Senator KEMPTHORNE. Now, also, Dr. Sabow, you stated, and I quote, family members of men and women who were killed while in service received no cooperation whatsoever when trying to get the autopsy reports. Would you give us some insight as to that, and what conclusion there was? Did you get the autopsy report? Dr. SABOW. Yes, sir. The autopsy was done on my brother by the Orange County coroner. There must have been some type of arrangement so that the Orange County coroner did the autopsy on my brother. The regulations do state, the regulations in place, that a military liaison pathologist in the area should be called. That was not done. However, after the autopsy in all cases of this type of death by a serviceman on active duty the results have to be sent to the AFIP. These were not. Now, because of my medical background I was very anxious to discuss and review the situation, the autopsy, with the NIS, the Naval Investigative Service, and also the people who conducted the autopsy. I was told week after week after week, in fact 5 weeks after, that they are busy, that they cannot remember the results of the autopsy, that there is a big backlog, and even if they could remember it it is not ready for publication. That is the type of response that I received from the Orange County coroner and I also received a similar response from the naval investigative officer in this particular case, a woman agent who was in charge of this particular case by the name of Cheryl Baldwin. I kept on asking for forensic evidence and for finger print evidence because I know that they left prints. I was told month after month after month that these were not available. On a March 9 meeting, 12 months after my brother's death, when I appeared in front of the base commander, General Adams, the prior base commander, General David Shooter, the retired assistant Commandant of the Marine Corps, General J. K. Davis, among many, many others, I pointed out that I was here to find out as much as I can about the facts surrounding my brother's death. I did not say the facts surrounding my brother's murder. I did not jump to conclusions. I was simply trying to find out facts, and I was told again at that time by the special agents brought up from San Diego for the NIS that this evidence was not available. Now, sir, I received the finger print evidence 1 year after my brother's death. I also received the autopsy just under a year after my brother's death, and after reviewing these, I obviously realized why they did not want to provide it to me. I do not look at my specific instance at the incompetence of the individuals. I look at the complicity of the individuals conducting this investigation. You cannot disregard the hard physical facts surrounding Colonel Sabow's murder. It is simply beyond any rational debate. The experts from all over the country have stated that. I read the OIG report in detail, the one that was published and supposedly read by Ms. Eleanor Hill, and I felt hollow, because initially I did not know how to rebut such an incompetent, purposely misleading document, in which they already had approached several of the neurological, neuro-radiological experts and tried to force them to change their opinion. This is all documented, by the way. I subsequently called one of their experts, but I want to tell you, their expert has been the editor and the publisher of several forensic textbooks, and I just do not know them. I have become a student of forensic evidence pathology and bloodstain evidence. I asked him-and I want to quote him-Dr. Vincent Dimaio from San Antonio, a very famous forensic pathologist-I said, with all this evidence, Dr. Dimaio, how did you support the conclusion of suicide, and he said to me, and I quote, when you hear hoofbeats, you think of horses, and I said, then what is the specialty of forensic pathology? I have had 6 years of talk like this. What surrounds my brother and his death can never be brought to closure for me, because closure is finding out, was he murdered, or was it suicide? He was murdered, period. The question that this Senate subcommittee also has to ask is, why was he murdered? What was he about to discuss? He was murdered, and he was murdered on base. They were trying to get him off base because he was known as a totally incorruptible marine. He had achieved some of the highest, if not the highest fitness reports, not in the Marine Corps, in the history of the Marine Corps. I have the private reports from marine headquarters, from Henderson Hall. They were given to me by a friend. Indeed, in the middle of Desert Storm, when he is chief of operations, they are going to send the IG down to investigate if he took a training flight that was illegal. I went over every allegation. My brother was fired from his job before any formal allegations were made. He only found out he was under investigation 24 hours before he was fired. Senator KEMPTHORNE. Dr. Sabow, again, I appreciate this, and I have read all of the information, and I can understand why you are rightfully emotionally involved in this, but again, I cannot turn this into an inquest concerning one person. Dr. SABOW. I understand, and I apologize. Obviously, this subcommittee has an agenda that is certainly more limited than my obvious agenda has to be, and I do apologize. I did, however, want to explain the way we all have different feelings because of the individual nature of the death of our loved ones. It is important that investigative procedures, basic investigative professional procedures become mandatory, and that these investigative agencies cannot hide behind the umbrella known as, and I quote, discretionary exemption. Senator KEMPTHORNE. I appreciate that. Mr. Casto, I have to state for everybody again, there is a vote that has been called, so we are going to dash over there and vote, but I would like to ask this question, and let us begin your response, and if I have to call time out we will do it. In your statement you had as one of your recommendations the integrity of the victim's remains and handling are of concern. This area should be evaluated and immediate action taken to keep desecration of remains from happening. Mr. CASTO. Yes. Senator KEMPTHORNE. Now, Mrs. Shults mentioned with regard to the body of her son, Alan, to use her term, it had been eviscerated. I have read again these different case studies. I get the impression that on different autopsies where organs had been removed, tissue had been removed, et cetera, that then in the case that a family may choose to have the body exhumed for a second autopsy, vital organs, perhaps evidence, is not there. Now, can you comment on that and give me some insight? Mr. CASTO. Yes. Within this group there are several families whose loved one has to some degree the bodily remains are less than intact after receipt for burial. This can happen through the process mentioned by Mrs. Shults. It may be something as simple as during the autopsy, performed in various locations, where organs and tissues are removed for testing purposes and not replaced. There are less than standardized practices throughout the world, as even within the United States in this area. So this is a continuing concern whenever you receive a casket, a shipping label only, no weight, no nothing on it, no other credible paperwork of any type with the casket provided the burial home with your loved one, and are advised or told, closed casket. Initially, due to the immediate shock, most families accept this recommendation, in my case, sadly, and hopefully not erroneously. Your comment about the Freedom of Information Act previously, in December of 1995. I requested autopsy reports, crime scene documents, various things, all other aspects. I have all of that. However, since December of 1995 I have chased X-rays all over this country and the rest of the world. I still do not have them. Senator KEMPTHORNE. You have never seen them? Mr. CASTO. I have never seen them, and they have been requested numerous times. Unfortunately, they seem to always be in the mail, so perhaps my next request should be sent to the post office. This is only one example so bodily remains and their integrity is a potential issue in any closed casket circumstance that is well worth looking into. Senator KEMPTHORNE. I do not know what the standard procedure is with regard to medical examiners and the autopsy and the disposition of those parts that may have been removed, and what is to happen. It is something I will ask the next panel so that they can give me that insight. Mrs. Shults. Mrs. SHULTS. I wanted to respond to that question also. Now, with respect to the parents here, I feel that I need to let it be known that we have all been really speculative of why they have taken the body organs and not returned them to the body, or even into the casket in a bag. We have one case in particular-the mother could not be here today because she is very ill-where her son died and they said it was from an overdose of valium, or some kind of drug like that that he had had a prescription for. Her son died in Germany, and upon landing here in America she had her own pathologist standing by to receive his body. In his examination of this body, his brain was missing, but also his prostate Sabows represent alarming instances of poor judgment and a general disregard for sound investigative procedure, the investigative agents took discretionary action involving considerations of social and political policy. Accordingly, we affirm the district court's dismissal of the Sabows' negligent infliction of emotional distress claim as it relates to the NIS and JAG investigations. 2. Conduct Of General Adams And The Discretionary Function Exception [9] The Sabows' negligent infliction claim, to the extent it is not based on the allegedly negligent investigative activity of NIS and JAG personnel, is not barred by the discretionary function exception. General Adams' decision (as alleged by the Sabows) to berate the Sabows at the March 1991 meeting and to investigate Dr. Sabow does not involve considerations of social, economic, or political policy of the type Congress intended to shield from FTCA actions. General Adams had no legitimate policy rationale for resorting to verbal abuse and an investigation of Dr. Sabow's medical license as a response to the possibility that complaints about the military's investigation into the Sabow death might be publicly aired. Thus, to the extent the Sabows' negligent infliction claim is based on those specific acts, the discretionary function exception does not apply.10 10Because we find that the government has failed to satisfy the second part of the two-part discretionary function test, we do not address whether the government has satisfied the first part of the test. SABOW V. UNITED STATES B. INTENTIONAL INFLICTION OF 1. Did The Sabows State An Actionable Cause Legal Standard 10835 Under California law, the elements of intentional infliction of emotional distress are: (1) extreme and outrageous conduct by the defendant Christensen v. Superior Court, 820 P.2d 181, 202 (Cal. 1991) (in bank) (quotations and citations omitted). The conduct must not only be intentional and outrageous, but must also be "directed at plaintiff, or occur in the presence of a plaintiff of whom defendant is aware." Id. Analysis The Sabows contend that the NIS' and JAG's alleged failure to properly investigate Colonel Sabow's death, the military's handling of Colonel Sabow's remains, the NIS' questioning of Mrs. Sabow shortly after she had discovered her husband's body, General Adams' conduct during the March 9, 1991 meeting with Mrs. Sabow and Dr. Sabow, and General Adams' alleged instigation into ways in which Dr. Sabow's medical licens Trageous conduct in actionable cau: e revoked constitute extreme alifornia law and thus give $1346(b) of the FTCA for al infliction of encenal distress. The district court |