By DAMIEN FISHER, InDepthNH.org
With a state Supreme Court decision pending on the disputed $38 million verdict awarded to David Meehan, New Hampshire is now asking for a temporary pause on all of the other upcoming Sununu Youth Development Center abuse trials.
“Trying cases without any direction from the New Hampshire Supreme Court all but guarantees wasted resources preparing for trial, extensive post-trial motions, another appeal, and possibly a retrial,” Solicitor General Anthony Galdieri wrote in his motion.
The New Hampshire Attorney General’s Office has been trying to knock Meehan’s verdict down from the $38 million awarded by the jury last year to $475,000 based on a law that caps damages when the state is deemed liable for abuse.
The law in question in front of the New Hampshire Supreme Court limits damages to $475,000 per incident of abuse.
“Under the State’s theory, a child raped 200 times by State employees would be limited to recovering only $475,000. In other words, the State would get a pass on 199 rapes—an absurd result,” wrote W. Daniel Deane, a lawyer with Nixon Peabody and a member of the survivor’s legal team.
But lawyers for the YDC survivors say the state is simply engaging in delay tactics to prolong the suffering of the men and women who were raped by state employees when they were children.
“The State’s purpose is clear — delay and burden. The State seeks to break Plaintiffs’ ability and resolve to pursue relief through a torpid and costly war of attrition,” wrote Deane.
Since the civil lawsuits were first filed in the YDC scandal, 45 of the survivors have since died waiting for their cases to be heard, Deane wrote, as have many of the witnesses involved in the claims.
“They will never see their day in court,” Deane wrote. “The longer Plaintiffs wait for trials, the more their claims age in ways that prejudice their ability to prove their claims.”
It’s not just the survivors who are losing out on their day in court. Two of the alleged abusers can no longer challenge the charges brought against them. Since the scandal first came to light, accused YDC staffer Gordon Thomas Searles died and accused staffer Frank Davis has been deemed incompetent.
The state’s motion to stay all of the scheduled trials comes days after lawyers for the survivors filed a proposed trial schedule that will see cases heard in Rockingham Superior Court for the next two years. The proposed schedule includes individual trials and trials featuring consolidated claims of multiple survivors involving common time periods in YDC, cottages, and/or alleged abusers.
“As the Court has previously observed, if these cases were to proceed individually at their current pace, Plaintiffs may be denied justice for decades,” Deane wrote in his motion seeking the scheduler’s approval.
The trial schedules do not prevent the state from negotiating settlements with the survivors. In fact, Judge Andrew Schulman wrote last year when he ordered the sides agree to a schedule, that setting dates for the cases could help push the sides to resolve the cases out of court. Last week, it was learned YDC survivor Michael Gilpatrick accepted a $10 million settlement offer from the state. Gilpatrick’s civil trial was scheduled to start earlier this month, but the state offered the settlement and an apology to Gilpatrick during mediation sessions held in January.
The next scheduled YDC civil trial is set to start in May involving Natasha Mansuell, who claims she was raped by staffer Victor Malavet in 2001 starting when she was a 15-year-old detainee. Malavet is one of 11 men indicted for the YDC abuse and the first to face a jury in a criminal trial. That trial ended with a hung jury in September, and the state plans to bring the charges before a new jury at a new trial later this year.