Saturday, December 28, 2019

More than 100 families of fallen members of the military sue defense contractors alleging they funded the Taliban, which resulted in the deaths of their relatives

In a very interesting development, NPR is reporting that more than 100 families are suing several major defense contractors alleging they made "protection payments" to the Taliban which constitutes funding funding terrorism under the federal Anti-Terrorism Act.

I am not familiar with the exact content of this Act, but given the complaint I am guessing it recognizes a cause of action for those who can allege that a defendant funded a terrorist group whose conduct causes an injury to the plaintiff (or decedent).  According to the complaint the "protection payments aided and abetted terrorism by directly funding an al-Qaeda-backed Taliban insurgency that killed and injured thousands of Americans."

The 288 page complaint is available here.

According to one expert, paying insurgents is "pretty universal" among defense contractors because it is the only way to get the supplies needed for their operations.  In contrast, the complaint argues that the defendants put the decedent's lives in danger in order to save money:  "it was cheaper to buy off the Taliban than it would have been to invest in the security necessary to mitigate the terrorists' threats."

Monday, December 23, 2019

Senate approves Defense Authorization Bill which includes provision to provide compensation to military personnel injured by negligence of military doctors

In Feres v US, the US Supreme Court expanded the interpretation of one of the exception to the Federal Torts Claims Act resulting in a ban on any claim for any injury under any circumstances while the plaintiff was in military service (active or otherwise).  This has resulted in findings that members of the military can't sue for injuries caused by medical personnel, for example.

The debate over whether the Feres Doctrine should be abandoned has raged ever since.  In fact, last May, two Justices of the Supreme Court suggested it was time to get rid of it.  See here.  Soon after that, the New York Times published an Op-Ed piece urging Congress to eliminate the doctrine.  See here.

Maybe in response to these events, later in the year Congress debated inserting a provision into the annual defense authorization bill to offer payouts to victims of military medical malpractice.  The provision did not alter the Feres doctrine, but it creates a system to provide limited recovery to some victims of military medical malpractice.

Last week, the Senate voted, 86-8, to pass the National Defense Authorization Act including $400 Million for the Defense Department to investigate and pay out military medical malpractice claims internally, bypassing the Feres Doctrine. 

This sounds great, but the details of the provision severely limit its possible benefits.  Most importantly, claims would be limited to under $100,000, and legal fees are capped at 20%.  Unfortunately for the victims, these limits will make it difficult for them to find lawyers to on the representation.  Medical malpractice cases are typically very expensive to litigate and being able to recover only $20,000 will make the cases not viable financially.

According to the bill, the Secretary of Defense can create regulations that allow them to pay more, but those regulations haven’t been written.

The New York Personal Injury Law Blog has a good short comment on the bill here.

Arizona Appeals Court suggests it is time to starting thinking of suicide as any other intervening cause

As in many other jurisdictions, a decedent's conduct in committing suicide is considered a superseding cause, presumably based on the notion that it is always unforeseeable that someone would commit suicide. 

But we all know that this statement is nonsense.  That someone might commit suicide is as foreseeable as any other intervening event.  Sometimes it is, sometimes it isn't.  And, for that reason, it is not convincing to hold as a matter of law that suicide is always unforeseeable.  Yet, that is what many courts do.

I am writing about this today because I just read in Bloomberg news that an Arizona appeals court recently dismissed a legal malpractice suit against two law firms brought by the parents of a woman who killed herself.  The court cited that accepted view of suicide as a superseding cause as the reason for its ruling, but urged the state supreme court to revisit “the aging majority rule” because it’s “primitive and unduly inflexible."

I agree, particularly given the statistics about suicide in this country, that as the court stated, the suicide rule is outdated, noting that it “draws from society’s historical view of suicide as sinful and immoral.”  The court's opinion states in fact that it "would not adopt the majority rule if it were within the scope of our authority to make that decision.”

The case is called Parton v. Jeans.