Full opinion text
MEMORANDUM OPINION AND ORDER DE MENT, District Judge. Eight years ago, in February of 1988, the first in a series of alarmingly similar “emergencies” arose in the obstetrics ward of the Air University Regional Hospital at Maxwell Air Force Base in Montgomery, Alabama (“Hospital”). A newborn child, seemingly in excellent health, suddenly stops breathing and turns blue. Fortunately, the child survives. Unfortunately however, the medical implications of this episode, which occurred during a critically sensitive developmental period, may be far from fortunate. Over the next ten months this “emergency” would repeat itself at least eleven times. The plaintiffs in this case, eleven infants and one adult (Cheryl Pretiger Schoen-Toms), all suddenly and for no medically explainable reason, crashed from good health to the brink of death. In the ensuing effort to provide an explanation for these events, several consistent and telling facts emerged. First, each of these plaintiffs was under the exclusive care of the Hospital when the life threatening events occurred. Second, a certain medical technician, Michael Beckelic (“Beckelic”), was on duty and had some interaction with each of the plaintiffs shortly before the “emergencies” arose. Third, Beckelic always seemed to be the first one on the scene — the one to “discover” and come to the “rescue” of the plaintiffs. Fourth, once the plaintiffs were transferred from the Hospital to nearby Baptist Medical Center (“BMC”), they experienced no more life threatening events. Finally, once Beckelic was removed from the Hospital obstetrics ward, the “emergencies” ended. Medical experts would later opine that the experiences of the plaintiffs were consistent with the injection of toxic doses of lidoeaine or some other similar drug. Unfortunately, newborn babies make poor witnesses; only the adult plaintiff could testify directly about her experience (and her testimony is consistent with the toxic injection theory advanced by the plaintiffs). Nevertheless, the circumstantial evidence in this case obviates the need for the direct testimony of the infant plaintiffs. Too similar to be mere coincidence, in November of 1988 the Office of Special Investigation (OSI) for the United States Air Force began to investigate the alarming events at the Hospital. In the course of its investigation OSI contacted several medical experts: Lieutenant Colonel (Dr.) William F. Walsh, Chief of Neonatology, USAF Medical Center, Keesler Air Force Base; Colonel (Dr.) William H. Stigelman, Consultant for Clinical Pharmacy for the United States Air Force, Biomedical Service Corps; M. Gail Murphy, Division of Experimental Therapeutics of WRAIR; Colonel (Dr.) Robert Jones, Hospital Commander, presently Air Surgeon for the National Guard Bureau at Andrews Air Force Base; and Colonel (Dr.) Stanford P. Sadiek, an osteopathic surgeon who was, at the time in question, Director of Hospital Services and head of Quality Assurance at the Hospital. OSI relied on these doctors and an independent review of Hospital records to generate a final report (“OSI report”) setting out its findings. Included in the OSI report was a statistical analysis of the events which took place in the Hospital. During 1988, more than six percent of the newborns at the Hospital experienced life threatening events. The pediatric population as a whole experiences life threatening events at the rate of 13/100 of one percent. With respect to Beckelic’s role, after determining that Beckelic was the only one on duty when each of these incidents occurred, OSI calculated that the chance of this being mere coincidence was one in ten million. Further, the OSI noted that after Beckelic was removed from the Hospital nursery, all life threatening events stopped. The compelling OSI report and an independent investigation led the Air Force, in January of 1989, to publicly state: “We believe the symptoms displayed by 13 of the infants were caused either accidentally or intentionally and were not the result of infection or medical procedures employed at the birth of the children.” The findings in the OSI report reverberated all the way to the Office of the Surgeon General of the Air Force in Washington, D.C. The Surgeon General let it be known that the Air Force would “take care” of these plaintiffs and their families. Astoundingly, not only does the United States of America (“defendant”) now contest the claims of these plaintiffs it promised to “take care” of, but the defendant is guilty of directly impeding, through the destruction or redaction of critical evidence, the plaintiffs’ ability to establish their claims. On July 22, 1993, the first of the plaintiffs filed suit. Subsequent suits were consolidated with the first, and twelve plaintiffs proceeded to trial alleging that the defendant, pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2401, et seq., is liable for the injuries the plaintiffs suffered while at the Hospital. The plaintiffs claim they have suffered injuries as the result of being maliciously injected with toxic doses of lidocaine or other similar drugs. The plaintiffs contend that the defendant owed them a duty of care in the hiring and supervision of Beckelic, a duty to promptly and reasonably discover, and act to prevent, foreseeable life-threatening events, and a duty to have in place a properly functioning quality assurance program. The Court has limited its initial assessment to the existence of such a duty, and to whether the duty, if any, has been breached. Upon careful consideration of the evidence, the arguments of counsel, and the relevant case law, the Court finds that the defendant has breached its duty of care owed to the plaintiffs. I. BACKGROUND The Court conducted a non-jury trial from July 8-12, 1996. During the trial, the plaintiffs argued that their injuries were caused by the deliberate “tampering” of Michael Beckelic. The plaintiffs presented evidence in support of three theories of liability: (1) that the defendant was negligent in the hiring and supervision of Beckelic, (2) that the defendant was generally negligent in the operation of the Hospital, and (3) that the Hospital was negligent in failing to prevent foreseeable criminal acts. The plaintiffs’ first step towards proving any of these theories was to establish that Beckelic’s tampering caused their injuries, and thus, link the plaintiffs’ injuries with the defendant’s negligence. In support of their contention, the plaintiffs rely heavily on the OSI report, which includes the factual findings and opinions of the aforementioned doctors, and the deposition testimony of Dr. Richard Colan. Upon consideration of all the evidence, the Court finds that each of the plaintiffs have established, by a preponderance of the evidence, that they were injured by the malicious acts of Beckelic. The plaintiffs presented extensive “general” (non-individualized) evidence from which the Court finds that plaintiffs established, prima facie, that their injuries stemmed from non-medical causes. To this end, Dr. Colan was unequivocal in his opinion that, given the huge statistical improbability that the events at the Hospital resulted from natural causes, and given the uniformity of symptoms among the plaintiffs, the plaintiffs’ injuries resulted from intentional tampering. Pl.’s Ex. 70, Dr. Colan Depo., dated 3/3/94, at 18, 19, 172, 173. Plaintiffs also have put before the Court evidence which is more than sufficient to conclude that, as to each individual plaintiff, Beckelie’s intentional acts contributed or caused the plaintiffs to experience life-threatening events while at the Hospital. See infra § II (Plaintiffs). The defendant asserts that the injuries suffered by the plaintiffs resulted from medically explainable causes. Thus, despite several public statements to the contrary, the Government now contends that none of the plaintiffs’ injuries are the result of a surreptitious injection of lidocaine or other similar drug. To support its position, the Government offered the testimony of Dr. Robert J. Roberts and Dr. Carter Snead. Although the Court initially found that these doctors were qualified as “experts,” the Court finds that the testimony of these doctors is not credible. Particularly disturbing to the Court was that both of these doctors based their opinions on limited information; they did not consider all of the relevant facts surrounding the incidents at the Hospital. In essence the defendant’s experts reviewed the plaintiffs’ medical records, drew conclusions, and formed opinions in a “vacuum.” These witnesses simply discounted or ignored far too much relevant and available, information for their opinions to carry significant weight with the Court. Ironicaily, the one person who could, perhaps, have shed the most light on the events at the Hospital did not testify. The Court has serious questions as to why the defendant failed to call Beckelie as a witness in this case. Based on the Government’s failure to call Beckelie, the Court finds that Beckelic’s testimony would have been harmful to the Government’s case. See Donaldson v. Buck, 333 So.2d 786, 787-89 (Ala. 1976). Despite the fact that he did not appear at the trial, the Court has learned a great deal about medical technician Beekelic. Beckelic spent six weeks in a mental hospital in 1984, just prior to being inducted into the Air Force. He was hospitalized at Peninsula Psychiatric Hospital from January of 1984 through February of 1984, where he was treated for severe depression. At age 17 he was allowed into the Air Force. Dr. Wesley B. Carter assessed Beckelic’s judgment as being “grossly within normal limits.” He added that “he saw no gross evidence of significant psychopathology, which would definitely contraindicate his induction.” Pl.’s Ex. 21, Op. of Dr. Wesley B. Carter dated 2/28/85, Beckelic’s Medical Treatment File. After induction, Beckelic’s mental instability appears to have accelerated. Beckelic sought mental or physical medical attention some fifty times between his induction at age 17 in 1985 and the injury to the last plaintiff baby in December 1988. Pl.’s Ex. 236-246, Beckelic Medical Records. During 1988, the year the plaintiffs were injured, Beckelic’s wife revealed to Beckelic’s immediate supervisor, Denise Womack, that she was afraid of Beckelic because of his temper tantrums. Beekelic would become very angry and hit her or the walls of their home. His temper was uncontrollable and he suffered temper outbursts at home over little things. Pl.’s Ex. 54, Womack Depo. at 78-80. Beckelic was referred to mental health counseling where he was diagnosed as having an “intermittent explosive disorder.” Although he claimed that he had no problems with his temper at work, Beckelic admitted that he had problems controlling his temper and that he frequently became angry. Pl.’s Ex. 8, OSI Report at 37; Pl.’s Exs. 243-246, Mental Health Records. In group therapy on June 10, 1988, Beckelic commented, “I don’t know what’s happening to me. I feel out of control. I can’t even control my emotions.” Pl.’s Exs. 242, 243, Mental Health Records dated 6/10/88. His problem was diagnosed as an “inability to control [ ] outbursts of anger and consequential interpersonal problems.” Pl.’s Ex. 242-246, Mental Health Records dated 6/88. Beckelic also admitted yelling at people, kicking walls and expressing violence to people. Pl.’s Exs. 242, 243, Mental Health Records dated 6/10/88. Beckelic’s behavior at the Hospital struck many of his co-employees and supervisors as odd. Beckelic was described as fishing for compliments, overeager, under stress, nosey, craving attention, over-emotional, and hyper. See OSI report at 18-31. It appears therefore, that Beekelic’s mental and emotional health issues impacted both his personal life and work performance. JURISDICTION & VENUE Subject-matter jurisdiction is proper pursuant to 28 U.S.C. § 1331, which provides that “[t]he district courts shall have original jurisdiction of all civil actions arising under the ... laws ... of the United States.” 28 U.S.C. § 1331. Personal jurisdiction and venue are not contested. STANDARD OF REVIEW The burden of proof in civil cases is the same regardless of whether the finder of fact is a judge in a bench trial or a jury. Cabrera v. Jakabovitz, 24 F.3d 372, 380 (2d Cir.), cert. denied, 513 U.S. 876, 115 S.Ct. 205, 130 L.Ed.2d 135 (1994). That is, a plaintiff bears the burden of satisfying the finder of fact that he or she has proven every element of his or her claim by a preponderance of the evidence. A preponderance of the evidence means such evidence as, when considered with that opposed to it, has more convincing force, and demonstrates that what is sought to be proved “is more likely'true than not true.” See Pattern Jury Instructions, Basic Instruction No. 6.1, U.S. Eleventh Circuit District Judges Association (Civil Cases) (1990). In bench trials, the judge serves as the sole fact-finder and, thus, assumes the role of the jury. In this capacity, the judge’s function includes weighing the evidence, evaluating the credibility of witnesses, and deciding questions of fact, as well as issues of law. Childrey v. Bennett, 997 F.2d 830, 834 (11th Cir.1993) (holding that “it is the exclusive province of the judge in non-jury trials to assess the credibility of witnesses and to assign weight to their testimony”). Moreover, “a trial judge sitting without a jury is entitled to even greater latitude concerning the admission or exclusion of evidence.” Goodman v. Highlands Ins. Co., 607 F.2d 665, 668 (5th Cir.1979) (citing Wright v. Southwest Bank, 554 F.2d 661 (5th Cir.1977)), see Lee v. Russell County Bd. of Educ., 684 F.2d 769, 776 n. 5 (11th Cir.1982) (stating that the court has “broad discretion over the admission of evidence in a bench trial”). II. THE PLAINTIFFS Before discussing the plaintiffs’ claims, the Court will lay out the factual background as it pertains to each of the individual plaintiffs. A. CHERYL PRETIGER SCHOEN, Case No. 93-D-1201-N As noted earlier, only Cheryl Schoen (then Cheryl Pretiger) was able to provide direct testimony regarding the involvement of Beckelic in the tragic events which occurred at the Hospital. The Government’s investigation into the Schoen (Pretiger) incident is summarized in the OSI Report as follows: On 1 November 1988, Cheryl Pretiger, a 24-year old postoperative patient on the OBN ward, suffered an unexplained respiratory failure. She had delivered a child at 0839 that morning by cesarean section (c-section) and was recovering in her room. At about 1700, she complained of itching, and McCarty, an OBN nurse, gave her an intramuscular (IM) injection of Benadryl as prescribed by her physician. At about 2130, her itching returned, and she told [Beckelic] (subsequently identified by her via photograph) she had been given Benadryl earlier to combat the itching. [Beekelic] left the room and returned a short time later. Pretiger said [Beckelic] worked with (NFI) her ongoing IV apparatus, and she immediately experienced a sharp burning sensation around the wrist of her arm with the IV. She felt a strange feeling in her throat, coughed, and lost consciousness. McCarty said she entered the room as Pretiger was coughing, noted Pretiger had ceased breathing, and called the Code Blue. Subsequent examinations failed to disclose a medical or physiological cause for Pretiger’s respiratory arrest. One consulting physician believed her reaction to medications given during resuscitation efforts was indicative of an individual who had been given an overdose of some narcotic. At least two consulting physicians discounted a reaction to the anesthesia Pretiger had been given during her surgery, citing a low dosage and the long period of time since the surgery as reasons to rule out a possible side effect. OBN duty rosters revealed [Beckelic] worked the evening shift on 1 Nov 88, the night Pretiger’s event occurred, and duty rosters showed [Beckelic] was on duty during the shift when Pretiger’s event occurred. Pl.’s Ex. 8, OSI Report at p. 8, ¶ 3-11. Mrs. Schoen described the incident in her affidavit given on March 17, 1993 as follows: That evening at approximately 9:00 p.m. my heart monitor went off. A technician came into my room to reset the monitor. While he was there, I requested Benadryl to relieve itching that I was experiencing. The technician left the room and when he returned, I noticed he had a syringe with him. I then saw him take my IV in one hand and he held the syringe in the other. The next thing I knew, the area around my hand started burning. I complained to the technician, who responded that this was ‘normal.’ The next thing I remember is violently coughing, at which time the technician told me to ‘go with it.’ I became unconscious and the next thing I recall is alter the incident was over. Pl.’s Ex. 211, Schoen Aff. dated 3/17/93; Ex. 6A, at 1; see also, Pl.’s Ex. 188, Schoen Depo. at 6-11. Mrs. Schoen’s eyewitness account of Beekelic’s involvement in her near-death experience was a significant factor in the Air Force’s decision to initiate an OSI investigation. As the Government now admits: “[T]he Air Force Office of Special Investigation initiated an investigation based on ... a recent unexplained respiratory arrest of an obstetric patient who subsequently identified a subject injecting a substance in her IV immediately prior to her arrest.” Pl.’s Ex. 2, Government Admission No. 4, dated 4/28/94. Drs. Walsh and Stigelman independently reviewed Mrs. Schoen’s medical records following the incident. Both doctors concluded that, while they could not be absolutely certain about the substance used, Mrs. Schoen’s shock-like state was very likely the result of a drug, lidoeaine or other similar agent, administered intravenously or intramuscularly. See OSI Report. Dr. Colan, on the other hand, was more confident that Mrs. Schoen had been injected with lidoeaine. Dr. Colan found that the combination of two symptoms exhibited by Mrs. Schoen, severe migraine headaches and gastrointestinal problems (constipation and diarrhea), strongly suggested Mrs. Schoen had been injected with lidocaine. None of the doctors believed Mrs. Schoen’s incident could have been the result of natural biological causes. It is undisputed that Beckelic was on duty and attended Mrs. Schoen at the time of her injury. OSI Report at p. 8; Pl.’s Ex. 188, Schoen Depo. at 5-12.; Pl.’s Ex. 99, Nursery Duty Roster.; Pl.’s Ex. 1, Government Admission No. 49, dated 1/19/94. The defendant admits that whatever happened to Mrs. Schoen happened while she was under the exclusive care, custody and control of the defendant. Pl.’s Ex. 3, Government Admission No. 21, dated 8/26/94. It is further undisputed that despite this incident, there was no investigation, no incident report completed and no documentation on Mrs. Schoen’s medical records. Pl.’s Ex. 70, Dr. Colan Depo., dated 3/3/94, at 11, 12,157-159; Pl.’s Ex. 56, Nellis Depo. at 226; Pl.’s Ex. 57, McPherson Depo. at 165-66, 225; Pl.’s Ex. 53, Sadick Depo. at 60, 84. No tests were run, and neither blood nor urine samples were taken and analyzed. Pl.’s Ex. 70, Dr. Colan Depo., dated 3/3/94, at 10; Pl.’s Ex. 57, McPherson Depo. at 225, 237-38; Pl.’s Ex. 53, Sadick Depo. at 61, 90. The OSI interview with Mrs. Schoen did not occur until more than thirty days after she was injected by Beckelic. Pl.’s Ex. 8, OSI Report at 1. As Dr. Colan observed, the Government had an “ethical, moral and medical” duty to include details of this incident in her medical records. Pl.’s Ex. 71, Dr. Colan Depo., dated 6/6/94, at 159. The Court finds, upon consideration of all the evidence, that Mrs. Schoen was injured by the foreseeable actions of Beckelic. B. TIFFANY BARBER, Case No. 93-D-1393-N The OSI Report summarizes the Air Force’s investigation into the circumstances surrounding the injury to Tiffany Barber as follows: A full-term, female infant bom without complications via spontaneous vaginal delivery at 1913, 9 Jul 88. The mother had a history of herpes at 34 weeks of pregnancy, but all cultures had been negative since that time. The infant was stable until approximately 2130 when she was found to have bradycardia and cyanosis. A Code Blue was called, and the infant responded to oxygen and stimulation. Dr. Walsh, in his review, noted the infant was hyperglycemic and suffered from profound metabolic acidosis. The infant responded well to further treatment and had no reoccurrence of cyanosis, bradycardia, or hyperglycemia. The infant was not transferred to BMC. Dr. Stigelman characterized this infant’s illness as consistent with lidoeaine or bupivacaine toxicity. Dr. Walsh estimated the time of event to be 2130, 9 Jul 88 (the 9 Jul 88 evening shift). A nursing note (SF 510 Overprint) for 2100, 9 Jul 88, showed Subject’s signature. Duty rosters showed Subject worked the 9 Jul 88 evening shift. Pl.’s Ex. 8, OSI Report. A review by Dr. Walsh of the Barber medical records caused him to conclude that there was no medically explainable reason for the injury suffered by the Barber child. Pl.’s Ex. 162, Walsh Opinion; Pl.’s Ex. 8, OSI Report. Dr. Stigelman concluded that the Barber infant was likely injected with lidocaine or similar toxic substance. Pl.’s Ex. 163, Stigelman Opinion; Pl.’s Ex. 8, OSI Report, Ex. 4. Dr. Colan agrees that the child’s symptoms are consistent with the injection of lidocaine and that there is no other medically explainable reason for the injury. Pl.’s Ex. 70, Dr. Colan Depo., dated 3/3/94, at 17-19,128,135, 147,148. Dr. Colan observed: Tiffany was a healthy term child with apgars of 7 and 8 ... About two hours post delivery at 2200 hours the child had an acute episode of apnea which means her breathing stopped; cyanosis, which means she turned blue; and decreased heart rate, although her heart did not stop. At that time, laboratory testing showed metabolic acidosis, which means that the acids were suddenly too great in her system and very significantly so. She was treated for that. Various studies did not prove any other cause or problem. There was also evidence for acute hyperglycemia which means sudden increase in blood sugar. That was very puzzling to the doctors at the time. They were unable to come to any conclusion about what on earth had gone on. Pl.’s Ex. 8, Dr. Colan Depo., dated 3/3/94, at 55. Mrs. Barber, the injured child’s mother, recalls physically handing her baby to Beckelic shortly before the medical problems arose. Pl.’s Ex. 194, Barber Depo. at 5-7; see also Pl.’s Ex. 71, Dr. Colan Depo., dated 6/6/94, at 107. It is undisputed that Beckelic was on duty at the time the incident occurred. Pl.’s Ex. 99, Nursery Duty Roster; Pl.’s Ex. 100, Personnel Grid; Pl.’s Ex. 1, Government Admission Nos. 41 & 53, dated 1/19/94. Further, the defendant admits that whatever happened to infant Barber, happened while she was under the exclusive care, custody and control of the defendant. Pl.’s Ex. 3, Government Admission No. 21, dated 8/26/94. The Court finds, upon consideration of all the evidence, that the Barber infant was injured by the foreseeable actions of Beekelic. C. MELANIE GESS, Case No. 93-D-913-N ■ The defendant’s investigation into the incident of baby tampering involving Melanie Gess is summarized in the OSI Report as follows: A full-term, female infant born without complications via spontaneous vaginal delivery at 1557, 29 Jul 88, noted to be active and vigorous at birth. The mother had no prenatal care and was noted to have an untreated chlamydial infection. Although the amniotic fluid was meconium stained, the trachea was observed to have little meconium. The infant had no problems during the first hours of life. At about 0030, 30 Jul 88, [Beckelic] performed a routine newborn assessment and noted that her vital signs were within normal limits on AF Form 578. At approximately 0105, the infant was found pale and not breathing. This period of apnea (cessation of breathing) lasted for approximately 30 seconds. When tactile stimulation was ineffective, the infant was administered CPR, transferred to the IMI where oxygen was administered, and a Code Blue initiated. A breathing tube was inserted into the infant’s lungs, and at 0120 she was breathing on her own. The infant was transported to BMC at 0425, 30 Jul 88. Dr. Stigelman believed that although the infant’s symptoms were consistent with lidoeaine or bupivacaine toxicity, the infant might have become ill as a result of meconium aspiration. He deferred to Dr. Walsh’s opinion, however, since he was not a pediatrician. Dr. Walsh estimated this infant’s event to have occurred at about 0100, 30 Jul 88 (the 29 Jul 88 night shift). As noted above, [Beckelic’s] signature appeared on the AF 578 Data Record at 0030, 30 Jul 88. Duty rosters showed Beckelie worked the 29 Jul 88 night shift. Pl.’s Ex. 8, OSI Report at 9, ¶¶ 3-11. After reviewing Gess’s medical records, Dr. Walsh concluded that there was no medically explainable cause for her episode. Dr. Colan agreed with Dr. Walsh that the Gess infant had been tampered with, and he further concluded that she had been injected with lidocaine. Pl.’s Ex. 70, Dr. Colan Depo., dated 3/3/94, at 17-19, 128, 136, 147, 148. Dr. Colan concluded that Melanie Gess: experienced lidocaine toxicity that caused her to suffer apnea anoxia, acidosis, impaired circulation, respiratory distress and required transfer to another hospital regional extensive care unit for care. ... In addition, the poisoning has permanently altered her digestive and intestinal functioning causing early vomiting and chronic recurring abdominal problems, including abdominal distension, chronic constipation for prolonged periods, followed by a shorter period of severe diarrhea and subsequent return of chronic constipation and projectile vomiting. ... What we are talking about here is a pattern of impairment of intestinal motility in this child which expresses itself in a variety of different ways. I have told you and the court about the basis of understanding this as a sequaly of lidocaine intoxication. Pl.’s Ex. 71, Dr. Colan Depo., dated 6/6/94, at 122. Dr. Colan also concluded that the same or similar symptoms in Mrs. Sehoen provided additional evidence of lidocaine toxicity. Dr. Colan and Dr. Walsh rule out any question of stress caused by meconium stain. Dr. Stigelman concurs. PL.’s Ex. 8, OSI Report. Once again, it is undisputed that Beckelie was on duty at the time the Gess child was injured. Pl.’s Ex. 100, Personnel Grid; Pl.’s Ex. 99, Nursery Duty Roster; Pl.’s Ex. 1, Government Admission Nos. 20, 63, dated 1/29/94. The Government also admits that whatever happened to Melanie Gess happened while she was under the exclusive care, custody and control of the United States Government. PI.’s Ex. 3, Government Admission No. 21, dated 8/26/94. The Court finds, upon consideration of all the evidence, that the Gess infant was injured by the foreseeable actions of Beckelie. D. JENNIFER DEHAAI, Case No. 93-D-913-N The defendant’s investigation into the circumstances surrounding the injuries suffered by Jennifer DeHaai is summarized in the OSI Report as follows: A full-term, female infant born without complications via spontaneous vaginal delivery at 1619,11 Aug 88. At 0009,12 Aug 88, [Beckelie] noted in the infant’s record that her vital signs were stable, and her color, cry and activity were within normal limits. At 0130, it was noted that she was cyanotic with tachycardia and was coughing as if choking. She was placed on a cardiac monitor for the night. The next day, her vital signs were improved. She was discharged from AURH on 16 Aug 88. Dr. Stigelman opined this infant’s symptoms were consistent with lidocaine or bupivacaine toxicity. Dr. Walsh estimated this infant’s event to have occurred at about 0130,12 Aug 88 (the 11 Aug 88 night shift). [Beekelic’s] signature appears on a 12 Aug 88, 0009, nursing note (SF 510) in the infant’s medical record. This infant was never transferred to BMC. Duty rosters showed Beckelie worked the 11 Aug 88 night shift. Pl.’s Ex. 8, OSI Report at 10, 3-11. Dr. Walsh reviewed DeHaai’s medical records and concluded that there were no medically explainable reasons for her injuries. Pl.’s Ex. 162, Walsh Report. Dr. Walsh opined that it was very likely that the DeHaai child had been either smothered or injected with some type of toxic or exogenous agent. Pl.’s Ex. 162, Walsh Report. The most likely explanation was a drug administered with IV or IM. Id. Dr. Stigelman concurred and concluded that “lidocaine or bupivicaine, if given in toxic quantities, would fit the clinical picture.” Pl.’s Ex. 163, Walsh Report. Dr. Colan agreed that the symptoms experienced by Jennifer DeHaai were consistent with lidocaine toxicity. Pl.’s Ex. 70, Dr. Colan Depo., dated 3/3/94, at 17-19, 135, 147, 148; Pl.’s Ex. 71, Dr. Colan Depo, dated 6/6/94, at 126-129, 135, 147, 148. As indicated in the OSI report, it is undisputed that Beekelic was on duty at the time of DeHaai’s injury. Pl.’s Ex. 100, Personnel Grid; Pl.’s Ex. 99, Nursery Duty Roster; Pl.’s Ex. 29, DeHaai medical records; Pl.’s Ex. 1, Government Admission Nos. 46, 63, dated 1/19/94. The defendant also admits that whatever happened to Jennifer DeHaai happened while she was under the exclusive care, custody and control of the defendant. Pl.’s Ex. 3, Government Admission No. 21, dated 8/26/94. The Court finds, upon consideration of all the evidence, that the DeHaii infant was injured by the foreseeable actions of Beckelic. E. TONYANIKA GIVENS, Case No. 93-D-1140-N The defendant’s investigation into the injuries sustained by Tonyanika Givens is summarized in the OSI Report as follows: A full-term, female infant born via normal vaginal delivery at 2159, 19 Sep 88. At 0035, 20 Sep 88, [Beekelic] wrote a nursing note that he found the infant choking at 2400, and a small amount of mucus, formula, and residual blood from birth was deleed from her. Mucus and formula were again deleed from her at 0200 on 21 Sep 88. At approximately 0300 21 Sep, the infant began gasping and became limp and cyanotic. Oxygen was administered, but the infant remained somewhat cyanotic. At about 0520, the infant’s heart rate and respiration dropped drastically and a Code Blue was called. A review of AU Form 900, Code Blue Data Record, revealed Beekelic was listed as the first person on the scene and as a member of the resuscitation team. An AMBU bag was used to aid the infant’s respiration using 100 percent' oxygen. The infant remained blue and gaspy and was transferred to BMC at 0800, 21 Sep. Dr. Stigelman opined the infant’s episode was consistent with lidoeaine or bupivacaine toxicity but also noted the blood and mucus present in the infant prior to the event. Dr. Walsh noted this infant had an abnormal electroencephalogram (EEG) and would need close followup. Dr. Walsh estimated this infant’s event to have occurred at about 0400, 21 Sep 88 (the 20 Sep 88 night shift). In addition to the Code Blue report, duty rosters showed Beekelic worked the 20 Sep 88 night shift. Pl.’s Ex. 8, OSI Report at 10, 3-11. Dr. Walsh found no medically explainable reason for the Givens baby’s episode, and concluded it was most likely a drug administered IV or IM. Pl.’s Ex. 161, Walsh Report. Dr. Stigelman agreed that the most likely cause of the Givens incident was the surreptitious administration of some exogenous agent such as lidocaine. Pl.’s Ex. 163, Dr. Stigelman Opinion. Dr. Colan examined the Givens child and reviewed her medical records. Dr. Colan concluded that the injury to the Givens child was consistent with the administration of a toxic quantity of lidocaine. Pl.’s Ex. 70, Dr. Colan Depo., dated 3/3/94, at 17-19, 75, 128, 135, 147—48. Dr. Colan further observed: Tonyanika had recurrent episodes which I believe occurred initially by something being put into her throat, that lidocaine was put into her by some feeding technique, such' as an NG tube, and this caused her initial symptoms____ I believe that this case is the second case in which the child then received a major potentially lethal dose of lidocaine which produced the third event in the catastrophic change in this child. This child has cerebral palsy. Her right arm is paralyzed as an outcome---The subsequent event with Tonyanika occurred with an IV and through an IV that was established after the first event. Id. at 75-77; see also Pl.’s Ex. 71, Dr. Colan Depo., dated 6/6/94, at 129-137. It is undisputed that Beekelic was on duty during the period in which Tonyanika was injured. Pl.’s Ex. 99, Nursery Duty Roster; Pl.’s Ex. 1, Government Admission Nos. 28 and 63, dated 1/19/94. Additionally, the medical records of September 20, 1988 indicate that Beekelic was present when the infant was choking at about midnight. When Tonyanika collapsed three hours later, Beekelic “discovered” the infant. Pl.’s Ex. 8, OSI Report at 10. The defendant admits that whatever happened to Tonyanika Givens happened while she was under the exclusive care, custody and control of the defendant. Pl.’s Ex. 3, Government Admission No. 21, dated 8/26/94. Mr. and Mrs. Givens filed an administrative claim and accepted a $25,000.00 payment from the Government on the Government’s false representation that $25,000.00 was the maximum amount of recovery allowed in this type case. Pl.’s Ex. 192, Givens Depo. at 28-30; Court Order dated 10/2/95. The Court finds, upon consideration of all the evidence, that the Givens infant was injured by the foreseeable actions of Beckelic. F. COREY DEAN FOWLER, Case No. 93-D-1392-N The defendant’s investigation into the circumstances surrounding the injury to Corey Fowler is summarized in the OSI Report as follows: A full-term, male infant delivered by repeat (second child) c-seetion at 0839, 27 Sep 88. The birth was without incident or complication. The infant was noted to be well until 1900, 28 Sep 88, when the infant was discovered in his crib with bright red blood coming from his mouth and nose. Upon closer examination, a small (about 2 cm) laceration was found on the infant’s upper palate. During the night, the infant had episodes of dusky color and was given oxygen. On 29 Sep 88, an Ear, Nose, and Throat (ENT) consultation was performed. At 1510, 29 Sep 88, Ms. Townsend, an LPN in the nursery found the infant again bleeding from the nose and mouth. The laceration was determined not to be the source of the bleeding, and another ENT consultation was requested. The infant was transported to BMC at 1200, 29 Sep 88. Dr. Walsh characterized the laceration to the infant’s palate as suspicious and very unusual. Stigelman opined the infant’s symptoms were not consistent with lidocaine or bupivicaine toxicity. Dr. Walsh estimated the time of this infant’s event to be 1900, 28 Sep 88 (the 28 Sep 88 evening shift). A Newborn Assessment Record (AF 578 overprint) showed [Beekelic’s] signature for 1630, 28 Sep 88. Duty rosters showed [Beckelic] worked the 28 Sep 88 evening shift. Pl.’s Ex. 8, OSI Report at 11, ¶¶ 3-11. Although the method of operation used to injure the Fowler baby appears distinct from that used with the other plaintiffs, it is clear that he was, nevertheless, the victim of foul play. Dr. Colan opined with great conviction that the Fowler infant had been tampered with, concluding that “[i]t is inconceivable that anybody would have a laceration of the palate that was deep and that bled as much as much as this child bled on an incidental or accidental basis.” Pl.’s Ex. 71, Dr. Colan Depo., dated 6/6/94, at 138. Dr. Walsh also characterized the laceration to the infant’s palate as suspicious and very unusual. He concluded that the laceration was not a congenital defect and could only be “caused by direct injury to the roof of the baby’s mouth.” Pl.’s Ex. 161, Dr. Walsh’s Letter dated 12/6/88. Dr. Walsh stated that there was no medical explanation for the injuries received to the Fowler baby. Pl.’s Ex. 161, Walsh Report. Dr. Colan believes that the laceration of the Fowler baby’s palate may have been caused by the injection of a toxic dose of lidocaine. Pl.’s Ex. 70, Dr. Colan Depo., dated 3/3/94, at 17-19, 128, 135, 147-48. He suggests the possibility of lidocaine because “irritability and cyanosis suggests the possibility of lidocaine exposure.” Id. at 81. Although Dr. Stigelman does not believe that the Fowler baby’s symptoms were consistent with lidocaine poisoning, he too believes Fowler’s injuries were not the result of any medically explainable cause. Pl.’s Ex. 163, Stigelman’s Opinion. It is undisputed that Beckelic was on duty during both of the times the Fowler baby was injured, Pl.’s Ex. 11, Duty Roster; Pl.’s Ex. 1, Government Admission No. 63, at 21, dated 1/19/94; Pl.’s Ex. 3, Government Admission No. 5, at 2, dated 8/26/94; Pl.’s Ex. 100, Personnel Grid. Furthermore, in this case there is an adult eyewitness as to Beekelic’s interaction with Fowler. LPN Townsend observed Beckelic hovering over Fowler immediately before one of the infant’s bleeding incidents was discovered. Beckelic called Townsend over and asked her to watch the baby. Beckelie then “disappeared.” The Fowler infant was bleeding from the nose and mouth, and was cyanotic. Nurse Townsend noted that Beckelie failed to return, either to assist in the treatment of the baby, or to explain the circumstances surrounding the baby’s injury. Pl.’s Ex. 60, Townsend Depo. at 28-24. see also Pl.’s Ex. 8, OSI Report at 25, ¶¶ 3-24. The defendant admits that whatever happened to Corey Fowler happened while he was under the exclusive care, custody and control of the defendant. Pl.’s Ex. 3, Government Admission No. 21, dated 8/26/94. The Court finds, upon consideration of all the evidence, that the Fowler infant was injured by the foreseeable actions of Beckelie. G. CAMOI (JAMES) BARNES, Case No. 94-D-1393-N. The defendant’s investigation into the circumstances surrounding the injury to Camoi Barnes is summarized as follows: A full-term, male infant delivered via e-section for fetal distress at 1507, 17 Nov 88. The infant was small for his gestational age. He progressed well until 1600, 20 Nov 88, when his temperature began to fall. Dr. Walsh later noted the infant was suffering from low blood sugar, profound metabolic acidosis, and was taehynapic at 1800, 20 Nov 88. He was given oxygen, and some improvement was noted. He began to exhibit seizure-like activity and was transferred to BMC at 2220, 20 Nov 88. Dr. Stigelman opined the infant’s symptoms were not consistent with lidoeaine or bupivicaine toxicity. Dr. Walsh opined the infant had suffered severe and probably permanent central nervous system damage, and he had experienced two suspicious episodes. The first was at 1800 and the second at 2130, 20 Nov 88 (the 20 Nov 88 evening shift). [Beckelic’s] signature appeared on a 1630, 20 Nov 88, Newborn Assessment (AF 578) in the infant’s medical record. Duty rosters showed [Beckelie] worked the 20 Nov 88 evening shift. Pl.’s Ex. 8, OSI Report at 12, 3-11. Dr. Walsh believes Camoi Barnes’ injuries were the result of a surreptitiously administered drug. Pl.’s Ex. 161, Walsh Report. Although Dr. Stigelman does not believe that Barnes’ symptoms were consistent with lidoeaine poisoning, he could not provide any medically explainable cause for Barnes’ injuries. Pl.’s Ex. 163, Stigelman Opinion. Dr. Colan concluded that the symptoms exhibited by Barnes were consistent with lidoeaine toxicity. Pl.’s Ex. 70, Dr. Colan Depo., dated 3/3/94, at 17-19, 128, 135, 147, 148; see also Pl.’s Ex. 71, Dr. Colan Depo., dated 6/6/94, at 86. It is undisputed that Beckelie was on duty during the time Barnes was injured. Pl.’s Ex. 100, Personnel Grid; Pl.’s Ex. 99, Nursery Duty Roster; Pl.’s Ex. 3, Government Admission No. 12, dated 8/26/94. The medical records show that Beckelie conducted the newborn assessment of the child and was on duty when the incident occurred. Pl.’s Ex. 31, Barnes medical records. The defendant admits that whatever happened to Camoi Barnes happened while he was under the exclusive care, custody and control of the defendant. Pl.’s Ex. 3, Government Admission No. 21, dated 8/26/94. The Court finds, upon consideration of all the evidence, that the Barnes infant was injured by the foreseeable actions of Beckelie. H. JOHN ROBERTS, Case No. 93-D-1139-N The Government’s investigation into the injury inflicted on John Roberts is summarized in the OSI Report as follows: A full-term, male infant bom via spontaneous vaginal delivery at 0210, 20 Nov 88. Several hours after giving birth and returning to her room, the mother suffered a seizure which was believed to be related to eclampsia (convulsions and coma suffered by pregnant women). At about 1100, 21 Nov 88, the infant’s temperature went up slightly, and a sepsis workup was performed. The workup showed negative results. He was stable until about 1600, 22 Nov 88, when he had a brief episode of mottling and duskiness after vomiting formula. He was placed under oxygen. He had an episode of respiratory distress and duskiness at 1740 and again at 1823, 22 Nov 88. He developed tachycardia and was given epinephrine and lidocaine to improve his cardiac function. He was transferred to BMC at about 2000, 22 Nov 88. Dr. Stigelman opined the infant’s symptoms were consistent with lidocaine or bupivicaine toxicity. Dr. Walsh opined the infant suffered from profound metabolic acidosis and believed the infant had severe and probably permanent central nervous system damage. He estimated the time of onset of the infant’s episode was 1615, 22 Nov 88 (the 22 Nov 88 evening shift). (Note: Attachment 1 to Dr. Walsh’s 6 Dee 88 report (Pl.’s Ex. 151; Walsh Report) contained a typographical error showing 21 Nov 88 as the day of the episode.) Duty rosters showed [Beckelie] worked the evening shift on 21 and 22 Nov 88. Pl.’s Ex. 8, OSI Report at 12, 3-11; In addition to concluding that Roberts was the victim of an IV or IM administered drug, Dr. Walsh opined that this child probably sustained permanent central nervous system damage. Pl.’s Ex. 161, Walsh Opinion; Pl.’s Ex. 8, OSI Report. Dr. Stigelman agreed that baby Roberts was most likely injected with some type of lidocaine or similar toxic drug. Pl.’s Ex. 163, Stigelman Opinion. Dr. Colan examined Roberts in September 1992 and, after a review of his medical records, concluded that Roberts’ injuries were caused by a toxic dose of lidocaine. Pl.’s Ex. 70, Dr. Colan Depo., dated 3/3/94, at 17-19, 101-04, 128, 135, 147-18. Once again it is undisputed that Beckelie was on duty when Roberts was injured, Pl.’s Ex. 1, Government Admission Nos. 36 and 63, dated 1/19/94; Pl.’s Ex. 99, Nursery Duty Roster, and alone with the plaintiff shortly before he was injured. Evidence was presented that it was Beckelie who “found” the injured infant plaintiff. See Young statement; Pl.’s Ex. 8, OSI Report at 20, ¶¶ 3-17. Dr. Colan, based on a review of the medical records, concluded Beckelie was alone with the baby at the time the incident occurred: “At 1630, the physician and nurse leave Beckelie in the position of being the sole supervisor for the child. And at 1712 when he is alone with the infant, suddenly there is another abrupt deterioration.” Pl.’s Ex. 70, Dr. Colan Depo., dated 3/3/94, at 102-103. Additionally, in this case, two eyewitnesses observed Beckelie with Roberts just prior to the time of injury. Medical Technician Julia Waites saw Beckelie alone with the Roberts infant just before the injury. Pl.’s Ex. 8, OSI Report at 28-29, ¶¶ 3-29. Airman Owen P. Nostrant told the OSI investigator that he saw Michael Beckelie alone with John Roberts just prior to the critical episode experienced by the baby. Pl.’s Ex. 8, OSI Report, at 32-33, ¶¶3-36. The defendant admits that whatever happened to John Roberts happened while he was under the exclusive care, custody and control of the United States defendant. Pl.’s Ex. 3, Government Admission No. 21, dated 8/26/94. The Court finds, upon consideration of all the evidence, that the Roberts infant was injured by the foreseeable actions of Beckelie. I. ASIA MARIE SHARPE, Case No. 94-D-1201-N The defendant’s investigation into the circumstances surrounding the injury to Asia Marie Sharpe is summarized in the OSI Report as follows: A full-term, female infant delivered by spontaneous vaginal delivery at 0038, 21 Nov 88. Meconium stain was present in the amniotic fluid. The infant had decreased fetal heart tones upon delivery and was given oxygen and Narcan (a drug to counteract the effects of narcotic anesthesia given the mother) for 10 minutes in the delivery room. At about 0300, the infant had tachynapea and oxygen was given. At about 1600, the infant had a septic workup and became mottled and started grunting and gasping. Dr. Stevenson was present at this time. The infant responded to stimulation and respiration assistance, and her color improved until about 1655 hrs when she had a period of mottling and decreased heart rate. The infant was transferred to BMC at 1755 after failing to respond to further treatment. Dr. Stigelman opined the infant’s symptoms were consistent with lidocaine or bupivacaine toxicity. Lidocaine was found in the infant’s urine at BMC, and there was no record of her receiving lidocaine directly either at AURH or BMC. The infant’s mother had received an unknown quantity of 1 percent lidoeaine as a local anesthesia during her delivery on 21 Nov 88. The lidoeaine present in the infant’s urine could have been as a result of this lidoeaine passing from the mother into the infant, or it could have been accidently injected into the infant during her episiotomy (widening of the vaginal opening to prevent tissue damage during birth). Dr. Walsh opined this infant suffered from profound metabolic acidosis and had an abnormal EEG which would require close followup. Dr. Walsh estimated the time of onset of this infant’s episode was about 1615, 21 Nov 88 (the 21 Nov 88 evening shift). Duty rosters showed [Beckelic] worked the 21 Nov 8 evening shift. Pl.’s Ex. 8, OSI Report. It is significant that, in the only plaintiff who had a urine screen, the presence of lidoeaine (consistent with plaintiffs’ theory) was discovered. Pl.’s Ex. 160, Sharpe Urine Screen. Dr. Walsh reviewed Sharpe’s records and concluded that Sharpe’s episodes were not medically explainable. Pl.’s Ex. 161, Dr. Walsh Report. He also stated that Sharpe had an abnormal eleeepholagram and needed close followup. Id. Dr. Stigelman opined that the injuries to Sharpe were consistent with lidoeaine poisoning. Pl.’s Ex. 168, Stigelman Opinion. Dr. Colan examined the Sharpe baby and reviewed all medical records. Dr. Colan opined that the injuries received by the Sharpe baby were consistent with the administration of lidoeaine or other similar drug. Pl.’s Ex. 70, Dr. Colan Depo., dated 3/3/94, at 17-19, 108-09, 128, 135, 147-48. In Dr. Stigelman’s deposition, the question arose as to whether the lidoeaine could have been transmitted from the mother to the infant during delivery as a result of the episiotomy. Since the urine screen was qualitative only (as opposed to being quantitative), Dr. Colan concluded that: there would have had to have been much, much, much more lidoeaine in the baby than can possibly have occurred from an injection through the mother’s skin over that period of time. The fact that it was positive at 31 hours shows there was a very high level of lidoeaine in that baby prior to that examination. It proves that this child was intoxicated with lidoeaine to still be positive at that point and is inconsistent with an escape from the mother into the baby. Pl.’s Ex. 70, Dr. Colan Depo., dated 3/3/94, at 115-16. On the basis of this testimony, the Court finds that the lidoeaine present in Sharpe’s urine did not stem from the injection given to his mother. Deborah Sharpe, the mother of the child, identified Beckelic as being in the room shortly before the incident. Pl.’s Ex. 189, Sharpe Depo. at 12, 13. Moreover, it was Beekelie who called Nurse McCarty to look at the baby at the time of the code blue. Pl.’s Ex. 8, OSI Report at 20-22. All the evidence indicates that Beckelic was on duty at the time the child was injured. Pl.’s Ex. 99, Nursery Duty Roster; Pl.’s Ex. 100, Personnel Grid. Although the Hospital duty roster shows Beckelic was on duty during the shift in which the episodes to the Sharpe infant occurred, the defendant refuses to either admit or deny his presence. Nevertheless, the Court finds that Beckelic was present during the Sharpe episodes and that Sharpe’s injuries occurred while he was under the exclusive care, custody and control of the defendant. The Court finds, upon consideration of all the evidence, that Sharpe suffered her injuries while under the exclusive care, custody and control of the defendant. The Court further so finds that the Sharpe infant was injured by the foreseeable actions of Beckelic. J. EMILY ANN ROBERTS, Case No. 93-D-1391-N The medical records of Emily Roberts show that she was a term child, born on July 20, 1988 at 1:13 P.M. She was noted to be active and vigorous at birth. Pl.’s Ex. 3, Government Admission Nos. 12-14, dated 8/26/94. At 4:10 a.m. on July 22, 1988 she was found to be cyanotic. Pl.’s Ex. 3, Government Admission 15, dated 8/26/94. Beekelic was alone with Emily Roberts on at least two occasions when she suffered cyanotic events. Beekelic “found” and reported that the child was cyanotic in the early morning hours of Beckelic’s July 21-22 shift. At about 4:00 a.m., Beekelic again reported an episode of cyanosis and described the child as not breathing. According to Beekelic, he “stimulated the child.” Pl.’s Ex. 25, Medical Records of Emily Roberts. It is undisputed that Beekelic was on duty at the time the child suffered her injuries. Pl.’s Ex. 3, Government Admission No. 17, dated 8/26/94; Pl.’s Ex. 99, Nursery Duty Roster; Pl.’s Ex. 100, Personnel Grid. Although Dr. Walsh opined that Emily Roberts’ injuries could possibly have a medical explanation, he also stated that it was possible the child’s injuries were caused by smothering. See Pl.’s Ex. 161, Dr. Walsh Report. On the other hand, Dr. Colan said Emily was definitely tampered with. Dr. Colan was not certain whether the child’s injuries were related to a toxic dose of lidocaine. Pl.’s Ex. 71, Dr. Colan Depo., dated 6/6/94, at 200. The child’s mother, Mrs. Roberts, was told by Colonel Jones, the Hospital commander, that her child was one of several that had been injected with a drug. Pl.’s Ex. 182, Terry Roberts Depo. at 9-11, 20-26. The Court finds, upon consideration of all the evidence, that Roberts suffered her injuries while under the exclusive care, custody and control of the defendant. The Court further so finds that the Roberts infant was injured by the foreseeable actions of Beckelic. K. QUINTON WARRICK, Case No. 94-D-1199-N The medical records show that Quinton Warrick was born on the 29th of August, 1988. His birth weight was 3465 grams. He had an initial apgar score of 9 and was described as being vigorous and doing well. Pl.’s Ex. 47, Warrick Medical Records; see also Pl.’s Ex. 70, Dr. Colan Depo., dated 3/3/94, at 70, 71. Shortly after midnight on October 30, 1988, infant Warrick had an acute episode of duskiness, cyanosis, blueness, gray and mottled appearance and lethargy. He was slow to respond to oxygen and an IV was started. Shortly thereafter, at 0600 hours, a code blue was called. The child had extreme cyanosis, blueness and his heart rate was in the 40’s and 50’s. He was resuscitated with oxygen, a tube was put in his throat, and atrophine was given to speed up his heart rate. His arterial blood gas, according to Dr. Stevenson, showed acidosis some 40 minutes after his code blue. He was transferred to BMC for observation. At BMC, he had an abnormal EEG. Pl.’s Ex. 47, Warrick Medical Records; Pl.’s Ex. 70, Colan Depo., dated 3/3/94, at 70-72. Dr. Walsh characterized the Warrick episode as “suspicious.” By that, he meant “there are underlying causes or subsequent information which could possibly explain the episode.” Pl.’s Exs. 161, 162, Walsh Reports. However, Dr. Colan concluded that the War-rick infant had been injected with lidocaine through the IV which was put in place subsequent to his first episode. Pl.’s Ex. 70., Dr. Colan Depo., dated 3/3/94, at 71-73. The evidence indicates that Beekelic was on duty during both episodes in which War-rick became cyanotic. Pl.’s Ex. 100, Personnel Grid; Pl.’s Ex. 99, Nursery Duty Roster. The presence of Michael Beekelic at the time of these episodes is further confirmed by the deposition testimony of Daphne Warrick. Mrs. Warrick stated that on the morning of the episode, she was told by Michael Beekelic that Quinton Warrick was hyperventilating and that he was “giving them a good fit after the spinal tap.” Pl.’s Ex. 187, Daphne War-rick Depo. at 8. The Court finds that War-rick suffered his injuries while under the exclusive care, custody and control of the defendant. The Court finds, upon consideration of all the evidence, that the Warrick infant was injured by the foreseeable actions of Beckelic. L. AARON GOGGANS, Case No. 94-D-1200-N The medical records of Infant Goggans show that he was a full-term male infant delivered without complications by e-section on December 9, 1988 at the Hospital. Pl.’s Ex. 4, Government Admission No. 1, dated 3/13/95. Aaron Goggans’ medical records were not reviewed by Drs. Walsh and Stigelman. However, Dr. Colan had an opportunity to review Goggans’ records, and he physically examined Goggans on March 2, 1994. Pl.’s Ex. 70, Dr. Colan Depo., dated 3/3/94, at 118. Based on this examination and review, Dr. Colan opined, to a reasonable degree of medical certainty, that Aaron Goggans was tampered with on December 9, 1988. Id. at 122. Dr. Colan stated that, although Aaron Goggans did not demonstrate the symptoms of those children he believed to have been subjected to lidoeaine toxicity, it was possible that Goggans had been injected with some other drug. Dr. Colan suggested that certain heavy metals could produce the symptoms exhibited by Aaron Goggans. Pl.’s Ex. 71, Dr. Colan Depo., dated 6/6/94, at 201-203. There is some dispute as to whether Beckelic was on duty at the time Goggans was injured. The Hospital duty roster initially produced by the defendant showed that Beckelic was on duty during the time Goggans was injured. Pl.’s Ex. 99, Nursery Duty Roster. Later, the defendant changed the duty assignment and time schedule roster by deleting Beckelic’s name. Pl.’s Ex. 99, Nursery Duty Roster. Thereafter, the defendant amended its “Admission No. 70” (the defendant had initially claimed to have insufficient information to admit or deny) to deny Beckelic’s presence in the nursery at the time. The defendant’s inconsistent position is even more questionable in light of the trial testimony of Ms. Goggans, Aaron Goggans’ grandmother. Ms. Goggans stated that she saw Beckelic in the nursery immediately after the child’s birth, and that Beckelic physically handed the baby to his mother following th.e baby’s circumcision. See Goggans trial testimony; Pl.’s Ex. 197, Connie Mullen Depo.; Pl.’s Ex. 207, Aff. in Support of Aaron Goggans’ Federal Tort Claim. The Court finds Ms. Goggans to be a credible witness. Finally, it is clear that, despite the defendant’s assertion to the contrary, Beckelic was allowed to work at the hospital during December of 1988, and thus, had access to the nursery during the period when Goggans was injured. Pl.’s Ex. 99, Nursery Duty Roster; PX 107, final APR. Based on the foregoing, the Court finds that Goggans has established that Beckelic was present at the time the child suffered injury. The Court finds, upon consideration of all the evidence, Goggans suffered his injuries while under the exclusive care, custody and control of the defendant. The Court further so finds that the Goggans infant was injured by the foreseeable actions of Beckelic. III. DISCUSSION As noted earlier, the plaintiffs bring their claims under the Federal Torts Claims Act (“FTCA”), 28 U.S.C. § 1346. The FTCA provides that the tort law of the state where the act or omission occurred governs liability. 28 U.S.C. § 1346(b); Bettis v. U.S., 635 F.2d 1144 (5th Cir.1981); Edwards v. U.S., 497 F.Supp. 379 (M.D.Ala.1980). It is undisputed that the alleged acts or omissions of the defendant occurred within the State of Alabama. See Ross v. United States, 640 F.2d 511, 518-19 (5th Cir.1981). However, the defendant contends that it is immune to the plaintiffs’ claims pursuant to 28 U.S.C. § 2680(a) (discretionary function) and § 2680(h) (intentional tort). The Court will address these contentions separately. Intentional Tort Defense The defendant contends that it cannot be liable under the FTCA because the plaintiffs’ claims necessarily arise out of a clam for battery. Section 2680(h) of Title 28 of the United States Code provides that sovereign immunity is not waived for “any claim arising out of assault, battery” or other enumerated intentional torts. Thus, the issue before the Court is whether the plaintiffs’ claims arise out of Beekelic’s battery upon the plaintiffs. The defendant’s argument misinterprets the plaintiffs’ claims. The plaintiffs seek recovery, not for Beckelic’s intentional acts, but for the defendant’s breach of the duty of care it owed the plaintiffs. This case is not so much about what Beckelic did, as it is about what the defendant failed to do. The Court, upon consideration of all the evidence, finds that the defendant faded to exercise reasonable care in its decision to assign Beckelic to the nursery; the defendant failed to adhere to its own regulations regarding quality assurance and documentation; the defendant failed to adhere to its own regulations regarding supervision in the nursery; the defendant failed to identify the cause of the plaintiffs’ injuries and take steps to prevent recurrence thereof; and the defendant ignored both direct and indirect warnings about Beekelic’s unsuitability for placement in the nursery. This type of claim is not excepted from the waiver of sovereign immunity found in 28 U.S.C. § 1346(b). See Sheridan v. United States, 487 U.S. 392, 108 S.Ct. 2449, 101 L.Ed.2d 352 (1988); United States v. Muniz, 374 U.S. 150, 88 S.Ct. 1850, 10 L.Ed.2d 805-(1963). In Sheridan, the Supreme Court was faced with this same issue in a case factually analogous to the instant case. In Sheridan, three naval corpsmen found a naval medical aide “lying face down in a drunken stupor on the concrete floor of a hospital building.” 487 U.S. at 395, 108 S.Ct. at 2452. The corpsmen initially tried to get the aide to the emergency room, but fled when the aide resisted and it was revealed that the aide was armed with a rifle. Id. The corpsmen failed to report this incident to the appropriate authorities. Id. Later that night, the aide fired his rifle into a passing car, injuring one of the passengers. Id. Petitioners brought a claim under the FTCA alleging that their injuries were caused by the Government’s negligence. Id at 394, 108 S.Ct. at 2451-52. The courts below dismissed the petitioners’ claim because it implicated an intentional tort by a Government employee. Id. at 395, 108 S.Ct. at 2452. The Sheridan Court began its discussion by noting, “it is both settled and undisputed that in at least some situations the fact that an injury was directly caused by an assault or battery will not preclude liability against the Government for negligently allowing the assault to occur.” Id. at 398, 108 S.Ct. at 2454 (citing United States v. Muniz, 374 U.S. 150, 83 S.Ct. 1850, 10 L.Ed.2d 805 (1963)). The Court added that even if an intentional tort was “a sine qua non of recovery,” recovery under the FTCA was not precluded pursuant to § 2680(h). Id.