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FERES AGAIN?

The U.S. Supreme Court may be ready to revisit the Feres doctrine, the 68-year-old ruling that limits troops from suing DOD.

The court recently ordered the U.S. Solicitor General to file a response to a petition in a military medical malpractice case, Daniel v. United States. The case was brought against the Federal government after an active-duty Navy nurse, Lt. Cmdr. Rebekah Daniel, died in 2014 following childbirth at Naval Hospital Bremerton, Washington.

Since 1987, the Supreme Court has refused to hear cases questioning Feres.  But the order from the court indicates that some justices may wish for a re-look.

Walter Daniel, a former Coast Guard officer, initially filed a malpractice suit against the Navy after his wife died four hours after giving birth to their daughter.   Ms. Daniel, who worked as a labor and delivery nurse at the hospital, began hemorrhaging immediately following delivery.  Medications failed to stop the bleeding.  The suit alleges that additional lifesaving measures were too late, contributing to her death.

The case and subsequent appeals were dismissed in the lower courts based on Feres, a 1950 Supreme Court decision that prevents troops from suing DOD for injuries incidental to military service.

Feres dates to a series of cases in the late 1940s involving injuries to active duty troops. The widow of Lt. Rudolph Feres sued the government after her husband died in a barracks fire caused by a defective heating system.

The 1950 Supreme Court decision said that said DOD already provided adequate disability compensation for personnel and dependents; to allow troops to sue the federal government would in effect cause civilian courts to question military orders and discipline.

The last Feres case petitioned to the Supreme Court also involved childbirth and an active-duty woman: In 2009, the daughter of an Air Force captain was injured when her mother received a medication that caused a severe allergic reaction while she was in labor. The court never heard the case; the Justice Department settled out of court in 2016.

In opinions written before they became U.S. Supreme Court justices, Ruth Bader Ginsburg and Clarence Thomas seemed to express interest in reviewing Feres.

DOD argues that Feres is necessary because it could cause military health givers to be more cautious in treating personnel, which could in turn affect their ability to save lives, both in military hospitals and on the battlefield.

More than 7,000 petitions are filed each year to the Supreme Court, with the justices accepting only 75 to 80 cases.

RELIGIOUS DIVERSITY.  Sailors deployed aboard the carrier John C. Stennis have plenty of religious choices – including Norse paganism.  Stennis is holding lay services in the ship’s chapel to serve a “small, committed” group of sailors identifying as adherents of this faith group.   Estimates suggest nearly 8,000 members in the U.S. and more than 16,000 worldwide.

SEXUAL ASSAULT IN TWO ARENAS.   Both the military and higher education have struggled with high numbers of sexual assault.  This April, they will combine forces in a  symposium on campus sexual assault.   .

Sexual assaults in both the military and on campus have been under a microscope in recent years.

Reports of sexual assault in the services were up almost 10 percent between fiscal years 2016 and 2017, according to an annual DOD Department report released last May.   The RAND Military Workplace Study opined that that 14 percent of female service members and 2 percent of male service members have been assaulted.  It also found 22 percent of women and 7 percent of men had been sexually harassed.

LAWYER’S CORNER –10 COMMANDMENTS OF CROSS-EXAMINATION. Prof. Irving Younger is famous – 30 years after his death – for his contribution to the art of cross-examination. The stated purpose is to guarantee that advocates who follow each commandment conduct a reasonably competent cross-examination.

In a recent issue of the Champion magazine of NACDL, William James argues that these 10 commandments remain “good law in today’s courtrooms.

The Rules

1.      A brief  objective – two or three concise, sharp points

2.      Short questions, using plain words

3.      Use of leading questions

4.      Asking only questions where you know the answer

5.      Refusing to let the witness repeat direct testimony

6.      Denying the witness a chance to explain

7.      Careful listening to the witness’s answer

8.      Avoiding quarreling with the witness

9.      Never asking the “one question too many”

10.   Saving argument for summation

DOING THE RIGHT THING – TODAY’S ETHICAL QUESTION.  Would Miranda warnings be improved or harmed by adopting the British approach? Words to the effect of:

You are under caution. Anything you say can be given in evidence against you…but it might harm your defense if you fail to make something known which will later be used in court.


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