Anticipating that the bankruptcy court may soon send child sexual-abuselawsuits to trial, lawyers for the San Diego diocese are seeking tohave a different federal judge determine how much the cases are worth.
Attorneys for Bishop Robert Brom say a reason for the move is thatthey plan to make a legal challenge on constitutional grounds that isunsuited to be heard in bankruptcy court.
But lawyers for nearly 160 men and women who havesued the Roman Catholic diocese for covering up sexual abuse by clergymembers and others say the bishop is merely trying to duck the publicspecter of jury trials.
Meanwhile, weeks of closed mediation talks with a federalmagistrate have failed to produce a settlement of the abuse claims,nearly all of which were filed in 2003.
A key question now is: What is likely to spur a settlement?
Veteran legal observers say to look no further than last month'srecord, $660 million agreement between Los Angeles Cardinal RogerMahony and attorneys for 508 plaintiffs to see the effect a loomingtrial has on settlement talks. The Los Angeles diocese settled on theeve of the first trial there.
The matter of how to value the abuse lawsuits is set to bedebated before federal bankruptcy Judge Louise DeCarl Adler on Aug. 23.She will consider a motion by the victims' attorneys to send dozens ofthe lawsuits back to state court for trial dates.
The diocese wants to take the matter out of Adler's hands,however. Brom's attorneys, in a motion filed two weeks ago, are askinga U.S. District judge to estimate the value of the abuse lawsuits in away that does not involve testimony in open court.
In a response filed yesterday, attorneys representing the sexual-abuse victims called that idea “forum shopping.”
They said the diocese's action isabout “fleeing a state court system that has resulted in averagesettlements well above the amount it wants to pay.”
The diocese has offered $95 million, or about $600,000 per victimon average, to settle the abuse lawsuits and emerge from Chapter 11bankruptcy protection.
Diocese attorneys say that offer reflects Brom's goal of tryingto fairly compensate the victims while protecting the church's missionof educating Catholic children and ministering to the spiritual needsof parishioners.
In court documents filed yesterday, plaintiffs' attorneys notethat the Orange County diocese settled more than 90 abuse suits in 2004for an average of $1.15 million apiece, and that the Los Angeles casessettled for $1.3 million on average.
In March, on the first day of the bankruptcy case, Adler madeit clear that she would “not be deciding the merits of the abusecases.”
She said the value of the abuse claims will be resolved in oneof three ways: They will be settled before a mediator, arbitrator orsettlement judge; they may be estimated by the U.S. District Court; orthey will be tried.
Closed mediation talks continue before Magistrate Judge Leo Papas. Anintense week of mediation is scheduled beginning Aug. 13, in advance ofAdler's ruling on whether to release the cases for state court trials.
The diocese's request to have the case-valuation issue decidedby a U.S. District judge – whose power supersedes that of bankruptcycourt judges – is expected to be considered soon. No hearing date hasbeen set. One reason diocese attorneys give for wanting the matterplaced before a U.S. District judge is that they hope to again arguethat the 2002 California law allowing lawsuits regarding decades-oldabuse incidents is unconstitutional.
The diocese has raised that issue twice before in state court and once in federal court. It lost each time.
A man with long experience mediating and deciding such complexand high-stakes issues is retired U.S. District Judge Lawrence Irving.
“I've handled a lot of mass tort (personal-injury) cases, andone thing is typical of all of them: They never go to trial,” Irvingsaid.
“What will force the diocese to settle these cases is to setthem for trial immediately. And remember, both the bankruptcy judge anda U.S. District judge have the power to remand these cases for trial.”