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Bosh v. United States

United States District Court, W.D. Washington, Tacoma

September 12, 2019

ARLY “DENVER” BOSH, EMEL BOSH, and their minor child, Plaintiffs,
v.
UNITED STATES OF AMERICA, Defendants.

          REPORT AND RECOMMENDATION TO DISMISS PLAINTIFF'S COMPLAINT

          THERESA L. FRICKE UNITED STATES MAGISTRATE JUDGE

         This 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.

         Plaintiffs 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.

         Plaintiffs 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.

         The 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 be granted.

         BACKGROUND AND PROCEDURAL HISTORY

         Prior 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)).

         Plaintiff 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.

         Following 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.

         Witnessing 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. Id.

         Plaintiffs 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.

         Plaintiff 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.

         On 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.

         Defendant 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.

         Defendant 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.

         Defendant 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 facts ...


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