Diocese of Rochester Bankruptcy: What It Means for Abuse Survivors

By Leander James

What happened?

On September 12, 2019, the Diocese of Rochester, NY, filed Chapter 11 bankruptcy. As a non-profit corporation, it had the choice to file bankruptcy to deal with mounting lawsuits brought by survivors of clergy sexual abuse or to fight them in state court. It chose to file bankruptcy.

What is Chapter 11 bankruptcy?

Chapter 11 is a form of bankruptcy that allows the corporation to continue to operate provided it pays its creditors with available assets. In a Catholic diocese bankruptcy, this means that the diocese can continue to function, but it must gather together all the money, insurance and other available assets it has to compensate clergy sexual abuse victims. In its filing, the Rochester Diocese disclosed it has at least $50 to $100 million in assets. Dioceses often understate their assets when they file bankruptcy, so in our view, the assets available to compensate abuse survivors will likely be much greater.

Does the Diocese of Rochester bankruptcy mean the Diocese has no money to pay abuse survivor claims?

Absolutely not. Just the opposite; the Diocese has money, insurance, and other assets to substantially compensate survivors. Sexual abuse survivors who may have a claim and who want justice should file their claim in the bankruptcy case. Claims timely filed in past bankruptcies have resulted in significant settlements, and there is every reason to believe the same will occur in this bankruptcy.

Who may file a claim?

Any person sexually abused as a child (under the age of 18) at any time within the Diocese of Rochester by a priest, deacon, nun, brother or diocesan layperson may have a claim. Any person sexually abused as a child outside the Diocese by anyone acting for the diocese, including a diocesan priest or deacon, may have a claim. Others may have viable claims. When in doubt, a survivor should consult a knowledgeable attorney to determine their potential rights.

Is a bankruptcy claim confidential?

In past Catholic bankruptcy cases, judges have ordered that the identity of abuse survivors who file claims must be kept confidential. There is every reason to believe the confidentiality of claimant identities will be maintained in this bankruptcy. Further, the bankruptcy case is typically more confidential than a state lawsuit.

Why file a claim?

For empowerment, healing, justice, and meaningful compensation. In our experience, bringing a child sexual abuse claim is empowering and helps the survivor to heal from the past. None of us can wash away bad things that happen to us as children, but we can heal and move on. Bringing a claim furthers that process. Another reason to bring a claim is “strength in numbers.” The more claimants who come forward, the greater the strength of the abuse survivors in bankruptcy to obtain monetary compensation and non-monetary terms for the protection of children.

What can abuse survivors accomplish through bankruptcy?

Survivors can and should expect to accomplish a great deal in bankruptcy. They will be represented by a Creditor Committee of abuse survivors who will direct the bankruptcy litigation and ultimately negotiate a settlement. Settlements in past bankruptcies have included not only tens of millions of dollars to compensate abuse survivors, but have importantly included non-monetary terms for the future protection of children and respect of abuse survivors. A good example of this type of settlement is the Northwest Jesuit bankruptcy, where the settlement provided for $161.1 million for abuse survivors and required the Jesuits to adhere to 23 non-monetary demands. You can learn more about that settlement here: https://www.spokesman.com/stories/2011/mar/26/jesuits-to-pay-victims-of-abuse/.

How do abuse survivors file their claims in the Bankruptcy?

Abuse survivors file their claims in the bankruptcy court by filing a “Proof of Claim” document. In most cases, the attorney will file this document for the survivor. The Proof of Claim should be filled out fully and correctly. It must be filed before the “Bar Date”—the deadline set by the court for the filing of proofs of claim. The proof of claim document in this case has not yet been created. One will be approved by the bankruptcy judge, then made available to abuse survivors (claimants). The bar date in this case has not yet been set. The judge will determine the bar date after notice to all parties who will have an opportunity to present their arguments to the judge regarding the appropriate date to use.

What is the attorney’s role in bankruptcy?

Attorneys who represent abuse survivors protect their client’s rights and shepherd their claim through the bankruptcy process. Representation includes working with the attorney for the creditor (survivor) committee to assure the diocese and its insurance companies amass all available money required under the law to compensate abuse survivors. Our representation additionally includes advocating for the respect of abuse survivors and non-monetary changes for the protection of children, because we have found over the years that our clients want to achieve these goals, and we strongly believe in them. What should I look for in an attorney to represent me? An abuse survivor should look for an attorney whom they trust and who has experience in Catholic bankruptcy cases. There are many types of attorneys out there, but very few have been through Catholic bankruptcies before. Knowledge of that process, in our view, is essential for effective representation.

If you believe you may have a claim, contact us today for a confidential consultation regarding your rights in the Diocese of Rochester Bankruptcy.

Changes in New Jersey Law and a Victim Compensation Program Bring New Hope to Survivors of Child Sexual Abuse

By Daniel Keyes

Photo of Roman Catholic Church (outside)On Friday May 10, 2019, New Jersey Governor Phil Murphy signed a bill into law that expands the state’s statute of limitations for civil sexual abuse claims. Most notably, the bill creates a two-year window for victims of sexual abuse to bring claims against their perpetrators, no matter how long ago the abuse occurred. This new law goes into effect on December 1, 2019.

What this new law means for victims of child sexual abuse is that they now have the opportunity to seek justice against their abusers, and potentially organizations that allowed the abuse to occur, through the civil court system even if the abuse occurred decades ago. The ability to bring such claims against perpetrators of child sexual abuse is often a vital part of the healing process for the survivors. Additionally, actions against organizations that allowed the sexual abuse to occur are necessary to cause those organizations to change and update their policies to prevent such horrible acts from occurring in the future.

In what is most certainly a response to the new two-year New Jersey window statute described above, the Archdiocese of Newark and the Dioceses of Camden, Metuchen, Trenton and Paterson finalized a program funded by the Catholic Church designed to compensate victims of child sexual abuse by clergy.

The program, entitled the Independent Victim Compensation Program or IVCP, allows individuals to file claims against diocesan priests. Claims are then reviewed by Kenneth R. Feinberg and Camile S. Biros, who have been hired by the dioceses and given authority to independently evaluate claims and offer compensation to victims in exchange for a release from the victim.

Registration for all claimants in the IVCP program opened on June 15, 2019, and claimants must register with the program no later than October 31, 2019.

The IVCP program described above is completely optional and its claimants have the ultimate choice to accept any award offered or reject an award and pursue their claims through the civil court system.

While there are pros and cons to seeking justice in both the civil court system and the IVCP, the ability to file a claim in either system, or ultimately in both, is a welcomed opportunity for victims of child sexual abuse. The opportunity allows victims to achieve justice, receive some level of compensation, further their healing process, and protect current and future children from abuse.

Our attorneys have successfully represented hundreds of victims of child sexual abuse in civil court and various victim compensation programs throughout the United States. If you are a victim of child sexual abuse, our attorneys are ready to help you navigate the available avenues of justice and find healing.

Diocese of Rochester Ends Its Compensation Program

The Diocese of Rochester issued a statement on March 14th, 2019 stating that it would no longer accept new applicants for its reconciliation and compensation program. James, Vernon & Weeks, P.A. has represented most of the survivors of clergy abuse who have used this program to resolve their claims without costly litigation. This news does not foreclose other legal options available to survivors.

https://www.democratandchronicle.com/story/news/2019/03/14/catholic-abuse-rochester-diocese-ends-child-priest-abuse-compensation-program/3164407002/

If you are a survivor of clergy abuse and would like more information on what claims may be available to you, please contact us.

Sex Abuse Expert Discusses the Challenges of Coming Forward

By Craig Vernon

Having represented many hundreds of survivors of sexual abuse, the attorneys at JVW applaud this reporting explaining why survivors do not report sexual abuse or wait to report until much later in life.  Understanding this phenomena is important to parents to protect their children and for all of us to realize that so many people are suffering in silence because of horrific abuse suffered as children or early in live as a vulnerable adult.   When survivors come forward, let us listen, and not ask “why did it take so long.”

CBS – “‘No’ is the easiest lie to tell”: A child sex abuse expert on the challegnes of coming forward:
https://www.cbsnews.com/news/sex-abuse-expert-on-the-challenges-of-coming-forward/

The Passing of the Child Victims Act Brings New Claims

“For 13 years now, advocates like myself and others had been trying to get the Child Victims Act passed to get some access to justice for sex abuse survivors in the state. Each survivor heals in their own way, but healing always involves empowerment. Without the Child Victims Act, they had no access to legal process and the healing it can afford.” – Leander James

https://www.democratandchronicle.com/story/news/2019/02/28/catholic-priest-abuse-rochester-ny-child-victims-act/2949197002/

The passing of the Child Victims Act in New York State has allowed new claims to come forward, and James, Vernon & Weeks, P.A., with an office right in Rochester, is ready to help empower survivors in their claim. 

Do New York State Catholic Compensation Programs Bring Justice and Healing to Child Sexual Abuse Survivors?

By Leander James

In 2016, faced with mounting political and legal pressure, the Archbishop of New York, Cardinal Dolan, announced the creation of an “Independent Reconciliation Compensation Program” (IRCP) to compensate individuals sexually abused as children by clergy within the Diocese.  Most dioceses in New York State have followed suit by creating their own programs or dusting off similar, past programs.  Each diocese establishes the rules for its program, and the diocese appoints and pays the Claims Administrator, who runs the program.  The control each diocese exerts over its program raises questions about whether they are independent, fair, just or even beneficial to survivors.  We have been asked questions like:

“Are these programs just another political and PR move by the Roman Catholic Church bishops in New York to boost their image and forestall passage of the Child Victims Act?”

“Could they be a PR move, a political move and beneficial to survivors?”

“Should I enter the program?”

These are legitimate questions that I will discuss in this blog based upon our experience processing more than 80 claims through these programs around the state and our experience litigating hard-fought battles with Catholic dioceses and religious orders throughout the United States over many years.

Programs are a product of politics and legal pressure

There is no doubt in our mind that these programs are a product of politics surrounding New York’s Child Victims Act (CVA) and legal pressure generated by cases our legal team and others have prosecuted around the United States uncovering Roman Catholic Clergy child sexual abuse and bishop complicity.  Only secondarily are these programs motivated, if at all, by pastoral care and a desire to “reconcile” with survivors.

A more skeptical but reasonable view in our opinion is that the benefits these programs bring to survivors are byproducts of the bishops’ self-serving goals to improve their image, influence state politics and avoid lawsuits.  We acknowledge and respect the view of those who hold the opinion that Cardinal Dolan and the bishops created these programs purely out of pastoral care for clergy sexual abuse survivors.  But based on our experience, we don’t think that is the case.

Yet, we also know that these programs have, without a doubt, brought meaningful compensation and closure to many survivors. Whether this is by design, a byproduct, or both, can be debated.  But we believe an honest assessment of these programs must begin with a discussion of the impure (or not entirely pure) motivation for their creation.

The fact is the Archbishop and bishops of New York State long opposed passage of New York’s Child Victims Act, a law that would bring justice and healing to child sexual abuse survivors and accountability to those responsible for abuse (including New York bishops).  In the latter 2000s it became apparent that their opposition to the CVA was not shared by their “flocks” or the state populace.    According to a Siena College poll in January 2018, 77% of New York Catholics and 76% of New Yorkers supported passage of the bill.

In 2016, faced with growing support for the CVA (which at this hour has passed both State Houses with only a three-vote opposition and sits on Governor Cuomo’s desk for signing), the Archbishop announced his “Independent Reconciliation Compensation Program” in the press:

Cardinal Timothy M. Dolan, the archbishop of New York, said he was inspired by Pope Francis in forming the program and hoped it would become a model for other dioceses to help victims heal. “I wish I would have done this quite a while ago,” he said in an interview. “I just finally thought: ‘Darn it, let’s do it. I’m tired of putting it off.’”

https://www.nytimes.com/2016/10/07/nyregion/new-york-archdiocese-compensation-sexual-abuse-victims.html

Even the most ardent supporters of Cardinal Dolan surely recognized the hypocrisy in this statement.  He could have created the program at any time, but chose to do so then to 1) send a message to the Legislature that it did not have to pass the CVA because the Catholic Church in New York would clean up its own act, and 2) divert attention away from the heinous acts of perpetrators and bishops by turning the focus on helping the victims “heal.”  It was a masterful, if cynical, political and PR move.

As one critic posted on my Facebook page:

Of course some people are going to have to choose the compensation fund, of course they are. That’s the position they’ve been put in. We all know and understand that, and the reasons why. The RCC created those reasons when they connived and lobbied for the statute of limitations laws, when they created survivors and victims in the first place! And now, they’re benefiting from those reasons as well. Because the compensation fund is there, making lemonade out of lemons, and it benefits them much more than having every individual taking them to trial, or better yet, everybody getting together in one giant massive lawsuit against the organization itself. They know this.

https://www.facebook.com/leander.james.7

We believe there is another self-serving reason for these programs beyond politics and legal pressure.  Cardinal Dolan and the bishops created these programs, we believe, to prevent damning evidence from becoming public.  Church leaders don’t want their dirty files aired or testimony given that shows they knew they were exposing pedophiles and ephebophiles to unwitting parents and children.  They don’t want us to know that priests they held out as sacred and safe were wolves among the sheep. Letting this information become public would undermine their claim to moral authority and that of the entire Church.  By creating their own compensation programs, Church leaders have successfully stifled disclosure of dirty information, but this came at a cost, and there are trade-offs that are beneficial to many survivors which we discuss more thoroughly, below.

In sum and at the outset, we acknowledge the impure and self-serving motives behind the recent creation of Roman Catholic compensation programs in New York State.  We share the frustration, anger and even outrage that it has taken so long for bishops to address victims and that there are victims at all, for that matter.  But stabbing an accusatory finger at the bishops’ impure motives does little to answer the pressing question whether these programs are beneficial to survivors.  Despite their origin, can these programs help survivors?

New York State compensation programs bring justice and healing to some, but not to others

The short answer is:  yes, they help some survivors.  To begin with, these programs provide survivors some degree of empowerment.  The programs are voluntary; the survivor chooses whether to enter them or pursue a lawsuit directly.  After entering, the survivor can withdraw at any time and retain their legal rights.  If offered compensation, the survivor has control whether they want to accept the award and give up legal rights or reject it and file a lawsuit.  The survivor has control over what information they provide and whether they want any information to be public. The programs provide for one-sided confidentiality; the diocese maintains confidentiality, while the survivor is free to publish what they want.

Once the CVA passes, survivors will be able to file lawsuits and potentially win more (or less) than what they will be offered in these programs.  However, lawsuits are not for everyone.  They take longer, as much as four years or more, while the average compensation claim resolves in months. Some cases will not survive a lawsuit. For example, the survivor has a short life expectancy and is unlikely to outlive the lawsuit, the survivor does not want to be subjected to intrusive discovery, the survivor’s emotional state is too frail to withstand a lawsuit, the survivor does not want to be in litigation for years, or weaknesses in the case make it vulnerable to dismissal (in which case the survivor gets nothing).

Some survivors are living in silence and pain, and their circumstances are not suited to lawsuits and the courtroom.   They need another way to seek justice, recompense, and healing, and they need to move on.  Doing so in a program where we can advocate for the survivor and protect their rights has resulted in meaningful and even life-changing compensation, healing and closure.

In our view, it is generally better for a survivor to have the power of choice than no choice; it is better for them to be able to choose to resolve their claim through a confidential program or a lawsuit. For some, a lawsuit is the way to go. For others, a confidential program is best. The alternative is that a survivor of abuse has no choice and could only seek recompense through a lawsuit subject to their burden of proof, the defendants’ defenses, time and possible dismissal.

Which brings us to important trade-offs Bishops have made to attract survivors to these programs; because, after all, their programs are failures if they cannot attract survivors.  They have funded them with tens of millions of dollars.  They have removed or lessened burdens of proof in exchange for the diocese not having to produce documents and information.  They have abandoned legal defenses, including the statute of limitations defense.  They abide by the decision of the Claims Administrator.  These are important trade-offs.  The frank truth is that some cases, no matter how righteous, have proof problems, are vulnerable to defenses and will be dismissed.  Nobody can be sure which cases these are until months and even years into the lawsuit.

On the other hand, some survivors find empowerment and healing through a lawsuit, and they have strong legal proofs and claims.  Whether we file their lawsuit in the name of a “Jane Doe” or “John Doe” or the survivor’s name, they gain strength from showing they will hold those who caused their abuse accountable in court.  They have the emotional fortitude and life expectancy to justify fighting on to expose their wrongdoers and obtain a potentially large settlement or judgment.  They understand and accept the risks-rewards of litigation.

Each survivor heals in their own way.  Whether the survivor seeks recovery through a program or a lawsuit, all are seeking empowerment and emotional healing.  They are seeking a process to rid themselves of the dark hand of child abuse that has reached out over the years and has been clawing at them, holding them down, holding them back.  They seek protection of children.  They know that when the Diocese pays significant compensation to them it is:

  1. a tangible acknowledgment of the Diocese’s wrongdoing
  2. a recognition of their harm
  3. money they can use to improve their lives; and
  4. a deterrent: for dioceses and bishops who pay money for the harm they caused are deterred from causing similar harm in the future.

Sure, no amount of money can fully compensate a sexually abused child.  But that is no excuse for not holding wrongdoers accountable and having them compensate their victims.  All these goals can be achieved in a program or a lawsuit.  Which process is best for the individual survivor depends on the survivor, the facts of their case, the law and the program.

What to look for in the program

We find that the degree to which any one program helps survivors is largely determined by:   1) scope of qualifying claims; 2) independence of the claims administrator 3) the claims process and 4) amount of the award.  Programs vary in these essential areas (and programs are changing over time).

Whether a claim qualifies for the program is either determined by the diocese or the Claims Administrator, and there’s a difference.  For example, the Archdiocese of New York, Diocese of Brooklyn and Diocese of Rockville Centre deny access categorically to claimants who otherwise have viable legal claims against them.  They shut the door to those abused by a religious order priest, even if he is working in the diocese, under the bishop, and doing diocesan work on diocesan property.  By contrast, the Rochester Diocese so far has let the Claims Administrator determine whether a claim qualifies, even if the abuse is not perpetrated by one of its diocesan priests.  The point here is that if the program does not allow the claimant to even submit a claim based upon arbitrary, non-legal concepts, then that survivor can’t even get their foot in the door of the program.  We have argued that arbitrary, non-legal criteria denying access to survivors is not in the best interests of the dioceses (and it certainly isn’t for the survivors), because they will now be subject to lawsuits on these claims once the CVA is signed into law and the window period opens.  [See our upcoming blog on the CVA and Window for more details].  Put another way, the claims do not go away if denied by the program; they become a potential lawsuit.

The second factor, independence of the Claims Administrator, is crucial to a functioning program.  By “independence” we are not necessarily referring to whether the diocese or bishop directly or indirectly controls the individual they hire as the Claims Administrator, although this is a possibility.  A claims administrator may not be able to entirely divorce themselves from the fact they are being compensated by the diocese; the administrator might fear that if they give too big an award they will be fired.  Other biases can have strong influence over a decision-maker who does not guard against them.  All decision makers come to a decision with bias, be they a juror, a judge or a private claims administrator.  However, some do not appreciate their bias and are therefore unable to guard against it, and therein lies the danger.  Other potential biases include a claims administrator’s religious or political ties to the Catholic church (which can cut both ways), or their belief the bishop or diocese is motivated solely by goodwill rather than more self-serving motives.  There are others.

In some cases, the bias, good or bad, may affect an otherwise objective claims administrator’s view of an individual claimant or claim.  For example, some may have the bias that the younger the child is at the time of abuse the greater their damage.  This may or may not be true, depending on the case.  Others may be biased against a claimant who has a criminal history, even when that history has a causal link to the abuse.  Thus, the analysis of a Claims Administrator’s independence goes deeper than just the individual claims administrator and their ties to the diocese.

The Claim Process

The claim process, in our view, has a profound effect on the survivor’s healing and the outcome of the claim.  We believe the best process involves the Claim Administrator hearing from the survivor in person in a confidential and protected setting.

We have encountered wide disparity between the claims processes of dioceses.  For example, in the Archdiocese, Diocese of Brooklyn and Diocese of Rockville Centre, the Claims Administrator (they use the same one) discourages in-person interviews of the survivor and, in our estimation, gives them little weight when they do occur.  The Diocese of Rochester Claims Administrator, on the other hand, encourages such interviews and is fully prepared for, and engaged in, the interview process.  [See our blog “View from Inside the Rochester Diocese’s Sexual Abuse Compensation Program” for more on this].

There is no question in our experience that any system that evaluates a child sexual abuse survivor’s claim without hearing directly from the survivor, face-to-face, is badly flawed.  Hearing from the survivor is necessary to any meaningful understanding of the nature of the abuse and its effects on the survivor.  To the extent a claims administrator is concerned with “corroborating evidence,” as some seem almost obsessed with, hearing from the abuse survivor in person powerfully establishes the truth of the claim, and should remove any doubt the abuse occurred.  We have seen even jaded Church attorneys admit the validity of the claim after hearing from the survivor.  Survivor testimony is powerful.

Amount of the award

Money makes a difference.  Nearly all survivors for whom we have accessed recovery have used the money in a positive way to transform their lives and often the lives of their families for the better.  How much are the awards in these programs?  Awards in the Archdiocese and Diocese of Brooklyn have generally ranged from $50,000 to $500,000, with some outliers.  Less in the Diocese of Rockville Centre.  In the Diocese of Buffalo, the awards have ranged from $40,000 to $400,000.  We are currently awaiting the first awards in the Diocese of Rochester program, which we will report on soon.

When comparing values in these programs with values that may be obtained through litigation and trial, there is no question that litigation and trial can result in much higher recoveries.  But they can also result in lower recoveries and claims being dismissed and receiving nothing.   Not all claims in the programs are compensated.  While good investigation and advocacy can minimize claim denials, some get denied.  But even these retain their right to file a lawsuit.

Conclusion

In our experience, submitting a claim into one of the Catholic compensation programs in the State of New York can result in significant healing and recovery with little or no down-side.  Doing so allows the survivor to potentially receive an offer of settlement that they can accept or reject.  If they reject it, they retain their legal right to pursue a lawsuit.  Having the option of entering a confidential program and potentially receiving meaningful compensation or filing a lawsuit gives the survivor the power to choose which path they want to take to resolve their claim.  Choice is better than no choice.

Good investigation, advocacy and claim presentation in the program increases the likelihood of compensation and maximizes recovery.  Protecting survivor rights, giving them a voice and assuring the claims experience is as confidential and comfortable as possible furthers survivor healing and closure.  While these programs are not for all, many survivors have achieved significant, even life-changing, compensation, healing, and closure and have moved on with their lives as thrivers.

View From Inside The Rochester Diocese’s Sexual Abuse Compensation Program

By Leander James

The Diocese of Rochester, NY, has recently instituted a confidential, non-binding program to compensate sexual abuse survivors of any age who were victimized as a child by an actor within the Diocese of Rochester.  Our team has recently completed the first evaluations within the program.  This blog is meant to give you an insider understanding of what we have learned so far, and how this program compares to other dioceses’ programs within the State of New York.

While most, but not all, dioceses have programs, we have encountered substantial differences between them with the more than 80 cases we have processed in programs around the State of New York.  The Diocese of Rochester Compensation Program (DRCP) differs substantially from compensation programs of other dioceses.  The primary differences we have learned involve:  1) scope of qualifying claims; 2) independence of the claims administrator and 3) the claims process.

First the similarities.

All programs we have encountered have a Claims Administrator that runs the program outside the formal legal process. All are non-binding, meaning the abuse survivor can accept or reject the amount offered by the Claims Administrator. If the survivor accepts the offer, they must give up legal rights. If the survivor rejects the offer, they keep all their legal rights. All programs have one-sided confidentiality, meaning the diocese will maintain confidentiality of survivors and their information, but will not restrict survivors from disclosing publicly what they want to disclose. All programs have six stages: 1) submission of a claim form; 2) a determination if the claim qualifies for the program; 3) claims presentation by the survivor or their attorney; 4) evaluation of the claim; 5) a non-binding determination whether the claimant will be offered compensation and, if so, the amount offered; and 6) acceptance or rejection of the offer. Claimants who are not offered compensation or who reject the offer retain their right to file a lawsuit. Finally, all programs we have encountered have provided meaningful compensation and justice to some, but not all, survivors who have submitted claims. [For a larger discussion of the various compensation programs see our upcoming blog “Do New York State Catholic Compensation Programs Bring Justice and Healing to Child Sexual Abuse Survivors?].

But that’s where the similarities end. Of the more than 80 claims for child sexual abuse survivors we have processed through various diocese programs in the State, eight of these were the first claims to be processed in the DRCP, in January 2019. While we await the offers on those eight cases, we can report that we see important differences in Rochester’s program.

Determination if the claim qualifies.

To its credit, the DRCP so far has a broader acceptance of claims qualifying for its program; it has cast the net of potential justice wider. First, the DRCP has not arbitrarily disqualified claimants based upon when they disclosed their abuse to the Diocese, as some other dioceses have done with only “Phase I” programs. Second, it has not created artificial distinctions that reject claims outright, even when those claims would qualify for a lawsuit. While the Archbishop of the Archdiocese of New York, the Bishop of the Diocese of Brooklyn and the Bishop of the Diocese of Rockville Centre have boasted that their programs compensate child sexual abuse survivors, the truth is that in the fine-print of their program criteria they reject outright many abuse survivors whose claims would otherwise be legally recognized, such as abuse perpetrated by a religious order priest who was working for the diocese in a diocesan parish at the time of abuse. [Our team has been working to encourage the Archdiocese, the Diocese of Brooklyn and the Diocese of Rockville Centre to remove these arbitrary restrictions. If they don’t, they will be subject to lawsuits under the New York Child Victims Act for these claims.]

By contrast, the DRCP does not appear so far to use artificial distinctions to disqualify outright claims of abuse by actors within the Diocese of Rochester. Indeed, the DRCP allows the Claims Administrator to make his own determination whether such claims will be accepted. This provides for greater potential access to justice within the Program for many survivors who would otherwise be arbitrarily disqualified.

Claims presentation

Unlike programs of the Archdiocese, Diocese of Brooklyn and Diocese of Rockville Centre, whose Claims Evaluator discourages in-person interviews of the survivor, the DRCP Claims Evaluator encourages such interviews. This is a vast difference; for the best evidence of the nature and extent of abuse and its damaging effects on the survivor’s life is the survivor’s own testimony. Any system that evaluates a child sexual abuse survivor’s claim without hearing directly from the survivor, face-to-face, is badly flawed, in our view.

But the DRCP Evaluator, the Hon. Justice Lunn (Ret.), did more than just hear, face-to-face, the statements of our first eight claimants. He came prepared, having carefully reviewed our advocacy packet–our investigative reports, evidence, expert reports and memorandum of the case. He provided a comfortable, confidential and informal setting for our clients to tell their true stories without a time limit. He did so by allowing their counsel (us) to present their case informally, without any person from the Rochester Diocese being present to object or obstruct. He allowed us to ask our clients questions designed to illicit their true stories and to highlight relevant facts and information any evaluator would need. He allowed us to bring material witnesses to the hearing to share their testimonies, including a mental health provider. He was fully engaged, often interjecting with insightful questions aimed at better understanding the nature of the abuse and its effects on the survivor. We can say with certainty that in our experience this interview process provided the survivor with greater dignity, compassion and emotional healing than other programs that do not allow or encourage the survivor to informally testify.

Independence of the Evaluator

The DRCP Evaluator, Justice Lunn, in our professional assessment, has proven to be more independent than evaluators in some of the other programs. This is just our opinion, but we’ve processed many claims and have watched the issue of independence closely. The true independence of the evaluator is critical to a well-functioning program. Without independence, the program risks losing credibility with the survivor and the public.

Tentative Conclusion

It remains to be seen whether these distinctions of the Diocese of Rochester Compensation Program will influence the amount of the DRCP awards; however, it is difficult in our view to imagine that they would not. According to Justice Lunn, the awards will be rendered no later than 30 days from the date of the hearings. The first survivors to ever be evaluated in the DRCP will therefore receive their awards within the coming weeks. Stay tuned.

What is Multi-District Litigation (MDLs)?

By Wes S. Larsen

Have you ever seen a television or internet ad regarding an allegedly dangerous prescription drug or medical device? They often say things like, “If you or a loved one have been injured by [fill in the blank], call us now! You may be entitled to compensation.” While such promises may seem like a law firm’s too-good-to-be-true gimmick, there is likely a good reason why the law firm is spending money to advertise for such cases. And that reason may just be that a mass-tort, class-action-like legal procedure called an “MDL” has been created regarding the advertised product.

What is an MDL?

For starters, the acronym MDL stands for “multi-district litigation,” and it refers to a special federal legal procedure overseen by a federal judicial entity called the Judicial Panel on Multidistrict Litigation (JPML). The purpose of an MDL is to facilitate the streamlined process of handling complex cases, particularly in situations where numerous federal lawsuits are filed in different state courts and/or federal district courts by different individuals regarding the same or similar product of a given manufacturer. In such circumstances, the JPML consolidates the various cases regarding a specific product or type of product into a single MDL and assigns a single federal judge to oversee the MDL.

When the JPML consolidates and assigns a case to a federal judge, all federal cases subject to the MDL are then transferred from the courts of original jurisdiction (i.e., the courts where each plaintiff originally filed their lawsuits) to the MDL court for all further litigation proceedings and discovery. Cases filed in state court are typically removed from state to federal court, then transferred by the federal judges via a “transfer order” to the MDL court.

How does an MDL differ from a class action?

A class action is a single lawsuit in which one of the parties to the lawsuit is a group of people who are represented collectively by a member of that group. Members of the “class” have typically incurred similar or identical damages, and the class action seeks to provide a legal remedy on behalf of all members of the class collectively. For example, if a certain airline charged all customers an extra $10 fee that was later deemed to be improper, then a class action lawsuit could be filed by a single customer of the airline on behalf of all customers to pursue reimbursement of the $10 fee for all.

In contrast, and as discussed above, an MDL is a streamlined grouping of individual lawsuits alleging liability claims against a specific entity(ies), often a product manufacturer, but in which all of the individual lawsuits allege different injuries and/or damages specific to each individual plaintiff. So for example, an MDL related to a certain prescription blood thinner may include many different individual lawsuits in which some plaintiffs allege that the blood thinner caused gastrointestinal bleeding,  while others allege the blood thinner caused nose bleeds, and still others allege that it caused cerebral hemorrhaging. The “damages” are therefore different depending on each individual plaintiff, but the allegedly defective product (and hence, manufacturer) are the same. An MDL composed of several individual lawsuits is therefore more appropriate in such a situation, as opposed to a single class action lawsuit.

Good examples of the MDL process are the Vioxx and Chantix MDLs, in both of which our law firm participated. Vioxx was a pain medication manufactured and sold by Merck, and Merck eventually withdrew it from the market. There were many state and federal lawsuits regarding Vioxx filed throughout the United States that were ultimately consolidated and transferred to an MDL. After fierce litigation and “bellwether” trials (explained below), a large global settlement was reached. The funds were distributed pursuant to a matrix negotiated by the court-designated Plaintiff Steering Committee and Merck to qualified plaintiffs. However, not all claimants qualified, as each claimant’s claim was evaluated individually under the court-approved matrix.

Similarly, Chantix was a smoking cessation product that, claimants alleged, did not include necessary disclosures about the potential psychiatric effects of the drug. One of our law firm’s Chantix cases was selected as a bellwether case, which resulted in our firm working with the lead attorneys in that MDL. Pfizer, who manufactured the product, settled thousands of state and federal lawsuits involving Chantix. The terms of the settlement are confidential. Again some, but not all, claimants were compensated under the terms of that court-approved settlement program.

It is important to note that, in these and nearly all MDL cases, it is unclear at the outset which individual plaintiffs will qualify for compensation in the MDL. There is a sorting process that occurs whereby some cases are disqualified by judicial ruling or settlement terms negotiated by the court-appointed Plaintiff Steering Committee and the defendant company(ies). The cases that do qualify often include a matrix-type settlement that treats categories of plaintiffs differently based on the facts in each individual claimant’s case.

How are individual cases included in an MDL?

Once the JPML rules on consolidation and assignment (in other words, creates an MDL regarding a specific product), subsequent related individual cases are typically allowed or required to be filed directly into the MDL regardless of the state of original jurisdiction or the licensure of the attorney (i.e., the MDL judge usually grants “pro hac vice” status to all otherwise eligible attorneys for purposes of filing lawsuits directly into the MDL, which eliminates the need for local counsel). For example, regarding the Vioxx cases handled by our firm, we filed the first two cases in state court. Merck removed both cases to the United States District Court for the District of Idaho, where the Idaho federal judge transferred them pursuant to a JPML “transfer order” to the Vioxx MDL in the Eastern District of Louisiana overseen by the Honorable Judge Eldon E. Fallon. Following Judge Fallon’s instructions, our firm filed subsequent Vioxx cases directly in the MDL in the Eastern District of Louisiana, without needing to file the cases in local state or federal court first.

If a case is not dismissed or settled while a part of the MDL, then it simply gets transferred back to the court of original jurisdiction for trial. For the purpose of the statute of limitations (i.e., the deadline for filing a particular case), the date of the original filing of the case is used; thus, when a case is transferred back to the federal or state court, it proceeds as if filed in that court on the original date filed (not the date transferred). All cases in the MDL are viewed collectively, but filed and evaluated individually; this is a key way in which MDLs are different from class action lawsuits.

Given the seeming complexity of MDLs, why would you want to file your individual products liability injury case in an MDL?

There are many benefits available to a plaintiff who files their case in an MDL with potentially thousands of other similarly-situated claimants, as opposed to filing their case individually in the local federal/state court:

  1. There is strength in numbers. The numerous plaintiffs and their attorneys joined together create a powerful group in litigation. The MDL thus “evens the playing field” between individual claimants and a corporate giant defendant.
  2. An MDL allows for uniformity in how all related cases are handled, and streamlines the litigation and discovery processes. It allows access to collective litigation resources, defense discovery responses, and highly qualified expert witnesses.
  3. An MDL provides all claimants with a highly skilled, “second layer” of legal counsel. As referenced above, the MDL judge typically assigns a group of highly experienced plaintiffs’ attorneys to the “Plaintiff Steering Committee” (PSC). This group takes the lead in all issues related to the MDL litigation—strategy, case coordination, hiring of experts, determining global cost expenditures, and ultimately settlement terms. The PSC uses combined resources to obtain the very best experts and evidence possible on behalf of all the plaintiffs in an effort to concretely demonstrate the fallibility of the product at issue. Resources are pooled by all plaintiff attorneys in the case to exercise strength in numbers, and general costs are shared equally (the MDL court typically mandates that a portion of attorney fees in each individual case be withheld as part of a Common Benefit Fund managed by the PSC).
  4. An MDL exponentially reduces the costs for individual claimants. Each qualifying plaintiff is assessed a modest, fractional share of the case costs, such as the cost for experts on liability, causation, and damages. Conversely, an individual case standing alone in state or federal court is often overwhelmed with case costs, teams of defense attorneys, and endless litigation.

Our firm, James, Vernon & Weeks, P.A., handles highly complex cases in state court, federal court, bankruptcy courts, and the MDL courts. It is our universal experience that if an individual case might meet the requirements for an MDL, it is advisable to file it in the MDL in hopes that it qualifies and enjoys all these benefits—access to highly skilled, national legal counsel; access to the best experts; exponentially reduced costs; and the power of numbers. At worst, if a case is deemed by the MDL court to not fit within the specific parameters of the MDL, the case is simply transferred back to the court of original jurisdiction for individual case litigation. The upsides to potentially qualifying for an MDL, in our experience, far outweigh the downsides. Indeed, in many individual cases the crushing costs and unlevel playing field of the individual vs. the corporate giant make the case not economically feasible standing alone.

Characteristically, once initial discovery and expert witness issues are resolved in the MDL, the court then selects a handful of individual cases to proceed to trial (these are known as “bellwether” cases, as referenced above). This allows all other plaintiffs in the MDL to observe how a jury views these cases, and how a jury might view their own individual case if a trial were to occur. Following the bellwether process and depending on the outcome of the bellwether trials, the ultimate goal from the plaintiffs’ perspective is for the defendant manufacturer to recognize its vulnerability and present a court-approved settlement program into which all claims in the MDL can be filed, evaluated, and resolved on an individual basis.

What are the procedural benefits of filing into an MDL?

There are several other benefits available to plaintiffs who file their individual cases into an MDL. First, the same judge oversees all cases in the MDL. This allows for continuity in how all the cases are handled and how all court decisions are carried out. The judge also typically approves a master complaint proposed by the PSC on behalf of all plaintiffs, followed by a “short form complaint” which each plaintiff files regarding their individual claims. The court likewise approves a standard set of discovery to be completed by all plaintiffs and defendants in the MDL (typically designated as the plaintiff fact sheet and/or plaintiff profile sheet); this avoids the difficulties presented in individual, non-MDL federal and state court cases regarding overburdensome and irrelevant discovery requests. Through the use of pretrial orders, the MDL court typically sets out a schedule mandating when discovery responses are due in relation to the filing of the short form complaint. This eliminates discovery timeline disputes and delays created by late responses and objections filed by the parties. If the court later determines that additional discovery should occur in a particular case or group of cases, the court typically issues a pre-trial order to that effect.

The overall desire of MDL plaintiffs and their counsel is for proposal of a fair and well-governed settlement program that leads to suitable compensation for each individual plaintiff. However, once a plaintiff files their lawsuit into the MDL and submits all required discovery, they enter an indeterminate waiting period while the two steering committees work through litigation issues and proceed with bellwether trials. This waiting period typically lasts until either a settlement program is announced or until the court transfers all cases back to their respective courts of original jurisdiction for trial. Depending on when an individual plaintiff files their case in relation to how long the MDL has been “open,” this waiting period can be as short as a few months or as long as several years. In the event a settlement program is negotiated and proposed by the two steering committees and approved by the court, each individual case must be registered and enrolled into the program by court-mandated deadlines. The court usually assigns a neutral third-party entity to serve as claims reviewer, guided by a court-approved master settlement agreement.

If at any time an MDL court determines that a specific case filed into the MDL would be better-heard elsewhere because of issues unique to that case, the court typically does not dismiss the case – even if a defendant brings an FRCP 12(c) motion to dismiss. Instead, the MDL court either transfers the case back to the court of original jurisdiction for further proceedings, or else transfers it to another MDL which might serve as a better venue.

How can we help with your MDL case?

Our law firm has been involved in numerous MDLs over the past two decades in federal venues throughout the United States. Our attorneys have attended JPML consolidation and assignment hearings. We have worked with many plaintiff steering committees, and at least one of our cases has been selected as a bellwether case.

When we receive a new products liability intake, we first evaluate whether an MDL has been created regarding the product or class of products at issue. If a potentially-related MDL does exist, we work with our client to obtain the necessary information and documentation to file their claim in the MDL. We have found that the potential benefits to our clients facilitated by including their cases in an MDL, even if the product causing their injury is only similar to but not specifically implicated in the MDL, are by and large greater than those available through individual case litigation. There are also far fewer risks associated with MDL litigation as opposed to individual case litigation, including those referenced above and the general non-applicability of state procedural law.

So, without intentionally quoting the sometimes-cheesy television commercials referenced above, if you or one of your loved ones has been injured by a medical device or prescription drug, don’t hesitate to call us. We are happy to review your case and investigate whether an applicable MDL exists. And because nearly all MDLs allow for direct filing and pro hac vice admission, our law firm is equipped to handle products liability injury cases no matter where the injury occurred or where the MDL is located. So please, give us a call today at (888) 667-0683 or fill out our online contact form so we can evaluate your case.

 

Leander James helps survivors reclaim power through the Rochester Archdiocese mediation program

Leander James, of James, Vernon & Weeks, P.A. spoke with WHEC news in Rochester, NY while attending hearings for several clients in the Rochester Archdiocese mediation program. The program, which is entirely voluntary, gives survivors of abuse the opportunity to have their claims heard in a non-litigation setting. Claimants can choose to accept the award given by the mediator or continue to pursue their claims in court. “Through a confidential process,” James said, “It gives these folks a forum to confidentially talk about what happened to them and, in doing so, I can tell you that the survivors of sexual abuse really reclaim their power.” For more information, see https://www.whec.com/news/special-mediator-seeks-to-deliver-justice-in-church-sex-abuse-cases/5211512/?cat=565