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S.H. v. United States

United States District Court, E.D. California

July 2, 2014

S.H., a minor, by her guardian ad litem Chantal Holt, WILLIAM KENNETH HOLT and CHANTAL HOLT, Plaintiffs,

As Amended July 7, 2014.

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[Copyrighted Material Omitted]

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For S. H., a minor, by her guardian ad litem, Chantal Holt, William Kenneth Holt, Chantal Holt, Plaintiffs: Erin Regina Steffin, LEAD ATTORNEY, Law Office of Erin Steffin, Scottsdale, AZ; Jeanne Anne Steffin, LEAD ATTORNEY, Law Office Of Jeanne Anne Steffin, Alhambra, CA; Martin M. Berman, Martin M. Berman, A Law Corporation, Palm Springs, CA.

For United States of America, Defendant: Gregory T. Broderick, LEAD ATTORNEY, United States Attorney's Office, Sacramento, CA.

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The following is the court's opinion and order after trial.

In this case the plaintiffs allege medical malpractice on the part of United States

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Air Force medical personnel. (Amended) Pretrial Conference Order (Final), Undisputed Facts (" Facts" ) (ECF No. 82) ¶ 1. Jurisdiction is predicated upon the Federal Tort Claims Act (" FTCA" ), 28 U.S.C. § 1346.

Plaintiff SH is a minor child who suffers from cerebral palsy. Facts ¶ ¶ 33-35. Plaintiffs' claim is that United States Air Force medical personnel committed malpractice during their treatment of plaintiff Chantal Holt - SH's mother - at Edwards Air Force Base in California (U.S.A.).

Specifically, plaintiffs assert that even though Air Force medical personnel provided care for, or were aware of Chantal's two premature deliveries, and one miscarriage, they (1) failed to warn Chantal about the added dangers she faced during her then-current pregnancy with SH, (2) failed to prepare her for those dangers, and (3) failed to caution her against traveling overseas to a facility that was not equipped to handle those dangers. Plaintiffs further assert that this malpractice was the proximate cause of SH's premature birth and resulting cerebral palsy.

The government's principal defense is that even if plaintiffs were the victims of malpractice by Air Force medical personnel in the U.S., their injury occurred in Spain - where SH was born - and therefore the case falls within the " foreign claim" exception to the FTCA, 28 U.S.C. § 2680(k), depriving this court of jurisdiction. Alternatively, the government argues that Mr. Holt's claim for emotional distress is barred by the Feres doctrine (Feres v. U.S., 340 U.S. 135, 146, 71 S.Ct. 153, 95 L.Ed. 152 (1950)). The government also asserts that its medical personnel did not commit malpractice against plaintiffs, and that there was no causation or damages for which it is liable.

For the reasons set forth below, the court finds that the foreign claim exception does not apply here, and that plaintiffs have proven their case on the merits. Accordingly, judgment will be entered in plaintiffs' favor.


A. The Law

Because the government's principal defense is jurisdictional, the court addresses it first. The Federal Tort Claims Act (" FTCA" ), 28 U.S.C. § § 1346 & 2671-80, inter alia, grants exclusive jurisdiction to the federal district courts, for civil actions asserting:

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

28 U.S.C. § 1346(b)(1). By its terms the FTCA also makes a sweeping waiver of the government's sovereign immunity in such cases. 28 U.S.C. § 2674 (" 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 individual under like circumstances" ); U.S. v. Yellow Cab Co., 340 U.S. 543, 547, 71 S.Ct. 399, 95 L.Ed. 523 (1951) (the FTCA " waives the Government's immunity from suit in sweeping language" ); Millbrook v. U.S., 569 U.S. __, 133 S.Ct. 1441, 1442, 185 L.Ed.2d 531 (2013) (FTCA " waives the Government's sovereign immunity from tort suits" ).

However, the waiver of sovereign immunity is not all-encompassing. The FTCA's waiver does not apply to " [a]ny

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claim arising in a foreign country." 28 U.S.C.A. § 2680(k); U.S. v. Spelar, 338 U.S. 217, 218, 70 S.Ct. 10, 94 L.Ed. 3 (1949) (" The Federal Tort Claims Act is inapplicable by its terms to 'any claim arising in a foreign country'" ).

The purpose of this exemption is to ensure that the United States would not be subject to tort liability as determined by the law of a foreign country:

[T]hough Congress was ready to lay aside a great portion of the sovereign's ancient and unquestioned immunity from suit, it was unwilling to subject the United States to liabilities depending upon the laws of a foreign power.

Spelar, 338 U.S. at 221; Nurse v. U.S., 226 F.3d 996, 1003 (9th Cir. 2000) (" [t]he purpose of the exception is to ensure that the United States is not exposed to excessive liability under the laws of a foreign country over which it has no control" ).

In this Circuit, and even in the Supreme Court, the " foreign law" problem was avoided simply by applying the FTCA as it was written. Specifically, liability was determined by the law of the place where the negligent act or omission occurred. See 28 U.S.C. § 1346(b)(1) (granting federal jurisdiction in cases where the United States shall be liable " under circumstances where ... a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred" ) (emphasis added); [1] Richards v. U.S., 369 U.S. 1, 9, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962) (" [i]n the Tort Claims Act Congress has expressly stated that the Government's liability is to be determined by the application of a particular law, the law of the place where the act or omission occurred" ).

Under this simple rule, an FTCA claim " arises" in the place where the negligent act or omission occurs - not necessarily in the place where the injury or damage occurs - and that is also the place whose law governs. See Cominotto v. U.S., 802 F.2d 1127, 1129-30 (9th Cir. 1986) (" [u]nder section 2680(k), a tort claim arises in the place where the negligent act or omission occurs, not necessarily at the site of the injury or the place where the negligence has its 'operative effect'" ); [2] accord, Richards, 369 U.S. at 10 (expressly rejecting the argument that " that Congress intended the words 'act or omission' to refer to the place where the negligence had its operative effect," and that therefore the law of that place should determine liability).

Under this simple rule, grounded in the language of the governing statute, when negligent or wrongful conduct occurs entirely in the United States, the foreign claim exception would not apply, since liability is governed by the law of the state where the negligence or wrongful conduct occurred, even if the damage or injury occurred in a foreign country. See, e.g., Leaf v. United States, 588 F.2d 733 (9th Cir. 1978) (section 2680(k) does not exempt U.S. from liability for negligence in this country which was alleged to have caused airplane damage in Mexico).[3]

This rule had the advantage of guaranteeing that foreign law could never be

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applied to determine the liability of the United States under the FTCA, exactly Congress's concern in enacting the foreign claim exception. That is because the rule had two parts: first, the claim arises where the negligent act or omission occurred; and second, liability was also determined by the law of the place where the negligent act or omission occurred. Therefore, if the negligence occurred in the United States, no matter where the injury occurred, liability would be determined by local law within the United States, and the foreign claim exception would not apply. Similarly, if the negligence occurred outside the United States, even if the injury occurred within the United States, liability would be determined by foreign law, and the foreign claim exception would apply.

In Sosa v. Alvarez-Machain, 542 U.S. 692, 707, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004), the Court again recognized that " [t]he application of foreign substantive law ... was ... what Congress intended to avoid by the foreign country exception." Nevertheless, Sosa, without overruling Richards, swept aside the rule - anchored in the statute and Richards - that an FTCA claim " arises" where the negligent act or omission occurs. In its place, Sosa declared that " the FTCA's foreign country exception bars all claims based on any injury suffered in a foreign country, regardless of where the tortious act or omission occurred." Sosa, 542 U.S. at 711.

However, Sosa did not change the rule that liability is determined by the place where the negligence occurred. It thus appears to have created the precise situation the Congress tried to avoid in enacting the FTCA. Specifically, if the injury is suffered in the United States, then the claim is not barred by the exception even if the negligence occurred entirely in a foreign country, and even though foreign law presumably would apply. Conversely, if the negligence occurred entirely in the United States, but the injury occurred in a foreign country, then even though U.S. law would determine liability, the claim is barred under Sosa. Sosa went on to expressly reject the argument that the exception should not apply in a situation where U.S. law would determine liability for domestic negligence resulting in injury in a foreign country. Sosa, 542 U.S. at 710-11.

Because " the FTCA's foreign country exception bars all claims based on any injury suffered in a foreign country, regardless of where the tortious act or omission occurred," Sosa, 542 U.S. at 711, this case will be barred if, as the government asserts, the complained-of injury occurred in Spain. As this court has previously determined, however, the burden of establishing that the injury occurred in Spain - and that the foreign claim exception therefore applies - lies with the government. See ECF No. 59 at 13-14 (order denying summary judgment). The court therefore turns to the evidence regarding that matter, namely, whether the government has established that plaintiffs' injuries occurred in Spain.

B. Undisputed Jurisdictional Facts.

1. Plaintiff SH was born May 12, 2005, at Puerto Real Hospital in or around Cadiz, in Southern Spain. Facts ¶ ¶ 33 & 34.

2. Plaintiff SH was born at approximately 31 weeks gestation. Facts ¶ 98.

3. Plaintiff SH exhibited normal " Apgars" blood gasses at birth. Facts ¶ 99.

4. Plaintiff SH exhibited signs of prematurity, including difficulty eating and breathing. Facts ¶ 100.

5. Plaintiff SH had to be intubated while in the hospital. Facts ¶ 101.

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6. Plaintiff SH was kept in the neonatal intensive care unit (" NICU" ) for seventeen days. Facts ¶ 102.

7. Plaintiff SH was released from Puerto Real Hospital on or about May 30th. Facts ¶ 105.

8. Plaintiff SH was evaluated at the Landstuhl Medical Center, in Germany, by Dr. L. Smith. Facts ¶ 110.

9. Plaintiff SH was evaluated by two other doctors in Spain. Facts ¶ 111.

10. Plaintiff SH underwent an Electro-encephalogram (EEG) while in Spain due to concern about seizures. Facts ¶ 112.

11. While in Spain, Plaintiff SH was prescribed anti-seizure medication. Facts ¶ 113.

12. The MRI showed that Plaintiff SH had Periventricular Leukomalacia (" PVL" ). Facts ¶ 114.[4]

13. Upon arriving back in the United States, Plaintiff SH was seen at the Medical University of South Carolina (" MUSC" ) in Charleston. Facts ¶ 122.[5]

14. SH had access to and received specialty care while in Charleston, South Carolina. Facts ¶ 115.

15. In late-2006, Plaintiff SH was found to have tetraplegia of all four extremities and other deficits. Facts ¶ 123.

16. Plaintiff SH was definitively diagnosed with cerebral palsy at the approximate age of 2 years old. Facts ¶ 116.

17. Cerebral Palsy is not a disease, but a grouping of non-progressive, non-contagious motor conditions that cause physical disability in human development. Facts ¶ 117.

18. Because of her cerebral palsy, Plaintiff SH is significantly disabled. Facts ¶ 118.

19. Plaintiff SH has undergone several surgeries as a result of her cerebral palsy. Facts ¶ 119.

20. Plaintiff SH will be disabled for life. Facts ¶ 120.

21. Plaintiff SH's premature birth is the cause of her cerebral palsy. Facts ¶ 121.

22. Plaintiff SH cannot walk without assistance. Facts ¶ 125.

23. Plaintiff SH has significant cognitive impairment. Facts ¶ 126.

24. Plaintiff SH has significant mobility impairment. Facts ¶ 127.

25. Plaintiff SH has significant vision impairment. Facts ¶ 128.

26. Plaintiff SH will not be able to have gainful employment. Facts ¶ 129.

C. Evidence Regarding Jurisdictional Facts.

The government argues that SH's injury occurred in Spain because (1) plaintiffs seek damages from " 'the day she [SH] was born,'" ECF No. 174 at 7, (2) plaintiffs' required administrative tort claim, filed while plaintiffs were still in Spain, establishes that they are seeking damages for injuries occurring in Spain, and (3) the evidence at trial shows that SH's injury occurred in Spain.

1. Damages.

The government asserts that Ms. Holt testified that she was claiming damages for SH's injury " 'from the day she [SH] was born.'" ECF No. 174 at 7. In fact, Ms.

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Holt withdrew that statement immediately upon uttering it, and instead testified that she did not know what period of time she was seeking damages for:

Q. Are you claiming damages for the time that you've had to spend taking care of [SH] in this case?
A. Yes, sir.
Q. Starting from when?
A. From the beginning.
Q. From the day she was born?
A. I would say so. Yes, sir.
Q. From the day she was born?
A. I don't know. I honestly don't know. I would have to see the thing [the Jeannie McNulty (economist) report]. I just -- since I haven't seen it, I -

TR 114. Thus, Ms. Holt gave two different answers to the question the government quotes, namely, " [f]rom the day she was born?" Although she initially answers " Yes, sir," she then immediately withdrew her answer, by stating, in response to the same, repeated, question, " I don't know. I honestly don't know." In other words, Ms. Holt was confused, and did not know what the answer to the question was, notwithstanding her prior answer, which only reflected her confusion. The court accordingly rejects the government's assertion that Ms. Holt's testimony on this issue compels the conclusion that plaintiffs' injury and resulting damages occurred in Spain.

The government next asserts that plaintiffs' economic expert, Jennie McNulty, calculated damages from when SH was born, in Spain, and concludes that the injury and resulting damages therefore arose in Spain. ECF No. 174 at 7. The government is correct that this was the stated basis for the expert's damages calculation. However, the government does not explain why this supports its conclusion that the calculation bars plaintiffs' entire claim. At most, the expert's testimony shows that plaintiffs are seeking damages beyond what they are entitled to. That is, since plaintiffs assert that the injury occurred in South Carolina, they will have some difficulty in explaining why their damages should be calculated from a time that precedes their presence in South Carolina. However, there is no basis for this court to conclude that even if plaintiffs are seeking more damages than they are entitled to, that they are therefore entitled to no damages whatever. The court accordingly rejects the government's assertion that McNulty's damages calculation establishes that plaintiffs' claim " arose in Spain and is barred by § 2680(k)." See ECF No. 174 at 7.

2. The Administrative Claim.

The government next asserts that plaintiffs' lawsuit is barred by the foreign claim exception because the administrative claim relating to this lawsuit was " signed and submitted" on or about June 9, 2006, while the plaintiffs were still living in Spain. ECF No. 174 at 8. The administrative claim sought money damages for, among other things, " catastrophic neurological injuries," " seizures," and " cerebral palsy." See Exh. 3T (admitted RT 262) at second (unnumbered) page. The claim requested $100 million in personal injury damages. Id., at first page. That administrative claim is for the damage on which this case is now based. TR 664 (Ms. Holt testimony).

The government therefore argues that plaintiffs have submitted a claim for an injury arising in Spain, and is therefore barred by the foreign claim exception, a jurisdictional bar. It goes on to argue that if plaintiffs are seeking damages for a claim that arose in South Carolina, they failed to file an administrative claim for it, and therefore are jurisdictionally barred

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by their failure to exhaust their administrative remedies.[6]

Plaintiffs do not agree that the claim form establishes that the injury occurred in Spain. Rather, they assert that the claim forms were prepared by plaintiffs' counsel in an attempt to preserve plaintiffs' rights, including making sure that they did not lose their claims to the statute of limitations. Since the presentation of an administrative claim is jurisdictional, it is plaintiffs' burden to establish that they met the administrative claim requirement of the FTCA. See Cadwalder v. U.S., 45 F.3d 297, 300-01 (9th Cir. 1995).

The FTCA waives the government's immunity for tort claims only if the plaintiff has first " presented" the claim to the appropriate federal agency and been turned down. 28 U.S.C. § 2675(a). This court is required to interpret the Section 2675(a) waiver of federal sovereign immunity " strictly."

" [T]he administrative claim requirements of Section 2675(a) are jurisdictional in nature, and thus must be strictly adhered to. This is particularly so since the FTCA waives sovereign immunity. Any such waiver must be strictly construed in favor of the United States. Section 2675(a) establishes explicit prerequisites to the filing of suit against the Government in district court. It admits of no exceptions. Given the clarity of the statutory language, we cannot enlarge that consent to be sued which the Government, through Congress, has undertaken so carefully to limit."

Cadwalder, 45 F.3d at 300-01 (quoting Jerves v. U.S., 966 F.2d 517, 521 (9th Cir. 1992)).

It is undisputed that plaintiffs " presented" their FTCA claim to the Air Force in June 2006, while they were still living in Spain. First Amended Complaint (ECF No. 6) ¶ 4; Answer ¶ 4; RT 252 (Ms. Holt testimony; plaintiffs were in Spain " at least through June" of 2006). The government's argument is that this fact, standing alone, establishes that SH's injury occurred in Spain. However, the government cites no case for this proposition, and the court cannot agree with it.

The FTCA administrative claim is intended to enable the government to make its own investigation, and to alert it to a request for a sum certain in damages. See Cadwalder, 45 F.3d at 301. The Holts' administrative claim does just that in this case. It alerts the Air Force that plaintiffs were claiming negligence by Air Force medical personnel at Edwards Air Force base, by, generally speaking, failing to warn and prepare Ms. Holt for the dangers her fourth pregnancy presented, given her two prior premature births and one miscarriage. It further alerts the Air Force that this alleged negligence resulted in $100 million in damages to the plaintiffs as the direct and proximate result of the premature birth. It further alerts the Air Force of all the possible consequences of its alleged negligence, including " cerebral palsy," and the sum certain that plaintiffs were claiming.

The government seems to be arguing that the administrative claim form is an admission by plaintiffs that the injuries

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identified in the form had already occurred in Spain, since the form was sworn to by plaintiffs, and was prepared with the assistance of counsel. At trial, counsel for the government pointed out to Ms. Holt that there could be a " civil penalty" attached to signing the form falsely. TR 263.

However, this form, Exhibit 3T, is not what the government says it is. Exhibit 3T is an administrative claim form. It does require the claimant to set forth the " basis of claim," in other words:

state in detail the known facts and circumstances attending the ... injury, ... identifying persons ... involved, the place of occurrence and the cause thereof.

Exh. 3T ¶ 8. It also requires the claimant to

state the nature and extent of each injury ... which forms the basis of the claim.

Exh. 3T ¶ 10.

Contrary to the clear implication of the government's assertion however, the certification portion of the document does not require the claimant to swear that every identified injury was known to exist at the time of signing. Rather, it states only:

I certify that the amount of claim covers only damages and injuries caused by the incident above and agree to accept said amount in full satisfaction and final settlement of this claim.

Exh. 3T ¶ 13a. In other words, the Holts' signature signaled only their agreement to limit their damage claim to whatever was included on the claim form. Thus, even if cerebral palsy had not yet occurred, the parents had to include a claim for it, or they would be forever barred from seeking damages if or when it did occur, so long as it arose from the negligence identified in the form. Indeed, in this specific case, the parents - and their counsel who is the person who actually completed this form (TR 264) - must reasonably have believed that they were required to list cerebral palsy on the claim form, since one doctor had told them that in his view, SH already had cerebral palsy. Plaintiffs now assert that this information, from Dr. Shales, was erroneous, as discussed below, but they could hardly have been expected to ignore it when filling out their administrative claim form. Failure to list an injury that had already been identified by their doctor - even if he did so in error -- would possibly have forever barred the plaintiffs from seeking damages for cerebral palsy after it actually did occur, so long as it arose from the negligence alleged in the claim form.

Moreover, even if the parents did believe that SH had cerebral palsy in Spain, and stated so on the claim form, that is not an " admission" that SH had cerebral palsy. Whether SH had cerebral palsy in Spain is a medical question which this court will resolve based upon the medical evidence adduced at trial, not based upon whatever belief (mistaken or not) the parents may have had at the time they signed the claim form.

Plaintiffs' form accordingly tells us nothing when it comes to the foreign claim exception. What it does tell us is that plaintiffs listed every injury that their lawyer conceived could possibly result from the negligence alleged in the form. It does not admit that those injuries have already occurred, nor does it admit that the injuries occurred in Spain. The claim form, and the plaintiffs' signature thereon, only serves to give the government notice of the alleged negligence, the possible injuries and the claimed monetary damages, so that the government can investigate, and that is all. Having fulfilled its statutory purpose, the administrative claim does not resurrect itself at trial to trap unwary

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litigants into making admissions about where an injury occurred for purposes of the ...

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