Colorado massacre survivors sued. How did 4 end up owing the theater $700,000?

By Nigel Duara

Aug. 30, 2016 10:52 AM PT

Los Angeles Times

DENVER — They had survived brain damage, paralysis and the deaths of their children. For four years, they met in secret as a group. Now, they were finally prepared to settle with the Aurora movie theater that became the site of one of the deadliest massacres in U.S. history.

Marcus Weaver kept a calm facade, but writhed with anxiety within. His dreams often return him to the theater, the sounds of gunshots and the feeling of his friend’s lifeless body slumped against him. After he escaped, he found a bullet hole in his shoulder.

On a conference call, the federal judge overseeing the case told the plaintiffs’ attorneys that he was prepared to rule in the theater chain’s favor. He urged the plaintiffs to settle with Cinemark, owner of the Century Aurora 16 multiplex where the July 20, 2012, shooting occurred. They had 24 hours.

But before that deadline, the settlement would collapse and four survivors of the massacre would be ordered to pay the theater chain more than $700,000.

The lights of the Century 16 theater in the background as dawn breaks with the crosses, messages and flowers at the roadside memorial in the foreground in Aurora, Col. on July 26, 2012.

The Times corroborated this account with four parties who were present at the settlement conference but declined to be identified because the negotiations were private.

A separate set of survivors had just suffered a devastating defeat in state court, where a jury of six decided that Cinemark could not have foreseen the events of that night, when James Holmes killed 12 people and injured 70 others in a 10-minute rampage at a screening of “The Dark Knight Rises.”

The survivors, some of whom had two or three attorneys with them, were told that the state case had decided the issue — Cinemark was not liable for the shooting, and U.S. District Judge R. Brooke Jackson, who oversaw the federal case, was about to issue an order saying as much.

The federal lawsuit was effectively over.

But Jackson wanted the survivors and Cinemark to end the case with a settlement. It was 8 a.m. June 23. For the next eight hours, attorneys for both sides inched closer to a deal.

At 4 p.m., Cinemark’s attorneys presented a settlement offer. Before it was read, a federal magistrate cornered Weaver to speak with him one-on-one. He asked Weaver to remember the slow pace of change in the civil rights movement, and told him that changing theater safety would also be slow.

“It was the biggest smack in the face,” Weaver said. “He was basically telling us, you’re right, they’re basically at fault, but there’s justice and then there’s true justice.”

It wasn’t a good deal, Weaver thought: $150,000 split among the 41 plaintiffs.

Weaver leaned in close to his attorney.

“That’s it?” he asked.

“That’s it,” Phil Hardman replied.

It was the biggest smack in the face.

— Marcus Weaver, Aurora theater shooting survivor

But the settlement would achieve the one thing Weaver had been pushing for, an acknowledgment that the theater chain would take new measures to protect patrons. Still, something was worrying him.

“It was the 12th hour, we were all feeling the same way. We all knew they were liable. We knew they were at fault,” Weaver said. “[The settlement] was a slap in the face. But I said, ‘Let’s go for it because it’s better than nothing.’”

The deal came with an implied threat: If the survivors rejected the deal, moved forward with their case and lost, under Colorado law, they would be responsible for the astronomical court fees accumulated by Cinemark.

The choice for the survivors was clear, Weaver said.

“Either seek justice and go into debt, or take that pitiful offering of money and the improved public safety,” Weaver said.

The plaintiffs and their attorneys all seemed to agree. They decided on a split of $30,000 each to the three most critically injured survivors. The remaining 38 plaintiffs would equally share the remaining $60,000.

Attorneys with Cinemark drafted a news release to distribute the next day.

Then one plaintiff rejected the deal.

The plaintiff, who had been gravely wounded in the shooting, wanted more money than the proposed share of the settlement. The Times is not naming the plaintiff because the plaintiff could not be reached for comment.

Weaver’s vision briefly blurred. The eight hours they had spent negotiating the deal, the weeks of the failed state court trial, the four years of anger at the theater since the shooting — all of it was for nothing.

“It was done then,” Weaver said.

He removed himself as a plaintiff immediately. So did 36 other people. Four plaintiffs remained on the case the next day, June 24, when Jackson handed down the order that Cinemark was not liable for the damages.

The court costs in the state case were $699,000. The costs in the federal case are expected to be far more.

“A blind guy in a dark alley could have seen [the state verdict] coming,” Hardman, Weaver’s attorney, said.

Several plaintiffs and attorneys, including those who would not comment on the settlement negotiations, expressed frustration with the way the state case was handled.

In that case, a New York attorney representing 27 people paid one expert $22,000 to testify. Cinemark paid five experts $500,000 to testify. Most damaging to their case, the state plaintiffs were not permitted to enter a crucial piece of evidence before the jury — a May 2012 warning from the Department of Homeland Security to theater chains nationwide concerning the potential for a mass-casualty attack on a theater.

“I strongly think that this guy was trying to make a name for himself and he wanted to get ahead of the curve,” Weaver said. “You’ve got this guy from New York representing people in Colorado who were probably misguided, to be honest.”

The case put forward in state court was so weak, the federal plaintiffs felt, that a rumor circulated among them that the case was a setup by Cinemark designed to fail.

“That’s ridiculous,” said Marc Bern, the attorney who argued the state case and is known for representing rescue workers from the Sept. 11 attacks. “We had all the resources possible. The only expert we needed was a security expert.”

In August 2015, Holmes was sentenced to life in prison without the possibility of parole, avoiding the death penalty.

Weaver, 45, has married and had a child since the shooting, a blue-eyed girl named Maggie. He still goes to therapy, which he said has helped him. The way the case ended, however, will never leave him.

“Theaters aren’t any safer,” Weaver said. “It’s almost like everything was for naught.”

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