United States District Court, Central District of California

Opinions and Orders of Previous Years

Subject: Case Number:Title:Date Posted:
Opinions and Orders of Previous Years SA CV 93-991 AHS (EEx) Sara Sabow and John D. Sabow v. The United States of America - Findings of Fact and Conclusions of Law after Bench Trial in Support of Judgment for Defendant02/17/2000

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
SOUTHERN DIVISION

SARA SABOW AND JOHN D. SABOW,
Plaintiffs,

v.

THE UNITED STATES OF AMERICA,

Defendant.
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Case No. SA CV 93-991 AHS(EEx)

FINDINGS OF FACT AND
CONCLUSIONS OF LAW
AFTER BENCH TRIAL IN
SUPPORT OF JUDGMENT

I.
INTRODUCTION

Plaintiffs Sara Sabow and John David Sabow, M.D., bring this action to recover money damages under the Federal Tort Claims Act (FTCA), 28 U. S. C. 1346, 2671, et seq. Plaintiffs are the widow and brother of decedent, United States Marine Corps (“USMC”) Col. James Sabow. Remaining for trial were tort claims by plaintiffs asserting injury, first, due to alleged conduct by defendant, through its agents and representatives at a meeting with plaintiffs held on March 9, 1991 (“the March meeting”), and, second, due to the alleged attempt by USMC General Adams to influence the status of Dr. Sabow’s medical license. The law of the case is set forth in Sabow v. United States, 93 F.3d 1445 (9th Cir., 1996).

Trial of the cause to the Court took place on January 19, 20, 21, 25, and 26, 2000. At the conclusion of plaintiffs’ case, defendant made an oral motion for judgment as a matter of law under Rule 52(c). The Court deferred ruling until the exhibits and submissions of the parties were reviewed. Having issued summary findings in favor of defendant from the bench on January 26, 2000, the Court now enters additional findings of fact and conclusions of law in support of judgment for defendant.

If certain findings of fact should more correctly be termed conclusions of law and if certain conclusions of law should more correctly be termed findings of fact, then each entry so regarded is deemed to be the other.

II.
FINDINGS OF FACT

A. Preliminary Facts

1. On January 22, 1991, Col. James Sabow was found dead at his residence at the Marine Corps Air Station at El Toro, California (“MCAS-El Toro” or “El Toro”). The conclusion of several investigations was that his death had resulted from suicide.

2. Plaintiffs did not believe the investigative results. Over the course of the next several weeks, they made their displeasure with the investigative outcome known.

3. With the death of Col. Sabow, the Inspector General’s investigation into Col. Sabow’s alleged misconduct ceased.

4. Dr. Sabow has always been convinced from the time of his brother’s death to the present day that Col. Sabow would never have committed suicide because of his religious background, family ties, and military record of accomplishments.

5. Plaintiffs have never believed that the decedent either did anything wrong or committed suicide.

6. In the eight years since the death, Dr. Sabow has made statements to the print media and testified before Congress to make known his views of his brother’s death and the military and civilian investigations conducted into that death.

B. The Meeting of March 9, 1991

7. On March 9, 1991, in an effort to address the concerns of plaintiffs, seven military and civilian employees and former employees of the United States Marine Corps and Navy sat down with these two plaintiffs in a meeting. Those in attendance at the meeting were: Base Commander, USMC Brigadier General Wayne T. Adams; USMC Lt. General J.K. Davis; USMC Brigadier General David V. Shuter; USMC El Toro Staff Judge Advocate General Col. Wayne Rich; USMC Provost Marshal Major J.W. Goodrow; Naval Investigative Service (“NIS”) Special Agent Michael Barrett; NIS Special Agent Burt Nakasone, and plaintiffs Sara Sabow and John David Sabow, M.D.

8. The March meeting occurred on a Saturday in a conference room in the office of the base command at El Toro. The circumstances were meant by defendant to be informal: e.g., there were no formal remarks, no transcription of the proceedings, no set time limit, no refreshments. Water was available to all. All participants were free to leave at anytime, including the Sabows. None chose to do so. Moreover, although they could have requested that a break be taken at anytime, neither Dr. Sabow nor Mrs. Sabow ever so requested. Nor did plaintiffs request refreshments.

9. The purpose of the meeting was to provide the Sabows with as much of the factual predicate for the conclusion that the decedent had committed suicide as was consistent with law and military procedure. Dr. Sabow thought the meeting was also to provide information about the investigation of Col. James Sabow (before his death) regarding misuse of government property.

10. Those employees of the Navy and the Marine Corps present at the meeting were keenly aware of both the pain that the family had endured and the delicacy of the issue under discussion. Many of them had been personal friends of the decedent and Mrs. Sabow, had attended his funeral, and had rendered assistance to his family in the aftermath of the death.

11. At the time of the meeting, several of the attendees were also aware that prior to his death, the decedent had been relieved of his duties by General Adams at the request of the Inspector General of the United States Marine Corps, Hollis Davison.

12. As Inspector General of the Marine Corps, it was General Davison’s responsibility to conduct investigations into allegations of waste, fraud, or abuse on the part of Marine Corps personnel.

13. Inspector General Davison had come to El Toro to investigate accusations against several military members, including Col. Sabow, for the misappropriation/misuse of military personnel and equipment.

14. Although the allegations did not amount to heinous crimes on the full spectrum of criminal activity, the alleged conduct, if true, was felonious and might have ended the decedent’s career.

15. Prior to his departure from MCAS-El Toro and prior to Col. Sabow’s death, Inspector General Davison briefed General Adams on his investigation into the alleged misconduct of Col. Sabow, including the potential charges that might eventually be preferred against Col. Sabow.

16. Those at the meeting were present to help the Sabows by supplying information and answering their questions as much as protocol would permit.

17. The meeting was convened by General Adams. Much of the information conveyed was provided by Col. Rich, who recently arrived at El Toro to serve as the Staff Judge Advocate General. Col. William Lucas, the former Staff Judge Advocate General, was not present, although Dr. Sabow had requested his attendance.

18. Col. Rich had not been at El Toro during the pendency of the investigations into the alleged misconduct by, or the death of, Col. Sabow. However, he had been briefed on these events. He was prepared to and did discuss the matters in issue with the Sabows.

19. At the meeting, Dr. Sabow did a great deal of the talking. The witness’ demeanor and manner of testifying is consistent with this observation, for the witness was loud, animated, and forceful in his testimony. At the meeting, Dr. Sabow repeatedly and adamantly stated that his brother would never have committed suicide and denied that his brother was capable of any serious misconduct.

20. Both Col. Rich and General Adams related that they had been informed that the evidence against the decedent developed by the Inspector General’s team tended to show to the contrary.

21. Both plaintiffs, but especially Dr. Sabow, became very heated in their accusations of incompetence and cover up. At times, the meeting was intense. Dr. Sabow was impeached by his inconsistent statement concerning the nature of the defendant’s agents’ behavior during the meeting.

22. Ultimately, Rich and/or Adams informed the Sabows of his understanding that the evidence of wrongdoing by the decedent had been strong. That understanding was not based on personal participation in that investigation nor a belief in its premises but on information conveyed to General Adams during the Inspector General’s investigation and at the exit interview conducted by the Inspector General on January 17, 1991.

23. After approximately three hours, a break in the proceedings was taken. As the other meeting participants moved about, in and out of the room, the Sabows and General Adams continued to talk. At no time were the doors locked or was exit forbidden.

24. The Sabows accused Adams and others of being intent on destroying Col. Sabow’s public reputation. General Adams heatedly denied the Sabows’ charges.

25. When the meeting reconvened, General Adams absented himself and all other military participants from the room so that the Sabows could meet privately with the two NIS special agents, Barrett and Nakasone, who had participated in the death investigation and reviewed the forensic evidence. As before, the circumstances were informal. The Sabows were free to leave or to take a break at any time.

26. Dr. Sabow challenged the statements and explanations offered by the agents, dismissed their conclusion of death by suicide, and concluded the second part of the meeting after approximately forty five minutes. The Sabows then departed.

C. The Medical License Letter-Writing Incident

27. At some time after the March meeting, in the Spring of 1991, a woman identifying herself as an office employee of Dr. Sabow called the office of Dr. Christopher Moor and spoke with his wife, Mrs. Valerie Moor. Dr. Moor was General Adams’ personal private physician in Yuma, Arizona.

28. During her conversation with Dr. Sabow’s receptionist/nurse, Mrs. Moor was asked to convey General Adams medical records by telefax to Dr. Sabow. When Mrs. Moor responded that Dr. Moor did not have a telefax machine, she was asked to send the records by overnight mail. When Mrs. Moor asked whether General Adams was being treated by Dr. Sabow’s office, she was given a response that led her to assume so. Mrs. Moor said she would have to consult with her husband regarding the request.

29. The following day, Mrs. Moor received another call from Dr. Sabow’s office. In response to a question, Mrs. Moor stated that she had not sent the requested records. At some point during this conversation, Dr. Sabow took the phone, identified himself, and told Mrs. Moor that he needed the records immediately. When asked if General Adams was there being treated by Dr. Sabow, Dr. Sabow responded that the General was not there at the time. Dr. Moor’s office did not send any records.

30. Dr. Sabow caused the impression to be created that he was General Adams’ emergency treating physician in order to obtain the unauthorized release of General Adams’ confidential medical records from his personal physician, Dr. Moor.

31. Following the March meeting, General Adams learned of the unsuccessful efforts by Dr. David Sabow to try to obtain General Adams’ medical records.

32. General Adams instructed the Staff Judge Advocate to look into the matter to determine if any violations of law or medical ethics had occurred and to draft an appropriate letter for his consideration.

33. A letter to the South Dakota Board of Medical Examiners (i.e., the medical licensing authority of the state wherein Dr. Sabow was licensed to practice medicine) was drafted for General Adams’ use. The letter was never sent.

34. Dr. Sabow received a copy of this unsigned, undated, unsent letter in July of 1991 from Leslie Williams. She had merely found a packet of materials on her desk one day and mailed the package to Dr. Sabow in South Dakota as instructed by a “Post-It” note.

35. The sending of this package of information (see Exhibits received for limited purpose of showing information plaintiff Dr. Sabow says was received in July of 1991) was designed to assist Dr. Sabow in his crusade to clear his late brother’s good name and to resolve his questions concerning the cause of death; the package was not intended to cause emotional distress to plaintiffs nor did it do so, intentionally or negligently.

36. Plaintiffs have shown that they were emotionally distressed before, during, and after the March meeting. The meeting itself did not cause their distress, although its circumstances — the content and the fact of its occurrence — exacerbated their distress and discontent.

37. There is no connection to be made that what the defendant’s agents did at the meeting in any way intentionally or negligently inflicted the distress that plaintiffs experienced.

38. The allegations of the complaint are not supported by the evidence. There was no locked room, no forcible containment, no denial of bathroom privileges, nor refusal of water or food breaks. As to the last, it is clear that none were wanted and none were requested. As plaintiffs testified, this was, at least in plaintiffs’ view, a serious business meeting and they wanted to learn all they could learn. However, that they did not hear what they wanted to hear does not constitute outrageous conduct by defendant.

39. The proposition that the defendant brought its various employees and agents to the March meeting as part of a conspiracy to browbeat the Sabows into refraining from “going public” with their complaints is not credible. The witnesses, including plaintiffs, establish, on the one hand, that nothing told to plaintiffs would have been given credence by them. On the other hand, nothing shows an intent or negligent behavior by defendant to make or cause the plaintiffs to suffer.

III.
CONCLUSIONS OF LAW

1. Jurisdiction over this suit lies under the Federal Tort Claims Act. It is axiomatic that "the United States, as sovereign, is immune from suit save as it consents to be sued, ... and terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit." Lehman v. Nakshian, 453 U.S. 156, 160, 69 l. Ed. 2d 548, 101 S. Ct. 2698 (1981) (quoting United States v. Testan, 424 U.S. 392, 399 (1976)). Where the United States waives its immunity from suit, as it does under the Federal Tort Claims Act, "limitations and conditions upon which the government consents to be sued must be strictly observed and exceptions thereto are not to be implied." Lehman, 453 U.S. at 161 (quoting Soriano v. United States, 352 U.S. 270, 276 (1957)).

2. In enacting the Federal Tort Claims Act, Congress created a limited waiver of sovereign immunity designed to provide compensation to victims of "ordinary common law torts." Dalehite v. United States, 346 U.S. 15, 28, 97 L. Ed. 1427, 73 S. Ct. 956 (1953); Feres v. United States, 340 U.S. 135, 142, 95 L. Ed. 152, 71 S. Ct. 153 (1950). The Act does not create a substantive cause of action against the United States; it confers only a procedural remedy. Richards v. United States, 369 U.S. 1, 7 L. Ed. 2d 492, 82 S. Ct. 585 (1962).

3. Sections 1346(b) and 2674 of the Federal Tort Claims Act precondition jurisdiction and liability upon the existence of an actionable duty under state law, providing in pertinent part that "[t]he United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances . . . ." 28 U.S.C. 2674. Because the alleged torts occurred in California, the liability of the United States, if any, is governed by the substantive law of California as it applies to private defendants.

4. Under California law, the acts complained of do not constitute a claim for which relief can be granted under the Federal Tort Claims Act.

5. The elements of the tort of intentional infliction of emotional distress are:

(a) extreme and outrageous conduct by defendant;

(b) the intention of causing, or reckless disregard of the probability of causing, emotional distress;

(c) a plaintiff’s suffering severe or extreme emotional distress; and

(d) actual and proximate causation of the emotional distress by defendant’s outrageous conduct.

Agarwal v. Johnson, 25 Cal. 3d 932, 946, 603 P.2d 58, 160 Cal. Rptr. 141 (1979); Christensen v. Superior Court, 54 Cal. 3d 868, 903, 820 P.2d 181, 2 Cal. Rptr. 2d 79 (1991).

6. There is liability for conduct which exceeds “all bounds usually tolerated by a decent society, of a nature which is especially calculated to cause, and does cause, mental distress.” Cole v. Fair Oaks Fire Protection Dist., 43 Cal. 3d 148, 155 n. 7, 729 P.2d 743, 233 Cal. Rptr. 308 (1987) (internal quotations omitted). All persons must necessarily be expected and required to be hardened to a certain amount of rough language and to occasional acts that are definitely inconsiderate or unkind. Golden v. Dungan, 20 Cal. App. 3d 295, 311, 97 Cal. Rptr. 577, 588 (1971).

7. Ordinarily, mere insulting language, without more, does not constitute outrageous conduct. The tort of intentional infliction of emotional distress does not extend to mere insults, indignities, threats, annoyances, petty oppressions or other trivialities. Id. at 304.

8. “Severe” emotional distress is distress of such substantial quantity or enduring quality that no reasonable person in a civilized society should be expected to endure it. Fletcher v. Western Nat’l Life Ins. Co., 10 Cal. App. 3d 376, 394, 89 Cal. Rptr. 78, 88 (1970); Newby v. Alto Riviera Apartments, 60 Cal. App. 3d 288, 296, 131 Cal. Rptr. 547, 552 (1976).

9. A defendant’s behavior may be considered outrageous if defendant: (1) abuses a relation or position which gives him power to damage the plaintiff’s interest; (2) knows the plaintiff is susceptible to injuries through mental distress; or (3) acts intentionally or unreasonably with recognition that the acts are likely to result in illness through mental distress. Cole, 43 Cal. 3d at 155 n.7. Defendant’s behavior has not been shown to be outrageous by any measure, including the foregoing.

10. Although a comment may be rude and in bad taste, it may not necessarily reach the level of conduct required to establish the “outrageous conduct” required to prove intentional infliction of emotional distress. Koch v. Goldway, 817 F.2d 507, 510 (9th Cir. 1987).

11. It is not enough that the defendant’s conduct be intentional to be outrageous and, therefore, subject to liability. The conduct “must be directed at the plaintiff, or occur in the presence of a plaintiff of whom the defendant is aware.” Christensen, 54 Cal. 3d at 903.

12. The conduct of Marine Corps personnel at the March meeting and as it relates to the medical license letter sent to South Dakota does not rise to the level of intentional infliction of emotional distress. The “pattern of conduct” alleged by plaintiffs and necessarily assumed to be true by the appellate court for purposes of its review did not exist.

13. With respect to the letter-writing incident, as both an equitable and legal matter, Dr. Sabow is not a victim of emotional abuse as a result of this incident.

14. Plaintiffs fail to prove any cause of action for intentional infliction of emotional distress.

15. The elements of a negligent infliction of emotional distress claim are:

(a) The defendant engaged in negligent conduct;

(b) The plaintiff suffered serious emotional distress, and

(c) The defendant’s negligent conduct was the cause of the serious emotional distress.

See Thing v. La Chusa, 48 Cal.3d 644, 257 Cal. Rptr. 865, 771 P.2d 814 (1989); Molien v. Kaiser Found. Hosp., 27 Cal. 3d 916, 921, 167 Cal. Rptr. 831, 616 P.2d 813 (1980); Bro v. Glaser, 22 Cal. App. 4th 1398 (1994); Lawson v. Management Activities, Inc., 69 Cal. App. 4th 652, 656, 81 Cal. Rptr. 745 (1999) (cause of action is based on negligence).

16. “Serious emotional distress” is an emotional reaction which is not an abnormal response to the circumstances. It is found where a reasonable person would be unable to cope with the mental distress caused by the circumstances. Thing v. La Chusa, 48 Cal. 3d 644, 668, 257 Cal. Rptr. 865, 771 P.2d 814 (1989).

17. The conduct of the USMC personnel at the March meeting and in relation to the medical license letter does not constitute the tort of negligent infliction of emotional distress.

18. Plaintiffs’ alleged injuries were not caused by any act or omission of an employee of the United States acting within the course and scope of their employment. See United States v. Coffey, 233 F.2d 41 (9th Cir. 1956); Garza v. United States, 809 F.2d 1170 (5th Cir. 1987); Schmidt v. United States, 179 F.2d 724 (10th Cir.), cert. denied, 339 U.S. 986 (1950).

19. To litigate the truth or falsity of the parties’ and witnesses’ statements made at the March meeting opens inquiry into matters which are beyond the Court’s jurisdiction and not relevant to the remaining claims.

20. Plaintiffs acknowledge in their proposed Findings of Fact and Conclusions of Law, lodged January 12, 2000, that the “Court is not empowered” to pass upon the “two ultimate questions of fact raised by the Sabow family. Nor does the Sabow Family any longer insist this Court do so in this litigation.” p. 174, ll. 9-12.

21. Plaintiffs fail to prove any cause of action against the United States. The Court therefore finds in favor of defendant and awards defendant costs.

IV.
CONCLUSION

Accordingly, and for the foregoing reasons, judgment is granted to defendant United States. Plaintiffs have not carried their burden of proof. The evidence does not demonstrate intentional conduct or negligence which proximately caused the damages complained of.

IT IS SO ORDERED.

IT IS FURTHER ORDERED that the Clerk shall serve a copy of this Order on counsel for all parties. The Clerk is directed to enter judgment in accordance with the foregoing.

Dated: .

______________________________
ALICEMARIE H. STOTLER



UNITED STATES DISTRICT JUDGE


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