Citation. Loge v. United States, 1982)
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Brief Fact Summary.
The United States District Court for the Western District of Arkansas dismissed the complaint of Mr. and Mrs. Loge (Plaintiffs), in which they alleged liability of the United States and unknown employees of the Department of Health, Education, and Welfare (HEW) (Defendants) under the Federal Tort Claims Act (FTCA), 28 U.S.C. Section:Section: 1346(b), 2671 et seq. The court based its decision on the ground that it failed to state a cause of action. Plaintiffs appealed.
Synopsis of Rule of Law.
The victims of a constitutional violation by a federal agent have a right to recover damages against the official in federal court despite the absence of any statute conferring such a right. An action is available even though Plaintiffs’ allegations could also support a suit filed under the FTCA.
In 1963, the Secretary of HEW licensed a lab to manufacture Orimune, a polio vaccine. There was a risk to those inoculated of contracting the disease. Ms. Loge was exposed to the poliovirus in 1976, when her infant son was inoculated. She developed polio, and became paraplegic. She and her husband brought suit.
Did the Department of HEW assume the duty of cared owed by the drug manufacturer therefore making it liable under FTCA?
Yes. The United States Court of Appeals for the Eighth Circuit concluded that the district court erred in its ruling that the Plaintiffs had failed to state a claim under Arkansas law.
Discretionary immunity is that immunity afforded to public officials when they make decisions founded on planning or policy considerations. The decision in Loge indicates that when federal regulations incorporate a standard of safety, the government’s violation of that standard is not discretionary but subject to liability. As the court stated, “[t]he Federal Tort Claims Act is not a federal remedial scheme at all, but a waiver of sovereign immunity that permits an injured claimant to recover damages against the United States where a private person would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” The court described government liability in culpable terms, i.e., that in violating its own standard it was constructively negligent when it stated that “[i]t can be said that the government increased the risk of harm to the Loges by licensing an allegedly untested or negligently tested lot of that vaccine: if either the
product itself or a particular lot of that product failed to conform to standards established by the regulations, then proper testing or proof of testing would have revealed the nonconformity and the vaccine would never have been disseminated.” Its action then was not the function of careful adherence to policy, but failure to do so, which removed the cloak of discretionary immunity.