Witt v. United States of America

Filing 16

ORDER signed by Judge John A. Mendez on 2/9/09 ORDERING that defendant's 8 Motion to Dismiss for Lack of Jurisdiction is, relunctantly, GRANTED. CASE CLOSED. (Duong, D)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ALEXIS WITT, On behalf of the Estate of Dean Witt, deceased, Plaintiff, v. UNITED STATES OF AMERICA, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) )
Case No. 2:08-CV-02024 JAM-KJM

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

ORDER GRANTING MOTION TO DISMISS

Alexis Witt ("Plaintiff") brought this action against the United States of America ("Defendant"), on behalf of the Estate of Dean Witt, her deceased husband, for medical negligence. filed a Motion to Dismiss for Lack of Jurisdiction. opposed the Motion. Defendant

Plaintiff

For the reasons stated below, Defendant's

Motion to Dismiss is GRANTED. 1 BACKGROUND On October 10, 2003, SSgt. Dean Witt ("Witt") was admitted to This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 78-230(h). 1
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David Grant Medical Center at Travis Air Force Base for acute appendicitis. Compl. ¶ 6.3. Plaintiff alleges that as a result of

negligent post-operative care, Witt experienced a lack of oxygen that caused severe damage to his brains and other organs and left him in a permanent vegetative state. Id. ¶ 6.4. Witt was removed

from life support and died on January 9, 2004.

Id.

On August 28, 2008, Plaintiff brought this action against Defendant for medical negligence. Docket at 1.

OPINION Rule 12(b)(1) permits a Defendant to seek dismissal of an action for lack of subject-matter jurisdiction. Defendant argues

that this Court lacks subject-matter jurisdiction because Defendant is immune from suit in this matter under the doctrine of sovereign immunity. "The [Federal Tort Claims Act] waives traditional sovereign immunity for the tortious conduct of any Government employee." Persons v. United States, 925 F.2d 292, 294 (9th Cir. 1991). However, "the Supreme Court has carved out an exception for `injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.'" v. United States, 340 U.S. 135, 146 (1950)). The Ninth Circuit has repeatedly found that injury due to medical malpractice in military hospitals is "incident to service." See, e.g., Jackson v. United States, 110 F.3d 1484, 1489 (9th Cir. 1997) (hand injury); Hata v. United States, 23 F.3d 230, 235 (9th Cir. 1994) (heart attack); Estate of McAllister v. United States, 942 F.2d 1473, 1477-79 (9th Cir. 1991) (negligent supervision of mentally ill service member); Persons, 925 F.2d at 296 2 (suicide); Id. (quoting Feres

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Atkinson v. United States, 825 F.2d 202, 206 (9th Cir. 1987) (prenatal care); Veillette v. United States, 615 F.2d 505, 507 (9th Cir. 1980)(motorcycle accident). This is true even when the See Jackson,

underlying injury did not occur during active duty. 2

110 F.3d 1484, 1489 (9th Cir. 1997) ("[W]e have held that Feres bars suits for medical malpractice even when the treatment was not for military-related injuries."). Plaintiff's reliance on cases where service members sued for medical malpractice based on care to dependent spouses and children at military hospitals is misplaced. When active duty service

members bring suit for medical malpractice based on care received by their dependants, the Feres doctrine is not implicated. The

simple fact that active duty service members can bring suit under the FTCA in some circumstances does not mean that they can bring suit when their injuries are incident to service under current precedent. See Veillette, 615 F.2d at 507 ("Although the fact that

civilians are admitted to the hospital indicates that Veillette was not treated there solely because of his status, it does not follow that Veillette's treatment there was not incident to his military service."). Plaintiff's reliance on the public policy rationale behind the Feres doctrine is also misplaced. Plaintiff states that the Court

is required to consider the public policy factors behind Feres. Although in a case cited by Plaintiff, Del Rio v. United States, 833 F.2d 282, 288 (11th Cir. 1987), the Eleventh Circuit looked to Because Plaintiff received treatment in a military hospital by virtue of the fact that he was a service member, his duty status is not relevant in determining whether his injury was incident to service. See Persons v. United States, 925 F.2d at 296; see also Veillette, 615 F.2d at 507 3
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the Feres policy rationales, the Ninth Circuit has specifically "shied away from attempts to apply these policy rationales." v. United States, 248 F.3d 863, 867 (9th Cir. 2001). Costo

Instead, the

Ninth Circuit has outlined four factors to be considered in determining whether a suit should be barred by the Feres Doctrine: 1) the place where the negligent act occurred; 2) the duty status of the plaintiff when the negligent act occurred; 3) the benefits accruing to the plaintiff because of his status as a service member; and 4) the nature of the plaintiff's activities at the time the negligent act occurred. Id. However, the purpose of applying this four factor test is to

determine whether or not the service member's activity was incident to service. Because the Ninth Circuit has repeatedly stated that

injury due to medical malpractice at a military hospital is incident to service, the Court need not go through each of the four factors. See Hata, 23 F.3d at 235 ("The Ninth Circuit has

consistently barred as `incident to service' claims arising out of medical care provided to service members in military hospitals."). Finally, Plaintiff challenges the Feres Doctrine itself, arguing that it violates the equal protection clauses of Fifth and Fourteenth Amendments and the separation of powers doctrine. Ninth Circuit has considered and rejected these arguments. Costo v. United States, 248 F.3d 863 (9th Cir. 2001). The alleged facts in the instant case are so egregious and the liability of the Defendant seems so clear that this Court did give serious consideration to Plaintiff's argument that this Court should allow this claim in spite of Feres. A 25 year old man who devoted his life to serving his country is dead through no fault of his own and his widow can not sue to recover for her loss. Instead, 4 The See

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she is limited to a fraction of the recovery she might otherwise have received because of the Feres doctrine. See United States v. Several

Johnson, 481 U.S. 681, 703 (1987) (Scalia, J. dissenting).

noted jurists and academics have raised objection to the Feres doctrine, see, e.g., Costo, 248 F.3d at 869 Ferguson, J. dissenting); Johnson, 481 U.S. at 692 (Scalia, J. dissenting), and its application to this case seems particularly unfair. However, as wrong-headed as it may seem, this Court is duty-bound to follow precedent and abide by the decisions of the Ninth Circuit and Supreme Court. The Court encourages the Ninth Circuit to consider

the Feres Doctrine en banc, especially in light of the inequitable result of its application in this case. See Costo, 248 F.3d at 869

("[W]e join the many panels of this Court that have criticized the inequitable extension of this doctrine to a range of situations that seem far removed from the doctrine's original purposes."). The Court further joins in Judge Ferguson's plea to the Supreme Court in Costo, that now is the time to revisit the Feres doctrine. Otherwise, Feres will once again have led to a result that can only be characterized as unfair and irrational. ORDER For the reasons stated above, Defendant's Motion to Dismiss is, reluctantly, GRANTED.

IT IS SO ORDERED. Dated: February 9, 2009

_____________________________ JOHN A. MENDEZ, UNITED STATES DISTRICT JUDGE

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