Chief of Panel on Virginia Tech Backs State's Offer

By Tim Craig
Washington Post Staff Writer
Thursday, March 27, 2008

RICHMOND, March 26 -- The chairman of the panel that reviewed the Virginia Tech massacre said Wednesday that he supports the state's efforts to settle with the families of the victims but that lawsuits could answer lingering questions over authorities' handling of the tragedy.

W. Gerald Massengill, a retired Virginia State Police superintendent who headed the Virginia Tech Review Panel, said a court case might be able to "connect the dots" and provide answers to allegations that the state mishandled the April 16 shootings. He also said the families should consider accepting the state's settlement offer "if they feel it's adequate."

Massengill said the report issued by the panel in August found several instances in which "people did things they shouldn't have done or didn't do things they should have done" related to Virginia Tech's oversight of senior Seung Hui Cho, who killed 32 students and faculty members before shooting himself.

"I think that it is proper for a court to take a look at it and see how reasonable were the actions that were or were not taken at the time," Massengill said in an interview. "In light of 32 people getting killed, I think people have a right to get those answers. The panel tried the best they could do to get those answers, but a lawsuit might provide clarity."

Massengill's comments come as state officials, led by Gov. Timothy M. Kaine (D) and Attorney General Robert F. McDonnell (R), are trying to avoid protracted litigation by offering the victims' families an $8.5 million settlement. The families have until Monday to decide, though some officials have said the deadline would be extended.

Under the proposal, the state would pay $100,000 to each of the 32 families of those killed in exchange for their assurance that they would not sue. The 27 wounded students and faculty members could also receive up to $100,000, depending on the severity of their injuries.

Virginia would also create several funds to cover such things as medical costs and contributions to charities, according to a copy of the proposed settlement.

State officials and some family members said the Washington law firm Bode & Grenier, which represents about two dozen of the families, is urging its clients to accept the offer. The firm did not return calls for comment.

Some family members said they are wary of the settlement offer. According to the offer, "nearly all" the families must agree to the terms, or the state can withdraw it.

"The whole thing is a minefield. It is a very difficult situation for me," said Andrew Goddard, whose son, Colin, was injured. "There are so many aspects to it that could blow up in your face."

In October, 22 relatives of the victims filed claims against the state, the first step in a potential lawsuit. The claims allege that state officials were negligent because they failed to respond to Cho's mental disorder soon enough, did not quickly lock down the campus during the shooting and failed to have an effective emergency response plan.

Massengill praised Kaine and the state's attorneys for trying to reach a settlement quickly, saying it "shows compassion and some understanding of what occurred" April 16.

But Massengill said the victims' relatives should not feel pressured into accepting the settlement if they think a lawsuit could unearth new information about the case. He noted that the review panel intentionally steered clear of trying to assess the state's liability for Cho's rampage and the university's response.

Massengill said he thinks Cho "could not have been stopped" once he fired the first shots. But he said questions remain about whether the university should have done more to respond to his mental condition before the shooting.

If lawsuits are filed, legal analysts have said, the relatives might have a difficult time proving that the state is liable. State officials have said Virginia's liability would be limited because of the legal protection known as sovereign immunity, which means 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.

Kenneth R. Feinberg, a Washington lawyer who administered $8.5 million in private donations to the victims and their families last year, said the state's proposed settlement "is the right thing to do."

"I think the likelihood of the families prevailing in court is very, very uncertain, and if they prevail, after years of litigation, there is a cap on what they can reasonably expect," Feinberg said.

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