Unfair to Those in Service

Posted: Jan 18, 2006 8:14 PM

If I were a betting man, which I'm not, I would offer a nice proposition. This is it: I would bet you 1,000-1 -- make it 10,000-1 -- that the Supreme Court refuses to hear the pending appeals in Purcell v. U.S. and Kemp v. U.S..

All right, sucker, send your check in care of this column. Thank you very much. You were betting that the Supreme Court would abandon 55 years of bad precedent in cases involving men and women in military service. Forget it! The unfairness imposed upon them by what is known as the Feres doctrine will not be relieved.

To refresh your memory: Rudolph J. Feres, a first lieutenant in the Army, died in 1947 when fire razed an Army barracks in Pine Camp, N.Y. He left a young widow and a year-old son. The fire clearly was caused by the negligence of a maintenance crew. She sued the government for the kind of damages that would have been awarded instantly against a civilian defendant. In a unanimous opinion by Justice Robert H. Jackson, the Supreme Court held in 1950 that his estate could not recover. His death was "incident to service." She and the child could live on his pension.

Thus was born the misbegotten Feres doctrine. In the ensuing years, scores of plaintiffs and dozens of commentators have denounced it. Hundreds of tort cases have been hopefully filed and promptly dismissed. In 1987 the high court came within one vote of reconsidering the rule. Justice Antonin Scalia wrote a powerful dissenting opinion urging that the precedent be abandoned. Sad to say, it hangs on like a summer cold.

Now it is hitting the family of the late Jeremy Ross Purcell. Five years ago this week he enlisted in the U.S. Marine Corps. Eventually he wound up at Camp Pendleton, Calif. In August 2002 his platoon was ordered to participate in a live-fire exercise with 5.56mm ammunition. At nightfall a Marine sergeant took charge of the unexpended rounds.

The exercise resumed the following morning. This time the Marines were ordered to use blanks. Somehow the sergeant erred. He brought two prepared magazines. One held blank ammunition. The other was left over from the day before. Jeremy was killed. Accidents happen.

Jeremy's father subsequently sued for damages based upon the sergeant's negligence. He concedes that if his son's death had occurred during actual combat, he would have no suit. This death came during a routine training exercise. It resulted from indefensible negligence. No matter. The Court of Appeals for the 10th Circuit routinely cited the Feres doctrine. Will the Supreme Court hear his appeal? Don't bet the ranch.

In a companion case, Christine Lemp asks the high court to consider the death of her husband, Army Capt. James Lemp. He died three years ago at Fort Leonard Wood, Mo., of what his widow regards as malpractice on the part of Army medical personnel. The story dates from March 2003, when he developed an acute headache, accompanied by vomiting, dizziness and numbness in his arms. At the Army hospital a CT scan appeared to be negative.

As the hours passed, more symptoms of a seizure became evident. According to the Lemp petition, he fell into "hypoxia, aspiration of vomitus, respiratory arrest and profound bradycardia." He was placed on a ventilator and transferred to a hospital. There he died of brain edema. His widow sued, but the Army invoked the Feres doctrine and her complaint was dismissed. Her appeal to the Supreme Court almost certainly will be denied.

Was there actionable malpractice? This layman ventures no opinion. It is the kind of question that juries routinely decide. Certainly Mrs. Lemp and her counsel believe that different treatment would have saved his life. Now he is dead. The doctrine survives.

The case law is filled with relevant examples. At random, let me offer Suzanne Costo v. U.S., dismissed by the 9th Circuit in 2001. The case arose from a Navy-sponsored excursion on the Nooksack River in Whatcom County, Wash., in July 1995. It was a recreational opportunity for personnel of the Naval Air Station in Oak Harbor. Nollie Costo, USN, drowned when the raft on which he was riding hit a submerged log and flipped over. There was telling evidence of gross negligence on the Navy's part.

No jury ever heard his parents' suit. You know why. The cite is to Feres v. U.S. 340 U.S. 135.