Richard J. Griffin and Mary Jane Griffin, His Wife v. United States

I respectfully dissent from the majority’s conclusion that plaintiffs’ action is not barred by the “discretionary function” exception of the Federal Tort Claims Act. The majority affirms the district court’s conclusion that the implementation by DBS of the regulations governing the neurovirulence testing of the live, oral poliovirus vaccine, 42 C.F. R. §§ 73.110-73.118, and decision by DBS to release Lot 56 pursuant to such regulations did not involve a “discretionary function” within the meaning of 28 U.S.C. § 2680(a).

Section 2680 provides, in pertinent part, as follows:

“The provisions of…