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No Clear Targets For Civil Suits In Marathon Bombings

BOSTON — Victims of the Boston Marathon bombings will see final rules next week for handing out the almost $30 million so far donated to The One Fund. But the fund’s administrator, Kenneth Feinberg, was clear during meetings this week about its limitations.

“When you look at the horror that happened here in Boston — the number of deaths, the number of horrible physical injuries, the number of people still in the hospital today — I assure you there isn’t enough money,” Feinberg said.

So where might victims with outstanding medical or disability expenses turn?

In conversations with more than a dozen attorneys, no one knows of a marathon civil suit yet. But attorneys are considering possible targets.

There are the Tsarnaev brothers, of course. Attorneys write them off quickly because they don’t have any money.

“You’ll see creative lawyers go after, for example, the glassmakers to say the glass should have been more shatterproof, or the concrete makers to say it shouldn’t have exploded the way it did.”
– Christopher Morrison, partner at Jones Day and co-chair of the Boston Bar Association’s litigation section

Next might be government agencies. Attorney Brian Cunha said lawyers will look at whether they could persuade a jury that FBI agents, for example, ignored warning signs about the Tsarnaevs.

“What did they do, prior to the incident, in terms of looking at these guys as a security risk and the reasonable foreseeability of these fellows committing this type of act,” he said.

Government agencies are generally immune from civil lawsuits. But there’s an exemption, Cunha explained, if attorneys can prove investigators’ actions were objectively unreasonable.

“I guarantee you that that’s one of the fertile areas that all of the plaintiffs’ lawyers are going to be looking at,” he said.

Other attorneys disagree, saying that from what we know now, the conduct of federal investigators could not be considered unreasonable with regard to the Tsarnaevs.

The city of Boston and its police department are also typically immune from civil lawsuits, said Christopher Morrison, a partner at Jones Day and co-chair of the Boston Bar Association’s litigation section.

“Generally in Massachusetts, we insulate police services, certainly municipalities, for any of these kind of claims, unless it’s the most reckless of conduct,” Morrison said. “And certainly there’s no evidence that there was that kind of conduct here.”

Morrison said the Boston Athletic Association, the organization that manages the marathon, is a nonprofit whose liability is capped. Outside security firms could be liable. The marathon’s sponsors, including John Hancock, which has committed $1 million to The One Fund, might be targets. Lawyers may go after fireworks or BB manufacturers.

“And you’ll see creative lawyers go after, for example, the glassmakers to say the glass should have been more shatterproof, or the concrete makers to say it shouldn’t have exploded the way it did,” Morrison hypothesized. “You could see somebody, for example, go after the people who made the pressure cookers.”

Such cases often fail, he said, because attorneys can’t prove that victims’ injuries are directly related to a manufacturer’s failure.

The general sense among trial attorneys in Boston, at this early stage, is that there won’t be many civil suits stemming from the marathon bombings.

“There is not a clear sense of wrongdoing or negligence on the part of any identifiable group or individual,” said Eric Parker, managing partner at Parker Scheer, “and in the absence of that I don’t see any viable claim.”

And if attorneys do file suits, they may face skeptical juries.

“I think it would be darn hard to get a jury to find liability here,” said Steven Subrin, who teaches civil procedure at Northeastern School of Law.

Subrin bases that thought, in part, on the pride many potential jurors have about how the city, health care teams, police and marathon organizers responded to the explosions.

Boston College law professor Robert Bloom agrees, but said that in several years, by the time a lawsuit reaches a jury, the ongoing challenges of victims may prevail.

“The positive feelings that we all have toward law enforcement and the various folks that ran the marathon would be dissipated by seeing someone terribly injured by what this horrible event has done to their lives,” Bloom said. “But whether that person can make out a case is a whole other matter.”

Boston Marathon victims will not have to choose between bringing a lawsuit and accepting money from the One Fund. That was the case for victims of the Sept. 11, 2001, attacks. But Feinberg, who administered the 9/11 fund as well, said that in Boston, money will be distributed with no strings attached.

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  • crescentfang

    Terrorists aren’t bad enough, now we will also have to deal with a plague of lawyers as well? Since when is a criminal act the fault of someone other than the criminal?

    • http://www.facebook.com/walter.ziobro.5 Walter Ziobro

      “a plague of lawyers”

      Is that a recognized collective noun?

      If not, it ought to be.

      • http://www.facebook.com/futo.buddy Futo Buddy

        i think the proper one is a clusterf*** of lawyers

  • David F

    It’s really sad that there are unscrupulous lawyers out there already trying to figure out who to sue so that they can make a few dollars off the tragedy of the bombing. Since the only people who actually are responsible have no money, some unethical lawyers will hope to drag those innocent of wrong doing through civil trials.

  • Christian Humanist

    Everyone does not get compensated when bad things happen. Every day people are hurt, crippled, killed. Lawyers are scum who seek to enrich themselves by trying to find someone to sue even though it makes no sense. In this case victims are going to be generously compensated. And they all have medical insurance (this is MA after all, where insurance is required. So any lawsuits are about lawyers, not about victims.

  • http://www.facebook.com/futo.buddy Futo Buddy

    too bad it was a broke teenager who did it. maybe we can blame bloomberg somehow, he has the bucks

  • http://www.facebook.com/people/Cert-IsGood/1176533814 Cert IsGood

    There is sufficient money.. Why is there any obstacles for hospitals not participating in the charity effort for the unfortunate victims ?? Can not hospitals come forward and provide free treatment..? The medical profession is so critical for human life and yet people practicing it are like leaches spreading misery… Its disgusting to see how American Medical profession treats humanity…Shame on them…

    • Cp3n15

      Umm… Doctors do pro-bono works all the time. Just look at Doctors Without Borders or how many uninsured patients hospitals take in and treat yearly. In addition many volunteered their extra hours or the victims and are continuing to do so.

      Answer: hospitals cannot provide completely free treatment. Any hospital or company in the service sector expects X amount of patients/client per year and will hire N amount of care providers such that N/X is a number that ensure high quality care. If there are suddenly 500 new cases that may last 5+ years (rehabilitation and PSTD) then they’ll have to hire extra staff with specialties to treat these. The staff need to be paid their worth otherwise they will not accept the job offer.

      –Why not take a loss loss for the cause? Answer: no business nor individual will take a loss for the cause unless compelled by a religious motivation. Cert IsGood will not take out a 20k loan and donate it to the Boston One fund and then have to repay it back Principal + Interest. The same behavior can be expected from care providers individually or collectively. Only religious organizations will go to the Red because they believes that they will be paid by their higher power.

      —-Bottom line: health care provides volunteers their time/money just like the rest of the “concerned population.” Beyond that don’t ask for things that you yourself is not willing to do.

  • disqus_k3oycamN0W

    WHAT ABOUT A SUIT AGAINST THE PERSON WHO INVITED THE CURSED FAMILY TO COME TO AMERICA AND THEN STAY AS ILLEGAL IMMIGRANTS (their uncle?), What about Immigration service official who granted this illegals asylum (as if they are political refugees) and all the welfare benefits that come with refugee status ? What about politicians who decided that chechens are in a category of political refugees (Clinton called them “freedom fighters” – and that after hundreds of hospital patients were killed by them in 1995 in Budennovsk in Russia, but before hundreds were killed in the school in Beslan, and hundreds killed in attacks similar to Boston marathon). I would sue Clinton in the first place.

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