Evening Sun Staff
The Evening Sun (Hanover, Pennsylvania)
Copyright 2007 MediaNews Group, Inc.
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FREDERICK COUNTY, Md. — A Gettysburg couple whose son died during firefighter training at a Frederick County, Md., facility in 2002 is appealing a federal court's dismissal of constitutional claims in their wrongful-death lawsuit against the county, according to documents filed Tuesday.

Attorneys for Shirley and James Waybright filed the notice of appeal in U.S. District Court in Baltimore. The appeal would be heard by the 4th U.S. Circuit Court of Appeals in Richmond, Va.

The appeal follows a March 1 ruling in federal district court that Andrew Waybright's death from heatstroke during an outdoor workout in hot, humid weather in 2002 didn't "shock the conscience" – a standard the court said must be met before it could find that governmental conduct violated the 14th Amendment to the Constitution.

After the ruling, the Waybrights' lead attorney, Kenneth M. Berman, of Gaithersburg, Md., said the court had applied the wrong standard. And if the correct standard would have been applied, Berman said, the matter could have been placed before a jury.

The case arose from Waybright's death on July 3, 2002, at the Frederick County Public Safety Training Center near Frederick.

Waybright, 23, of Gettysburg, collapsed during a workout supervised by an officer who didn't recognize his hyperthermia symptoms and didn't administer first aid, according to court records.

There was a heat index of 96 degrees at the Frederick County Public Safety Training Center that day, when firefighter trainees ran almost four miles. The complex's 2002 policy canceled outdoor activities when the heat index reached 100 degrees.

Instructors performed CPR on Waybright, but he was pronounced dead on arrival at Frederick Memorial Hospital with a body temperature of 107.4 degrees.

Before being hired as a recruit for the Frederick County fire company, Waybright served at Taneytown fire department for three years, and volunteered with the Harney, Md., fire department since he was 16.

Shirley and James Waybright filed the $1 million wrongful-death lawsuit in March 2004, alleging negligence by training officer Jeffrey Coombe, training academy leaders and the Frederick Board of County Commissioners.

The case moved to federal court in January 2005 after the Waybrights amended the lawsuit to allege Waybright was deprived of his life in violation of the 14th Amendment to the U.S. Constitution and a provision in the Maryland Constitution.

The 14th Amendment guarantees that no one shall be deprived of their life without due process of law.

The dismissal of constitutional claims – the ruling on which an appeal is being sought – left other issues still to be decided in Maryland state court.

In the wrongful-death action, the defendants have moved for dismissal on the grounds that, should Andrew Waybright have survived, he could have brought a workers' compensation lawsuit against the complex, Berman said.

Berman said there is no precedent in Maryland for a situation like this, but if the state court dismisses the action, the Waybrights will have no relief.

The Associated Press contributed to this article.