Wrongful Death by Robert Dugoni Read Free Book Online Page B

is military law. The assistant U.S. attorney brought a motion to dismiss, arguing that the Feres doctrine barred the claim.”
    “The Feres doctrine?”
    Kannin’s smile now had a bit of the Cheshire-cat grin. “And you were a marine. The first rule of military law is understanding the hurdles, and the Feres doctrine is about a ten-foot hurdle. This is where you might want to take notes.”
    Sloane took out a pad of paper and a pen from his briefcase. Kannin spoke in a rote tone, as if reciting a legal treatise from memory. “When an inductee takes the oath of enlistment, he swears to protect the Constitution of the United States against all enemies both foreign and domestic.”
    “I remember it well,” Sloane said.
    “But I’ll bet you didn’t know that at that very instant you also forfeited your right to sue the government, the military, and your superior officers for injuries incurred ‘incident to service,’ even if you could prove those superior officers acted negligently or deliberately to deprive you of your constitutional rights.”
    “Incident to service. What does that mean?”
    Kannin shrugged. “Hell if I know. Hell if the courts know. But there’s a case directly on point that says getting raped on base fits the definition.”
    “You’re kidding?”
    “There’s also precedent that says having the wrong leg cut off by a military doctor, or having surgical tools left inside your stomach is ‘incident to service.’ So is being unwittingly exposed to nuclear radiation during atomic testing, or to chemical weapons, LSD, and electroshock treatment as part of a military test program. I could go on, but I think you get my point.”
    “This all developed from one case?”
    “Three, actually. In 1950 the Supreme Court consolidated three cases with a common thread—families of soldiers suing the government and members of the military for their deaths. The family of Lieutenant Rudolph Feres claimed their son died because the government negligently quartered him in barracks it knew had a defective heating unit. The barracks burned to the ground.”
    “How have the courts rationalized the doctrine?”
    “Not well. But you have to remember that 1950 was not long after the end of the Second World War, which meant the Supreme Court was faced with the potential of hundreds of thousands of civil claims by soldiers and their families. The justices opined that military benefits rather than lawsuits were the appropriate remedy.”
    “Makes sense in theory,” Sloane agreed.
    “It did. But obviously, the courts didn’t anticipate that civil jury awards would eventually dwarf military benefits, or that lower courts would extend the doctrine as far as they have.”
    “I take it people have challenged it?”
    “Some,” Kannin said. He lifted a thick black binder from his desk and handed it to Sloane. “I took the liberty of pulling this off the shelves when your secretary called. These are the highlights. I think my research pulled up around three thousand total cases.”
    “Three thousand? And nobody’s punched a hole in the rationale?”
    “The rationale changes, but the most frequent explanation is that claims by soldiers could subvert the chain of command and make officers hesitant during combat.”
    “That’s ridiculous. No officer is going to be thinking of a lawsuit in the middle of a battle.”
    “I agree, and the Supreme Court was leaning that way too the last time it heard a Feres case. The justices split five to four. Justice Scalia wrote that Feres was wrongfully decided then and remained wrongfully decided.”
    “But they didn’t overrule it.”
    “It was the wrong case for a reversal. You think you got a better one?”
    “I don’t know. Sounds like you didn’t.”
    “We never got that far.”
    “What happened?”
    “The morning of the hearing I’m standing in the hall with my ass in hand when I get a gift handed to me. My investigator calls to tell me that a certain army