Petition — Scales ex rel. Scales v. United States

82-1203 NIANLZ 1998

ALEXANDER L. STEVAS

NO. . CLERK

wae

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1982

JUDY RENEE SCALES, as next Friend

of CHARLES LEWIS SCALES,

Petitioner,

V.

UNITED STATES OF AMERICA,

Respondent.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

L. TONNETT BYRD

BYRD, DAVIS & EISENBERG

707 West 34th Street

Austin, Texas 78705

(512) 454-3751

BOB GIBBINS*

GIBBINS, BURROW & BRATTON

Post Office Box 1452

Austin, Texas 78768

(512) 474-2441

ATTORNEYS FOR PETITIONER

*Counsel of Record

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1982

JUDY RENEE SCALES, as next Friend

of CHARLES LEWIS SCALES,

Petitioner,

V.

UNITED STATES OF AMERICA,

Respondent.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

L. TONNETT BYRD

BYRD, DAVIS & EISENBERG

707 West 34th Street

Austin, Texas 78705

(512) 454-3751

BOB GIBBINS*

GIBBINS, BURROW & BRATTON

Post Office Box 1452

Austin, Texas 78768

(512) 474-2441

ATTORNEYS FOR PETITIONER

*Counsel of Record

a de

QUESTION PRESENTED FOR REVIEW

Whether the judicially created exception to the Federal

Tort Claims Act “for injuries to servicemen” incident to mili-

tary service, first enunciated in Feres vu. United States, 340

U.S. 135 (1950), will, for the first time, be extended to bar a

medical malpractice action against the Government brought

by a minor civilian for prenatal injuries he sustained that

were in no way derivative of any injury to his servicewoman

mother.

a

TABLE OF CONTENTS

PAGE

QUESTION PRESENTED FOR REVIEW........... 2

pF fe F\tpy yy A eee 4

EE Wi oP Ak ag wes Vis vows oe wNaee 8

I ss o'5 9 sels: ude Wie bine ¢ «iso 4/0 ve a4 8

eg Bg ee oe eee 8

STATEMENT OF THE CASE.........;.......+5:. 9

REASONS FOR GRANTING THE WRIT........... 11

7S Ee SURE Cee SER eee 22

CERTIFICATE OF SERVICE................5.55. 23

cA eee ere ire Pee er ey eee 24

ae ae

TABLE OF AUTHORITIES

PAGE

Arrendale v. United States, 469 F.Supp. 883

oN RE kay on 14, 20

Bridgeford v. United States, 550 F.2d 978

EC Pe eS Leas Wiad he 14

C.F. Medeira Co. v. Commissioner of Internal Revenue,

OE ate SN UMN CUE LOG oioic vib clecciee co ccvcues 16

Costley vu. United States, 181 F.2d 723

I Ss Pirdc 5.5 Sno! ach vie » aire ¥ oe alae 14

Feres uv. United States, 340 U.S.

a eo 10-11, 13,15-17, 20-21

Fournier v. United States, 220 F.Supp. 752

I Alas Nb igh oo kaa BOs Fk o Ose a cece We 15

Grigalauskas v. United States, 103 F.Supp. 543 (D. Mass.

1951) aff'd 195 F.2d 494 (1st Cir. 1952)......... 14, 20

Hall v. United States, 451 F.2d 353 (1st Cir. 197])....... 13

Hall vu. United States, 528 F.Supp. 963 (D.N.J. 1981)... . . 20

Harten v. Coons, 502 F.2d 1363 (10th Cir. 1974),

cert. denied, 420 U.S. 963 (1975)... ............. 13

Henninger v. United States, 473 F.2d 814 (9th Cir.

1973) cert. denied 414 U.S. 819 (1973). ........... 13

Herring v. United States, 98 F.Supp. 69

ee uh ide bs ip 6 se oud cea'e 13

Hinkie v. United States, 236 F.Supp. 277

Se EN Viva a bard cs kb vee eve yes 18

In Re Agent Orange Product Liability Litigation,

506 F.Supp. 762 (E.D.N.Y. 1980).............. 18,21

Jones uv. United States, 236 F.Supp. 756

I i le red ig ee ss aly cig 6 guia ab 15

Kemart Corp. vu. Printing Arts Research Lab, Inc.,

232 F.2d 897 (9th Cir. 1956)................ ara

Lowe v. United States, 440 F.2d 452 (5th Cir. 1971)

. cert, denied, 404 U.S. 833 (1971).............. 13, 14

Means v. United States, 6 F.2d 975 (2nd Cir. 1925)...... 16

Messer v. United States, 95 F.Supp. 612

Se Rs ere or We arg ds o-uua.0'ee aloes 15

Monaco vu. United States, 661 F.2d 129 (9th Cir. 1981), cert.

denied, 102 U.S. 2269, (1982)......... 12, 15, 18, 20-21

Parker v. United States, 611 F.2d 1007

PAGE

Rayonier, Inc. v. United States,

SN RI, RU PEROT: cic css edecesccvccese 21

Rutkin uv. United States, 343 U.S. 180 (1952),.......... 16

Shults v. United States, 421 F.2d 170

Ne wee nee 13, 14

Sigler v. LeVan, 485 F.Supp. 185 (D.Md. 1980)......... 15

Stansberry v. Middendorf, 567 F.2d 617

SIE a 13

Steele v. United States, 463 F.Supp. 321

I as ON a ag bo Sap elece s 00.0 0:2 15, 20

Stencel Aero Engineering Corp. v. United States,

OM Ty | a 12, 14, 17, 20, 21

Thomason v. Sanchez, 539 F.2d 955, 957 (3rd Cir.

1976) cert. denied 429 U.S. 1072 (1977). .......... 20

United States v. Brand, 79 F.2d 605 (2d Cir. 1935),

cert. denied 296 U.S. 655 (1936)................. 16

United States v. Brown, 348 U.S. 110 (1954)........ 11, 16

United States v. Neifert-White Co.,

390 U.S. 228 (1968)... ee eee 16

United States v. Yellow Cab Co.,

EME MONEED co a ehccceceunaseseeces 17,21

Vallance v. United States, 574 F.2d 1282

ME Waite Gc bedccccccceccccccecees 13, 14

Veillette v. United States, 615 F.2d 505

SED Sood G a's oe wele 6 aie.bia'e see eees 13, 20

W-R C. uv. Sova, 106 F.2d 478 (6th Cir. 1939)........... 16

Williams v. United States, 435 F.2d 804

ER a CE a a 14

Wilson v. United States, 76 F.Supp. 580

NR, Oe hcliclwaeapetacsececccce 15, 20

Woodside v. United States, 606 F.2d 134 (6th Cir. 1979)

cert. denied 445 U.S. 904 (1980)................. 13

Yandell v. Delgado, 471 SW2d 569 (Tex. 1971)....... 10, 16

STATUTES AND REGULATIONS:

arc ee eM aia ie’ p. e's wee eee 8,9

IE EI, ky vc o's ca ee dialed es tees oie 8,9

I ahs. «Gis App Disa aS ae wince © 0.0.8.0, 9 8e 12

ay Ee

OTHER:

PAGE

The Supreme Court and the Tort Claims Act: End of

an Enlightened Era?, 27 Clev.St.L.Rev. 267 (1978). ..... 20

Note, Stencel Aero Engineering Corp. v. United States:

An Expansion of the Feres Doctrine to Include Military

Contractors, Subcontractors, and Suppliers, 29 Hastings

NS Snort ard wheand iia n'a wip @o,le's. ote 4 6. 20

Note, From Feres to Stencel: Should Military Personnel

Have Access to FTCA Recovery?, 77 Mich.L.Rev.

OR SU irvine Vx hive ee caNi a a olbe Kaee bh es 20

The Effect of the Feres Doctrine on Tort Acts Against

the United States by Family Members of Servicemen,

50 Fordham L.Rev. 1241 (May 1982)................. 13

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1982

JUDY RENEE SCALES, as next Friend

of CHARLES LEWIS SCALES,

Petitioner,

V.

UNITED STATES OF AMERICA,

Respondent.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Petitioner, Judy Renee Scales, as next friend of Charles

Lewis Scales, respectfully prays that a writ of certiorari issue

to review the judgment and opinion of the United States

Court of Appeals for the Fifth Circuit entered in this action

on September 13, 1982.

pen we

OPINIONS BELOW

The opinion of the Court of Appeals is reported at 685

F.2d 970 (5th Cir. 1982) and is reprinted as Appendix “A” to

this Petition. The District Court’s opinions (entered as Mem-

orandum of Findings of Fact and Conclusions of Law and

Amended Order) are unreported and are reprinted as Appen-

dices “B” and “C”. The District Court’s judgment is reprinted

as Appendix “D”. The judgment of the Fifth Circuit and its

order denying rehearing are reprinted as Appendices “E” and

“-.

JURISDICTION

The Court of Appeals rendered its decision on Septem-

ber 13, 1982. A timely suggestion for rehearing en banc,

treated also as a petition for panel rehearing, was denied on

October 19, 1982, and this Petition has been filed within

ninety days of that date. This Court’s jurisdiction is invoked

under 28 U.S.C. §1254(1).

STATUTES INVOLVED

The principal statutes involved in this case are 28 U.S.C.

§1346(b) and 28 U.S.C. §2674. 28 U.S.C. §1346(b) provides:

“Subject to the provisions of chapter 171 of this

title, the district courts, together with the United States

District Court for the District of the Canal Zone and the

District Court of the Virgin Islands, shall have exclu-

sive jurisdiction of 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 Gov-

ernment 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 claim-

ant in accordance with the law of the place where the

act or omission occurred.”

= Oan

28 U.S.C. §2674 provides in relevant part:

“The United States shall be liable, respecting the

provisions of this title relating to tort claims, in the

same manner and to the same extent as a private indi-

vidual under like circumstances, but shall not be liable

for interest prior to judgment or for punitive damages.

“eeer

STATEMENT OF THE CASE

This action was brought under the Federal Tort Claims

Act (“FTCA”), 28 U.S.C. §§1346, 2671-2680, by Petitioner

Charles Lewis Scales, an infant, through his mother, Judy

Renee Scales, as his next friend. Charles alleged, and the

District Court found (App. “B”), the following facts as the

basis of his action against the United States:

Charles’ mother was inducted into the United States Air

Force on June 27, 1977, and was assigned to undergo basic

training at Lackland Air Force Base (AFB) in San Antonio,

Texas. Ms. Scales was unaware that she was pregnant with

Charles at the time of her induction. In the latter part of

June or early July, 1977, during the first trimester of this

pregnancy, Ms. Scales was given a rubella’ vaccination. Air

Force personnel made no effort to determine whether Ms.

Scales was pregnant before giving her the rubella shot. On

July 25, 1977, Ms. Scales was hospitalized at Lackland AFB

with “viral syndrome”, and her symptoms were diagnosed as

“probable rubella.” The Air Force physicians neither informed

her of this diagnosis at that time nor attempted to determine

whether she was pregnant.

After the completion of her basic training at the end of

August, 1977, Ms. Scales was transferred to Keesler AF'B in

Biloxi, Mississippi. Approximately one month later, the Air

Force physicians at Keesler determined that she was ap-

proximately nineteen weeks pregnant. Those physicians did

not request her medical records from Lackland AFB. She

was not informed by the medical personnel at either Lackland

‘Rubella, or German measles, is an infectious disease which can

cause, particularly during the first trimester of pregnancy, a plethora of

tragic and permanent injuries to a fetus, including cataracts, hearing

impairment, heart damage, and physical ard mental retardation.

tS en

AFB or Keesler AFB of the possible effects of rubella on a

fetus, and was never counseled about an abortion.

Ms. Scales was discharged from the Air Force in Decem-

ber, 1977, because of her pregnancy. On March 21, 1978, she

gave birth to Charles. He was born with numerous congeni-

tal defects, including cataracts, a heart murmur, possible

neurological damage, respiratory problems, growth deficien-

cies, and possible mental and physical retardation.

At trial, medical testimony clearly established that

Charles’ defects resulted from his mother’s exposure to ru-

bella early in her pregnancy. Ms. Scales testified that if she

had been informed of the diagnosis of “probable rubella” and

the staggering effects of rubella on an unborn child, she

would have aborted the child she was carrying.

Charles’ claim is therefore two-fold. First, he has a tradi-

tional negligence action? against the Air Force for the acts of

its physicians in causing his congenital rubella syndrome,

and the defects resulting therefrom, by administering the

rubella shot without checking to learn of his existence in his

mother’s womb. Second, he has a “wrongful life’ cause of

action for the negligence of the physicians in failing to inform

his mother of dangers posed to the fetus by the rubella or to

counsel her concerning the possibility of an abortion.

The District Court concluded that the Feres doctrine

was inapplicable in this case and entered judgment against

the United States in the amount of $625,000.00, to compen-

sate Charles for the damages he will sustain after reaching

the age of 18, including the expense of the medical and cus-

todial care he was found to require, his lost income, and the

pain, suffering and mental anguish he will incur.

On appeal, the Fifth Circuit reversed the District Court’s

judgment, albeit “reluctantly” (685 F.2d at 974), on the ground

that Charles’ claim was barred by the Feres doctrine. From

that decision, rehearing of which was denied, this petition

has ensued.

*Under Texas law, it is well established that a child that is born alive

and survives does have a cause of action for prenatal injuries sustained at

any prenatal stage. Yandell u Delgado, 471 SW2d 569 (Tex. 1971).

nk | ee

REASONS FOR GRANTING THE WRIT

The decision of the Court of Appeals marks the first

time since the passage of the FTCA in 1946 that a civilian’s

tort action against the government has been barred under

the Feres doctrine even though no military personnel were

injured. That decision marks a radical and unjustified exten-

sion of Feres that is unsupportable either by the rationale

underlying the doctrine or by the language or purpose of the

FTCA.

While differing rationales have subsequently been

proffered to support the Feres doctrine, its essence has

remained unchanged and is best stated by this Court:

“The Government is not liable under the Federal

Tort Claims Act for injuries to servicemen where the

injuries arose out of or are in the course of activity

incident to service.” (Feres, supra, 340 U.S. 146).

Two prerequisites to the application of the Feres doc-

trine have thus always been maintained, until now: (1) An

injury to military personnel, and (2) an injury arising out of

or caused by activity incident to military service. In this

case, the first requirement is clearly not met, and the second

is therefore meaningless and inapplicable. Because the

requirements of Feres have thus not been satisfied, it is not

surprising that the rationale underlying Feres does not fit

this case.

This Court in Feres fashioned its exception to the FTCA

based on two grounds: the distinctly federal nature of the

relationship between the military and its members, and the

availability of veterans’ benefits to compensate servicemen

for their injuries. (340 U.S. at 142-145). Subsequently, a third

rationale, preserving military discipline, was cited as addi-

tional support for the Feres doctrine. United States v. Brown,

348 U.S. 110, 112 (1954).

In determining that Charles’ claim was barred by Feres,

the Court of Appeals considered two of the three factors: i.e.,

(1) the availability of veterans’ benefits’ and (2) the concern

for preserving military discipline.‘

5685 F.2d at 972.

4685 F.2d at 973.

—

In application of the rationale of the availability of vet-

erans’ benefits, the Fifth Circuit stated:

“A tort claim under the FTCA, such as Charles’, see

Monaco, supra, 661 F.2c at 138 [sic], could circumvent

the limitation established by the act and ‘judicially admit

at the back door that which has been legislatively turned

away at the front door’. Jd. 431 U.S. at 673, 97 S.Ct. at

2059, quoting Laird u. Nelms, 406 U.S. 797, 802, 92

S.Ct. 1899, 1912, 32 L.Ed. 2d 499 (1972).” (685 F.2d at

972)

This statement is simply a misapplication of the ration-

ale of availability of veterans’ benefits set forth in Stencel

Aero Engineering Corporation uv. United States, 431 US.

666, 673.5 In Stencel, the injured serviceman did receive vet-

erans’ benefits.® To allow Stencel’s indemnity action’ under

the FTCA would have required the government to pay twice

for one injury. That danger is not present in this case. Here,

no member of the military was injured,® and no veteran's

benefits have been paid as are allowable, because Charles is

not covered by the VBA for his own injuries.® Thus, to permit

°The Stencel Court noted that one of the essential features of the

Veterans’ Benefits Act (VBA) was to provide “an upper limit of liability

for the Government as to service-connected injuries.” 431 U.S. at 673.

6431 U.S. at 668.

'The facts of Stencel are these: A serviceman sustained serious inju-

ries when the ejection system of his fighter aircraft malfunctioned during

a midair emergency. He brought suit against the United States and Stencel

Aero Engineering Corp., the manufacturer of the ejection system. Jd. at

668. Because Stencel manufactured the system in accordance with gov-

ernment specifications and used components provided by the government,

Stencel cross-claimed against the United States for indemnity. Jd. at

667-68.

®Ms. Scales was not injured while she was treated by the military

medical personnel.

*Dependents of military personnel are entitled only to death benefits

under the VBA, 38 U.S.C. §§341.

Charles’ action would not subject the United States to double

liability, and therefore would not contravene the VBA’s pur-

pose of limiting the government's liability.'°

In this case the Court of Appeals relied heavily on the

factor of military discipline as the basic reason for invoking

the Feres doctrine.!' However, in medical malpractice cases,

courts have not employed the military discipline factor to

deny a claim by a military person, and rather, plainly relied

on the military status of the claimant.’* In Shults vu. United

States, 421 F.2d 170, the administrator of the estate of a de-

ceased serviceman, who was injured on leave in an auto acci-

dent and taken to a military hospital, filed suit against the

government under the FTCA for the death of the serviceman

allegedly caused by malpractice of physicians and others in

charge of the military hospital. In affirming the district

court’s summary judgment for the government, the Fifth

Circuit held:

“(It] is obvious that the injured man could not

have been admitted, and would not have been admitted,

to the Naval Hospital except for his military status. He

was of that status. It inescapably follows that whatever

happened to him in that hospital and during the course

of that treatment had to be ‘in the course of activity

incident to service.’ (Citation omitted)” (421 F.2d at

171-172.)

For an excellent, detailed discussion of the unwarranted application

of the rationale of the availability of veterans’ benefits under these cir-

cumstances, please see The Effect of the Feres Doctrine on Tort Acts

against the United States by Family Members of Service, 60 Fordham L.

Rev. 1241, at 1254-1258 (May, 1982).

"685 F.2d at 973.

“Shults u United States, 421 F.2d 179 (6th Cir. 1969); Lowe u United

States, 440 F.2d 452 (6th Cir, 1971) cert. denied 404 U.S. 833 (1971);

Vallance uv. United States, 674 F.2d 1282 (6th Cir. 1978); Hall u United

States, 451 F.2d 353 (1st Cir. 1971); Stansberry u. Wf iddendorf, 667 F.2d

617 (4th Cir. 1978); Woodside u United States, 606 F.2d 134 (6th Cir.

1979) cert, denied 445 U.S. 904 (1980); Henninger u. United States, 473

F.2d 814 (9th Cir. 1973) cert. denied 414 U.S, 819 (1973); Veillette u United

States, 615 F.2d 506 (9th Cir. 1980); Harten u. Coons, 502 F.2d 1363 (10th

Cir. 1974), cert. denied, 420 U.S. 963 (1975).

ray, spe

This holding was followed by the courts in Lowe, supra,

and Vallance, supra.

In the case at bar, had the minor’s mother, Ms. Scales,

filed a lawsuit on her own behalf, her cause of action would

have been dismissed on the same grounds announced in

Shults, supra, Lowe, supra, and Vallance, supra, not on the

grounds of military discipline as in Stencel, supra. Further-

more, the court in Parker v. United States, 611 F.2d 1007 (5th

Cir. 1980), stated that the military discipline factor is more

relevant to the decision of whether to imply an exception

than it is to the exception’s application. 611 F.2d at 1013.

At bottom, in medical malpractice claims, the difference

between the claim made by military personnel and that

brought by a military dependent is merely a matter of status,

because the medical care afforded military servicemen and

their dependents has been recognized as a valuable preroga-

tive incident to their service.” If the following statement

made by the Court of Appeals in this case is correct:

“If the court must second-guess the judgment of

military officers in assessing their treatment of a member

of the armed services, the claim will be deemed to have

a disruptive effect on discipline and will be dismissed.

See Stencel, supra, 661 F.2d at 134; Hunt, supra, 636

F.2d 599.” (685 F.2d at 973.)

then the dependents of military personnel would not have

been allowed to recover against the government in any of

these cases because it would be necessary for the court to

“second-guess” the judgment of the military officers in asses-

sing their treatment of such dependents.

“Costley u United States, 181 F.2d 723 (5th Cir. 1950).

“Costley uv. United 3tates, 181 F.2d 723 (5th Cir. 1950) (the wife of a

serviceman became permanently paralyzed because the Army doctor gave

her the wrong medicine jor a spinal anesthetic during delivery); Bridgford

u United States, 550 F.2d 978 (4th Cir. 1977) (retired military officer's

dependent injured as a nvsult of medical malpractice); Williams u. United

States, 435 F.2d 804 (1st Cir. 1970) (serviceman’s child died after being

refused to military hospitai); Arrendale u. United States, 469 F.Supp. 883

(N.D. Tex. 1979) (injuries vo serviceman’s son as a result of medical

malpractice); Grigalauskas u. United States, 103 F.Supp. 543 (D.Mass.

(Continued on Page 15)

sid MON ls

In this connection, the Court of Appeals also heavily

relies on Monaco uv. United States, 661 F.2d 129 (9th Cir.

1981), cert. denied, 102 U.S. 2269, (1982), in which Denise

Monaco, the daughter of a serviceman, brought suit against

the government to recover for permanent injuries induced by

birth defects caused by a previous genetic change in her

father which occurred when he was exposed to radiation while

on active duty. Though the Court states that the Plaintiff is

seeking relief for an injury to herself, her cause of action was

entirely based on establishing that the genetic change in her

father was caused by negligent acts of commission or omis-

sion by the government. In other words, her injuries were

caused by her father’s injuries, which, in turn, were caused

by the government’s negligence. Her damages were not

directly caused by the government's conduct but rather were

indirectly caused. As the court points out, the focus of Monaco

is ultimately on the injury to the plaintiff's father which

occurred while he was on active duty. This forces the court to

“...examine the government’s activity in relation to mili-

tary personnel on active duty. It is this examination that the

Feres doctrine seeks to avoid.” 661 F.2d at 134. The court

goes on to say that although this analysis has been used to

bar wrongful death claims by heirs of servicemen, and claims

for genetic injuries to children caused by Agent Orange, the

4/(Continued from Page 14)

1951), aff'd, 195 F.2d 494 (1st Cir, 1952) (the dependent child of a service-

man was injured by the Army doctor in the course of post-natal care at

the Army hospital); Sigler vu. Le Van, 485 F.Supp. 185 (D.Md. 1980) (the

widow and daughter of an Army counterintelligence agent could proceed

with claims for conversion, replevin and constitutional injuries against

military and non-military intelligence officers); Steele u United States,

463 F.Supp. 321 (D.Alas. 1978) (the child of a serviceman lost his eye

because the Army optometrist failed to promptly advise parents of the

disease the child suffered); Fournier u United States, 220 F.Supp. 752

(D.Miss. 1963) (the wife of a serviceman lost her life at an officers’ club

because of the negligence of the government employees); Herring u United

States,, 98 F.Supp. 69 (D.Colo. 1951) (the wife of a serviceman was injured

as a patient in the Army hospital); Messer u United States,, 96 F.Supp.

512 (D.Fla. 1951) (a sergeant’s wife was injured by the negligence of the

Army hospital employees); Wilson u. United States,, 76 F.Supp. 580 (D.

Hawaii 1948) (a minor child of the Naval officer lost his life due to the

negligence of a Naval medical corpsman); Jones u United States,, 236

F.Supp. 756 (E.D.N.C. 1964) (Serviceman’s wife injured in auto accident).

oe en

analysis has not been used to bar claims of civilians injured

directly by military personnel. In the present case, Charles

Lewis Scales was injured directly by the negligence of gov-

ernment medical personnel and an examination of such con-

duct has always been within the ambit of the Courts under

the FTCA. How can it possibly disrupt military discipline to

award an innocent baby just and adequate compensation for

tragic injuries caused directly to him by the clear-cut negli-

gence of medical personnel? Military discipline is simply not

that fragile, especially in the realm of medical treatment,

where no uniquely military concepts are at work, and where

the doctor-patient relationship is not radically different from

that found in civilian life.

Furthermore, cases in which the Feres doctrine applied

always involved injuries to military personnel. In the case at

bar, however, no injuries to any military personnel are

involved.'® This factual difference makes the Feres doctrine

inapplicable because the authority of a decision is co-extensive

only with the facts on which it is founded." It is also well

established that the claims of dependents of servicemen have

been regularly allowed, and the Feres doctrine has not been

applied to dependents, as distinguished from the servicemen

themselves who receive injury “incident to service.” Cases

dealing with such claims"’ hold that a dependent who receives

injuries as a result of the negligence of service personnel

acting within the course and scope of their employment may

pursue their remedies as granted under the FTCA, without

regard to the Feres doctrine.

In Texas, a child who is born alive and survives does

have a cause of action for prenatal injuries sustained at any

prenatal stage.’® Logically, this means that a child, from the

165Ms. Scales was not injured by the military medical personnel.

%Rutkin vu. United States, 343 U.S. 130 (1952); United States u.

Neifert-White Co., 390 U.S. 228 (1968); Kemart Corp. u Printing Arts

Research Lab., Inc., 232 F.2d 897 (9th Cir. 1956); W-R C. u Sova, 106 F.2d

478 (6th Cir. 1939); United States. u Brand, 79 F.2d 605 (2d Cir. 1935),

cert. denied, 296 U.S. 655 (1936); C.h Mederia Co. u Commissioner of

Internal Revenue, 38 F.2d 812 (6th Cir. 1930); Means u. United States, 6

F.2d 975 (2d Cir. 1925).

See Note 14, supra.

See Yandell vu. Delgado, 471 SW2d 569 (Tex. 1971).

a

time of conception, has an independent legal status from

that of its mother. The unborn child has an independent

cause of action against anyone who negligently injures him

while he is still in the womb. In essence there are two sepa-

rate and distinct causes of action existing against a tortfea-

sor in the situation where a pregnant woman and a fetus are

injured by the tortfeasor. This is exactly the situation which

occurred in the case at bar. Here, government doctors com-

mitted several acts of negligence’® and each act of negligence

was a proximate cause of injury 1

himself and gave rise to an entirely independent cause of

action by himself, regardless of whether his mother was also

injured. Since Charles is not a serviceman and his injuries

and cause of action are not derivative of or dependent upon

any injury to his mother, the Feres doctrine is simply not

applicable here.

This conclusion is buttressed by this Court’s analysis in

Stencel, supra. There the Feres doctrine was applied to bar

the manufacturer from bringing in the government as a

third-party defendant.” The trial court sustained the motion

of the United States for summary judgment against the plain-

tiff, and the motion to dismiss the cross claim. The manufac-

turer appealed. The circuit court affirmed the dismissal and

certiorari was granted. In affirming the dismissal, the U.S.

Supreme Court held:

“We conclude, therefore, that the third-party indem-

nity action in this case is unavailable for essentially the

same reasons that the direct action by Donham is barred

by Feres. The factors considered by the Feres court are

largely applicable in this type of case as well; hence, the

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. Since the relationship

between the United States and petitioner is based on a

9E.g., (1) giving the mother a rubella shot; (2) failing to diagnose

the mother’s pregnancy; (3) failing to send the mother home until the

epidemic of rubella in the base was over; and/or (4) failing to consult with

the mother as to the effects of the rubella on Charles Lewis Scales, who

had already been conceived and was alive in his mother’s womb.

See Note 7, supra.

toy ae

commercial contract, there is no basis for a claim of un-

fairness in this result.” (341 U.S. at 673-674) (Emphasis

added).

In Monaco, supra, and In Re Agent Orange Product

Liability Litigation, 506 F.Supp. 762 (E.D.N.Y. 1980), the

Feres doctrine was also applied to bar the claims made by

children of military personnel for damages for their own

genetic and physical harm resulting from their parents’ chro-

mosomal and genetic changes which were caused by the expo-

sure to radiation or chemicals during the parents’ military

service.*! This application of the “Feres doctrine” is well illus-

trated by the court in In Re Agent Orange Product Liability

Litigation, supra, in the following words:

“Only the veterans’ children’s claim of direct injury

requires additional analysis. Here, children of Vietnam

veterans allege that they have suffered genetic and

somatic injury as a result of a parent having been

“The closest POET is Monaco v. United States,

No. C 79-0860 (N.D.Cal. Nov. 2, 1979), where plaintiff,

rede archi pag c-aee hw ceva ent I.

her being born with a birth defect.

States, slip op. at 3. There, the court held that ‘[the]

test of Feres is whether plaintiff's injuries have as their

genesis injuries allegedly sustained incident to the per-

formance of military service’, slip op. at 3, and found

saree yar barred under this rsondr because

‘ py, the United bar Saber " Slip be ume be

"But see Hinkie vu. United States, 524 F.Supp. 227, 279, 285 (E.D.

pa. 1981).

—_" ye

“In the cove ot bes, Se chilicaih Sietena of senate

faeries aieed by the children had their eng in the

exposure of their parents and, assuming that Agent

Orange could produce the genetic changes alleged, the

injuries were inflicted on the serviceman at the time of

exposure. Thus, although Agent Orange may ultimately

be found to have caused injuries in subsequently con-

ceived children, those injuries, nevertheless, arose out

of and were incident to the service of the parent. To hold

otherwise might open the door for governmental liabil-

ity to countless generations of claimants having ever

diminishing genetic relationship to the person actually

injured.” (Emphasis added) (506 F.Supp. at 781)

The claims mentioned in the above-cited cases were trig-

gered by the servicemen’s injuries. If there had been no injury

to the servicemen, then the children would not have been in-

jured and would have had no cause of action. In these cases

the servicemen’s injuries were the origin of the lawsuits. The

children’s lawsuits, as well as their injuries, were entirely de-

rivative of the servicemen’s injuries. These cases therefore

contained the two essential elements of the Feres doctrine.

In the present case, however, Charles’ injuries were in no

way derivative of any injury to his mother, but rather were

the direct result of the negligence of Air Force medical per-

sonnel toward him. In fact — the critical fact — the mother,

Ms. Scales, was not injured. Stated another way, Charles has

an independent ground of recovery because he was directly

injured by the medical personnel’s negligence. His cause of

action is not dependent on establishing either that his mother

was injured or that the government was negligent in the

medical care and treatment of his mother. Such issues are

irrelevant to Charles’ cause of action t acause he was in exist-

ence and present at the time of the medical treatment of his

mother and such treatment was received by him directly,

resulting in the terrible injuries and damages at hand. There-

fore, in accordance with Texas law,” and the intent of the

FTCA, Charles is entitled to seek redress from his govern-

"See Note 2, supra.

=

ment as would any other civilian or military dependent.

The significunce, for purposes of the Feres doctrine, of

Charles’ independent cause of action for medical malpractice

is best illustrated by a comparison of two series of cases: in

the first group of cases it has been consistently held that a

claim for medical malpractice by a serviceman is barred under

Feres, because of his military status.” By contrast, a second

group of cases holds that similar medical malpractice claims

brought against the government by minor dependents of

servicemen are not barred by Feres, despite the claimants’

relation to the military.™ Accordingly, if a servicewoman and

her child were both admitted to a military hospital for treat-

ment and each was injured due to the negligence of military

medical personnel, Feres would bar only the mother’s action,

not the child’s. Likewise, a fetus who necessarily accompan-

ies his servicewoman mother for treatment at a military hos-

pital, and is himself negligently injured as a result, has a

cause of action which is not barred by Feres.

In addressing the breadth to be given this exception to

the FTCA, it bears mention that the Feres doctrine has been

uniformly and cogently criticized by courts* and commenta-

tors*, The criticism is summarized in Hall vu. United States,

528 F.Supp. 963 (D.N.J. 1981). In dismissing a medical mal-

practice action as barred by the Feres doctrine, the district

court took the occasion to criticize the Feres doctrine, which

precluded a serviceman’s action against another member of

the armed forces where the injury arose out of or was inci-

dent to his military service. The court found fault with the

See Note 12, supra.

“See Arrendale, Grigalauskas, Steele, and Wilson, Note 14, supra.

See Parker, supra, 611 F.2d at 1010-11; Monaco, supra, 661 F.2d at

132; Veillette, supra Note 9, 615 F.2d at 507; Thomason vu. Sanchez, 539

F.2d 955, 957 (3rd Cir. 1976), cert. denied 429 U.S. 1072 (1977).

*Note, The Supreme Court and the Tort Claims Act: End of an

Enlightened Era?, 27 Clev.St.L.Rev. 267 (1978); Note, Stencel Aero Engi-

neering Corp. u. United States: An Expansion of the Feres Doctrine to

Include M uitary Contractors, Subcontractors, anci Suppliers, 29 Hastings

L.J. 1217 (1978); Note, From Feres to Stencel: Should M‘litary Personnel

Have Access to FTCA Recovery? 77 Mich.L. Rev. 1099 (1979).

Note, The Effect of the Feres Doctrine on Tort Acts Against the United

States by Family Members of Servicemen, 50 Fordham L.Rev. 1241 (May

1982).

= 91 —

various rationales advanced to support Feres, initially noting

that decisions subsequent to Feres justified the doctrine as

necessary to maintain military discipline, whereas Feres itself

makes no mention of a possible detriment to discipline.

Another reason advanced to support Feres — that no private

right of action should exist because of the “distinctly feder-

al” relationship between a soldier and the government — was

criticized by the court as being equally applicable to many

other government agencies against which private actions are

allowed. Also, the court noted that an argument often

advanced in support of Feres is that there is no analogous

private right of action, and since the FTCA limits govern-

ment liability to instances where an analogous private right

of action exists, Feres is consistent with the FTCA. However,

the court criticized this argument, stating that it is suffi-

cient that an analogous private right of action is conceivable.

Finally, the court argued that in determining whether mili-

tary immunity should apply, a distinction should be drawn |

between acts which only the military can perform, such as

combat operations, and acts such as medical care, which are

routinely performed by civilians.

In summary, the factual situation in this case at bar is

essentially different from that in Feres, supra; Stencel, supra;

Monaco, supra, and In Re Agent Orange, supra. Nothing in

the rationale of Feres supports, let alone compels, the Court

of Appeals’ destruction of a civilian’s independent cause of

action to seek compensation for the staggering injuries he

received as a result of the negligence of military physicians.

“There is no justification for this Court to read exceptions

into the Act [FTCA] beyond those provided for by Congress.”

Rayonier, Inc. v. United States, 352 U.S. 315, 320 (1957). As

stated by this Court in United States u. Yellow Cab Co., 340

U.S. 543 (1950) as follows:

“The Federal Tort Claims Act waives the Govern-

ment’s immunity from suit in sweeping language. It

unquestionably waives it in favor of an injured per-

son....” (340 U.S. at 547.)

Under these circumstances, it would be an unprecedent-

ed, unjustified extension of the Feres doctrine to bar recov-

ery in this case.

ole ON saat

CONCLUSION

The Petition for Writ of Certiorari should be granted for

the reasons set out above.

Respectfully submitted,

L. TONNETT BYRD

BYRD, DAVIS & EISENBERG

707 West 34th Street

Austin, Texas 78705

(512) 454-3751

BOB GIBBINS

GIBBINS, BURROW & BRATTON

Post Office Box 1452

Austin, Texas 78767

"ZI: » *

BOB GIBBINS

ATTORNEYS FOR PETITIONER

eS

CERTIFICATE OF SERVICE

I hereby certify that on this/# day ot panting.

1988, I served the foregoing Petition for Writ4f Certiorfiri to

the United States Court of Appeals for the Fifth Circuit by

mailing, via certified mail, return receipt requested, three

copies, to:

Solicitor General \

Department of Justice

Washington, — 4p 4 r

BOB GIBBINS

SOO w>

on ON and

APPENDICES

Opinion of the Court of Appeals.

District Court’s Memorandum of Findings of Fact and

Conclusions of Law.

District Court’s Amended Order.

District Court’s Judgment.

Fifth Circuit's Judgment.

Fifth Circuit’s Order Denying Petitioner's Suggestion

for Rehearing En Banc.

a

APPENDIX A

Judy Renee SCALES, As Next Friend of

Charles Lewis Scales,

Plaintiff-Appellee,

UNITED STATES of America,

Defendant-Appellant.

No, 81-1367,

United States Court of Appeals,

Fifth Circuit.

Sept. 13, 1982.

Plaintiff infant sued the United States under Federal

Tort Claims Act alleging that he was born with congenital

rubella syndrome as a result of negligent medical treatment

that his mother received during her basic training for service

in the Air Force. The United States District Court for the

Western District of Texas, Jack Roberts, J., rendered judg-

ment against the United States, and the Government ap-

pealed. The Court of Appeals, Thornberry, Circuit Judge,

held that claim was barred by Feres, notwithstanding that

infant had an independent cause of action under state tort

law.

REVERSED.

1. United States 78(16)

Infant plaintiff's Federal Tort Claims Act suit based on

alleged negligent medical treatment of his then pregnant

mother during her basic training for service in the Air Force

was barred by the Feres doctrine, notwithstanding that the

on who was born with congenital rubella syndrome, had

t cause of action under state tort law for wrong-

ful life. 28 U.S.C.A. §§1346, 2671-2680.

2. United States § 78(16)

If a claim falls within the Feres exception to the we’ .

of tort liability under Federal Tort Claims Act, the = urt

lacks jurisdiction. 28 U.S.C.A. §§1346, 2671-1680.

my ye

Edward C. Prado, U.S. Atty., San Antonio, Tex., Eloise

E. Davies, Barbara B. Price, Robert S. Greenspan, Attys.,

Civ. Div., Dept. of Justice, Washington, D.C., for defendant-

appellant.

Gibbins & Wash, Bill Zook, Bob Gibbins, Yii-Chwen

(Francis) Pan, L. Tonnett Byrd, Austin, Tex., for plaintiff-

appellee.

Appeal from the United States District Court for the

Western District of Texas.

Before THORNBERRY, JOHNSON and GARWOOD,

Circuit Judges.

THORNBERRY, Circuit Judge:

Charles Lewis Scales, an infant, sued the United States

through his mother, Judy Renee Scales, as next friend under

the Federal Tort Claims Act (FTCA), 28 U.S.C. §§1346,

2671-1680, alleging that he was born with congenital rubella

syndrome as a result of the negligent medical treatment his

mother received during her basic training for service in the

Air Force. Charles alleged three instances of negligent con-

duct. First, he claimed that Air Force medical personnel were

negligent in administering a rubella vaccination to his mother

without determining first whether she was pregnant. They

were negligent a second time in failing to ascertain whether

his mother was pregnant when she later contracted rubella.

And finally, they were careless in failing to send for her

medical records, which indicated that she had been diagnosed

“probable rubella,” once it was discovered that she was

pregnant.

[1] Having denied the government's motion to dismiss

based on Feres u. United States, 340 U.S. 135, 71 S.Ct. 153,

95 L.Ed. 152 (1950), the district-court accepted each of

Charles’ contentions and entered judgment against the United

States in the amount of $625,000. The government continues

to insist on this appeal that Charles’ claim is barred by the

Feres doctrine, which prohibits lawsuits brought by service-

men under the FTCA when the injuries involved in the law-

suit arise out of activities incident to military service. Id. at

147, 71 S.Ct. at 159. The government also argues, in the

alternative, that the district court clearly erred in finding

that a vaccination was administered during Ms. Scales’ basic

ey

training and that state tort law, in any event, will not sup-

port a damage award based on a wrongful life theory. We

hold that Charles’ claim against the government is barred by

Feres as a matter of law. Consequently, our discussion of the

facts need only be brie‘, and we find it unnecessary to reach

the government's alternate points of error.

When Judy Renee Scales was inducted into the United

States Air Force on June 27, 1977, and assigned to undergo

basic training at Lackland Air Force Base in San Antonio,

she was unaware that she was approximately one month

pregnant. During her basic training, Lackland AFB experi-

enced an outbreak of rubella. Rubella is an infectious dis-

ease, commonly known as German measles, that may cause

permanent injury to an unborn fetus, particularly if it is

contracted in the first trimester of pregnancy. Ms. Scales

believes that she received a rubella vaccination as part of the

battery of inoculations given all recruits during basic train-

ing. This vaccination, allegedly administered to Ms. Scales

while she was pregnant, is claimed to have resulted in Charles’

congenital rubella syndrome. The government insists that

there is no evidence, other than hearsay, to support the con-

clusion that Ms. Scales received a rubella vaccination during

her basic training. Furthermore, assuming that Ms. Scales

was vaccinated against rubella, the government argues that

there is no evidence demonstrating a causal connection

between a rubella vaccination administered to the mother

and congenital rubella syndrome in the child.

On July 25, 1977, Ms. Scales was hospitalized at Lack-

land AFB with complaints of nausea, stiff joints, and a rash.

A physician in the dispensary diagnosed her symptoms as

“probable rubella,” but neither informed Ms. Scales of the

diagnosis nor made any effort to determine whether she was

pregnant. When Ms. Scales completed her basic training at

the end of August 1977, she was transferred from Lackland

AFB to Keesler Air Force Base in Biloxi, Mississippi. One

month later she discovered that she was nineteen weeks preg-

nant. The Air Force physician treating Ms. Scales during her

pregnancy never requested her medical records from Lack-

land, even though he administered two rubella titer tests

that indicated Ms. Scales’ exposure to rubella at some point

in the past. Unfortunately, the tests cannot pinpoint accu-

ow as

rately when a rubella infection has occurred unless the infec-

tion is acute, which was not Ms. Scales’ case. Ms. Scales was

discharged from the Air Force in December, 1977, because of

her pregnancy. On March 21, 1978, she gave birth to Charles

Lewis Scales. Charles suffers from several congenital! defects,

including cataracts, a heart murmur, possible neurological

damage, respiratory problems, growth deficiencies, and pos-

sible mental and physical retardation. Expert testimony at

trial agreed that Charles’ defects are characteristic of congen-

ital rubella syndrome resulting from his mothers’ exposure

to rubella during the early stages of her pregnancy. Ms.

Scales maintains that if she had known about the “probable

rubella” diagnosis and the effect of rubella on an unborn

child, she would have aborted the fetus she was carrying.

Thus, the basic thrust of Charles’ theory of damages is that

but for the negligence of Air Force medical personnel he

would never have been born. The question we must address,

however, is not whether Charles presents a supportable legal

theory, but whether the court below had jurisdiction to con-

sider his claim.

[2] The FTCA provides that the United States shall be

liable for tort claims “in the same manner and to the same

extent as a private individual under like circumstances. 28

U.S.C. §2674. While this act “waives the Government’s

immunity from suit in sweeping language,” United States v.

Yellow Cab Co., 340 U.S. 543, 547, 71 S.Ct. 399, 402, 95

L.Ed. 523, 528 (1951), several statutory and judicial excep-

tions limit the Government’s waiver of immunity. Among

these is the exception for liability for injuries incident to

military service. In Feres, supra, the Supreme Court enunci-

ated what has come to be known as the Feres doctrine, which

renders the United States “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 147, 81 S.Ct. at 159. If a claim falls within the Feres

'This Court explained the evolution of the Feres doctrine from Brooks

u United States, 337 U.S. 49, 69 S.Ct. 918, 93 L.Ed. 1200 (1949), to the

present in Parker u United States, 611 F.2d 1007, 1009-1011 (5th Cir.

1980). See also Woodside u United States, 606 F.2d 134, 138-42 (6th Cir.

1979), cert. denied, 445 U.S. 904, 100 S.Ct. 1080, 63 L.Ed.2d 320 (1980);

Citizens National Bank of Wankegan vu. United States, 594 F.2d 1154,

1156-58 (7th Cir. 1979).

oh MN tis

exception to the waiver of tort liability, this Court lacks

jurisdiction to hear the case. United States v. Orleans, 425

US. 807, 814, 96 S.Ct. 1971, 1976, 48 L.Ed.2d 390, 398 (1976);

Monaco v. United States, 661 F.2d 129, 13: (9th Cir. 1981),

cert. denied, U.S. —_.._. , 103 S.Ct. 2269, 73

L.Ed.2d (1982).

The Supreme Court clarified and reaffirmed the ration-

ale underlying the Feres doctrine in Stencel Aero Engineer-

ing Corp. v. United States, 431 U.S. 666, 671, 97 S.Ct. 2054,

2057-58, 52 L.Ed.2d 665, 670 (1977). First, the Court rea-

soned that it would be inconsistent with the distinctively

federal nature of the relationsh » between the federal gov-

ernment and its servicemen to make the governments liabil-

ity dependent upon the fortuity of where the soldier happened

to be stationed at the time of the injury, as would result

under the FTCA since it requires the law of the state where

the act or omission occurred to govern liability. Id. at 671, 97

S.Ct. at 2058. Second, the Court noted that Congress pro-

vided a special remedy for servicemen in passing the Veter-

ans’ Benefits Act, 38 U.S.C. 301-1008 (1976 & Supp. 1978),

which creates a “no fault” compensation scheme as a substi-

tute for tort liability for service-related injuries. A tort claim

under the FTCA, such as Charles’ see Monaco, supra, 661

F.2d at 138, could circumvent the limitation established by

the act and “judicially admit at the back door that which has

been legislatively turned away at the front door.” Id. 431

U.S. at 673, 97 S.Ct. at 2059 quoting, Laird u Nelms, 406

U.S. 797, 802, 92 S.Ct. 1899, 1902, 32 L.Ed.2d 499 (1972).

[3] While these two prongs of the rationale underlying

the Feres doctrine are recognized frequently in cases discus-

sing the rule, see, e.g., Johnson uv. United States, 631 F.2d 34,

35-36 (5th Cir. 1980), cert. denied, 451 U.S. 1018, 101 S.Ct.

3007, 69 L.Ed.2d 389 (1981); Parker, supra, 611 F.2d at 1011;

Daberkow v. United States, 581 F.2d 785, 787-88 (9th Cir.

1978), the third predicate for application of the doctrine stands

out as the most important consideration in any single case.

It is the concern for preserving military discipline. United

States v. Muniz, 374 U.S. 150, 162, 88 a CE 1850, 1858, 10

L.Ed.2d 805 (1963); Hunt v. United States, 636 F.2d 580, 599

(D.C.Cir. 1980). The Supreme Court explained the focus of

pay Ye

this concern in Sfencel: “(t}he peculiar and special relation-

ship of the soldier to his superiors, the effects of the mainte-

nance 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 commit-

ted in the course of military duty.’” 431 U.S. at 672-73, 97

S.Ct. at 2058, quoting United States u. Brown, 348 U.S. 110,

112, 75 S.Ct. 141, 143, 99 L.Ed. 139 (1954). The need to

preserve military discipline, standing alone, can justify dis-

missal of suits arising out of activities incident to military

service even when there was no command relationship

between the claimant and the individual tort-feasor. Monaco,

supra, 661 F.2d at 132.

as the Supreme Court did in Stencel and as

the Ninth Circuit did in Monaco, supra, 661 F.2d at 133-34,

we hold that Feres bars Charles’ claim for recovery. Feres

previour.y has been applied to bar suits brought by non-

military personnel. Two of the three cases involved in Feres

were brought by widows of servicemen. The Court in Stencel

relied on Feres to prohibit an action brought by a third party

indemnity plaintiff. 431 U.S. at 673, 97 S.Ct. at 2059. In

Monaco, a case very similar to the one before us, the Ninth

Circuit held that Feres barred a claim by an infant who

alleged that the government’s negligence caused chromosomal

and genetic changes in her father which in turn caused her to

be born with a serious birth defect. 661 F.2d at 130. Contrary

to appellee's assertion, then, the fact that Charles was not on

active duty at the time of the injury does not foreclose appli-

cation of the Feres doctrine, nor does it matter that Charles

has an independent cause of action under state tort law. Id.

at 134. Stencel and its progeny direct our inquiry to the

manner in which the policies underlying Feres are affected —

specifically the impact on military discipline — rather than

to the status of the claimant.

The policies that support the Feres doctrine clearly would

preclude Charles’ mother from bringing suit against the

United States based on the negligent medical treatment she

received while on active duty in the Air Force. Two of the

claims rejected in Feres were based on allegations of medical

malpractice. Moreover, this Court has held repeatedly since

Feres that claims based on medical malpractice fall within

wis ME id

the bounds of the Feres doctrine when the plaintiff was a

serviceman on active duty at the time of the alleged mal-

practice. Stanley vu. Central Intelligence Agency, 639 F.2d

1146, 1150 (5th Cir. 1981); Vallance uv. United States, 574 F.2d

1282, 1283 (5th Cir.), cert. denied, 439 U.S. 965, 99 S.Ct. 453,

58 L.Ed.2d 423 (1978); Shults v. United States, 421 F.2d 170

(5th Cir, 1969). See also Veillette u United States, 615 F.2d

505, 507 (9th Cir. 1980). These cases tell us not only that Ms.

Scales is barred from suit but also that the medical treat-

ment administered to Ms. Scales was incident to military

service. Thus, the only question that remains is whether a

suit initiated by Charles would have the same disruptive

effect on military discipline as a suit brought by his mother.

In asking this question, courts will focus on the type of

examination that will be demanded of the district court. If

the court must second-guess the judgment of military officers

in assessing their treatment of a member of the armed ser-

vices, the claim will be deemed to have a disruptive effect on

discipline and will be dismissed. See Stencel, supra, 431 U.S.

at 674, 97 S.Ct. at 2059; Monaco, supra, 661 F.2d at 134;

Hunt, supra, 636 F.2d at 599.

If we accept the argument that a suit brought by Charles’

mother would tend to undermine military discipline, which

we must since it is the law, then it is impossible to see how

the result should be different if Charles sues the government

instead. Appellee attempts to escape Feres by relying on

those cases that allow dependents of servicemen to recover

for negligent medical treatment they received in the hands of

army medical personnel, e.g., Costley uv. United States, 181

F.2d 723, 726. (Sth Cir. 1950); Grigalauskas v. United States,

103 F.Supp. 543, 549 (D.Mass.1951), aff'd, 195 F.2d 494 (1st

Cir. 1952), and by insisting that Monaco is distinguishable

on the ground that Denise Monaco’s claim “derived” from

her father’s claim. We find appellee's arguments unpersuasive.

In cases that allow the dependents of servicemen to sue

the government, the negligent conduct is directed to the

dependent alone and does not involve any decisions by the

military toward enlisted personnel. Charles’ allegations of

negligence by contrast focus entirely on the medical treat-

ment that Air Force physicians gave his mother. The treat-

ment accorded his mother is inherently inseparable from the

din IE Ni

treatment accorded Charles as a fetus in his mother’s body.

tly, the district court’s analysis is the same whether

the suit is brought by Charles or Ms. Scales. In either

instance, the judge is placed in the position of questioning

the propriety of decisions or conduct of fellow members of

the Armed Forces. This is precisely the type of examination

that Feres seeks to avoid. See Broudy v. United States, 661

F.2d 125, 127 (9th Cir. 1981).

Furthermore, though Monaco may be distinguished

superficially as appellee suggests, the Ninth Circuit in that

case did not rest its decision on the fact that the infant

plaintiff's claim lacked an independent ground of recovery.

In fact, Judge Nelson noted specifically that Denise sought

relief for injury to herself, “but this does not change the

substantive analysis: the court still must examine the Gov-

ernment’s activity in relation to military personnel on active

duty.” Monaco, supra, 661 F.2d at 134. As we have noted

already, the medical treatment involved in this case was

administered to Charles’ mother while she was on active duty.

Whether it constitutes negligence with respect to Charles

cannot be determined without requiring the court to second-

guess military judgment in a manner inconsistent with the

concern for military discipline that underlies the Feres

doctrine.

For the foregoing reasons we are compelled, however

reluctantly, to reverse the judgment of the district court and

dismiss the claim as barred by Feres. We are not blind to the

tragedy of Charles’ condition and we regret the effects of our

conclusion. Nevertheless, we are not writing on a clean slate.

Though the rationale underlying Feres has been criticized by

courts, e.g., Monaco, supra, 661 F.2d at 132; Parker, supra,

611 F.2d at 1010-11, and commentators, see, e.g., ‘'ote, From

Feres to Stencel: Should Military Personnel Have Access to

FTCA Recovery? 77 Mich.L.Rev. 1099 (1979), it remains the

law to which we must adhere.

REVERSED.

a

APPENDIX B

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

CIVIL ACTION NO. A-79-CA-70

UNITED STATES OF AMERICA,

Defendant.

MEMORANDUM OF FINDINGS OF FACT AND

CONCLUSIONS OF LAW

This is a personal injury action filed by Judy Renee

Scales as next friend for her minor son, Charles Lewis Scales,

seeking damages for Charles Lewis Scales under the provi-

sions of the Federal Tort Claims Act, 28 U.S.C. 2671, et seq.

At all times material herein, Judy Renee Scales, a single

woman, was an active member of the United States Air Force.

On March 21, 1978, Judy Renee Scales gave birth to Charles

Lewis Scales who was severely afflicted with congenital rubella

syndrome. As a result of this syndrome, he is physically and

mentally retarded, he has hearing and vision impairments,

heart murmur, and respiratory and blood supply dysfunc-

tion, all of which are of a permanent nature. He has already

undergone open heart surgery and two surgical procedures

on his right eye for rubella cataracts. In all probability he

will require custodial care throughout his life and will never

be employable.

Judy Renee Scales was inducted into the United States

Air Force on June 27, 1977. As a basic training inductee at

the Lackland Air Force Base, she received a rubella or German

measles vaccination from Air Force medical personnel some-

time between June 27 and July 25, 1977. On July 25 she was

hospitalized at Lackland Air Force Base and on July 26,

1977 she was diagnosed as having “probable rubella”. On

September 25, 1977, after having been transferred to Keesler

Air Force Base in Biloxi, Mississippi, she was diagnosed as

being pregnant.

It is plaintiff's contention that the Air Force medical

personnel at Lackland Air Force Base were negligent (1) by

injecting Judy Renee Scales with a rubella or German mea-

sles vaccination while she was in her first trimester of preg-

nancy, (2) by failing to conduct a pregnancy test on Judy

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Renee Scales prior to administering the rubella vaccination,

(3) by failing to conduct any tests which would determine

Judy Renee Scales’ susceptibility to rubella or German mea-

sles prior to administering the rubella vaccination and (4) by

failing to make adequate inquiry of Judy Renee Scales as to

whether or not she was pregnant prior to administering the

rubella vaccination. The record is undisputed that if her preg-

nancy had been established, no vaccination would have been

given. In addition, plaintiff contends that after Judy Renee

Scales was diagnosed as having “probable rubella” on July

26, 1977, the Lackland Air Force medical personnel were

negligent (1) by failing to conduct a pregnancy test on Judy

Renee Scales to determine if she was pregnant, (2) by failing

to inform Judy Renee Scales that she had “probable rubella”,

(3) by failing to inform Judy Renee Scales of the adverse

affects on a fetus when the mother contracts rubella or

German measles during the first trimester of pregnancy and

(4) by failing to advise and offer Judy Renee Scales the

option of an abortion. The record is undisputed that if the

medical personnel had determined Judy Renee Scales was

pregnant when she was diagnosed as having “probable rubel-

la”, they would have counseled and instructed her about the

adverse affects on a fetus when the mother contracts rubella

or German measles during the first trimester of pregnancy

and they would have instructed her concerning her options

to terminate the pregnancy with an abortion. Plaintiff fur-

ther contends that after Judy Renee Scales was diagnosed as

being pregnant on September 25, 1977, the Keesler Air Force

Base medical personnel were negligent (1) by failing to con-

duct proper tests to determine if Judy Renee Scales had been

infected with rubella or German measles during her preg-

nancy, (2) by failing to obtain Judy Renee Scales’ medical

records from Lackland Air Force Base which would have

revealed that she had been diagnosed as having “probable

rubella”, (3) by failing to inform Judy Renee Scales of the

adverse affects on a fetus when the mother contracts rubella

or German measles during the first trimester of pregnancy

and (4) by failing to advise and offer Judy Renee Scales the

option of an abortion. Again, the record is undisputed that if

the medical personnel had determined that Judy Renee Scales

had recently been infected with “probable rubella” when she

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was diagnosed as being pregnant, they would have informed

and counseled her concerning the adverse affects on a fetus

when the mother contracts rubella or German measles during

the first trimester of pregnancy and they would have coun-

seled her concerning her options to terminate the pregnancy

with an abortion. It is Judy Renee Scales’ contention that

had she been informed of the severe consequences of having

rubella or German measles during the first trimester of preg-

nancy, she would have aborted any diagnosed pregnancy. It

is Judy Renee Scales’ further contention that she was never

informed that “probable rubella” had been diagnosed in July

of 1977 and that she first discovered that fact on January 8,

1980 when plaintiff’s attorneys were furnished with medical

records from Lackland Air Force Base.

The Government denies that Judy Renee Scales received

a rubella or German measles vaccination while stationed at

Lackland Air Force Base and further denies that the medical

personnel at Lackland Air Force Base or Keesler Air Force

Base were negligent in any respect. The Government further

contends that plaintiff cannot now complain of any acts of

alleged negligence on behalf of the medical personnel at

Lackland Air Force Base or Keesler Air Force Base (other

than the injection of Judy Renee Scales with a rubella or

German measles vaccination between June 27 and July 25,

1977) because plaintiff did not refer to such conduct when his

administrative claim (Standard Form 95) was filed.

Indeed the record establishes that no such complaint

was possible at the time plaintiff’s administrative claim was

pending. The record reveals that prior to initiating the admin-

istrative claims procedure, plaintiff's personal physician

requested Judy Renee Scales’ medical records from the Gov-

ernment but in complying with this request the Government

failed to include the records from Lackland Air Force Base

dated July 26, 1977 with the diagnosis of “probable rubella”.

It was not until January 8, 1980, after the appropriate admin-

istrative agency had denied plaintiff's claim and after this

suit was files that Government attorneys discovered the omis-

sion and furnished the appropriate records to plaintiff's coun-

sel.

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Based upon the record herein established, the Court

enters the following Findings of Fact and Conclusions of

Law:

A. FINDI Ai

1. Judy Renee Scales received a rubella or German mea-

sles vaccination at Lackland Air Force Base between June

27, 1977 and July 25, 1977.

2. At the time Judy Renee Scales received this vaccina-

tion she was in her first trimester of pregnancy with Charles

Lewis Scales.

3. As a proximate result of Judy Renee Scales receiving

this vaccination, Charles Lewis Scales was born with con-

genital rubella syndrome.

4. At all times material herein, the medical personnel at

Lackland Air Force Base and at Keesler Air Force Base were

acting for and on behalf of the United States of America and

within the course and scope of their employment by the

United States of America.

5. Between June 27, 1977 and July 25, 1977, the medical

personnel at Lackland Air Force Base were negligent in the

following respects:

(a) In administering a rubella or German measles

vaccination to Judy Renee Scales while she was in her first

trimester of pregnancy.

(b) In failing to conduct a pregnancy test on Judy

Renee Scales prior to administering the rubella or German

measles vaccination.

6. After Judy Renee Scales had been diagnosed as

having “probable rubella”, the medical personnel at Lackland

Air Force Base were negligent in the following respect:

(a) In failing to conduct a pregnancy test on Judy

Renee Scales.

7. After Judy Renee Scales had been diagnosed as being

pregnant, the medical personnel at Keesler Air Force Base

were negligent in the following respects:

(a) In failing to obtain Judy Renee Scales’ medical

records from Lackland Air Force Base which showed that

she had been diagnosed as having “probable rubella” during

her pregnancy.

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(b) In failing to conduct proper tests to determine if

Judy Renee Scales had been infected with rubella or German

measles during her pregnancy.

8. Each of the negligent acts and omissions listed above

was a proximate cause of Charles Lewis Scales being born

with congenital rubella syndrome.

9. If Judy Renee Scales had been properly informed of

the adverse effects on a fetus in cases where the mother

contracts rubella or German measles during the first trimes-

ter of pregnancy, and if she had been counseled and offered

the option of an abortion, she would have elected to have an

abortion.

10. The defendant United States of America has not

been prejudiced in any way by plaintiff's inability to allege in

his Administrative Claim Form 95 the allegations of negli-

gence subsequently made by plaintiff and about which the

defendant has complained.

11. As a direct and proximate result of being afflicted

with congenital rubella syndrome, Charles Lewis Scales has

sustained the following damages:

(a) Medical and custodial expenses which in reason-

able medical probability will be incurred in the future after

he attains the age of eighteen years which are necessary for

the proper treatment and care of his condition and reasona-

ble in amount for the services rendered — $400,000.00.

(b) Pain, suffering and mental anguish which in rea-

sonable medical probability he will sustain in the future after

he attains the age of eighteen years — $200,000.00.

(c) Loss of capacity to work and earn money which

in reasonable probability he will incur in the future after he

attains the age of eighteen years — $25,000.00.

B. CONCLUSIONS OF LAW

1. Plaintiff, Charles Lewis Scales, is entitled to recover

judgment against defendant United States of America based

upon the Government's negligence as stated in Findings of

Fact No. 5 (a) and (b), each of which acts of negligence was a

proximate cause of his being born with congenital rubella

syndrome.

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2. Plaintiff, Charles Lewis Scales, is also entitled to

recover judgment against defendant United States of Amer-

ica based upon the Government’s negligence as stated in

Findings of Fact No. 6 (a) and No. 7 (a) and (b), each of

which acts of negligence was a proximate cause of his mother

not terminating her pregnancy and of Charles Lewis Scales

being born with congenital rubella syndrome.

3. The defendant United States of America is not ei:ti-

tled to any offset of the damages granted herein to plaintiff

by reason of the fact this his mother, Judy Renee Scales, is

presently married to a member of the United States Armed

Forces.

4. Charles Lewis Scales is entitled to recover of and

from the defendant, United States of America, the sum of

$625,000.00.

5. The Clerk of the Court is hereby ordered to enter

Judgment accordingly.

Entered on this the day of ,

1981, at Austin, Texas.

JACK ROBERTS

Senior United States District Judge

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APPENDIX C

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

JUDY RENEE SCALES, AS NEXT §

FRIEND OF CHARLES LEWIS

SCALES,

Plaintiff,

V. CIVIL ACTION

NO. A-79-CA-70

UNITED STATES OF AMER.CA,

Defendant.

AMENDED ORDER

It having come to this Court’s attention on the Court's

own motion that a typographical error was committed in this

Court’s Memorandum of Findings of Fact and Conclusions

of Law entered June 9, 1981, the Court hereby ORDERS

pursuant to Federal Rule of Civil Procedure 60(a) that the

Court’s Findings of Fact number eleven (11) is amended to

read as follows:

11. As a direct and proximate result of being afflicted

with congenital rubella syndrome, Charles Lewis Scales has

sustained the following damages:

(a) Medical and custodial expenses which in reason-

able medical probability will be incurred in the future after

he attains the age of eighteen years which are necessary for

the proper treatment and care of his condition and reasona-

ble in amount for the services rendered — Four Hundred

Thousand Dollars ($400,000.00).

(b) Pain, suffering and mental anguish which in rea-

sonable medical probability he will sustain in the future after

he attains the age of eighteen years — Twenty-Five Thou-

sand Dollars ($25,000.00).

(c) Loss of capacity to work and earn money which

in reasonable probability he will incur in the future after he

attains the age of eighteen years — Two Hundred Thousand

Dollars ($200,000.00).

ANN LN LM LP

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The remainder of the order of June 9, 1981 remains in

full force and effect as originally ordered.

ENTERED on this the 12th day of June, 1981 at Austin,

Texas.

JACK ROBERTS

Senior United States District Judge

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APPENDIX D

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

JUDY RENEE SCALES, AS NEXT §

FRIEND OF CHARLES LEWIS

SCALES,

Plaintiff,

CIVIL ACTION

NO. A-79-CA-70

V.

UNITED STATES OF AMERICA,

Defendant.

This action came on for trial before the Court, Honorable

Jack Roberts, United States District Judge, presiding and

the issues having been duly tried and a decision having been

duly rendered,

It is ORDERED and ADJUDGED that Plaintiff,

Charles Lewis Scales, is entitled to recover of and from the

defendant, United States of America, the sum of Six Hun-

dred Twenty-five Thousand dollars ($625,000.00).

Dated at Austin, Texas, this 9th day of June, 1981.

AMNMMNM MM

CHARLES W. VAGNER

Clerk of Court

By: Sally Looke, Deputy

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APPENDIX E

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 82-2467

D. C. Docket No. A-79-CA-70

JUDY RENEE SCALES,

as next friend

of CHARLES LEWIS SCALES,

Plaintiff-Appellee,

versus

UNITED STATES OF AMERICA,

Defendant-Appellant.

Appeal from the United States District Court for the

Western District of Texas

Before THORNBERRY, JOHNSON and GARWOOD, Cir-

cuit Judges.

JUDGMENT

This cause came on to be heard on the record on appeal,

and was argued by counsel;

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this Court that the judgment of the

said District Court in this cause be, and the same is hereby,

reversed ;

It is further ordered that plaintiff-appellee pay to

defendant-appellant, the costs on appeal to be taxed by the

Clerk of this Court.

September 13, 1982

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APPENDIX F

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 81-1367

JUDY RENEE SCALES, as

next friend of

CHARLES LEWIS SCALES,

Plaintiff-Appellee,

versus

UNITED STATES OF AMERICA,

Defendant-Appellant.

Appeal from the United States District Court for the

Western District of Texas

ON SUGGESTION FOR REHEARING EN BANC

(Opinion 09/13/82, 5 Cir., 198 ®

F.2d ).

( October 19, 1982 )

Before THORNBERRY, JOHNSON and GARWOOD, Cir-

cuit Judges.

PER CURIAM:

( ) ‘Treating the suggestion for rehearing en banc as a

petition for panel rehearing, it is ordered that the petition for

panel rehearing is DENIED. No member of the panel nor

Judge in regular active service of this Court having requested

that the Court be polled on rehearing en banc (Rule 16), the

Cy a ee

) ‘Treating the suggestion for rehearing en banc as a

Sail maueea chai the petition for panel rehearing

is DENIED. The judges in regular active service of this

Court having been polled at the request of one of said judges

ep

and a majority of said judges not having voted in favor of it

(Rule 35, Federal Rules of Appellate Procedure; Local Fifth

Circuit Rule 16), the suggestion for Rehearing En Banc is

DENIED.

ENTERED FOR THE COURT:

United States Circuit Judge