Lt. Rudolph Feres, parachuted into the darkness in the first hours of D-Day in 1944. He was killed later in a stateside barracks fire and his estate was barred from bringing suit. Photo via NY Times.
The Feres Doctrine prevents all suits, because the U.S. Supreme Court extended the prohibition on suits from “combatant activities” to all situations. It has long been an unfair abomination of the law.
In December 2019 that changed a bit that, when it allowed members to now sue for $100K, which was a silly limit for the reasons that I explained.
Now head to this next link: Because the Feres Doctrine is now gone. Military members can now sue, and the $100K limit is kaput, as we say in legalese. The change in law was inspired by yet another miscarriage of justice:
a provision in the 2020 National Defense Authorization Act, which sets policy and spending priorities for the Pentagon, ended the ban on suing for medical malpractice, after Sgt. 1st Class Richard Stayskal and his attorney, Natalie Khawan, petitioned lawmakers to change the law. The Feres ruling barred Stayskal from filing suit after military doctors during a routine physical in January 2017 failed to inform him of his lung cancer, which grew to be terminal.
A substantiated claim under $100,000 will be paid directly to the member or his/her estate by DoD. The Treasury Department will review and pay claims that the Secretary of Defense values at more than $100,000. Service members must present a claim that is received by DoD within two years after the claim accrues. However, the statute allowed Service members to file claims in 2020 for injuries that occurred in 2017.
When the pandemic struck, people stayed home. And when they stayed home, many couldn’t work. And if they could work, it wasn’t the same.
To say that had an impact on the justice system would be an understatement. Every conceivable time limit set forth in the law was now a problem. Such as many statutes of limitations. Civl law, criminal law, family law, no matter what.
Lawyers couldn’t safely go to their offices where the files were, and even if they were backed up in the cloud and accessible at home, couldn’t meet with clients, couldn’t investigate scenes, couldn’t get process servers to serve process. This was obvious to anyone with functioning neurons.
So on March 20, 2020, Gov. Andrew Cuomo issued Executive Order 202.8 to suspend the many statutes of limitations for 30 days. He has that authority under Executive Law § 29-a. Nine other 30-day orders followed regarding the suspension. Except for those times he referred to this as a toll. This was his wording on the first order:
“In accordance with the directive of the Chief Judge of the State to limit court operations to essential matters during the pendency of the COVID-19 health crisis, any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws of the state, including but not limited to the criminal procedure law, the family court act, the civil practice law and rules, the court of claims act, the surrogate’s court procedure act, and the uniform court acts, or by any other statute, local law, ordinance, order, rule, or regulation, or part thereof, is hereby tolled from the date of this executive order until April 19, 2020.”
On October 4th, however, he specially called it a toll in Exec. Order 202.67.
Is there a difference between a suspension and a toll? As the late Professor David Siegel used to say, “You never want to be the test case.” Let some other poor slob carry that water to the appellate courts. Be conservative.
But ultimately, you need to know. Why? Because as Suffolk County Justice Thomas Whalen argued in the New York Law Journal two days after Gov. Cuomo called it a toll, the Executive Law grants permission to suspend and not toll, and there is a difference: A suspension prevents the statute of limitations from expiring until the suspension is lifted. Thus, if it would expire during the course of suspension, then it expires on the day the suspension is lifted.
A toll, by contrast, stops the counting of days dead in its tracks. If a toll lasts 42 days, they you add 42 days to the date the statute of limitations would have otherwise expired.
The argument that Justice Whalen made was that Executive Law § 29-a only gave permission to the governor to suspend, not to toll, and that tolling exceeded that authority.
Executive Law § 29-a(2)(d) provides that an Executive Order “may provide for the alteration or modification of the requirements of such statute, local law, ordinance, order, rule or regulation suspended, and may include other terms and conditions.”
The issue came to a head yesterday in Brash v. Richards, where the time time to file a Notice of Appeal was blown. The statute calls for filing this within 30 days of being served with it. That took place on October 2, 2020. Then the Governor lifted the suspension/toll on November 3rd. The Notice of Appeal was then filed November 10th, beyond the 30 day limit, requiring the lawyer to argue this was a permissible toll and not a suspension.
Again, it sucks to be a test case.
The court held that this was a toll, notwithstanding the lack of clarity in the Governor’s orders by referring to it sometimes as a suspension and other times as a toll. Why? Because he has the power not only to suspend, but also to alter or modify statutes. The 30-day time period to file a Notice of Appeal started to run, therefore, on November 3rd, and filing it on November 10th was well within the 30 days.
So, there you have it. The Executive Orders resulted in a tolling of the statutes of limitations from March 20 until it ended on November 3, 2020. A period of 228 days if my my quick Google calculation is correct.
Unless, of course, a different appellate court in New York rules otherwise or the Court of Appeals reverses.
Screen grab from NBC News a moment before Babbitt was shot
Ashli Babbitt was shot dead on January 6th while crashing through the Capitol in an attempt to stop electoral votes from being counted. Now her Estate wants to sue the Capitol Police and the (as yet unnamed) officer for wrongful death.
This is, perhaps, one of the dumber ideas I have heard. Sue the very people charged with defending the republic while you are part of a crowd trying to violently overthrow it? Seriously?
And bringing a wrongful death suit for the passing of a child — regardless of the context — is fraught with more than the usual emotion. The worst are those that come in the context of suicide, and the question presented is why a doctor did not render the proper treatment in the days/weeks/months before.
And the one thing that must be absolutely, 100% crystal clear is this: The client will never be happy. Never. Ever. It is impossible if a child was lost.
And now we add in a case that can’t possibly be won before a court or jury. Will the lawyers be doing it solely for the publicity? I’ve probably known hundreds of personal injury lawyers here in New York. I can’t think of one that would bring such a suit.
Worse yet for the family is that the Babbit Estate may face a counterclaim for intentional infliction of emotional distress if the officer who shot her has suffered as a result. Few would be surprised if he had post-traumatic stress syndrome.
Such cases are very difficult to win because of the exceptionally high bar that needs to be cleared to get there. But the (New York) rule is that it must be:
“One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress” (Restatement [Second] of Torts § 46 [1] [1965]).”
In fact, as of 1993, the standard was so high that the Court of Appeals wrote (Howell v. NY Post) “of the intentional infliction of emotional distress claims considered by this Court, every one has failed because the alleged conduct was not sufficiently outrageous.”
The Court of Appeals in NY wrote that “Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.”
Assuming the same standard applies wherever suit ends up being brought, would a violent insurrection satisfy that?
The Capitol Police will never settle. If the suit survives a motion to dismiss or motion for summary judgment because of disputed facts, they will lose at trial.
This can only end badly for the family of Ashli Babbitt. There is no other possible ending.
And the Estate (to the extent it has any assets) could be on the hook for damages to the officer who shot her. Just because a family wants to sue does not mean a lawyer should enable such destructive conduct.
When folks read about frivolous or silly legal claims, they invariably ask: What did that person sue for this time? They never seem to ask, what kind of idiotic defense was raised?
Because idiotic defenses don’t make the papers. Until they do.
This week the NY Post blared an ugly headline about my hometown high school:
New Rochelle High School blamed girl for her own rape, lawyer says
Blame the victim for her own rape? Is that what the high school did? The high school that my kids just graduated from?
Well, no. That’s what the lawyer did, and the school now pays the price. I know this because I pulled the Answer from the electronic file and saw that there was only a lawyer signature on the verification — no one from the school district.
The Post just pulled this nugget from an affirmative defense raised in that Answer to the suit.
Affirmative defenses, for the non-lawyers who have tuned in, usually are these types in a personal injury case (of which this is one):
Failing to start suit in a timely manner (statute of limitations);
Failing to state a claim (fail to make proper allegations that, even if true, would result in the case being tossed out)
Claiming comparative negligence (the plaintiff was partly at fault and any jury award should be reduced by a proportionate amount — think tripping on a busted sidewalk)
Assumption of risk (like getting hit by a foul ball at a game – this was a sporting event, the event was a foreseeable risk and the plaintiff is 100% barred from suit)
There are obviously many more in a laundry list of defenses that lawyers pick and choose cut and paste from given the particulars of a case.
So what did the lawyers claim as affirmative defenses on behalf of the high school? Just that the victim was at fault:
Now that was just dumb. Someone went through the laundry list of potential claims and said the rape victim was at fault for an assault?
And you know this was a mindless cut and paste because “assumption of risk” was also tossed in. But when New York created a comparative negligence statute (CPLR 1411), it wiped out the concept of assumption of risk as an absolute bar to recovery except for the limited cases of sporting events. (See Trupia v. Lake George Central School District). It wouldn’t apply here in any context.
(The actual facts of the incident are unknown to me beyond the Post story, and not for discussion here.)
Now I know what some folks are thinking – what’s the harm of just tossing crap in “just in case”? And the answer is threefold:
First, there’s no actual benefit because pleadings (such as an answer) can be amended, and such amendments shall be freely given. Even up until the time of trial. Even at trial. One of the stock motions at the close of a trial is that “I move to amend the pleadings to conform with the proof.” Sometimes a judge will ask if there is something in particular you have in mind. Sometimes not.
Second, counsel handed the press a headline to the detriment of the client. One thing that must always go through the mind of a lawyer for any public filing: How can the press take this statement and misconstrue it to embarrass my client? And gratuitously blaming someone that says she was raped sure as hell fits that bill.
Third, and possibly the worst. At trial, a savvy plaintiff’s counsel will read the defense and ask the school’s witnesses why they blamed the victim. There is only one answer that can possibly be given: The lawyer did it.
(I did this once when a patient was burned while undergoing surgery: How, dear doctor, was the patient to blame for being burned while she was under anesthesia?)
And when that happens, everything else that lawyer says is looked at sideways by the jury. If the lawyers will blame the victim, why believe anything they say?
This was like kicking the soccer ball into your own goal.
Elliot Shields of the Roth & Roth firm. Photo by Rochester Democrat and Chronicle
The City of Rochester was slammed yesterday by a New York Supreme Court justice for demanding in-person hearings in police brutality cases. And the order was so wide-sweeping that it extended well beyond the police cases at issue to all matters that the City’s Law Department was defending.
The issue arose out of summer protests surrounding the death of George Floyd, as well as Daniel Prude, a Black 41-year-old who died last March 23rd after being physically bound by Rochester police officers. The police department then engaged in brutal crackdowns against the protesters.
Over 100 people filed Notices of Claim against the police department, a required precursor in New York to bringing suit against a municipality. The City, in turn, then gets an opportunity for a hearing where it takes testimony from the claimant. Such hearings, colloquially known as 50-h hearings after the authorizing statute, are akin to a deposition.
But the City of Rochester’s Law Department demanded that each claimant appear in person for those 50-h hearings, rather than doing them virtually by teleconference. As regular readers know, judges in New York from the outset of the pandemic have forced lawyers to take testimony virtually, refusing to allow matters to be stalled until the pandemic was over. Administrative orders from the courts have since followed.
There was no apparent justification for demanding hearings this way.
Notwithstanding these pandemic related changes, hearings had been attempted in an unrelated hearing effort to move the matters. But during one, Municipal Attorney John Campolieto was unwilling, or incapable, of wearing a mask properly, according to the suit that was filed, and it was held in a small room. Campolieto subsequently tested positive for COVID.
The action was brought by the New York City firm of Roth & Roth, which filed 115 claims regarding abuse by the police related to the protests, and was noticed for numerous in-person hearings. (As per my conversation with partner David Roth.) The well-being of their attorneys were likewise at risk in being forced to in-person hearings. This included Roth & Roth associateElliot Shields, a Rochester native who maintains connections with the City, who had appeared at earlier hearings and depositions with Campolieto.
Bringing suit in their own name against the head of the Law Department, the firm asserted that demanding in-person hearings during an uncontrolled pandemic was “designed to gain a strategic advantage.” And it was being done despite the fact that the City’s Law Department had just had a COVID outbreak.
Justice Ann Marie Taddedo agreed, and wrote in a decision that the City’s conduct was “arbitrary and capricious” in demanding in-person hearings. But Justice Taddedo went well beyond the confines of this case.
The order was exceptionally wide, encompassing not only these police brutality lawsuits, but all 50-h pre-suit hearings by the City, regardless of whether they are related to these police brutality claims or not.
And still worse yet for the Law Department, an apparently furious judge made the order so broad it encompasses all depositions in all cases for which the City of Rochester is a party.
This decision stays in effect until the emergency declared due to the pandemic is lifted.
The Law Department of the City of Rochester has, in my opinion, really screwed the pooch and done an extraordinary disservice to the citizens of Rochester. With this decision, every judge that comes across the City in litigation in any case will severely question the basis of any request they make, far more so than they might ordinarily. I don’t know what kind of reputation Rochester’s City attorneys had before, but it is most surely in the crapper now.
Whoever made this dangerous and bone-headed decision should be fired.
