Miller v. United States

Plaintiff, the widow of an Army sergeant who died in a military hospital in Japan, appeals the dismissal of her action against the government for negligent infliction of emotional distress. The issues on appeal are: (1) whether the foreign country exception of the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2680 (k), in conjunction with the exclusive remedy provision of the Federal Employees Liability Reform and Tort Compensation Act of 1988 (“Liability Reform Act”), 28 U.S.C. § 2679 (d)(1), denies plaintiff equal protection of the laws under the Fifth Amendment Due Process Clause; and (2) whether the statutory scheme operates as an unconstitutional taking of a valuable property right in violation of the Fifth Amendment.

FACTS

Plaintiff Sally Miller is the widow of Master Sergeant Lawrence Miller who died in a military hospital in Japan, allegedly as a result of malpractice by the military physicians who attended him. Plaintiff was present during the physicians’ course of diagnosis and treatment and here seeks damages for emotional distress she claims that she suffered as a result. In her amended complaint, brought under diversity jurisdiction, plaintiff named these physicians…