The opinion of the court was delivered by: GASCH
This is a suit for 35 million dollars in compensatory and punitive damages against the United States, various federal agencies, and eight individual defendants in their official and individual capacities. The plaintiffs, Theodore Lombard, his wife, and four children, allege that Mr. Lombard, during the course of his service in the United States Army, was exposed to radioactive substances without his knowledge or consent. As a result of this exposure, Mr. Lombard allegedly suffers various types of physical injuries, as well as somatic and genetic damage which he has passed to his children.
Mr. Lombard also alleges that after his discharge from the Army the defendants failed to warn him of the radiation exposure and its potential consequences. The case is before the Court on the defendants' motion to dismiss the complaint for lack of subject matter jurisdiction and the defendants' motion to strike the named individuals from the complaint.
A. THE GOVERNMENT DEFENDANTS.
A single legal issue, the scope of the doctrine set out in Feres v. United States, 340 U.S. 135, 71 S. Ct. 153, 95 L. Ed. 152 (1950), determines whether this case can proceed against the United States, the named federal agencies, and the named individual defendants in their representative capacities. In Feres, the Supreme Court stated that "the Government is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service." Id. at 146, 71 S. Ct. at 159.
1. Feres Bars Liability to Theodore Lombard.
Count I of the complaint alleges that the defendants' failure to protect Theodore Lombard from the radiation makes them jointly and severally liable under the FTCA for the resulting injuries. Complaint, P 38. Count II alleges similar liability under a constitutional theory. Id. PP 44-48. Both of these claims are barred by the doctrine of Feres. Any physical injury to Mr. Lombard caused by the radiation arose out of his activities incident to military service. Feres explicitly bars such actions under the FTCA. 340 U.S. at 146, 71 S. Ct. at 159; accord, e.g., Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 671, 97 S. Ct. 2054, 2057, 52 L. Ed. 2d 665 (1977); Thornwell v. United States, 471 F. Supp. 344, 347 (D.D.C.1979); Misko v. United States, 453 F. Supp. 513, 514 (D.D.C.1978). Moreover, the courts have repeatedly read Feres to bar constitutional tort claims against the government. See, e.g., Thornwell, supra, 471 F. Supp. at 348; Misko, supra, 453 F. Supp. at 516; Rotko v. Abrams, 338 F. Supp. 46, 47 (D.Conn.1971), aff'd per curiam, 455 F.2d 992 (2d Cir. 1972). Consequently, any claim against the United States for injury to Mr. Lombard during his military service in 1944-46 is barred by the doctrine of sovereign immunity, and this Court does not have subject matter jurisdiction over these claims.
The plaintiffs try to circumvent Feres by alleging that the government's failure to warn Mr. Lombard, after his discharge from military service, of the possibility and extent of his radiation-caused injuries is a separate tort. This contention seems to be based on language in Judge Richey's opinion in Thornwell :
the military may commit an intentional act and then negligently fail to protect a soldier turned civilian from the dire consequences which will flow from the original wrong. This Court holds that, under such circumstances, the injured civilian may have a valid claim against the tortfeasors. The later negligence is a separate wrong, a new act or omission occurring after civilian status is attained ....
Thornwell, supra, 471 F. Supp. at 352.
In Thornwell, the Court recognized that its theory of separate liability for a post-discharge failure to warn might lead to "the possibility that artful pleading may be employed to elevate one continuing act of negligence into separate wrongs." Thornwell, supra, 471 F. Supp. at 352. Indeed, the present case is factually distinguishable from Thornwell. In Thornwell, the original tort was "intentional," id. at 348, the drugging of the plaintiff with lysergic acid diethylamide (LSD) as a part of a covert experiment. Id. at 346. Here, on the other hand, the exposure of Mr. Lombard occurred incident to his regular military duties as "a result of the negligence" of the defendants. Complaint, PP 22, 34. This would suggest that the actions complained of are merely one continuing act of negligence. Thus, even under Judge Richey's formulation, liability would be barred by Feres.
Other courts have refused to characterize a sequence of events similar to that in this case as two separate torts. For instance, in In re "Agent Orange" Product Liability Litigation, 506 F. Supp. 762 at 779 (E.D.N.Y.1980), Judge Pratt described the government's failure to warn Vietnam veterans exposed to the defoliant Agent Orange as a single negligent act with effects that lingered after discharge. Similarly, in Reynolds v. Department of the Navy, C-2-75-427, Order, at 2 (S.D.Ohio, Feb. 8, 1976), the Court dismissed a complaint that alleged government liability for post-discharge failure to warn about radiation exposure because "any duty to warn must arise out of events which occurred during and incident to ... military service." Accord, Kelly v. United States, supra, 512 F. Supp. at 361. Because the injuries to Mr. Lombard ...