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Federal Tort Claims Act case is dismissed resulting in timely dissent from Judge Merritt

A woman badly hurt when a government "field experiment" went awry filed a Federal Tort Claims Act action against the federal government.  Her claim was dismissed and two judges of the Sixth Circuit ruled that allowing her to pursue a claim would interefere with a federal government protected policy. These two judges believed that holding the federal government responsible for its negligence in executing the a hazardous IED experiment would cripple the government's ability to respond to terrorist actions.

The dissenting judge, Merritt, found this argument absurd and pointed out that under existing precedent, if federal agents decided to conduct the experiment, they were required to exercise "due care."  He offered his opinion that the other two judges were mistaken in holding that the simple act of opening a van door with a winch, would wrongfully conflate the normal discretionary-function analysis with negligence. Judge Merritt pointed out that the federal agent's simple decision to use the winch in an unsafe manner did not implicate any government policy relating to terrorism and that under existing precedent his actions did not require a balancing of competing governmental policy choices.  The agent was simply negligent in conducting the field experiment--causing injury to a private person.

Judge Merritt concluded his dissent with the timely observation that "[S]omehow our jurisprudence has come unmoored from these principles [of compensation to citizens injured by the torts of government employees].  We now seem inclined to redistribute the costs of accidents created by government to private individuals who are much less capable of shouldering the burden."

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