The opinion of the court was delivered by: PRATT
Plaintiffs, Vietnam war veterans and members of their families claiming to have suffered damage as a result of the veterans' exposure to herbicides in Vietnam
, commenced these actions against the defendant chemical companies.
Defendants, seeking indemnification or contribution in the event they are held liable to plaintiffs, then served third party complaints against the United States.
Five motions are now considered: (1) the government's motion to dismiss the third party complaint on grounds of sovereign immunity; (2) plaintiffs' motion for class action certification; (3) defendants' motion for summary judgment; (4) plaintiffs' motion to proceed with "serial trials"; and (5) plaintiffs' motion to serve and file a fifth amended verified complaint.
There are four groups of plaintiffs: Vietnam veterans, their spouses, their parents, and their children. They assert numerous theories of liability, including strict products liability, negligence, breach of warranty, intentional tort and nuisance. Plaintiff veterans seek to recover for personal injuries caused by their exposure to Agent Orange. The family members seek to recover on various derivative claims; some of the children assert claims in their own right for genetic injury and birth defects caused by their parents' exposure to the Agent Orange; and some of the veterans' wives seek to recover in their own right for miscarriages.
In their third party complaints against the government defendants allege negligence, misuse of product, post-discharge failure to warn, implied indemnity, denial of due process and failure to comply with herbicide registration laws.
II. GOVERNMENT'S MOTION TO DISMISS THIRD PARTY COMPLAINTS
Moving to dismiss under F.R.C.P. 12(b)(6), the government claims "intra-military immunity" under the rule of Feres v. United States, 340 U.S. 135, 71 S. Ct. 153, 95 L. Ed. 152 (1950), questions defendants' standing to assert some of their claims, urges that other claims may only be considered in the Court of Claims, and argues the applicability of three statutory exceptions to federal court jurisdiction under the Federal Tort Claims Act: (1) the discretionary function exception, 28 U.S.C. § 2680(a); (2) the combatant exception, 28 U.S.C. § 2680(j); and (3) the foreign country exception, 28 U.S.C. § 2680(k).
A. FTCA AS A GENERAL WAIVER OF SOVEREIGN IMMUNITY
Under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b) et seq., the United States government waives its sovereign immunity from suits in tort, and vests jurisdiction over such claims exclusively in the United States District Courts. 28 U.S.C. § 1346(b). Its legislative history reveals two dominant congressional objectives. First, Congress sought to relieve itself of the overwhelming pressures and time consuming burdens of considering and passing upon the numerous private relief bills sought by claimants barred by the doctrine of sovereign immunity. Feres v. United States, 340 U.S. 135, 139-140, 71 S. Ct. 153, 156, 95 L. Ed. 152 (1950). Second, Congress sought to provide a judicial remedy for deserving claimants who had suffered injuries or losses at the hands of government officials and employees. 1 Jayson, Handling Federal Tort Claims § 65.01 at 3-3 (1980).
Although the FTCA "waives the Government's immunity from suit in sweeping language", United States v. Yellow Cab Company, 340 U.S. 543, 547, 71 S. Ct. 399, 402, 95 L. Ed. 523 (1951), the waiver is limited by the terms of the act's exceptions. If a claim falls within any exception to the FTCA, sovereign immunity has not been waived and the court is without jurisdiction to hear the case. United States v. Orleans, 425 U.S. 807, 814, 96 S. Ct. 1971, 1975, 48 L. Ed. 2d 390 (1976); Dalehite v. United States, 346 U.S. 15, 30-31, 73 S. Ct. 956, 965, 97 L. Ed. 1427 (1953).
In Feres v. United States, 340 U.S. 135, 71 S. Ct. 153, 95 L. Ed. 152 (1950), the Supreme Court determined that the FTCA did not waive sovereign immunity with respect to claims of servicemen arising out of activities incident to or arising out of their military service. The Feres Court considered three separate cases, two claims of medical malpractice and the claimed negligent quartering of a serviceman in a barracks containing a defective heating unit. All three presented the same basic question: whether a serviceman who sustained injury due to the negligence of others in the armed forces could maintain suit under the FTCA. The Court recognized its task as one of statutory interpretation, stating: "The only issue of law raised is whether the Tort Claims Act extends its remedy to one sustaining "incident to the service' what under other circumstances would be an actionable wrong." 340 U.S. at 138, 71 S. Ct. at 155. After carefully considering the limited legislative history on point, the Feres Court concluded 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. Since much of the government's immunity defense turns on the Supreme Court's decision in Feres, a more detailed analysis of that case is appropriate.
At the outset, the Feres Court recognized the difficulty of interpreting a statute having so little legislative history:
There are few guiding materials for our task of statutory construction. No committee reports or floor debates disclose what effect the statute was designed to have on the problem before us, or that it even was in mind. Under these circumstances, no conclusion can be above challenge, but if we misinterpret the Act, at least Congress possesses a ready remedy.
340 U.S. at 138, 71 S. Ct. at 155.
Digging deeper, the Court uncovered two clues to Congress' intent in enacting the FTCA. First, because the relationship between the government and members of the armed forces is "distinctively federal in character", 340 U.S. at 143, 71 S. Ct. at 158, the Court determined that Congress did not intend the government's liability to members of the armed services to depend upon the law of the place where the soldier happened to be stationed at the time of injury:
It would hardly be a rational plan of providing for those disabled in service by others in service to leave them dependent upon geographic considerations over which they have no control and to laws which fluctuate in existence and value.
340 U.S. at 143, 71 S. Ct. at 158.
Second, the Court examined Congress' failure to integrate a serviceman's possible remedy in tort with the statutory "no fault" compensation scheme provided under the Veterans Benefits Act and concluded that
If Congress had contemplated that this Tort Act would be held to apply in cases of this kind (where a serviceman sued the government), it is difficult to see why it should have omitted any provision to adjust these two types of remedy (FTCA and Veterans Benefit Act) to each other. The absence of any such adjustment is persuasive that there was no awareness that the Act might be interpreted to permit recovery for injuries incident to military service.
340 U.S. at 144, 71 S. Ct. at 158.
A third factor supporting the "Feres doctrine" was later enunciated in United States v. Brown, 348 U.S. 110, 75 S. Ct. 141, 99 L. Ed. 139 (1954), where the Supreme Court considered "(t)he peculiar and special relationship of the soldier to his superiors, the effects of the maintenance of such suits on (military) 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." 348 U.S. at 112, 75 S. Ct. at 143; see also Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 671-72, 97 S. Ct. 2054, 2057, 52 L. Ed. 2d 665 (1977).
Although it concluded that Congress did not intend to include in the FTCA's waiver of sovereign immunity injuries sustained by a serviceman incident to his service, the Feres Court freely admitted that the issue was not free from doubt, and it invited congressional correction by calling attention to Congress' ability to legislatively remedy any erroneous interpretation of the statute. 340 U.S. at 138, 71 S. Ct. at 155. Many courts have questioned the wisdom of the Feres decision,
but its continued vitality is beyond dispute even to them.
Moreover, Congress's failure for 30 years to amend the FTCA and legislatively "correct" the Feres holding is a sub silentio "acquiesc(ence) in the holding of Feres", United States v. Lee, 400 F.2d 558, 561 (CA9 1968), cert. denied, 393 U.S. 1053, 89 S. Ct. 691, 21 L. Ed. 2d 695 (1969), that strongly suggests that the Supreme Court correctly interpreted congressional intent.
Any doubt as to the validity of the Feres doctrine was laid to rest in Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 97 S. Ct. 2054, 52 L. Ed. 2d 665 (1977), which extended the reach of the "well established doctrine of Feres v. United States" to third party claims against the government, 431 U.S. at 670, 97 S. Ct. at 2057, see discussion, infra.
Even the Third Circuit Court of Appeals, the court most critical of the Feres doctrine,
concedes Feres' continuing validity and broad application:
Although the current climate of academic and judicial thought finds governmental immunity from suit in disfavor, a plausible explanation appears for its continued application to members of the armed forces injured while in the course of active duty, regardless of whether that injury is caused by the negligence of a superior officer or by a direct command. If claims for injuries sustained by members of the armed forces in the execution of military orders were subjected to the scrutiny of courts of justice, then the civil courts would be required to examine and pass upon the propriety of military decisions. The security and common defense of the country would quickly disintegrate under such meddling. "Actions and essential military discipline would be impaired by subjecting the command to the public criticism and rebuke of any member of the armed forces who chose to bring a suit against the United States". Jefferson v. United States, 178 F.2d 518, 520 (4th Cir. 1949), aff'd sub nom. Feres v. United States, 340 U.S. 135 (71 S. Ct. 153, 95 L. Ed. 152) (1950) Even if we were inclined to reconsider the doctrine in connection with an injury sustained as a result of a deliberate military command, we are foreclosed from so doing by the Supreme Court's recent reiteration of the doctrine, although in a different context in United States v. Testan, 424 U.S. 392, 96 S. Ct. 948, 47 L. Ed. 2d 114 (1976).
Jaffee v. United States, 592 F.2d 712, 717 (CA3 1979) (citations and footnote omitted).
C. THIRD PARTY ACTIONS AGAINST THE GOVERNMENT
The same court that determined in Feres that the FTCA did not waive sovereign immunity with respect to claims by servicemen arising out of activities incident to their military service also decided United States v. Yellow Cab Company, 340 U.S. 543, 71 S. Ct. 399, 95 L. Ed. 523 (1951), which held that the FTCA permits a tort defendant to implead the United States as a third party defendant under a theory of indemnity or contribution. This created a new question: whether such a third party claim may be maintained when plaintiff's direct claim against the government would be barred by the principles of Feres.
The Supreme Court did not consider this question until 1977, when, in Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 97 S. Ct. 2054, 52 L. Ed. 2d 665 (1977), it resolved the "tension between Feres and Yellow Cab" by holding that third party claims against the government are barred
for essentially the same reasons that the direct action (against the government by plaintiff) is barred by Feres. * * * (T)he right of a third party to recover in an indemnity action against the United States recognized in Yellow Cab, must be held limited by the rationale of Feres where the injured party is a serviceman.
431 U.S. at 670, 673-4, 97 S. Ct. at 2058.
To permit recovery against the government, the Court observed, "would be to judicially admit at the back door that which has been legislatively turned away at the front door". 431 U.S. at 673, 97 S. Ct. at 2058, quoting Laird v. Nelms, 406 U.S. 797, 802, 92 S. Ct. 1899, 1902, 32 L. Ed. 2d 499 (1972).
D. FERES/STENCEL IN THE CONTEXT OF THIS ACTION
To the extent that plaintiffs' complaints seek recovery against the defendant chemical companies, of course, the Feres doctrine has no application. 1 Jayson, Handling Federal Tort Claims § 155.02 at 5-66 n.9 and 5-77 n.24. Under Stencel Aero Engineering Corp. v. United States, however, any damages recovered by plaintiffs against defendants that plaintiffs could not recover directly from the United States may not be the subject of a third party complaint against the United States. 1 Jayson, Handling Federal Tort Claims § 164 at 5-220.
(Neither) contribution nor indemnity may succeed without the support of the initial negligence. * * * As the claimed contribution and indemnity must depend for success upon the alleged negligence of the Government towards plaintiffs, and that is a negligence which is not actionable, the claim must fail. Drumgoole v. Virginia Electric and Power Company, 170 F. Supp. 824, 825-26 (E.D.Va.1952).
See also Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 97 S. Ct. 2054, 52 L. Ed. 2d 665 (1977); Certain Underwriters at Lloyd's v. United States, 511 F.2d 159 (CA5 1975); Barr v. Brezina Construction Company, 464 F.2d 1141 (CA10 1972). For the sake of clear presentation in this opinion, however, the court will consider plaintiffs' claims as if they were asserted directly against the United States government, for, to the extent that plaintiffs may not maintain actions directly against the government, under the principles of Stencel Aero, the defendants' third party claims against the government must fall as well.
At the outset, it is clear that Feres applies to suits against individual servicemen,
claims by servicemen who served in Vietnam,
claims of intentional torts,
and claims styled as constitutional torts.
This leaves two issues: first, whether the court should apply the principles of Feres/Stencel to this action at all; and second, whether plaintiffs' injuries arose out of or were suffered "in the course of activity incident to service." Feres v. United States, 340 U.S. at 146, 71 S. Ct. at 159.
E. SHOULD FERES/STENCEL APPLY TO THIS ACTION?
The government seeks to dismiss the third party complaints on the ground that the claims of the defendant chemical companies are barred by a straightforward application of Feres/Stencel principles. Defendants, however, argue that the court should undertake "a detailed and fresh examination of the rationale underlying those holdings (Feres and Stencel) in the light of other great and * * * superceding policy considerations", Hercules/Diamond Shamrock/Monsanto Memorandum at 10, to determine if the Feres doctrine should be applied in this case.
In support, defendants cite the "number of occasions (the Supreme Court has) reexamined and redefined or abandoned certain reasons for its holding in (the Feres) case." Hercules/Diamond Shamrock/Monsanto Memorandum at 7.
Defendants' attempts to reargue the underlying rationale of Feres must be rejected, however, for two reasons. First, Feres was a case of statutory interpretation. 340 U.S. at 138, 71 S. Ct. at 155. Adams v. General Dynamics Corp., 385 F. Supp. 890, 891 (N.D.Cal.1974), aff'd, 535 F.2d 489 (CA9), cert. denied, 432 U.S. 905, 97 S. Ct. 2949, 53 L. Ed. 2d 1077 (1976). Even were this court to believe the Supreme Court's reasoning to be erroneous,
neither the Court nor Congress itself has altered Feres' basic holding, that in enacting the FTCA Congress did not intend to waive sovereign immunity with respect to injuries or loss suffered by servicemen in the course of activity incident to their service.
Second, in holding the government immune from claims by servicemen the Supreme Court was concerned with more than the effects of servicemen recovering against the government; the Court was also concerned about the disruptive effects caused by the very commencement of actions by servicemen complaining about the conduct of superiors. As the Court later observed in United States v. Brown, 348 U.S. 110, 75 S. Ct. 141, 99 L. Ed. 139 (1954):
The 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 such suits under the Tort Claims Act were allowed for negligent orders given or negligent acts committed in the course of military duty, led the (Feres) Court to read (the Federal Tort Claims) Act as excluding claims of (servicemen for injuries incident to their service).
348 U.S. at 112, 75 S. Ct. at 143.
Thus, it is the suit itself as much as the possibility of recovery, that the Supreme Court feared would disrupt military discipline and the orderly conduct of military affairs. Henninger v. United States, 473 F.2d 814, 815-16 (CA9), cert. denied, 414 U.S. 819, 94 S. Ct. 43, 38 L. Ed. 2d 51 (1973). To reexamine the Feres rationale in light of the circumstances of this case as defendants suggest, would itself defeat one of the very factors defendants seek to have the court reconsider. As the Supreme Court noted long ago in discussing the relationship between a soldier and his superiors:
An army is not a deliberate body. It is the executive arm. Its law is that of obedience. No question can be left open as to the right to command in the officer, or the duty of obedience in the soldier. Vigor and efficiency on the part of the officer and confidence among the soldiers in one another, are impaired if any question be left open as to their attitude to each other. United States v. Grimley, 137 U.S. 147, 153, 11 S. Ct. 54, 55, 34 L. Ed. 636 (1890).
For these reasons, this court will neither reconsider the underlying rationale of the Feres decision nor weigh the circumstances here presented against the "Feres factors".
Right or wrong, the Supreme Court's conclusion that Congress did not intend passage of the FTCA to act as a waiver of sovereign immunity as to claims of servicemen injured incident to their service remains the law of the land. The Feres/Stencel doctrine bars defendants' attempt to seek contribution or indemnity from the United States based on any recovery plaintiffs may obtain for injuries that arose out of or were suffered incident to service.
F. DID PLAINTIFFS' INJURIES ARISE OUT OF OR INCIDENT TO MILITARY SERVICE?
The second issue is whether the claims of particular plaintiffs arose out of or in the course of activity incident to service. As Professor Jayson has noted, "neither the (Federal Tort Claims) Act nor the opinions of the Supreme Court have indicated definitively the full meaning of the phrase "incident to service' ". 1 Jayson, Handling Federal Tort Claims § 155.01 at 5-65.
This lack of definition complicates the task of applying the standard considerably, 1 Jayson Handling Federal Tort Claims § 155.01 at 5-65, but certain principles do emerge from an examination of the cases.
First, the phrase "incident to service" is not to be narrowly applied or "restricted to actual military operations such as field maneuvers or small arms instruction." Hass v. United States, 518 F.2d 1138, 1141 (CA4 1975). Rather, "incident to service" is a broad concept that depends on a rational connection between the plaintiff's claim or loss and his status as a member of the armed forces. Woodside v. United States, 606 F.2d 134, 141 (CA6 1979); Harten v. Coons, 502 F.2d 1363, 1365 (CA10 1974), cert. denied, 420 U.S. 963, 95 S. Ct. 1354, 43 L. Ed. 2d 441 (1975). Professor Jayson summarizes this concept:
If the serviceman's injury or loss, when viewed in all the surrounding circumstances, has a real and substantial relationship to his military service, it will be regarded as incident to service and consequently barred under the Feres doctrine. 1 Jayson, Handling Federal Tort Claims § 155.02 at 5-66.
Second, the cases applying the Feres doctrine emphasize that "it is the status of the claimant as a serviceman rather than the legal theory of his claim which governs." Rotko v. Abrams, 338 F. Supp. 46, 47 (D.Conn.1971) (emphasis added), aff'd on opinion below, 455 F.2d 992 (CA2 1972).
Thus, the Feres doctrine has barred the claims of off duty servicemen injured before leaving their military base, Watkins v. United States, 462 F. Supp. 980, 988-89 (S.D.Ga.1977), aff'd on opinion below, 587 F.2d 279 (CA5 1979), of off duty serviceman injured while "hitching" a ride home on military aircraft, Archer v. United States, 217 F.2d 548, 552 (CA9 1954), cert. denied, 348 U.S. 953, 75 S. Ct. 441, 99 L. Ed. 745 (1955); Homlitas v. United States, 202 F. Supp. 520 (D.Ore.1962); Fass v. United States, 191 F. Supp. 367 (E.D.N.Y.1961), and the wrongful death claim of the widow of a serviceman killed in an air crash while receiving flight instruction toward a commercial pilot's license. Woodside v. United States, 606 F.2d 134 (CA6 1979).
Third, at the time of his injury plaintiff need not be on any military mission. Feres v. United States, 340 U.S. 135, 71 S. Ct. 153, 95 L. Ed. 152 (1950) (serviceman died when barracks he was sleeping in burned due to defective heating unit),
nor subject to military discipline, Hall v. United States, 451 F.2d 353, 354 (CA1 1971) (no "connection between the activity which injured plaintiff and (military) discipline" necessary).
Professor Jayson concisely and fairly synthesizes the "incident to service" cases as follows:
The duty status of the serviceman-claimant is of particular significance in determining whether the injury or loss was incident to service. The (Supreme Court's rationale in Feres/Stencel ) applies to almost every situation which can be envisaged in which the injury or loss was sustained by a serviceman while on duty (as distinguished from one who is on leave or furlough), and it seems safe to say that the Feres doctrine will always apply in such circumstances. 1 Jayson, Handling Federal Tort Claims § 155.02 at 5-69 through 5-71.
If the serviceman's injury or loss occurs while he is off duty, while he is not within the physical confines of his military base, while he is not engaged in any military mission, and is not directly under military discipline, it is likely that the Brooks doctrine allowing Tort Claims Act recovery will apply;
in other words, that the injury or loss will be regarded as not incident to service. It should be noted, however, that the application of Brooks generally requires all of the mentioned factual elements to be present.
Contrariwise, if the injury or loss occurs while the serviceman is on duty, or without regard to whether he is on or off duty if it occurs on the military base where he is stationed or on a military aircraft where he is directly under military control and discipline, or if it occurs while he is engaged in a military mission, it is likely that the Feres doctrine excluding the claim will apply. Again speaking generally, the presence of any one of the mentioned factual elements will bring application of the Feres doctrine. Jayson, Handling Federal Tort Claims § 155.02 at 5-67 through 5-68.
2. Application of Feres/Stencel to Plaintiffs' Claims
(a) Plaintiff Veterans' Claims of Exposure
The veterans' claims of injury clearly arise from their alleged exposure to Agent Orange during their military service. While virtually all of the veterans allege that their exposure took place in southeast Asia as a direct result of government efforts to defoliate the forests during the Vietnam war, the circumstances of each veteran's claimed exposure may vary. Some claim to have been directly sprayed with Agent Orange; some claim to have come into contact with Agent Orange as a result of being transported through sprayed areas; others claim to have been exposed to Agent Orange by ingesting water or food contaminated with the herbicide; and still others claim exposure during the transportation and handling of Agent Orange or its containers.
Whatever the facts surrounding a particular veteran's claim of exposure may be,
each veteran's presence in southeast Asia resulted solely from their military service, and, as to each veteran, "as an incident to his service or employment (he was) placed in a position where he (was) surrounded with conditions giving rise to the claim" of exposure. See 1 Jayson Handling Federal Tort Claims § 155.02 at 5-78 through 5-79. Even veterans who claim injury as the result of exposure to Agent Orange while off duty are within the parameters of the Feres doctrine because "when viewed in all the surrounding circumstances", a veteran's exposure in southeast Asia to a herbicide used for military purposes "has a real and substantial relationship to his military service * * * and consequently (his claim) is barred under the Feres doctrine." 1 Jayson, Handling Federal Tort Claims § 155.02 at 5-66.
The analysis is similar for those veterans who claim that their exposure to Agent Orange occurred within the United States or places other than southeast Asia during their military service. Their handling, transportation or distribution of Agent Orange during the course of their military duties was incident to their service, and their claims are equally barred under the Feres doctrine.
(b) Post-Discharge Failure to Warn
Only one of plaintiff veterans' claims does not fall easily under this analysis, i. e., that defendants breached a post-discharge duty to the veterans by failing to notify them of new scientific information concerning the possible harm that could result from exposure to Agent Orange. Plaintiff veterans allege that defendants' failure to inform them of possible dangers associated with exposure to Agent Orange prevented them from seeking more frequent medical examinations and thereby insuring early detection and treatment of disease. Defendants seek indemnity and contribution from the government on this claim too.
Defendants rely on three cases in opposition to the government's motion to dismiss these "post-discharge" claims: Schwartz v. United States, 230 F. Supp. 536 (E.D.Pa.1964); Thornwell v. United States, 471 F. Supp. 344 (D.D.C.1979); Everett v. United States, 492 F. Supp. 318 (S.D.Ohio 1980).
In Schwartz v. United States a serviceman treated for a sinus condition during the course of his military service had a radioactive dye, umbrathor, inserted into his sinus. After discharge from the military, plaintiff sought additional medical treatment for his sinus difficulties, but the Veterans Administration hospital that considered his treatment failed to obtain and examine his medical records, and, as a result of the hospital's negligence, the continued presence of the earlier-inserted umbrathor went undetected. As a result plaintiff contracted cancer. The court held that Feres did not bar plaintiff's claim against the government, because plaintiff's claim of negligence lay not in the original insertion of the umbrathor at the time he was in the military; rather, the court found that the actionable negligence was the hospital's failure to take reasonable steps to diagnose and solve plaintiff's problem, the continued presence of the umbrathor in his sinus. 230 F. Supp. at 539-40. The court further opined that the government was negligent for its failure to follow up its umbrathor patients in order to inform them of newly discovered dangers associated with the drug. 230 F. Supp. at 540.
In the second case relied on by the defendants, Thornwell v. United States, a former serviceman alleged that he was intentionally drugged with LSD as part of a secret government experiment and that the government negligently failed to warn plaintiff that his exposure to the drug subjected him to certain medical risks. The Thornwell court, noting the difficulties that courts encounter when the acts complained of commence while plaintiff is on active duty and then continue until well after discharge, 471 F. Supp. at 350, held that Thornwell's claim against the government was not barred by the principles of Feres because he did not allege merely continuing negligence. Rather,
he claimed that he was intentionally harmed while he was on active duty and he further claimed that, after he became a citizen (left the military), the defendants failed to exercise their duty of care by neglecting to rescue him from the position of danger which they had created, * * * two distinctly separate patterns of conduct, one intentional and (one) negligent. 471 F. Supp. at 351.
The Thornwell court then found that plaintiff had alleged "two entirely different torts", and since the "complaint (was) perfectly clear in its allegation that the negligent act occurred, in its entirety, after (plaintiff) attained civilian status", 471 F. Supp. at 351 (emphasis in original), plaintiff's claim of governmental negligence was not barred by Feres. Id. The Thornwell court divided the cases involving servicemen's claims of post-discharge negligence into three types:
To summarize the relevant precedent, it appears that there are three types of personal injury cases which involve post-discharge negligence. In the first case, the military performed separate negligent acts (i. e., two improper operations), one before, and one after, discharge; United States v. Brown, 348 U.S. 110 (75 S. Ct. 141, 99 L. Ed. 139), and Hungerford v. United States, 192 F. Supp. 581 (N.D.Cal.1961), rev'd on other grounds, 307 F.2d 99 (9th Cir. 1962), both clearly indicate that the injured veteran may recover for the later act. In the second case, a single negligent act occurs and its effects linger after discharge; Feres v. United States, 340 U.S. 135 (71 S. Ct. 153, 95 L. Ed. 152) (1950), holds that, under some circumstances, this one act is subject to intra-military immunity. Third, the military may commit an intentional act and then negligently fail to protect a soldier turned civilian from the dire consequences which will flow from the original wrong. This Court holds that, under such circumstances, the injured civilian may have a valid claim against the tort feasors. The later negligence is a separate wrong, a new act or omission occurring after civilian status is attained; the perpetrators of this wrong must be held accountable for their conduct. 471 F. Supp. at 352.
In defendants' third case, Everett v. United States, 492 F. Supp. 318 (S.D.Ohio 1980), the wife of a deceased serviceman sued the government claiming that her husband's death by cancer was the result of his being intentionally exposed to large doses of radiation when he was forced to participate as an Air Force enlisted man in military maneuvers in a nuclear blast area less than one hour after detonation of the nuclear device. Plaintiff argued that her husband's march through the hazardous area was part of an experimental project to test the effects of nuclear radiation. Refusing to dismiss plaintiff's claim of post-discharge negligence, the Everett court found that the fact picture "properly falls in the third category" of the Thornwell analysis intentional act incident to service, plus a separate wrong of post-discharge negligence. 492 F. Supp. at 325.
These cases are distinguishable from the facts at bar in several important respects. First, unlike the Schwartz case, the post-discharge negligence asserted here is not separate and distinct from the numerous acts of negligence alleged to have occurred incident to plaintiff's service. Schwartz, who sought medical treatment after his discharge, had a predischarge condition that was improperly diagnosed and negligently treated after discharge. That the condition arose due to government installation of the umbrathor in plaintiff's sinus while he was a serviceman does not alter the fact that the governmental negligence occurred, in its entirety, long after plaintiff became a civilian. Unsupported dicta aside, Schwartz stands only for the proposition that recovery for negligent performance of post-discharge medical treatment is not barred merely because the original condition arose from medical treatment that is not actionable under Feres.
Thus, Schwartz properly falls under Thornwell's "first case", where "the military performed separate negligent acts (i. e., two improper operations), one before, and one after, discharge". 471 F. Supp. at 352. Here, plaintiff's claim of post-discharge failure to warn does not present a separate and distinct act of post-discharge negligence on the part of the government. Of course, any veteran in this case who faces a situation analogous to Schwartz, that is, who seeks post-discharge medical assistance from the government for an Agent Orange related malady and is negligently treated at a government hospital, may prosecute his claim for negligent treatment without the Feres impediment.
Second, unlike the Thornwell and Everett cases, plaintiffs here do not allege that the government caused them intentional harm by subjecting them to a form of human experimentation. Thornwell, joined by Everett, emphasized the distinction between cases of predischarge torts that were intentional and those that were negligent:
Mr. Thornwell * * * does not allege a mere continuing negligent omission (which would be barred by Feres). He claims he was intentionally harmed while he was on active duty and he further claims that, after he became a civilian, the defendants failed to exercise their duty of care by neglecting to rescue him from the position of danger which they had created. * * * Mr. Thornwell's claims for in-service, and out-of-service, injuries, certainly involve two ...