The Town of Branford received a $1 million check yesterday, one authorized by the Marcus Law Firm, to settle a malpractice case that grew out of the firm’s representation of the town in the Tabor eminent domain case.
The overall case has spanned a decade of litigation. The malpractice case stems from the Marcus Law Firm’s role as town counsel from 2005 to 2007 and its preparation of the Tabor case that in 2007 went to trial in Superior Court in Waterbury with a different set of attorneys.
Hartford Attorney R. Bartley Halloran (at left in photo), who has represented the town in the malpractice case, arrived at Town Hall yesterday with the check and handed it over to First Selectman Unk DaRos in his office. The $1 million was from the Marcus Law Firm’s insurance company. DaRos later sent a photocopy of the check to the members of the Board of Finance and the Representative Town Meeting ( RTM).
The $1 million check marked the end of what may be the town’s most litigious dispute, one that has bookended the two iterations of DaRos administrations. In 2002, before he left office after serving his first six years as first selectman, DaRos began the process of seizing the 77-acre property by eminent domain because of its proximity to the contaminated town dump, he said. When Republican John Opie followed him into office in 2003, Opie formally took the Tabor land, land once owned by former Democratic powerhouse and later Taxpayer Party leader Dan Cosgrove. (Jamie Cosgrove, Dan Cosgrove’s grandson, is now running for first selectman on the Republican ticket against Second Selectman Andy Campbell, the Democratic candidate.)
Tabor History
Marcus, long a powerhouse in both town and Connecticut politics, is now 86 years old. The Marcus Law firm, long a fixture in New Haven, now has its offices in North Branford. The malpractice lawsuit grew out his firm’s representation of the town of Branford when the Marcus Law Firm served as town counsel to Cheryl Morris, who served as first selectwoman from 2005 to 2007.
During that period Doyle and Marcus’s daughter Shelley Marcus, now a Superior Court judge, tried to settle the case in order to have the 77-acre land used for a major condo development. A developer had sued the town for the right to do so but it did not own the land. The RTM and other town bodies rejected the idea and wanted the case tried.
At the Tabor trial in 2007 no experts were called; the judge barred any language linking the adjacent town dump’s contamination to the Tabor site. The developer won round 1 when a civil jury returned a $12.4 million judgment against the town. The town appealed, and the jury’s $12.4 million judgment was later overturned in 2010 by the State Supreme Court. Click here to read that story.
Legal Releases
As part of the malpractice settlement, each side had to prepare releases to prevent future litigation emanating from the Tabor case. For example, Marcus made it clear at one point in the litigation that he planned to counter-sue the town, a point Opie often referred to at public meetings. In the end he agreed not to counter-sue; that became part of the release agreement.
Halloran and DaRos said so many boards, commissions and others were involved in the Tabor case, that they all needed to be released as well from possible suits.They were.
Marcus balked, however, when it came to the Democratic campaign website. He claimed he and his firm were libeled by online articles posted to the website of DaRos and Campbell, the two Democratic selectman candidates in 2011, and he threatened to sue them both for libel. Under the terms of the settlement, he may still pursue a lawsuit. Both DaRos and Campbell say they will hire their own attorneys if that happens.
“I find it incredible that anyone could believe that a valid claim could be made that the defendants (the Marcus Law Firm) had been libeled by statements alleging the town’s loss in Tabor was the result of malpractice (when) these same defendants have authorized the payment of a million dollars to settle this very claim of malpractice,” Halloran told the Eagle in an interview. The statements on the website were similar to many made at public meetings.
Malpractice Case Begins In 2008
In 2008, after DaRos returned to office as first selectman, he brought together a group of attorneys led by Town Counsel William H. Clendenen, Jr., to handle the fallout from the $12.4 million jury verdict (plus interest,) the appeal and to decide other cases. The town filed its malpractice suit against the Marcus firm in the summer of 2008 and hired Halloran, an expert in malpractice, to handle the case.
The five-year-old malpractice case was expected to go to trial this June when settlement was urged by at least three Superior Court judges who examined the difficulties of presenting the malpractice case to a jury. They noted the trial would be long, complicated, costly and hard for a lay panel of jurors to understand.
In settlement talks, both sides were dealing not with $11 million racked up over the years for two trials, appeals and legal fees for a variety of lawyers, one judge said, but with a $3 million limit on the malpractice insurance policy for the law firm. The cost of a trial, as outlined by the judge, would have been huge for both sides. And invariably one side or the other would appeal.
Senior Superior Court Judge Patty Jenkins Pittman ordered the law firm’s insurance company to the table during her settlement discussions with both sides when it became clear she needed to act. When she announced the settlement she described it in open court as “a substantial amount of money to the town of Branford.” Click here to read the story.
The town asserted the Marcus Law firm and its chief litigator David Doyle failed to prepare the Tabor case for trial, failed to take expert witness depositions and failed to inform a new set of trial attorneys of the expert witness cutoff date.
There has been public dispute over the cut-off deadline date, a topic often raised at town meetings by the Republican side of the aisle. The judge who would have heard the trial said it didn’t matter because an earlier date stood and in any event Doyle failed to prepare the case for trial. The RTM relied on Doyle’s promise to present experts before it approved in a bipartisan vote the decision to go to trial in 2007.
Enter Jamie Cosgrove
All this became a matter of public record when, a few days before the Board of Selectmen’s meeting two weeks ago, Third Selectman Jamie Cosgrove, who is running against Campbell for DaRos’s seat, delivered letters to DaRos, Campbell and Halloran. The letters asked about the holdup of the $1 million and other questions. Cosgrove accused DaRos of wanting the town to pick up his legal expenses for the statements on the campaign website, an assertion DaRos said was untrue. DaRos also publicly accused him of not writing the letter, which was legal in nature. Cosgrove said he wrote it. Click here to read the story.
Cosgrove’s letter, dated Sept. 16, asked DaRos to discuss the issue at the selectmen’s meeting in what became the first unofficial political debate between Cosgrove and Campbell. Both men squared off but Cosgrove, clearly upset, left before the meeting ended and before public comments were taken.
Public officials are typically covered by towns for events that take place before they leave office. Indeed there are number of lawsuits still outstanding, including two brought by Wayne Cooke, a Branford resident and landowner, against DaRos that the town’s attorneys or insurance attorneys are handling. DaRos’s final term ends in November.
In one of those cases, David Doyle of the Marcus Law Firm now represents Cooke in a slander case Cooke filed against DaRos. Clendenen represents the town.
As for the $1 million, Jim Finch, the town’s finance director, said the $1 million will go to toward paying down bond commitments and, he added, to pay for more attorney’s fees. The funds have already been spoken for in this year’s budget, he said.
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