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COURT REPORTER
Unfair To Those In Service [by James Kilpatrick] 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
At nightfall a Marine sergeant took charge of
invoked the Feres doctrine and her complaint
of this column. Thank you very much. You
the unexpended rounds.
was dismissed. Her appeal to the Supreme
were betting that the Supreme Court would
Court almost certainly will be denied.
abandon 55 years of bad precedent in cases
The exercise resumed the following morn-
involving men and women in military service.
ing. This time the Marines were ordered to
Was there actionable malpractice? This
Forget it! The unfairness imposed upon them
use blanks. Somehow the sergeant erred. He
layman ventures no opinion. It is the kind of
by what is known as the Feres doctrine will
brought two prepared magazines. One held
question that juries routinely decide. Certainly
not be relieved.
blank ammunition. The other was left over
Mrs. Lemp and her counsel believe that differ-
from the day before. Jeremy was killed. Ac-
ent treatment would have saved his life. Now
cidents happen.
he is dead. The doctrine survives.
fire razed an Army barracks in Pine Camp,
Jeremy’s father subsequently sued for dam-
The case law is filled with relevant examples.
N.Y. He left a young widow and a year-old son.
ages based upon the sergeant’s negligence.
At random, let me offer Suzanne Costo v. U.S.
The fire clearly was caused by the negligence
He concedes that if his son’s death had oc-
, dismissed by the 9th Circuit in 2001. The
of a maintenance crew. She sued the govern-
curred during actual combat, he would have
case arose from a Navy-sponsored excursion
ment for the kind of damages that would
no suit. This death came during a routine
on the Nooksack River in Whatcom County,
have been awarded instantly against a civilian
training exercise. It resulted from indefensible
Wash., in July 1995. It was a recreational
defendant. In a unanimous opinion by Justice
negligence. No matter. The Court of Appeals
opportunity for personnel of the Naval Air
Robert H. Jackson, the Supreme Court held
for the 10th Circuit routinely cited the Feres
Station in Oak Harbor. Nollie Costo, USN,
in 1950 that his estate could not recover. His
doctrine. Will the Supreme Court hear his ap-
drowned when the raft on which he was riding
death was “incident to service.” She and the
peal? Don’t bet the ranch.
hit a submerged log and flipped over. There
To refresh your memory: Rudolph J. Feres, a first lieutenant in the Army, died in 1947 when
was telling evidence of gross negligence on
child could live on his pension. In a companion case, Christine Lemp asks the
the Navy’s part.
Thus was born the misbegotten Feres doc-
high court to consider the death of her hus-
trine. In the ensuing years, scores of plaintiffs
band, Army Capt. James Lemp. He died three
No jury ever heard his parents’ suit. You know
and dozens of commentators have denounced
years ago at Fort Leonard Wood, Mo., of what
why. The cite is to Feres v. U.S. 340 U.S. 135.
it. Hundreds of tort cases have been hopefully
his widow regards as malpractice on the part
filed and promptly dismissed. In 1987 the high
of Army medical personnel. The story dates
(Letters to Mr. Kilpatrick should be sent by
court came within one vote of reconsider-
from March 2003, when he developed an acute
e-mail to kilpatjj@aol.com.)
ing the rule. Justice Antonin Scalia wrote a
headache, accompanied by vomiting, dizziness
powerful dissenting opinion urging that the
and numbness in his arms. At the Army hospi-
COPYRIGHT 2005 UNIVERSAL PRESS SYNDI-
precedent be abandoned. Sad to say, it hangs
tal a CT scan appeared to be negative.
CATE
on like a summer cold.
This feature may not be reproduced or disAs the hours passed, more symptoms of a
tributed electronically, in print or otherwise
Now it is hitting the family of the late Jeremy
seizure became evident. According to the
without the written permission of uclick and
Ross Purcell. Five years ago this week he en-
Lemp petition, he fell into “hypoxia, aspiration
Universal Press Syndicate.
listed in the U.S. Marine Corps. Eventually he
of vomitus, respiratory arrest and profound
wound up at Camp Pendleton, Calif. In August
bradycardia.” He was placed on a ventilator
2002 his platoon was ordered to participate in
and transferred to a hospital. There he died
a live-fire exercise with 5.56mm ammunition.
of brain edema. His widow sued, but the Army
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