On civil side of Boston Marathon bombing fallout, lawsuits absent

 Victims and their families largely resorted to One Fund for help

By Brandon Gee
The Daily Record Newswire

BOSTON — If paramedics were the leadoff hitters, followed in the lineup by surgeons and investigators, then lawyers have been batting cleanup as the city continues to recover a year after the Boston Marathon bombings.

But while attorneys have been intimately involved in helping both victims and affected businesses pick up the pieces, something one would expect to see after a tragedy with multiple casualties, hundreds of injuries and huge economic losses has been largely and notably absent: lawsuits.

There’s the criminal case against alleged bomber Dzhokhar Tsarnaev, of course, and additional criminal indictments against people connected to him and others who allegedly tried to swindle the One Fund Boston victims’ compensation program.

Also, the New York Post and conservative media personality Glenn Beck have been sued for defamation by those who they erroneously suggested played a role in the bombings.

And Gun Rights Across America unsuccessfully sought a temporary restraining order against the town of Lexington when it suspended the group’s permit for a rally that was to be held on the same day a manhunt for the Tsarnaev brothers shut down the region and taxed Lexington’s police force.

But that appears to be it.

“Individual victims and their families have largely — if not exclusively — resorted to the One Fund for help with medical bills and other losses,” said Christopher M. Morrison, of Jones Day in Boston, who noted that similar funds were set up in Oklahoma City, in Sandy Hook and after 9/11. “In each of these cases, people suffered immense losses, but there were few lawsuits by individual victims or their families because there was no meaningful hope of any recovery against the responsible parties.”

The same can be said for Tsarnaev, and no other “responsible parties” have been identified, said personal injury lawyer Eric J. Parker of Boston.

“I know that you don’t always know everything on day 1,” said Parker, pointing out that there’s a three-year statute of limitations on personal injury claims in Massachusetts. “But, given what we know about how this crime was perpetrated … I have not seen one piece of evidence that would suggest liability.”

One Fund Boston distributed $61 million to 232 claimants within three months of the bombings and is sitting on another $17.5 million that it is still deciding how to allocate. In addition to the absence of any clear targets, James D. Smeallie said, the generosity of donors has probably had a lot to do with lessening the desire to litigate.

“The One Fund is there for the victims and, if the One Fund wasn’t there, other than the bombers themselves, you’d have to start thinking pretty creatively about who you would sue,” said Smeallie, of Holland & Knight in Boston. “It never surprises me when lawsuits are brought that you wouldn’t have expected, but given how generous people were in funding the One Fund, I can’t say I’m surprised [that there haven’t been suits].”

There’s also the challenge of proving any entity could reasonably be accused of premises liability or negligent security along the length of a 26.2-mile race on public thoroughfares, or that anyone could or should have known where the bombs would be placed.

The race organizer, the Boston Athletic Association, quickly tapped WilmerHale’s William F. Lee for potential attack-related legal complaints, but the organization said in a statement it has not been confronted with any litigation to date.

Even if a viable claim could be made against the BAA, its damages as a charitable organization would be capped at $100,000. A Marathon sponsor conceivably could be sued if it had control over the planning, operation or security of the event. But a spokesman for lead sponsor John Hancock said the company “is not aware that there have been liability claims involving any of the Marathon’s sponsors, including Hancock.”

One Fund critics

A dearth of claims, however, hasn’t meant an absence of disputes since last April 15. Sniping between some lawyers and One Fund Boston, for instance, has grown increasingly barbed.

The Massachusetts Bar Association has been particularly critical of the fund, accusing it of insensitivity toward sensory and cognitive injuries and an overreliance on hospitalization and length of hospital stays as measures of injury severity in determining the size of payments.

MBA President Douglas K. Sheff said that while a class of traumatic brain injuries known as diffuse axonal injuries can destroy a person’s life, they are so microscopically small that they won’t show up on an MRI or CT scan.

Victims also won’t necessarily lose consciousness or even be hospitalized, said Sheff, who claims one woman who suffered a traumatic brain injury at the Marathon finish line is “losing everything” but only received the smallest One Fund award: $8,000.

“When we go to the One Fund, it’s quite easy for folks who have lost a limb to get recovery,” Sheff said. “There’s a bias. There’s always been a bias against people with traumatic brain injury because you can’t see it. … It’s all horrible and … everyone who has been hurt deserves an amount that could never be fulfilled. But I would rather lose a foot than my mind. You can’t put a prosthesis on your brain.”

But hiring staff with the expertise necessary to scrutinize such claims, and the advanced diagnostic tests accompanying them, is something One Fund Boston President James D. Gallagher is flat-out unwilling to spend donor dollars on.

“My message is this is a gift, not insurance,” said Gallagher, general counsel at John Hancock. “Lawyers need to stop thinking of this as an insurance program. It is not. I also think agitating expectations about what the fund can do is not helpful to the broad base of survivors here.”

Gallagher said One Fund is working with victims and medical advisers to determine how to make a second round of distributions in July. In addition to providing more money for the ongoing needs of victims already compensated, Gallagher said, One Fund may also broaden the category of injuries it will compensate. He said the fund won’t back down, however, from using simple, objective standards such as hospital stays to make decisions.

“Needs such as hearing damage, mental health issues — those are very subjective injuries, and it’s going to be hardest for us to get at that. We think we can get at that by funding programs,” he said.

Gallagher noted services available from other sources, including the Massachusetts Office for Victim Assistance, which has received an $8.3 million grant from the U.S. Department of Justice. The DOJ grant provides Marathon bombing victims with services such as mental health support, hearing loss treatment, traumatic brain injury assistance and other rehabilitative therapies, according to spokesman Christopher Klaskin.

Klaskin said the majority of victims served “sustained injuries that have manifested or worsened over time and did not require medical treatment immediately following the blasts.”

Insurers stand firm

Insurance companies also have failed to make everyone happy in the months following the bombings.

According to data collected by the Massachusetts Division of Insurance, as of Jan. 24, 207 bombing-related insurance claims had been filed. Most were for business interruption, but there also were dozens for commercial and residential property damages. Eighty-five of the claims were closed without payment, 113 were closed with payment, and the remaining claims were still open as of Jan. 24.

Thomas A. Mackie of Boston represented a retailer pro bono through the Boston Bar Association’s Marathon Assistance Project. The business filed claims for two of its locations.

“They put in a claim with The Hartford Insurance Co. for business interruption as a result of both the Marathon bombing as well as the shutdown in Cambridge during the manhunt,” Mackie said.

Both claims were denied on what Mackie called “an overly technical reading of the insurance policy.”

For the retailer’s Back Bay location, Hartford found there was no physical damage within a certain proximity of the business, even though it was forced to close for more than two days, Mackie said. For the retailer’s Cambridge location, the insurer said that while the actions of civil authorities during the manhunt interrupted business, the claim hadn’t met a 72-hour threshold.

Insurance claim denials could give rise to lawsuits against insurers, but no one interviewed by Lawyers Weekly was aware of any such complaints filed yet.

“In some cases, litigation about insurance coverage may still emerge, but claims and coverage decisions in these kinds of circumstances could be complex depending on the facts of each claim, and final decisions about coverage may still be some time away,” said Jones Day’s Morrison.

Regardless of the outcome, Mackie said he “really appreciated the opportunity to be able to do it,” a sentiment shared by many lawyers who assisted individual victims and businesses pro bono in the aftermath of the tragedy.

Adam C. Ponte, an associate at Kenney & Sams in Southborough, provided pro bono assistance to a woman injured at the finish line who stayed overnight at the hospital and suffered hearing damage.

“We treated it like an assessment of damages motion to the court,” Ponte said of the One Fund application he prepared for the woman. “I drafted basically a memorandum summarizing her experience, how it will affect her work and family life, medical records, future medical expense and long-term prognosis.”

The woman ultimately received $125,000.

Hanover’s Amy L. Lipman-White also was paired with a victim through the BBA.

“The case I handled was an individual who had worked on the Boston Marathon team as an athletic trainer … for more than 20 years, and afterwards he had some real trouble understanding what had just happened,” she said.

The man was unable to keep working full time, fell behind on his rent, and was facing eviction. Lipman-White went to court with him multiple times and negotiated a resolution with the landlord. She recently learned that her client has recovered enough that he plans to return to his decades-long post at the finish line again this year.

The desire to help was so strong within the legal community that even with all the possible needs of those affected by it — One Fund applications, tax repercussions, insurance and employment issues, disability considerations — a surplus of lawyers stepped forward to volunteer.

Both the Massachusetts and Boston bar associations report attorneys still on waiting lists to provide pro bono assistance.