United States District Court, W.D. Washington, Tacoma
ARLY “DENVER” BOSH, EMEL BOSH, and their minor child, Plaintiffs,
UNITED STATES OF AMERICA, Defendants.
REPORT AND RECOMMENDATION TO DISMISS PLAINTIFF'S
THERESA L. FRICKE UNITED STATES MAGISTRATE JUDGE
matter comes before the Court on defendant United States
filing this motion to dismiss. Dkt. 5. The Court has
considered the complaint along with the pleadings filed in
support of and in opposition to the motion.
Arly “Denver” Bosh and Emel Bosh, individually
and on behalf of their minor daughter, D.T., filed this
Federal Tort Claim Act ("FTCA") case against the
United States in connection with a series of anthrax
vaccinations administered to plaintiff Emel Bosh at Madigan
Army Medical Center (“Madigan”) on Joint Base
Lewis McChord. Plaintiffs allege that unnamed medical
providers and superior officers injured plaintiff Emel Bosh
by the administration of unconsented to vaccination,
resulting in consequent injury to her husband, plaintiff Arly
Bosh, and their minor child D.T.
assert multiple tort claims, including medical malpractice,
negligent and intentional infliction of emotional distress,
failure to obtain informed consent, intentional interference
with business relations, injury to reputation and
humiliation, and loss of consortium (destruction of the
parent-child relationship and destruction of the spousal
relationship). Complaint, Exhibit A to Notice of Removal,
Dkt. 1-1, at 6-7. Plaintiffs additionally allege
constitutional tort violations of due process, equal
protection, free exercise of religion, and of privacy,
relating to the right to refuse medical treatment and the
rights of parents and spouses. Id. at 7.
defendant moves for dismissal, arguing that the Court does
not have subject matter jurisdiction over this case because
the United States has sovereign immunity. Dkt. 5. For the
reasons set forth below, the Court recommends that the motion
AND PROCEDURAL HISTORY
to the events of the complaint, the military had been ordered
under permanent injunction in 2004 to stop inoculation of
troops with anthrax vaccine adsorbed (“AVA”),
until the FDA approved the vaccine as safe for general
use. Doe v. Rumsfeld, 341 F.Supp.2d 1 (D.C. Cir.
2004). On December 19, 2005, the FDA classified AVA as
“safe and effective and not misbranded, ”
dissolving the injunction and allowing the military to resume
mandatory inoculation of troops. Doe v. Rumsfeld,
172 Fed.Appx. 327, 327-328 (D.C. Cir. 2006) (citing
Implementation of Efficacy Review; Anthrax Vaccine Adsorbed;
Final Order, 70 Fed. Reg. 75, 180, 75, 182 (Dec. 19, 2005)).
Emel Bosh was an active duty service member in the United
States Army at all times relevant to the complaint. Dkt. 1-1,
at 3. Under requirement pursuant to her military service,
three anthrax vaccines were administered to her at Madigan in
December 2017, April 2018, and August 2018. Id. at
3-4. She alleges she experienced increasingly severe adverse
reactions to the vaccine. Id. at 3. The first
vaccine induced flu-like symptoms including headaches,
sweats, and coughing. Id. She objected to taking the
second vaccine and requested a waiver. After the shot,
plaintiff experienced nausea, vomiting and migraines, in
addition to her prior symptoms. At one point during the
eight- to nine-day period of her adverse reaction, she
received emergency room treatment for migraines. Id.
The progressively worsening reactions to the first two
vaccines led plaintiff to withdraw her informed consent to
the third administration of the vaccine, and she repeatedly
requested a waiver from vaccination from the Army doctor, her
patient advocate, and her chain of command. Id. at
4. Although she received a week-long delay in vaccine, she
did not obtain a waiver. Id.
the compulsory administration of the third anthrax vaccine on
August 2, 2018, Emel Bosh developed nausea within a day, with
more symptoms over the course of weeks resulting in multiple
overnight stints at the hospital for an intense sensation of
coldness, severe chest pain, and frequent seizure-like
episodes. Dkt. 1-1 at 5. The Army medical staff had
instructed plaintiffs Emel and Arly Bosh to wait out the
reaction at home and avoid seeking treatment, but when Emel
Bosh became non-responsive several times during episodes of
seizurelike shaking, Arly Bosh paid out of pocket for
emergency room treatment. Id. The complaint does not
specify whether Emel Bosh's symptoms have since subsided,
but the seizure-like episodes continued for at least three
weeks after the administration of the vaccine. Id.
the severity of Emel Bosh's adverse reaction distressed
Arly Bosh to the point of triggering his combat-related PTSD,
and in the weeks following Emel's reaction, he feared for
her life, losing sleep while prioritizing her care among
other new household responsibilities. Dkt. 1-1, at 5. Their
minor child D.T. withdrew from her parents and her
schoolwork, having developed a fear of the military and
persistent debilitating anxiety about her mother's
health. Id. at 6. She has suffered from the
diminishment of care from her parents after these events.
further allege that due to Emel Bosh's objections to the
vaccine, the Army claimed that she was unfit for service when
she was considered for a position at the Federal Bureau of
Investigation, interfering with the placement process. Dkt.
1-1, at 6.
Emel Bosh has not yet filed an administrative claim with the
defendant. Declaration of Connie M. McConahy, Dkt. 6, at 1.
Plaintiffs Arly and D.T. Bosh filed their first
administrative claim with defendant, which the Army denied on
December 11, 2018. Letter from David Anglin, Lt. Col., Chief
of Tort Claims Division, U.S. Army to Richard Simpson,
Plaintiff's Counsel, Dkt. 7, Ex. 1, at 14.
January 28, 2019, Plaintiffs' counsel sent a letter to
the Army attempting to negotiate a settlement. Letter from
Richard Simpson to David Anglin, Lt. Col., Dkt. 7, Ex. 2, at
20. Plaintiff's counsel did not represent Emel Bosh at
that time. Id. On May 1, 2019, Plaintiffs'
counsel sent another letter informing the Army that he had
assumed the representation of Emel Bosh, without presenting a
statement of her claims or a sum certain of her damages. 2nd
Letter from Richard Simpson, to David Anglin, Lt. Col., Dkt.
7, Ex. 3, at 16. The Army treated the January letter
as a request for reconsideration of the claims for Mr. Bosh
and D.T. and specifically denied their pending
reconsideration requests on June 11, 2019. Letter from
Mortimer Shea, Director of Soldier and Family Legal Services,
U.S. Army, to Richard Simpson, Dkt. 7, Ex. 3, at 20.
Plaintiff filed this case on June 11, 2019, in Pierce County
Superior Court. Dkt. 1-1, at 2. The case was removed to this
Court on July 5, 2019. Notice of Removal, Dkt. 1.
moves to dismiss the claims against it for lack of subject
matter jurisdiction pursuant to Rule 12(b)(1) of the Federal
Rules of Civil Procedure. Defendant asserts sovereign
immunity, except to the extent that it consents to be sued.
United States v. Mitchell, 463 U.S. 206, 212 (1983).
The Federal Tort Claims Act (“FTCA”) constitutes
a limited partial waiver of sovereign immunity. See
28 U.S.C § 2679(b). Defendant argues that the FTCA is
not applicable to this case because the rule announced in
Feres v. United States, 340 U.S. 135 (1950) bars
claims arising out of injuries that “arise out of or
are incident to service” in the military. Dkt. 5, at 5.
asserts that plaintiff Emel Bosh was an active duty service
member during the receiving care at Madigan, an Army
hospital, when she received the anthrax vaccination and
suffered an adverse reaction; and asserts that plaintiffs
Arly Bosh and D.T. allege only injuries that are derivative
from Emel Bosh's injuries. Dkt. 5, at 1-2. Defendant
argues that using the Ninth Circuit's preferred
Feres method of comparing analogous cases, the
application of Feres in this case would support the
dismissal of all plaintiffs' claims. Id. at 6-7.
Defendant raises an exception to the FTCA's waiver that
would preclude plaintiffs' interference with business
relations entirely. Id. at 8.
also moves (in the alternative) for dismissal of
plaintiffs' constitutional claims under Rule 12(b)(6),
arguing that even if the Court finds that it has subject
matter jurisdiction, plaintiffs have pleaded insufficient