Davis v. United States

Decision Date20 January 2012
Docket NumberNos. 10–1418,10–1466,10–1465,11–2254,11–2256.,10–1419,10–2369,10–2368,s. 10–1418
PartiesJohn E. DAVIS, Administrator of the Estate of Debra Davis; Robert P. Davis, Administrator of the Estate of Debra Davis; Marion Hussey, in her capacity as Administratrix of the Estate of Deborah Hussey, Plaintiffs, Appellees/Cross–Appellants, v. UNITED STATES of America, Defendant, Appellant/Cross–AppelleeJohn J. Connolly; John M. Morris; Lawrence Sarhatt; H. Paul Rico; Robert Fitzpatrick; James Ring; Roderick Kennedy; James Greenleaf; James Ahearn; James Bulger; Stephen Flemmi; John Does 1–50, Defendants.
CourtU.S. Court of Appeals — First Circuit


Thomas M. Bondy, Appellate Staff, Civil Division, Department of Justice, with whom Tony West, Assistant Attorney General, and Jonathan H. Levy, Appellate Staff, Civil Division, Department of Justice, were on brief for defendant, appellant/cross-appellee.

Ann M. Donovan with whom Law Office of Ann M. Donovan was on brief for plaintiff-appellee/cross appellant Marion Hussey, in her capacity as Administratrix of the Estate of Deborah Hussey.

Michael J. Heineman with whom Paul J. Griffin and Mingace & Heineman were on brief for plaintiffs-appellees/cross-appellants John E. Davis and Robert P. Davis, Administrators of the Estate of Debra Davis.

Before BOUDIN, HOWARD and THOMPSON, Circuit Judges.

BOUDIN, Circuit Judge.

The United States appeals from judgments awarding damages to the families and estates of two women, Deborah Hussey and Debra Davis, killed by James Bulger and Stephen Flemmi in the 1980s. Litif v. United States, 682 F.Supp.2d 60 (D.Mass.2010). It also appeals from an award of $10,000 in attorney fees in the Davis case as sanctions against the United States. Davis v. United States, 739 F.Supp.2d 64 (D.Mass.2010). The families and estates of the murder victims cross-appeal, seeking an increase in damages for the victims' pain and suffering.

This appeal is one of a number of cases in this circuit in which families of victims murdered by members of a Boston organized crime gang have brought suit under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b)(1), 2401(b), 2671 et seq.1 The suits have aimed to impose liability on the United States for the actions of Federal Bureau of Investigation (“FBI”) agents for protecting gang members who were also FBI informants. Unlike a number of such suits, the timeliness of the Hussey and Davis claims is not disputed.

The claims stem from the murders—in 1981 and 1984 or 1985, respectively—of Debra Davis (Davis), Flemmi's girlfriend, and Deborah Hussey (Hussey), the daughter of Marion Hussey (with whom Flemmi had a relationship and lived for some years). Both Davis and Hussey, then in their mid–20s, were murdered in the same fashion: on separate occasions Bulger and Flemmi lured each one into a house and then strangled her. The district judge found that the motive for the murders was primarily domestic rather than to kill business associates of, or potential witnesses against, Flemmi and Bulger. Litif, 682 F.Supp.2d at 71, 73.

The bodies of the women were not discovered until 2000, and Flemmi pled guilty to their murders in 2003. Litif, 682 F.Supp.2d at 64. The Davis and Hussey families filed complaints in the district court against the United States under the FTCA in 2002 and 2003.2 The gist of the claims, drawing upon Massachusetts tort law, was that the FBI had caused the women's deaths through their flagrant negligence in utilizing Flemmi and Bulger as informants, continuing to do so even after becoming aware of the pair's dangerousness, shielding them from prosecution, and “failing to control” them.

The cases were consolidated,3 and they were tried by the district judge in a bench trial. At the conclusion, the district court found the government liable for negligence. It awarded the Davis estate $1 million for her mother's loss of consortium, the Davis and Hussey estates $350,000 each for pain and suffering resulting from their murders, and much smaller amounts for funeral expenses. Litif, 682 F.Supp.2d at 85. Later, the court added sanctions against the government as described more fully below. Davis, 739 F.Supp.2d at 69–70.

Certain of the findings of fact and chronology help to put the judgment in context:

1964: FBI agent Paul Rico opens Flemmi as an informant. Litif, 682 F.Supp.2d at 68.

1969: Flemmi is indicted for the 1967 murder of Edward Bennett and attempted murder of John Fitzgerald. McIntyre, v. United States, 447 F.Supp.2d 54, 78 (D.Mass.2006). Rico tipped Flemmi off about the pending indictment and Flemmi was able to flee to Canada and escape further prosecution. When he tipped Flemmi off, Rico had intelligence information that Flemmi was guilty of the murder. Litif, 682 F.Supp.2d at 68–69.

1971: Rico opens Bulger as an informant. Both Bulger and Flemmi were designated as top echelon informants, and were part of the FBI's overall priority at that time of prosecuting La Cosa Nostra, a rival organized crime group. Id. at 68.

1974: Flemmi returns to Boston after Rico told him it was safe to do so. Id. at 69. The murder and attempted murder charges were dismissed in November of 1974 due to unavailability of the principal witness.

1975: FBI agent John Connolly takes over as Bulger and Flemmi's handler. McIntyre, 447 F.Supp.2d at 73–74.

1976: Connolly tells Bulger that Richard Castucci, a bookmaker, has been cooperating with the FBI. Castucci was murdered shortly thereafter and Flemmi and Bulger disposed of the body. McIntyre v. United States, 545 F.3d 27, 31 & n. 5 (1st Cir.2008). The FBI received information following the murder that Bulger was responsible. Litif, 682 F.Supp.2d at 69.

1979: Connolly asks a federal prosecutor to remove Bulger and Flemmi from a race-fixing indictment; this request was a “substantial factor, if not the sole reason, that Bulger and Flemmi avoided indictment.” Id. at 70. Connolly then asked Bulger and Flemmi to not murder the cooperating witness in that case. Id.

1980: Louis Litif, a former top echelon informant handled by Connolly and a bookmaker, is murdered by Bulger and an associate (a finding of fact disputed by the government in today's companion case, see note 3, above) after Connolly leaked Litif's recent offer to cooperate with law enforcement and to incriminate Bulger. Litif, 682 F.Supp.2d at 70.

1980: State police decide to wiretap a garage frequently used by Bulger and his associates and Connolly leaks this information to Bulger. Id. at 71.

1981: Bulger and Flemmi murder Debra Davis, Flemmi's girlfriend of nearly ten years, by strangling her, because she “showed an inclination to get on with her life (without Flemmi) and had displayed an interest in another man.” Id. at 71.

1983: In response to an inquiry from out-of-state law enforcement officers, Connolly writes a memo establishing a plausible alibi for Bulger for the murders of Roger Wheeler and John Callahan. Id. at 72. At least one of these alibis was pre-arranged in a phone call between Bulger and Connolly. McIntyre, 447 F.Supp.2d at 82.

1984 or 1985: Flemmi and Bulger murder Deborah Hussey by strangling her because she had become an “inconvenience.” Litif, 682 F.Supp.2d at 73.

The FTCA is a limited waiver of the sovereign immunity that the United States otherwise enjoys, and it allows suits against the United States for money damages for

personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

28 U.S.C. § 1346(b)(1). Thus, the legal questions in this case—centering on principles of causation and damages—are primarily those of Massachusetts law.

On appeal, the government challenges both the district court's reading of Massachusetts case law on proximate cause (as well as its factual findings underlying but-for causation) and the award of loss-of-consortium damages to Davis' deceased mother. It also contests the sanctions against it. The Davis and Hussey families have cross-appealed, seeking an increase in the respective $350,000 awards of damages for conscious pain and suffering.

Liability. Massachusetts' Wrongful Death Act, Mass. Gen. Laws ch. 229, § 2 (2011), imposes liability, inter alia, on [a] person who [ ] by his negligence causes the death of a person.” The statute largely incorporates common law tort principles. Matsuyama v. Birnbaum, 452 Mass. 1, 890 N.E.2d 819, 836–38 (2008). In addition to wrongfulness, it must be shown “that defendant's conduct was a but-for cause of [plaintiff's] injury ... and that defendant's conduct was a ‘substantial legal factor’ in bringing about the alleged harm to the plaintiff.” Jorgensen v. Mass. Port Auth., 905 F.2d 515, 524 (1st Cir.1990).

Our review of FTCA bench trial awards is for clear error as to factual issues and de novo as to questions of law. Wojciechowicz v. United States, 582 F.3d 57, 66 (1st Cir.2009). “The existence and extent of a duty of care are questions of law; whether any such duty has been breached and whether proximate cause exists are questions for the factfinder, whose determination is binding on appeal unless clearly erroneous.” Id. (internal quotation marks and citations omitted). As it happens, proximate cause can also raise legal issues as well as factual ones; but-for causation is almost always a factual issue.

The district court found that the FBI's handling of Flemmi and Bulger was “negligent,” Litif, 682 F.Supp.2d at 76; but, as the facts demonstrate and the district judge's closing denunciation confirmed, id. at 86–89, it was negligence of a wildly reckless flavor. See also note 1, above. No detailed recitation is required here because the government makes no attempt to challenge the findings of wrongdoing by...

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