Attorney Dave Vicinanzo says he will advise his nearly 500 clients alleging abuse while in state custody to go to court rather than use a proposed $100 million settlement. He told the Senate Judiciary Committee in April that the caps on payments need to be higher and the state must allow claims for emotional abuse. (Screenshot)
This story was updated May 2, 2022 at 4 p.m. to more fully explain the position of the New Hampshire Association for Justice.
As the House did in March, the Senate on Thursday gave its overwhelming support to a bill that would create a $100 million settlement fund for the hundreds of people who’ve said they were sexually or physically abused as children while held at the state’s former Youth Development Center. But it’s uncertain how many victims will use it.
The lawyer whose team is representing nearly 500 people with abuse claims says he’ll recommend his clients seek justice in court instead because he believes a jury will treat them more fairly than the settlement process envisioned in House Bill 1677.
Among attorney Dave Vicinanzo’s complaints are the caps on claims: $1.5 million for sexual abuse and $150,000 for physical abuse, and the exclusion of emotional abuse.
“It’s our view that (the caps) are artificially low,” Vicinanzo told the Senate Judiciary Committee earlier this month. “I’m not surprised, I suppose. Saving money is always a good thing for a state, except when it’s not the right thing to do. And it’s not the right thing for the state to have allowed the abuse of these kids – to have permitted it, to have sponsored it for so long and not step up and actually do right by those kids.”
Joining Vicinanzo in raising concerns are the and two national groups dedicated to protecting the legal rights of children who’ve been abused, CHILD USA and CHILD USAdvocacy.
Marissa Chase, executive director of the New Hampshire Association for Justice, told the committee her association also believes the caps are too low and could discourage participation, especially if a plaintiff won a case filed in federal court, where verdicts are typically higher than in state courts.
She said the association would also like to see the definition of sexual abuse expanded to include, for instance, a child who had been forced to watch sexual acts. And payments to victims should be structured to spare them a tax penalty, she said.
In addition to increased caps and the inclusion of emotional abuse, they want victims to have more time to file claims, and the right to go to court if they disagree with the state’s settlement. Under the bill, victims cannot file a claim or know what the state will offer them until after they’ve waived their right to file a lawsuit.
In supporting the bill Thursday, Sen. Donna Soucy, a Manchester Democrat, acknowledged those concerns and urged the Senate Finance Committee, which takes up HB 1677 next, to reconsider the caps and inclusion of emotional abuse. Otherwise, she said, “I don’t think it will get enough people to engage in settlement.”
It doesn’t appear the Attorney General’s Office, which worked with lawmakers to write the bill, or Gov. Chris Sununu will join Soucy in lobbying for those changes.
“The (Department of Justice) continues to believe that the caps provided for in the current draft of the bill are appropriate, as they were arrived at and recommended based upon extensive verdict and settlement research that comprises a national sampling of verdicts covering approximately 5,000 claimants,” department spokesman Michael Garrity said in a statement Friday.
In an email Thursday, Sununu spokesman Ben Vihstadt said: “The governor has been supportive of this fund before it was even a piece of legislation, and appreciates the work the attorney general did in striking the right balance while dedicating a historic amount of money – $100 million – to help the victims of this tragedy.”
Attorney General John Formella remains opposed to expanding the fund to emotional abuse, saying those claims are less clear cut and would require more in-depth investigation and scrutiny than is laid out in the bill. Including them would be counter, he said, to the “more straightforward, trauma-informed, and victim-centered process” envisioned.
Designing a ‘victim-friendly’ process
The state has indicted 11 former Youth Development Center employees accused of acts of abuse against 20 individuals, Formella told the Senate Judiciary Committee earlier this month. He said the state’s investigation continues.
Nearly 450 people have sued the state, claiming they were abused while at the detention center. Vicinanzo, of Nixon Peabody, an international firm with an office in Manchester, and Bedford attorney Rus Rilee are representing the vast majority. Vicinanzo put the number at 500 last week and said the list is growing.
Formella told the committee his office is committed to creating a victim-friendly settlement process that is a “gentler” alternative to traditional litigation.
“I want to acknowledge just the incredibly difficult, emotional, and complex issue we’re here to discuss,” he said. It is difficult to really comprehend what some of these victims went through. And my team that I have at the Department of Justice certainly applauds their courage and coming forward to tell their stories and to seek justice. And we sincerely hope that this bill can be at least a way away for these victims to either begin or continue the healing process.”
Under the bill, an administrator appointed by the state Supreme Court would process settlement fund claims. That person would be someone the state and plaintiffs’ attorney had agreed upon or, if they couldn’t agree, someone each proposed.
But it would be the attorney general who would design the settlement process, including what the state would pay for different types of abuse. The office would be required to make a “good faith effort” to collaborate with plaintiffs’ counsel before presenting a proposed plan to the Joint Legislative Fiscal Committee for approval.
Claims would be accepted between Jan. 1, 2023, and Dec. 31, 2024.
Victims who had experienced sexual abuse or a combination of sexual and physical abuse would be eligible to receive up to $1.5 million, depending on the nature and duration of their abuse and aggravating factors such as unlawful confinement. Those who suffered only physical abuse could receive up to $150,000. No victims, including those who receive no money, would be allowed to challenge the settlement in court.
The state’s investigation would have to be trauma-informed, respectful, and dignified “to the greatest extent possible,” the bill states.
Victims awarded settlements could choose to receive the money at once or over an extended period of time. If the $100 million settlement budget proposed in the bill does not cover all claims, Formella could ask the Legislature for more money.
Close, but flawed
Vicinanzo has told lawmakers the bill would need only a few changes to satisfy his concerns. His complaints line up with those raised by CHILD USA, and CHILD USAdvocacy.
They want the caps for all claims of abuse increased, saying existing state law allows plaintiffs who sue the state to collect more than what the bill proposes. Vicinanzo has proposed a $4.5 million cap for all claims.
They also say emotional abuse cannot be excluded.
“(Child sexual assault) is devastating to New Hampshire’s children, and the Legislature’s response should be tailored to all of its children,” attorneys for CHILD USA and CHILD USAdvocacy wrote in a letter to the Senate Judiciary Committee. “HB 1677 is an incomplete response to the enormous, ongoing problem in New Hampshire, and creating a compensation fund limited to (child sexual assault) victims and victims of physical abuse of the YDC negates the experiences and trauma of thousands of other victims in New Hampshire.”
Allowing victims just two years to file a claim is also unfair, they wrote: “Disclosure of (child sexual assault) to the authorities for criminal prosecution or an attorney in pursuit of civil justice is a difficult and emotionally complex process, which involves the survivor knowing that he or she was abused, being willing to identify publicly as an abuse survivor, and deciding to act against their abuser.”
They pointed to a study that shows 51 percent of survivors of abuse in the Boy Scouts of America disclosed their abuse at age 50 or older.
Vicinanzo told the committee that without those changes, he’d expect 5 percent or fewer of his clients would use the settlement process. The rest would go to court, he said.
“And I would just also point out that the state doesn’t really want to litigate these things,” he said. “First of all, it’s a steady drumbeat of negative publicity every time these cases are filed. … And who knows what a jury is actually going to do.”
Formella has said he believes the bill’s existing caps are an appropriate balance of the state’s obligation to victims and his office’s obligation to use taxpayer dollars mindfully.
“I really do believe that passing this bill in some form is the right thing to do,” he told the committee. “I think it’s the right thing for the state. Passing this bill reflects, I think, what should be the state’s policy position, which is that it’s better to direct resources towards healing and compensation than towards expensive litigation if we can avoid it. It’s also just the right thing to do to do right by the victims.”
Following Thursday’s vote, Vicinanzo said: “We have submitted to the Senate what the few changes are that would make this a truly victim-friendly bill, and we remain hopeful that the Senate will actually hear the voices of those who have been harmed. If the measure of success is the number of people who use (the settlement fund), this doesn’t look very promising.”
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