Chapter 11 announced - Part 3 - BSA's Toggle Plan

[CynicalScouter]

13 minutes ago, mrjohns2 said:

This argument has started to change my mind. I may be coming around to agree with you. 

Look, that's ok. I'm not trying to convince anyone or change minds. I am hoping people get the idea as to WHY the courts have held/will hold that BSA National is going to be liable for negligence here.

You may think the courts are wrong, the tort system is wrong, the state legislatures are wrong, etc. But those courts, that tort system, and those state legislatures set the current legal stage.

Given current legal conditions, looking back and seeing (through the IV files and the court settlements) that BSA National knew:

1 child sexual abuse claim- negligence is a hard, hard case to make.

10?

100?

1,000?

10,000?

Somewhere down that road BSA's continued inaction (nonfeasance) hit the definition of legal negligence.

Was it #375? #3675? For these purposes, at this point, it doesn't matter.

If I am an attorney for a child sex abuse victim, I am going to

1. Take those IV files (which were released by order of a court in Oregon)
2. Take (or get) a listing of all those settlements BSA reached

And walk those into a courtroom  to demonstrate BSA National knew or should have known it had a problem and failed to act or failed to sufficiently act to protect my client.

Edited May 28, 2021 by CynicalScouter

[KublaiKen]

(If this is off topic, please delete it, Moderators!)

When I read about the bankruptcy and the chain of events that caused it, I know for certain that if instead of being one of the single greatest parts of my youth, and now my parenthood, Scouting had been the single worst thing to happen to me in my life, I would never be be to able to comport myself with the grace towards the movement that @ThenNowand the other victims demonstrate here. I appreciate that and respect it, and am grateful to them for sharing their perspective.

[yknot]

55 minutes ago, CynicalScouter said:

But the difference is the malpractice types.

If it is the SAME malpractice, in the SAME way, occurring over the course of YEARS? Yep. That hospital's going to be on the hook for negligence.

Yes, it is not a comparable situation. In a healthcare system you could have claims for everything from a radiation patient being improperly blocked to an intubation injury in the ER to a patient slipping in the bathroom. A couple of other differences are in the fact that the medical arts evolve rapidly unlike scouting so you can be in new territory almost daily. There is also a huge oversight system in place. There are professional and institutional standards of care and medical and ethical review boards. As we all know, despite all the measures in place, problems still happen but the negligence there is largely one off. Healthcare systems are also subject to outcomes management and if say a large percentage of infants are dying in a NICU, that trend becomes known, is analyzed, and is addressed. It might be just an unhealthier patient population, or there could be something amiss in the unit. Negligence might be found but it doesn't usually continue. That kind of review does not occur in scouting. 

[ThenNow]

1 hour ago, elitts said:

That same argument would work in the case of hospitals though.  They keep seeing malpractice claims and they make settlements, but they haven't implemented anything to stop the malpractice. (To be clear, I'm only arguing that the existence of suits and (particularly) settlements don't automatically indicate culpability since in so many cases settling even a rediculous case is preferable to litigating it) 

The existence of repeated, mirror image suits over a course of 100 years is a sign of "malpractice." That hospital would be out of business looong ago and doctors, and likely executives, locked up. My wife's job is to "stop the malpractice," create systems that something doesn't happen again, and very, very carefully examining every aspect of what happened, who "touched" the patient or associate or public interface. That analysis literally happens and is escalated to her and the chief medical officer close to real time. If it's significant, I'm talking about a call at 3AM. If you could see the level of assessment, reporting, careful scrutiny, circling the policy wagon and protocols teams and on down the line, the degree of difference would be obvious and staggering. The key differences are: (1) instant reporting and escalation; (2) immediate engagement of systems of analysis, continued reporting and aggressive and unrelenting efforts to "fix" whatever happened to create the unfortunate incident, large or small; and (3) contact with the aggrieved parties, colleagues and oversight boards to begin whatever process of interaction or intervention is appropriate.

So, the existence of suits and settlements that mirror others over a span of time that go unabated, less than highly reported, even moderately unmitigated and absent meaningful interface with the aggrieved is a sure sign of "malpractice," whether by a hospital or the BSA. It just is. 

1 hour ago, CynicalScouter said:

But the difference is the malpractice types.

If it is the SAME malpractice, in the SAME way, occurring over the course of YEARS? Yep. That hospital's going to be on the hook for negligence.

Precisely. And, broke and disbanded (or purchased, dismantled, fully restaffed and intricately restructured).

[CynicalScouter]

23 minutes ago, yknot said:

Negligence might be found but it doesn't usually continue. That kind of review does not occur in scouting. 

And that's for the court and a jury to decide. Here's the thing: over and over again the courts and juries have found that yes, BSA's knowledge and failure to act did reach the point of negligence. This, by the way, is in addition to LC and CO negligence.

You can say it is bad, wrong, shouldn't be, totally evil, but that's the current legal landscape. It's why BSA is in bankruptcy because they knew: taking in hundreds (now thousands due to look back windows) of cases to trial was just going to result in a lot of verdicts against BSA that would push them into bankruptcy anyway.

Don't like it? Fine. Ask your state legislators to change the laws as they pertain to negligence in your state. Demand Tort Reform(tm).

But until that happens, BSA was and is on the hook for negligence.

Edited May 28, 2021 by CynicalScouter

[yknot]

19 minutes ago, CynicalScouter said:

And that's for the court and a jury to decide. Here's the thing: over and over again the courts and juries have found that yes, BSA's knowledge and failure to act did reach the point of negligence. This, by the way, is in addition to LC and CO negligence.

You can say it is bad, wrong, shouldn't be, totally evil, but that's the current legal landscape. It's why BSA is in bankruptcy because they knew: taking in hundreds (now thousands due to look back windows) of cases to trial was just going to result in a lot of verdicts against BSA that would push them into bankruptcy anyway.

Don't like it? Fine. Ask your state legislators to change the laws as they pertain to negligence in your state. Demand Tort Reform(tm).

But until that happens, BSA was and is on the hook for negligence.

I wasn't arguing with you I was supporting what you said. 

Edit: Or at least that was what I was trying to say. 

Edited May 28, 2021 by yknot

[ThenNow]

3 hours ago, mrjohns2 said:

This argument has started to change my mind. I may be coming around to agree with you. 

My wife will be pleased to know her work and my effort to compare it to the BSA context paid a dividend. I'm going to take some of the credit for the movement in thinking, even if I don't deserve it.   

[ThenNow]

3 hours ago, DavidLeeLambert said:

I'm still looking for what the fee was during the peak of the abuse-claim dates (roughly 1968 through 1973), but I suspect it was even lower, maybe only $1 or $1.50.

Before you got to this sentence, 2 bucks came immediately into my little brain. I joined in 1972. Might have been less. For all I know, and I wouldn't put it past him, our SM was skimming the extra coin for the beer fund. 

[CynicalScouter]

Chubb/Century have responded to the request from TCC and others for a court order demanding they produce documents. This gets...complicated. But let me explain.

Attorneys for parties in a case can make demands for other parties to produce documents relevant to the case. There's usually an escalation process.

1. A letter (this can be skipped)
2. Request to produce (if the party doesn't turn over EVERYTHING asked for in #1 or you can just skip to this)
3. Subpoena duces tecum (if the party doesn't turn over EVERYTHING asked for in #1 and repeated in #2)
4. Court order (sought on formal motion or via letter to the judge)

In-between 3 and 4 SOME courts have what is called a "meet and confer" rule. It means before you come to court asking for an order, both sides have to literally talk it out. Phone, zoom, in person, whatever. Call it step 3.5.

Chubb/Century's response is that TCC and others skipped step 3.5 and that the court should make them have a meet and confer first.

TCC and the others in their original request made it clear: they perceive that Chubb/Century is being obstinate and not wanting a meet and confer and attempts at a meet and confer failed.

Quote

Century and Chubb have made it clear through their responses and attempts to meet and confer that they are unwilling to produce non-public documents in response to the Movants’ requests absent on order from this Court compelling them to do so.

Now enter Century/Chubb to say....sure. Lets talk! But first, let's slow roll the document production and THEN after we deliver a bunch of documents (SPOILER: none of which will be worth squat) we can talk some more!

Quote

Since the Coalition, TCC, and Future Claimants’ Representative have yet to meet and confer on the Century’s responses or review the documents that Century will be producing, any discussion of the adequacy of that production is entirely hypothetical and obviously premature.

In other words, drag this on for weeks until we all get to where we know we are heading: Century/Chubb is going to refuse to produce the documents that TCC/Coalition/FCR REALLY want (the PA Insurance Commissioner's approval and process documents) and we are right back to where we are now in about 30-45 days.

Stall.

Stall.

Stall.

Sadly, given this particular judge's track record, I suspect she'll grant the Century/Chubb request and delay a decision on ordering Century/Chubb to deliver those documents until Century/Chubb actually fail to produce those documents.

Edited May 28, 2021 by CynicalScouter

[100thEagleScout]

5 hours ago, elitts said:

I'm confused, what "paid counselors" did BSA hire with a known history of abuse?  Most pedophiles are pretty dedicated to maintaining their cover as "respectable" and mask themselves fairly well.

And what other action do you think the LC should have taken?  Typically with accusations of this nature you'd get an immediate suspension with orders to "stay away" following a review of the accusation, but then the actual investigation takes a couple of months because you have to do everything officially, with plenty of notice.  And then only after a complete investigation would official sanctions be imposed.  So 4-6 months sounds fairly normal.

But the existence of lawsuits and settlements in our country doesn't always indicate a "problem".  If it did then virtually every major hospital in the country would be guilty of ignoring their "problem" since most of them have plenty of suits and settlements on their books.  Lawsuits and settlements (in and of themselves) are just a fact of life and the cost of doing business in the US.

 

Really?  Mind telling me how that works out when an openly gay counselor preys on scout camp staff members, doesn’t get an immediate suspension, instead multiple “warnings,” then comes back as a CAMPER and sits in the merit badge classes of those whom he abused for an hour each day?  Then the BSA phone line goes silent and an outside party needs to tell BSA to kick someone?  

Edited May 28, 2021 by MattR
Removed in scout like comment

[ThenNow]

4 hours ago, KublaiKen said:

one of the single greatest parts of my youth, and now my parenthood

I appreciate your kind words.

When I read this, as quoted, it is painful. Not so much for me but for our boys. I was in such a bad way after our oldest asked me to join Scouts that it combined with another event to set off a train wreck lasting 20 years. I know survivors who watch this forum who were able to stand with their kids through Scouting and see them get all the benefits and none of the horrors or downsides. My boys have paid a very dear price for my condition. So it goes. We KBO, as Winston would say.

[ThenNow]

So, a question for any and all. It seems we mostly discuss abusers as BSA volunteers of one sort or another. Hypothetically, does your view, opinion or feeling change if the abuser was a DE or SE? Technically and legally, it's of no great impact. I'm asking about your perspective of abuse by an Executive from your vantage point as volunteer and/or parent Scouters. You could speak to liability or whatever you think it relevant. I'm curious and appreciate your thoughts.

[CynicalScouter]

6 minutes ago, ThenNow said:

Hypothetically, does your view, opinion or feeling change if the abuser was a DE or SE? Technically and legally, it's of no great impact.

Well, here's the thing. I'd say abuse by a DE, SE, or other official BSA employee makes the claim double if triple strong why? Because with a volunteer, you have to wedge in issues related to principle/agent, retention, supervision, etc.

With an outright employee? Yeah, you don't need to try to decide if BSA or the LC was suppose to have direct supervision, etc. It's clear: this person's your employee. You should have.

[qwazse]

8 hours ago, ThenNow said:

Apologies to Qwaze. I'm sorry for reacting and not taking a deep breath and a closer look.

No need to apologize for reacting to mine or anyone else’s “devil’s advocacy.” Boots-on-the-ground bluntness deserves it. On the ground, eventually, scouts and alumni ask why scouting costs so much, why their favorite camp is gone, and why it’s still better to come camping with us than to that cabin of their uncle or their cousin or some family “friend.” This is just an attempt to draw out that explanation.
If that gets confounded with victim blaming, my apologies.

Regarding your question about a professional vs. a volunteer perpetrator, I don’t see much distinction. Predators find their way into positions that are most advantageous to them. The best predators might seek to infiltrate  the organization with the best defenses out of whatever perverse desire makes them be predators in the first place. An organization would be hard pressed to screen out all of them from their professional pool, and if their liability is greater when perps are professionals, the organization might simply move to an increasingly volunteer-only model. That could increase their odds of vetting every pro, while still leaving predators content as volunteers to do harm. In that scenario (which is close to BSA’s), the organization is still responsible for a poorly supervised volunteer pool.

@DavidLeeLambertRegarding membership stats. I found a couple of sources, and misplaced them! Still working on that.

[ThenNow]

13 hours ago, CynicalScouter said:

With an outright employee? Yeah, you don't need to try to decide if BSA or the LC was suppose to have direct supervision, etc. It's clear: this person's your employee. You should have.

So, the SE manages the DEs. What are the layers of management overseeing the SEs?