Few Options for Colorado Theater Victims After Loss to Cinemark

May 24, 2016

Victims’ loss in a civil trial over whether a Colorado movie theater should have done more to prevent a mass shooting leaves them with dwindling options as they seek damages for their suffering.

Experts say the loss Thursday to Cinemark may also have hurt the chances of other survivors in the few remaining lawsuits stemming from the 2012 rampage.

It will be hard to find jurors for an upcoming federal case who haven’t heard about the outcome of the Cinemark verdict, said attorney Brett Godfrey, who was not involved in the lawsuit.

“In a case where you have multiple claims arising out of a single event, the first one that goes to trial has the potential of casting a long shadow on the other cases,” Godfrey said. “It’s a real issue for the remaining plaintiffs who have yet to have their day in court.”

Shooter James Holmes is serving a life prison sentence for the attack that killed 12 people and injured more than 70 others.

Jurors on Thursday quickly sided with the nation’s third-largest movie theater chain, finding there was no way the company could have safeguarded against the attack and is not responsible for victims’ life-altering injuries that require psychiatric care, medical equipment, prosthetic limbs, occupational and speech therapy, and other treatment.

Attorney Marc Bern, who represents the 27 plaintiffs – survivors and families of people killed – vowed to appeal the verdict, saying a judge had kept jurors from seeing key evidence that would have changed their minds.

Melisa Botdorf, whose ex-husband Gordon Cowden was killed in the attack, said the lack of accountability from the theater chain is dangerous.

“Until it hits them financially then change does not occur.” she said, lamenting the Cinemark verdict.

But It could be years before a court decides whether to rehear the case. If an appeal is granted and victims’ settle, they could see a much smaller payout than they would have if they did so before the first case went to court, said Godfrey, whose specialties include liability cases.

At least 40 victims have signed onto a federal lawsuit against Cinemark, slated to open in July.

A judge could decide Thursday’s verdict in favor of Cinemark makes trying the second case unnecessary. If not, Godfrey said, it will be much harder to find jurors who haven’t heard about the first verdict in the theater company’s favor.

“There’s a certainty there will be some impact,” he said.

Christina Habas, an attorney on the upcoming case against Cinemark, declined to comment except to say the case will go on as planned.

Other victims have filed a lawsuit alleging Holmes’ psychiatrist at the University of Colorado should have done more to stop the attack, such as detaining Holmes after he disclosed his homicidal thoughts.

But such cases are exceedingly hard to prove, as mass violence is difficult to predict, even for mental health professionals, said John Lott, president of the Crime Prevention Research Center. His research found that 60 percent of the 25 mass public shootings since 2009 involved gunmen who were under mental health care.

“I know of no successful suit that’s been done on this,” Lott said. “They’re going to have a very difficult time proving the psychiatrist didn’t meet proper stand of care.”

Other suits have proved fruitless and risky. Sandy and Lonnie Phillips, whose daughter Jessica Ghawi was killed, had their lawsuit against the companies that sold ammunition used in the shooting tossed out by a judge – who then ordered them to pay more than $200,000 in legal fees to the companies.

Without the lawsuits, victims have few other options to gain money for their recovery, said Jeff Dion, director of the National Crime Victim Bar Association.

Private donations and money from the state’s crime victim compensation fund probably won’t be enough to cover all of their needs, Dion said. And, he added, they won’t likely see any of the $955,000 in restitution Holmes was ordered to pay after he was sentenced last year to life in prison.

“If he’s in prison and making 26 cents an hour, that’s not going to go a long way toward compensating all the people whose lives he’s destroyed,” Dion said. “These people have such catastrophic and ongoing needs, there aren’t really resources in the civil justice system or crime victim compensation to pay for that.”

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