Charla Nash, right, talks with attorney Matthew D. Newman before for a hearing at the Legislative Office Building in Hartford, Conn., Friday, Aug. 10, 2012. Nash who was mauled in a 2009 chimpanzee attack is attending a hearing to determine whether she may sue the state for $150 million in claimed damages. (AP Photo/Jessica Hill) (David K Purdy)
It’s certainly not as easy as filing a lawsuit and going to trial.
Charla Nash, disfigured by her friend’s chimpanzee in 2009, is still hoping to have her day in court. But to do that, her lawyers first had to convince the state claims commissioner, J. Paul Vance Jr., that the state should allow her to sue. The state generally is immune to lawsuits, unless they are allowed by the claims commissioner.
And this is no run-of-the-mill personal injury case. Nash’s lawyers are seeking $150 million in damages. They say state officials knew the chimp, named Travis, was dangerous and did nothing about it.
Vance granted a motion last year by the state attorney general dismissing the claim. Nash’s only recourse is to convince lawmakers to overturn the claims commissioner’s ruling. She will present her case to the Judiciary Committee, which will then vote to either approve or deny her request to overturn Vance’s decision.
With the state General Assembly convening for its 2014 session, Nash’s appeal to state lawmakers is expected to be one of the big issues up for debate. A chairman of the Judiciary Committee said he expects a day-long public hearing. After a vote in the committee, the decision will be subject to final approval by the House and Senate.
Nash’s lawyers knew they were in for a battle from the beginning. Sources say they hired a lobbyist, Kevin Reynolds, who is also legal counsel for the Democratic Party, before the claims commissioner ever made a ruling dismissing Nash’s petition seeking permission to sue the state.
Reynolds will reportedly be paid $60,000 to represent Nash at the capital and try to convince lawmakers that she deserves her day in court. Reynolds has already been circulating documents to lawmakers stating their case.
“We believe this is a case that deserves to be heard by a judge of the Superior Court,” said one of Nash’s lawyers, Matthew Newman of Willinger Willinger & Bucci in Bridgeport. “We also think that [Vance] did not consider or at least did not properly consider all relevant and very compelling facts in reaching his conclusions. There were certain facts he did not mention in his memorandum that we think are very important.”
For instance, Newman said that a few months before the attack, a Fairfield man named Pierce Onthank was charged with illegal possession of a primate. According to court records, Onthank did not possess a proper permit to have the siamang, a type of gibbon.
Onthank’s case was later dismissed. Newman believes state Department of Environmental Protection officials should have similarly charged Travis’ owner, Sandra Herold, or at least removed the chimp from the home. He claims DEP officials had been warned that Travis was dangerous.
Vance touched on the claim that the state knew of the danger in his ruling.
“If there was a failure by the DEP to seize the animal … the duty owed was to the general public and does not create a statutory obligation to ensure the safety of a private individual such as (Nash),” Vance wrote.
State Attorney General George Jepsen filed a motion to dismiss Nash’s petition to the state claim’s commissioner, which Vance granted.
Vance told the Law Tribune that many people don’t seem to realize the case could still end up back before him. He said because he ruled on a motion to dismiss there was never a full hearing, including witness testimony.
Much like when an appellate court overturns a trial judge’s motion to dismiss, Vance said lawmakers could send the case back to him for a full hearing. If he again were to deny the claim, Nash would have to go back to the legislature a second time for permission to sue in Superior Court.
Vance didn’t have statistics immediately available on the number of claims he hears, though he said that number was in the thousands per year. He said the majority of claims are denied rather than granted, adding that roughly 40 percent of those claims are from inmates. He said roughly half of the claims go to a hearing. The others, especially those seeking a small amount of money, are usually decided in writing without a hearing. Vance said he does not mind when lawmakers overturn one of his decisions.
“It doesn’t bother me. People have the right to an appeal,” he said. “I’m fine with my decisions being looked at and considered by both sides.”
With all of the effort required to bring a lawsuit against the state by going to a claims commissioner and then to the legislature, some attorneys don’t think the effort is worth it. But most cases aren’t the magnitude of Nash’s.
“It’s an expense, both in terms of time and in terms of hiring a lobbyist,” said Michael Walsh of Moukawsher & Walsh in Hartford, who has brought claims before the claims commissioner but never to the legislature. “You need a case that will hopefully yield enough of an award that justifies it.”
Walsh said that, for example, a potential $50,000 verdict may not be worth the effort and cost to lobby lawmakers because the costs would keep deducting from any possible award in the end.
Last year, the legislature reportedly overturned five decisions by the claims commissioner, enabling the cases to proceed to court. Eleven other appeals were denied.
Lee Samowitz, a former state legislator, was one of the lawyers who successfully challenged one of Vance’s denials to lawmakers. Despite his success, he had strong words for the process.
“It’s disgusting,” said Samowitz, who represented Bridgeport as a legislator from 1982 to 2002. “The system rots. It’s the biggest disgrace Connecticut has.”
Samowitz represents Christian Perez, a University of Connecticut graduate from Bridgeport who tore cartilage in his knee after falling on ice outside Gampel Pavilion in 2009. His medical bills cost $16,000. Before the incident, Samowitz employed Perez as a paralegal. For that reason, Samowitz admitted he had an interest in the case.
Samowitz said Vance denied his claim to bring suit so he paid around $1,000, registered as a lobbyist, and asked lawmakers to overturn the ruling.
Samowitz now has a year to bring a lawsuit in state court, which he has not yet officially filed.
Samowitz admitted that the process was a bit easier for him given his experience as a lawmaker.
“I can see how other lawyers would have a really hard time with the concept,” said Samowitz, “and what happens is lawyers don’t want to take cases like this.”
Lawyers interviewed for this article had trouble recalling any high-profile cases on the level of Nash’s claim that have gone to the claims commissioner and the full legislature.
Newman, one of Nash’s lawyers, recalled two. Maria Torres of Florida sought permission from the claims commissioner in 1999 after a sex offender escaped a Connecticut prison, fled to Florida and sodomized and murdered Torres’ 1-year-old daughter. In 2002, the state legislature overturned the claims commissioner’s denial of a lawsuit against the state.
Newman also recalled the case of Marcy Vogel, whose face was shattered in 1991 after someone dropped a 17-pound rock off a highway bridge while she drove on Interstate 395 in Lisbon.
Newman said lawyers brought a case to the claims commissioner on Vogel’s behalf because that bridge was a known danger, as other rock-tossing incidents had occurred there. The commissioner denied the claim but the legislature later overturned him.
Newman is hoping for a similar result from the legislature this session for Nash.
“What she’s really looking for,” he said, “is her day in court.”