Maury

Plaintiffs have moved to amend their first amended complaint by adding an alleged “Second Cause of Action.” The material portion of the amendment is set forth in proposed paragraph II as follows:

The first cause of action is for the wrongful death of the child and its propriety as a matter of pleading is not challenged.

This action is brought under the provisions of the Tort Claims Act, 28 U.S.C. § 1346 (b), where an action may be brought against the United States, “ * * * under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” This occurrence is alleged to have taken place in California. Therefore the validity of the amendment must be determined according to the law of California.

The Government opposes the amendment asserting that it fails to state a cause of action under California law, and, therefore, fails to state a claim for relief under the Federal Rules of Civil Procedure, 28 U.S.C.A. The gist of the alleged claim is that plaintiffs were damaged in that they became physically ill from shock and mental anguish caused by the knowledge that their small…