Ruling on Bradley class-action suit set for Nov. 13

$123M settlement includes $1M for victims' services
November 9, 2012
Superior Court Judge Joseph Slights III will determine whether to accept a $123.15 million settlement in the class-action civil suit against convicted pedophile Earl Bradley, Beebe Medical Center, the Medical Society of Delaware and five doctors. SOURCE FILE PHOTO

Tuesday, Nov. 13, is expected to be a landmark day in the class-action civil case against pedophile pediatrican Earl Bradley

Superior Court Judge Joseph Slights III is expected to approve a settlement in the case, designed to compensate Bradley's many victims for the crimes they suffered while at the same time allowing Beebe Medical Center to avoid bankruptcy.

John Culhane, director of Widener University's Health Law Institute, said the Bradley case is highly unusual in that it is a sexual-abuse case that will be settled through class action. Culhane also said the mechanism by which victims will be compensated and the establishment of a victims' fund are unprecedented.

He said sexual-abuse cases usually do not lend themselves to class-action suits because the standard of proof must be applied to the entire class, not a single individual. Not all victims are abused in the same way, so it is difficult for attorneys to win class-action sexual-abuse cases, Culhane said.

The sheer size of the Bradley settlement - which has more than 900 members in the class - can be compared with sexual abuse cases involving the Catholic Church.

But Culhane said most of the Catholic Church cases were not class-actions. Those cases also usually involved numerous priests, while the Bradley case concerns the actions of a single offender.

Irwin Zalkin, a California attorney who specializes in sexual-abuse cases, said, “It’s one of the largest I’ve seen for essentially coming out of one case. It’s really substantial.”

Zalkin would know; he’s been the lead lawyer on the largest known sexual-abuse settlement in U.S. history - $660 million from the Catholic Church in Los Angeles. He was also lead attorney on the largest known per-victim settlement in U.S. history, a $200 million settlement for 144 victims of priests in the diocese of San Diego.

Zalkin said settlements are less risky than going to trial.

“A settlement is a sure thing," he said. "For people and for victims, they are going to get compensated. It eliminates the elements of risk that a trial may have.

“For the institutions, it’s essentially the same thing. They know what their obligation is. It’s a fixed amount and there is not the variable risk in what a jury may award. A good settlement is one where neither side is overjoyed by what the outcome is,” he said.

Zalkin said the large number of victims in the Bradley case is another reason a settlement is preferable, because a single case could theoretically deplete the available assets, leaving nothing for the rest of the victims.

Culhane said a settlement was the right way to go as a way to end the litigation as soon as possible while sparing the victims from a trial.

Wilmington attorney Thomas Neuberger agreed. “You never want to relive the nightmare. You’re just making them go through the trauma again,” he said.

In addition to sparing victims from reliving the trauma, he said, settlement also allows victims to avoid questioning by lawyers for the opposition.

“These kids do not need to go through that kind of hell. It’s always best if you can get a fair settlement and not have a child-abuse survivor take the stand,” Neuberger said.

Marc Felizzi, director of the Department of Social Work Baccalaureate Program at Delaware State University and an expert on child sexual abuse, said, “Every time a victim goes into a courtroom they are running the danger of being retraumatized." A settlement means these kids don’t have to testify or go to court, he said.

"Much like when they knocked down his [Bradley's office] building, it’s a step toward healing for them,” Felizzi said.

If Slights approves the settlement as expected, it will end further claims against Beebe and related claims against the Medical Society of Delaware and doctors Carol Tavani, Lowell Scott, James Marvel and Nicholas Berg, accused of having knowledge Bradley was abusing patients and failing to report it.

What next for victims?

While an approval of the settlement would mean an official end to the civil proceeding, the aftermath is still in its early stages for the victims.

An Oct. 10 joint statement by the attorneys involved said the money pool is made up of insurance proceeds from Beebe Medical Center and Delaware Medical Society, cash from Beebe and a fund that will pay for future medical treatment for victims. Although the precise nature of future treatment has not yet been defined, Beebe is expected to provide $1 million in future medical services for victims.

Felizzi said, “I would hope that there is something built in there for their recovery. This is stuff that could last a lifetime for a kid if it's not addressed properly, and in Sussex County you don’t have great resources per se; you have very few counseling resources.”

He said the effects of abuse on children could manifest themselves in many different ways, such as antisocial behavior, short attention spans, acting out sexually, clingy or distant behavior, anger and difficulty interacting with others.

Treatment of these issues can include play therapy for younger children, and later talk therapy as they get older, Felizzi said. One of the greatest difficulties in treating victims, he said, is helping them take the blame off themselves and put it on the perpetrator.

“With a child it's much more profound. The volume is turned way up, if you will - it’s right in front of you,” he said.

What will the attorneys get?

Neuberger said in this case, Slights has the authority to set legal fees, which are generally deducted from the victims' compensation. Typically, attorney fees in Delaware are 33 to 39 percent for cases involving adults, he said.

Zalkin said most jurisdictions have restrictions on the percentage attorneys can take in cases involving minors, typically 25 percent or one-third. Zalkin said attorneys could argue for more in court if they can show good cause, and attorneys can also attempt to recoup costs for expenses not considered part of the fee, such as evaluations by outside forensic psychologists.

The awarded amounts will vary according to factors such as the severity of the abuse, Neuberger said. In the Bradley case, the very young age of some victims makes the effect of abuse more difficult to determine or measure. Victims in the clergy abuse cases were older, so the effects of abuse - drug addiction and alcohol abuse, among other issues - were clearer, he said.

Neuberger, who was the lead attorney in the civil sex-abuse case against the Wilmington Catholic Diocese, said the Bradley settlement follows the template laid out in that case.

He said attorney Thomas Rutter was named arbiter of the money, which will be placed in a trust for the victims under the supervision of the Court of Chancery.

Rutter, a former judge in Philadelphia’s Court of Common Pleas, served a similar role in the case of the Wilmington Diocese, which was forced into bankruptcy after paying out $146 million to 77 victims. Neuberger praised Rutter’s involvement in the case.

“He’s a proven commodity,” Neuberger said. “When in doubt, I believe Judge Rutter will make an award versus not make an award. I feel very confident that Judge Rutter will feel there is enough evidence that the child was abused, even though they don’t have a video. To me, I’m sure he’ll feel every one of those children was abused because they were a patient. He’s very compassionate. They found the right person for the job.”

To help calculate the effects of the abuse, Rutter will be assisted by pediatrician and child forensic psychiatrist Dr. Anne Steinberg, a former faculty member at University of Pennsylvania Medical School and an expert in treating child sex-abuse cases.

Neuberger said in the Wilmington cases, the victims were looking back at their own lives; in the Bradley case, the psychiatrist will help Rutter have a reasonable medical probability of what to expect.

“All this methodology was pretty tried and true. The process leans in favor of an award, leans in favor of adequate compensation,” Neuberger said.

Another factor in how the money is distributed is the involvement of the Court of Chancery, which is the ultimate administrator of the trust set up for the victims.

“The court has to approve any kind of settlement that involves a minor or an injury to the minor. The state considers the child a ward,” Zalkin said.

“Since Chancery Court is involved, it is possible there will be some oversight into the legal fees. Usually, the lawyers modify their one-third fee to a lesser fee,” Neuberger said.

He said in the Wilmington Diocese case, the victims were all adults and could spend the settlement money however they wanted. In this case, because the victims are children, the money will be protected until the victims are 18 years old.

Neuberger said Slights could also put restrictions on the money to prevent reckless spending after the victim turns 18. He said the parents would likely end up as the trustees of the money, able to make decisions on how it is invested.

"Chancery’s probably going to have to come up with a whole set of rules. They don’t want 800 parents coming to them every three days saying ‘Can I pay a doctor bill for my child?’ The court is going to be overseeing what happens,” Neuberger said.

How the settlement works

Attorneys and hospital officials did not wish to comment on the case, which is under protective order until after Slights makes his ruling.

The class members have until Nov. 13 to join the settlement. According to an ad from the plaintiffs’ attorneys, if former Bradley patients do not enter the class before the settlement is approved, they may have no rights to recovery for injuries they may have suffered at Bradley’s hands.

Attorney Chase Brockstedt, who represents more than 80 members of the class, said notice has been mailed to the class members, but he could not comment beyond that.

The only official comment in the case has been the Oct. 10 joint statement laying out how the settlement was reached. Victims will be separated into five categories:

  • Category 1 – Clear and convincing evidence of abuse including intercourse
  • Category 2 – Significant evidence of abuse
  • Category 3 – Reasonable degree of probability that the child was abused
  • Category 4 – Child may or may not have been abused
  • Category 5 – Child was not likely abused.
Culhane said the videos Bradley took of his assaults will play a major role in how compensation is distributed, because the videos provide clear evidence of what happened.
Zalkin said allocation of compensation can be based a wide variety of factors, including the severity and length of the abuse, the age of the victim and the psychological impact of the abuse on the victim.

“In general, anyone allocating these funds will look at these factors and make an allocation within the limits of the global settlement. They’ll start with the average and then increase or decrease from the average in each case,” he said.

Neuberger said much of the money would go toward the middle of the pool - victims with either significant evidence of abuse or a reasonable probability they were abused. Referring to the Wilmington case, he said, “It was like a bell curve. You had some that were at the far right. But the majority of the awards all were in the middle. There are going to be some outliers on the high end.”

These outliers, Neuberger said, would likely be victims whose abuse was videotaped and where the victim is easily identifiable. He said other factors would play in, such as the severity and frequency of abuse.

The injury categories are set up in such a way as to avoid the top tier receiving all the money. Neuberger said it's likely various factors will be assigned a point value, with the highest value corresponding to the most severe and frequent abuse. The point value is then fractioned out against the size of the pool and applied as a percentage to the amount of money available in the settlement.

The Bradley settlement was 17 months in the making, as 16 class attorneys, attorneys for Beebe, the medical society, the doctors and the insurance companies finally reached an agreement. Zalkin said it is not unusual for a settlement to take a long time as insurers and insured battle over what is covered.

“There are a lot of moving parts. It’s a substantial amount of money. You probably have issues going back and forth between the carrier, the insurer and the hospital. Then you have the claims of the victims and the numbers of victims, sorting through their exposure for those,” he said.

Bradley, who owned BayBees Pediatrics in Lewes, was convicted in August 2011 of 24 counts of rape, assault and sexual exploitation of 86 children, although he was originally indicted for abusing more than 100 patients. In September, the Delaware Supreme Court upheld his conviction.

He is currently serving 14 life sentences and 164 years in prison at the James T. Vaughn Correctional Institute in Smyrna.