Feds Off the Hook for Marine’s Missing Heart

(CN) - The family of a Marine who killed himself while on duty in Greece cannot pursue an emotional distress claim against the U.S. for its failure to tell them their son's heart was removed, and lost, during an autopsy, a federal judge ruled.

Marine Sgt. Brian LaLoup had been stationed in Athens, Greece when his comrades saw him sprint from a party to the chancery at 1:35 a.m. on Aug. 12, 2012, the complaint states.

Brian then took a gun from the embassy security guards' stash and shot himself in the head, Marines reported. He was pronounced dead at Evangelismos General Hospital at 3:45 a.m.

His mother, Beverly LaLoup, says the hospital left her son's body "unguarded and alone" in the morgue for days and performed an "illegal" autopsy, during which his heart was removed.

Two days after the Marines flew Brian's body to the Dover, Del. Air Force Base on Aug. 20, American officials discovered during a second autopsy that Brian's heart had been removed.

Beverly claims that Marine Staff Sgt. McClendon, whose first name is not in the court record, had her sign a form a few days later to release Brian's body from Dover for the funeral.

But McClendon merely told Beverly that parts of her son's scalp were missing, and even "signed the election portions of the form himself, instead of having the plaintiffs sign," she says.

Indeed, McClendon allegedly told Beverly that her son's hat would cover the area so the family could have an open casket at the memorial service, with full military honors.

About three weeks after the LaLoups buried their son on Aug. 29, another sergeant had her sign some forms related to her son's death.

When Beverly asked what would happen if more of Brian's scalp was found, the sergeant "looked at [her] funny" and said "Ma'am, what are you talking about?" the complaint states.

After he told Beverly that Brian's heart was missing, she asked why she was not told this before, the sergeant said, "that is not something you tell a grieving mother," she claims.

Left "absolutely devastated," Brian's mother and father, Craig LaLoup, sued the United States, the Department of Defense, and the Navy, as well as the Hellenic Republic and hospital.

Though Greece supposedly shipped Brian's heart to Dover, DNA testing showed that it was not his, and the parents never received his actual heart, the complaint states.

The U.S. and Greek governments moved to dismiss for lack of subject matter jurisdiction under the Federal Tort Claims Act and for foreign sovereign immunity, respectively.

U.S. District Judge Stewart Dalzell partially granted the United States' motion in Philadelphia July 10, finding that McClendon's decision to say that Brian's scalp was missing, rather than his heart, was not "extreme or outrageous," to support an emotional distress claim.

"Rather than 'extreme and outrageous,' the decisions reflect contrary approaches to relaying uncomfortable facts to a grieving parent," Dalzell wrote.

The judge elsewhere added that "the evidence the plaintiffs have adduced does not come close to showing that the United States here acted in a wanton manner. Though the removal of the heart ... might have been 'likely to cause severe emotional distress,' the likelihood that failure to tell the LaLoups about the removal would cause them emotional distress was not so obvious as to constitute wanton conduct."

McClendon may have owed the LaLoups a duty under state law, the ruling states.

"We cannot determine at this juncture whether there in fact existed such a duty, as the record lacks information that would assist us in reaching a conclusion on this point such as, inter alia, the nature of a [Casualty Assistance Calls Officer's] CACO's job, any provisions in the contract Sgt. LaLoup signed when he entered the Marines regarding the care of his body in the event of his death, and any Marines procedures that would shed light on the question."

The judge also granted the Greek defendants motion to dismiss for lack of jurisdiction.

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