By GARRY RAYNO, InDepthNH.org
CONCORD — Legislative budget writers Friday approved changes to the Youth Development Center Settlement Fund program to align with legislation passed this year to make it more attractive to victims of sexual and physical abuse from about 1990 to 2000 at the Manchester facility.
The Joint Legislative Fiscal Committee was told to date, 632 claims have been filed through the settlement program and 200 have been resolved with the average settlement about $500,000.
State officials worked with attorneys for the victims to enhance the program to make it more attractive than going through a lengthy court process by increasing the categories of abuse and increasing the caps for egregious cases of abuse.
And the program has an option for a multi-year payout up to 10 years with a 5 percent premium to better protect the state’s solvency. Under the legislation passed this spring, the annual additional settlement money would be capped at $75 million a year for the next 10 years.
That would indicate the state believes about $750 million on top of the $160 million already appropriated for the fund will be needed or nearly $1 billion to settle the claims resulting from the years of abuse at the state-run facility.
Fiscal Committee Chair Rep. Ken Weyler, R-Kingston, was critical of some of the changes including offering compensation for solitary confinement.
“This really opens the door,” Weyler said, noting anyone in the men’s prison in solitary confinement could think they should be compensated.
“(If they start bringing) lawsuits, we are really in trouble,” Weyler said, “if they have been ‘tortured’ for four years in solitary confinement.”
But Attorney General John Formella reminded Weyler they were talking about compensation to someone who was a kid placed in the state’s care for rehabilitation, or to receive services or treatment, not an adult.
And Formella said someone would not receive compensation unless he or she was put in solitary confinement for an illegitimate reason or was repeatedly placed in solitary confinement.
Weyler also wondered why lie detector tests were not used routinely noting Formella has the authority to do so.
“Why don’t we use lie detectors more widely?” Weyler asked. “If we used lie detectors, we might eliminate a whole bunch of these people if they do not pass the lie detector test. It seems like it ought to be automatic.”
Formella said, “We try to balance the need for some level of verification with the need to recognize we are talking about individuals who were victims of sexual and physical abuse when they were children.”
If a victim goes to police and says they were abused as a child, they would not be put through a lie detector test, he noted, saying law enforcement has many other methods to verify a person’s testimony.
“It is not appropriate in this process,” Formella said, “this is not litigation with an in-depth investigation and discovery before you get to trial.”
It is a tradeoff, Formella said, there is not as much investigation and verification, but there is a cap of the damages you can get.
Referring to the trial of David Meehan, the first YDC victim to go to court, who was awarded $38 million by the jury, Formella said that shows where the damages could be as opposed to the settlement process. The state claims Meehan should only be awarded $475,000 under state law, which is currently being litigated.
Weyler said the Attorney General’s Office should emphasize during trial where the money is coming from, not from those accused of inflicting the abuse, but from the taxpayers of the state including the jury members.
Weyler said the accused abusers are probably collecting their state pensions and questioned why they had not been brought to trial. The state charged 11 former YDC employees with abuse, but one has died and another had the charges dropped.
To date none of the remaining nine alleged abusers have been brought to trial by state prosecutors.
Mark Knights of the firm Nixon Peabody, which represents most of the victims, said after the meeting: “This is not the first time Mr. Weyler has raised the idea of lie detector tests for claimants. However, the legislature expressly directed that the Settlement Fund process be conducted in a victim-centered, trauma informed way.”
Knights said a victim-centered process “does its best to avoid retraumatizing survivors of sexual and physical violence, so it does not start with a presumption that they are liars.”
“As Attorney General Formella correctly noted at the committee meeting, his office would never make the victim in a case they were prosecuting to undergo a lie detector test, and that approach isn’t even used in civil cases. There are other, more trauma informed ways of testing credibility,” Knights said.
Knights said he couldn’t say exactly how many YDC survivors there are but there are over 1,400 who have come forward already, and probably close to 2,000 if one takes into account the survivors who are represented by other firms.
Senate President Jeb Bradley, R-Wolfeboro, thanked all the people who worked to establish the fund and make changes in the last legislative session to entice more victims to go through the settlement process instead of the courts.
“This is a very difficult, sad and awful chapter in New Hampshire’s history,” he said, “and the trial showed how bad the abuse was.”
Both the original settlement bill and the one with changes last session worked “number one, to protect the victims because there are real victims here, victims of abuse in the state’s care,” he said, “and also to protect the long term financial viability of the state.”
He noted it is up to the administrator, former state Supreme Court Chief Justice John Broderick, to determine whether payments should be considered over a seven-to-10-year period.
Attorney Laura Raymond, who heads the settlement program for the Attorney General’s Office, said to date most victims considering long term settlements do not favor a 10-year pay out, but a shorter period.
Bradley noted questions about the cost of administering the program, but said Broderick’s office needs to verify claims and needs the staff to do that to both protect the victims and to vet the testimony.
“We need to move forward and approve the guidelines and get back to dealing with the 432 other cases before you,” Bradley said. “None of us wish to ever have had this happen. It is time to put this very sad chapter of New Hampshire history behind us.”
Criticism was raised by an attorney for some of the victims of the $2.3 million spent on consultants mostly for the Portland, Maine law firm of Verrill Dana which vets the abuse claims going through Broderick’s office as administrator.
To date that office has spent $4.7 million for settlements totaling about $180 million or about 2.6 percent.
The state has appropriated $160 million for the settlement fund and expects to appropriate $75 million annually for the next 10 years.
The process was halted earlier this summer as the fund was running out of money but has begun again.
The state faces from 1,300 to 1,400 lawsuits without the settlement process in place.
Garry Rayno may be reached at garry.rayno@yahoo.com.
