Survivor groups that unsuccessfully sued Cinemark theaters for not providing adequate protection against shooter James Homes in Aurora Colorado in 2012 could be liable for the theater chain’s legal costs now that a judge and a jury has ruled against them in two separate lawsuits.
Colorado District Judge R. Brooke Jackson dismissed a federal court lawsuit on June 24, saying “Cinemark’s lack of security was not a substantial factor in the deaths.”
In addition, Jackson’s order states Cinemark is automatically “awarded reasonable costs.”
A month earlier, a six panel state court jury concluded in a separate civil case that there was no way the theater could have foreseen the attack and that even additional security could do little to stop someone wearing body armor, equipped with gas canisters and multiple firearms.
In Colorado, the winning side of a civil case is allowed to pursue costs related to a preparing a case.
In June, Lawyers for Cinemark formally filed a “bill of costs” for $699,187.13 at Arapahoe County District Court in the civil matter. Cinemark has not yet set a value for costs associated with the federal case.
The theater chain has not issued any statement on whether they plan to seek compensation from the plaintiffs. However it is common practice in Colorado for the winning side to waive their right to compensation in exchange for the other side dropping their right to appeal the ruling.
According to the Denver Post, the theater chain is waiting to see if appeals filed this summer in federal and civil court move forward before deciding compensation.
The plaintiffs’ attorney, Marc. J. Bern, told Law Blog that Cinemark’s pursuit of the $700,000 “is an outrageous attempt to keep the plaintiffs from appealing” and said he would be filing an objection with the court.
The victims that sued included those who had been injured in the rampage, or had suffered severe psychological or emotional trauma as a result of the incident. Many had been permanently disfigured, or were suffering long term medical conditions as a result of multiple bullet wounds.
Prior to the ruling in the federal lawsuit, Judge Jackson encouraged plaintiffs to take a settlement from Cinemark. The company had offered $150,000 to be split among 41 plaintiffs.
According to the Los Angeles Times who spoke to four of the plaintiffs, the group decided on giving $30,000 each to the three most critically injured survivors. The remaining 38 plaintiffs would equally split the $60,000 left over.
“It was the 12th hour, we were all feeling the same way. We all knew they were liable. We knew they were at fault,” survivor James Weaver told the Times. “[The settlement] was a slap in the face. But I said, ‘Let’s go for it because it’s better than nothing.’”
The settlement would have also bound Cinemark to acknowledge where they were at fault in recognizing security problems and a guarantee to improve the safety at their theaters moving forward.
However the last minute, one of the remaining plaintiffs who had been permanently paralyzed and lost a daughter and an unborn child, decided to reject the settlement.
After that, 37 victims removed themselves from the lawsuit and settled separately to avoid the potential financial liability for Cinemark’s legal fees. Those who settled individually had to agree that Cinemark would accept no responsibility for the shooting.
Within a matter of a few hours, Cinemark’s offer was then taken off the table and the federal case against Cinemark was dismissed the next day.
The remaining four plaintiffs are now solely liable for the $700,000 bill of cost due to Cinemark. They must now decide whether to continue their appeal and risk financial ruin, or to let the case go entirely.
Despite the compelling emotional testimony by the victims, Cinemark’s legal presentation far outmatched the victims’.
For example, in the civil case, Marc Bern, a New York attorney representing the victims paid $22,000 to one expert for testimony. Cinemark paid $500,000 among five experts, according to reports from the Denver Post and the Los Angeles Times.
Also, an essential part of their case was excluded from 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.
Twenty people were killed and 70 were wounded by Holmes on July 20, 2012 when he attacked the theater dressed as Batman character “The Joker.” Holmes confessed to the shooting, but pleaded not-guilty for reasons of insanity. He was found guilty in August 2015 for the mass shooting and sentenced to life in prison without parole.