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Accusers left out of abuse pact hope church amenable

Claims set aside until next year

By Ralph Ranalli, Globe Staff, 11/12/2003

As a former paralegal for one of the country's largest corporate law firms, Tony Cotillo knew all too well the perils of being a plaintiff in a lawsuit.

So, wary of being buried in legal paperwork, subjected to bruising depositions, and having his family scrutinized by private investigators, Cotillo wavered for nearly a year over whether to sue the Catholic Church for the sexual abuse he said he suffered at the hands of a priest when he was a 9-year-old parochial school student.

"The litigation process can make a plaintiff's life hell," said Cotillo, 27, of Randolph, who now works in the information technology department of a Boston-area mutual fund company. "I saw people who were worn down both financially and emotionally. I was not willing to put my family through that."

His hesitation might cost him dearly.

Cotillo and up to 24 other alleged victims of clergy sexual abuse are now on the outside looking in at the historic settlement between sexual abuse victims and the Archdiocese of Boston, lawyers and advocates say.

Because their claims were not formalized before July 30, alleged victims such as Cotillo are not eligible for the more than $80 million that will be paid to more than 530 alleged abuse victims under the agreement.

Now, neither they nor their lawyers know if they will be compensated for the abuse they allegedly suffered, although they say they are hopeful the archdiocese will honor their claims.

Church officials, meanwhile, say they cannot think about additional claims until the intensive, three-month process of arbitrating the first group of claims is over next year and settlement checks have been issued.

"It is something that still needs to be worked out," said the Rev. Christopher Coyne, the spokesman for Archbishop Sean P. O'Malley. "It is something we are very much aware of, and I believe that we will follow the same good process in these cases that brought us to the settlement. We just cannot do it right now."

Cotillo and other claimants were left out by the high-pressure negotiations between lawyers for victims and lawyers for the archdiocese that began almost immediately after O'Malley -- who had pledged to make settling the massive clergy abuse litigation his highest priority -- was installed as archbishop July 30.

On Aug. 8, lead church lawyer Thomas H. Hannigan Jr. gave plaintiffs the church's first offer of $55 million with the provision that the settlement would apply only to alleged victims who had already sued the archdiocese or formalized their claims and hired a lawyer before July 30.

Potential claimants who were still undecided or in the process of formalizing their claims were cut out of the process. Cotillo said he and his family now feel trapped.

"If I had filed my claim 11 days earlier, I would be included in the process and I would be getting it over with now," Cotillo said. "It's very frustrating. . . . I feel like the church extended us an olive branch and then turned around and whacked us with it."

While defending the move to cut off claims as necessary for a successful negotiation, lawyers for plaintiffs who missed the cutoff said their clients are frustrated because many of their claims are backed by evidence as strong or stronger than that presented by claimants in the initial group, who are scheduled to receive settlement checks of up to $300,000 by Jan. 1.

They also caution that clients in the second group should not be included with what some are calling the "third wave" of alleged victims -- people who came forward after the settlement was announced. Those claims are being viewed with a higher degree of skepticism.

Roderick MacLeish Jr., a lawyer for the Boston firm Greenberg Traurig, which represents 235 clients eligible for the settlement, said approximately 80 people have approached the firm since the settlement, but only five have been accepted as clients.

In contrast, MacLeish said, the firm's clients in the group that missed the July 30 deadline for the settlement have "very strong" claims. One such client, he said, is a man who, according to church records, was raped by the Rev. John M. Picardi in a Florida hotel room in 1992. Picardi admitted to church officials that he raped the man, the records state.

MacLeish said he believes that the claims are so strong that the church will not be able to ignore them.

"I am confident that the archdiocese is going to find a fair and equitable way to resolve these claims," MacLeish said.

Others, however, said they worry that the financially troubled archdiocese won't have the resources to treat the later plaintiffs fairly.

While publicly having pledged to pay up to $85 million -- the largest sum ever paid by a church entity in the United States to victims of sexual abuse by clergy -- to settle abuse claims dating back as far as six decades, the archdiocese must prepare to eventually come up with as much as $100 million, some lawyers say.

According to the agreement, the $85 million figure was based on 100 percent participation in the settlement by all 552 eligible claimants. However, lawyers say as many as 12 people have decided to opt out of the settlement and take their cases to trial, reducing the total settlement award to the participating victims and their lawyers to just over $83 million.

Trials from the original group of alleged victims could end up costing the archdiocese another $10 million to $20 million in jury awards, according to Boston lawyer Carmen L. Durso, who represents 42 clients eligible for settlement.

Durso, who also represents several clients who missed the July 30 deadline, said he hopes the church's financial troubles and the structure of the settlement agreement won't end up hurting the late comers.

"The fact that they didn't fit into a certain timeframe shouldn't prevent them from getting the same justice as anyone else," Durso said.