January 6th, 2020

What’s Your Adventure?

The hammock was striped in four shades of green. It hung by the water’s edge, from the end of a short wooden pier, covered by a thatched roof.

The horizon to the east was limited by only two things: Human eyesight and the curvature of the earth.

As I gently swung in the hammock, I watched the sun give the impression of sunrise, as the planet slowly rotated into position. Nearby, elegant egrets stood sentry and prehistoric looking pelicans skimmed the water’s surface, both looking for breakfast in their own special ways.

I was in Central America on an atoll with my family, 36 miles off the mainland. There was no power line. No plumbing. No cell service. No wi-fi. We were off the grid. I wasn’t even sure where my iPhone was as I hadn’t touched it in days — it being a useless brick except for the redundant camera.

Earlier that day — meaning the dead of night long after moonset — nature had asked me to briefly leave my tent, and I took a few moments to gaze at the Big Dipper ablaze near the northern horizon amidst the brightest stars I’d seen in decades. There was no light pollution to dull their twinkle.

Later that day I planned to kayak and snorkel and dive, to swim with sharks and rays and turtles and eels and a bazillion oddly-shaped, oddly-colored creatures, corals and plants in the waters of the atoll.

A diva take a photo of a shark — Smile and say “cheese.”

It’s strange, sometimes, that one can find comfort when leaving one’s comfort zone. But such is the nature of adventure.

While I was doing this, I also knew that out there on Twitter or Facebook, some folks would spend their time looking for something to be outraged about, some micro-aggression hidden to all but their own tribe, or someone who simply didn’t meet their definition of perfect.

And I knew, with as much certainty as the human brain can muster while swinging from a hammock, that none of them would ever have carved on their headstone, “I wish I’d spent more time fighting on Twitter.”

Going off the grid brings a healthy perspective.

Such travel is limited by three things: Time, money and inspiration. When we are younger, with fewer responsibilities such as jobs, spouses and kids, there is generally more time but less money. And when we are older there is generally more money but less time. But most important for such travel, without inspiration, both time and money are meaningless.

While this might appear, at first blush, to be the opening to a self-indulgent travelogue, it isn’t intended that way. One need not travel down to Belize to engage in discovery — or even up to the relatively close Catskills, Adirondacks or Finger Lakes of New York for some camping and hiking.

Adventure can be found at home. It can be found anytime one leaves one’s comfort zone to explore something new. It could be eating new foods, trying new sports or recreations, listening to different kinds of music, or meeting new people. For lawyers, adventure may be in getting sworn into SCOTUS. Each is an adventure in its own way. As long as it’s new.

The results are not guaranteed. And that is part of the point. For if you knew in advance that the sun would shine, your health would be good, that special someone would say yes to a date, and that new food you tried to cook would come out great, where would be the adventure? Where is the thrill of mystery and learning and reward for time spent?

When we are younger, adventure is easy. Because everything is new, everything is an adventure. When I was 28 I quit lawyering and took a year off to backpack the world. Every hour of every day brought something new. And every so often, I still remember new stories to bore my family with.

But this year I’ll reach the 30th anniversary of my 30th birthday, and I appreciate even more how easy it is for folks to be stuck in a rut. One of my jobs now is to inspire my kids to explore and seek adventure for what it is, for each one wizens us to new experiences, new people, new views and further enlightens us to the human condition. And it’s fun.

The vast majority of my posts are on personal injury law in some manifestation, mostly geared toward New York, which kinda makes sense when you title your blog New York Personal Injury Law. This one isn’t. Unless one wants to consider that New York City’s trial lawyers, both civil and criminal, will meet jurors from across the globe and it’s good to know a bit more about the backgrounds and experiences they might have had in the old country.

So exploring and learning new things for lawyering might be a bonus. It also helps us appreciate that just because the law says x it doesn’t mean the jurors will follow that. Because their gut may tell them otherwise.

But adventure isn’t done to make us better at our jobs because then it would be called work. It is an end unto itself, like a hobby is to many, that we do merely for the experiences they bring.

As the clock struck midnight and we started the new decade, I knew that people elsewhere were out partying big time. I was asleep. Out by 9:30, as was everyone else in our camp. If you want to feel the earth turn as the sun gives the appearance of that sunrise across that unlimited tropical horizon, staying up until midnight for the artificial change of a calendar makes little sense. Besides that, watching my digital watch change from 11:59 to 12:00 isn’t terribly exciting.

The excuse of a new year (and a new decade) has brought many people, no doubt, to make resolutions. Each year I make the same one with my standard dad joke: I will make no resolutions except the one not to make resolutions. I’ve always kept it.

But this year, as I swung in the hammock on the warm morning breeze, I finally made one and relayed it to my college-aged daughter likewise swinging nearby. My resolution was to go forth and have more adventures, though I readily concede having had far more than my fair share in this lifetime. The resolution is to actively seek and find new experiences for no other reason than this is what makes each of us sparkle just a little more, and makes each of us smarter and wiser about the world around us, and it brings perspective to what we do on a day-to-day basis.

Happy New Year to everyone. And happy new decade. You may be older today than you’ve ever been but you’re younger than you’ll ever be. Go forth and have an adventure.

Now what are you intending to do?

December 12th, 2019

A Feres Doctrine Repeal? Not so Fast…(Updated)

Lt. Rudolph Feres, for whom the Feres doctrine was named, 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 rule is as old as government itself: You can’t sue the King.

The concept of “sovereign immunity” protects governments from suit unless they specifically consent. In the U.S. we are permitted to do so by various statutes, and in the case of the federal government, under the Federal Tort Claims Act.

Well, sometimes, anyway. Because there’s a big, fat hairy exception to that rule, and that exception is for those on active duty in the military. You can’t bring suit for acts “arising out of combatant activities.” The problem here is that it’s been extended to plain old negligence away from the battlefield.

Did your stateside barracks burn down? Sorry Charlie. Or in this case, sorry Rudolph Feres. We’re you raped by your drill sergeant? Tough noogies. Your wife died from blood loss after child birth because of a looooong delay in giving blood? You get our condolences and we wish you well raising the kid as a single parent.

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.

And so, as I took the train home yesterday and read in the NY Times that a portion of the Feres Doctrine was to be repealed for medical malpractice under the pending National Defense Authorization Act, I was elated for those that had been victimized twice.

But. And you knew there had to be a “but,” didn’t you? According to the Military Times, most claims are limited to $100,000. And the military doesn’t pay the legal fees. And it doesn’t happen under the Federal Tort Claims act, but under some kind of (not yet written) administrative procedure. You can find the text here.

If the claims are limited to $100,000 this medical malpractice exception is virtually useless. Because in order to prove the claim experts will be required. The military wouldn’t be responsible for the original illness, after all. Only for that which was caused by medical malpractice. And you need experts for that.

And experts cost money. As do depositions and medical records. And with military personnel involved, probably lots of travel too.

The military, of course has unlimited resources to defend and hire experts. And all medical malpractice cases are vigorously defended.

Even a simple medical malpractice case can cost a plaintiff $25,000 – $50,000 when you figure in experts for liability, causation and damages. And that doesn’t include a trial.

And more — the legal fee is capped at 20%.

The soldier or sailor is unlikely to have that money. It will be lent by the attorneys. But which attorneys are going to pony up so much money with so much risk for so little fee? It’s a path to bankruptcy.

A $100,000 limit is a shonda. A shame. An embarrassment. It’s like putting a band aid on an amputated limb. Few people will ever find a lawyer to handle such a small case at such great risk and cost.

The text of the bill says that the Secretary of Defense can create regulations that allow them to pay more. Regulations that haven’t been written.

So what is the purpose of setting that $100,000 bar? Will future Secretaries of Defense be paying those damages out of their own budgets? Who shall they take the money from?

Why is Congress allowing the Secretary of Defense to set its own rules? Why isn’t this done under the existing rules of the Federal Tort Claims act? Why wouldn’t the Judiciary handle such a claim?

Congress should treat our soldiers and sailors better. If they are mistreated by the military doctors they are compelled to use they should have access to justice. Real justice. Not this pretend crap.

It’s often said that perfect is the enemy of the good, but I can’t see how this will end out as good if this bill is so watered down that the Secretary of Defense can so easily circumvent Congress.

Jury Nullification and the Trump Impeachment

We have criminal trials. We have civil trials. And we have, rarely, impeachment trials.

Today Mark Bower explores the concept of jury nullification in the context of jurors doing whatever they hell they feel like, regardless of the law. I explored jury nullification once before, albeit it briefly, many years ago.

This fuller discussion comes in the wake of news of President Trump wooing Congressmen and Senators with Camp David visits and special lunches.

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A primer on jury nullification:

The United States Constitution guarantees a trial by jury to all persons accused of a crime. That jury is comprised of average citizens from all walks of life with no special training or skills to serve other than being a U.S. citizen who is at least 18 years old, residing in the judicial district for a set period of time (typically one year), being proficient in English, having no disqualifying mental or physical conditions, and (in most states) not having a pending or previous felony conviction. In fact, more than 32 million people are called for jury service every year, according to the National Center for State Courts.

Serving on a jury is a hallmark of our justice system and a cornerstone of democracy. But did you know that, unlike judges, juries historically have been able to ignore the law in order to achieve justice in individual cases that involve unjust rules or their unjust application? This is known as jury nullification. Below, you will find a discussion of jury nullification, including how it’s defined, its legality, examples, and how this applies to the impeachment of Trump.

Jury Nullification Defined:

Jury nullification might sound like a convoluted concept in an already confusing legal system, but the idea is actually quite simple. It happens when a jury returns a verdict of Not Guilty despite its belief that the defendant is guilty of the violation charged. Why would a jury do this? Don’t jurors swear an oath to uphold the law? Yes, but oftentimes it is a tool juries can use to set aside a law they believe is immoral or wrongly applied to the accused.

For example, in the 1800s the government passed stringent fugitive slave laws that compelled citizens of all states to assist law enforcement with the apprehension of suspected runaway slaves. Known as the Fugitive Slave Act of 1850, the law included large fines for anyone who aided a slave in an escape, even by simply giving the person food or shelter.

Northerners used the jury box to voice their protest by refusing to convict in these cases and thereby “nullifying” the law on moral grounds. A mirror-image may be found in the countless acquittals in the South of whites charged with lynching black men, regardless of clear guilt-in-fact. In other cases, juries nullified prohibition era laws and drug laws that they disagreed with. Put crudely but accurately, the jurors rejected the charges based on personal beliefs that the laws were wrongheaded.

Jury nullification also exists in civil cases but is relatively uncommented-on. Every trial lawyer knows that cases may be won or lost based on intangibles, such as the likeability or unlikeability of the client, that has nothing to do with the merits of the case. A jury nullification advocacy group estimates that 3–4% of all jury trials involve nullification. A recent rise in hung juries is seen by some as being indirect evidence that juries have begun to consider the validity or fairness of the laws themselves.

Legality of Jury Nullification:

Jury nullification is legal according to the U.S. Supreme Court, but whether or not juries may be instructed on this right is a different matter. Although the power of jury nullification exists, lawyers are generally prohibited from urging a jury to disregard the law. Although no precedent revokes the power of nullification, courts have since the 19th century tended to restrain juries from considering it, and to insist on their deference to court-given law.

The 1895 decision in Sparf v. United States written by Justice John Marshall Harlan, held that a trial judge has no responsibility to inform the jury of the right to nullify laws. It was a 5–4 decision. This decision, often cited, has led to a common practice by United States judges to penalize anyone who attempts to present legal argument to jurors and to declare a mistrial if such argument has been presented to them. In some states, jurors are likely to be struck from the panel during voir dire if they will not agree to accept as correct the rulings and instructions of the law as provided by the judge.

A 1969 Fourth Circuit decision, U.S. v. Moylan, affirmed the power of jury nullification, but also upheld the power of the court to refuse to permit an instruction to the jury to this effect:

“We recognize, as appellants urge, the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by the judge, and contrary to the evidence. This is a power that must exist as long as we adhere to the general verdict in criminal cases, for the courts cannot search the minds of the jurors to find the basis upon which they judge. If the jury feels that the law under which the defendant is accused, is unjust, or that exigent circumstances justified the actions of the accused, or for any reason which appeals to their logic or passion, the jury has the power to acquit, and the courts must abide by that decision.”

Nevertheless, in upholding the refusal to permit the jury to be so instructed, the Court held that:

“…by clearly stating to the jury that they may disregard the law, telling them that they may decide according to their prejudices or consciences (for there is no check to ensure that the judgment is based upon conscience rather than prejudice), we would indeed be negating the rule of law in favor of the rule of lawlessness. This should not be allowed.”

The right to disregard the law if one disagrees with it on moral grounds, also comes from the fact that jurors cannot be punished for the verdict they render, no matter how unpopular it is to the general public or the specific judge presiding over the case. Also, defendants found not guilty, cannot be retried for the same crime, that would violate the double jeopardy concept.

Hence, once a jury finds a defendant not guilty, there is no mechanism for a prosecutor to bring the case against the same defendant again. (See: Bushel’s Case, from the 1670 trial of William Penn.)

Several cases that were speculated to be instances of jury nullification included the prosecution of Washington, D.C.’s former mayor, Marion Barry; the trial of Lorena Bobbitt; the prosecution of the police officers accused of beating Rodney King; the prosecution of two men charged with beating Reginald Denny in the resulting riots; the trial of the surviving Branch Davidian members; the trial of the Menendez brothers for the murder of their parents; and perhaps most famously, the O. J. Simpson murder trial. In the days preceding Jack Kevorkian’s trial for assisted suicide in Michigan, Kevorkian’s lawyer, Geoffrey Fieger, told the press that he would urge the jury to disregard the law. Prosecutors prevailed upon the judge to enter a pretrial order banning any mention of nullification during the trial, but Fieger’s statements had already been extensively reported in the media.

In a 1998 article, Vanderbilt University Law Professor Nancy J. King wrote that “recent Looking to the Clinton impeachment trial for guidance on the Chief Justice’s role has been unsatisfying. C.J. William Rehnquist’s low-key role is remembered mainly for two minor things: (1) His decision to adorn his black robe with glittering gold stripes – an idea lifted from Gilbert & Sullivan’s “Iolanthe;” and (2) his ruling preventing the Senators from being referred to as “jurors”. It is not likely that C.J. John Roberts will get much precedent from Rehnquist’s presiding over the Clinton impeachment.

Will the Trump Impeachment Call for Nullification?

As of this writing, the Trump defense strategy has essentially been to contend that Trump’s pressuring Ukraine to “dig up dirt” on the Bidens, while perhaps unappealing, is too minor a transgression to rise to the “high crimes and misdemeanors” standard for impeachment. So far as I know, no legal commentator has yet called this “jury nullification.”

But conceptually, this is every bit as much “jury nullification” as northern jurors refusing to convict those who helped slaves escape bondage because of their revulsion to slavery, or Southern jurors refusing to convict lynchers. And so, without say so explicitly, the G.O.P. defense strategy is to appeal to the public and Senators to embrace jury nullification and prevent impeachment and conviction.

As the Supreme Court has never rejected jury nullification but won’t allow defense attorneys to explicitly advocate that jurors substitute their personal beliefs for following the law, I expect Chief Justice Roberts will follow that path, not explicitly allowing the Senate to disregard the law while simultaneously allowing them to “vote their consciences.” That will allow the jury nullification strategy that is currently playing out in the media, to play out in the Senate without ever saying so outright.

Will the jury nullification strategy succeed? I can tell you the answer with complete certainty: Maybe. Ask me again in a year, and I will give you an even more certain answer.

* – Mark R. Bower is a former Court TV Commentator and is a board-certified medical malpractice lawyer in NYC. .

November 27th, 2019

Count Your Blessings

This is a repost — the message hasn’t changed, but I continue to run turkey trots in the costume. I’ve been doing that for 10 years now. And depending on how I feel, maybe I’ll even run a half-marathon like this. The cigar, however, has been updated.
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People in mixed families — some of whom voted for/against Trump — may be dreading Thanksgiving and seeing certain relatives.

But it isn’t up to me to tell you how to grow up and handle awkward and painful situations or deal with the Crazy Uncle (apparently it’s never a crazy aunt). If you haven’t figured it out yet, you are unlikely to learn how to do so here.

This doesn’t mean you can’t be thankful. As you likely should be, if you are reading this post.

The first time I did a Thanksgiving Day message, it was in the form of a Blawg Review, recounting the time Arlo Guthrie came to dinner at my house for a dinner that couldn’t be beat. That was 2009.

In 2011 I wished one and all a Happy Thanksgiving as I celebrated my fifth year blogging. I decorated my blog that year with the photo you see here: me dressed up in a turkey suit for a local race. That message is below.

In 2013 I came back with this message to put away those little pocket computers, unless you wanted to use the phone function that some of them have to talk with those dear to you, but perhaps not so near.

I am now a blogger for 11 years. And this past Sunday I put on that turkey suit that decorates this post for a local 5K, and I’ll put it on again for another on Thanksgiving morning. Because I can.

The costume does not come with a trigger warning. So if I scare the bejesus out of someone — and oddly enough it does frighten some small children — they will just have to deal with it.

Running around in a turkey suit sure beats one of the alternative lives I could be having: Living in the anarchy and horror of Syria. Or suffering with the terrorism in France. Or Lebanon. Or Israel. Or Nigeria/Cameroon. Or Yemen. Mali. Iraq. Libya. Egypt. Afghanistan. And I’m only scratching the surface here.

There are many different ways to count your blessings. This is the way I want to do it. My original posting from 2011 is below.

–Eric “Turkeywitz”

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Now you can see that I have a couple pictures here of me in a turkey suit, shot Sunday at a local Turkey Trot. And you might be wondering what the heck that has to do with blogging, or lawyering, or five-year anniveraries. And, you also might wonder if I’m nuts to put them up here, out of concern that it diminishes the seriousness of what I do for clients in the courtroom. Or that it might be seen by a potential client who will quickly hightail it elsewhere.

Glad you asked.

I see my fair share of human misery come through the doors with busted up bodies that shouldn’t be busted up. Anyone that deals with the consumer end of law will see variations on this theme, from divorce, criminal charges, bankruptcy, etc. And seeing those things gives me (and should give everyone) a greater appreciation for what we have. I know, from seeing it happen to others, that a car could blast through an intersection and instantaneously change my life and those of my family forever. Don’t say it couldn’t happen to you, because it sure happens to some people, who’s only fault might have been sitting patiently at a light. And it only takes a momentary lapse of attention on the part of a driver.

There is no limit to the number of ways that life could be quickly altered for the worse, and I’m not sitting in the middle of a war zone.

So I am thankful for each day that I get. And if I get the chance to dress up silly and run a 1-mile Gobbler race with a few hundred local kids, giving out gift certificates to a local cupcake shop for those that finish near my feathers, then yeah, I’m going to do it. And if I can have a few hundred adults in the 5K race chase the turkey, with a chance to win free entry into a little half marathon trail race I put together, well that is fun too. Community events are often like that. Fun. And it’s nice not just to participate, but to help create them.

In deciding to dress like a turkey for this event for the third year in a row — and with my name I’m the natural choice for this gig — I’m also mindful of Benjamin Franklin’s view of this particular fowl, as he advocated for it to be our national bird instead of the bald eagle:

For the Truth the Turkey is in Comparison a much more respectable Bird, and withal a true original Native of America . . . He is besides, though a little vain & silly, a Bird of Courage, and would not hesitate to attack a Grenadier of the British Guards who should presume to invade his Farm Yard with a red Coat on.

I decline the opportunity to put on the “serious lawyer face” 24/7. You might see the suit and tie shot on my website, but you won’t see it on my blog. Here I get to let my feathers down.

I write this blog the same way I go through life. I try to enjoy it, while at the same time taking what I do for a living very seriously. I think that’s reflected in the 1,000+ posts that I’ve done. And yes, this is the same reason that I have for running the occasional April Fool’s gag.

This week is Thanksgiving. Look around you. Be thankful for what you have. And live each day to the fullest.

I hate to use Latin phrases in law, as it invariably sounds pretentious, but I’ll make an exception today. Carpe diem.

Now if someone could please cue up a copy of Alice’s Restaurant, I’d be most grateful. I hear Arlo may be coming to dinner….

November 19th, 2019

Mary Cain, Alberto Salazar and Coaching Malpractice

Ahh, I get to do a post on both running and the law! My sweet spot. Let’s have at it then, with the scandal roiling the running world and see how it fits into a legal framework.

The Players

Alberto Salazar was the world’s greatest marathon runner, winning New York three straight times from 1980-1982, and winning Boston in 1982 in an epic Duel in the Sun.

As a bona fide legend, he moved on to coaching, leading up to being the head coach of the vaunted Nike Oregon Project, training some of the best runners in the world.

This was not just any coaching facility, of course. Nike poured money into equipment and studies well beyond the means of any amateur, and most professionals, including the removal of oxygen from a room to simulate high altitude conditions, which can benefit runners. The Wikipedia synopsis:

In addition to the simulated altitude training, special software was used to monitor electrodes attached to the athletes, determining what condition they were in and how far or fast they could train. They used underwater and low-gravity treadmills. They also had a collaboration with Colorado Altitude Training (CAT), a company specializing in hypoxic athletic training, for their training equipment.

Mary Cain was one of his athletes. Born in 1996, well after Salazar had raced to greatness, she was arguably the best high school track star in the country. And a straight-A student.

She signed with Nike in 2013 and went off to Oregon to train with Salazar as a college freshman.

But she didn’t see the scandal coming. Nobody ever does.

The Problem

In a video op-ed (embedded below) in the New York Times last week (I Was the Fastest Girl in America, Until I Joined Nike) Cain tells a harrowing story of her time spent with Nike and Salazar. She was directed to become thinner and thinner and thinner, and ultimately developed an eating disorder.

Much of her training was, apparently, the same as the boys. And therein lies a problem. Because boys and girls are physiologically different.

When girls get pushed into a boy’s training program they run the risk of their bodies breaking down. Because it has a negative effect on estrogen levels, which has its repercussions in bone density loss, among other problems. Bones become more susceptible to breaking. That is what happened to Cain due to Salazar constantly badgering her and trying to humiliate her into losing weight.

After months of dieting and frustration, Cain found herself choosing between training with the best team in the world, or potentially developing osteoporosis or even infertility. She lost her period for three years and broke five bones. She went from being a once-in-a-generation Olympic hopeful to having suicidal thoughts.

Nike and Salazar held themselves out as experts and specialists. Yet what they were doing was injuring the young women who had placed their trust in them. And not just Cain.

Kara Goucher, an Olympic distance runner who trained with the same program under Salazar until 2011, said she experienced a similar environment, with teammates weighed in front of one another.

Goucher went on to explain that, “When you’re training in a program like this, you’re constantly reminded how lucky you are to be there, how anyone would want to be there, and it’s this weird feeling of, ‘Well, then, I can’t leave it. Who am I without it?’ When someone proposes something you don’t want to do, whether it’s weight loss or drugs, you wonder, ‘Is this what it takes? Maybe it is, and I don’t want to have regrets.’ Your careers are so short. You are desperate. You want to capitalize on your career, but you’re not sure at what cost.”

How may others will come forward in this athletic version of #MeToo remains to be seen.

Cain’s seven-minute video op-ed describes the abusive system she was under. At 16 she got the call from Salazar and in college went off to train with him, in order “to become the best female athlete ever.” Instead, she says, she was physically and emotionally abused in a system endorsed by Nike.

The top running program in the country had no female coaches, no sports psychologists, no nutritionists. He wanted to give her birth control pills and diuretics to lose weight (the latter of which is not allowed in track and field).

With the eating disorder and injuries she became suicidal, starting cutting herself. She told Salazar. Who told her to go to bed.

Cain is now advocating for women coaches who appreciate the physiological differences between men and women and know they have to be trained differently. People who know how to build strong women’s bodies not just to race tomorrow, but for the long haul.

So. What would a lawsuit look like if Cain sued Nike for negligence?

The Legal Framework

I probably wouldn’t have done the analysis below if I hadn’t read a post from my buddy Scott Greenfield, wherein he was dismissive of Cain’s complaint. He wrote that athletes like Cain make their own decisions to try to be the fastest and to win, and that comes with the trade-offs of loss and injury. They need, therefore, to take personal responsibility for their choices and the risks they undertook to push themselves to get there. Who would deny them the agency to make their own choices? (See: Run for your Life)

You don’t have to suffer this abuse, but then, when you’re a world-class athlete and the tiniest edge distinguishes the podium from the pack, you want to do whatever it takes to win. You’ve learned to lose, and it sucked.

In one of the comments about whether the coach should know better, he writes that:

this is about world-class athletes who push themselves to be the best ever. Complaining about the trade-off afterward is facile. And much as parents and athletes trust their coach, it’s not to “know better,” but to win. If their paramount concern was their well-being, they would have stayed home.

This rang a bell in my head and lead me to think of the “What if” potential for a Cain suit. Greenfield doesn’t use the words “assumption of risk” (as he isn’t using the post to undertake a legal analysis) but that is nevertheless a theme: You made a decision to compete in x, and x has its risks, and you got hurt. Don’t blame others.

Assumption of risk is an old concept here in New York (and elsewhere). It applies to the bike racer who hits a pothole in the street, the ice skater who falls and breaks a wrist, and the fan in the stands injured by a foul ball.

Fundamentally, primary assumption of risk will supersede an act of negligence by the creator or supervisor of an athletic event. So even if there’s negligence, the suit will get tossed if the participant assumes the foreseeable risks.

It was best summarized by Justice Benjamin Cardozo in Murphy v. Steeplechase Amusement in 1929 when someone flopped off a moving belt ride that stops and starts, known as The Flopper. Cardoza wrote:

A fall was foreseen as one of the risks of the adventure. There would have been no point to the whole thing, no adventure about it, if the risk had not been there. The very name above the gate, the Flopper, was warning to the timid….
…One who takes part in such a sport accepts the dangers that inhere in it so far as they are obvious and necessary, just as a fencer accepts the risk of a thrust by his antagonist or a spectator at a ball game the chance of contact with the ball

(And a little side note as Justice Cardozo continues on — I wish judges still wrote like this)

The antics of the clown are not the paces of the cloistered cleric. The rough and boisterous joke, the horseplay of the crowd, evokes its own guffaws, but they are not the pleasures of tranquility. The plaintiff was not seeking a retreat for meditation. Visitors were tumbling about the belt to the merriment of onlookers when he made his choice to join them. He took the chance of a like fate, with whatever damage to his body might ensue from such a fall. The timorous may stay at home.

That last phrase at the end, “The timorous may stay at home,” has been oft-quoted. Indeed, I use it myself in a Disclaimer for the trail race that I put on each year, trying to use wording that evokes the spirit (if not the exquisite style) of Cardozo’s assumption of risk summary.

Given that I’m a runner, and a race director, and a lawyer that does personal injury law, this stuff forms a trifecta of interest to me and (to the extent you are likewise interested) you can see some of the ways this subject has previously come up in my little corner of cyberspace with snowboarding, softball practice, horseback riding, auto racing, water slides and lacrosse.

But is that what’s going on here with Cain and Salazar? Was she hurt in competition, or even during training? She wasn’t injured, for example, by falling when she crashed into another runner fiercely powering through a turn. Most every case I’ve ever read on the primary assumption of risk doctrine deals with a specific incident, and whether the thing that caused the injury was an anticipated or appreciated risk.

Mary Cain doesn’t deal with a particular incident or an appreciated risk. She went for expert advice, as many might do for a doctor, lawyer or car mechanic. We seek out people with specialized skills and talents because we don’t have them ourselves. If they sound like they know what they’re doing, or have been highly recommended by others, we hire them.

Nike and Salazar were supposed to be the best. Top of the heap. Cain reasonably hired them and followed their advice. Salazar, after all, had been at this for decades.

But their advice was not just bad, it was apparently dangerous, and dangerous in unanticipated ways. Cain faced medical issues that would not have been apparent to her. And Salazar and Nike provided no help when faced with them.

I would not discuss this in the language of assumption of risk, but rather, of coaching malpractice. It’s negligence, or even recklessness.

Would such a case survive a motion to dismiss?

The legal analysis, if it were ever to come to that, would pit these two essential concepts against each other: Was she a negligence victim, with Coach Salazar directing her to perilous conduct (unknown to her) that no reasonable coach would direct? And even if she was, would assumption of risk apply, with Cain accepting known dangers inherent in athletic competition, resulting in such a suit being tossed?

To me that answer is clear: Creating an eating disorder that would have long-term harmful effects on the athlete was not part of any known training program. It was not an anticipated hazard she could evaluate and appreciate before signing on with Nike. And any reasonable coach would have, had the issue arisen, immediately brought in psychologists, physicians or nutritionists as needed if one of their charges was having that problem.

Salazar, ultimately was suspended for four years for drug doping. The Nike program has been disbanded (for now). Nike’s CEO stepped down. And Cain went public with the abuse she underwent.

The extent to which the athletes under Salazar/Nike’s charge knew they were being doped by Salazar and Nike remains unknown.

Some may believe that the doping and the starving are two different things. But I’m not so sure, as both entail athletes who have placed their faith in the expert, and been told by them to eat (or not eat) certain things without knowing, understanding, or appreciating that it was dangerous conduct as the risks were not explained.

It’s simplistic, I believe, to think that a teenage athlete would have more knowledge than a legendary runner and coach with decades of experience. He was hired, and trusted, due to those decades of experience, his advice and skillset. And he betrayed the trust.

Her video op-ed is here: