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.”
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.