New York Injury Attorney Blog

Supreme Court of Florida: US v. Maureen Stevens

Robert Stevens worked for American Media Inc., publishers of the National Enquirer. In 2001, letters containing anthrax were sent to a number of recipients, including American Media in Florida. Mr. Stevens died from inhaling the anthrax. His wife sued the United States (it was their anthrax) and Battelle Memorial Institute, a private facility that produced Bacillus Anthracis for the government.

Both cases ended up in Federal Court. The suit by the widow Stevens alleged that the anthrax that killed her husband could be traced to the US Army Medical Research Institute for Infectious Diseases, that the Feds knew it was “ultra hazardous,” that samples had been missing since 1992 and that there was a failure to provided adequate security for handling and shipping such materials, which were somehow intercepted and ended up in an envelope addressed to American Media’s Florida offices, killing her husband when he unknowingly inhaled its contents. The suit against Batelle made similar claims about lack of security, failure to monitor employees and negligence in the handling and transport of Anthrax causing it to end up in the wrong hands.

Both defendants moved to dismiss claiming they could not be responsible if their Anthrax was stolen and that such intervening criminal acts relieved them from responsibility for the death of Robert Stevens.
The Federal District Court denied defendants’ motions after looking to Florida law to see whether Mrs. Stevens’ anthrax theory of negligence was recognized in the Sunshine State. It concluded that Florida law supported the widow’s claim under the state’s “foreseeable zone of risk” theory. The government moved for reconsideration, which was denied, but it was granted leave to have this question answered by the Eleventh Circuit Court of Appeals: What duties exist under Florida law to protect members of the public where an organization creates a significant risk by using anthrax or another ultra-hazardous material.” The Eleventh Circuit then sent that question to the Florida High Court to answer.

Obviously this sort of question affects everyone. If the Government wants to make anthrax, well, fine. If it has to get it from a lab, well, where else can it shop for the stuff. But if it’s going to have it delivered by messenger, or FedEx or UPS or its own private couriers, shouldn’t there be some awareness that it could kill unsuspecting and uninvolved people who come in contact with it, and some meaningful precautions to prevent that from happening? And shouldn’t those who make, handle and ship anthrax to wherever anthrax gets shipped, make sure that they have an inventory system that at least rivals Wal-Mart and a security system as advanced as Blockbuster’s. Or do the government and its labs get a pass because their anthrax work is so vital that the best we can hope for is that none of us end up on the wrong mailing list.

Not quite.

You’ll be happy to know that the Florida Supreme Court found that widow Stevens has a right to sue. Whether the anthrax was misplaced, pocketed, or fell off the truck (or out of the Petri dish), the court concluded that the greater the risk of harm to others, the greater the duty to avoid injury to others:

In coping with the heightened duty that comes with this risk, the government and Battelle are required to contemplate a countless variety of situations in which a reasonable laboratory in their position must anticipate and guard against the unauthorized interception and dissemination of the dangerous substance. Given the allegations of negligent security of the ultrahazardous material and the virtual impossibility of potential victims to protect themselves once this substance is at large, this is obviously one of those cases...where the risk of injury is great and the corresponding duty of the lab is heightened. In a very real sense, it is this inability to measure the extent of this risk that merits giving the claimants an opportunity to go forward.

So for Mrs. Stevens, it’s back to the Federal Court with her golden ticket in hand. Now that she has the right to proceed, it remains to be seen if she has the right evidence to prevail.

We should all applaud her persistence since what happened to Robert could have happened to any one of us. If the Government and its labs don’t know how to keep track of their toxins and plagues or properly monitor the scientists and employees who make and transport powdered death, they shouldn’t be allowed to play with it.

One hates to think that the only powder they can be trusted with is Tang.

Posted by Mark A. Eskenazi | Permalink | Email This Post | Comments (0)

Posted In: Anthrax , Damages , Government Negligence , Injuries , Other State Courts , Terrorism , War on Terror , Wrongful Death

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U.S. Court of Appeals for the Second Circuit: In Re Terrorist Attacks on September 11, 2001

Fifteen of the nineteen terrorists involved in the 911 attacks were Saudis. Why not sue the Kingdom of Saudi Arabia and various other seemingly responsible parties (including four Saudi Princes, a Saudi Banker and the Saudi High Commission) for their support role in the attacks? After all, investigations by our government and by non-governmental entities revealed that most of the terrorists were from the Kingdom of Saudi Arabia and that the defendants provided financial support to al Queda through various channels. The plaintiffs are those who incurred losses in the September 11th attacks. They alleged that Islamic charities under the control of, and funded by, the defendants played an instrumental role in the development of al Queda and the fulfillment of its objectives.

One of the great things about the American justice system is access to the courts. Private citizens and their attorneys have been able to bring actions in court seeking remedies for similar wrongs (Libya was sued for the hijacking and murders aboard Pan Am Flight 73 in 1986, and for the destruction of Pan Am Flight 103 over Lockerbie Scotland which killed all 270 people on board; Swiss banks were sued for corroborating with Nazis and laundering Nazi wealth taken from Jews who died in the Holocaust). Well, what about suing those behind the World Trade Center attacks?

Great idea. Only one problem: The Foreign Sovereign Immunities Act (FSIA) “grants foreign sovereigns immunity from suit in the United States” subject to some limited exceptions, which include torts (car accidents, negligence or injury caused by their representatives) and commercial activity (when the government acts like an individual involved in trade or commerce).

The other exception is created when the US Government designates a foreign government a “state sponsor of terrorism.” When that occurs, there is a private right of action to sue the foreign government. That’s what happened here. Except the State Department did NOT designate Saudi Arabia a state sponsor of terrorism.

No designation, no day in court.

Whether all the defendants in this action are agents or servants of the Saudi Kingdom and actually did what the plaintiffs claimed, the victims of 911 have no right to sue the Saudis under the state sponsor of terrorism exception. And their fall-back positions—that the acts of flying planes into the World Trade Center fit under the tort or commercial activity exceptions—were unconvincing. This was terrorism, and that was the only exception available to the plaintiffs.

The Court summed up the limits of our individual right to sue foreign powers this way:
"Although the FSIA did open an avenue of redress for certain individual victims of state-sponsored terrorism, it did not delegate to the victims, their counsel and the courts the responsibility of the executive branch to make America’s foreign policy response to acts of terrorism committed by a foreign state, including whether federal courts may entertain a victim’s claim for damages." The case was dismissed.

Maybe this is the rare instance where we wish lawyers had more power than they already have.

September 11th may not have been brought to us by any recognized state-sponsored terrorists, but it sure looks like it was. The "state-sponsored" loophole is as big as Ground Zero and leaves one wondering why the attorneys' hands are tied while the terrorists funded by "non-state" sponsors reach all the way into NYC, DC and the skies above Pennsylvania without ever having to answer in court for their actions.

Posted by Mark A. Eskenazi | Permalink | Email This Post

Posted In: Crime and Punishment , Damages , Injuries , Politics , U.S. Court of Appeals , War on Terror

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U.S. District Court for the Northern District of California: Michael Savage v. Council on American-Islamic Relations, Inc. et. al.

The Savage Nation is Dr. Michael Savage. The Bronx-born broadcaster has one of the most popular radio talk shows in the country. His brand of libertarianism and conservatism are dished up in flaming doses of Truth-Gone-Wild. Some would call his advocacy the scorched-earth approach; others would say he wields facts like a bludgeon without regard to consequences or sensibilities. Whatever your view, he is no wallflower and no stranger to controversy. He infuriates, elucidates and inundates all at once.

After railing against Islamic extremism, Mahmoud Ahmadinejad and certain aspects of the Koran, efforts were made by the Council on American-Islamic Relations (CAIR) to boycott his show and have him removed from the air. Moreover, CAIR aired excerpts from Savage Nation broadcasts on its website to rally opposition to his program. Savage would have none of it. He filed suit against CARE for racketeering and for copyright infringement.

Unfortunately for the good doctor, “fair use” allows critics to appropriate portions of his speech to make their point. Such use is not copyright infringement. As for Savage’s racketeering claim—that CAIR is not a civil rights group at all, but a political organization and front for terrorist groups—the court found the pleadings insufficient to support the claim and dismissed with leave for Savage to re-plead and try again.

Has CAIR been unfairly maligned? Has Savage? Has a raw nerve been struck? Or is it Truth that’s taking a beating? When it comes to debates involving terrorism, free speech, talk radio, Islam and the right to criticize, Truth is the first victim. Truth is always the first victim in important debates, whether they’re about abortion, global warming or the war on terror. Thankfully, Truth is also the last thing standing when all is said and done and the fog of battle lifts.

Savage battles over Truth are good for the nation. They draw us into the controversy, make us examine the facts and choose sides by reaching our own conclusions. That’s the privilege and responsibility of citizens who live in a free society. That, and serving jury duty.

And that’s the Truth.

11/17/08 Addendum: CAIR sued Savage for nearly $200,000 in legal fees after this action was dismissed. The court determined that while Savage’s claim was initially defective, the allegations he made about CAIR were not frivolous. So for CAIR, "No soup for you!" And no legal fees.

Posted by Mark A. Eskenazi | Permalink | Email This Post

Posted In: Culture War , Religion , Speech , Terrorism , U.S. District Court , War on Terror

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U.S. Supreme Court: Boumediene v. George W. Bush, President of the United States

Habeas Corpus is Latin for “you have the body.” Prisoners in America who think they are being held unjustly can seek to get out of jail by filing a Writ of Habeas Corpus. The Writ compels the authorities detaining the prisoner to show that he or she is being held legally. This is the life blood of our judicial process: just cause and due process. Absent such a showing, the person must be released. The Writ of Habeas Corpus has been a cornerstone of American justice, ensuring that no authorities are above the law or can freely abuse their significant power to imprison individuals. Historically, this right has been accorded all citizens and residents of the United States.

In Boumediene v. George W. Bush (decided June 12, 2008), the US Supreme Court took up the war on terrorism, specifically the issue of enemy combatants held at Guantanamo and whether they have the same right to Habeas Corpus as other Americans. In a 5 – 4 decision, the court ruled that enemy combatants, some of whom have been held captive for over six years, have such a right. The majority concluded that even enemy combatants cannot be held indefinitely in what may be a very long war on terrorism. In a blistering dissent, however, Chief Justice Roberts concluded that the majority was inserting itself into political questions traditionally left to elected officials to resolve, into the execution of American foreign policy, the responsibility for which has always been the province of the executive branch (the president) and was creating procedural rights for our enemies that could put our troops and national security in danger by granting detainees a possible right to demand evidence about the war effort.

These are unique times we live in: Either we are committing political suicide by granting powerful procedural rights to prisoners of war who were enemy combatants committed to the destruction of our way of life before their incarceration, or we are putting our lofty principals to action and trusting that the possible release of an Al Qaeda member or Jihadist is worth the price of extending civil procedural protections to all individuals detained by American authorities, even in time of war. It seems like the Supreme Court is just as divided as the rest of us on how to deal with terrorism in a free and democratic society.

Only the future will tell whether the collective wisdom of the majority decision has strengthened our country and the principals which have made it great, or whether its ruling is out of touch with the harsh realities of these times and has given those committed to our destruction another weapon to use against us. Stay tuned.

Posted by Mark A. Eskenazi | Permalink | Email This Post

Posted In: Habeas Corpus , Terrorism , U.S. Supreme Court , War on Terror

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