Families of Attack Victims, State Try To Avoid Litigation
By Tim Craig
Washington Post Staff Writer
Wednesday, March 26, 2008
RICHMOND, March 25 -- Attorneys for the state and the victims of last year's Virginia Tech massacre have been using a mediator to avoid a potentially contentious round of litigation over Virginia's possible liability in the shootings, state officials and family members said Tuesday.
Twenty-two relatives filed claims against the state last year, and the state's attorneys and the victims' representatives have been engaged in talks since December about a possible resolution.
When those talks became public, the parties involved adopted a confidentiality agreement. But details emerged Monday night about an $8.5 million offer state officials made to the families late last week.
Under the proposal, which the families are considering, the state would pay $100,000 to each of the 32 families of those killed April 16, providing they give up their right to sue. The 27 students and faculty members wounded could also receive up to $100,000, depending on the severity of their injuries.
The state would also create several funds to cover medical costs, make contributions to charities in the name of the victims and offer direct aid to the victims and their families, according to a copy of the proposed settlement.
The state would not admit liability but would justify the payments as a way to avoid a series of lawsuits.
Gov. Timothy M. Kaine (D) defended efforts to reach a settlement with families of the victims Tuesday, saying the state and families need "to move forward together."
Speaking on his monthly call in show on WTOP (103.5 FM), Kaine characterized the recent discussions as productive. The negotiations are continuing, and the proposed terms of the settlement could still change. "Nearly all" of the families must agree to the terms, or the state can withdraw the offer, according to a copy of the proposal.
"I give everyone credit for sitting down and being willing to have an honest dialogue," he said.
Kaine declined to discuss the specifics of the negotiations but said he thinks a settlement is needed so the state and families can "move forward together" and reach an agreement that is "creative, fair and justifiable."
"We are going to continue to have a dialogue to see if we can move forward together, rather than being pitted against each other," Kaine said.
Attorney General Robert F. McDonnell (R), whose office is representing the state, declined to comment on the specifics of the offer, citing the confidentially agreement. State officials would not elaborate on who is trying to mediate a settlement. But McDonnell said there will be "full, fair and complete disclosure" if a settlement is reached.
Washington law firm Bode & Grenier, which represents more than two dozen of the family members, also declined to comment.
Several relatives also declined to publicly discuss the offer or did not return phone messages. The families were initially told they had until March 31 to accept the offer. But some relatives said they were told Tuesday that the state is extending the deadline to give them more time to consider their options.
Roger O'Dell of Roanoke, whose son Derek was wounded, said families' sentiments about the offer range from " 'The university and Virginia did not do anything wrong, and there is no obligation to pay anyone any money' to 'Yes, there is serious wrongdoing, and the university and the commonwealth owe us all $2 million each.' "
"It is going to be very hard to please everybody," he said.
Any settlement or payout from the state would be in addition to the $8.5 million in private donations that Virginia Tech distributed to the victims and their families in the fall.
The families of those killed in the shooting by Virginia Tech student Seung Hui Cho of Fairfax County received tax-free payments of $208,000 unless they wanted a portion of the money to be used for a memorial scholarship.
The claims filed by victims against the state in October alleged that Virginia Tech and the state were negligent because they failed to respond to Cho's mental disorder soon enough, did not quickly lock down the campus the day of the shootings and failed to have an effective emergency response plan. Cho killed himself.
State officials had said Virginia's liability would be limited because of the legal protection known as "sovereign immunity," which means that the state can do no wrong and cannot be sued. In the 1970s, the General Assembly waived the state's immunity for tort claims but capped potential damages at $100,000.
Attorneys for the victims and state officials said there can be exceptions to that cap if defendants can prove "gross negligence."
"I think there are really difficult questions about what a jury would find if you took the case to court," said Carl Tobias, a law professor at the University of Richmond.
Tobias said families of the victims are probably conflicted over whether they prefer to have their concerns aired in court.
"I think these people are litigating not about money, and if it is not about the money, then they are not going to settle it," Tobias said. "I think in some ways, the [families] maybe really want their day in court."
Senate Majority Leader Richard L. Saslaw (D-Fairfax) predicted that the General Assembly would quickly get behind any settlement, saying he has full confidence in Kaine and McDonnell to act in the state's best interest.
"I hope they take it," Saslaw said of the offer to the families.
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