Did you ever chase after a rainbow looking for a pot of gold? I’ve read that it is an Irish legend that leprechauns bury pots of gold at the end of the rainbow. I suppose if you believe in leprechauns then you might as well believe that would be the logical place to bury their loot.
Now it seems the Whitey’s heirs are looking for a pot of gold, or at least the news of that is what seems to have excited the local media allowing them to write about something on those days when you’d rather phone in a column than do any real work associated with writing it. Whitey’s attorney Hank Brennan told the Wall Street Journal “that he will bring wrongful death and negligence claims on behalf of Bulger’s estate. Brennan told The Associated Press he expects to begin filing a number of lawsuits over the next month, but declined to provide further detail.
I equate the planned suit of Whitey’s estate against the government as looking for a pot of gold. This is because the chances of any recovery by his estate is equal to the chance of finding that proverbial pot of gold. That makes me wonder why the administrator of Whitey Bulger’s estate, once he is appointed, would bother.
I had a client come to me when I practiced civil law seeking to bring a suit. He told me he was sitting in his house this particular evening and a car came speeding down the street, rammed into the car that belonged to the person across the street, and skid up onto the neighbors lawn and slammed into the front porch seriously damaging it. I asked him what damages he incurred as a result of this. He was confused asking: “what do you mean damages, you heard what happened, I want to sue.”
I don’t know if he ever did. I refused to sue on his behalf. I told him he was wasting his time suing because even if he had a cause of action, which I didn’t see, he had no damages.
That is the problem with Whitey suing the government or anyone else. He has no damages his estate can claim. I’m sure his attorney will go through the motions of bringing a suit and perhaps the heirs of Whitey’s estate will want that to happen but if they are looking for a pot of gold it’s just not going to be there. Given that, I’d assume after some serious consideration his heirs would not be interested in prolonging this sad saga.
The first thing that would have to be considered is where would the action be brought. I assume it will be in Boston’s Federal Court. The next thing would be under what federal statute. I assume it will be 42 U.S.C. § 1983, popularly known as “Section 1983.” This is a federal law that allows lawsuits for violations of constitutional rights, the “deprivation of any rights, privileges, or immunities secured by the Constitution and laws.”
It would be a wrongful death action under that section. Here you can read about this type of action. Next we would have to decide the state law that would apply concerning a wrongful death action. I assume it will be that of West Virginia. Here is its law.
It provides an estate is entitled to damages for among other things: “A) Sorrow, mental anguish, and solace which may include society, companionship, comfort, guidance, kindly offices and advice of the decedent; (B) compensation for reasonably expected loss of (i) income of the decedent, and (ii) services, protection, care and assistance provided by the decedent; (C) expenses for the care, treatment and hospitalization of the decedent incident to the injury resulting in death; and (D) reasonable funeral expenses.”
I don’t see much money coming to the estate from those items. It doesn’t mention the estate recovering for Whitey’s pain and suffering but even if it did, how much could there have been when he was probably unconscious after he was struck in the head with the paddle lock and during most of the attack on him.
Then there’s the further question: who gets any money that is recovered. As I understand it any money that can be traced to Whitey goes to the relatives of his victims. That should be another disincentive to the administrator of his estate to authorize a suit.
Attorney Brennan is suing for damages but he also said: “It’s important for the family and the public to know why the prisons decided to wheel an 89-year-old man with a history of heart attacks into one of the most dangerous prisons in the country.” This seems to be a reversion back to the trial tactics at Whitey’s trial where he admitted his crimes but attacked the government for letting him commit them.
I’m not sure it’s in the administrator’s best interest to be rehashing Whitey’s life and his conduct in prison. What will they gain out it? Even in punishing the government if it did something wrong, Whitey’s not a person who will elicit sympathy from a jury and you can be sure every sordid detail of his life will be presented to a jury were the case be tried. Damages can be awarded in the amount of one dollar.
Sometimes it is best to let the dead lie in peace and the survivors continue on with their lives. It escapes me that the administrator of Whitey’s estate wants to have this linger any further in the public eye especially when the chances of a monetary award are as elusive as a leprechaun at first light.