'This is mercy, not justice': Las Vegas shooting victims to split $800M. How much is pain worth?

Marco della Cava | USA TODAY

Show Caption Hide Caption Las Vegas shooting: MGM could pay up to $800 million to victims A shooter fired into the crowd of 22,000 from the 32nd floor of the Mandalay Bay hotel, owned by MGM, killing 58 people and injuring hundreds.

On Oct. 1, 2017, a gunman perched on the 32nd floor of the Mandalay Bay Hotel in Las Vegas opened fire on thousands of country music fans enjoying the open-air Route 91 Harvest Festival.

The ensuing carnage from the deadliest mass shooting in U.S. history echoed that of a war zone.

Chelsea Romo, 30, a single mom from Temecula, California, no longer has her left eye. Jason McMillan, 37, a sheriff’s deputy from Riverside, California, took a bullet to the spine. Heather Melton, 51, an orthopedic surgeon from Paris, Tennessee, lost her husband, Sonny.

All told, 58 concert attendees died, more than 800 were injured and thousands experienced varying degrees of trauma. About 4,500 plaintiffs retained attorneys to sue MGM Resorts International, Mandalay Bay's parent company, citing the hotel's lax security as the reason Stephen Paddock was able to bring 23 guns up to his suite.

After some controversial legal maneuvering, MGM agreed Oct. 3 to settle with the plaintiffs and pay $800 million. Now comes the delicate part: Two retired judges working with input from lawyers will attempt to put a dollar figure on all that pain and suffering.

How much for the death of a spouse? How much for curtailed mobility? How much for emotional trauma? That raw calculus is scheduled to begin next month, and the money is likely to be dispensed by late 2020.

One veteran of mass tort cases – defined as involving loss or harm – offers a sober warning about the upcoming fiscal drama: Few will be happy.

“In my experience, justice, fairness, satisfaction, happiness, none of it enters into this equation,” says Kenneth Feinberg, whose Washington law firm has administered some of the biggest victim compensation funds, including $7.1 billion awarded to victims of the 9/11 attacks and $6.5 billion after the BP oil spill in the Gulf of Mexico in 2010.

“The idea that money is an adequate substitute for loss or horrible injury is a fallacy,” Feinberg says. “This is mercy, not justice. You do the best you can. And whoever’s handling this should brace themselves for a lot of emotion and anger.”

That would be Jennifer Togliatti of Las Vegas and Louis Meisinger of Los Angeles, two retired judges in the mediation field. Togliatti and Meisinger were proposed by attorneys for the plaintiffs in an unopposed motion approved by a Clark County, Nevada, district court judge Nov. 12.

Las Vegas shooting: 2 years after shooting, another victim dies, making the deadliest mass shooting in modern US history even deadlier

Lawyers working for plaintiffs say two mediators were chosen instead of one because of the complexity of the various cases. One hails from the town where the incident happened, and the other is from California because many of the plaintiffs and their attorneys are from that state.

The judges declined a request for comment on how the valuation process works, citing an agreement made with attorneys for MGM and the plaintiffs. Interviews with lawyers representing victims, as well as experts in the tort law field, reveal some basics.

Shooting victims must opt into $800M fund

The first step, which will unfold over the next few months, is for victims to discuss with their attorneys the relative merits of opting into the $800 million settlement, which requires them to waive any claims they have against MGM.

Opting out means being able to move ahead with an individual lawsuit, which must be filed by May 2020. That approach should be weighed with care, says Craig Eiland, whose Austin, Texas-based firm handles the cases of about 1,400 MGM shooting plaintiffs.

“It could run several million dollars to prepare your case for trial, and what if the damages you end up getting don’t support that cost?” Eiland says. He anticipates most clients will agree to opt in, so they can move on with their lives. “There are risks in not participating in the settlement.”

While plaintiffs deliberate that choice – a large number of opt-outs would mean the pot would grow for those opting in – the two judges overseeing the claims administration process will create what amounts to a compensation menu, which can result in a points system for suffering.

At the high end, families whose loved one was killed at the concert. At the low end, those inside the festival gates but not subject to injury, treatment or post-traumatic stress syndrome.

“Then it’s a sliding scale, people with more significant injuries, people who were shot or trampled, people who spent time in a hospital or maybe have ongoing care at home now,” Eiland says. “Once these broad categories are set, my responsibility is to make sure we have all the information possible, so the judges can make a financial judgment on each case based on things such as lost wages, medical bills and summaries of care."

What each victim of the MGM shooting will get remains unknown, but simple math suggests the pie is not overwhelming. If $800 million were to simply be divided equally among 4,500 people, that amounts to about $178,000 per plaintiff.

By contrast, Feinberg notes that when he oversaw compensation from a variety of charity funds set up for victims of the Boston Marathon bombing in 2013, families of the four dead, as well as two people who had to have both legs amputated, each received $2.2 million. The 14 people who lost one limb got $1.2 million each.

Feinberg says the overall pool of money is so low that, were he involved in administering this case, he would focus on incidents of death, physical injury with a hospital stay and physical injury with outpatient treatment.

“I would eliminate compensation for mental anguish, as that’s often very hard to prove and there’s often a very fine line,” Feinberg says.

Attorneys for MGM plaintiffs acknowledge there will inevitably be unhappy clients, but reaching a settlement at least allows people to begin healing.

Vegas survivors embrace life despite challenges It’s been a year since Jason McMillan was shot at the Route 91 Harvest Festival while shielding his girlfriend from the gunfire raining from a nearby high-rise. Since the shooting, the father of two got engaged, bought a home and got a puppy. (Sept. 27)

“Some people will wish they got more, we always wish we were getting more," says Las Vegas attorney Robert Eglet, whose firm Eglet Adams represents roughly 2,500 of the plaintiffs in the case.

Eglet applauds MGM for settling. “In my view, MGM has set the bar for corporate citizenship in this country,” he says. “This was the most devastating thing to ever happen to our city, and they stepped up.”

Eglet was among plaintiff lawyers who spent the past February through September in mediation with MGM attorneys. That summit meeting led to the $800 million figure, the bulk of which will be paid by MGM’s insurance company.

MGM at first sued shooting victims

Before the settlement, MGM took a hard-line approach. In 2018, MGM sued hundreds of victims on the grounds that it was immune from liability under a post-9/11 law known as the SAFETY (Support Anti-terrorism by Fostering Effective Technologies) Act because the shooting should be considered an act of terrorism.

The negative public image of taking on victims may have contributed to bringing MGM to the mediation table.

"Our goal has always been to resolve these matters so our community and the victims and their families can move forward in the healing process," MGM Chairman and CEO Jim Murren said in a statement announcing the settlement.

USA TODAY reached out to more than a dozen MGM plaintiffs to ask what their expectations were going into the settlement distribution process. Although a number had done interviews over the past two years, victims either did not return calls and emails or explained through attorneys that after a settlement was reached, they were not inclined to talk.

A few did speak out when the settlement was announced. Their comments reflect the pain of what happened the night of the shooting but also hope for a redemptive future.

“The scars and injuries from that night can never be erased,” Sheriff’s Deputy McMillan said in a statement released by his lawyer, Mark Robinson of Newport Beach-based Robinson Calcagnie.

McMillan has spent the past few years in rehabilitation and married the girlfriend he protected at the concert by acting as a human shield.

“I’m glad we could reach a resolution that allows us to put this nightmare behind us so our family can move forward,” he said.

Romo appeared at a news conference alongside her attorney, Jim Frantz of San Diego-based Frantz Law Group. With strands of her long blond hair covering her left eye, Romo said she was grateful she could see her two young children after doctors initially told her she might go blind.

Technically, in settling the case MGM does not admit to any liability for the shooting. Frantz said that although he was pleased the company had settled, he hoped MGM would make security a greater priority at its properties.

Romo echoed that, adding that beyond her upcoming financial settlement, the safety of future concertgoers looms large in her mind.

“The past can’t be changed," she said. “As far as going forward, if things could be safer and better, that’s all I could ask for.”

How much will victims' lawyers get?

Such altruistic sentiments aside, Romo and others face large medical bills associated with their treatment and rehabilitation. Even if some plaintiffs and their attorneys successfully negotiate settlements that cover those costs, surprises lurk.

“In these sorts of cases, plaintiffs see a number, and that becomes an expectation, only to then find that figure gets watered down and watered down by fees,” says Elizabeth Burch, professor at the University of Georgia School of Law and author of “Mass Tort Deals: Backroom Bargaining in Multidistrict Litigation.”

Burch says that attorney fees in personal injury cases – which lawyers typically take without upfront payment but reap the rewards if the client wins – can be as high as 45%. She says a portion of the overall settlement is set aside for the firms administering it, which include those of the two judges, as well as BrownGreer, a Virginia-based claims administration firm.

Burch says it is unlikely the individual payout amounts will ever be publicly revealed.

“Not even the plaintiffs should be aware of what others are getting, although sometimes they do reach out to each other,” she says. “Hopefully, there’s some horizontal equity since the same people are handing it all out. But in the end, one person has PTSD and another suffered loss of life, how do you compare that?”

She says mass tort cases usually are about “tempering your clients’ expectations” when it comes to financial windfalls. If not, plaintiffs can take matters into their own hands.

Recipients of a recent $8 billion settlement – the result of lawsuits brought against seven companies by 100,000 women who had adverse affects from pelvic mesh procedures undertaken to battle urinary incontinence – were so displeased with how much money was eaten away by legal fees, they sued their attorneys.

Herring & Panzer, a Dallas law firm, set up a website aimed at women looking to join its investigation of cases “in which lawyers for victims may have failed to recover all available benefits or may have charged clients too much in fees or expenses.”

Attorneys representing plaintiffs in the MGM cases declined to specify what percentage of their clients’ fees they planned to take.

“As with any practice, fees are dependent on fairness and the amount of work done on the case,” says Patrick McGroder III, an attorney with Phoenix-based Beus Gilbert.

McGroder handles about a dozen MGM cases, including that of Jovanna Calzadillas, 32, who was shot in the brain at the concert and spent two years learning to walk and talk again.

McGroder says his focus is on making sure his clients' cases get a fair hearing with the claims administrators so they receive a maximum payout.

"Attention needs to be paid to the merits of each and every case," he says.

One lawyer familiar with personal injury cases says he’s sure all the plaintiffs whose dream of seeing country singer Jason Aldean turned into a nightmare would prefer not to be assigning a dollar figure to their agony.

“It’s important to for the public to know this isn’t about greed or winning the legal lottery, because I don’t know a single client wouldn’t pass up the money for a time machine trip back,” says Tim Hale of Santa Barbara, California-based Nye, Stirling, Hale & Miller, who specializes in childhood sexual abuse cases and won a settlement against the Boy Scouts of America.

“That said, handing someone a check for $500,000 or $1 million can be a very positive thing,” he says. “I simply tell them, ‘I can’t change what happened to you, but you can use this to try and hit the reset button.’ ”

Follow USA TODAY national correspondent Marco della Cava: @marcodellacava