ATLANTA (Florida Record) — The wrongful case of a 26-year-old U.S. Marine captain killed in a plane crash in 2010 is on its way back to a district court in Florida after a Georgia appeals court denied a defense counsel appeal that the case should be dismissed "on political question grounds."

"The issue is neither neat nor clear from any vantage point in the record," said the eight-page U.S. 11th Circuit Court of Appeals decision handed down March 22. "And it is far from being one of pure law. The basic historical facts underlying this case may be undisputed — the what, when, and where of the crash."

Who caused the plane crash that killed Marine Capt. Shawn R. Nice and three others aboard "is hotly disputed, as the defendants conceded at oral argument," the appeals court's decision said.

"And determining whether the defendants' comparative fault defense would force the jury to evaluate sensitive Navy decisions requires us to answer the disputed question of who caused the crash: the Navy, the defendants, or both," the decision said. "That case-specific inquiry does not present a pure question of law but a mixed one of law and fact."

The defendants in the case, L-3 Communications Vertex Aerospace and the estate of one of the other men killed in the crash, had appealed an earlier U.S. District Court for Florida's Northern District denial of their motion to dismiss "for lack of subject matter jurisdiction on political question grounds", according to the background portion of the 11th Circuit's decision. Defense counsel argued their appeal was ripe for appeal under the collateral order doctrine and federal law.

The 11th Circuit dismissed the appeal, vacated the order that had granted permission to appeal and remanded the case back to the district court.

The appeals court panels were made up of Chief Judge Ed Carnes, Circuit Judge Joel Fredrick Dubina and U.S. District Court Judge Leslie J. Abrams. Abrams usually sits on the bench in Georgia's Middle District but had been designated to be part of the 11th Circuit panel for this case.

Nice's widow, Kimberly A. Nice, filed the wrongful death suit after her husband was killed in a plane crash during a training exercise in Morgantown, Georgia, according to the 11th Circuit's decision and information from an online Marine website. Among others aboard who were killed in the crash was Retired Navy Lt. Cmdr. Charles McDaniel, 67, who was flying the plane and whose estate is one of the defendants in the case.

Shawn and Kimberly Nice had been married about a year and a half and she was expecting their only child when he was killed in the crash.

Defense counsel in the case also argued that its comparative fault defense would require a jury "to second-guess sensitive Navy decisions, which harms the public’s interest in separation of powers, and a later appeal will not undo that damage," the appeals court's decision said.

"That argument fails," the decision said. "Courts cannot engage in an individualized jurisdictional inquiry to determine whether a decision fits into the small category of collateral order decisions.  That is exactly what the defendants want us to do here."

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