By Alan Prendergast
By Michael Roberts
By Michael Roberts
By Amber Taufen
By Patricia Calhoun
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Yet the logistics of any negotiation were daunting from the start. Some of the defendants were eager to settle but wanted a "global" deal with every possible litigant. Several families of the injured and dead had no attorneys and no interest in litigation, and Wahlberg was in no position to negotiate on their behalf. ("Some of the parents were separated, and some of them weren't even speaking to each other," he recalls.) And what about so-called "zone of danger" claims that might arise from people who suffered no physical injury but witnessed the attack and might assert claims of emotional distress?
The plaintiffs decided to bring in the Judicial Arbiter Group, a well-respected private mediation service made up of prominent attorneys and former judges. It would be up to JAG to contact unrepresented Columbine families, to assess the potential value of various injury claims, and to decide how to divide up the settlement funds among dozens of plaintiffs. The amount of individual awards would be confidential, so that no one family would know what the others received. The arrangement had its advantages -- particularly since JAG refused to charge even an administrative fee for its services -- but it also created a dramatic rift between the families of the injured and those who'd lost a loved one at Columbine.
Under Colorado law, damages for wrongful-death claims have a statutory cap of $366,000. Injury claims, depending on the circumstances, can be worth much more. The mediation process treated every death claim as being of equal value -- but how much is a dead child worth compared to a lifetime with a spinal cord or brain injury? The families of the severely injured had a legitimate argument that their financial needs were greater, but some of the families of the dead weren't eager to settle at any price: They wanted to go to court -- or at least to the discovery stage -- to find out what happened and why. Their attorneys hinted that an arrangement that allowed the killers' parents to fork over insurance money without digging into personal assets wouldn't satisfy all of the parties involved.
"The people with death claims had great resistance to these settlements," Wahlberg acknowledges. "They wanted a guaranteed percentage, but it was whatever the arbiter rules. I would have done a disservice to my client to treat all the claims equally. I'm sure some families didn't get very much money, in the final analysis."
But the alternative, Wahlberg insists, was much worse. "What if a jury found that Eric and Dylan are 99 percent at fault for what happened and everybody else is only 1 percent responsible?" he asks. "There's a scenario under which a jury could refuse to hold the parents or the gun suppliers responsible, and we would have lost the case. The overwhelming majority of the injured were behind the settlement."
Ultimately, the job of playing Solomon fell to JAG's Jim Carrigan, a retired Colorado Supreme Court justice and former federal judge. After months of reviewing medical records and other data, Carrigan worked out his own plan for awarding the $2.85 million put up by the various insurance companies. He lamented that an adequate settlement would require millions more. "JAG spent enormous amounts of time trying to be fair," Wahlberg says. "How can you say that this injury is worse than that one, when they're all horrible? Carrigan really wrestled with this."
By the time the details were finalized, the alliance among the plaintiffs had fractured badly. The families of five slain students agreed to settle with the gun suppliers but are still pursuing their lawsuit against the killers' parents. The family of a sixth, Isaiah Shoels, also refused to sign off on the Harris-Klebold offer and is pursuing its case against the parents, although the Klebolds' attorney recently filed a motion seeking to compel the Shoels family to accept the settlement with his clients.
Subsequent settlements followed. After U.S. District Judge Lewis Babcock threw out most of the families' claims against the Jefferson County Sheriff's Office and the school district, those defendants decided to head off future appeals by offering the litigants a modest award: $15,000 from each agency to each family. The one case against the sheriff's office that Babcock didn't dismiss, the Sanders case, was settled in August for $1.5 million. ("I always thought that was a real good claim," Wahlberg says. "They let that man bleed to death. I don't fault the family for settling, but part of me would have loved to see that one go forward.")
Several cases are still pending, including claims against one of the gun vendors at the Tanner show and Mark Taylor's lawsuit against the manufacturer of Luvox, the anti-depressant prescribed for Eric Harris. Taylor's case has been ardently contested by the drug's maker, Solvay Pharmaceuticals, but it could lead to an airing of the killers' homemade videos at trial -- the first public glimpse of the "basement tapes" since December 1999, when they were leaked to Time magazine.
For the most part, though, the lawsuits have not shed much light on what happened at Columbine. The plaintiffs won a minor victory in their settlement with Robyn Anderson, which required her to give a videotaped deposition about the gun purchases she made for the killers. "It showed how cavalier the Tanner Gun Show dealers are about the law," Wahlberg says of the tape. "Let's say I'm 21 and you're eighteen, and we walk into a liquor store together. Can we have you pick out the bottle, show them my ID, and then hand you the booze and walk out? That's how it went down with Anderson."