By DAMIEN FISHER, InDepthNH.org
In an effort to avoid paying the $38 million awarded to David Meehan by a jury last year, the New Hampshire Attorney General’s Office argues that the 200 rapes Meehan suffered as a child, and the subsequent decades of coverup by state employees, is no different than one oil spill caused by negligence.
Meehan is the first, and so far only Sununu Youth Services Center – then called YDC – sexual abuse victim to get a jury trial in New Hampshire.
Attorney General John Formella sent his office to the New Hampshire Supreme Court to knock Meehan’s award down to $475,000, while Meehan’s lawyers argue the law Formella is using to justify the lower damages award is being deployed unconstitutionally given the horrific abuse and the systemic coverup.
The Attorney General’s Office filed its brief with the Supreme Court last month, arguing, in part, that the years of sexual abuse, physical abuse, and torture that Meehan was subjected to by state employees is legally the same as an oil spill caused by a negligent state employee.
“This is no different from a hypothetical situation where the State negligently causes a massive oil spill. This negligence may injure numerous separate individuals, may cause both personal injury and property damage, and may result in millions of dollars in damages. But the resulting claims (i.e., the causes of action seeking monetary damages from the State) would nevertheless arise out of one incident, the oil spill,” the Attorney General’s Office argued in its brief.
As soon as the jury announced its verdict last year to grant Meehan a record setting $38 million in damages, Formella issued a statement that he would seek to apply the state law which caps damages available to people who are injured by the state to $475,000 per incident. According to the Attorney General’s argument, all of the abuse Meehan survived was part of one, overall incident of negligence, according to the evidence Meehan presented during last April’s trial.
“Plaintiff focused his case theory and the evidence he presented on showing systemic mismanagement of the YDC from the time he entered until the time he left and emphasized the individual acts of abuse inflicted upon him by individual YDC staff members during that time,” the Attorney General’s brief states. “A reasonable jury could have concluded that DHHS’s systemic mismanagement of YDC (failure to implement the identified policies and ombudsman system) constituted a single incident from which Plaintiff’s proven claim or claims arose.”
Meehan was awarded $18 million in compensatory damages for his pain, suffering, and loss of enjoyment in life. He was also awarded $20 million in enhanced damages as the jury found the state engaged in “wanton, malicious, and oppressive conduct” by abusing its power in permitting the sexual assaults, excessive solitary confinement, and physical abuse.
Months of legal wrangling followed in Rockingham Superior Court before Judge Andrew Schulman ruled in November that he is constitutionally required to uphold the statutory cap, even though he believes it is an unjust outcome for Meehan.
“The court continues to believe that, if the jury accepted the gist of the plaintiff’s testimony, entering a judgment in the amount of the statutory damages cap will amount to a miscarriage of justice,” Schulman wrote.
Members of the jury were reportedly shocked by Formella’s announced plan to knock down the $38 million award to $475,000. At least two members of the jury reached out to Meehan’s lawyer, Rus Rilee, within hours of Formella’s statement.
“I’m so sorry. I’m absolutely devastated. We had no idea. Had we known that the settlement amount was to be on a per incident basis, I assure you, our outcome would have reflected it. I pray that Mr. Meehan realizes this and is made as whole as he can possibly be within a proper amount of time,” the foreman wrote to Rilee.
Meehan’s legal team, led by Rilee and David Vicinanzo of Nixon Peabody, argue New Hampshire’s statutory cap is an unconstitutional law that allows state actors to escape accountability when they violate someone’s constitutional rights. The cap is part of the state’s sovereign immunity legal framework meant to protect New Hampshire taxpayers from paying large damage awards in civil litigation.
“In this case, applying the statutory sovereign-immunity damages cap to limit Meehan’s recovery from the State violated his constitutional rights to equal protection, a fair remedy, and an accountable government under part I, articles 2, 8, 12, and 14 of the New Hampshire Constitution,” Meehan’s team wrote in their June brief. “Because the jury found that the State’s conduct was wanton, malicious, or oppressive, no limitation on liability was constitutionally justified.”
Formella has no problem exceeding the $475,000 cap for other YDC victims. Last year, his office approved a $4.5 million settlement for survivor Natasha Maunsell, and $10 million for survivor Michael Gilpatrick.
Both Maunsell and Gilpatrick reached their agreements directly with the Attorney General’s Office, and not through the state’s YDC Settlement Fund program. Formella is now deeply involved in the YDC settlement process, as changes to state law give him veto authority over any settlement agreements reached through the Settlement Fund process.
The changes to the Settlement Fund law are being challenged in court by survivors. The survivors say they only agreed to halt their lawsuits and apply for a Settlement Fund resolution because they believed the Fund Administrator, John Broderick, was an independent and neutral judge.
The changes pushed by Gov. Kelly Ayotte and Formella this year to take away the independence of the administrator, and give power to Formella to reject settlement agreements. Broderick, the retired New Hampshire Supreme Court Chief Justice, left his position in July, saying that the job he took as the neutral and independent administrator no longer exists.
Meehan’s awards appeal does not yet have a date for oral arguments before the Supreme Court.