Litif v. United States

• Citation: 682 F.Supp.2d 60
• Decision Date: 29 January 2010
• Docket Number: Civil Action No. 03-10087-WGY.,Civil Action No. 02-11791-WGY,Civil Action No. 02-11911-WGY
• Court: U.S. District Court — District of Massachusetts
• Parties: Anna M. LITIF, individually and in her capacity as Administratrix of the Estate of Louis R. Litif Luanne Litif, & Lee Litif, Plaintiffs, v. UNITED STATES, John Morris, & John Connolly, Defendants. John E. Davis and Robert P. Davis, in their capacities as Administrators of the Estate of Debra Davis, Plaintiffs, v. United States, John Morris, & John Connolly, Defendants. Marion Hussey, individually and in her capacity as Administratrix of the Estate of Deborah Hussey, Plaintiff, v. United States, John Morris, John Connolly, James Bulger, & Stephen Flemmi, Defendants.

682 F.Supp.2d 60

Anna M. LITIF, individually and in her capacity
as Administratrix of the Estate of Louis R. Litif Luanne Litif, & Lee Litif, Plaintiffs,
v.
UNITED STATES, John Morris, & John Connolly, Defendants.
John E. Davis and Robert P. Davis, in their capacities
as Administrators of the Estate of Debra Davis, Plaintiffs,
v.
United States, John Morris, & John Connolly, Defendants.
Marion Hussey, individually and in her capacity
as Administratrix of the Estate of Deborah Hussey, Plaintiff,
v.
United States, John Morris, John Connolly,
James Bulger, & Stephen Flemmi, Defendants.

Civil Action No. 02-11791-WGY
Civil Action No. 02-11911-WGY
Civil Action No. 03-10087-WGY.

United States District Court,
D. Massachusetts.

Decided: Jan. 29, 2010.

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COPYRIGHT MATERIAL OMITTED

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COPYRIGHT MATERIAL OMITTED

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Daniel M. Baeza, Jr., Lawrence Eiser, Bridget Bailey Lipscomb, U.S. Department of Justice, Mary McElroy Leach, Civil Division, U.S. Dept. of Justice, Washington, DC, Edward J. Lonergan, Boston, MA, E. Peter Mullane Mullane, Michel & Mclnnes, Cambridge, MA, for Defendants.

Dean A. Mazzone, Attorney General's Office, Boston, MA, District Attorneys for the Suffolk, Norfolk, and Middlesex Districts of Massachusetts, for Interested Party.

Edward E. Berkin, Susanne G. Reardon, Office of the Attorney General, Boston, MA, Ann M. Donovan, Law Office of Ann M. Donovan, Newton, MA, Michael J. Heineman, Mingace & Heineman, PC, Framingham, MA, Margaret Krawiec, U.S. Department of Justice, Washington, DC, Edward M. Reilly, Law Offices of Edward M. Reilly, Abington, MA, for Plaintiffs.

Elizabeth A. Ritvo Brown, Rudnick Berlack Israels LLP, Boston, MA, Third Party Witness.

MEMORANDUM OF DECISION AND ORDER FOR JUDGMENT

YOUNG, District Judge.

I. INTRODUCTION

The harrowing story of the FBI's succor of James J. Bulger, Stephen J. Flemmi, and their associates (the "Bulger Gang") has been told by several courts in this District. ¹ In this latest and likely last chapter, the families of Louis Litif, Debra Davis, and Deborah Hussey, seek recovery from the United States under the Federal Tort Claims Act (the "FTCA"), 28 U.S.C. §§ 2671 et seq.²

Despite years of legal wrangling and an extensive factual record, at its core this is a very simple case. Federal Bureau of

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Investigation ("FBI") agents actively protected a group of murderers from apprehension and prosecution in order to use them as informants against La Cosa Nostra. The agents did this over a span of nearly twenty years, despite being on notice that their informants were killers and would, and indeed did, continue to murder. Had a private person enabled physical harm in the way that these agents did, he would be liable in tort under the laws of the Commonwealth. Accordingly, the FTCA imposes liability on the government for the actions of its agents.

The individual defendants are in default, save for Bulger upon whom no adequate service has ever been perfected. These portions of the three actions are administratively closed. The actions against Morris and Connolly may be reopened should further proceedings absolve the government. As Flemmi is in default, the Court adjudicates him jointly and severally liable with the government to the Estate of Deborah Hussey.

After a brief description of the Plaintiffs and clarifications of certain evidentiary rulings made at trial, the Court will make factual findings and rulings of law pursuant to Federal Rule of Civil Procedure 52(b). It will then make findings and rulings as to damages. ³

A. The Plaintiffs

Louis Litif was a bookmaker who worked with Bulger and Flemmi. Litif was indicted for the murder of James Mat-era in 1979. Shortly thereafter, he sought to cooperate with the authorities by informing on Bulger and Flemmi. The pair murdered Litif before he could make any sort of deal with law enforcement. No one was ever indicted for his murder. Litif was survived by his wife Anne, his daughter Luanne, and his son Lee. The Estate of Louis Litif and his wife and children (the "Litif family") filed their administrative claim on September 10, 2001, seeking damages for conscious pain and suffering, loss of consortium, loss of net expected income, and intentional infliction of emotional distress damages.

Debra Davis was a paramour of Flem-mi's. The two met around 1971 when Davis was sixteen years old and Flemmi was forty-three. Davis disappeared in 1981 when she was twenty-six years old. Her body was discovered in October 2000. Flemmi eventually pled guilty to her murder in 2003. The Estate of Debra Davis and her mother Olga (the "Davis family") filed an administrative claim against the United States for conscious pain and suffering, funeral expense damages, and loss of consortium on September 17, 2001.

Deborah Hussey was the daughter of Marion and Thomas Hussey. Marion Hussey left Thomas Hussey and began living with Flemmi when Deborah Hussey was still a minor. Flemmi sexually abused Deborah Hussey, who was also involved in drug abuse and prostitution prior to her murder. Deborah Hussey disappeared in 1984. Her body was found in January of 2000. Flemmi pled guilty to her murder as well. The Estate of Deborah Hussey and her mother Marion (the "Hussey family") filed their administrative claim on January 11, 2002. They are seeking conscious pain and suffering and funeral expense damages.

B. Evidentiary Rulings

It is well established that the United States is not subject to offensive, non-

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mutual collateral estoppel. See United States v. Mendoza, 464 U.S. 154, 104 S.Ct. 568, 78 L.Ed.2d 379 (1984). That is, the Plaintiffs in this case cannot use the decisions in McIntyre or Limone conclusively to establish facts. Nonetheless, it is within the sound discretion of this Court to manage the cases before it efficiently. See, e.g., Brockton Sav. Bank v. Peat, Marwick, Mitchell & Co., 711 F.2d 5, 11 (1st Cir.1985); Fed.R.Civ.P. 83(b). To accomplish this task, the Court issued a case management order treating the factual findings of the following cases as requests for admission: McIntyre v. United States, 447 F.Supp.2d 54 (D.Mass.2006) [Doc. No. 204, Exs. A-C]; Limone v. United States, 497 F.Supp.2d 143 (D.Mass.2007) [Doc. No. 204, Exs. F-H]; Estate of Castucci v. United States, No. 02-11312 (D.Mass. March 31, 2008) [Doc. No. 204, Ex. E]; Estate of Halloran v. United States, No. 01-11346 (D.Mass. Nov. 19, 2007) [Doc. No. 204, Exs. F-H]; and Estate of Donahue v. United States, No. 01-10433 (D.Mass. Nov. 19, 2007) [Doc. No. 204, Exs. F-H].⁴ See Order dated June 22, 2009; [Doc. Nos. 188-189, 204]. Thus, any findings in those decisions not specifically denied by the government in its submission are treated as admitted. The Court reiterated its view of these admissions when it issued its tentative findings and rulings at the close of trial. Trial Tr. vol. 12, 27:20-23, July 24, 2009 ("[T]o the extent that I am warranted in finding as my colleagues have found in those other cases, I make the same findings in the same manner and to the same extent as my colleagues made."). This case management practice served its purpose in narrowing the issues for trial. Citations to McIntyre and Limone in the findings that follow should therefore be treated as admissions of the United States.

The evidentiary record in this case is also replete with statements of which the United States has manifested a belief in their truth. Under Federal Rule of Evidence 801(d)(2)(B) and United States v. Kattar, 840 F.2d 118, 130-31 (1st Cir. 1988), statements of federal prosecutors can be treated as party admissions against the United States. Prosecutorial statements that have come in evidence in this case include: the Agreed Statement of Facts ("Statement of Facts") from Flem-mi's criminal prosecution, Trial Ex. 50; Kevin Weeks' Superseding Information and the Government's Motion for Downward Departure, Trial Exs. 27-28; and the Stipulation of Criminal Activities from John Connolly's racketeering prosecution, Trial Ex. 47.

Finally, several statements in evidence were made by deceased persons, e.g., the murdered informant Brian Halloran or the late federal prosecutor, Jeremiah O'Sulli-van. These statements present a thorny problem involving both federalism and evidence law. The statement of a deceased person must overcome two evidentiary hurdles before it can be admitted: competency and hearsay. It must also fall within the ambit of Federal Rule of Evidence 601, which incorporates state competency law "with respect to an element of a claim or defense as to which State law supplies the rule of decision."

At common law, interested parties were not considered competent to testify. Although this rule was repealed, a vestige of it survives in various so-called "Dead

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Man's statutes." Essentially, these statutes preserve the competency disqualification where transactions with a deceased person are at issue, due to concerns that such situations are especially ripe for perjurious testimony. See 3 Jack B. Wein-stein & Margaret A. Berger, Weinstein's Federal Evidence § 601.05[l][a] (2d ed.2009).

In Massachusetts, however, the repeal of the interested party bar was complete. The statement of a deceased person was considered competent evidence provided that it met the general competency requirements for all testimony: personal knowledge and good faith. Of course, the hearsay rule also usually limited a witness from testifying to the statement of a deceased person. This bar too was removed in Massachusetts. "In any action or other civil judicial proceeding, a declaration of a deceased person shall not be inadmissible in evidence as hearsay... if the court finds that it is made in good faith and upon the personal knowledge of the declarant." Mass. Gen. Laws ch. 233, § 65. Accordingly, although the language of section 65 is couched in terms of admissibility and hearsay, its requirements for personal knowledge...