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April 22, 2008 11:10 AM

MoFo Fights for Wounded Vets in Landmark Benefits Case

Posted by Brian Baxter

Soldiers returning from Iraq and Afghanistan who claim the Department of Veterans Affairs hasn't provided the services they need will get their day in court April 21, when a bench trial before U.S. district court judge Samuel Conti begins in San Francisco. The case, Veterans for Common Sense v. Peake, is expected to continue through May 1.

Morrison & Foerster senior counsel Gordon Erspamer represents the two organizations that are plaintiffs in the case: Veterans for Common Sense and Veterans United for Truth. Erspamer, who is cochair of MoFo's energy group, also has 30 years of experience handling pro bono litigation on behalf of veterans. He says this case is the first of its kind against the DVA.

The suit claims that many disabled combat veterans are in dire need of counseling and other services they are not currently receiving from the U.S. government. Erspamer estimates that 120 veterans who served in Iraq or Afghanistan commit suicide each week. The veterans' groups are not seeking monetary damages but want reform of a health care system in which they allege a huge backlog of cases prevents veterans from receiving timely care.

The case was initially filed last July as a class action but the plaintiffs decided not to seek class certification. "It's hard to do a class action with veterans who have [post traumatic stress disorder]," Erspamer says. "We think we can get the relief we need through these organizational plaintiffs."

Disability Rights Advocates, a Berkeley-based nonprofit, is serving as Erspamer's cocounsel.

Daniel Bensing, the Department of Justice lawyer who is lead counsel for the DVA, declined to comment. A Justice Department spokesperson also declined to comment.

But in a pretrial brief filed by the DVA on April 14, the government argued that "constitutional and statutory considerations" should preclude the federal court from hearing many of the veterans groups' claims and ordering the remedies they seek.

Several high-ranking DVA officials are expected to testify at the trial, according to a witness list included in the DVA's brief.

Arturo Gonzalez, a partner and chair of the trial practice group at MoFo, is also working on the case with San Francisco–based associates Alexandria Amezcua, Suzanna Brickman, Jennifer Gould, Ryan Hassanein, Heather Moser, Natalie Naugle, and Stacey Sprenkel. Assisting lead DRA lawyer Sidney Wolinsky are Jennifer Bezoza, Katrina "Kasey" Corbit, and Ron Elsberry.

Updated April 22, 2008, at 11:10 a.m. ET: Morrison & Foerster's Gordon Erspamer claimed in opening arguments that an average of 18 military veterans a day commit suicide, a number he says is corroborated by an internal Department of Veterans Affairs e-mail obtained during discovery.

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