Appeal from the United States District Court for the Western District of Washington. D.C. No. CV-89-446T. Jack E. Tanner, District Judge, Presiding.
Before: Eugene A. Wright, Jerome Farris and Stephen S. Trott, Circuit Judges. Opinion by Judge Farris.
The United States appeals the district court's judgment, following a bench trial, in favor of Nicole Vollendorff, her parents Michael and Heidi Vollendorff, and Gordon Godfrey, Nicole's guardian ad litem, on their claim under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) and 2671, et seq. We affirm.
On August 6, 1987, when Nicole Vollendorff was 19 months old, she ingested Chloroquine, a malarial prophylactic prescription medicine.
Chloroquine is especially toxic to young children. The Physicians' Desk Reference advises that a number of fatalities have been reported following accidental ingestion of Chloroquine. See Physicians' Desk Reference 2320 (45th ed. 1991).
Chloroquine had been prescribed by an Army physician at Madigan Army Medical Center for Nicole's grandfather, Chief Warrant Officer Gary Vollendorff, an Army helicopter pilot, in connection with Gary's recent tour of duty in Honduras. Because Honduras is an endemic malarial area, the Army requires its personnel serving there to take Chloroquine, both for personal benefit and because of readiness concerns.
To be effective, Chloroquine must be taken once a week for a period of six weeks after departure from the malarial area. Gary had a bottle of the medicine on the kitchen counter of his home near Fort Lewis, Washington on or around August 2, 1987, before leaving with his wife for a one-week vacation. Because Gary disliked child-proof medicine bottles, he stored the Chloroquine without securing the bottle top.
Twice in the period before his departure on vacation, Nicole had gained access to Gary's pills when she was placed on the kitchen countertop by Gary or his wife. Both times, the pills were taken from Nicole, and she was removed from the countertop by either Gary or his wife. In spite of his knowledge that Nicole had been attracted in the past to his pills, Gary continued to store his medication on the countertop without securing the child-proof bottle top.
During Gary's absence, his son Michael, daughter-in-law Heidi, and their daughter Nicole, house sat for Gary and his wife. On August 6, 1987, Heidi placed Nicole on the countertop while she washed dishes. While working at the sink, Heidi heard pills spilling and looked to see Nicole with an open pill bottle in her hand. Heidi saw that Nicole had something in her mouth, opened the child's mouth, and removed part of a pill. She took the bottle from Nicole's hand and removed the child from the countertop, believing that she had averted an accident. Ten minutes later, Nicole began to show signs of distress, prompting Heidi to call the local hospital, which connected her with poison control. While Heidi was on the line with poison control, Nicole's condition deteriorated. Heidi was then transferred to 911. Emergency crews arrived soon after to find Nicole unconscious. Their resuscitation efforts continued for about an hour. Nicole was then taken to the hospital.
At the hospital it was determined that Nicole had ingested Chloroquine. Permanent brain damage resulted causing substantial cognitive and communicative impairment. In 1989, Nicole's guardians ad litem and her parents initiated this diversity action against various defendants. Several orders by the district court left the government as the sole defendant at trial.
Following a bench trial, the district court held that the prescribing Army physician and the dispensing Army pharmacist breached a duty to warn and thereby proximately caused Nicole's injury. The district court alternatively held that the Army was ...