Opinion
3:01-cv-01348-HU
April 15, 2004
James E. McCandlish, Wm. Keith Dozier, Jr., Griffin McCandlish, Portland, oregon, Attorneys for plaintiffs.
James C. Brennan, Henry T. Miller, United States Department of Justice, Washington, D.C., Don F. Pollock, LTC, JA, Environmental Law Division, Attorneys for defendant.
OPINION AND ORDER
This is the latest of several rounds of briefing and argument on the question of whether the United States was required to provide plaintiffs with gas masks as part of its duty to provide plaintiffs with medical treatment in the event of suspected or actual exposure to nerve agent. During Phase One of the trial, which was limited to the issue of whether the United States' conduct after the incident of September 15, 1999 was governed by mandatory or specific requirements, and therefore not within the discretionary function exception to the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2680(a), plaintiffs contended that gas masks were encompassed within medical treatment. The court disagreed, and declined to address the issue of gas masks during Phase One.
During discussions of the scope of Phase Two of the trial, plaintiffs requested another opportunity to argue that the provision of gas masks was encompassed within the United States' duty to provide medical treatment. In their briefs, plaintiffs make three arguments: first, that specific regulations and statutes require the United States to supply construction workers with ready access to gas masks; second, that even absent such regulations, the United States' decision not to provide gas masks constituted a failure to effectuate the congressional policy of protecting worker safety; and third, that the United States' negligent failure to provide access to gas masks as the "first line of self-administered medical treatment" constituted medical malpractice not within the discretionary function exception.
1. Statutory mandates
a. DA-PAM 40-8 and 40-173
Plaintiffs assert that the designation of the UMCD construction workers as within the "agent worker" risk category specifically required the provision of ready access to gas masks as personal protective equipment (PPE). Plaintiffs cite Department of the Army Pamphlets (DA PAM) 40-8 and 40-173. However, this argument is unpersuasive. These regulations do not require the United States to provide gas masks as medical treatment. To the extent gas masks are required by these regulations, they are described as personal protective equipment — that is, their purpose is precautionary and protective rather than remedial after the event.
b. Report of the Center for Disease Control and Prevention (CDC)
As further support for their position, plaintiffs cite to a report prepared by the CDC at the request of the Oregon Department of Environmental Quality (DEQ). In a letter dated January 8, 2001, DEQ asked the CDC "review the chemical agent monitoring program" at UMCD, particularly the applicability of so-called "agent worker" exposure limits to other populations "in the context of the storage area monitoring conducted at the Depot." In a report dated April 2001, the CDC concluded that the published worker exposure limits for chemical warfare agents could apply to non-K-Block workers such as the plaintiffs, assuming that medical surveillance and other requirements defined in DA PAMs 40-173 and 40-8 were implemented.
This document does not support plaintiffs' assertion that the United States had a mandatory duty to provide gas masks to the plaintiffs as medical treatment. First, the report does not address gas masks. Second, the report was prepared after the September 15, 1999 incident which forms the basis for this action, and therefore cannot establish the existence of a specific and mandatory requirement to provide gas masks as medical treatment on or before September 15, 1999. Third, the report is neither a federal statute, nor a regulation and cannot therefore impose a duty on the United States.
c. Army Regulation (AR) 385-61
Plaintiffs renew their argument that the United States failed to make a site-specific hazard zone assessment before deciding gas masks were not necessary for construction workers in the areas adjacent to K-Block. Again, this argument is irrelevant. The regulation in question deals with risk analysis. The decision made was to eliminate gas masks as protective equipment. Neither the regulation nor the decision had anything to do with gas masks as post-event medical treatment.
2. Federal policy
Plaintiffs argue that general policy language of Public Law 104-106, codified at 50 U.S.C. § 1521, imposes a duty on the United States to protect the safety of the general public and workers involved with munitions. However, the statutory provisions quoted by the plaintiffs do no more than state broad general policy. For example, section 152(a) provides:
The Secretary of Defense shall . . . maintain the maximum protection of . . . the general public and the personnel involved in the actual destruction of the munitions. In carrying out such program the Secretary shall use technologies and procedures that will minimize the risk to the public at each site.
The provisions do not impose a specific, nor even an implied duty on the United States to provide gas masks as medical treatment to construction workers at UMCD.
3. Gas masks as constituting the actual administration of medical care
Plaintiffs cite the case of Fang v. United States, 140 F.3d 1238, 1242 (9th Cir. 1998) in support of their assertion that claims which challenge the "actual administration of medical care" are not subject to the discretionary function exception. They assert that gas masks are an "essential component of any treatment administered during the time immediately following exposure," because emergency first aid procedures for people exposed to nerve agents involve holding the breath until a respiratory protective mask is donned. I do not find this argument persuasive.
In Fang, the court held that the discretionary function exception did not apply to Park Service emergency rescue personnel who were negligent in failing to stabilize the spine of an injured person or to give proper CPR. See also Sigman v. United States, 217 F.3d 785, 795 (9th Cir. 2000) (discretionary function exception not meant to shield the government from claims of "garden-variety medical malpractice.") However, as the United States points out, the issue currently confronting the court is not an alleged medical error or mistake, but rather the existence, or non-existence, of a rule prescribing a particular course of conduct. The distinction is emphasized inFang, where the court held that "decisions regarding the equipment to be kept" at each first-aid station "and the EMT training level of the persons stationed there," are "fully protected by the discretionary function exception to the FTCA." 140 F.3d at 1242.
The court reaffirms its previous rulings that the discretionary function exception applies to the United States' decision not to require the provision of gas masks to the plaintiffs. Accordingly, the question of whether plaintiffs should have been provided gas masks as medical treatment will not be included in Phase Two of the trial.
IT IS SO ORDERED.