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This Unorganized Grabasstic Piece Of Amphibian Shit Prays For Punitive Damages In An Amount Sufficient To Deter Defendant From Future Misconduct Toward Unorganized Grabasstic Pieces Of Amphibian Shit Everywhere

Jul 7, 2010
By .
Law

Marine recruit sues Corps for making him exercise in the summer.

Zachary Ryan Snow filed suit against the U.S. Marine Corps and recruiters Sgt. Compton and Sgt. Esquibel on June 28 in the Eastern District of Texas, Sherman Division.

Snow entered the USMC's Delayed Entry/Enlistment Program on Oct. 10, 2008. The program has a nonpay status and Snow was not entitled to any benefits or privileges.

Under the supervision of the Marine Corps, Snow participated in vigorous physical activity and instruction on July 9, 2009, in Denton.

"The temperature in Denton reached or exceeded 100 degrees Farenheit that day," the suit states.

Due to the high temperature, Snow claims he suffered a massive heat stroke and liver damage and had to be hospitalized.

Two thoughts:  Snow's attorneys, Evan Lane Shaw and Colby Vokey of Dallas, claim the Corps was negligent for failing to follow its "Operational Risk Management and Heat Injury Prevention Program," for failing to ascertain that Snow was a "disgusting fatbody," and for failing to follow "orders to weed out all non-hackers who do not pack the gear to serve in my beloved Corps."

Well I made up that last part.  Anything for a Gunnery Sergeant Hartman quote, you know.  In fact:

Where was I?  Oh.  The lawsuit!

First, Snow is going to have a high hurdle to leap in order to get over the Feres doctrine, a draconian rule that prevents even inactive reservists from suing VA doctors for malpractice.  The rule is good public policy in general, as we can't have soldiers suing generals for negligent command decisions and the like, but it's tripped many a soldier suing the government for negligence that seems utterly unrelated to service.

But perhaps as importantly, Texas law, which will govern the substantive rather than procedural aspects of the case, includes the defense of contributory negligence.  It utterly bars a claim in which the plaintiff is more than 50% responsible for his injuries.  Now if I exercise to the point of heat stroke in the hot sun I'm 100% responsible, even if others told me it would be a good idea, or that I had to do it.  But I'm not a Marine.

In pressing this suit, Snow will have to follow in the footsteps of that other great non-Marine, William Calley, that he was "just following orders" as he exercised himself into a froth.  Given that, in order to escape the Feres doctrine, Snow's suit essentially alleges that he was not a Marine (not being paid, not on active duty, on delayed enlistment status), that may be a tall order to fill.

Edit: Thanks to commenter Brewdogmike for a correction as to Lieutenant Calley's status, which incidentally improves the post.

Last 5 posts by Patrick

22 Comments
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21 Comments

  1. Ken  •  Jul 7, 2010 @12:21 pm

    I'm distracted from the substance of this excellent post by this conundrum: whose sensibilities are you protecting with the asterisks in the title?

  2. Patrick  •  Jul 7, 2010 @12:25 pm

    Some of the folks who come here to read posts on the law are a little chary about harsh language. But you know what? Fuck em.

    I'm changing it.

  3. Ken  •  Jul 7, 2010 @12:29 pm

    I'm just sayin'. If anyone is offended by rude words in our titles, they're going to plotz if they read the actual posts. Isn't it better to warn them off?

  4. Patrick  •  Jul 7, 2010 @12:33 pm

    Agreed. For what it's worth I decided not to use another quote from the movie, even more apt, because it's genuinely offensive.

    However, knowing that I'm an unorganized grabasstic piece of amphibian shit myself, our readers will understand the caption I chose.

  5. Scott Jacobs  •  Jul 7, 2010 @1:15 pm

    You forgot the "Sir" at the start and end of your title. :)

  6. Brewdogmike  •  Jul 7, 2010 @1:17 pm

    Just one thing.. Lt. Calley was Army, he was not a Marine.

  7. Patrick  •  Jul 7, 2010 @1:18 pm

    Thanks!

  8. Transplanted Lawyer  •  Jul 7, 2010 @1:54 pm

    USMC must have an internal review process. Given that USMC has a “Operational Risk Management and Heat Injury Prevention Program,” someone has clearly already decided that it isn't in USMC's interests to be running its recruits so hard they get heatstroke and incur hospitalization costs. And lose out on turning a disgusting fatbody into a perfectly good killer born for war.

    My guess would be that the individuals involved fear USMC's internal review process much more than they fear lawsuits.

  9. Mark Bennett  •  Jul 7, 2010 @4:40 pm

    That'd be this Colby Vokey, a Marine and a criminal-defense hero. (I hope this foray into civil law turns out better for him than it appears from your analysis it will.)

  10. Patrick  •  Jul 7, 2010 @5:12 pm

    I think he has a tough row to hoe on Feres as well as "getting to yes" in a jurisdiction that loves high school football (where the practice can be as tough as boot camp in the same weather), but he seems up to the challenge.

    Of course on that note, while you'd want a retired drill instructor as your primary expert witness, a football coach ("We won the state / conference championship in 200X and 200Y … and I'd never have my kids out there in Denton Texas without at least a Gatorade container, sir") might make a HELL of a good appearance in front of a jury.

  11. Brian Dunbar  •  Jul 7, 2010 @6:42 pm

    But I’m not a Marine.

    Neither is young Mr. Snow.

    Now, I wasn't there and my DEP experience was a long, long time ago. But when I did it the PT was a rather rigorous affair by my then ectomorph-ish standards but nobody encouraged me to go all out. I got tired, I stopped. Perhaps I was just oblivious.

    I think they might have encouraged us to go easy: the idea was to get us used to exercise, not kill us or win a football game.

  12. SPQR  •  Jul 7, 2010 @6:48 pm

    Didn't I recently see R. Lee Ermey in a Geico commercial?

  13. Hrdina  •  Jul 7, 2010 @8:12 pm

    YES! Geico is now bringing us R. Lee Ermey as a counselor. I saw it today for the first time, and assume that the commercial was somehow summoned to my television by Patrick's posting.

  14. Charles  •  Jul 8, 2010 @9:48 am

    I keep rereading this and, aside from an exception that can keep the Marines from being sued, I don't see what makes the guy such a douchebag plaintiff. Hell, I'm not even sure where you come down, Patrick, but if you don't think he is a douchebag plaintiff I'm not sure what the point of the post was (aside from the opportunity to relive the best parts of FMJ).

    When Korey Stringer died from heatstroke after practice, the Vikings settled. Student-athletes die from similar events every year and it is no surprise to me that their survivors sue.

  15. Patrick  •  Jul 8, 2010 @9:59 am

    Where did I call him a douchebag? Sure, there's some scorn (take a break and drink some water, man) but on the whole I think it's an interesting tort case that presents difficult liability problems. So I blogged about it. As for the point of the post, the point is that the case interested me. I need no other point.

    And of course I took the liberty of quoting R. Lee Ermey a lot. The case concerns allegedly abusive marine training. I like R. Lee Ermey. He should have received an academy award for his performance in Full Metal Jacket. He deserved it more than any supporting actor that decade.

    If the case had concerned a medical marijuana patient who died of a paraquat overdose, you can bet the post would be full of Lebowski references.

    No one's giving anyone the soap bar treatment here Private Pyle.

  16. Charles  •  Jul 8, 2010 @11:17 am

    I think you mistook my praise of copious M. Lee Ermey references for a criticism of copious M. Lee Ermey references.

    I wouldn't claim that you need reasons to post aside from what interests you but you have to admit that writing about someone that you think is neither a douchebag or a hero is playing against type.

  17. ParatrooperJJ  •  Jul 12, 2010 @7:14 am

    Feres doctrine is controlling here. He is also going to known for all time as a pussy. I wonder if the USMC is going to release him from his contract?

  18. Scott  •  Jul 12, 2010 @8:15 am

    Should have continued quoting the original article to include this bit which to me changes the circumstances quite a bit:

    "According to the suit, the incident did not occur on military property, Snow did not receive any compensation or benefits from the USMC and the USMC did not pay any of the medical bills Snow incurred due to the incident. "

  19. Patrick  •  Jul 12, 2010 @10:01 am

    That doesn't change the circumstances at all Scott.

  20. Chowder9  •  Jul 15, 2010 @1:03 pm

    What if the temp was not 100 degree's when he stroked? What if it was 70 degree's? What if it was 85 degree's?

  21. David Marshall  •  Jul 16, 2010 @10:52 am

    KO BY FERES!

    The U.S. Supreme Court’s 1987 STANLEY [3] “to harm” experiment is approved by the U.S. Supreme Court’s 1950 FERES [1] ‘DOD can do no wrong’ Doctrine. This case is one of the U.S. Senate’s 1994 “During the last 50 years, hundreds of thousands of military personnel” were subjected to “experiments that were designed to harm”.[8] It is a dereliction of duty in direct disobedience of the DOD Secretary's 26 February 1953 NO non-consensual, human experiments.[2] In 2010, after honorable service the U.S. Congress still has not given back to veterans those rights that convicted rapists and murderers keep![6]

    The "Veterans Right to Know Act" to establish the Veterans' Right to Know Commission was proposed in the 2005 and H.R. 4259 [109th] 2006 Congress.[9] A veteran's right to get the “to harm” needed for treatment evidence never became law.

    "IT WAS NECESSARY "TO CONCEAL THESE ACTIVITIES FROM THE AMERICAN PUBLIC IN GENERAL," BECAUSE PUBLIC KNOWLEDGE OF THE" UNETHICAL AND ILLICIT ACTIVITIES WOULD HAVE SERIOUS REPERCUSSIONS IN POLITICAL AND DIPLOMATIC CIRCLES AND WOULD BE DETRIMENTAL TO THE ACCOMPLISHMENT OF ITS MISSION." See [Footnote 2/4] Page 483 U.S. 709 U.S. Supreme Court 1987 STANLEY military biomedical experimentation case. [3]

    After the 1987 STANLEY, Congress passed the 1988 Veterans’ Judicial Review Act (VJRA).[4] Established was the Legislative, Article I severely restricted, U.S. Court of Veterans Appeals. Its Chief Judge stated, "The Court simply identifies error made below by a failure to adhere, in individual cases, to the Constitution, statutes, and regulations which themselves reflect policy — policy freely ignored by many initial adjudicators whose attitude is, "I haven't been told by my boss to change. If you don't like it — appeal it."[7] Congress dictated that, "The court may not review the schedule of ratings for disabilities or the policies underlying the schedule."[4] Given to the Secretary of the DVA is the Judicial Branch’s final authority on "the policies underlying the schedule" questions of law![5] Thereby, the withheld needed for treatment evidence and the underlying “experiments that were designed to harm” cause may not be addressed!

    Each "to harm" experimentation project completes a Research and Development (R&D) process. Prior R&D is reviewed. The resulting Scope of Work defines what each experiment is "designed" to accomplish. The how, where, when and who is identified. The conducted RESEARCHED cause and effects are closely followed and recorded. From the results are DEVELOPED safe production, use, victim treatment and protection. Accordingly, at the time known are the “designed to harm” experimentation resultant disabilities with their identifying symptoms.

    DESPITE THE EFFORTS OF SOME, WITH THE U. S. CONGRESS’S NOW 66 YEAR BEHAVIOR [8], DO NOT THE EXPERIMENTS CONTINUE UNDER THE COVER OF OUR PRESENT WARS?
    REFERENCES:

    [1] 1950 – Feres v. United States, 340 U.S. 135, 146 (1950). http://supreme.justia.com/us/340/135/case.html

    [2] 1953 – DOD Secretary's 26 February 1953 NO non-consensual, human experiment’s Memo pages 343-345. George J. Annas and Michael A. Grodin, "The Nazi Doctors and the Nuremberg Code; Human Rights in Human Experimentation” (New York: Oxford University Press, 1992).

    [3] 1987 – U.S. SUPREME COURT, JUNE 25, 1987, U.S. V. STANLEY , 107 S. CT.. 3054 (VOLUME 483 U.S., SECTION 669, PAGES 699 TO 710). http://supreme.justia.com/us/483/669/case.html

    [4] 1988 – Veterans’ Judicial Review Act (VJRA), Pub. L. No. 100-687, Div. A, 102 Stat. 4105 (8 December 1988) DVA-Chapter 4 and http://law.jrank.org/pages/6784/Federal-Courts-Court-Appeals-Veterans-Claims.html#ixzz0MIKbF8ND

    [5] "United States Code (USC) Title 38, 511. Decisions of the Secretary; finality." US CODE: Title 38511. Decisions of the Secretary; finality.

    [6] 1994 – U.S. State Dept., "U.S. Report under the International Covenant on Civil and Political Rights July 1994, Article 7 – Freedom from Torture, or Cruel, Inhuman
    or Degrading Treatment or Punishment.” Electronic Research Collections (ERC)

    [7] 1994 – Chief Judge and colleague statements, Court of Veterans Appeals, Annual Judicial Conference, Fort Meyer, VA., 17 & 18 October 1994. Chief Judge Frank Nebeker's Statement STATE OF COURT – - – URL: http://www.firebase.net/state_of_court_brief.htm

    [8] 1994 – December 8, 1994 REPORT 103-97 "Is Military Research Hazardous to Veterans' Health? Lessons Spanning Half a Century." Hearings Before the U.S. Senate Committee on Veterans' Affairs, 103rd Congress 2nd Session.

    [9] 2005 & 2006 – "Veterans Right to Know Act" to establish the Veterans' Right to Know Commission was proposed in the 2005 and H.R. 4259 [109th] 2006 Congress. H. R. 4259.

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