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Victim funds create legal, public policy issues

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Editor's note: This story has been corrected.

Within weeks of the Indiana State Fair stage collapse last year that killed seven and injured dozens, a process developed that the state and victims’ attorneys credit with aiding victims as quickly as possible and in almost all cases avoiding litigation.

But such programs also operate in ways that raise legal and public policy questions, said Kenneth Feinberg, the foremost authority on victim compensation funds.
 

feinberg-15col.jpg Kenneth Feinberg, left, meets with the media Sept. 11, 2012, before he and Indiana Attorney General Greg Zoeller, right, spoke at I.U. Robert H. McKinney School of Law on victim compensation. (IL Photo/ Dave Stafford)

Feinberg spoke at Indiana University Robert H. McKinney School of Law on Sept. 11. He reflected on the benefits and challenges that arose from handling the compensation fund for victims of the terrorist attacks in 2001 and from advising Indiana officials as they began the task of delivering aid for those killed or injured by the stage collapse.

“We avoided any discussion of the moral worth of human beings,” Feinberg said of the initial phase of State Fair victims’ compensation. That’s contrary to tort law, in which such things as future earnings would result in different judgments for different claimants, he said, based on such factors as loss of potential earnings.

“You can’t come up with a compensation program that promotes divisiveness among the very people you’re trying to help,” he said.

Along with Feinberg, Indiana Attorney General Greg Zoeller and other lawyers involved in the compensation of victims of the stage collapse spoke at the law school. Feinberg shared his experience with the 9/11 and State Fair funds and in administering compensation for victims of the BP Gulf oil spill and the Virginia Tech campus shootings, among others.

Zoeller described officials “staring into the abyss” in the wake of the State Fair tragedy, with little experience to navigate disaster compensation. He praised Feinberg for volunteering to help guide the process when contacted.

“Ken said, ‘I wouldn’t wish this on anyone, what you’re going through,’” Zoeller recalled.

Feinberg said special funds should be considered only in the rare events in which there is a groundswell of public support to get aid to victims of tragedies or calamities.

In such cases, Feinberg said, funds are created on a consensus that, “We ought to be thinking outside of the box when it comes to victims’ compensation. … It is rare, indeed, when you think outside of the box.”

Feinberg raised questions about the advisability of such funds and said they lead to public policy questions about equitable justice. “Bad things happen to good people every day, and you don’t have access to an accelerated legal system,” he said.

“Be very careful about replicating these funds. Be careful about setting up programs where you’re going to require people to waive their right to sue. There are all sorts of challenges to the legitimacy of these programs,” he explained.

Feinberg assisted Zoeller and other officials in devising a plan to distribute funds up to the state’s tort claim cap of $5 million. The plan laid out specific and equal compensation for classes of victims. According to the AG’s office, the estates of those who died received at least $300,000. A victim who suffered paralysis received at least $500,000, and other injured victims would have up to 65 percent of their medical bills compensated. The initial fund was distributed to 62 claimants last December.

“We would probably still have the money locked up today if (litigation) was the process,” said Tony Patterson, partner with Parr Richey Obremskey Frandsen & Patterson LLP in Lebanon, who represented victims of the stage collapse. Patterson joined Feinberg and Zoeller in a panel discussion at I.U. McKinney School of Law that retraced the early steps of compensating victims.

Panelist Paul Mullin, a partner with Lewis & Wilkins LLP, said plaintiff attorneys had mixed reactions to initial overtures from the AG’s office to approach the $5 million tort cap in a conciliatory, settlement fashion. Mullin represented the state as a special deputy attorney general for purposes of settling the tort claims in 2011 and arbitrating the supplemental fund claims.

Responses ranged from, “‘This is genius’ to ‘this is the worst idea I ever heard,’” he recalled. But when Feinberg came aboard, so did nearly everyone else.

“It’s a very therapeutic process” for victims, Patterson said. “It’s much better to have a process that involves settlement.”

But there soon also was a reckoning that the $5 million cap on state liability would be insufficient to address the mounting claims. Mullin said that months after the collapse, it was clear that victims’ medical bills to date had surpassed $4.5 million, and that didn’t account for those who would need long-term care. “It’s safe to say that number has doubled or quadrupled or somewhere in between,” he said.

The Legislature passed an additional one-time appropriation of $6 million for victims. That raised the compensation to a total of $700,000 for estates of individuals who died and paid 100 percent of medical bills not covered by insurance for non-paralyzed victims.

An arbitration panel calculates payments for victims who were permanently injured and paralyzed and decides other claims, according to Zoeller’s office.

The AG’s office said 57 of 62 claimants have agreed to the settlement terms for the $6 million pool, and the state hopes to pay those claims by November, ahead of the January deadline imposed by the Legislature. The remaining five claimants still may sue the state, and any of the 62 claimants may sue private parties after two major defendants withdrew their multimillion-dollar settlement offer in August.•

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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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