where do all the lawsuits stand right now concerinig bonfire?

The state-court lawsuits, minus those that have been settled (Redpots), have been consolidated in Brazos County. Arguments were supposed to begin last March, but nothing happened. There's no mystery as to why.

The most important case awaits a decision from the Fifth Circuit Court of Appeals in New Orleans. Oral arguments took place more than a year ago in the post-Katrina atmosphere when the court was temporarily hearing cases in the Dallas area.

The Fifth Circuit will rule whether Bonfire was a "state created danger," which would allow two important options for the plaintiffs. First, they could be awarded damages in excess of the state's liability cap for lawsuits filed against state agencies. Secondly, state employees could be sued personally in the court ruling goes the plaintiffs' way. That would allow Bowen, Sutherland, Kibbler, Thompson, et al., to have their salaries, pensions, and personal wealth tapped.

The federal case is the key because, without a favorable ruling for the plaintiffs, a limited amount can be collected in the lawsuits set for trial in state court. Without a lifting of the liability cap and the ability to go after named employees, there's not enough potential award money to feed a hungry lawyer.

If the Fifth Circuit rules the plaintiffs' way, expect long, drawn-out litigation. If the court decides in favor of the university, perhaps a settlement is in order.

Understand that the main body of the discovery process has not even taken place, and we're coming up on seven years from the date of the tragedy. Discovery is time consuming and expensive. Without the prospect for significant awards, the lawyers don't go through discovery. They'll settle.

In any case, don't expect closure any time soon.

The drawn-out process has a collateral benefit for those in the university and the community who wish the Bonfire tradition would just fade away. Maybe enough time will pass and we'll just all forget about having Bonfire return to campus.

You can see why nobody is in a hurry.

[This message has been edited by DualAG (edited 11/2/2006 6:38p).]

Dual... Do you know what the specific lawsuit against the Red's was? Whats the story on the settlement?

EDIT.... Just curious??

[This message has been edited by REDAG07 (edited 11/4/2006 2:46a).]

The Reds settled with the plaintiffs just about a year ago. For the most part, damage awards were rather modest and paid by the insurance companies that held the homeowners policies written for the Reds' parents. When you have homeowners insurance, you're usually indemnified for several hundred thousand dollars of personal liability that can cover acts by your dependant children.

As for the nature of the plaintiffs' claims against the Redpots, I'm sure it was standard neglegance wording.

I don't have any familiarity with the particulars of the cases like DualAg but my general experience gave me the following reactions.

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That would allow Bowen, Sutherland, Kibbler, Thompson, et al., to have their salaries, pensions, and personal wealth tapped.

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I doubt that they're being sued for their pensions and personal money. It's more likely that they're being sued to take advantage of additional acts of negligence to be imputed upon the state. That really only helps them if the total cap is lifted.

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Understand that the main body of the discovery process has not even taken place, and we're coming up on seven years from the date of the tragedy. Discovery is time consuming and expensive. Without the prospect for significant awards, the lawyers don't go through discovery. They'll settle.

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I don't how much discovery would really need to be done. The Bonfire commission report and the depos of the parties would probably be enough. An separate engineering expert would certainly help

As far as not doing discovery because of doubt of significant awards, I think that's probably inaccurate. Discovery can add significant value to a case if done properly. I've seen cases that looked crappy turn into great cases because someone took a good deposition.

The old cliche goes "if you prepare a case for trial it will settle, if you prepare a case to settle it will get tried". If these lawyers were really wanting to milk the University and State for tons of money they would be conducting solid discovery.

Thanks for commenting on my post. Here's my rejoinder:

Let's suppose the plaintiffs lose at the Fifth Circuit. That's not far fetched. The Fifth Circuit is a conservative court.

The liability cap, one-half million dollars, stays in place. The state employees remain exempt.

Let's suppose the plaintiffs appeal the three-judge panel's decision to the entire Fifth Circuit. They get turned down. Then they appeal to the Supreme Court. The court declines to hear the case.

Other than what could be recovered from the crane provider, H. B. Zachary Company, there remains a finite pool of damages.

Given the number of plaintiffs, 20 to 30, and the team of lawyers who represent them, there's not that much money to be split among a number of claimants.

That's why the discovery hasn't been done. It's expensive.

By the way you're telling the story, the lawyers would invest to a level that exceeds what they could collect. I respect the maxims that you stated, but this is not a case against well-insured private companies or deep-pocketed insurance firms.

The pool of potential damages, absent the lifting of the liability cap, is quite limited. Now, if the decision goes the other way, and the state coffers fly open, you can expect all manner of drawn-out discovery, pre-trial motions, and associated legal wrangling designed to enhanse billing.

It will be a hungry lawyer's opportunity to gorge himself.

Now, as for the Linebeck Commission report, this is basically a situation in which the defendants commissioned their own investigation. The Fifth Circuit, in a earlier decision (Breen, 2003), overturned a federal district court judge in Houston who had relied on the report.

The plaintiff's lawyers have been publicly quite critical of that investigatory report. I doubt they'd proceed without significant discovery. But without assurance of potential awards, they won't spend the money.

[This message has been edited by DualAG (edited 11/10/2006 7:51a).]

I get what you're saying. I'm glad someone is keeping track of these lawsuits.

Im glad to see this discussion has not degnerated into a free for all as I was dreading it would . I know we all have opinions about the bringing of litigations etc., lets continue to keep them to ourselves on this forum.

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Proudest member of the Fightin Texas Aggie class of 08 Beat the h*** outa tu A-A-A Whoop!!!. May bonfire forever burn in our hearts.....and may the Twelfth Man ever burn it in memory and in hope for the future.

I think you guys are both right: protracted, drawn out, discovery probably won't take place unless the damage pool is significant enough to warrant, however, key depositions will likely take place unless a settlement is reached. Depos are somewhat costly, but they are invaluable. Scheduling them may move settlement along.

If they depose under state court rules, I'm not sure how they can cover everything they need in 6 hours per witness.

I'm not sure, though, that all the personal assets of these folks will ever come into play. Some assets are going to be protected while others can be protected by bankruptcy.

As someone who sat in a meeting room in Rudder packed with at least 20 lawyers representing various parties for two to three weeks (as I recall) while the plaintiffs' attorneys conducted depositions, I'm a little confused about the assertion that discovery has not been pursued.

Discovery took place with regard to the consolidation of state-court lawsuits in Brazos County. Those depositions and that decision occurred years ago. Those depositions were very narrow in scope and do not represent the preponderance of discovery that must be undertaken before the cases go to trial.

Depositions regarding the meat of the plaintiffs' claims against the state and against the university employees remain to be taken.


[This message has been edited by DualAG (edited 11/18/2006 7:24p).]

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Depositions regarding the meat of the plaintiffs' claims against the state and against the university employees remain to be taken.

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Having been there, I would have to disagree with this particular statement. Keith and the other guy engaged in a full fledged fishing expedition while they had the chance.

I would agree, however, that given the rulings that have come down since, this has not bloomed into 8 or 9 figure case they had hoped for when they signed on, and at this point they may be inclined not to spend much more money and cut a deal.

I'm not surprised that Keith got as much bang for the buck as he could. However, the purpose of that deposition was consolidation of the lawsuits in Brazos County.

I have spoken to one of the lead attorneys for the TAMU System, and he confirms that the main body of discovery has not yet taken place.

REDAG07,

The Reds (c/o 98-01) were sued for negligence. Since most everything was passed down w/o written plans, etc., they tried a shotgun approach to blame everyone for passing down bad info that led to the collapse. Initially it was just c/o 99 & 00 that were sued but after depositions in the fall of 2001 and just before the statute of limitations ran out in Nov 01 the plaintiffs added 98 & 01 to the fun as well. They even added one from 00 who didn't finish his jrp year.

I think all have settled now, but initially there were a few that weren't part of the original settlement. The initial settlement basically tapped the limits of the Reds' parents' homeowners policies (or in a couple of cases, policies that an individual red had), which carried general liability insurance. That total was between $4-5MM for the reds.

Does this answer your questions?

I'll stand corrected on one point. It seems that discovery took place in the suit against the Redpots. Like the discovery that took place prior to consolidation in Brazos County, this still wasn't the main action.

Discovery for the litigation against the state (the university) and the administrators has not progressed to the discovery stage. That's where the greatest potential for collection stands, provided the Fifth Circuit lifts the liability cap and allows the employees to be held liable.