Are the kids okay?

"Rarely does the law visit upon a child the consequences of actions attributed to the parents." Mondelli v. U.S., 711 F.2d 567 (1983) ... except under the Feres Doctrine.

The military is not known for being particularly careful about exposing its service members to toxic substances, radiation and other environmental hazards. And when those service members suffer health injuries due to such exposures, the military need not worry about liability. It can always depend on the protection it enjoys under the Feres Doctrine.

But what about the children of those service members who suffer birth injuries as a result of a parent's exposure to toxins while serving in the military? This article will explore how the courts apply the Feres Doctrine to those children. With at least one birth defect resulting from a parent's exposure to toxins in the military, Congress took action.

Feres v. United States

The United States government luxuriated in sovereign immunity until the enactment of the Federal Tort Claims Act in 1946. 28 U.S.C. §1346(b) et seq. The Act was passed after a military plane maneuvering through heavy Manhattan fog in 1945 swerved to avoid the Chrysler Building and crashed into the 78th floor of the Empire State Building, causing many deaths and immense property damage.

Thus, when Army Lieutenant Rudolph Feres was killed in a barracks fire resulting from negligence by the military shortly after the FTCA went into effect, his family could make a claim against the military...right? Well, the family tried, but when the case reached the United States Supreme Court in 1950, the court created the infamous Feres Doctrine. In Feres v. United States, 340 U.S. 135 (1950), the high court held that, despite the FTCA, the government is not liable for injuries to members of the armed forces sustained "in the course of activity incident to service."

One major consideration of federal courts in analyzing cases and justifying application of the Feres Doctrine is that service members injured by toxins will have the benefit of compensation and medical care in the military and later through the Department of Veterans Affairs. See United States v. Johnson, 481 U.S. 681 (1987).

Injured children

Minns v. United States, 155 F.3d 445 (1998)

In preparation for Operation Desert Storm and the Persian Gulf War, the United States military inoculated its servicemen and exposed them to toxins and pesticides in anticipation of possible biological and chemical attacks by Iraq. The children of three service members claimed in Minns that the military negligently administered and used "investigational" and defective drugs on their service member fathers, causing the children, who were born after the war, serious birth defects.

All three kids suffered from Goldenhar's Syndrome, a rare birth defect producing deformity, including asymmetry of the face and body, a partially developed or lopsided ear, internal fistulas, and, in some cases including these children, esophageal malformations and the absence of an anal opening.

A federal district court dismissed the case under the Feres Doctrine. All three families appealed, arguing that even though the service members were barred from suing for negligence under the Feres Doctrine, the children were not.

The Fourth Circuit Court of Appeals found against the children. The appeals court analyzed the reasons for the Feres Doctrine: the peculiar and special relationship of the soldier to superiors, the effects of the maintenance of such suits on discipline, and the extreme results that might occur if suits under the FTCA were allowed for negligent orders given or negligent acts committed in the course of military duty. The court concluded that the considerations that prohibit service members' suits against the government also prompt the extension of the Feres Doctrine to prohibit non-service members' suits against the government that are derivative of or ancillary to service members' injuries.

The circuit court in Minns also based its ruling on the FTCA's discretionary function exception. That is, Congress does not want courts second guessing the policy decisions of federal agencies. The court noted that when discretionary decisions are ones of professional military discretion, they are due the courts' highest deference. It stated that even if the military used investigational, worn out, or defective drugs that had been stored too long, someone in the military nevertheless made the decision to use them, and that decision, with all its alleged flaws, amounted to a judgment that the risk of using these drugs was less than the risk of exposing unprotected soldiers to potential biological and chemical attack.

Monaco v. United States, 66 129 (1981)

During World War II, a service member, Monaco, was stationed at the University of Chicago where atomic reactions were being conducted in an underground laboratory in connection with the Manhattan Project. In 1971, Monaco was apprised his exposure to radiation at the time caused radiation induced cancer of the colon. Monaco also learned at the same time that the radiation induced a genetic change that caused his daughter to be born with a birth defect known as arterio-venous anomaly of the brain. That defect induced brain hemorrhages in the child as well as aphasia and other permanent injuries.

Father and daughter sued the government. Both of their actions were dismissed under the authority of the Feres Doctrine.

The Ninth Circuit Court of Appeals affirmed the dismissals over 40 years ago, noting that "the Feres Doctrine today stands on shaky ground with its precise justification somewhat confused."

Mondelli v. United States, 1983, 711 F.2d 567 (1983)

A baby was born with retinoblastoma, a genetically transmitted cancer of the retina. In 1953 her father participated in the test of a nuclear device while on active military duty. The girl's complaint recited that her father was ordered by his commanding officers to stand near the site of a nuclear explosion and to march toward the blast area, without the benefit of protective clothing, exposing him to massive doses of radiation. The child lost the use of her left eye and she alleged the cause was her father's exposure to radiation.

The Third Circuit Court of Appeals foreclosed the girl's action, relying on the Feres Doctrine. The court lamented: "We sense the injustice to Rosemarie Mondelli of this result. Rarely does the law visit upon a child the consequences of actions attributed to the parents."

Hinkie v.. United States, 715 F.2d 96 (1983)

In the mid-1950s, an Army service member worked on a series of nuclear tests that took place in the Nevada desert. He wore badges that supposedly kept track of his radiation exposure, but said the Army never recorded the numbers and later lost the badges. His wife suffered a series of miscarriages, but they eventually had a son. The boy was born with birth defects including Rubenstein-Taybies syndrome, lack of joints in his thumbs, constant uncontrollable twitching of his eyes, severe mental retardation and photophobia. The family alleged the birth defects were a result of the father's radiation exposure.

The Third Circuit Court of Appeals held the action was barred under the Feres Doctrine.

The Agent Orange Benefits Act, Public Law 104-204

Congress acted with regard to the many cases of spina bifida, a spinal cord birth defect. Surgery to close the infant's back and to protect the spinal cord is generally performed within 24 hours after birth to minimize the risk of infection and to preserve existing function in the spinal cord. More surgeries are often necessary. As of Jan. 1, 1997, the Agent Orange Benefits Act became law. The Act established a benefits package for veterans' children who were born with spina bifida as a result of a parent's exposure to defoliants and herbicides such as Agent Orange during active service in Korea or the Republic of Vietnam during wartime. Those children may be able to get disability benefits under the Act.

Use of other toxins in the military

The Wounded Warrior Project reports that an estimated 3.5 million veterans have been exposed to contaminants such as burn pits, toxic fragments, radiation, and other hazardous materials during deployment.

For decades, the Navy procured equipment containing asbestos, hurting sailors who often developed cancer. In 1966, a U.S. Air Force bomber and tanker collided over Spain when attempting inflight refueling, occasioning exposure of 1,600 service members to plutonium. As noted, in Vietnam the military used Agent Orange as part of its chemical warfare program, and that resulted in such illnesses as leukemia and Hodgkin's lymphoma in military personnel and birth defects such as spina bifida in their children. Service members who served in the Gulf War came home with enduring chronic illnesses after exposure to certain pesticides. When Navy sailors were dispatched to Japan after its Fukushima Daiichi Nuclear Power Plant exploded following the 2011 tsunami, they were exposed to radiation.

Increasingly our armed forces are imperiled by toxic hazards that have adverse effects on their health. Those who served in Iraq and Afghanistan got to experience burn pits, used in overseas bases for waste management. Despite requirements that only certain items were safe to burn in open pits, there was testimony in In re: KBR, Inc., Burn Pit Litigation (2017) 893 F.3d 241, that if something was not specifically prohibited, then it was allowed to be burned. Abandoned vehicles, synthetic piping and jet fuel were burned in those pits, some as large as municipal dumps.

Many service members developed severe respiratory diseases and brain cancer after exposure to burn pits, including Beau Biden, who succumbed to a brain tumor.

The Department of Veterans Affairs has a list of problems to which former service members may have been exposed in various parts of the world. Besides Vietnam, the Persian Gulf, Iraq and Afghanistan, it lists anyone who served at Camp Lejeune between 1953 and 1987 because contaminants were found in drinking water. Those who served on certain ships may have been exposed to the risk of illnesses resulting from chemical testing.

Conclusion

We don't know what we don't know.

We left Vietnam in the 1970s, yet presumptive conditions resulting from exposure to the herbicide Agent Orange are still being added to the list. Prostate cancer was added in 2013. Bladder cancer, hypothyroidism and Parkinsonism were added in 2021.

As noted above, it has long been known that radiation causes various birth defects and that other birth defects result from a parent's exposure to toxins. A June 2019 article in This Week in Asia states that environmentalists predict another six to 12 generations of birth defects as a result of the toxic herbicides used in Vietnam.

What we don't know yet is what other birth defects or conditions will develop in the children of parents who were exposed to the current potpourri of toxins the military has to offer.

The immorality of the Feres Doctrine becomes apparent when one considers the kids. The children of those who served their country didn't sign up for deformities. The least we can do is allow them to ask for damages.