Plaintiff cannot sue the United States for negligent injuries suffered in a foreign country, and plaintiff suffered her injury in Spain when she was prematurely born with brain damage, not in the United States where she was later diagnosed with cerebral palsy. Under the Federal Tort Claims Act, the United States does not waive its sovereign immunity with regard to any claim based on an injury suffered in a foreign country. 28 USC 2680(k). For purposes of determining where an injury is suffered, this decision applies the rule adopted in Restatement of Conflicts of Law sec. 377—a bodily injury is suffered where the harm first “impinges” on the body, even if the injury is not diagnosed until later in a different country. Here, plaintiff was born prematurely in Spain, suffering brain damage as a result. Only later when she returned to the United States was she diagnosed with cerebral palsy which was a consequence of the brain injury suffered due to her premature birth. Reversing a $10.4 million judgment in plaintiff’s favor, this decision holds that the injury was suffered in Spain and so it fell within the foreign country exception to the Federal Tort Claims Act.
Ninth Circuit Court of Appeals (Lucero, J.); April 10, 2017; 2017 WL 1314939