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Taxpayers could be on the hook for more than the $38 million verdict to David Meehan in the Sununu Youth Detention Center abuse lawsuit after lawyers with the Department of Health and Human Services tried to force a cap on the award.

The historic jury decision is being disputed by the state, which claims New Hampshire law imposes a cap on monetary damages and limits the amount Meehan can receive to $475,000. But as both sides hash out the dispute, looming is the real possibility that taxpayers will have to pay more — much more — regardless who wins the current dispute.

New Hampshire is a self-insured state, meaning there is no liability coverage policy for Meehan, or the 1,300 other adult survivors who claim they were horrifically abused as children while in state custody. Meehan was the first of the YDC claimants to get to court.

On Wednesday, Rockingham Superior Court Judge Andrew Schulman rejected the state’s argument that New Hampshire only needed to pay $475,000 to Meehan for a “single incident” of abuse after a jury ruled in his favor last month. 

“In the court’s view, this would be an obvious miscarriage of justice because the finding of a ‘single incident’ was conclusively against the weight of the evidence,” Schulman wrote.

Meehan’s attorneys claim there were more than 300 incidents of rapes, beatings, emotional abuse, and illegal solitary confinement proven at the trial.

After listening to weeks of testimony about the hundreds rapes and other abuses Meehan suffered as a child in the 1990s, jurors returned a verdict finding the state liable for facilitating Meehan’s abuse and working to cover it up for decades. However, the verdict form was marked to indicate there was one incident where the state engaged in “wanton, malicious, and oppressive conduct” by abusing its power in permitting the sexual assaults.

Lawyers for DHHS argue that form means the $475,000 cap needs to be applied, overriding the $38 million verdict. However, after reading New Hampshire Attorney General John Formella’s statement about the cap, the jury foreman reached out to Meehan’s lawyers to express dismay, saying he felt “duped” by the state.

“I was literally sickened and brought to tears in fear of the mistake we made. I still am,” the foreman wrote in an unsolicited email. “Please know, and PLEASE let Mr. Meehan know that, had we had knowledge that that was the way it was going to work, we would NOT have written it that way.”

Schulman blamed his jury instructions, which did not specify jurors needed to count up all the individual instances of abuse, for the confusion. Schulman wrote he was trying to avoid influencing the jury by explaining the cap.

Schulman wrote that the jury’s $38 million award cannot be explained if it truly found only one instance of abuse had been proved. 

“An overly clever logician might say that the jury could have found that plaintiff proved one instance of abuse, disbelieved his testimony regarding all of the other instances, and awarded $38,000,000 for the single instance,” Schulman wrote. “But this would be sophistry rather than true logic. No reasonable jury would award $38 million for a single instance of abuse. No reasonable jury would have believed plaintiff’s testimony as it related to a single hour and disbelieved his testimony as related to all of the other hours, days, weeks, and months.”

David Vicinanzo, one of Meehan’s lawyers, pushed for an emergency hearing in court to let the jurors clarify their verdict. Short of that, he argued the $475,000 cap ought to be applied to each incident proved at trial, which he pegs at at least 300 rapes alone. 

Schulman’s order Tuesday recommends a process by which he will determine the number of incidents to which the cap could be applied. In more bad news for the state, Schulman writes that in reviewing the trial record he found there were between 103 and 155 incidents proved at trial. That would put the total award at between $47 million and $73 million. 

The state legislature passed a bill creating a $100 million settlement fund for all of the victims. But Vicinanzo and Russ Rilee, the other lead attorney for the plaintiffs, said that fund unjustly limited the damages the survivors could seek. 

The fund is administered by former state Supreme Court Chief Justice John Broderick, who told NHPR last month that 418 survivors entered into settlement agreements, and most took less than $500,000. A few have received more, between $1 million and $5 million. But with at least 1,200 more civil trials pending, the $100 million settlement fund, which has already spent $66 million, will run dry.

The state has been criticized by survivors for the conflict of interest demonstrated by the fact it is defending itself in the civil trials while it is also supposed to prosecuting the alleged abusers. Out of the hundreds of alleged abusers named in the lawsuits, the state has managed to indict just 11 men, with the last of the indictments coming in 2021.

Lawyers representing hundreds of Sununu Youth Detention Center abuse claimants on Tuesday asked a judge to lift the court-imposed stay on litigation and let the victims pursue civil trials against the state.

In a new filing in the Merrimack Superior Court in Concord, attorneys David Vicinanzo and Rus Rilee accuse Attorney General John Formella of stalling the case so the state can pay as little as possible.

“Plaintiffs acknowledge that the State’s delay strategy and its related goal – paying as little compensation to as few victims as possible – is legally allowable to a certain point. But that point has come and gone. After decades of suffering in silence, it is time for Plaintiffs to be heard and receive justice,” they wrote in their motion.

The motion filed Tuesday is another sign that the victims are unhappy with the $100 million settlement offer approved by the legislature, and many do not plan to take the deal offered by the state. Instead, they want to go to trial.

Vicinanzo said Tuesday the list of more than 600 victims who filed suit continues to grow as more survivors come forward. The filing indicates there could be thousands of victims.

This year the state legislature approved a bill to pay out $100 million in settlements to the survivors. Still, Vicinanzo and others criticized the bill, saying it caps the settlement amounts, and effectively excludes many survivors from being able to obtain any settlement money.

“The New Hampshire legislature’s response to this tragedy has also been slow and underwhelming. It was not until late 2021 that the State legislature began discussions on a bill seeking to redress the harm suffered by the survivors. The bill that was ultimately signed into law last month falls well short of the “victim-centered, trauma informed” legislation that the Attorney General and legislators had promised and forces survivors to give up their rights for the mere chance to explore their options in this process,” they wrote in Tuesday’s motion.

David Meehan first came forward in 2017, telling State Police about the abuse he suffered at the center. Since then, hundreds of men and women have come forward to say they suffered sexual and other forms of abuse as children at the hands of some 150 staffers from 1960 to 2018, according to the lawsuit. That abuse includes gang rapes, being forced to fight each other for food, and being locked in solitary confinement for weeks or months.

“(T)hrough the actions of the Defendants in these matters, Plaintiffs were robbed of their childhoods and left with lifelong physical and emotional scars. The stories these individuals tell reveal unimaginable wrongs, including brutal rapes, forced abortions, broken bones, and weeks on end of isolation where individuals were at times shackled and forced to urinate and defecate, without a toilet, in the same room in which they slept,” they wrote.

The state has so far charged several former employees for their roles in the alleged abuse while simultaneously pursuing a settlement agreement. Vicinanzo and Rilee state that then-Attorney General Gordon MacDonald initially responded to the victims appropriately, pursuing a criminal investigation against the alleged abusers while negotiating a civil settlement. It was during the initial state response that Meehan and others agreed to stay their cases.

After MacDonald became Chief Justice of the New Hampshire Supreme Court in March of 2021, Formella replaced him as attorney general. The lawyers blamed Formella for what they alleged was a change in the state’s handling of the claims.

“Unfortunately, Plaintiffs detected a change in tenor and direction from the Attorney General’s Office following a change in leadership with Attorney General MacDonald’s appointment and subsequent confirmation to the New Hampshire Supreme Court in early 2021. Since that time, discussions with the Attorney General stalled, and the State began to adopt tactics seemingly calculated to delay, if not outright deny, justice for the survivors,” they wrote.

Michael Garrity, the director of communications for the Department of Justice, takes exception to that characterization of Formella’s response.

“Any suggestion that the Attorney General’s Office is ‘dragging its feet’ or ‘trying to pay out as little as possible’ is categorically false. Nothing could be further from the truth. We have been attempting to work with plaintiffs’ counsel in good faith and are disappointed by this inflammatory and unnecessary filing,” Garrity said,

The abuse should not have come as a surprise, according to the filing. It was well-known in the 1980s. Then-Attorney General Tom Rath warned leaders that the abuse at the detention centers would end up costing the state.

“There is no question that the potential exists for the YDC (Youth Development 3 Center) to be the next Laconia [State School] in terms of litigation,” Rath said in 1980, the Associated Press reported.

The Laconia State School housed mentally challenged people until the revelations of the ongoing neglect and abuse revealed in the 1970s. A 1979 class-action lawsuit found that the school that was supposed to be training and educating mentally challenged people was instead “a human warehouse where residents were often left alone to sit naked in their feces and urine. Staff prodded residents with hatpins, burned them with cigarettes, and kicked them. They also shut off the water at night, forcing anyone who was thirsty to drink from the toilets,” according to The Boston Globe.

Rath told the Associated Press that the state was deficient in dealing with the abuse within the juvenile justice system.

“[I]f there is an area where we have been deficient in this state, it has been in this regard,” he said at the time.