Metropolitan News-Enterprise


Tuesday, April 11, 2017


Page 1


Ninth Circuit Overturns Parents’ Judgment Against U.S.

District Judge Awarded $10.4 Million, Saying Air Force Medical Officials Caused Child’s Disabilities




The Ninth U.S. Circuit Court of Appeals yesterday overturned a judgment that would have required the U.S. government to pay $10.4 million to the parents of a severely disabled child born overseas to an a Air Force couple.

The panel, in an opinion by Judge Carlos Lucero, visiting from the Tenth U.S. Circuit Court of Appeals, said the government was immune because the “foreign country” exception to the Federal Tort Claims Act’s waiver of sovereign immunity applies.

The panel reversed U.S. District Judge Morrison England Jr. of the Eastern District of California, who held that because the full extent of the child’s injuries was unknown until after her family returned to the United States, the exception did not apply.

Cerebral Palsy

Master Sgt. William Kenneth Holt, and his wife Chantal Holt, filed suit after the government denied their administrative claim seeking compensation for “catastrophic neurological injuries, seizures, learning deficits, physical limitations,” and “cerebral palsy” suffered by their daughter, identified by the initials S.H.

The claim was filed in June 2006, while the family was still living in Spain. William Holt was transferred from Edwards Air Force Base in California to Air Base Rota in Spain in 2005.

Shortly after being notified of the transfer, he requested that his family—Chantal Holt had just learned she was pregnant with their third child—receive command-sponsored travel in order to join him. His superiors made the required determination that Rota had facilities capable of meeting his family’s medical needs, and travel for the family was approved.

S.H. was born at Puerto Real Hospital in Rota in May 2005. She was several weeks premature and was delivered by emergency caesarean section.

The Holts took the child to several doctors in Spain, seeking assistance regarding developmental injuries. After the family returned stateside, the child was diagnosed with tetraplegia of all four extremities, and at age two she was definitively diagnosed with cerebral palsy, which the government did not dispute was a result of her premature birth.

California Law Applied

In ruling for the plaintiffs following a bench trial, England concluded that the place where the child’s injury was “suffered” had to be determined under California law, since the allegedly negligent medical assessment was made at Edwards. Based on that determination, the district judge found, the injury was suffered stateside, because the family was living in the United States when the cerebral palsy diagnosis was made.

The judge further concluded that military doctors breached their duty of care when they concluded the family’s medical needs could be met at facilities in Rota. The doctors, he found, should have been more cautious because they knew that the couple’s two older children were born preterm and that Chantal Holt had suffered a miscarriage as well.

Lucero, in his opinion for the Ninth Circuit, said the district judge erred in failing to apply federal law to the question of where the injury was suffered. At the time Congress enacted the FTCA, he said, the governing law was set forth in The Restatement (First) of Conflict of Laws, which holds that an injury occurs at the place where bodily harm takes place, regardless of subsequent events.

The undisputed facts, the judge said, are that S.H. suffered a brain injury, and that it occurred in Spain.

The result, Lucero added, is consistent with the interpretation of the exception by other federal courts. He cited rulings that the Peace Corps was immune from suit for injuries the plaintiff sustained as a result of taking anti-malarial medication in Africa, and that wives could not sue for their economic or emotional injuries resulting from the imprisonment of their husbands in foreign countries.

Judge Andrew D. Hurwitz joined in the opinion.

Concurring Opinion

Judge Susan P. Graber concurred separately, saying the fact the Holts presented their administrative claim while still living in Spain barred the claim, because the administrative claim is necessarily presented after the cause of action arises.

Graber added:

“This would be a tragic case in any event, but the fact that it is the foreign-country exception that ultimately bars relief makes it especially tragic, as it was the alleged negligence of the United States that led to Plaintiffs’ being in a foreign country in the first place. But only Congress is in a position to provide relief to Plaintiffs and those in similar situations.”

The case of S.H. v. United States, 15-15000, was argued in the Ninth Circuit by John Samuel Koppel for the government and Steven B. Stevens for the Holts.


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