Aaron Schwarder Donna Eubanks Kathleen Schwarder v. United States

974 F.2d 1118 61 USLW 2156 Aaron SCHWARDER; Donna Eubanks; Kathleen Schwarder, Plaintiffs-Appellees, v. UNITED STATES of America, Defendant-Appellant. No. 91-55273. United States Court of Appeals, Ninth Circuit. Argued and Submitted May 7, 1992. Decided Sept. 4, 1992. Michael T. Truscott, U.S. Dept. of Justice, Washington, D.C., for defendant-appellant. Samuel Shore, Law Offices of Samuel Shore, Los Angeles, Cal., Jerry S. Berger, Law Offices of Jerry Solomon Berger, Beverly Hills, Cal., for plaintiffs-appellees. Appeal from the United States District Court for the Central District of California. Before: ALARCON, NORRIS, and O'SCANNLAIN, Circuit Judges. WILLIAM A. NORRIS, Circuit Judge: 1 The United States appeals a judgment for $330,000 in compensatory damages to Aaron Schwarder, Donna Eubanks, and Kathleen Schwarder, (referred to collectively as "the Schwarder children") for the wrongful death of their father, Harry N. Schwarder. The Government contends that the Schwarder children's action was barred by the Federal Tort Claims Act, 28 U.S.C. § 2672 , because Harry Schwarder and his wife previously entered into an administrative settlement with the Government in which they…

The United States appeals a judgment for $330,000 in compensatory damages to Aaron Schwarder, Donna Eubanks, and Kathleen Schwarder, (referred to collectively as “the Schwarder children”) for the wrongful death of their father, Harry N. Schwarder. The Government contends that the Schwarder children’s action was barred by the Federal Tort Claims Act, 28 U.S.C. § 2672 , because Harry Schwarder and his wife previously entered into an administrative settlement with the Government in which they received $285,000 and agreed to relinquish any future claims arising out of his injury. The Government also contends that the Schwarder children’s award violates California Civil Code § 3333.2, which limits non-economic damage awards in professional negligence actions to $250,000. We affirm.

I

On August 10, 1984, Harry Schwarder sought medical attention at the Loma Linda Veterans Administration Hospital and Clinic (Loma Linda) for a lump on his right knee. As a result of biopsy surgery, physicians at Loma Linda determined that the lump was a malignant tumor which might recur or metastasize. This diagnosis was confirmed by the staff of the Armed Forces Institute of Pathology who recommended…

concurring in part and dissenting in part.

The question we must decide in this case is a narrow one. Has Congress procedurally barred the maintenance of a wrongful death action by the decedent’s survivors when the deceased or his estate previously settled the claim for physical injuries with the United States? I respectfully dissent from the majority’s conclusion that we may imply an intent by Congress to waive the sovereign immunity of the United States against wrongful death actions under such circumstances. To the contrary, in enacting section 2672, Congress precluded an heir’s wrongful death claim where the decedent or his or her estate entered into a settlement agreement with the United States. I concur in the majority’s conclusion that if the Schwarder children’s wrongful death action is proper under section 2672, the amount awarded by the district court does not violate the Medical Injury Compensation Reform Act of 1975 (MICRA), Cal.Civ.Code § 3333.2.

I. Waiver of Sovereign Immunity— Exclusions are Controlled by Federal Law

Before discussing the merits of this appeal, we must first consider the law that applies to this case. It is clear that federal law governs all…