Burning the Midnight Oil of Liability

Thank you Agent Carter for one heck of a great geek ride on television. What an amazing fight scene between Agent Carter and Dottie to cap off the series. Dottie hitting Peggy with a baseball bat. Peggy knocking Dottie a window. Just a well done battle royal.

We also learned little things, like Agent Thompson voted for Thomas Dewey or was deployed in November 1944, since Thompson said “I will vote for him next time,” when told President Truman wanted to meet him.

HowardStark_ThomasDewey_1009

Let’s not forget that Howard Stark had one of the most amazing hangers EVER. Airplanes AND classic cars? Well done. Howard Hughes would be jealous. Then buy a casino.

Now, where can we get SSR walkie-talkie iPhone cases?

Stark Liability as a Weapons Manufacturer

Is Howard Stark responsible for the deaths at the Battle of Finow? The Midnight Oil gas was originally intended to keep soldiers awake and instead turned people in rampaging monsters. One would think Howard Stark would be responsible for the deaths caused by the “defective” product.

However, they would be wrong.

MidnightOil_DefectiveProduct_0706

Surviving family members of those killed at the “Battle of Finow” and in the movie theater in New York City would not be able to sue Howard Stark for the “defective” Midnight Oil.

The US Army stole the Midnight Oil and used it on Finow. It is unclear if the Army had a horrific “friendly fire” incident from the gas or if an American military general should be tried as a war criminal for bombing an alley with a chemical weapon. Regardless of why the gas was used at Finow, Howard Stark could not be sued for the Army’s use of the gas, because the Army stole the Midnight Oil.

Howard Stark would also be protected by the “government contractor defense” which immunizes contractors from state tort liability for activities that they are required to perform pursuant to federal contracts. Bentzlin v. Hughes Aircraft Co. (C.D.Cal. 1993) 833 F.Supp. 1486, 1488-1489.

The gas was developed for the Army to keep soldiers awake. While Midnight Oil did not function as designed, the gas was developed pursuant to a government contract for the Army. As such, lawsuits based on state tort law would be barred, because of the Federal interests during war would be frustrated by allowing a state lawsuit based on defective design or manufacturing. Bentzlin v. Hughes Aircraft Co. (C.D.Cal. 1993) 833 F.Supp. 1486, 1492.

Howard Stark could also not be sued for the attack on the movie theater, because the actions by Dr. Fennhoff and Dottie Underwood clearly would be the actions of terrorists, where Howard Stark was the victim of his inventions being stolen by foreign spies.

As the Lambs Still Screaming Dottie?

Could Dr. Fennhoff be gagged indefinitely while imprisoned without violating the 8th Amendment or Excessive Force Claims?

Maybe.

Prisoner_Gag_2017

There are cases where Courts have ordered defendants gagged to maintain order in the courtroom. McKinney v. Newlin (11th Cir. 2013) 520 F.App’x 903, 905-906. These cases involve defendants who are highly disruptive to judicial proceedings.

Dr. Fennhoff is a different case. The evil doctor had an unnatural ability to make people bend to his will and commit acts of treason or murder. Fennhoff entranced one SSR Agent to violate his duties and commit suicide, followed by Chief Dooley betraying his duties, and even a police officer to murder other police officers. To put it mildly, under no circumstances could Dr. Fennhoff be in a position to speak to a prison guard, fellow prisoners, or anyone else.

This raises an interesting issue whether Dr. Fennhoff even spoke with his own attorneys during his trial. Dr. Fennhoff also would have been prohibited from testifying on his own behalf out of the danger he could control a judge or jury.

Dr. Fennhoff should have been placed in solitary confinement and denied any human contact. Putting him in a cell with a HYDRA mad scientist was extremely poor prison management for a mind-controlling-mass-murderer. A firing squad would have been a more just punishment given the body count amassed from his crimes.

But then we would not have seen Zola.

Zola_Fennhoff

From a historical standpoint, putting a Nazi and a Russian together made NO sense. Yes, Zola was Swiss, but HYDRA was a rogue Nazi advanced weapons organization. The Germans and Russians had extreme hatred for each other from the body count on the Eastern Front. Putting two men from different sides of a war with a high level of hate is asking for a cage match to the death.

Unless that was the plan.

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Josh Gilliland
Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg for 2013 to 2016, and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.