Can Daredevil Sue Iron Man on Behalf of the FDA?

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January 22, 2015

Superior Iron Man #4 had the bombshell that Tony Stark had poisoned everyone in San Francisco by contaminating the water supply with Extremis 3.0. This makes sense, because how could an app physically change people?

Tom Taylor gave every geek lawyer a wonderful gift with Stark adding Extremis 3.0 to what had to be the Hetch Hetchy Regional Water System. It is fun to imagine Stark drones dumping 55-gallon drums of Extremis into Pilarcitos Reservoir in a toxic tort case. Moreover, it is very easy to envision Matt Murdock re-enacting A Civil Action to take on Tony Stark.

Daredevil confronted Tony Stark and threatened to represent the FDA in a case against Stark for adding an untested virus to San Francisco’s water supply?

Could Matt Murdock represent the FDA in such a case?

No, for a variety of reasons.

First, the FDA would have government lawyers represent the Government. Secondly, Murdock could not sue on behalf of the FDA on a private right of action for violating FDA regulations. (See, generally, Talbott v C.R. Bard, Inc., 865 F Supp 37, 39-40 [D Mass 1994]). Third, the fact Murdock heard the app trigger the virus makes Murdock a witness to the crime that would require testimony. Lawyers are not supposed to be their own witnesses in a lawsuit.

However, there is an interesting theory with state law. California law is specifically designed to give legal effect to the Nuremberg Code of Ethics in Medical Research and Declaration of Helsinki to prohibit unethical experiments on living human beings. Cal Health & Saf Code § 24171. A lawyer could successfully argue that adding an untested virus to the water supply violated the California statute incorporating the Nuremberg Code of Ethics in Medical Research and Declaration of Helsinki.

Could Murdock bring a private right of action against Stark for violating the Nuremberg Code of Ethics in Medical Research for conducting nonconsensual medical experiments?

Most likely no, but there is a small “maybe.”

Federal law likely would preempt California law if the focus of the case was on FDA violations. Moreover, no Federal Court has found a private right of action exists for violating the Nuremberg Code and international law. See, Abdullahi v. Pfizer, Inc., 562 F.3d 163, 175-176 (2d Cir. N.Y. 2009) and Robertson v. McGee, 2002 U.S. Dist. LEXIS 4072, 9-10 (N.D. Okla. Jan. 28, 2002).

No California Court has found a private right of action for violating Nuremberg Code of Ethics in Medical Research and Declaration of Helsinki, as given force by Cal Health & Saf Code § 24171. As one California Court stated on private rights of action:

The issue in a case such as this is primarily one of legislative intent. If the Legislature intended a private right of action, that usually ends the inquiry. If the Legislature intended there be no private right of action, that usually ends the inquiry. If we determine the Legislature expressed no intent on the matter either way, directly or impliedly, there is no private right of action… with the possible exception that compelling reasons of public policy might require judicial recognition of such a right.

Animal Legal Defense Fund v Mendes, 160 Cal App 4th 136, 142, [2008].

Would a California Judge find “compelling reasons of public policy,” that would require recognition of a private right of action? Most likely no, but if a Judge was ticked off enough by the population of San Francisco being infected with a virus on purpose, it certainly is possible for a Judge to empower Matt Murdock sue Tony Stark for playing Dr. Mengele on a private right of action.

Just because Matt Murdock cannot sue on behalf of the US Government or (most likely) the State of California, does not mean Tony Stark gets to infect people with a virus. The US Government and the State of California can prosecute Stark for violating the different state and Federal laws. Moreover, Matt Murdock can represent victims from San Francisco in what would be one of the biggest class actions ever.

Tony Stark would also have more to worry about then the FDA. The Environmental Protection Agency does not look kindly on chemicals being dumped in drinking water. Fish and Wildlife would also likely take aim for potentially infecting fish and animals with Extremis. The FBI would likely consider poisoning the water supply with an addictive virus an act of terrorism. That is just the beginning of Federal Agencies that would go after Stark in what would be one of the largest mass tort case against one person in fictional history.

No Mining Rights on Lothal

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Josh Gilliland

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January 20, 2015

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Let’s face it, no one is as smooth talking with the ladies as Lando Calrissian. Despite Lando’s ability to impress a woman with, “You truly belong here with us among the clouds,” Lando’s sweet talk is not enough charm to the Empire into permitting mining rights on private property on Lothal.

Mining (on Earth) is a regulated activity, even on private property. There is substantial legislation about applying for permits to mine on public land or how to establish a claim.

On Lothal, the Empire continues to endear itself to the population by prohibiting mining on private property. In the United States, mining on private property (that is supposed to be a mine) does require permits in virtually every state. Moreover, the regulation of mining activities, such as requiring a permit, is not a “taking” of private property under the Fifth Amendment. M & J Coal Co. v United States, 47 F3d 1148, 1149 [Fed Cir 1995].

Why does the government regulate mining on private property? Health and public safety are obvious concerns. Neighbors are not thrilled when potentially hazardous materials become airborne and land on surrounding private property. Moreover, no one wants their neighbor blasting a new mine in a residential neighborhood on the argument, “It’s my property, I do what I want with TNT.”

Lothal provides a very different case study where the Empire has outright prohibited all mining on private property. If there had been existing mines that were prohibited from operation, suspending those pre-existing mining rights would be a “taking” of private property in the United States. Those miners should have been entitled to just compensation for their lost property rights. However, filing any such claims likely would have been treason, resulting in the property owner being sent to the Spice Mines of Kessel.

That being said, let’s not forget the important thing: We got to hear Billy Dee Williams voice Lando Calrissian. You old space pirate, it was good to see you.

Someone to Watch Over the SSR

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Josh Gilliland

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January 14, 2015

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The Agent Carter episode “Time and Tide” carried a rising tide of legal issues, from a woman being evicted from an all female apartment for having a man over (who did scale the building), to custodial interrogation of Jarvis without an arrest, to charges of treason for Jarvis forging a general’s signature to help his future Jewish wife escape before World War 2, and threats of deportation.

On a very welcome note, Agent Carter conducts an investigation in coveralls. This is a welcome break from comics where female characters often fight evil in Kevlar lingerie. Bikinis are not bulletproof and provide minimal protection from the environment (Even the Sub-Mariner has ditched his green speedo for the 1970s costume). Coveralls make a heck of a lot more sense for climbing down a sewer.

And Agent Carter’s coveralls do not get ripped in the fight.

Does the SSR Conduct Law Enforcement?

The Strategic Scientific Reserve (SSR) in Agent Carter conducts domestic law enforcement with searches of property and arrests of individuals. In the real world, investigating Howard Stark and foreign spies would have been under the purview of the Federal Bureau of Investigation.

The SSR conducting law enforcement is a huge shift from its role in Captain America The First Avenger. In the agency’s original form, it was clearly a branch of the Army to develop advanced weapons to fight the Axis powers in World War 2 and fighting HYDRA. In Marvel’s version of 1946, we see SSR Agents in a secret New York office, arresting people, conducting interrogations, and throwing around the need to get search warrants. These actions are clearly law enforcement responsibilities that would be subject to judicial oversight to ensure compliance with the Constitution.

There is a huge issue with the military conducting law enforcement. Congress enacted the “Posse Comitatus Act,” to specifically prohibit the military conducting law enforcement. The Act states:

Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.

18 USCS § 1385.

It is highly likely that the fictionalized President Truman and post-World War 2 Congress re-purposed the SSR to deal with the “wonder threats” directly threatening the United States. While it is very odd to see a law enforcement agency also conducting espionage, this is the likely structure for the SSR’s operation.

That being said, the fact the SSR Agents boarded the tugboat Heartbreak without a search warrant would be an Unconstitutional search. Getting a tip from “a pal” is not exactly enough of a reason to side step complying with the 4^th Amendment. One could argue there was an Exigent Circumstance because someone called a secret phone number for a secret law enforcement agency that the public was not supposed to know about. While that definitely is something to consider, there was no visible evidence from seeing the docked tugboat of any danger of sinking or possible destruction of evidence. A SSR lawyer could argue that the danger of Stark’s missing weapons justified such a search without a warrant, however, it would be a very problematic argument.

And suppressing any evidence against Howard Stark from the tugboat would be a real heartbreak for the SSR.

2014: The Year of the Geek

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Josh Gilliland

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January 12, 2015

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We live in an age of miracles: 2014 was a fantastic time to be a geek. Jess and I sat down with some of our great friends to discuss Scandal, the Marvel Cinematic Universe, the best action scenes from 2014, and Star Wars Rebels.

Join us as we visit with Vivian O’Barski from The Learned Fangirl, Political Consultant and Novelist Gerry O’Brien, Jessica Bennett, stunt woman, actor, and educator, and Judge Judge Matthew Sciarrino, on all things geek in 2014.

What Are the Charges Against Howard Stark on Agent Carter?

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Josh Gilliland

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January 8, 2015

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Agent Carter started with a bang as a fun Marvel spy-thriller. There were many great geek references from Roxxon to Leviathan. Keep up the good work.

The story centers of Howard Stark having his “Bad Babies,” advanced weapons so dangers that they are kept locked in a vault under his house, stolen. This results in Howard Stark being grilled by a Senate Committee on his technology, invoking some comparisons to Senator Owen Brewster antagonizing Howard Hughes in real-life 1946 as a wartime profiteer.

The only legal term verbally charged against Howard Stark for Stark technology getting in the hands of US enemies is treason. This certainly is the most serious charge against Stark, but there could have been others.

Treason is “levying War against them [The United States], or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.” United States Constitution, Article III, Section 3.

Treason is the most obvious charge against Stark and providing advanced weapons to a hostile foreign power would certainly qualify. However, there are two other laws Stark could have violated that do not require the foreign power to be an enemy; providing the information to ANY foreign power would violate the law.

Howard Stark could have been charged with violating the Espionage Act of 1917, which prohibited the providing any information relating to national defense with the intent to injury the United States to a foreign nation. The peacetime punishment for such a crime was 20 years and in times of war, 30 years. Espionage Act, June 15, 1917, 40 Stat. 217, § 2(a). Alternatively, as seen in the Rosenberg case, death.

Stark could argue his “Bad Babies” were not created for the US government to be used for national defense, but given the destructive power of the implosive weapon, probably would not be effective if a foreign power got its hands on the technology. Moreover, given Stark’s close ties to the SSR and US Government, it is arguable that anything Howard Stark creates is for national defense.

Stark could also be charged under the Atomic Energy Act of 1946, which provides against providing foreign nations any “Restricted Data” with the intent to harm the United States in prison for life and a $100,000 fine in present day. 42 U.S.C.S. § 2275. “Restricted Data” means all data relating to the “(1) design, manufacture, or utilization of atomic weapons; (2) the production of special nuclear material; or (3) the use of special nuclear material in the production of energy, but shall not include data declassified or removed from the Restricted Data category pursuant to section 142 [42 USCS § 2162].42 USCS § 2014(y).

It is not clear what exactly are all of Stark’s “Bad Babies,” other than one of the weaponized implosive devices the size of a baseball could cause all matter to collapse into a large sphere. While it would require a physics expert, there has to be some nuclear fusion to create that sort of gravity weapon. This sort of weapon arguably would fall under the Atomic Energy Act, which would be further charges against Stark.

Arkham Asylum: A Rogues’ Gallery of State Liability

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Josh Gilliland

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January 7, 2015

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Arkham Asylum is a massive Federal lawsuit waiting to happen on Gotham. The rogues’ gallery of legal issues in the first episode of Gotham since the mid-season should give all the fictional elected officials pause.

Generally speaking, the inmates could end up in Arkham if 1) they were on the streets as a danger to themselves or 2) arrested for a crime and found to be not competent to stand trial. There are of course other situations, but given the “hospital” is supposed to be for the criminally insane, those are the likely candidates.

As a preliminary matter, the prisoners could be in Arkham from a judicial determination. Alternatively, inmates could be involuntarily committed to Arkham if two treating physicians submit separate applications under penalty of perjury that the inmate containing a statement of the facts upon which the allegation of mental illness and need for care and treatment are based (assuming Gotham is in New York state). NY CLS Men Hyg § 9.27.

After arriving at Arkham Asylum, Doctor Lang should have had a doctor who was on the psychiatric staff examine each inmate to also determine if the individual was in need of involuntary confinement (assuming those inmates were not in Arkham by Court order).

History has many horrific cases of mental hospitals that were torture chambers. In order for a prion to have conditions that amount to “cruel and unusual punishment” that violates the Constitution, the conditions must be “barbarous” or “shocking to the conscience.” Cooper v Morin (1977) 91 Misc 2d 302, 398 NYS2d 36, mod, in part on other grounds, affd, in part (1978, 4th Dept) 64 App Div 2d 130, 409 NYS2d 30, mod on other grounds (1979) 49 NY2d 69, 424 NYS2d 168, 399 NE2d 1188, reconsideration den (1980) 49 NY2d 801 and cert den (1980) 446 US 984, 64 L Ed 2d 840, 100 S Ct 2965.

Arkham Asylum being 200 years old, abandoned for a decade, dirty, having inadequate lighting, not enough doctors, not enough guards, and lacking the means to treat those confined there, should rise to the level of “shocking to the conscience” and amount to “cruel and unusual punishment.” The icing on the liability cake was an former inmate infuriating the staff as a nurse and dispensing medications.

Here is the Civil Rights violation giveaway: if the “hospital” looks like a medieval dungeon, it most likely violates the US Constitution.

There is a very strong case against Doctor Lang and Arkham for his refusal to treat “Frogman” for his injuries from electric shock therapy. If someone is in prison, then the State must provide medical care to that prisoner, “”because the prisoner is unable by reason of the deprivation of his liberty [to] care for himself” Garcia v NY City Police Dept., 2014 NY Slip Op 31351[U], *14 [Sup Ct, Bronx County 2014], citing Estelle v Gamble, 429 U.S. 97, 97, 97 S. Ct. 285, 50 L. Ed. 2d 251 [1976].

Doctor Lang’s caviler statement that “Frogman” was still breathing and to simply “keep him comfortable,” demonstrated a total lack of providing any medical care needed for the injuries the “Frogman” sustained.

Arkham Asylum should strike terror into the heart of the Gotham City attorney. It literally is a massive lawsuit waiting to happen.

Finally, as for Cat taking the sick Poison Ivy to Barbara Kean’s penthouse, there is no doubt that entering the property was trespassing. However, Cat and Ivy could argue the necessity defense. Barbara on the other hand, from her drug use, bipolar behavior, and thinking the voice of a child to be a paramour, probably could be held involuntarily based on the evaluation of two doctors as a danger to herself.

Join Us to Live Tweet the Agent Carter Premiere

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Josh Gilliland

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January 3, 2015

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Join Jessica and I on January 6 as we live Tweet the Agent Carter West Coast premiere at 800pm PST. What legal issues will Agent Carter and Howard Stark confront? Follow us @TheLegalGeeks, @eDiscMatters, and @BowTieLaw for our analysis.