Finally, some changes to the Feres Doctrine!

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 suffered while the plaintiff is 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. The debate over whether the Feres Doctrine should be abandoned has raged ever since.  For all the stories I have published over the years on the Feres Doctrine, go here.)

There have been many attempts to eliminate or at least to change the effect of the Feres doctrine over the years, and Justice Clarence Thomas recently expressed his support for change.  But all attempts had failed, Until now.  

Thus I am happy to report that the Defense Department has published a new rule governing how uniformed service members or their representatives can file claims against the military for medical malpractice.  This new rule states that (subject to some exceptions)

"A substantiated claim under $100,000 will be paid directly to the member or his/her estate by the [Department of Defense (DoD)]. The Treasury Department will review and pay claims that the Secretary of Defense values at more than $100,000. Service members must present a claim that is received by DoD within two years after the claim accrues."

However, it must be noted that the rule does not allow for judicial review of adjudicated claims, and that, therefore, their settlement will be "final and conclusive."

So, it while it is a good thing that plaintiffs will have the chance to recover for their injuries, the remedy provided is still short of the recognition of a possible judicially resolved tort claim.  

For more information, you can go to Military.com, Stars and Stripes and the NY Personal Injury Law Blog.

Justice Clarence Thomas again affirms the Court should get rid of the Feres doctrine

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 suffered while the plaintiff is 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.  For all the stories I have published over the years on the Feres Doctrine, go here.)

Recently, Justice Thomas has repeatedly argued that Feres should be overruled.  He did so in 2019 in a dissent from a cert petition (see here); and he did so again earlier this month.  

In yet another dissent from a cert petition Justice Thomas argued should have agreed to hear the appeal of a West Point cadet who sued claiming she was raped by another cadet.  

Justice Thomas opined that Feres v. United States was wrongly decided because the decision was not based on the wording of the Federal Tort Claims Act.  The exception in the Act was meant to protect the government from suits “arising out of … combatant activities … during time of war” but Feres extended that notion by recognizing immunity from suits in any way incident to military service.

The case is called Doe v. United States and you can read Justice Thomas' opinion here.

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."

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.

Yet another lawsuit fled against 3M related to faulty earplugs

If you have been following the blog recently, you know I have following the 3M Combat Arms Earplug lawsuits pending throughout the federal court system. My most recent posts are here and here and here.

Now, here is the latest.  According to allegations raised in a recently filed product liability lawsuit, 3M Company ignored warning signs that its Combat Arms earplugs could damage the hearing of military personnel as part of an effort to win and maintain lucrative government contracts.

AboutLawsuits has more details.

3M Earplug Hearing Loss Claims and Class Action Lawsuits to Proceed in Single Track

I have been following the 3M Combat Arms Earplug lawsuits pending throughout the federal court system. My most recent posts are here and here.

Now, here is an update:  The U.S. District Judge presiding over all federal 3M earplug lawsuits filed nationwide has declined to create separate litigation track for class action lawsuits, indicating that the it is premature to consider such a move and they will continue on the same path as individual hearing loss claims at this time.

For more details go here.

Podcast on the settlement over defective ear plugs used by the military

I have been following the litigation Multidistrict Litigation consolidating all 3M Combat Arms Earplug lawsuits pending throughout the federal court system, each raising similar allegations that veterans were left with permanent hearing damage as a result of design defects with the reversible earplugs that were standard issue by the U.S. military between 2003 and 2015.  I posted many links to information on the cases here, here and here. 

Today, here is a link to a recent podcast discussing a 9.1 million dollar settlement reached in litigation surrounding a defective earplug (3M Earplugs).  In it, the hosts and guests discuss the 2016 whistleblower lawsuit that started it all, how these earplugs have impaired its users, and future litigation.

You can listen to the podcast here or here.  You can download it here.

Court appoints plaintiffs' steering committee in multidistrict litigation against manufacturers of earplugs issued by the military

Last month I reported that the U.S. Judicial Panel on Multidistrict Litigation (JPML) agreed to consolidate and centralize all 3M Combat Arms Earplug lawsuits pending throughout the federal court system.  Currently, there are more than 813 product liability lawsuits filed against 3M Company and it’s Aearo Technologies subsidiary, each involving similar allegations that military veterans suffered hearing damage following use of Combat Arms earplugs, which were standard issue by the military between 2003 and 2015.  However, according to some, it is expected that ultimately thousands of cases will be brought by individuals nationwide.

The centralized litigation has been assigned to U.S. District Judge Casey Rodgers in the Northern District of Florida, which will help reduce duplicative discovery, and avoid conflicting pretrial rulings.

Now comes news that the Judge has appointed a group of 53 plaintiffs’ attorneys to serve in various leadership roles, taking actions that benefit all veterans who are pursuing claims for hearing loss linked to product defects.  AboutLawsuits has the story and links to the relevant documents.

NYT Op Ed on the Feres Doctrine

Yesterday I commented on the news that two Justices voted to take on a case that could have resulted in a change to the Feres Doctrine.  Today there's more.  Stephen I. Vladeck, a professor at the University of Texas School of Law, just published an Op Ed piece in the New York Times calling on Congress to undue the doctrine.  You can read the article here.  In part, it states:

For almost as long as it has been on the books, the Feres decision has been controversial. The case reached the Supreme Court in 1950, four years after Congress broadly expanded the tort liability of the federal government in the Federal Tort Claims Act and shortly after the United States had entered the Korean War. Although Congress had expressly disallowed claims from anyone arising out of the military’s “combatant activities,” the Supreme Court in Feres went further. It held that Congress could not have intended that service members could bring ordinary tort suits for any other claims arising out of their military service, even though nothing in the law directly supported that result.

As Justice Antonin Scalia put it in 1987, “Feres was wrongly decided and heartily deserves the ‘widespread, almost universal criticism’ it has received.” Not only did the court in 1950 read into the tort claims act an exception with no textual support; subsequent decisions broadly construed Feres’s scope so that it is virtually impossible for service members to recover damages from the government for almost any negligence or other misconduct they suffer while serving. In the process, Feres treats service members more harshly than any other Americans, even in contexts that are entirely analogous to civilian life — like medical malpractice claims at stateside hospitals. It would be one thing if Congress had expressly required such an unjust and unfair result. But nearly every contemporary court and commentator agrees that it did not — and that the result of the decision, in Justice Scalia’s words, has been “unfairness and irrationality.”

. . . . Why has the court held firm on a decision so widely criticized? In that same 1987 case in which Justice Scalia dissented with three other justices, the court identified three justifications. First, injuries to service members related to their military service should not be left to the vagaries of 50 different state laws but should instead be subject to a uniform federal rule. Second, Congress had already provided at least some kind of remedy to injured service members through “generous statutory disability and death benefits.” And third, tort suits arising out of military service “would involve the judiciary in sensitive military affairs at the expense of military discipline and effectiveness.” 

Reasonable minds can disagree about the relative strengths of these policy arguments; Justice Scalia’s central point in dissenting from that analysis was that Congress had already weighed the pluses and minuses of such policy considerations when it enacted the tort claims act — and it wasn’t for the courts to second-guess its answer. “The problem now, as then,” he explained, “is that Congress not only failed to provide such an exemption, but quite plainly excluded it.”

 As Prof. Vladeck explains, the doctrine is controversial and has been hotly debated for a long time.  Several attempts to change it have failed in Congress.  For some of the arguments against his position you only need to read some of the comments already posted to his argument.  Here is one:

It may be hard to understand the justification for Feres in a medical malpractice case like this, but there are many situations in which the nature of military service is hard to reconcile with normal tort concepts. The Tort Claims Act already excludes liability for combat activities, but military personnel engage in non-combat activities that are dangerous and difficult to measure by negligence standards.

Is it negligent to subject military personnel to training that, by replicating some of the risks of combat, prepares trainees for combat? Is it negligent for the Coast Guard to send personnel on a search and rescue mission in a storm? Does it matter how many civilians may die if no rescue is attempted?  

Military personnel are entitled to compensation on a no-fault basis for service connected injuries. If that compensation is viewed as inadequate, the better solution may be to increase it rather than, as Professor Vladeck proposes, legislation to overturn Feres in its entirety.

 Here is part of another one:

Of course. That's the solution. We need more tort claims. I'm sure that will improve the quality of military healthcare. Why didn't I think of that?  

Geez. You sometimes witness why law struggles to meet reality. 

I happen to agree with the reasoning behind Feres. The military isn't going to function well if you open the government to personal liability claims from service members.  hat's a rabbit hole I don't want to go down. 

If you're a service member and something bad happens... well... you're a service member. Use the military hospital and hope for the best.

So, what do you think?

Justice Thomas argues in favor of overturning the Feres Doctrine!

I am not sure why but the Feres doctrine seems to be in the news a lot these days.  Yesterday I commented on a recent bill seeking to limit the Feres Doctrine and on the fact that the doctrine is currently part of the plot of a TV show.

Today, the news is that Justice Clarence Thomas dissented in a denial of cert with an opinion in which he argued the court should have taken on the case in order to overturn Feres v. United States.  The case is called Daniel v. United States.  Justice Ruth Bader Ginsburg also would have granted certiorari.

You can find all the relevant documents about the case here.

Unfortunately, the other important part of the story is that the Court refused to hear the case, which means it refused to reconsider the Feres doctrine.

Since there have been previous attempts to get rid of it in Congress and they have all failed, I am not too hopeful in the future of the recently proposed bill. If there was going to be a change, this now rejected case was the best chance.

Another attempt to eliminate (at least part of) the Feres Doctrine

As you might remember from your first semester Tort Law class, the Feres Doctine refers to the interpretation given by the Supreme Court in a case called Feres v US to an exception to the Federal Torts Claims Act.  According to the exception, members of the military can not sue the federal government for injuries suffered while in active duty.  In Feres, the Court expanded the interpretation of the exception to essentially ban any claim for any injury under any circumstances while the plaintiff was in 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.

This is a controversial doctrine, and there have been many calls to eliminate it.  But all the attempts to do so have failed.

The TortsProf blog is now reporting that there is a new push afoot.

A bipartisan bill that would overrule the Feres Doctrine has been introduced in the House of Representatives.  The bill would create an exemption to the Federal Tort Claims Act to allow plaintiffs to file medical malpractice lawsuits for injuries that occur after the bill's passage.  However, the bill would have no impact on those instances of medical malpractice that occur during combat operations, aboard ships, or at battalion aid stations. 

For more information on the debate related to the Feres Doctrine, you can watch this old video.  And for some of my posts on it go here, here, here, and here.

Interestingly, the Feres Doctrine is also an underlying issue in the new TV Show "The Code", in which the widow of a member of the Marines sued for wrongful death.  During the episode (episode 3, which you can watch here), a few of the characters talked about it and their explanation was actually pretty accurate.  I think the producers got a good legal consultant to help with the script.

3M Military Earplug Lawyers To Meet With Judge Appointed To Preside Over Hearing Loss Lawsuits

3M Company currently faces more than 600 product liability lawsuits filed in U.S. District Courts nationwide by veterans left with hearing loss following service between 2003 and 2015, and the size of the litigation is expected to continue to grow as hearing loss lawyers continue to review and file complaints alleging the company knowingly sold defective earplugs to the U.S. military.

The lawyers involved in the lawsuits will meet for the first time next week with the judge recently appointed to preside over coordinated pretrial proceedings for the claims.

AboutLawsuits has more details on the latest developments here.

Class action on behalf of soldiers and veterans against manufacturers of defective earplugs -- UPDATED

The U.S. Judicial Panel on Multidistrict Litigation (JPML) has agreed to consolidate and centralize all 3M Combat Arms Earplug lawsuits pending throughout the federal court system, each raising similar allegations that veterans were left with permanent hearing damage as a result of design defects with the reversible earplugs that were standard issue by the U.S. military between 2003 and 2015.  You can read one the original complaints here, and get more information here, here and here.

UPDATE 4/13/19:  AboutLawsuits.com has a new post on this issue here.

Supreme Court finds manufacturer can be sued under maritime law for exposure to asbestos even if product is modified by a third party as long as defendant knows of modification

Back in October of last year I wrote that the US Supreme Court heard oral arguments in a case that raises basic principles of tort law as related to maritime jurisdiction.  The case involves equipment that depended on asbestos insulation sold by various manufacturers that was installed many years ago on Navy ships.  The plaintiffs are a group of sailors injured by the asbestos used with the equipment.

Last week, the Court announced its decision ruling that, under maritime law, manufacturers can be sued for the injuries caused by their products even if the products were modified by third parties as long as those modifications were known by the manufacturer.

As reported in Jurist:

The suit was brought by two veterans, Kenneth McAfee and John DeVries, who alleged that they were exposed to asbestos while enlisted and developed terminal cancer as a result. The defendants manufactured equipment for ships for the US Navy, on which the plaintiffs served. Though the equipment was not produced with asbestos by the defendants, integration of the carcinogen was performed by the Navy after the installation of the equipment pursuant to instructions by the manufacturers. The suit argued that the two crewmembers were not given sufficient notice that they were being exposed to a dangerous material by the manufacturer, while the companies claimed that they were not liable because they did not install the asbestos materials themselves. Though a federal district court ruled in favor of the manufacturers, the US Court of Appeals for the Third Circuit reversed the decision, after which the manufacturers appealed to the Supreme Court.

In a 6-3 decision, Justice Brett Kavanaugh wrote that there were three different approaches that the court could take to constrain defendant liability in maritime product liability law. The first, a forseeability approach, would require manufacturers to anyone who came into contact with their product of any dangers that could be reasonably caused by their equipment, even if it is modified by a third party. Kavanaugh dismissed this test, stating that it would cause “confusion” and “overdisclosure” while being a substantial burden. The second test, the “bare-metal” defense asserted by the defendants, would prevent manufacturers from being held liable for any modifications undertaken by a third party. Kavanaugh stated that this test “goes too far in the opposite direction” from the forseeability test, allowing manufacturers to wash their hands of dangerous products by hiding behind third parties. The court therefore held that a middle-ground test is appropriate, holding manufacturers responsible for harm caused by third-party modifications that are undertaken with the manufacturer’s “knowledge or intention” that such a modification would make the product dangerous.

The case is called Air and Liquid Systems Corp. v. DeVries , and you can read the opinion here.  You can read other documents relevant to the case here.

The SCotUS blog has analysis here.

Supreme Court hears oral argument in asbestos case under maritime law

A couple of weeks ago, the US Supreme Court heard oral arguments in a case that raises basic principles of tort law as related to maritime jurisdiction.  The case involves equipment that depended on asbestos insulation sold by various manufacturers that was installed many years ago on Navy ships.  The plaintiffs are a group of sailors injured by the asbestos used with the equipment. Because the injuries in question occurred at sea it arises under the general “maritime” law, judge-made federal law for which the Supreme Court is the final authority. The lower court found that the manufacturers could be liable because the injuries were foreseeable. 

The SCotUS blog has analysis here.  You can also access all the relevant documents in the case here.

Do Texas mass shooting victims have a chance to support a cause of action?

In an interesting short article, Professor John Culhane, of the Family Health Law and Policy Institute at Widener University Delaware Law School, argues that the victims of the recent mass shooting in Texas have a good chance to win a claim against the federal government.  As discussed in other posts on the subject, the gun industry is well protected by statute, but in his article Prof. Culhane focuses on the possible liability for the Air Force’s "unexplained and appalling failure to enter the shooter’s domestic-violence conviction into a national database that would have prevented him from obtaining a firearm is actionable."  He discusses the applicability of the Federal Torts Claims Act to conclude that he thinks the case against the Air Force is strong. 

In addition, he argues that Congress should pass specific legislation entitling the victims to compensation outside of the judicial process because "the government almost surely was at fault." He argues that "[t]hat’s the easiest, and the fairest, thing to do in this case. Victims shouldn’t have to multiply their pain by slogging through what would surely be a painful case, leading to no certain outcome"

You can read the full article there.

Judge assigned to wrongful death case against Hilary Clinton steps aside and asks for case to be reassigned after allegations of forum shopping

Back in August I reported that the parents of two Americans killed in Benghazi, Libya, filed a lawsuit Hillary Clinton for wrongful death, alleging the 2012 attack "was directly and proximately caused" by the then-secretary of state's mishandling of government secrets.  I my post (here) I suggested the allegations in the complaint would be very difficult to prove and that there was a chance the case would be considered a frivolous lawsuit, in which case it should be dismissed and the lawyer should be sanctioned.

Now, a new report published in Politico (here) provides an interesting update on the story.  The judge who had been assigned the case decided to set aside and send the case back for reassignment.  It turns out the attorney who filed the case wanted that specific judge (a long time Clinton critic) and apparently tried to manipulate the system in order to get him.  According to the story, Clinton's lawyers filed a motion arguing, among other things that the plaintiffs' lawyer has a history of "judge shopping" and the judge gave up the case.

This new development adds to my concern over the plaintiffs' lawyer.  Did he first file a frivolous lawsuit and then try to manipulate the system in order to shop for the judge he wanted?   Will there be a hearing to discuss these questions?  Will the new judge impose sanctions?  Stay tuned...

Parents of two Americans killed in Benghazi sue Hillary Clinton for wrongful death

NPR is reporting that the parents of two Americans killed in Benghazi, Libya, are suing Hillary Clinton for wrongful death, alleging the 2012 attack "was directly and proximately caused" by the then-secretary of state's mishandling of government secrets.  Even though none of the many Congressional investigations nor the FBI investigation found any proof that the attack was due to access to information in Clinton's emails, the lawsuit argues that Islamic terrorists were able to track the movements of Ambassador Chris Stevens and plot the deadly siege because of Clinton's use of a personal email server to conduct government business.

Here is a copy of the complaint. The main argument is this:

It is highly probable, given Defendant Clinton’s history of reckless handling of classified information, that Defendant Clinton, as Secretary of State, sent and received information about Ambassador Christopher Stevens and thus the U.S. Department of State activities and covert operations that the deceased were a part of in Benghazi, Libya. This information was compromised from the second that it left Defendant Clinton’s private e-mail server and easily found its way to foreign powers including, but not limited to Russia, Iran, China, and North Korea. As a direct result of Defendant Clinton’s reckless handling of this classified, sensitive information, Islamic terrorists were able to obtain the whereabouts of Ambassador Christopher Stevens and thus the U.S. State Department and covert and other government operations in Benghazi, Libya and subsequently orchestrate, plan, and execute the now infamous September 11, 2012 attack.

In the section on "facts" (presumably the factual basis for the complaint), the plaintiffs affirm that "Islamic terrorists obtained the information sent and received by Defendant Clinton about the location of Ambassador Christopher Stevens and thus the U.S. Department of State and the covert CIA and other government operation s in Benghazi and used it to plan, orchestrate, and carry out the horrific and devastating attack on the American diplomatic compound in Benghazi, Libya on September 11, 2012 (“Benghazi Attack”), resulting in the death of four Americans,..."  

Now, this is a very different type of statement.  This is an affirmative statement of fact, which, presumably, the plaintiffs will be able to prove.  Is there any evidence that what is alleged here is true?   Not according to any of the investigations I have heard of, but I guess it is possible there is information out there I am not aware of.  Are you?  Let me know.

If there is no basis in law or fact for the complaint, this is a frivolous lawsuit, and I think it will be dismissed in due time.  The only question in my mind is whether the lawyer who brought it will be sanctioned for violating the ethical duty, and procedural rules, against bringing frivolous claims.  According to Above the Law, the lawyer "has been banned from multiple judges’ courtrooms" and has orchestrated other politically motivated legal stunts, including a deportation petition against President Obama, which claimed the president was born in Kenya; alleging the Clintons murdered White House associates in the 90s; and filing lawsuits accusing the Clintons of racketeering.

For more go to NPR or Slate. 

Claim of injuries to vets caused by exposure to toxins back in the news

Back in 2010 I posted a few stories on the possible health hazards soldiers were getting exposed to in Iraq and Afghanistan as a result of the burning of hazardous and medical waste.  See here and here, for example.  Two years later, I reported on an $85 million verdict against a military contractor for negligently exposing soldiers to a cancer causing toxin.  See here.

The issue is now back in the news.  NPR has posted a story here, or you can listen to it below by pressing the play button. 

Report on medical malpractice at the VA

The Dayton Daily News has a story on malpractice at the Department of Veterans Affairs.  The article notes that VA health care providers are  immune from lawsuits and details instances of bonuses given to providers who had made medical errors or administrators despite poor records at their facilities.  The article also quotes attorneys arguing that an early disclosure requirement and limits on attorneys' fees (20% on settlements and 25% on awards) reduce the amount of claims brought against the VA.   VA med mal claims are paid from a federal treasury fund set aside for federal claims, not the VA budget.  The article includes poignant stories by individual victims of malpractice.

Thanks to the TortsProf blog for the link.