LaLoup v. United States, 92 F. Supp. 3d 340

Background

Sgt. Brian LaLoup, a U.S. Marine, died by suicide in Athens, Greece on August 12, 2012; his body was later found to be incomplete (the heart was missing) after AFMES autopsy at Dover.
Marine Corps Casualty Assistance Call Officers (CACOs) notified and assisted next-of-kin (Craig and Beverly LaLoup) per Marine Corps Order (MCO) 3040.4; Mrs. LaLoup signed a CJMAB Form 1 authorizing release of the incomplete remains.
Dispute about what CACOs told Mrs. LaLoup regarding which parts were missing: she says she was told scalp; CACOs say they did not disclose the heart unless asked. Later, another CACO informed the LaLoups the heart was missing.
The LaLoups sued the United States under the Federal Tort Claims Act (FTCA) for negligent infliction of emotional distress (NIED), claiming the Marine Corps owed them a duty of care as next-of-kin and failed to disclose/return remains properly.
After discovery, plaintiffs moved for partial summary judgment; the Government moved to dismiss or for summary judgment arguing (1) no duty under Pennsylvania law to next-of-kin, and (2) FTCA misrepresentation exception may apply.
The court held there is no duty owed by the Government/Marine Corps to deceased service member’s parents under Pennsylvania law to support an NIED claim and entered judgment for the United States.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the Marine Corps owed a duty to next-of-kin supporting an NIED claim under Pennsylvania law	LaLoups: special relationship / duty arises as next-of-kin and CACOs breached duty by withholding info and failing to preserve/return remains	Gov't: Pennsylvania NIED law is narrow; no pre-existing special relationship or duty to next-of-kin; imposing duty would harm public interest and CACO function	Held: No duty exists under Pennsylvania law; NIED claim fails as a matter of law
Whether the FTCA misrepresentation exception (28 U.S.C. §2680(h)) bars the claim	LaLoups: exception should not preclude their non-commercial NIED claim	Gov't: misrepresentation exception may bar claims based on concealment/misrepresentation	Held: Court declined to decide because claim fails under §1346(b) (no state-law basis), so need not resolve §2680(h) issue
Whether disputed facts about what was told to Mrs. LaLoup are material	LaLoups: factual disputes about communications justify denial of summary judgment for Gov't	Gov't: even accepting plaintiffs’ facts, no duty exists so facts are immaterial	Held: Disputed facts about disclosure and the heart’s whereabouts are not material to duty question; court decided as matter of law
Whether plaintiffs’ motion to strike the Government’s reply was appropriate	LaLoups: sought to strike Gov't reply and file sur-reply	Gov't: reply was authorized; sur-reply improper	Held: Motion to strike denied; sur-reply docketed but striking not warranted

Key Cases Cited

Gould Elec. Inc. v. United States, 220 F.3d 169 (3d Cir. 2000) (distinguishes facial vs. factual Rule 12(b)(1) attacks and evidentiary scope)
Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884 (3d Cir. 1977) (factual jurisdictional challenges may consider evidence outside the pleadings)
CNA v. United States, 535 F.3d 132 (3d Cir. 2008) (caution against resolving merits when deciding jurisdiction and treating intertwined challenges as jurisdictional)
Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (summary judgment burden-shifting framework)
Anderson v. Liberty Lobby, 477 U.S. 242 (1986) (standard for genuine issue of material fact)
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000) (limitations on weighing evidence at summary judgment)
Kazatsky v. King David Mem'l Park, Inc., 515 Pa. 183 (Pa. 1987) (Pennsylvania recognizes NIED tied to physical injury)
Niederman v. Brodsky, 436 Pa. 401 (Pa. 1970) (NIED recoverable when plaintiff was in zone of danger)
Sinn v. Burd, 486 Pa. 146 (Pa. 1980) (NIED for witnessing serious injury to close family member)
Toney v. Chester County Hosp., 36 A.3d 83 (Pa. 2011) (Pa. Supreme Court, evenly divided, endorsed special-relationship NIED theory in limited circumstances)
Bilt-Rite Contractors, Inc. v. The Architectural Studio, 581 Pa. 454 (Pa. 2005) (factors for duty analysis referenced in Toney)
Althaus ex rel. Althaus v. Cohen, 562 Pa. 547 (Pa. 2000) (consideration of social utility and consequences when imposing duties)
United States v. Neustadt, 366 U.S. 696 (1961) (misrepresentation exception covers negligent or intentional concealment/omission)
Block v. Neal, 460 U.S. 289 (1983) (clarified §2680(h) does not bar negligence claims that rest on a duty other than the duty to communicate accurate information)
Feres v. United States, 340 U.S. 135 (1950) (bars FTCA claims by servicemembers for injuries incident to service)