornerstones on which the [Program] is built and is a sacred obligation of the Marine Corps." Id. at 6.

The Program has the utmost social utility, and CACOs " perform a valuable and useful activity to society."

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See Althaus ex rel. Althaus v. Cohen, 562 Pa. 547 756 A.2d 1166

Third, we consider the nature of the risk imposed and the foreseeability of the harm incurred. The Marine Corps unquestionably recognizes the seriousness of notifications, both by directing commanders to select CACOs possessing " the maturity, experience, and ability to deal with unusual and difficult circumstances" and by also setting forth specific guidance for CACOs' conduct during notifications.[11] MTD Ex. G at 6, 14-15. Notifications are meant " to inform the casualty's next of kin (NOK) of the incident and surrounding circumstances." Id. at 10. The risks of a negligently-performed notification include distress in the next-of-kin, lack of subsequent cooperation by the next-of-kin, risk of harm to the notifying CACOs, and reputational harm to the Marine Corps. The harm from these risks is foreseeable. Family members are likely to be distressed if during the notification the CACO is too flip, or too formal, or appears to be concealing information, or offers too many graphic details.

But the risks and foreseeable harms from a negligently-conducted notification do not differ from the risks and foreseeable harms of a non-negligently-conducted notification. This is the truth behind the wisdom of the MCO's observation that " no specific instructions can be given to cover the varied and sometimes difficult situations that may arise when making personal notifications" -- even though the Marine Corps provides guidelines. Id. at 13. Family members, upon hearing of their loved one's death -- even if they benefit from a CACO's perfectly competent, sensitive, and non-negligent notification -- are all

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but certain to be distressed. They may not be amenable to, or able to cooperate with, making funeral arrangements and discussing benefits. They may even react aggressively toward the CACOs, and may blame the Marine Corps for their loved one's death, or, in their grief, suspect that some darker truth lurks behind an already horrific reality. The risks and foreseeable harms therefore weigh against imposing a duty on the Government, the Marine Corps, and Marine CACOs.

Fourth, we consider the consequences of imposing a duty on the actor. This consideration is in light of any other relevant duties or obligations. See Althaus, 756 A.2d at 1170 (" Next, we consider the consequence of burdening mental health professionals with a duty of care beyond that owed to the patient." ). The Marine Corps already considers notifying next-of-kin to be a sacred obligation. The Marine Corps recognizes its obligation to deceased Marines to notify their next-of-kin with respect and sensitivity, and in service of that goal advises its CACOs to be forthright but to use discretion in revealing potentially upsetting or disturbing details. Imposing a duty on this conduct would burden CACOs with the additional consideration of whether their conduct subjects them or the Marine Corps to legal action should next-of-kin be dissatisfied with the notification process. Overlaying an already fraught, emotionally difficult, and highly sensitive process with the specter of litigation does not create any additional incentives for the Marine Corps to behave honorably or create any additional guarantees that next-of-kin will be treated with more sensitivity or respect than they already are. Tort liability might well discourage in-person notifications, or at least constrain CACOs from using their common sense and good judgment while conducting them, lest veering off script subject the Marine Corps to tort liability. Tort law considerations should not interfere with the CACOs' exquisitely difficult task of informing next-of-kin that their loved ones have died and assisting them in the aftermath. The consequences of imposing any such duty on the actor therefore weigh against imposing a duty on the Government, the Marine Corps, or Marine CACOs.

Fifth, we consider the overall public interest in the proposed solution. The LaLoups argue that the Marine Corps has, or should have, a duty of care to them as next-of-kin. Imposing such a duty would only provide an avenue for seeking additional compensation to those family members who felt that the CACOs were negligent in their conduct when informing them that their loved one had died. There is obvious public interest in deceased Marines' next-of-kin receiving sensitive treatment and comprehensive information in the aftermath of their loved one's death. But the proposed solution of tort liability does not render the Marine Corps more likely to competently discharge what it already considers to be a sacred obligation, and does not make it less likely that family members will suffer when Marine CACOs arrive to notify them of their loved one's death. Tort liability would provide grieving and aggrieved families with only the hollow succor of litigation and compensation from the Government's coffers. The overall public interest in the proposed solution weighs heavily against imposing a duty on the Government, the Marine Corps, or Marine CACOs.

We therefore find under Pennsylvania law that there is no pre-existing relationship or duty between the Government and a deceased Marine's next-of-kin to support liability in a negligent infliction of emotional distress claim. Without such a relationship and corresponding duty, the LaLoups cannot sustain a claim of negligent infliction of emotional distress under Pennsylvania

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law. Without a basis in Pennsylvania tort law, the LaLoups' claim under the FTCA fails as a matter of law.

Because we find that the Government had no duty of care to the LaLoups as Sgt. LaLoup's next-of-kin, we need not decide or consider the parties' disputed facts regarding how the LaLoups learned that Sgt. LaLoup's heart was not with his body when they buried him or the ultimate whereabouts of his heart. Such disputed facts are not material to our determination of whether under Pennsylvania law the Government owed the LaLoups a duty of care.

We will grant the Government's motion to dismiss, or, in the alternative, motion for summary judgment, and deny the LaLoups' motion for partial summary judgment.

B. Section 2680(h) And The Scope Of The Misrepresentation Exception

The parties dispute whether the misrepresentation exception to the FTCA, embodied in 28 U.S.C. § 2680(h), bars the LaLoups' claim for negligent infliction of emotional distress.[12] The thrust of their dispute is whether the misrepresentation exception applies in non-commercial contexts. MTD at 7; PSJ at 1-2.

As we have found that there is no basis in Pennsylvania tort law to support the LaLoups' claim under the FTCA, we need not consider whether their claim falls within an exception to that statute.[13]

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V. The LaLoups' Motion To Strike

After we granted the Government's motion to file a reply, the LaLoups filed for leave to file a motion to strike the Government's reply and their own sur-reply. See Jan. 16, 2015 Gov't Motion for Leave to File; Jan. 20, 2015 Order Granting Gov't Motion for Leave to File; Jan. 26, 2015 Pl. Motion to Strike and Sur-Reply. The Government opposed the LaLoups' motion to strike. See Feb. 9, 2015 Gov't Resp. in Opp. to Motion to Strike.

Striking a brief is an extraordinary remedy reserved for flagrant disregard of the rules of the court. Manville Sales Corp. v. Paramount Sys., Inc., 1988 WL 54060, *3 (E.D. Pa. 1988) (Naythons, M.J.). The Government properly requested leave to file a reply and used that reply to address the LaLoups' arguments in their response. The LaLoups' sur-reply, in turn, responded to the Government's counter-arguments. Though this motions practice was heated, and verged on argumenta ad hominem, it was not in flagrant disregard of our rules or the Federal Rules of Civil Procedure. We will therefore deny the LaLoups' motion to strike the Government's reply but permit the filing of their sur-reply.

VI. Conclusion

The LaLoups' claim for negligent infliction of emotional distress under the Federal Tort Claims Act depends on the existence of tort liability under Pennsylvania state law. Since there is no special relationship or duty of care between the Government and the LaLoups as Sgt. LaLoup's next-of-kin, the LaLoups' claim fails as a matter of law.

We will therefore grant the Government's motion to dismiss, or, in the alternative, motion for summary judgment, deny the LaLoups' motion for partial summary judgment, and enter Judgment in favor of the United States. An appropriate Order follows.


AND NOW, this 20th day of March, 2015, upon consideration of plaintiffs Craig and Beverly LaLoup's motion for partial summary judgment (docket entry #38), the Government's motion to dismiss, or, in the alternative, motion for summary judgment (docket entry #41), the LaLoups' response in opposition thereto, the Government's reply, the LaLoups' motion to strike and sur-reply (docket entry #46), and the Government's response in opposition thereto, and for the reasons set forth in our Memorandum issued on this day in this case, it is hereby ORDERED that:

1. The LaLoups' motion for partial summary judgment (docket entry #38) is DENIED;

2. The Government's motion to dismiss, or, in the alternative, motion for summary judgment (docket entry #41) is GRANTED;

3. The Clerk of Court shall DOCKET the LaLoups' sur-reply;

4. The LaLoups' motion to strike (docket entry #46) is DENIED; and

5. The Clerk of Court shall CLOSE this case statistically.


AND NOW, this 20th day of March, 2015, in accordance with the accompanying Order granting the Government's motion to dismiss, or, in the alternative, motion for summary judgment, JUDGMENT IS ENTERED in favor of defendant United States of America and against plaintiffs Craig LaLoup and Beverly LaLoup.

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