Monday, July 22, 2013

The Last Chapter in the Crowley Prison Riot Litigation

by Bill Trine

The Fall 2012 issue of The Warrior magazine (pages 10-14) included an article on the litigation surrounding The Crowley Prison Riot and the evils of the private prison system.  I described the consolidated individual lawsuits brought by over 200 inmates who were non-participant victims of the Crowley County Correctional Facility (CCCF) prison riot in July 2004. The lawsuits were finally settled on an individual basis two weeks before the scheduled 25-week trial was to commence on March 11, 2013 against Corrections Corporation of America, the largest private “for profit” operator of prisons in the United States.

Many of you followed this litigation with some interest – perhaps because of the length and complexity. The lawsuits were filed individually (not as a class action) against CCA and individual employees, alleging State tort claims. We were prohibited from pursuing §1983 claims in State or Federal court, because none of the inmates had complied with the PLRA notice requirements and their cases would have been dismissed. Class action certification was highly unlikely and also not desirable. Colorado “tort reform” greatly restricted damages with abolition of joint and several liability, caps on non-economic and punitive damages, and permitting CCA to designate the rioters as nonparties at fault to diminish or eliminate any damage award. We claimed that CCA’s negligence was a cause of the riot.

So, with that background, we were in the appellate courts five times resulting in two published opinions; defended the depositions of 126 inmate/clients; took the depositions of 30 CCA employees; and reviewed over 150,000 pages of documents produced by CCA, the Colorado Department of Corrections and the Inspector General. Multiple motions were filed resulting in three interlocutory appeals, as well as 13 motions in limini filed shortly before trial. But how did we start with nearly 240 plaintiffs and eight years later end up with only 193 who received settlements? During those years several clients died; some were released and became homeless, and could not be located; and some did not respond to discovery requests or court orders and were dismissed. Only non-economic damages were claimed and those damages do not survive death in Colorado.

The Settlement Process
An early settlement of individual cases was impossible. CCA filed motions to dismiss all cases, claiming that the plaintiffs were required by Colorado law to exhaust remedies before filing suit. The trial court granted the motions, dismissing all cases, and was then reversed by the appellate court – which made new law favorable to prisoners’ rights; however, this delayed the litigation for two years. After preliminary discovery, I evaluated each clients non-economic damages consisting of fear, pain and suffering, mental anguish, etc. There were no viable economic claims for lost wages or medical expenses. Individual demands were then made for settlement in varying amounts on condition that there would be no confidentiality agreement.

CCA’s response was the filing of formal offers of settlement under the rules for $250.00 per inmate, conditioned on a confidentiality agreement. That ended negotiations until all formal discovery was completed years later and after numerous motions for partial summary judgment had been ruled upon as well as other motions that were subject to interlocutory appeals. The critical court rulings that finally precipitated settlement were several evidentiary rulings adverse to CCA resulting in dismissal of CCA’s counterclaims, affirmative defenses, and designation of non-parties. But unfortunately, the court ruling that forced the plaintiffs into settlement was the denial of plaintiffs’ motion for separate trials in groups of 10 and the appellate court’s refusal to intervene.

Without separate trials, all 193 plaintiffs were scheduled for a 25-week jury trial. The barriers to proceeding in that fashion became insurmountable. First and foremost, it was virtually impossible for a jury to remember the damage testimony and render individual verdicts for each plaintiff. It was apparent that the trial would end in a mistrial, hung jury, or inconsistent verdicts, followed by one or more additional trials and appeals. With every year of delay, we were losing an increasing number of clients who would not receive justice.

In addition, as we prepared for trial, many of the clients who had been released from prison were scattered in several states, some with jobs and many on parole, who could not get employers or parole officers’ permission to travel to court to testify. Without testimony, their cases would be dismissed. As plaintiffs, the court would not permit telephone testimony over CCA’s objection. They would have to testify in person. Those still incarcerated could testify by telephone or video conference, but only if the prison would permit it. The Washington prisons said no. Therefore, we were making arrangements to bring suit in the state of Washington to compel their prison system to permit such testimony. The Colorado court had no jurisdiction to do so. The cases of those who failed to testify would be dismissed.

CCA decided to settle, but wanted to make a lump sum offer, and not individual offers to each plaintiff. We could not ethically do so. We made individual demands, again conditioned on no confidentiality agreement. The state of Colorado appointed one of its senior retired settlement judges to mediate. Finally, CCA made individual offers and after several rounds of negotiations, all 193 cases were settled individually for amounts varying from a low of $1,500 to a high of $17,000 for a total of about $600,000.

In my opinion, the settlements were totally inadequate, but necessary. We had exhausted our attempts to get appellate intervention for separate trials and separate trials were necessary to obtain a semblance of justice. Perhaps justice could have ultimately been obtained for a shrinking number of clients in future years after additional trials and appeals, but the prospects were dismal.

When the trial date was vacated pending completion of the settlements, my wife asked me how I felt. My response: “ I feel relieved and depressed. I feel like a pregnant elephant that has just given birth to a mouse.” My last hurrah was a moan.

The only ray of sunshine in this epic eight year battle was the opportunity to work with my daughter, Cheryl, whose contributions were enormous. We also received some satisfaction from the many clients who expressed delight and gratitude with their settlements -- particularly those who are now homeless.

Wednesday, July 3, 2013

How Justice Was Served

Ken Turek attended TLC in 1998 and has been on the TLC Faculty since 1999.  Earlier this year, TLC alum Howard Kitay asked Ken to help on the case of Dan Bean, a 42-year-old man who was rear-ended at a light. After the collision, Dan was treated intermittently for neck pain for two and a half years, but was then struck again in a more violent rear-end collision. Within a year he underwent a C3-4 neck fusion and recovered very well. The second collision had been earlier settled for $15,000 policy limits and the case was going to trial against the first driver in a couple months. The experts disagreed on what injuries were caused by the crashes but both sides saw no future medicals or loss of earnings. The first driver’s counsel offered $70,000 and never went higher.

Ken began his work by spending time with Dan and his doctors, family and friends in an effort to understand Dan and how the injury affected him. In preparing for trial, fellow TLC Faculty Member Ben Bunn (TLC ’97) helped Ken by conducting a session for Ken to explore his own fears of inadequacy and loss as well as to discover Dan’s story. Ken continued to work with Dan until he was comfortable reversing into him to truly experience Dan’s fears of being less valuable in the workplace, being less able to take care of his aging mother and losing the camaraderie he had through participating in extreme sports with lifelong friends.

Ken also did his medical homework and had Ben critique a first run-through of his opening.

“I was acting like a lawyer, not a person, and didn’t tell the story very well, so we worked on it and it got better,” Ken says.

He and his co-counsel Vickie Ross then spent the four Saturday mornings before trial with focus groups working on discovering the story and running through Voir Dire, Opening and Direct and Cross of Dan.

During trial, Ken showed his “mine” first in Voir Dire on personal injury cases and money, pain and suffering damages and feeling for a driver who makes a mistake. His Opening told a story this time, using scene setting, the present tense and all five senses. Direct of Dan and others took the jury to treatment rooms, sport fields, job sites and to Dan alone at home. Ken’s crosses came in part from the third chair, and in Closing Ken stepped into first person as Dan, the other driver and Dan’s spine.

The jury was out a day after a five-day trial, found liability and awarded Dan $1,271,594 ($126,594 in past medical expenses and $1,145,000 in pain and suffering, of which $850,000 was for future damages). The verdict was greater than Howard’s earlier statutory demand, so with costs and prejudgment interest, the result was over $1.4 million.

Ken says, “This was a pure TLC win.”

Ben summed it up, saying, “Everyone should know Ken immersed himself into Dan Bean’s life in an amazing and powerful way. Using TLC methods requires extreme commitment, dedication and love. Ken was a model for all these things. As a result, Dan grew to trust Ken and Vickie and together they were able to trust this jury. The jury cared about Dan and Ken and wanted to do the right thing. It was really beautiful.”