Indiana Law Review The Feres Doctrine: Should It Apply to Atomic Veterans' Qiildren? I. Introduction Although the United States witnessed the advent of atomic war- fare in World War II, there was little opportunity during the war to study the effects of nuclear warfare on troop performance. During the 1950's, therefore, the Department of Defense conducted a series of "atomic war games" to determine how troops would perform in the event of a nuclear war.^ The servicemen who participated in the war games, now known as atomic veterans, were exposed to high levels of harmful radiation without the benefit of protective gear or monitoring devices.^ The government never warned the servicemen of the possible harmful effects the radiation exposure could have on the health of their children. Instead, the government stressed that "[m]en exposed to radiation can have normal, healthy children."^ The converse of this statement became painfully apparent to many serv- icemen when their children were born with severe radiation-induced birth defects. In recent years, the atomic veterans' children have sought ^See Favish, Radiation Injury and the Atomic Veteran: Shifting the Burden of Proof on Factual Causation, 32 Hastings L.J. 933, 934 (1981). The war games were not the only source of radiation exposure. Other servicemen were exposed to radiation in con- nection with the government's development of atomic weapons. See infra note 71. ^Favish, supra note 1, at 949-52. ^Id. at 954 (quoting Infantry School Quarterly, Oct., 1955, at 11). The extremeness of the government's actions has been recognized by at least one lower federal court. "These allegations charge a violation of human rights on a massive scale. The plaintiffs seek to prove, and we must at this state assume that they can, that civilian and military officials of the government, acting without legal authority and with no sufficient legitimate military or other purpose, con- ducted a human experiment upon soldiers subject to their control, without their knowledge, permission or consent, by exposing them to radiation which those officials knew to be dangerous [sic] Indeed the complaint alleges conduct which would violate the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the Geneva Convention, the Declaration on the Protection of all Per- sons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the Nuremburg Code. The international con- census against involuntary human experimentation is clear. A fortiori the conduct charged, if it occurred, was in violation of the Constitution and laws of the United States and of the state where it occurred or where its effects were felt." Hinkie v. United States, 715 F.2d 96, 98 n.3 (3d Cir. 1983) (quoting Jaffee v. United States, 663 F.2d 1226, 1248-50 (3d Cir. 1981) (Gibbons, J., dissenting)). 753 754 INDIANA LAW REVIEW [Vol. 16:753 recovery from the government for their injuries by bringing actions under the Federal Tort Claims Act (FTCA)/ The major issue in this type of litigation is whether these children have any right to actions under the FTCA for the injuries they suffered due to their fathers' radiation exposure.^ The FTCA, passed by Congress in 1946, waived the government's immunity from tort actions brought against it by private citizens.* Accompanying the waiver of immunity were a number of exceptions,^ two of which applied directly to servicemen.® In the 1950 case of Feres v. United States,^ the United States Supreme Court interpreted these two FTCA exceptions as barring actions brought by servicemen for injuries that were incident to their serv- ice in the armed forces.^" Twenty-seven years later in Stencel Aero Engineering Corp. v. United States,^^ the Court extended this rule, known as the Feres doctrine, to preclude recovery by third parties whose injuries were derivative of a serviceman's nonactionable injuries.^^ Since the Stencel decision, a number of lower federal courts have struggled with the proper application of the Feres doctrine to children of servicemen exposed to radiation while on active military duty.^^ A classic example of this struggle is found in Hinkie v. United States}^ In Hinkiey the United States District Court for the Eastern District of Pennsylvania concluded that a proper application of the factors outlined in the Stencel decision would permit the servicemen's children to bring actions under the FTCA for their radiation induced injuries.^^ ^28 U.S.C. §§ 1291, 1346, 1402, 1504, 2110, 2401, 2402, 2411, 2412, 26T1-2680 (1976) [hereinafter referred to as FTCA]. ^See Hinkie v. United States, 715 F.2d 96 (3d Cir. 1983); Lombard v. United States, 690 F.2d 215 (D.C. Cir. 1982); Monaco v. United States, 661 F.2d 129 (9th Cir. 1981), cert denied, 456 U.S. 989 (1982). «28 U.S.C. § 1346(b) (1976). Ud. § 2680. Ud. § 2680(j), (k). The statutory language excludes: "(j) Any claim arising out of combatant activities of the military or naval forces, or the Coast Guard, during time of war. (k) Any claim arising in a foreign country." «340 U.S. 135 (1950). ''Id. at 146. "431 U.S. 666 (1977). 'Ud. at 674. For general information on the doctrine, see Jacoby, The Feres Doc- trine, 24 Hastings L.J. 1281 (1973); Note, The Effect of the Feres Doctrine on Tort Ac- tions Against the United States by Family Members of Servicemen, 50 Fordham L. Rev. 1241 (1982); Note, From Feres to Stencel: Should Military Personnel Have Access to FTCA Recovery?, 77 Mich. L. Rev. 1099 (1979). ''See, e.g., Hinkie v. United States, 715 F.2d 96 (3d Cir. 1983); Lombard v. United States, 690 F.2d 215 (D.C. Cir. 1982); Monaco v. United States, 661 F.2d 129 (9th Cir. 1981), cert, denied, 456 U.S. 989 (1982). "524 F. Supp. 277 (E.D. Pa. 1981), rev'd, 715 F.2d 96 (3d Cir. 1983). "524 F. Supp. at 285. 1983] ATOMIC VETERANS' CHILDREN 755 However, the Third Circuit Court of Appeals reluctantly reversed the district court opinion on the basis that the Feres doctrine's protec- tion of military discipline barred such actions.^^ Other courts address- ing this issue have reached the same result as the Third Circuit Court of Appeals in Hinkie}'^ While there appears to be no conflict among the circuit courts as to the application of the Feres doctrine to servicemen's children, the Supreme Court has never specifically addressed the issue. Until either the Supreme Court or Congress takes some type of action to deal with the problems of atomic veterans' children, the issue will remain an important and vital one. This Note examines the propriety of extending the Feres doctrine to preclude atomic veterans' children from recovering for birth defects caused by their fathers' exposure to radiation during military service and suggests that the majority of lower federal courts that have dealt with this issue have not taken the proper approach. The application of the Feres doctrine to third parties is a judicial expansion of the FTCA exceptions. Therefore, courts should carefully review the policies and rationales underlying the Feres doctrine before expand- ing the doctrine to prohibit actions by the atomic veterans' children. When such an examination occurs, as in the district court opinion in Hinkiey it leads to the conclusion that the doctrine should not be ex- tended to preclude FTCA actions by the atomic veterans' children. This Note examines the various theories that the children could assert and concludes that even if courts allow the children a right of action under the FTCA, the burden of proof the children must meet is likely to create a substantial bar to recovery. Therefore, this Note suggests that Congress should consider creating a compensation fund that is available to atomic veterans' children upon a minimal showing of causa- tion, unless the government can prove that its actions did not cause the birth defects. In lieu of this specific legislation. Congress should consider redrafting the FTCA military exceptions so that servicemen's families have the right to bring actions against the government for ^«715 F.2d 96, 98-99 (3d Cir. 1983). This focus on the effects such actions would have on military discipline is understandable in light of Chappell v. Wallace, 103 S. Ct. 2362 (1983). In Chappell, the Court determined that the Feres doctrine was a valid doctrine in light of "the need for unhesitating and decisive action by military officers and equally disciplined responses by enlisted personnel." Id. at 2367. However, Chap- pell dealt with a situation in which five enlisted men were seeking damages, declaratory judgment, and injunctive relief against several officers on a combat naval vessel. Thus, the Court's concern with discipline in that particular circumstance is understandable. The Court also noted that the servicemen involved had administrative remedies available to them under the Uniform Code of Military Justice. Id. at 2366. "See, e.g., Mondelli v. United States, 711 F.2d 567 (3d Cir. 1983); Lombard v. United States, 690 F.2d 215 (D.C. Cir. 1982); Monaco v. United States, 661 F.2d 129 (9th Cir. 1981), cert, denied, 456 U.S. 989 (1982). 756 INDIANA LAW REVIEW [Vol. 16:753 physical injuries they sustain due to the government's negligence, even when those injuries are derivative of the servicemen's injuries. II. BACKGROUND: FROM BROOKS TO STENCEL The doctrine of sovereign immunity developed from the ancient notion that "the King can do no wrong" and that it was contrary to notions of sovereignty to allow a King to be sued in his own courts.^* The doctrine became embodied in American law under the rationale that "there [could] be no legal right as against the authority that makes the law on which the right depends."^® In 1946, Congress passed the Federal Tort Claims Act^° to mitigate the hardships created by sovereign immunity and to provide citizens injured by government activities a forum in which they could seek recovery for their injuries.^^ The FTCA requires that actions against the government be brought in the federal courts but provides that liability be determined under the local law of the place where the act giving rise to the injury occurred.^^ In waiving immunity. Congress carved out certain exceptions where an injured party would not have a right of action against the government.^^ Two of these exceptions have been deemed to apply directly to servicemen and involve claims that arise from combat duty or in a foreign country.^'' The legislative intent behind these two ex- ceptions is, at best, ambiguous because there is no legislative history available for review.^^ As a result, the courts have little to guide them in interpreting and applying the servicemen's exceptions. Three years after the passage of the FTCA, the Supreme Court '*W. Prosser, Handbook of the Law of Torts 970 (4th ed. 1971); see also Note, The Federal Tort Claims Act: A Catcse of Action for Servicemen, 14 Val. U.L. Rev. 527 (1980). ^'Kawananakoa v. Polyblank, 205 U.S. 349, 353 (1907). ^"See supra note 4, 2^H.R. Rep. No. 1287, 78th Cong., 1st Sess. 2 (1946). The hardships created by sovereign immunity were in the nature of remediless injuries due to the lack of a forum in which to seek recovery. See Note, supra note 18, at 531. 2^28 U.S.C. § 1346(b) (1976). ''Id. § 2680. ''Id. § 2680(j), (k). See supra note 8. 'Teres v. United States, 340 U.S. 135, 138 (1950). The Court in Feres did, however, interpret the legislature's intent as denying servicemen the right to action. The Court reasoned that because the FTCA required that state law be applied, the situs of the servicemen's injury would dictate their right to recovery. Because the law of the states varied, recovery would be non-uniform which indicated an irrational plan of recovery. In addition, the Court noted that the federal character of the relationship between servicemen and the government required that federal law govern rather than whatever state law might be applicable. Because no federal law recognized recovery by ser- vicemen, their actions could not be pursued in state courts that might allow recovery. Id. at 143-44. 1983] ATOMIC VETERANS' CHILDREN 757 decided the case of Brooks v. United States.^ In Brooks, two servicemen were on furlough when a negligently operated Army truck struck their private car. One serviceman was killed and the other sustained serious injuries. The Court allowed recovery, holding that the FTCA excep- tions relating to servicemen did not apply in this case because the servicemen's injuries were not incidental to their service in the armed forces.^^ The Court did not address the application of the exceptions to servicemen who were not on leave, but merely stated that "[w]ere the accident incident to . . . Brooks' service, a wholly different case would be presented."^ One year later the Court had the opportunity to address this very situation in Feres v. United States}^ In Feres, the Court examined the issue of whether servicemen on active duty and not on furlough could bring suit under the FTCA for injuries sustained due to the negligence of other members of the armed forces.^" The Court first found that the servicemen's injuries were incident to their service.^^ It is interesting to note that, although the Court stated the injuries were incident to service, it never ex- plained why. The Court only commented that the servicemen were on active duty. The Court's assumption seemed to be that being on active duty and not on leave constituted "incident to service."^^ After determining that the injuries sustained were incident to service, the Court interpreted the two FTCA exceptions applicable ^^337 U.S. 49 (1949). "/c^. at 54. The Court of Appeals for the Fourth Circuit had indicated that the servicemen were "on leave or furlough, engaged in their private concerns and not on any business connected with their military service." 169 F.2d 840, 841 (1948). Therefore, the Court deemed the injuries not to be incident to service. 337 U.S. at 54. In its analysis, the Court noted that many previous tort claims bills had been in- troduced into Congress between 1925 and 1935 and all but two had contained excep- tions denying recovery to servicemen. The Court reasoned that because the FTCA omitted these general exceptions and included specific exceptions. Congress could not have intended that all claims by servicemen be excluded. Id. at 51. 2«337 U.S. at 52. ^^340 U.S. 135 (1950). Feres was a consolidation of three cases, Feres v. United States, Jefferson v. United States, and United States v. Griggs. The Feres case involved an action brought against the government for the negligent death of a serviceman who died in a barracks fire. Jefferson involved a negligence action against the govern- ment brought by a discharged serviceman who had had abdominal surgery while in the service. Eight months after the initial surgery and after his discharge, the plain- tiff was operated on again. During the second surgery a 30-by-18 inch towel, marked "Medical Department U.S. Army," was discovered and removed from the plaintiffs stomach. The Griggs case was also a negligence action and alleged the serviceman had died while on active duty because of "negligent and unskillful medical treatment by army surgeons." Id. at 136-37. ''Id. at 138. ''Id. ''Id. 758 INDIANA LAW REVIEW [Vol. 16:753 to servicemen to mean that "the Government is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or in the course of activity incident to service."^^ In reaching this conclusion, the Court, relying on United States v. Stand- ard OiU^^ determined that a federal relationship existed between the servicemen and the government and that federal law should govern this relationship.^^ In Standard Oil, the Court had determined that a federal relationship existed when federal policy, affecting the govern- ment's legal interests and relations, was involved.^^ Specifically, the Court noted that the government-soldier relationship was "distinctively and exclusively a creation of federal law" and there was "no good reason" why the government's rights and liability should depend on various state rulings.^' Because of the federal character of the rela- tionship and the anomalous results that would occur if state law were applied, the Court concluded that federal law, not state law, should apply where the government-soldier relationship existed.^* Applying this rationale in Feres, the Court determined that no action for servicemen existed under the FTCA because no federal law recognized the type of recovery the servicemen sought, and because the FTCA was intended only to waive immunity from recognized causes of action and not to create any new liabilities for the government.^* The Court also suggested that the existence of the Veterans' Benefit Act*° indicated that Congress intended to deny recovery under the FTCA for injuries incident to military service." This denial of servicemen's rights to bring tort actions under the FTCA against the government for service-related injuries is now known as the Feres doctrine. Four years after Feres, the Supreme Court qualified the applica- tion of the Feres doctrine in United States v. Brown.^^ In Brown, a ^^Id. at 146. *'332 U.S. 301 (1947). In Standard Oil, the government was seeking indemnifica- tion from a third-party tort-feasor for injuries to a serviceman. ^^340 U.S. at 143-44. See supra note 25. 3«332 U.S. at 309. 'Ud. at 310. ^'Id. at 310-11. ^'340 U.S. at 142-44. In applying the Standard Oil rationale, the Court in Feres did not make any policy distinctions between denying the federal government indem- nification from a third party for injuries to a serviceman, see supra note 36, and deny- ing a serviceman recovery from the federal government. A consideration of the distinc- tions may have led to a different result in Feres. ^''The pertinent provisions of the Veterans' Benefit Act for this Note may be found at: 38 U.S.C. §§ 361^62 (1976) (compensation for service); id. §§ 601-654 (con- nected death, hospital, domiciliary, and medical care); id. §§ 701-788 (life insurance); 10 U.S.C. §§ 1071-1087 (1976) (insurance for retired military personnel). "340 U.S. at 144. «348 U.S. 110 (1954). 1983] ATOMIC VETERANS' CHILDREN 759 serviceman had been discharged from the service because of a knee injury incurred while he was on active duty. Six years after his discharge, Brown went to a Veterans Administration hospital to have surgery on his knee. During the operation a defective tourniquet was used, and Brown suffered permanent injury to the nerves in his leg. Brown received increased compensation under the Veterans' Benefit Act, but he also brought an action against the government under the FTCA. The district court dismissed his case on the basis that the Veterans' Benefit Act was his exclusive remedy .'^^ The court of ap- peals reversed, and the Supreme Court granted certiorari because it was unclear whether Brooks v. United States^^ or Feres v. United States*^ should apply ."^ The Court in Brown held that Brooks, not Feres, was controlling because Brown was not on active duty nor subject to military discipline when the negligent act giving rise to the injury occurred.''^ The Court determined that allowing the cause of action would not affect military discipline, because the special relationship between the soldier and his superiors no longer existed.'** The majority rejected the "but for" rationale urged by the dissent^^ and permitted Brown to bring his action against the government under the FTCA.^° In allowing the suit, the Court looked at the time the government's negligence occurred, not the time of the original injury which was incident to service and thus would have barred recovery. In 1977, the Supreme Court expanded the Feres doctrine, in Stencel Aero Engineering Corp. v. United States,^^ to preclude recovery by third parties when the claim arose because of a serviceman's injury. In Stencel, the Supreme Court denied recovery to a third-party manufacturer seeking indemnity from the United States for damages it may have had to pay to a serviceman for a service-related injury. The serviceman was injured when the egress life support system of his fighter aircraft, which had been manufactured by the third party, malfunctioned.^^ In denying recovery, the Supreme Court stressed *Ud. at 110-11. "337 U.S. 49 (1949). *^340 U.S. 135 (1950). "348 U.S. at 110-11. *Ud. at 112. *'Id. *^Id. at 114 (Black, J., dissenting). Justice Black argued that "but for" the veteran's military service, the injury would not have occurred; therefore Feres should bar recovery. Id. ""Id. at 113. "431 U.S. 666 (1977). ^^The serviceman sued Stencel as the manufacturer of the ejection system and Stencel cross-claimed against the United States. Stencel charged that any malfunction was due to faulty "specifications, requirements, and components provided by the United States or other persons under contract with the United States." Id. at 668. 760 INDIANA LAW REVIEW [Vol. 16:753 three factors. First, the Court looked to the distinctively federal character of the relationship between the United States and its servicemen.^^ Although federal law governs this relationship, liability under the FTCA is determined by state law.^^ Therefore, the Court determined that the government's liability for servicemen's injuries would depend on where the servicemen were stationed when their injuries occurred, and government liability should not depend on such a fortuitous factor.^^ The second factor concerned the Veterans' Benefit Act's establishment of "a statutory 'no fault' compensation scheme which provided generous pensions to injured servicemen,"^^ and created *'an upper limit of liability for the Government as to service- connected injuries."^^ Finally, the Court cited "[t]he peculiar and special relationship of the soldier to his superiors, the effects of the maintenance of such suits on dis- cipline, and the extreme results that might obtain if suits under the Tort Claims Act were allowed for negligent orders given or negligent acts committed in the course of military duty."^« After identifying these three factors as the underlying rationales of the Feres doctrine, the Court applied the factors to Stencel's third- party claim. The Court in Stencel established that the relationship between the government and Stencel, as a supplier of ordnance, was "distinctively federal in character."^^ Therefore, the same rationale applied to Stencel as to the servicemen, and federal law, not the state law of the situs of the injury, should apply when determining whether an action could be brought under the FTCA.^ The Court went on to reason that where ^^Id. at 671. The federal character of the government-soldier relationship and the existence of the Veterans' Benefit Act were both factors the Supreme Court relied on when it denied recovery in Feres. 340 U.S. at 143-44. ^See supra text accompanying note 22. ^^431 U.S. at 671-72. See supra text accompanying notes 35-39. ^431 U.S. at 671. "/d. at 673. The court in Stencel relied on Feres in determining that the Veterans' Benefit Act was a factor to be considered in granting or denying servicemen the right to action under the FTCA. Id. at 671. The Veterans' Benefit Act provides no compensation to the servicemen's children for their birth defects. 38 U.S.C. §§ 314-315, 331-337, 611-613 (1976). While some of these sections do allow dependents to receive certain types of medical benefits, or allow the veteran to receive increased benefits, none of them grant the dependents any compensation based on their own injuries. All recovery is based on the severity of the serviceman's injury. See at §§ 314-315. Also, before the veteran collects addi- tional benefits for his dependents, he must have a disability rating of "not less than 50 per centum." Id. § 335. ^«431 U.S. at 671-72 (quoting United States v. Brown, 348 U.S. 110, 112 (1954)). ^M31 U.S. at 672. ^"Id. See supra text accompanying notes 38-39, 55. 1983] ATOMIC VETERANS' CHILDREN 761 a suit concerned an injury sustained by a soldier while on active duty, the effect the action would have on military discipline would be the same regardless of whether the suit was brought by the soldier or by a third party.^^ The Court stated that, in either case, the trial would involve the second-guessing of military orders and "would often re- quire members of the Armed Services to testify in court as to each other's decisions and actions."^^ The fact that the third party could not recover under the Veterans' Benefit Act was considered, but not accepted, as a controlling factor.^^ Instead, the Court stated that the Veterans' Benefit Act was designed to provide an upper limit to the government's liability for service- related injuries, and allowing the third-party claim would circumvent this "essential [feature] of the Veterans' Benefit Act."^^ It was deter- mined that Stencel had no basis to claim this result was unfair because its relation with the United States was based on a commercial contract.^^ In addition, Stencel had sufficient notice of the risk that such third-party actions might be barred by Feres, and Stencel could have considered this risk when it negotiated its contract with the government.^® The Court concluded that because all three factors ap- plied to Stencel, its third-party action was barred by the Feres doctrine.®^ The Court's broad interpretation that the FTCA exceptions exclude servicemen's claims which are incident to service has led to a general denial of recovery to third parties when their action is based on a serviceman's nonactionable claim. However, the third-party claim in Stencel was not summarily dismissed without consideration of the relationship between the government and Stencel or an ap- plication of the factors underlying the Feres doctrine. Unfortunately, this same consideration has not been given to the claims of atomic veterans' children. III. The CHILDREN'S Right to Tort Actions Under the FTCA A. The Lower Courts' Reasoning for Denial of Recovery The United States Supreme Court has not yet determined whether the Feres doctrine, as extended by Stencel, not only precludes the serv- icemen's claims for "incident to service" injuries, but also any derivative claims brought by the servicemen's children. Several federal circuit courts, however, have addressed this issue and have determined that servicemen's children are barred from bringing suit under the "431 U.S. at 673. ''Id. 'Ud. at 673. ''Id. ''Id. at 674. "Id. at 674 n.8. "Id. at 674. 762 INDIANA LAW REVIEW [Vol. 16:753 FTCA.®* The analysis that the majority of the federal courts have used is to first hold that the veterans are not entitled to recover under the FTCA because their injuries are incident to service. Then, the courts note that the children's injuries are derivative of the veterans' injuries and therefore the children have no right to bring an action under the FTCA.*® In reaching this conclusion, the courts never di- rectly apply the rationales underlying the Feres doctrine to the children, but rather bar the children's actions on the basis of the ra- tionales' application to the servicemen. Lombard v. United States^^ is one of the most recent decisions af- firming the view that the Feres doctrine bars children from bringing tort actions for birth defects allegedly caused by their fathers' ex- posure to radiation while in active military service.^^ In Lombard, the serviceman had been exposed to radioactive materials between 1944 and 1946. After leaving the service, he had four children. All four children suffered "moderate to severe congenital defects as a direct consequence" of the father's chromosomal injuries from the radiation exposure.^^ Before deciding the main issues presented, the Lombard court examined the Feres decision and its progeny. The court noted that although the FTCA was a waiver of government immunity, the Supreme Court had determined that the FTCA did not waive sovereign immunity when servicemen brought actions for service- related injuries.^^ The court then noted three factors which underlie the Feres doctrine.^* These three factors were outlined in Stencel Aero r Engineering Corp. v. United States''^ and generally are referred to as the Stencel factors. The three Stencel factors, as noted earlier, are thd distinctly ""^See, e.g., Hinkie v. United States, 715 F.2d 96 (3d Cir. 1983); Lombard v. United States, 690 F2d 215 (D.C. Cir. 1982); Monaco v. United States, 661 F.2d 129 (9th Cir. 1981), cert, denied, 456 U.S. 989 (1982). ""^See Monaco v. United States, 661 F.2d 129 (9th Cir. 1981), ceH. denied, 456 U.S. 989 (1982); In re "Agent Orange" Product Liability Litigation, 506 F. Supp. 762 (E.D.N.Y. 1980). ^"690 F.2d 215 (D.C. Cir. 1982). ^^It should be noted that the radiation exposure in this instance was not due to participation in nuclear war games but rather resulted from Lombard's participa- tion in the "Manhattan Project." Id. at 216. The "Manhattan Project" was a research project aimed at the development of the world's first atomic weapon. Monaco v. United States, 661 F.2d 129, 130 (9th Cir. 1981), cert, denied, 456 U.S. 989 (1982). ^^690 F.2d at 228 (Ginsburg, J., concurring in part and dissenting in part). "690 F.2d at 218. See supra text accompanying note 33. ^"690 F.2d at 218-19. 'M31 U.S. 666, 671 (1977). The Lombard court actually does not refer to the three factors as derived from Stencel, but rather cites various sources for the factors. 690 F.2d at 219 (citing Hatzlachh Supply Co. v. United States, 444 U.S. 460 (1980); Stencel Aero Engineering Corp. v. United States, 431 U.S. 666 (1977); United States v. Muniz, 374 U.S. 150 (1963); United States v. Brown, 348 U.S. 110 (1954); Jaffee v. United States, 663 F.2d 1226 (3d Cir. 1981) (en banc)). However, because Stencel draws the three fac- 1983] ATOMIC VETERANS' CHILDREN 763 federal character of the relationship between the government and the members of its armed forces, the uniform system of compensation pro- vided by Congress in the Veterans' Benefit Act, and the harmful ef- fects that servicemen's tort actions would have on military discipline.'® The Lombard court directly applied these factors to the veteran, but only indirectly applied them to the children." The court determined that because Lombard's injury was incident to service and because the Stencel factors were applicable in this situation, the veteran was barred from suit under the FTCA.'® After making this determination, the court turned to the children's claims and was primarily concerned with whether the children's injuries were derivative of their father's in-service injury. The court used the "genesis" test to conclude that the children's injuries were derived from the father's "incident to serv- ice injury."'^ The "genesis" test, propounded in Monaco v. United States,^^ focuses on when the negligent act causing the injury occurred, not the point when the injury actually happened or appeared.®^ The Monaco court determined that the negligent act, not the injury, was the proper focal point when dealing with injuries to servicemen's children.®^ In Monaco, a veteran who had been exposed to radiation during active service®^ later had a daughter born with a severe birth defect because of the genetic change that the radiation exposure had caused in her father.®* The Monaco court reasoned that, because the daughter's in- jury was derivative of the negligent act to her father and was not tors together, this Note will focus on the Stencel decision and its reasoning supporting the factors. ''^See supra notes 51-67 and accompanying text. "690 F.2d at 221. ''Id. ''Id. at 223. «'661 F.2d 129 (9th Cir. 1981), cert, denied, 456 U.S. 989 (1982). The "genesis" test was originally formulated in Monaco v. United States, No. 79-0860 (N.D. Cal. Nov. 2, 1979), and then was picked up by the District Court for the Eastern District of New York in In re "Agent Orange" Product Liability Litigation, 506 F. Supp. 762, 781 (E.D.N.Y. 1980). Then in Monaco, the United States Court of Appeals for the Ninth Circuit reapplied the test in affirming the district court decision. 661 F.2d at 133. It is also interesting to note that the circuit court in Monaco cited the In re Agent Orange decision in support of its decision to deny Monaco's daughter the right to sue for her injuries. Id. at 134. «^661 F.2d at 133. ''Id. at 132-33. ^In this case the radiation exposure occurred while Monaco was sitting on bleachers above a laboratory in which research for the development of the first atomic weapon was being conducted. Monaco was never apprised of his exposure to radiation until 1971 when he was informed that he had radiation-induced cancer of the colon. Id. at 130. '*Id. Denise was born with an arteriovenous anomaly. An arteriovenous anomaly is a congenital defect located in the brain consisting of tangled masses of intercon- nected arteries and veins. Harvey, Johns, Owens, & Ross, The Principles and Practice 764 INDIANA LAW REVIEW [Vol. 16:753 a separate and distinct injury, the determinative injury in deciding whether the child had a right of action would be the genetic change in her father.®^ Because the genetic change presumably resulted from a negligent act that occurred while the serviceman was on active duty, the injury was incident to service and recovery was precluded by the Feres doctrine.*^ In reaching its conclusion, the Monaco court relied on United States V. Brown^'^ which had focused on the time the negligent act occurred to find that the serviceman's injury was not incident to service and therefore recovery under the FTCA was permissible. It is ironic that the Court's focus on the negligent act that allowed recovering in Brown,^^ precluded the children from recovering in Monaco because the "genesis" of their injuries related to their father's active service days. Thus, what had been an expansion device for recovery in Brown became a narrowing device in Monaco. This anomaly is even more apparent when it is remembered that the Monaco children, like the veteran in Brown, were not subject to military discipline, but unlike the veteran, were denied recovery. The Lombard court adopted the Monaco reasoning when it held that the Lombard children's suit was barred by the Feres doctrine.*^ The court determined that the Feres doctrine barred Lombard's recovery under the FTCA; that the children's injuries were derivative of their father's injuries; and therefore, under the genesis test, the Feres doctrine also barred the children from recovering under the FTCA.®° Although this reasoning appears logical at first glance, it is overly simplistic and does not adequately resolve the issues involved in these cases. Therefore, this form of analysis should not be used to bar tort actions by the atomic veterans' children. B. The Flaw in the Lower Courts' Reasoning The flaw in the Lombard court's reasoning and in the reasoning of the other circuit courts that have barred recovery by children of atomic veterans under the FTCA involves the courts' failure to prop- erly differentiate between two lines of cases dealing with tort recovery by family members of servicemen. The first line of cases involves OF Medicine 1523 (19th ed. 1976). The mass had resulted in "three brain hemorrhages, aphasia and other permanent injuries." 661 F.2d at 130. «^661 F.2d at 133. ''Id. at 133-34. *^348 U.S. 110 (1954). See supra notes 42-50 and accompanying text. ''See supra notes 47-50 and accompanying text. «^690 F.2d at 223. '"Id. at 226. 1983] ATOMIC VETERANS' CHILDREN 765 direct injuries to the family members and allows recovery not only by the injured parties but also by the servicemen for consequential damages.^^ The second line of cases deals with injuries which are clearly derivative of the servicemen's injuries,^^ but are in the nature of emotional injuries, not physical injuries to the third parties.^^ In Hinkie v. United States,^^ the district court properly discussed these two lines of cases and concluded that the children of any atomic veteran could bring an action under the FTCA.^^ The district court reasoned that, although the Hinkie children's injuries were derivative of the serviceman's injury, they were also direct physical injuries and, therefore, did not fit "neatly into either line of cases."^^ Consequently, the district court in Hinkie treated the children's claim as novel, deserving full analysis under the Stencel factors. The court expressly rejected the "genesis incident to service" test of Monaco as an "over- simplification" that would allow courts to "avoid the necessary analysis of policies underlying the Feres doctrine which the Supreme Court requires in determining its application to novel cases."^' ''See Hinkie v. United States, 524 F. Supp. 277, 280 (E.D. Pa. 1981), rev'd, 715 F.2d 96 (3d Cir. 1983). An example of these types of cases include a situation where a sergeant was able to bring an action under the FTCA for injuries to his wife resulting from negligence in the delivery of a child in an Army hospital. Costley v. United States, 181 F.2d 723 (5th Cir. 1950). Note that under a "but for" analysis, see supra note 49, recovery probably would have been denied, as but for the serviceman's active duty status the woman would not have been in an Army hospital. '^See Hinkie v. United States, 524 F. Supp. 277, 280-81 (E.D. Pa. 1981), rev'd, 715 F.2d 96 (3d Cir. 1983). 'Ud.; see De Font v. United States, 453 F.2d 1239 (1st Cir.), cert, denied, 407 U.S. 910 (1972) (serviceman's wife's action for mental anguish and child's action for loss of companionship); Wisniewski v. United States, 416 F. Supp. 599 (E.D. Wis. 1976) (ser- viceman's wife's action based on government's failure to diagnose and treat husband's illness, which resulted in husband's illness causing marital disharmony). ^"524 F. Supp. 277, 280-81 (E.D. Pa. 1981), rev'd, 715 F.2d 96 (3d Cir. 1983). Hinkie had been exposed to radiation during the 1955 Army nuclear testing in Nevada. Hinkie later had two sons, Paul and Timothy, both of whom suffered from severe birth defects. Paul's defects included "Rubenstein-Taybies Syndrome, lack of joints in his thumbs, constant uncontrollable twitching of his eyes, severe mental retardation and photophobia." Id. at 279. Timothy was born "with severe and disabling birth defects, including but not limited to the lack of an esophagus and esophageal fistula which caused him pain, mental anguish and his death on January 7, 1966." Id. 'Ud. at 284. Even though the district court's decision was eventually reversed on appeal, this author believes the reasoning and analysis used by the district court is the appropriate approach to follow and will therefore discuss the court's opinion at length. '^Id. at 281. 'Ud. at 282. In the subsequent appeal to the Third Circuit, the Court of Appeals failed to address this aspect of the problem and reversed on the basis of the effect the suits would have on military discipline. 715 F.2d 96, 97 (3d Cir. 1983). For a discus- sion of this factor, see infra notes 12243 and accompanying text. 766 INDIANA LAW REVIEW [Vol. 16:753 The Lombard court, noting these two lines of cases, rejected the view that the children's injuries did not fall neatly into the derivative injury type cases. The court observed that the "direct injuries" allow- ing recovery involved no injury to the servicemen, whereas the "derivative injuries" all resulted from a direct injury to the servicemen.^® The Lombard court concluded that the facts in Hinkie clearly fell under the " 'derivative injury' line of cases"^^ because the children's injuries resulted from the father's injury. The problem with this conclusion is that the Lombard court failed to consider the "direct physical injury" aspect of the children's cases. Because the children have suffered direct physical injuries themselves, although derivative of the fathers' injury, the children's cases should be treated as novel and separately scrutinized under the Stencel factors. By acknowledg- ing the derivative but physical nature of the atomic veteran's children's injuries, the district court in Hinkie permitted this type of scrutiny to occur. Such scrutiny is desirable because of the children's novel situation and, therefore, the district court's approach in Hinkie is the better reasoned and more just approach. C. Do the Stencel Factors Apply to Claims of Atomic Veterans' Children? The Lombard court used the Stencel factors to analyze the rela- tionship between the servicemen and the government and concluded that the Feres doctrine was applicable to and barred recovery by the children.^"" The district court in Hinkie v. United States^^^ reached a contrary result by applying the three Stencel factors directly to the children's claims.^"^ The relationship between the children and the government does not justify expanding the Feres doctrine to bar recovery by the atomic veterans' children. None of the three Stencel factors, which form the underlying rationales for the Feres doctrine, apply to the children's claims. 1. The Distinctly Federal Character of the Relationship. — The first ««690 F.2d at 225. ^Id. The Lombard court also noted that the district court opinion in Hinkie was in conflict with its own circuit court's decision in Jaffee v. United States, 663 F.2d 1226 (3d Cir. 1981) (en banc). Although this is true, the validity and persuasiveness of the district court's reasoning in Hinkie is a force that the courts have failed to adequately deal with. '""690 F.2d at 218-26. The court did not expressly apply the Stencel factors to the children's claims but rather applied the factors to the father's claims and denied him recovery. The children then were barred from recovery because their injuries were declared derivative of their father's. Thus, the Stencel factors were applied to the children's claims albeit in an indirect manner. Id. '"524 F. Supp. 277 (EX). Pa. 1981), rev'd, 715 F.2d 96 (3d Cir. 1983). '"^/d. at 282-85. See supra notes 94-97 and accompanying text. 1983] ATOMIC VETERANS' CHILDREN 767 Stencel factor is based on the distinctly federal character of the rela- tionship between the soldier and the government, which is governed by federal law/°^ As the district court in Hinkie noted, there is no distinct federal relationship between the child and the government because the child is simply a civilian/"^ The court pointed out that had a civilian living near the nuclear test sites brought an action against the government, the suit would have been allowed and state law would have been applied/"^ Thus, the argument that suits should be barred because the government's liability should not depend on the differing state laws^°^ carries little weight because precisely the same factor determines civilians' rights to recover against the govern- ment. This result is especially true for FTCA actions because the FTCA explicitly dictates that state law is the applicable law/°^ The government can argue that for the sake of uniformity serv- icemen should be limited to recovery under the Veterans' Benefit Act, and their children should not be allowed to recover under varying state laws for derivative injuries.^"® Perhaps this argument carries some weight because the Veterans' Benefit Act does at least provide a mechanism by which the servicemen can seek recovery for their injuries;^"^ however, applying this rationale to bar the children's right "M31 U.S. 666, 671 (1977). ^'"'524 F. Supp. at 282^3. '''Id. at 283. ""See Feres v. United States, 340 U.S. 135 (1950). '°''See supra note 22 and accompanying text. ^"^See supra note 35 and accompanying text. '"'38 U.S.C. § 610 (Supp. V 1981). The remedies provided the servicemen under the Veterans' Benefit Act have, in the past, been totally inadequate. As of 1981, the Veterans' Administration had almost a 99% denial rate on compensation claims for injuries alleged to have been caused by radiation exposure in nuclear tests. Favish, supra note 1, at 957. According to the National Veterans Law Center, over 2000 claims for compensation related to the war games have been rejected by the Board of Veterans Appeals while only 13 claims have been granted by the Board. Washington Post, Aug. 11, 1982, at A12, col. 2. Congress recently enacted an amendment to the Veterans' Benefit Act that may make the servicemen's recovery for radiation exposure injuries easier. 38 U.S.C. § 610 (Supp. V 1981). The amendment was designed to provide health care to veterans who were exposed to either radiation during the war games or Agent Orange and other chemical defoliants used in Vietnam. The problems of recovery facing both types of injured veterans were similar, such as proving their injuries were indeed the result of exposure to radiation or chemical defoliants. The amendment may eliminate this burden as the drafters intended to grant health care to the veteran "if it is found that the veteran, during active duty, may have been exposed to dioxin or was exposed in Vietnam to any toxic substance in a herbicide or defoliant used in connection with military purposes there, or to radiation from the detonation of a nuclear device." 127 Cong. Rec. S11572 (Oct. 16, 1981). Congress also provided that the veteran's service records need only show that he was in Vietnam during the period the chemicals were used in order to recover under the Act, thus eliminating the difficulty in determining 768 INDIANA LAW REVIEW [Vol. 16:753 to a tort action is totally unfounded. To begin with, as the district court in Hinkie noted, the children are not servicemen, and they have no federal relationship to the government other than perhaps being citizens of the United States."" Secondly, while the servicemen do have a remedy under the Veterans' Benefit Act, the children have no remedy left to them except a questionable state action against the manufacturer of the weapons involved."^ Requiring the children to bring an action against the weapons manufacturer, but not the govern- ment, is analogous to telling a person who is negligently shot by an individual to sue the manufacturer of the bullet and not the person who was mishandling the weapon. There is serious doubt whether a case against a weapons manufacturer would be successful because the manufacturing of the weapon was not the negligent act that led to the injuries."^ Similarly, it is the misuse of the weapons, mismanage- ment of the nuclear tests, and the government's negligence in failing to warn the men of the dangers that caused the children's injuries. Thus, if the children are barred from suing the government then they actually are barred from any recovery at all, and the government is actual usage patterns of Agent Orange and other dioxin-contaminated defoliants and herbicides in Vietnam. Id. at 11574. Radiation veterans need only show that their in- jury is a type that radiation could cause, such as cancer £is opposed to a broken leg. The presumption regarding Agent Orange, however, is effective for only about a two- year period until the first report of a Veterans' Administration epidemiological study is submitted. This study is being conducted pursuant to section 307(b)(2) of Public Law 96-151. After the report comes out, it has been suggested that Agent Orange veterans also will have to show their injuries are of the type Agent Orange would cause. Presently such a showing is not necessary barring any obvious false claims such as a broken leg. 127 Cong. Rec. S11572-74 (Oct. 16, 1981). 110524 F. Supp. at 282-83. In Hinkie, the two children were not even born when Hinkie was on active duty. Id. at 282. "^Even this approach is not possible where the exposure is a result of the govern- ment's research on the "Manhattan Project" because the government was the manufac- turer, see supra note 71, unless perhaps some sort of dual capacity doctrine were adopted, allowing the government to be sued as the manufacturer of the weapons. See Duprey v. Shane, 39 Cal. 2d 781, 249 P.2d 8 (1952), for a description of the dual capacity doctrine. ^^^The approach of suing the government contractor has been attempted in con- nection with the chemical Agent Orange. The manufacturers of Agent Orange raised not only the defense that any negligence was the government's but also the govern- ment contract defense. This latter defense, argues that, because the government con- trols and dictates the manufacturing and use of the weapon or chemical, the manufac- turer is immune from liability because the government is acting in a capacity that renders it immune from liability under the theory of sovereign immunity and the Feres/Stencel doctrine and this immunity is passed on to the manufacturer. Hanes, Ageny Orange Liability of Federal Contractors, 13 U. TOL. L. Rev. 1271, 1274-76 (1982). Hanes predicts that the manufacturers will succeed under the government contract theory. Id. at 1279. Thus, it is unlikely that a suit against the manufacturers of atomic weapons would be successful because of the government contract and the lack of negligence on the part of the manufacturer. 1983] ATOMIC VETERANS' CHILDREN 769 freed from assuming responsibility for injuries resulting from its negligence. 2. The Veterans' Benefit Act as an Upper Limit to Governmental Liability. —The second Stencel factor states that the Veterans' Benefit Act establishes the upper limit of the government's liability for service- related injuries."^ Again, this is not applicable where the children of servicemen are concerned. The government has no liability at all towards the children under the Veterans' Benefit Act because it does not cover their injuries."* The children are suing for physical injuries they sustained, not for injuries the servicemen sustained. If the children involved were the children of civilians, they would be able to bring actions under the FTCA for their own injuries."^ However, under the reasoning of the Lombard court, the children of servicemen are barred from seeking recovery for their injuries. This result allows the government to place the entire burden of its negligence on the shoulders of the servicemen, who are actually among the injured par- ties, and their families. This result contravenes both tort law and the FTCA. One of the basic goals of tort law is the "allocation of losses aris- ing out of human activities.""* Usually the tort-feasor is held liable when he has departed from a reasonable standard of care."^ Applica- tion of the Feres doctrine to the atomic veterans' children, however, precludes them from even bringing an action against the government to determine if liability exists."® The FTCA waives government im- munity from suit for negligent acts or omissions of federal employees acting in the scope of their employment."^ The government's liability is to be "in the same manner and to the same extent as a private individual under like circumstances."^^" Because the object of both tort law and the FTCA is to allocate losses to the tort-feasor, the atomic veterans' children should be permitted to bring actions against the government based on the children's own physical injuries, just as any other civilian could. In this way, both the objectives of tort law and the FTCA would be furthered. Also, because the children receive no benefits under the Veterans' Benefit Act, there is no problem of a double recovery. The govern- ment could compensate the soldiers through the Act, and the children through court actions. Thus, the Act would still serve as an upper "H31 U.S. at 671. "*See supra note 109. "^524 F. Supp. at 283. "*Prosser, supra note 18, at 6. "*5ee cases cited supra note 5. "«28 U.S.C. § 1346(b) (1976). '">Id. § 2674. 770 INDIANA LAW REVIEW [Vol. 16:753 limit to the government's liability for the servicemen's injuries, and the children would be able to seek judicial recovery for their own injuries. Furthermore, allowing the children an action under the FTCA would be consistent with the purpose behind the FTCA which is to alleviate the hardships of sovereign immunity^^^ by making the govern- ment assume responsibility for the results of its negligent acts. 3. The Breakdown in Military Discipline. — The final Stencel fac- tor concerning the harmful effects on military discipline if suits are allowed by servicemen^s children is unpersuasive for a number of reasons when applied to atomic veterans' children. First, the courts that have relied on this factor^^^ have failed to acknowledge that if a civilian unrelated to a serviceman were injured by the nuclear arms tests, military orders would still come under court review.^^^ There would still be second guessing of orders, military men testifying for and against each other, and a general review of the military's actions in regard to the events that led to the civilian's injury. The risk of a breakdown in military discipline would be just as great in a case involving a civilian who was not related to a serviceman as one who was related to a serviceman. Also, the effect on military discipline is only a potential problem and a remote one at that. The actions brought by the children often occur several years after the military orders have been given. "The extended interval between the issuance of the orders and the ap- pearance of the injuries dilutes the argument that an airing in court of . . . family members' claims would occasion genuine harm to the command structure of the armed forces."^^^ In addition, "[s]uits for indirect consequences of military orders, contrary to those for direct consequences, are brought by non-military personnel who are not sub- ject to military authority, and therefore pose less of a threat to the maintenance of military discipline."^^ Thus, an attenuated threat of a breakdown in military discipline should not act as a bar to the children's right to a tort action under the FTCA. Finally, some of the courts relying on this factor have improperly stated that the "Supreme Court has construed the FTCA to subor- dinate the interests of children of service personnel to the exigencies of military discipline."^^^ In one such case, Mondelli v. United States,^'^'' ^"5ee supra note 21 and accompanying text. '^^See, e.g., Hinkie v. United States, 715 F.2d 96 (3d Cir. 1983). '^'See 524 F. Supp. at 284. ^''"Lombard v. United States, 690 F.2d 215, 233 (D.C. Cir. 1982) (Ginsburg, J., con- curring in part and dissenting in part). ^^^Note, The Effect of the Feres Doctrine on Tort Actions Against the United States by Family Members of Servicemen, 50 Fordham L. Rev. 1241, 1265 n.l56 (1982). '^'Hinkie v. United States, 715 F.2d 96, 99 (3d Cir. 1983) (quoting Mondelli v. United States, 711 F.2d 567, 570 (3d Cir. 1983)). ^"711 F.2d 567 (3d Cir. 1983). 1983] ATOMIC VETERANS' CHILDREN 771 the court stated that the soundest reason supporting the Feres doc- trine is the relationship between the soldier and his superiors.^^® In a footnote, the court noted that of the three rationales outlined in StenceU only the necessity for maintaining military discipline applied in this case/^^ because the plaintiff was not in the military herself and because the United States conceded that veterans' benefits were not available to her/^° Thus the court relied solely on the military discipline factor in concluding that the plaintiff could not pursue an action under the FTCA. The court acknowledged that "[rjarely does the law visit upon a child the consequences of actions attributed to the parents,"^^^ citing the Supreme Court decision of Trimble v. Gordon}^'^ However, the court went on to state that the Supreme Court has subordinated the in- terests of the veterans children to the interest of military discipline/^^ Notably, the court cites no authority for this proposition but presumably relies on its earlier discussion of Stencel Aero Engineer- ing Corp. V. United States^^* and Chappell v. Wallace^^ as support for this statement. While the Mondelli court correctly pointed out that the children's actions would question the acts of military personnel,^^® just as if the veterans brought the actions, the court failed to acknowledge the dif- ferences in the situations presented by Stencel and Chappell. First in Stencel, the Court was dealing with a contractual relationship and noted that "[s]ince the relationship between the United States and [Stencel was] based on a commercial contract, there [was] no basis for a claim of unfairness" in the Court's denial of Stencel's indemnity action against the government/^^ The Court noted that Stencel had an opportunity to take into account the risk of an action against it in negotiating its contract and thereby protect itself/^* In the cases involving servicemen's children, however, there is no opportunity for '''Id. at 568. '""Id. at 569 n.5. '^"Id. In Mondelli, the plaintiff was a 22-year-old civilian who was born with retinal blastoma, a genetically transmitted cancer of the retina. The defect was allegedly caused by the plaintiffs father's exposure to radiation during his participation in nuclear tests while on active military duty. Id. at 568. '^'Id. at 569. It should be noted that in the radiation cases, the parents involved did nothing but follow orders. Thus, it is absurd to suggest that "the consequences" of the parents acts should be imposed on their children. The veterans in these cases were victims, as were the children. ^''430 U.S. 762 (1977) (dealing with the rights of illegitimate children). ^^^711 F.2d at 570. ^^M31 U.S. 666 (1977). ^'^03 S. Ct. 2362 (1983). ^^«711 F.2d at 569. "'431 U.S. at 674. '^'Id. at 674 n.8. 772 INDIANA LAW REVIEW [Vol. 16:753 the serviceman or the children to protect themselves against loss through contract negotiations. Thus, presumably a claim of unfairness in result is appropriate and notably several federal courts have con- ceded that the results reached in these cases appear "harsh" and "unjust."^^* The language in Stencel indicates the Supreme Court's will- ingness to consider the fairness of the result reached; therefore, lower federal courts should also consider this as a factor. The Mondelli court's reliance on Chappell was similarly misplaced. While Chappell did affirm the Feres doctrine as applied to servicemen, it made no mention of the doctrine's application to servicemen's children.^*" Also the Court was properly concerned with the effects the Chappell action would have on military discipline in that the ac- tion was brought by enlisted Navy men against their superior officers for alleged acts of discrimination in making duty assignments and per- formance evaluations.^*^ It is also significant that the Supreme Court once more noted that other avenues of relief were available to the enlisted men.^*^ Thus, there is little or no similarity between the Chap- pell situation and the situation of the atomic veteran's children. First the children are not servicemen, and while their action may result in a review of military decisions, those decisions were made years ago. Second, the children are not challenging the acts of in- dividual officers, but rather the entire plan, scheme and method uti- lized by the Army and Department of Defense in conducting the nuclear tests. Thus, the children's legal actions are really urging and encouraging the government, as a unit, to be sure that its actions are taken with the welfare of the men involved in mind. In this regard, the children's legal actions would serve the public policy goal of pro- viding the government an incentive to assure the safety of its troops in non-combat testing situations, especially where hazardous substances are involved.^*^ Third, the children currently have no other means of redress available to them. This factor has repeatedly been mentioned by the Supreme Court and should not be ignored by the lower courts when applying the Stencel factor analysis. Taken as a whole, the reasoning of the Court in Stencel for ex- panding the Feres doctrine to a third party's derivative action is not applicable where children of servicemen are concerned. First, there is no distinctly federal relationship that exists between the children '''See, e.g., Hinkie v. United States, 715 F.2d 96, 98 (3d Cir. 1983); Mondelli v. United States, 711 F.2d 567, 569 (3d Cir. 1983); Lombard v. United States, 690 F.2d 215, 227 (D.C. Cir. 1982). ^""103 S. Ct. 2362 (1983). '''Id. '*'Id. at 2366-67. '*'See infra note 167 and accompanying text. 1983] ATOMIC VETERANS' CHILDREN 773 and the government; second, the children cannot recover under the Veterans' Benefit Act and, therefore, have no reasonable remedy available to them; third, the effects on military discipline are no dif- ferent when servicemen's children bring actions than when a civilian unrelated to a serviceman brings such an action. Because the children have no other source of recovery and because the Stencel factors are not applicable to them, the Feres doctrine should not be extended to bar FTCA actions by the servicemen's children. IV. Alternate Theories Allowing Relief Under the FTCA A. Governmental Post-Discharge Negligence Under the present Lombard type derivative injury approach, the atomic veterans' children have been denied recovery under the FTCA. An alternative argument for the children consists of resting their suit on the government's failure to warn the servicemen of the harmful effects of radiation after their discharge from the service. This argu- ment was presented in Lombard and rejected by the majority.^*'^ The court concluded that the negligent act began before Lombard's discharge and continued to the present because Lombard conceded "that the Army knew of the potential dangers involved in exposing servicemen to radioactive substances at the time of the exposure itself."^"^ The negligent act, therefore, did not occur after Lombard's military service ended. However, the court acknowledged that if the government had learned of the potential dangers after Lombard's discharge and had failed to warn him of the harmful effects, then a separate tort would have occurred and the action would be allowed. ^*^ Judge Ginsburg's dissent in Lombard suggests that Lombard should have been permitted to develop and restate the claim regard- ing post-discharge negligence.^^^ Ginsburg noted that Broudy v. United States^*^ "suggested that the failure to warn a veteran of radiation's ^^'690 F.2d at 220-21. '*Ud. at 220. ^*^Id. The court noted that a district court in the District of Columbia Circuit had allowed such a claim in Thornwell v. United States, 471 F. Supp. 344 (D.D.C. 1979). The serviceman in Thornwell had been given doses of LSD by the government in an attempt to get him to confess to the theft of classified documents. Id. at 346. ^"^690 F.2d at 230-31 (Ginsburg, J., concurring in part and dissenting in part) (citing Broudy v. United States, 661 F.2d 125 (9th Cir. 1981)). ^^*661 F.2d 125 (9th Cir. 1981). In Broudy a serviceman was exposed to radiation during maneuvers near the Nevada nuclear test site. He was never told of the dangers to his health or given an opportunity to decline to participate in the maneuvers. Broudy was discharged from the service in 1960 and was then diagnosed as having low-level radiation induced cancer which resulted in his death in 1977. Broudy's wife and children brought an action under the FTCA claiming the government was negligent in expos- ing Broudy to the radiation and negligent in failing to warn Broudy of health prob- 774 INDIANA LAW REVIEW [Vol. 16:753 potential effects might constitute an independent, post-service negligent act if the government learned of the danger after the veteran left the armed forces."^*^ Ginsburg went on to say that Lombard was not informed enough to be able to "state with any degree of preci- sion whether, or the extent to which, the government's knowledge of such risks increased" after Lombard's discharge/^" Under Judge Ginsburg's rationale, the government's increased awareness of danger after a serviceman's discharge could give rise to a separate tort if the government failed to warn of the dangers of radiation exposure that it subsequently discovered. Thus, atomic veterans' children would be allowed to bring suit for injuries based on the government's post- discharge negligence. The Lombard majority seemingly would agree with this result so long as the children can show separate post- discharge negligence. ^^^ One problem with the post-discharge negligence argument is that it would result in inconsistent results because servicemen's children born before the servicemen's discharge would still be denied the right to recovery. However, the non-derivative injury argument used by the district court in Hinkie,^^^ and the willful and wanton negligence argument^^ should provide all children an opportunity to obtain judicial relief. B. Workers' Compensation and Willful and Wanton Negligence The similarities in purpose between the Veterans' Benefit Act and Workers' Compensation Act are striking.^^ The Court in Stencel stated that the Veterans' Benefit Act was designed to set an upper limit to the government's liability; thus, under Stencel and Feres, the benefits received under the Act are considered to be the servicemen's exclusive remedy against the government, although the Act itself does not claim to be an exclusive remedy.^^^ In comparison, workers' com- pensation statutes often expressly provide that the statutory remedies lems after his discharge. The court dismissed the negligent exposure claim but allow- ed the post-discharge negligence claim. Id. at 126-29. "«690 F.2d at 230 (citing Broudy v. United States, 661 F.2d 125, 128-29 (9th Cir. 1981)). ^'"690 F.2d at 230. ^"See supra text accompanying note 146. ^^^See supra notes 91-99 and accompanying text. ^^See infra notes 154-67 and accompanying text. ^"The Lombard court acknowledged this similarity in purpose. 690 F.2d at 219. Both Acts provide a no-fault remedy in an employment situation because, in essence, the serviceman is an employee of the federal government. See supra note 56 and ac- companying text. ''^See Stencel Aero Engineering Corp. v. United States, 431 U.S. 666 (1977); Feres V. United States, 340 U.S. 135 (1950). See supra note 40. 1983] ATOMIC VETERANS' CHILDREN 775 are to be the worker's exclusive remedy for injuries arising out of the employment situation/^^ Yet courts have allowed employees to recover damages beyond the workers' compensation benefits when the employers' ''conscious indifference to the physical safety of his men was so outrageous that an intent to injure could be readily inferred."^^^ It has been stated that [a]n employer who knows for a fact that if certain condi- tions are allowed to exist or if certain changes are put into effect, harm will befall a particular employee or any one of a group of employees, is certainly not far removed, in terms of moral blameworthiness, from the boss who "clobbers" a worker with a baseball bat.^^* It can be argued that the government's "conscious indifference" to the servicemen's safety was willful and wanton conduct. The Atomic Energy Commission (AEC) originally was responsible for the safety standards used in the 1950's war games, but this responsibility was turned over to the Department of Defense (DOD), upon the DOD's request, so that the DOD could make the war games more realistic. The DOD felt the AEC standards were too restrictive and wanted to attain conditions more closely resembling those of true war.^^^ The ^^Tomita, The Exclusive Remedy of Workers' Compensation for Intentional Torts of the Employer: Johns-Manville Products v. Superior Court, 18 Cal. W.L. Rev. 27 (1981). ^"Page, Tlie Exclusivity of the Workmen's Compensation Remedy: The Employee's Right to Sue His Employer in Tort, 4 B.C. Indus. & Com. L. Rev. 555, 563-64 (1963). The willful and wanton language often is automatically associated with the concept of punitive damages. However, the two concepts exist separately, and one does not automatically give rise to the other. Willful and wanton conduct may justify awarding punitive damages, imposing broader duties, extending liability, and may avoid the defense of contributiory negligence. Prosser, supra note 17, at 184-85. In the case of the serviceman's children, the willful and wanton conduct gives the children a right to a tort action against the government when an action may otherwise be denied. '^Tage, supra note 157, at 564 (emphasis added); see Collins v. Dravo Contracting Co., 114 W. Va. 229, 171 S.E. 757 (1933). i59pavish, supra note 1, at 944-47 n.39. The AEC required troops to be at least seven miles from ground zero (the point of detonation) at detonation time. The DOD wanted this distance reduced to 7000 yards (3.9 miles). The Washington Post, Aug. 11, 1982, at A12, col. 2, reports one instance where a soldier was actually close enough to be blown from his trench by the force of the blast. The AEC also limited each individual's exposure to 3.9 roentgens (r.) of gamma radiation per 13 weeks. They monitored this level by giving each soldier his own badge and had the troops advance behind AEC monitoring personnel. The DOD wanted to increase the exposure level to 6r. per soldier (in some cases exposure was as high as lOOr.) and advance the troops without the hindrance of monitoring personnel. The AEC granted the DOD permis- sion to decrease the distance between the troops and "ground zero" at detonation time, but only if precautions were taken to ensure troop safety. However, they refused to condone the increased exposure level and told the DOD that AEC personnel would be unavailable on the test date so the DOD would have to conduct the monitoring 776 INDIANA LAW REVIEW [Vol. 16:753 government was warned that the DOD's relaxation of AEC standards could be dangerous, but the standards were relaxed anyway/^" The government also had access to several medical publications warning of the hazards related to radiation exposure/^^ Yet, the government exposed soldiers to radiation, paying little or no attention to safety precautions, all in the name of realism/®^ This lack of attention to safety standards evidences a "conscious indifference to the physical safety" of the men involved. Based on such evidence, the courts could read an exception into the Feres doctrine, as courts have done in workers' compensation of radiation levels. In 1953, the DOD assumed full responsibility for safety standards and only gave the AEC a safety plan for informational purposes. A letter dated Oc- tober 15, 1952, from Major General H. B. Loper to Brigadier General K. E. Fields stated that if "the safety standards of the DOD are less conservative than those established by the AEC, and if accident or criticism result, the DOD will be prepared to make a public announcement of those facts." Favish, supra note 1, at 947 n.39. In spite of several complaints put forth by the AEC, no public announcements were forthcoming, and only recently have the facts surrounding the nuclear tests been made known. Id. at 933. '®°Favish, supra note 1, at 944 n.39. ^"5ee, e.g., FoUey, Borges, & Yamawaki, Incidence of Leukemia in Survivors of the Atomic Bomb in Hiroshima and Nagasaki, Japan, 13 Am. J. Med. 311 (1952) (discussing the increased incidence of leukemia in the Japanese atomic bomb survivors); Furth & Furth, Neoplastic Diseases Produced in Mice by General Irradiation with X-rays, 28 Am. J. Cancer 54 (1936) (discussing increased ovariai^ tumors and lymphatic cancer among irradiated mice); Martland, The Occurrence of Malignancy in Radioactive Persons, 15 Am. J. Cancer 2435 (1931) (discussing the development of cancer in watch dial painters who used radium paint); Muller, Artificial Transmutation of the Gene, 66 Science 84 (1927) (stating that x-rays could cause gene mutations in drosophila flies); Uphoff & Stern, The Genetic Effects of Low Intensity Irradiation, 109 Science 609, 610 (1949) (stating that there was no threshold below which radiation failed to induce mutations). Although this information at first glance appears harmful to the post-discharge negligence standard, it should be remembered that the importance rests on the degree to which available information changed in reliability, thus increasing awareness or the discovery of new information as to the harmful effects of radiation is enough to create a post-discharge duty to warn. See supra notes 144-51 and accompanying text. ^^^During the atomic war games troops were placed anywhere from 12 to 1.5 miles from the explosion site. In one test, the Chief of the Armed Forces Special Weapons project proposed to have an army battalion (approximately 1100 men) dig in as close as permissible to the explosion site. After the explosion, the battalion was to march through the detonation site and join up with an airborne company (approximately 200 men) that was to be dropped in the area of "ground zero." This was done in order to emphasize to the troops "the high degree of safety in entering the area of ground zero immediately following an air burst of atomic bomb." Favish, supra note 1, at 946 n.39. In assuming responsibility for troop safety, the DOD failed to take all the precau- tions the AEC had taken. Many soldiers did not have their own radiation badges; no protective clothing was issued; decontamination consisted of sweeping contaminated dust off personnel and equipment with brooms; and the soldiers were not warned of the true hazards of radiation exposure. Id. at 949-52. 1983] ATOMIC VETERANS' CHILDREN 111 cases, ^®^ to allow the children of atomic veterans to seek recovery for their injuries. A similar workers' compensation argument was unsuc- cessfully used in Lewis v. United States^^^ by the wife of a serviceman who died in a plane crash. The Lewis case, however, did not involve an incident where the government acted in "conscious indifference" to the welfare of the serviceman. Rather, the case was based on the negligent and wrongful acts of government employees in maintain- ing, operating, and controlling the aircraft. ^^^ Thus, the case can be distinguished from the radiation cases where the government a^ted in a manner expressing wanton disregard for the safety of the serv- icemen involved. Imposing this type of liability on the government is justified because the government waived its sovereign immunity through the FTCA. Under this waiver of immunity, the government is liable "in the same manner and to the same extent as a private individual under like circumstances," with certain exceptions.^^^ The Veterans' Benefit Act and Workers' Compensation Acts are statutory remedies that take away the employee's right to tort actions, but courts do recognize exceptions to this waiver of tort action. The government, having con- sented to waive its sovereign immunity and be subject to the same liabilities as private individuals, should be treated like a private employer and be liable for acts of negligence that are willful and wan- ton and display a reckless disregard for human life. Public policy and tort theory also support a right of action against the government when the government has acted in wanton disregard of servicemen's safety. In tort actions courts focus on the underlying economic theory of compensation; however, the deterrent effect of knowing that liability may result from one's negligent acts is another important purpose of tort law.^®^ Servicemen need to have their health and safety protected as much as employees of civilian employers. The actions of the government in the radiation exposure incidents il- lustrates failure of the government to provide for the safety of the servicemen. By judicially expanding the Feres doctrine to deny the atomic veterans' children a right to recover for their injuries, the courts are failing to provide the government any incentive to ensure that the servicemen have adequate protection in future experiments involving potentially harmful substances. Thus, allowing the atomic veterans' children the right to pursue tort actions would promote the public policy of encouraging employers, including the government, to ^^^See supra text accompanying notes 156-58. ''*663 F.2d 889 (9th Cir. 1981), cert, denied, 457 U.S. 1133 (1982). '"'Id. at 890. ^««28 U.S.C. § 2674 (1976). **'Trosser, supra, note 18, at 5. 778 INDIANA LAW REVIEW [Vol. 16:753 take reasonable precautions to protect the health of their employees and, thereby, protect the health of the employees' unborn children. V. The Need for Legislative Action Although the rationale of the district court in Hinkie^^^ permits the servicemen's injured children to bring an action against the govern- ment under the FTCA, it does not solve the burden of proof problem the children will face when their case goes to trial. The elements of negligence are a legally recognized duty to conform to a standard of conduct to protect others from unreasonable risk, a failure to con- form to the required standard, a reasonably close causal connection between the conduct and the resulting injury, and an actual loss or damage to the interests of another person.^^^ All these elements must be proven before recovery is granted. One of the greatest problems of proof facing the atomic veterans' children will be establishing a causal connection between their fathers' exposure to radiation and their resulting birth defects. Birth defects can be caused by any number of genetic problems and in utero occur- rences, such as the mother's ingestion of a variety of drugs."" Often the only evidence available is "circumstantial evidence based upon ex- pert opinion and statistical probabilities.""^ In addition to not being able to show that radiation exposure of the father actually caused their injuries, the children may not be able to prove that the father was indeed exposed to radiation."^ These problems could be solved by shifting the burden of proof for causation from the plaintiff to the defendant. Courts have permitted such a shift in the burden of proof on causa- tion when an evidentiary void exists and the plaintiff can prove the elements of duty, breach of that duty, and an injury.^^ It has not been necessary for the defendant to actually have access to a greater volume of information than the plaintiff for the shift to occur."* Courts have also held that where a defendant's conduct actually helped create the evidentiary void, the burden of proof would be shifted to the ^*'«524 F. Supp. 277 (EX). Pa. 1981), rev'd, 715 F.2d 96 (3d Cir. 1983). See supra notes 91-98 and accompanjdng text. ^*Trosser, supra note 17, at 5, 143. ''"See Favish, supra note 1, at 964-65, 968-69. "7d at 964-65. "^The government failed to keep central records of war game participants, and millions of general files were destroyed by fire in 1973. Id. at 956-57. "^Sindell v. Abbott Laboratories, 26 Cal. 3d 588, 607 P.2d 924, 163 Cal. Rptr. 132, cert, denied, 449 U.S. 912 (1980); Summers v. Tice, 33 Cal. 2d 80, 199 P.2d 1 (1948). "*Sindell v. Abbott Laboratories, 26 Cal. 3d 588, 593, 607 P.2d 924, 929, 163 Cal. Rptr. 132, 137, cert denied, 449 U.S. 912 (1980). 1983] ATOMIC VETERANS' CHILDREN 779 defendant.^^^ In the radiation cases, the government's conduct resulted not only in the soldier's exposure to harmful dosages of radiation, but also in the evidentiary void that now exists. The government knew at the time the atomic war games took place that radiation exposure was harmful to humans and could lead to future problems for both servicemen and their offspring.^'^ Knowing this, the government still failed to develop a proper monitoring system to determine each soldier's level of radiation exposure. In fact, the DOD actually les- sened the monitoring standards of the AEC."^ Additionally, the govern- ment kept no central file system on the participants of the war games and lost millions of general files in a subsequent fire.^^® The govern- ment's actions have resulted in an evidentiary void that makes it vir- tually impossible for children to prove that their fathers were exposed to radiation and that the level of radiation exposure was sufficient to result in the genetic changes that led to the children's birth defects. Thus, under this fact situation, where the defendant has actually created the evidentiary void, the government and not the children should carry the burden of proof on causation. However, shifting the burden of proof still may not assure recovery to the children. The government can still argue that even if the servicemen were exposed to radiation, the children cannot prove that their birth defects were caused by that radiation exposure. The government also can claim that even if the injuries were caused by radiation, recovery should not be allowed because it might '*open the door for governmental liability to countless generations of claimants having ever diminishing genetic relationship to the person actually injured."^^® These arguments, combined with the federal courts reluc- tance to deal with this issue,^®° indicate the need for remedial action beyond the judicial level. Congress has already acknowledged that the nuclear arms tests have resulted in injuries to the servicemen and has extended the Veterans' Benefit Act to compensate the soldiers for these injuries.^*^ "«Haft V. Lone Palm Hotel, 3 Cal. 3d 756, 478 P.2d 465 (1970). In Haft a father and son died in the hotel's swimming pool. The hotel had failed to provide a lifeguard for its patrons and it was reasoned that if a lifeguard had been provided, the plaintiff could have used the lifeguard's testimony to prove what actually led to the deaths. Thus, the court viewed the failure to provide a lifeguard as depriving the plaintiffs of a means of proving the facts of the case and shifted the burden of proof to the defendant. "^See supra note 161 and accompanying text. "''See supra notes 159-62 and accompanying text. "^See supra note 172. "7n re "Agent Orange" Product Liability Litigation, 506 F. Supp. 762, 781 (E.D.N.Y. 1980). '""See Hinkie v. United States, 715 F.2d 96 (3d Cir. 1983). "*See supra note 109. 780 INDIANA LAW REVIEW [Vol. 16:753 A similar "special remedy" could be made available to the children of the servicemen. Under this plan, the children would need to show that their fathers were in the military and took part in the nuclear war games. The children also could be required to prove that their injury is one that radiation exposure could cause. If the serviceman's military records were among those destroyed by fire, the burden of proof could shift to the government, requiring the government to show that the serviceman in question did not participate in the war games and was not exposed to radiation. Even if the serviceman's records are available, the government should have the burden of proving that the soldier's level of radiation exposure could not have caused the injuries because it was the government's failure to keep proper records on individual levels of exposure that created the evidentiary void. Thus, once it is shown that the soldier did participate in the war games and that his child has birth defects that are known to be caused or could be caused by exposure to radiation, the child would be entitled to benefits. Congress also could limit recovery to the first generation of children.^*^ In this way, at least the servicemen's children will be com- pensated for their injuries, and the compensation will be somewhat uniform. At the same time, the government could avoid liability for "countless generations of claimants." Legislation also would allow the government to avoid lengthy and expensive litigation. Finally, if Congress does not choose to provide for compensation to the children through special legislation, then Congress should redraft the FTCA to permit recovery by the children in federal courts. The Supreme Court has construed the FTCA as denying recovery for all injuries incident to service.^®^ However, the Act actually denies recovery only under limited circumstances, specifically those injuries arising out of combat activities during time of war or incurred in a foreign country.^^^ The lower courts have used the Feres doctrine to deny servicemen's children the right to recover under the FTCA. If Congress had intended this type of interpretation, then it would seem that Congress would have made a sweeping denial of recovery rights to soliders instead of the very specific ones that it made.^*^ In view **^To further limit the application of this remedy, Congress could even include language indicating that once a serviceman had one child with birth defects, the ser- viceman would be on notice of the possibility of a problem and should seek genetic counseling. Therefore, any children born later would be said to be born with proper notice to the parents thus barring recovery for subsequent children on the basis of assumed risk. If Congress is unwilling to develop a separate plan for the children, then Congress should consider extending the Veterans' Benefit Act to provide com- pensation to the children by increasing the serviceman's benefit award. ^«Teres v. United States, 340 U.S. 135 (1950). ^^See supra note 24 and accompanying text. ^^^See supra note 27. 1983] ATOMIC VETERANS' CHILDREN 781 of the Court's development of the Feres doctrine, it is time for Con- gress to address the issue by clarifying the FTCA provisions that deny servicemen the right to bring actions or drafting provisions to allow servicemen's children the right to seek recovery for their in- juries in the federal courts/®* VI. Conclusion The courts should not extend the Feres doctrine to deny serv- icemen's children the right to bring an action under the FTCA for injuries resulting from the government's negligence in exposing serv- icemen to harmful radiation while on active duty. Although the original negligent act may be incident to service as described in the Feres doctrine, none of the underlying rationales of the^ doctrine, as enumerated by the Stencel factors, apply to the children's claims: The children have no special relationship with the government, they cur- rently have no other feasible source of compensation, and suits brought against the government by "atomic children" will not result in a greater breakdown of military discipline than would suits brought by other civilians for injuries resulting from the nuclear weapons tests. In addition, allowing the suits to be brought would further public policy by making the government accountable for the injuries caused by its tortious acts thereby motivating the government to take ac- tion to prevent future injuries to its employees. In those instances where the children are successful in reaching the trial courts, the government should bear the burden of proving lack of causation because the government created an evidentiary void, making it virtually impossible for the children to prove that their fathers were exposed to a level of radiation sufficient to cause the birth defects. Because liability still may be denied based on the failure of the children to establish that their injuries were actually caused by their fathers' exposure to radiation, Congress should develop a compensation scheme for the injured children. The government was grossly negligent in its management of the war games and should assume the responsibility of its negligence instead of placing the burden on the children or their families. Finally, if Congress chooses not to develop a compensation scheme, it should at least re-evaluate the provisions of the FTCA and amend them to permit the serv- icemen's children to bring an action under the Act. This way, the in- nocent victims of the government's quest for knowledge can be com- pensated for their injuries and suffering. Sharon L. Hulbert '"^See Monaco v. United States, 661 F^d 129, 134 n.3 (9th Cir. 1981), cert denied, 456 U.S. 989 (1982).