Aurora Victims Ordered To Pay Massive Court Costs–Again

FRIDAY UPDATE: Cinemark appears to be feeling the sting of bad press, with 9NEWS updating last night on the company at least starting to back off–with caveats, of course:

The victims of the Aurora theater shooting have been given an ultimatum: They will not have to pay the nearly $700,000 in court costs they owe the nation’s third largest theater chain if they drop their appeals in a civil case…

Among the people who sued Cinemark and now may have to pay thousands of dollars are the families of Alex Teves and Jessica Ghawi, who died in the movie theater. Yousef Gharbi, who survived a bullet wound to the head and Farrah Soudani, whose friends had to hold her insides in after she was shot, also owe the theater money.

…9NEWS Legal Expert Scott Robinson told 9NEWS back in June that he believes Cinemark asked the victims to repay court costs “to discourage future lawsuits against their chain for personal injuries.”

“The question is, how big is going to be the backlash that the public chooses to impose on what appears to be a corporate bully?” Robinson said.


Aurora shooting memorial, July 2012.

Aurora shooting memorial, July 2012.

Salon reports on yet more insult piled on injury for survivors of the 2012 mass shooting at an Aurora, Colorado movie theater–after the family of shooting victim Jessica Ghawi was ordered to pay the legal fees of online gun and body armor dealers after unsuccessfully suing them for damages, more victims are on the hook for massive amounts of money to corporations who, it can be reasonably argued, need it a lot less:

In 2012, 12 people were killed and at least 70 others were wounded when James Holmes walked into the Cinemark’s Aurora Century 16 theater and opened fire.

While Holmes was found guilty in 2015, a group of survivors filed a state lawsuit against Cinemark in 2012, claiming lax security allowed the heavily-armed Holmes to enter the theater and carry out the shooting. Ultimately, a jury of six sided with Cinemark in the civil case in state court, finding that there was no way they could have foreseen the attack and that additional security would have done little to stop Holmes, who was wearing body armor and was armed with gas canisters and multiple firearms.”

A judge at the same time also dismissed a similar lawsuit in federal court, saying Cinemark’s lack of security was not a substantial factor in the deaths.

Colorado law allows the winning side of civil cases to seek costs. [Pols emphasis] According to the Los Angeles Times, Cinemark’s lawyers at the time told a judge the money was needed to cover the costs of preserving evidence, retrieving and copying records, travel and other expenses – including $500,000 for expert testimony.

As the Los Angeles Times reports, survivors are now on the hook for some $700,000 in court costs largely because a few survivors refused a settlement offer from Cinemark:

“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… [Pols emphasis]

Then one plaintiff rejected the deal. Her suffering had been profound: Her child was killed in the shooting, she was left paralyzed and the baby she was carrying had been lost.

The settlement offered by Cinemark’s lawyers was for $30,000 to each of the three most severely injured plaintiffs, with the remaining 38 splitting up a paltry $60,000 between them. It’s not for us to judge whether this monetary settlement should be considered appropriate given Cinemark’s alleged liability, or whether the wounded plaintiff who lost her unborn child was justified in rejecting the deal.

What we can say is that these victims should not be paying Cinemark. We understand that Colorado law as it stands today is intended to protect defendants in civil suits by forcing plaintiffs to consider the consequences of frivolous lawsuits. In this case, however, much like the suit by Jessica Ghawi’s parents against online weapons dealers, it was not a frivolous suit–certainly not when you realize that Cinemark was about to settle.

Today it’s being reported that the plaintiffs are appealing the order to pay Cinemark $700,000 in “reasonable” court costs. We hope that this situation is resolved in a way that doesn’t cause further harm to victims and survivors of the Aurora shooting. Looking ahead, a legislative revisiting of this unfortunate situation seems called for.

This is not an outcome for anyone to celebrate.

27 Community Comments, Facebook Comments

  1. Moderatus says:

    That's how the legal system works. We know liberals LOVE frivolous lawsuits, but there needs to be accountability. What's your proposal?

  2. Craig says:

    I hate it when I agree with the "gentleman" above.  But in this case, these folks made their bed and now they have to lie in it.  Both Colorado and Federal law are absolutely clear that you can't bring these types of suits.  Period.  They knew this when they filed suit.  If you don't like the laws, talk to your Congressperson or Legislator.  But that is the law right now.  The  defendants  here get their attorneys' fees.  This is not something that is within the discretion of the judge.  It is the law.  In my view, judges need to follow the law.  I'm assuming that Pols doesn't believe this??????  So, if we don't have to follow the law, how are you going to stop discrimination and a whole lot of other things that most of us here agree should be laws????  One of the first things they teach you in law school is "hard cases make bad law."  The judges here had no choice but to do what they did.  Sorry folks, you can't ignore the law just because you don't like it.  So, POLS, you should be ashamed of yourselves.  You're as situationally ethical and inconsistent as Donald Trump.  And for me that's one of the most nasty things I can say to you.

    • Old Time Dem says:

      This was a negligence suit against Cinemark.  It is not "absolutely clear" that under Colorado or federal law such suits are barred.  Perhaps you are confusing movie theaters with gun manufacturers and ammunition merchants, who do have immunity from suit. 

    • ohwilleke says:

      Again, the defendants here didn't get their attorneys' fee (I can't even imagine what those bills would look like, surely in the multiple millions).  They only got expert witness fees and out of pocket costs which you get every time you lose.

      You are correct that the judge had not discretion to award something for costs to the defendants.  But, you are incorrect in assuming that the judge had no discretion to determine whether or not the out of pocket costs and expert witness fees incurred were reasonable.  And, costs are only mandatory to the extent that they are reasonable.

      Also, the underlying rule of law about the award of costs without an dollar cap even in cases that are not found to be frivolous, like this one, is itself controversial because of the unjustness of the result in cases like this one, and for that reason, it was already the subject of active ongoing debate among legislators and court rule makers before this case came along.

  3. JeffcoDemo says:

    The plaintiff who rejected the deal did not get the advice she needed at the decision time.  It was not clear at all that Cinimark was liable, only that they had made a token gesture to make the suits go away.

    if the victims/plaintiffs shouldn't pay for the expenses incurred, who should?  It was their choice to follow this route and their actions incurred these costs.  Trying to feed off deep pockets just because they have deep pockets was the horrible choice here.

    • ElliotFladen says:

      Generally, in the absence of a contract with a legal fees clause if you lose you have to pay court costs and other expenses.  Legal fees only if you lose on a MTD, not a MSJ, and only then if your entire action lied in tort and was dismissed.

      – Not legal advice

      • ohwilleke says:

        Attorneys fees were not awarded in this case.  The award was only for out of pocket costs other than expert witness fees of about $200,000 and expert witness fees of about $500,000.  But, because the numbers are so huge, they sound like they must be for legal fees even though they are not.

  4. JohnInDenver says:

    In the meantime … every time this matter comes up, I'm reminded to not attend any Cinemark Theater. I've discouraged one person from applying for a job there. It isn't much – but I'm hoping it is a good start to reacting to this sort of corporate citizenship.

  5. ohwilleke says:

    was ordered to pay the legal fees . . .

    We understand that Colorado law as it stands today is intended to protect defendants in civil suits by forcing plaintiffs to consider the consequences of frivolous lawsuits. In this case, however, much like the suit by Jessica Ghawi’s parents against online weapons dealers, it was not a frivolous suit–certainly not when you realize that Cinemark was about to settle.

    The statements quoted above are factually incorrect in some pretty important ways.

    Colorado does have several tools targeted at frivolous lawsuits – Colorado Rule of Civil Procedure 11, Section 13-17-102 of the Colorado Revised Statutes, fee awards for claims dismissed on the pleadings before any evidence is presented because they fail to state a claim, and common law lawsuits for abuse of process or malicious prosecution, each of which, basically, awards attorneys' fees incurred to defend the frivolous lawsuit to the parties forced to defend it.

    But, none of these was invoked by Cinemark in this case.  Cinemark wasn't awarded any of its attorneys' fees in the case.  Instead, it was awarded its non-attorneys' fee out of pocket costs to which anyone who wins a civil lawsuit, whether or not it was frivolous, is entitled.  Every lawyers knows that costs will always be awarded to a prevailing party against one who loses in a civil suit and that losing is always a possibility.  But, no plaintiff's lawyer could reasonably have anticipated that a bill for costs in this case would be $700,000.

    In a typical civil lawsuit, "costs" are paltry compared to attorneys' fees and involve items such as filing fees, service of process costs, mileage allowance payments to witnesses, photocopying charges necessary for use in trial, court reporter fees for depositions necessary for trial, mediation charges, court interpreter fees, and similar charges. "Costs" excluding expert witness fees are frequently in the single digit thousands of dollars in general jurisdiction trial court civil case. But, expert witness fees are also within the definition of "costs" and when expert witnesses are present are usually the largest item that is part of "costs".

    It is absolutely stunning that expert witness fees of $500,000 would be incurred or considered reasonable to impose on the non-prevailing party.  Typical expert witness fees in litigation usually run from about $5,000 to $50,000 with expert witnesses frequently charging an hourly rate of about twice what they would charge for using their skills directly rather than as an expert witness.  For example, medical doctors often charge about $1,000 per hour to serve as expert witnesses.  Indeed, it isn't at all obvious that there were many issues in the case that really called for expert testimony and certainly not such expensive expert testimony.

    It is also absolutely stunning that the defense could reasonably incur non-expert witness costs as high as $200,000.  It would be very typical for total litigation costs for attorneys, expert witnesses, and other costs of litigation combined to be in the $200,000 range for this kind of litigation and a total budget of $700,000 for total litigation costs would be very high even for high stakes, highly technical litigation involving lots and lots and lots of complex evidence to be reviewed in discovery.  Again, I can't even fathom how one could reasonably incur so many non-expert witness costs.

    It would be unusual to see a total costs award in a case like this one including expert witness fees that was even $100,000 or more.

    The issue of the definition of costs which are awarded as a matter of course to the prevailing party, particularly in the area of expert witness fees, is an ongoing source of controversy within the Colorado Supreme Court committees that are in charge of the ongoing supervision and revision of the relevant court rules, and cases like this one are the ones that drive the movement for reform.  But, there is no consensus solution.

    While on one hand, I don't think that the Cinemark suit by the shooting victims had much merit, it was not and was not found to meet the extreme standard of a frivolous lawsuit. What should have happened here, IMHO, is that the court should have greatly trimmed the costs award for reasonableness and that seems to be what the victims are going to be asking for in an appeal of the ruling.

  6. Voyageur says:

    The other thing that is obvious, ohwilleke, is that Cinemart has a public relations disaster on its hands.  I taught public relatios for CU DENVER for eight years.  Sometimes, the dumbest thing a major corporation can do is listen only to its lawyers.  Ohwilleke's legal points are inarguable.  Now, put a crying paralyzed mother who lost her child to a gunmaman on tv and let her explain that she lost her home to pay Cinemarks legal bills.  I don't think Cinemark neds to worry about a nother shooting because they won't have any customers.  Cinemark needs to listen carefully to its lawyers if it ends up in bankruptcy court.  If it wants to avoid bankruptcy court it needs to listen to me or any other pr expert.  Pay your own goddamn costs and let this story die!

  7. BlueCat says:

    So far would be boycotts don't seem to be materializing. Movie theater attendance is under pressure all over, Cinemark no more than the rest.  The demand for court costs was widely seen as a bargaining chip to end appeals, a you drop yours we'll drop ours thing. 

    In any case I think the whole unfortunate mess could have been avoided if lawyers had been honest with the the families in the first place. Cinemark wasn't liable. losers pay costs. Chances of not losing were extremely slim. 

    As someone who doesn't want to have to endure airport style security every time I want to see a movie, shop at a mall, or do pretty much anything in any public place, as would certainly the case if Cinemark had been found liable, I'm glad the families lost the suit. I have no desire to live that way in order to feel protected from the possibility of death or injury in a manner considerably less likely to ever effect me than a lightning strike. It wasn't Cinemark's fault.

    It's not that I don't sympathize with their loss. I lost my brother five years ago and cried pretty much every day for three years. Still do sometimes. He didn't die in a dramatic event but I doubt the pain is any different no matter how you lose a loved one suddenly before their time. But that's life. Bad shit happens. It hurts. Anyone who loves anyone is going to have to go through that some day. Those families, I'm sorry, are no different, no more special than anybody and everybody else who has to endure loss which is literally everybody.

    I don't believe Cinemark was liable and I don't blame them for taking action to protect themselves from having to deal with perhaps decades worth of appeals. I blame the lawyers who so clearly misled those families about their chances and probable consequences.

  8. Pseudonymous says:

    About the update.  Cinemark isn't feeling the sting of bad press, they're simply trying to stop the plaintiffs from appealing.  It's not uncommon for a victor to forego awarded costs as part of an agreement to let the case die.  They never had any desire to collect the costs, they just want to use the award to get the case done with before they incur more expense.

    As for backlash, if a crazy man gunning down dozens of folks in your theater doesn't kill business, getting a judgment for costs ain't gonna hurt you none.

    • BlueCat says:

      Heard on local news (from another room so not sure of details) that a judge has said the demand for costs are to be dropped if the plaintiffs drop further appeals which is what everyone was saying the demand for costs was for in the first place. If I heard right this should be perfectly satisfactory. The plaintiffs aren't going to win but they can drag it on and cost all involved more money. I would imagine that if they insist on pursuing appeals they'll lose again and next time there won't be any deal to get out of paying costs. I also don't think there will be much of a boycott in any case.

      Best scenario for everyone is for the two sides to agree to this and move on. 

    • Voyageur says:

      wrong psudy.   Each time this case comes back into the news, the whole thing is rehashed again.   Cinemark needs to put this thing to bed, not go on rubbing salt in survivors; wounds.

      BC nailed it –put this thing to bed.

      • BlueCat says:

        You're blaming the wrong party. Far more likely that Cinemark has been and will be happy to put this to bed if the plaintiffs drop further appeals and that that was the sole purpose of the demand for costs, to which they are entitled by law BTW, in the first place. 

        If the plaintiffs' lawyers are urging them to turn this resolution down and press on with appeals those lawyers are either greedy and soulless or idiots.

        If the plaintiffs can't let go they're are sadly mistaken as to what the only possible outcome can be. When they have exhausted the appeal process, cost Cinemark tons more money and achieved the same result in favor of Cinemark (as it should be), Cinemark will be in no mood to let the by then truly astronomic costs slide.  

        By then it will be old, old news, stories about ongoing court proceedings being few and  far between, and there will be no serious boycott effort.

        Like other chains, their main problem will be surviving the ordinary market pressures that are reducing business at movie theaters in general already and will no doubt continue to do so.


        • Voyageur says:

          it's not a question of a formal boycott, bc.   Every time this lands back in the news, the whole nightmare is rehashed.   If you think that is good for cinemark, especially its aurora theater, think again.

          • BlueCat says:

            If you think it will affect the decisions of most movie goers you should probably think again. The fact is movie goers are increasingly staying home with all the options available anyway though I don't think seeing a movie on a big screen as intended can be beat. That's a much bigger problem for all of the theaters including Cinemark's than a handful of people choosing not to go to their theaters over this.

            In any case, I hope the plaintiffs realize that being off the hook for the costs is the best they're ever going to get out of this misguided suit and take this deal. If they do I'm pretty sure Cinemark will be happy to drop the demand for costs. If not, that's a different story.

            And  then we can all continue to go to the movies, the mall, the library, our favorite restaurant or anywhere else without factoring in all the time we're going to have to spend in line for security only to go back outside where we have a better chance of being struck by lightening, not to mention being hit by a car, than we ever had of being the victim of a mass shooting or terrorist event going about our lives in those public places.

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