Sunday, August 22, 1999
BENCHMARKS
Soldier allowed to sue over wreck injury
BY BEN KAUFMAN
The Cincinnati Enquirer
The Feres doctrine prohibits members of the armed forces from suing the federal government for injuries that “arise out of or in the course of activity incident to service.”
Despite the generally broad application that courts allow the Feres doctrine, the 6th Circuit balked when the U.S. Postal Service stretched it beyond recognition.
The case began five years ago when a mail truck injured Army Sgt. Maj. Leon Fleming when he drove from his Louisville home to a restaurant for breakfast.
The postal service didn't claim it was the federal government.
Instead, the postal service said Sgt. Maj. Fleming couldn't sue because his “ultimate destination” was Fort Knox, where he was stationed, and his injury was service-related.
U.S. District Judge John G. Heyburn III bought that argument, but incredulous 6th Circuit judges reinstated the soldier's suit.
Were he driving directly from home to Fort Knox, the Feres doctrine might have applied, Judges Alan E. Norris, R. Guy Cole Jr. and John D. Holschuh said.
However, “Fleming was injured on his own time, miles from the base, during an activity — driving to get something to eat at a Louisville-area restaurant — that had no relationship to his military service,” Judge Cole wrote. His injury was not “even remotely related” to his status as a soldier.
“Indeed, we are at a loss as to a limiting principle for this "ultimate destination' theory. In some sense, Fleming's ultimate destination was Fort Knox from the moment he woke on the morning of Sept. 22, 1994.
“We certainly could not conclude, however, that Fleming would be considered injured (in relation to military service) if, for example, a postal service truck barreled through the front door of Fleming's off-base home, flattening him as he began his journey to the bathroom.”
Army broke law
In an unrelated decision involving the Army and sovereign immunity, Judges David A. Nelson, James L. Ryan and Gerald E. Rosen said Tennessee could fine the Army $2,500 for air pollution at an ammunition plant.
The Army violated Tennessee laws governing the removal of deadly asbestos but said it couldn't be penalized.
U.S. District Judge John T. Nixon sided with the state, and the 6th Circuit affirmed him in a decision written by Judge Nelson.
The federal Clean Air Act “unambiguously waives sovereign immunity as to civil penalties such as the one in question here,” and it explicitly says there is no way “any other law” restricts states from pursuing federal air polluters.
“If words have meaning,” Judge Nelson added, “this says that no law shall restrict the State of Tennessee from obtaining any administrative remedy or sanction against a federal air polluter.”
No credible evidence
Kentuckian Tammy McCoy's face hit the steering wheel when she drove her 1995 Camaro into a hillside at 10-20 mph.
She sued General Motors because her air bag didn't inflate.
U.S. District Judge Joseph M. Hood in Pikeville ruled against her breach of warranty suit, and she appealed. GM said the air bag was supposed to inflate “in moderate to severe frontal or near-frontal crashes.”
Photos of the Camaro showed no head-on impact, but Ms. McCoy's expert witness said even a glancing blow should have triggered the air bag.
Because the witness never calculated the force necessary to determine whether the air bag should have inflated, Judge Hood labeled that testimony “speculative” and granted pretrial summary judgment to GM.
Ms. McCoy appealed, but 6th Circuit Judges Gilbert S. Merritt, Cornelia G. Kennedy and Nathaniel R. Jones said she presented no credible evidence or case.
No deliberate indifference
Anthony Wade commited suicide in a Michigan prison with hoarded anti-depressant pills, despite a prison nurse's efforts to make sure he took the pills one at a time.
His family sued, saying prison psychiatrists' decision against impossible-to-hoard liquid medication was deliberate indifference and that violated Mr. Wade's 8th Amendment right to be free of cruel and unusual punishment.
The physicians knew Mr. Wade's history of suicide attempts (including one with hoarded pills) and continuing suicidal thoughts.
However, on-the-job judgments were immune from liability unless they were deliberate indifference — that is, knowing of and disregarding an excessive risk to Mr. Wade's health or safety.
A three-judge appellate court initially granted immunity to one of the three physicians. But on rehearing, the entire 6th Circuit extended it to all three. Liquid anti-depressants were not the issue, the court majority said. Rather, the nurse's attempt to prevent hoarding, even if fatally ineffective, refuted the accusation of deliberate indifference.
New trial granted
Kentuckian Lamont T. Monger appealed his 1997 conviction, for possession of crack cocaine and marijuana for distribution, and his prison sentence of 10 years.
He admitted possession, so the issue was whether U.S. District Judge Karl S. Forester in Lexington mistakenly refused to let jurors consider a lesser charge of possession for personal use only, with its shorter sentence.
Sixth Circuit Judges Boyce F. Martin Jr., Nathaniel R. Jones and Richard E. Suhrheinrich granted a new trial, saying the evidence could have permitted acquittal on possession for distribution and conviction on the lesser charge.
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