Litif, et al v. Federal Bureau of In, et al

Filing 263

Judge William G. Young: ORDER entered. MEMORANDUM of DECISION and ORDER for JUDGMENT Associated Cases: 1:02-cv-11791-WGY, 1:02-cv-11911-WGY, 1:03-cv-10087-WGY(Paine, Matthew)

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS ANNA M. LITIF, individually and in her capacity as Administratrix of the Estate of Louis R. Litif LUANNE LITIF, & LEE LITIF, Plaintiffs, v. UNITED STATES, JOHN MORRIS, & JOHN CONNOLLY, Defendants. JOHN E. DAVIS AND ROBERT P. DAVIS, in their capacities as Administrators of the Estate of DEBRA DAVIS, Plaintiffs, v. UNITED STATES, JOHN MORRIS, & JOHN CONNOLLY, Defendants. MARION HUSSEY, individually and in her capacity as Administratrix of the Estate of Deborah Hussey, Plaintiff, v. UNITED STATES, JOHN MORRIS, JOHN CONNOLLY, JAMES BULGER, & STEPHEN FLEMMI, Defendants. MEMORANDUM OF DECISION AND ORDER FOR JUDGMENT YOUNG, D.J. I. INTRODUCTION The harrowing story of the FBI's succor of James J. Bulger, Stephen J. Flemmi, and their associates (the "Bulger Gang") has been told by several courts in this District.1
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CIVIL ACTION NO. 02-11791-WGY

CIVIL ACTION NO. 02-11911-WGY

CIVIL ACTION NO. 03-10087-WGY

January 29, 2010

In this latest

See, e.g., United States v. Salemme, 91 F. Supp. 2d 141 (D. Mass. 1999) (Wolf, J.), rev'd in part sub nom. Flemmi v.

and likely last chapter, the families of Louis Litif, Debra Davis, and Deborah Hussey, seek recovery from the United States under the Federal Tort Claims Act (the "FTCA"), 28 U.S.C. §§ 2671 et seq.2 Despite years of legal wrangling and an extensive factual record, at its core this is a very simple case. Federal Bureau

of Investigation ("FBI") agents actively protected a group of murderers from apprehension and prosecution in order to use them as informants against La Cosa Nostra. The agents did this over a

span of nearly twenty years, despite being on notice that their informants were killers and would, and indeed did, continue to murder. Had a private person enabled physical harm in the way

that these agents did, he would be liable in tort under the laws of the Commonwealth. Accordingly, the FTCA imposes liability on

the government for the actions of its agents. United States, 225 F.3d 78 (1st Cir. 2000), cert. denied sub nom. Flemmi v. United States, 531 U.S. 1170 (2001); McIntyre v. United States, 447 F. Supp. 2d 54 (D. Mass. 2006) (Lindsay, J.), aff'd, 545 F.3d 27 (1st Cir. 2008); Limone v. United States, 497 F. Supp. 2d 143 (D. Mass. 2007) (Gertner, J), aff'd, Nos. 08-1327, 08-1328, 579 F.3d 79 (1st Cir. 2009). 2 The Plaintiffs have also brought Bivens claims against officers John Morris and John Connolly. See Litif Compl. [0211791, Doc. No. 1]; Davis Am. Compl. [02-11911 Doc. No. 8]; Hussey Compl. [03-10087 Doc. No. 1]. The Hussey Complaint also includes state law tort claims against Bulger and Flemmi. John Morris refused to appear at trial. John Connolly is currently serving a criminal sentence. See United States v. Connolly, No. 99-10428 (D. Mass. Sept. 16, 2002). The FTCA portion of the action was severed by Judge Lindsay before the case was reassigned to this Court. See McIntyre v. United States, No. 0110408 (D. Mass. May 23, 2006). The individual defendants are in default, save for Bulger upon whom no adequate service has ever been perfected. These portions of the three actions are administratively closed. The actions against Morris and Connolly may be reopened should further proceedings absolve the government. As Flemmi is in default, the Court adjudicates him jointly and severally liable with the government to the Estate of Deborah Hussey. 2

After a brief description of the Plaintiffs and clarifications of certain evidentiary rulings made at trial, the Court will make factual findings and rulings of law pursuant to Federal Rule of Civil Procedure 52(b). findings and rulings as to damages.3 A. The Plaintiffs It will then make

Louis Litif was a bookmaker who worked with Bulger and Flemmi. 1979. Litif was indicted for the murder of James Matera in

Shortly thereafter, he sought to cooperate with the The pair murdered

authorities by informing on Bulger and Flemmi.

Litif before he could make any sort of deal with law enforcement. No one was ever indicted for his murder. Litif was survived by The Estate

his wife Anne, his daughter Luanne, and his son Lee.

of Louis Litif and his wife and children (the "Litif family") filed their administrative claim on September 10, 2001, seeking damages for conscious pain and suffering, loss of consortium, loss of net expected income, and intentional infliction of emotional distress damages. Debra Davis was a paramour of Flemmi's. The two met around

1971 when Davis was sixteen years old and Flemmi was forty-three. Davis disappeared in 1981 when she was twenty-six years old. body was discovered in October 2000. guilty to her murder in 2003. Flemmi eventually pled Her

The Estate of Debra Davis and her

mother Olga (the "Davis family") filed an administrative claim The Court rendered its tentative findings and rulings on July 24, 2009 and entered judgment on September 30, 2009. With but a single exception, see infra Part IV.A.2, this opinion amplifies these tentative findings and further explains the legal reasoning behind them. An amended judgment will enter. 3
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against the United States for conscious pain and suffering, funeral expense damages, and loss of consortium on September 17, 2001. Deborah Hussey was the daughter of Marion and Thomas Hussey. Marion Hussey left Thomas Hussey and began living with Flemmi when Deborah Hussey was still a minor. Flemmi sexually abused

Deborah Hussey, who was also involved in drug abuse and prostitution prior to her murder. 1984. Deborah Hussey disappeared in Flemmi pled guilty

Her body was found in January of 2000.

to her murder as well.

The Estate of Deborah Hussey and her

mother Marion (the "Hussey family") filed their administrative claim on January 11, 2002. They are seeking conscious pain and

suffering and funeral expense damages. B. Evidentiary Rulings

It is well established that the United States is not subject to offensive, non-mutual collateral estoppel. v. Mendoza, 464 U.S. 154 (1984). See United States

That is, the Plaintiffs in this

case cannot use the decisions in McIntyre or Limone conclusively to establish facts. Nonetheless, it is within the sound

discretion of this Court to manage the cases before it efficiently. See, e.g., Brockton Sav. Bank v. Peat, Marwick,

Mitchell & Co., 771 F.2d 5, 11 (1st Cir. 1985); Fed. R. Civ. P. 83(b). To accomplish this task, the Court issued a case

management order treating the factual findings of the following cases as requests for admission: McIntyre v. United States, No. 01-10408, slip. op. (D. Mass. Sept. 5, 2006) [Doc. No. 204, Exs. A-C]; Limone v. United States, No. 02-10890, slip. op. (D. Mass. 4

July 26, 2007) [Doc. No. 204, Exs. F-H]; Estate of Castucci v. United States, No. 02-11312 (D. Mass. March 31, 2008) [Doc. No. 204, Ex. E]; Estate of Halloran v. United States, No. 01-11346 (D. Mass. Nov. 19, 2007) [Doc. No. 204, Exs. F-H]; and Estate of Donahue v. United States, No. 01-10433 (D. Mass. Nov. 19, 2007) [Doc. No. 204, Exs. F-H].4 Nos. 188-189, 204]. See Order dated June 22, 2009; [Doc.

Thus, any findings in those decisions not

specifically denied by the government in its submission are treated as admitted. The Court reiterated its view of these

admissions when it issued its tentative findings and rulings at the close of trial. Trial Tr. vol. 12, 27:20-23, July 24, 2009

("[T]o the extent that I am warranted in finding as my colleagues have found in those other cases, I make the same findings in the same manner and to the same extent as my colleagues made."). This case management practice served its purpose in narrowing the issues for trial. Citations to McIntyre and Limone in the

findings that follow should therefore be treated as admissions of the United States. The evidentiary record in this case is also replete with statements of which the United States has manifested a belief in their truth. Under Federal Rule of Evidence 801(d)(2)(B) and

United States v. Kattar, 840 F.2d 118, 130-31 (1st Cir. 1988), statements of federal prosecutors can be treated as party These five cases are all FTCA cases arising out of the relationship between the Boston FBI and its informants. Unless otherwise noted, all docket numbers refer to the docket in the Litif case, No. 02-11791. References hereinafter to the factual findings of McIntyre, Limone, Castucci, Halloran, and Donahue, will be denoted by the case name and page number of the accompanying order or transcript just cited. 5
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admissions against the United States.

Prosecutorial statements

that have come in evidence in this case include: the Agreed Statement of Facts ("Statement of Facts") from Flemmi's criminal prosecution, Trial Ex. 50; Kevin Weeks' Superseding Information and the Government's Motion for Downward Departure, Trial Exs. 27-28; and the Stipulation of Criminal Activities from John Connolly's racketeering prosecution, Trial Ex. 47. Finally, several statements in evidence were made by deceased persons, e.g., the murdered informant Brian Halloran or the late federal prosecutor, Jeremiah O'Sullivan. These

statements present a thorny problem involving both federalism and evidence law. The statement of a deceased person must overcome

two evidentiary hurdles before it can be admitted: competency and hearsay. It must also fall within the ambit of Federal Rule of

Evidence 601, which incorporates state competency law "with respect to an element of a claim or defense as to which State law supplies the rule of decision." At common law, interested parties were not considered competent to testify. Although this rule was repealed, a vestige

of it survives in various so-called "Dead Man's statutes." Essentially, these statutes preserve the competency disqualification where transactions with a deceased person are at issue, due to concerns that such situations are especially ripe for perjurious testimony. See 3 Jack B. Weinstein & Margaret A.

Berger, Weinstein's Federal Evidence § 601.05[1][a] (2d ed. 2009).

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In Massachusetts, however, the repeal of the interested party bar was complete. The statement of a deceased person was

considered competent evidence provided that it met the general competency requirements for all testimony: personal knowledge and good faith. Of course, the hearsay rule also usually limited a

witness from testifying to the statement of a deceased person. This bar too was removed in Massachusetts. "In any action or

other civil judicial proceeding, a declaration of a deceased person shall not be inadmissible in evidence as hearsay . . . if the court finds that it is made in good faith and upon the personal knowledge of the declarant." 65. Mass. Gen. Laws ch. 233, §

Accordingly, although the language of section 65 is couched

in terms of admissibility and hearsay, its requirements for personal knowledge and good faith ought be read as addressing competency. See Hasey v. City of Boston, 228 Mass. 516, 518

(1917) (noting that "the purpose of the statute . . . was plainly to safeguard against the natural weakness of hearsay testimony, as also to make futile the temptation . . . to introduce . . . testimony which would not be competent were the declarant living at the trial") (emphasis added). See also 19 William G. Young,

John R. Pollets, & Christopher Poreda, Massachusetts Practice, Evidence § 601.2 (2d ed. 1998) (explaining that section 65 ought "be seen as a limitation on the competency of witnesses" to ensure "that the risks involved in allowing what would be classic hearsay" do not outweigh the loss of "evidence through the death of those witnesses").5 The first - unofficial - compilation of Massachusetts statutes and caselaw along the lines of the Federal Rules of 7
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Viewing section 65 in this fashion, the next question is whether the state-law component of an FTCA action falls within the ambit of Rule 601. Cf. Donovan v. Sears Roebuck & Co., 849

F. Supp. 86, 88 (D. Mass. 1994) (Lindsay, J.) (construing section 65 narrowly as addressing only hearsay, not competency, and holding that it had no application in federal court). When

Congress adopted Rule 601, it sought to recognize the different state-law approaches to the competency of statements of a deceased person "with respect to an element of a claim or defense as to which State law supplies the rule of decision." Thus, in

states like Massachusetts, where the hearsay bar against the statements of deceased persons has been removed, "the effect . . . should be to permit hearsay to be introduced that would not

Evidence confirms the understanding that the Massachusetts statute concerning the declarations of deceased persons is primarily a rule of competence by setting it forth with other competence rules in Article VI. See, e.g., William G. Young, John R. Pollets, & Christopher Poreda, Massachusetts Evidentiary Standards Stand. 601(b) (2008). Unfortunately, in today's official Massachusetts Guide to Evidence, the same statute is classified and referred to as simply another hearsay exception. See Massachusetts Guide to Evidence § 804(b)(5)(A) (2008-2009) [hereinafter Mass. G. Evid.] and Advisory Committee notes to this section and section 802. Even the Annotated Guide to Massachusetts Evidence now speaks only to the declaration of deceased persons as being a hearsay objection. See William G. Young, John R. Pollets, & Christopher Poreda, Annotated Guide to Massachusetts Evidence § 804(b)(5)(A) (2009) and n.13 to this section. None of these sources have the force of law or the authority of decisions of the Massachusetts Supreme Judicial Court, see Mass. G. Evid., Statement of the Supreme Judicial Court and Introduction (Oct. 2008) (Guide "is not to be interpreted as an adoption of a set of rules of evidence, nor a predictive guide to the development of the common law of evidence."). Still, words matter and the present misclassification of the statute regarding statements of deceased persons could blur its actual historic antecedents and, at least in the federal courts, deprive the fact-finder of otherwise competent evidence in diversity and FTCA cases. 8

otherwise be admissible under Article VIII of the Rules." Weinstein's Federal Evidence, § 601.05[1][c].

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Does state law, however, supply the rule of decision when it is not applied directly, as in a diversity case, but incorporated into a federal statute, like the FTCA? this area is simply unclear." "Congressional intent in

27 Charles Alan Wright & Victor

James Gold, Federal Practice and Procedure § 6007 (2d ed. 2007). The legislative history of the operative phrase in Rule 601 is not decisive. On one hand, the initial House Report

commenting on similar language in Rule 501, states that the language was "designed to require the application of State privilege law in civil actions and proceedings governed by Erie R. Co. v. Tompkins, 304 U.S. 64 (1938)." H.R. Rep. 93-650 To the

(1973), as reprinted in 1974 U.S.C.C.A.N. 7075, 7082.

same effect, the Conference Report states that: "If an item of proof tends to support or defeat a claim or defense, or an element of a claim or defense, and if state law supplies the rule of decision for that claim or defense, then state competency law applies to that item of proof." H.R. Rep. No. 93-1597 (1974)

(Conf. Rep.), as reprinted in 1974 U.S.C.C.A.N. 7098, 7101-7102. Thus, the Conference Report appears to require using state competency rules whenever federal law incorporates state law as an element of a federal claim. On the other hand, the Conference

Report also references the similar language in Rule 501. Endorsing that language, it states: In those situations where a federal court adopts or incorporates state law to fill interstices or gaps in federal statutory phrases, the court generally will apply federal privilege law. . . . When a federal court chooses 9

to absorb state law, it is applying the state law as a matter of federal common law. Thus, state law does not supply the rule of decision (even though the federal court may apply a rule derived from state decisions), and state privilege law would not apply. H.R. Rep. No. 93-1597 (1974) (Conf. Rep.), as reprinted in 1974 U.S.C.C.A.N. 7098, 7101. The legislative history is directed at It describes how

issues regarding Erie and federal common law.

federal common law can incorporate state law without triggering the state "substantive" (in Erie's terms) law of competency. it does not directly address the different situation where a federal statute directs a federal court to incorporate state law. Allowing for liability "in accordance with the law of the place" as the FTCA does, 28 U.S.C. § 1346(b)(1), is not an instruction to develop federal common law.6 Perhaps the only helpful But

language in the Conference Report is the qualifier: "generally." Such a qualifier indicates "that Congress recognized that state competency law would apply in at least some cases in which the jurisdiction of the court was premised on some federal interest. Perhaps Congress was thinking of instances where it has explicitly directed the use of state substantive law." Federal Practice and Procedure § 6007. Although some courts have applied Rule 601 in FTCA cases without much analysis, see, e.g., Trevino v. United States, 804 F.2d 1512, 1516 (9th Cir. 1986); Bearce v. United States, 433 F. Supp. 549, 553 (N.D. Ill. 1977), when it comes to Rule 501, the It is a semantic stretch to argue that the FTCA's use of state law is a kind of federal common law for purposes of Rule 501 or 601, as the most basic definition of common law is: "The body of law derived from judicial decisions, rather than from statutes and constitutions." Black's Law Dictionary 313 (9th ed. 2009) (emphasis added). 10
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trend has been to disregard state privilege law in FTCA cases, see Tucker v. United States, 143 F. Supp. 2d 619, 623-27 (S.D.W. Va. 2001). Against this muddy backdrop, this Court rules that for two principal reasons, Massachusetts competency law should apply to this FTCA action. First, its application in this case fits One element of a Thus,

within the plain language of Rule 601.

successful FTCA claim is a successful state law claim.

state law supplies the rule of decision as to this element of the FTCA claim. Second, as a waiver of sovereign immunity, the FTCA

should return the action, as near as statutorily warranted, to what it would have been had the immunity not been present in the first instance. Were it not for sovereign immunity, these

Plaintiffs would have brought an action against the United States in tort under the laws of the Commonwealth, including its competency laws. forward. Fine. Sovereign immunity bars that lawsuit from going But once sovereign immunity has been partially

waived, and the lawsuit goes forward "in accordance with the law of the place," why shouldn't the lawsuit use the competency "law of the place," especially when there is reason to think that Congress has categorized that competency law as substantive for Erie purposes? The statements of deceased persons were thus

admitted at trial where proper under state law and will therefore be considered in the findings that follow.

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II.

FINDINGS OF FACT A. The FBI's Relationship with Flemmi and Bulger

The FBI's relationship with Flemmi dates back to the 1964, when FBI agent H. Paul Rico opened Flemmi as an informant. McIntyre, 29 n.35. Id. Bulger was opened as an informant in 1971. The

Their recruitment as informants was not an accident.

FBI had made the prosecution of organized crime and La Cosa Nostra its top priority. McIntyre, 11; Limone, 20. To that end,

J. Edgar Hoover himself inaugurated the Top Echelon Criminal Informant Program on June 21, 1961. Top echelon informants were

defined as those "that would be able to provide high-level information on a major scale." Limone, 23. Rico was assigned

exclusively to the development of top echelon informants. Limone, 23 n.25. Both Flemmi and Bulger were designated as top

echelon informants. In 1969, Flemmi was indicted, along with Francis Salemme, for the murder of Edward "Wimpy" Bennett, head of a criminal gang, and the attempted murder of attorney John Fitzgerald, who represented Joseph Barboza (Barboza himself was a La Cosa Nostra member turned government witness). Ultimately Salemme was See

convicted of these charges and spent ten years in prison. McIntyre, 38-39; Limone, 32-33. capture.

Flemmi, by contrast, eluded

Flemmi's testimony establishes that Rico tipped him off

about the impending indictment, allowing him to flee and avoid prosecution. The unavoidable inference that flows from Rico's

conduct in tipping off Flemmi has already been drawn by Judge Mark L. Wolf: 12

It is clear to me that Mr. Flemmi would have either been killed or in prison like Frank Salemme if Paul Rico had not tipped him off and encouraged him to flee just before Mr. Flemmi was indicted for the bombing of John Fitzgerald and the murder of Walter Bennett. . . . [I]f Mr. Flemmi had been prosecuted in 1969 for the Fitzgerald bombing or the William Bennett murder, his role as an FBI informant might have been disclosed and examined more than 30 years ago. But Mr. Rico prevented that from happening. Trial Ex. 12A (United States v. Flemmi, No. 94-10287, Sentencing Hr'g Tr. 8-9, Aug. 21, 2001). This Court reaches the same

conclusion, based solely on Flemmi's testimony at trial. Moreover, Rico tipped off Flemmi even though he had intelligence information that Flemmi was guilty of the Bennett murder. Ex. 102. Trial

During this period, Rico received numerous incentive

awards, quality pay increases, and letters of congratulations from J. Edgar Hoover. Trial Ex. 77.

Flemmi returned to Boston in 1974, after Rico told Flemmi it was safe to do so. Flemmi immediately became involved in a

string of murders -- James Sousa, Edward Connors, Thomas King, and Richard Castucci -- between October 1974 and December 1976. Statement of Facts ¶¶ 1-4. Nonetheless, FBI Agent John Connolly,

now Flemmi's handler due to Rico's retirement, see McIntyre, 39, continued to provide information to Bulger and Flemmi that enabled the two of them to remain free and continue their crime spree. For example, Connolly warned the Bulger Gang to "back

off" an attempted extortion that could have resulted in a criminal investigation. The Bulger Gang had targeted a vending

machine company in South Boston in 1975, but a resultant lawsuit

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put pressure on the FBI to rein them in.

Trial Ex. 107.

Connolly's warning helped the Bulger Gang avoid an investigation. The string of murders included the murder of an FBI informant named Richard Castucci. This Court concurs with Judge Estate of Richard

Lindsay's findings regarding that murder.

Castucci v. United States, No. 02-11312, Order Granting Pls.' Mot. Summ. J., Mar. 31, 2008. The parties do not dispute that:

(1) Castucci was a bookmaker who did business with Bulger and Flemmi; (2) he was a top echelon informant for the FBI; (3) and in the weeks before his murder he was feeding the FBI intelligence regarding the whereabouts of Joseph McDonald and James Sims, two members of the Bulger Gang on the lam. 39; Trial Ex. 40. McIntyre,

Shortly before Castucci's murder, Connolly

told Bulger that Castucci had disclosed the whereabouts of McDonald and Sims. As a result of this disclosure, Bulger and Statement of Facts ¶ 4.

Flemmi decided to murder Castucci.

While there is evidence that Castucci owed money to Bulger and Flemmi, the timing of his murder as well as Flemmi's testimony that the murder was tied to Castucci's informant activities establish that the debt was not the primary cause of Castucci's demise. In the weeks after his murder, the FBI office received

intelligence information indicating the Bulger Gang was responsible. Trial Ex. 40 at MCN029-1612.

Despite the mounting body count, Connolly continued to ensure that Bulger and Flemmi stayed out of jail. In 1979, an

indictment was being prepared during the prosecution of a racefixing scheme involving Howard Winter and his gang, of which 14

Bulger and Flemmi were members.

Connolly and his supervisor,

John Morris, approached the prosecutor, Jeremiah O'Sullivan, chief of the federal Organized Crime Strike Force, and asked that Bulger and Flemmi be removed from the indictment. Trial Ex. 115.

Although O'Sullivan vociferously denied being influenced by this overture, all the other participants -- Morris, Connolly, Bulger, Flemmi -- contend that he was. At the very least, as O'Sullivan

did admit, he first learned at that time that Bulger and Flemmi were top echelon informants. Trial Ex. 85 at 303. Morris and

Connolly's request was thus a substantial factor, if not the sole reason, that Bulger and Flemmi avoided indictment in the racefixing case. The FBI needed to keep its informants out of jail

for them to be of value. In exchange for helping Flemmi and Bulger avoid indictment, Connolly requested that the pair not murder the cooperating witness in the race-fixing case, Anthony Ciulla. This was not

the only time Connolly requested that Bulger and Flemmi spare an FBI informant. Flemmi also testified that in the late 1970's,

Connolly requested that the pair refrain from killing a noted gangster because this gangster was an FBI informant.7 agreed to back down. They

Were it not for Connolly's request that

they spare him, Ciulla might have been the second informant, after Castucci, to be killed. informant was Louis Litif. As it turned out, that second

7

This gangster's name is subject to a protective order. 15

B.

The Murder of Louis Litif Agreed Facts ¶ 24

Litif was murdered in April of 1980. [Doc. No. 178].

Since 1976, he had been a top echelon informant Trial Ex. 30 at

for the FBI, with Connolly as his handler. MCN070-0053, MCN070-0063.

Litif's informant file refers to him Trial Ex. 30 at

as a bookmaker with ties to organized crime. MCN070-0104.

In September of 1979, Litif was charged with the Pls. Litifs' Trial As result of

murder of James Matera and released on bail.

Brief, Ex. 1 (July 8, 2009) [Doc. No. 216, Ex. 1]. this charge, Litif was closed as an informant. MCN070-0020.

Trial Ex. 30 at

While Litif was out on bail, he approached an

attorney, Kevin Curry, to seek advice about potential cooperation with the district attorney's office. Litif offered to Curry in turn

incriminate Bulger and others in a drug scheme.

approached Boston Police Detective Edward Walsh to share this information. John Connolly, who was not known to Curry at the In the presence of Connolly, Curry related

time, was also there.

to Walsh what Litif said about Litif's willingness to incriminate Bulger. Litif. The Court infers that Connolly leaked to Bulger Litif's willingness to incriminate Bulger and that the murderous result of this leak was well within the foreseeable risk created by Connolly's conduct. Several pieces of evidence, taken together, Three weeks later, Bulger and his accomplices murdered

mandate this conclusion: Curry's testimony (which the Court finds credible); Connolly and Walsh's relationship, Trial Ex. 57 at MCN003-0461, MCN003-0462 (subject to protective order); 16

Connolly's leak of Castucci's cooperation; Connolly's later leaks of other informants' status, leading them to a similar fate;8 and Bulger's statement to Weeks and Flemmi, made shortly after the murder, that Litif was an informant. of agency guidelines then in effect. 8468. As to the manner of Litif's murder, the statement to the FBI of the deceased Brian Halloran, establishes that Litif was lured to the Triple O bar where Bulger and an associate ambushed him. The autopsy report as well as expert testimony show that Litif was stabbed dozens of times with an ice-pick-like implement before he was shot in the back of the neck. MCN025-0422-MCN025-0424. Trial Ex. 21 at This leak was in violation Trial Ex. 36 at MCN004-

Certain of the puncture wounds

perforated Litif's liver, a wound thought to cause exquisite agony.9 Litif's body was placed in the trunk of his car. Luanne

Litif, called to the scene after the discovery of Litif's body, testified that although she looked into the trunk, she did not notice anything wrong, apparently failing to notice her father's body. C. The FBI Continues to Protect Bulger and Flemmi

Suspecting that the FBI had been compromised, the Massachusetts State Police stepped into the breach and decided to See infra, Part II.E. The evidence to support the theory that Litif's murder took more than several minutes is insufficient. A neck wound, Trial Ex. 21, plus Weeks' incredible testimony regarding Litif's last words, do not prove by a preponderance of the evidence that Litif was restrained, interrogated, and tortured, as the Litif family suggests, Pls. Litifs' Post-Trial Brief (Aug. 17, 2009) [Doc. No. 250].
9 8

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wiretap the Lancaster Street Garage, a place where the Bulger Gang and others often conducted criminal activities. The recent

murders and violent past of the Bulger Gang did not give Connolly pause: he leaked the existence of the wiretap to Bulger. Increased scrutiny followed this leak, and the FBI was forced to justify its continued use of Bulger and Flemmi as informants. memos dated December 2, 1980, Trial Exs. 88-89, and April 1, 1981, Trial Exs. 45-46, Connolly recounted all the information that Bulger and Flemmi had provided over the years: information that led to the indictment of La Cosa Nostra members, increased the safety of undercover agents, formed the basis for wiretaps against La Cosa Nostra, and solved numerous crimes. Connolly wrote: In my several years in the Boston Office, I have actively worked 16 informants, having developed 11 of these sources myself and have been commended by the Director of the FBI for my work with informants. It is my considered opinion that this source is the type of source that we should be trying to develop in accordance with Bureau instructions and consistent with Attorney General guidelines on informants. This particular source is one of the highest caliber sources in the Division within recent memory. Trial Ex. 89 at MCN004-8386. John Morris added to the memo: "The closing of an informant of this caliber would deal a serious blow to the [Organized Crime Program] of the Boston Division." Id. The role that Bulger and Of Bulger, In

Flemmi played in furthering the institutional interests of the FBI, and the corresponding protection they received, could not be any clearer.

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D.

The Murder of Debra Davis

In September 1981, five months after the FBI redoubled its commitment to Bulger and Flemmi, the pair murdered Flemmi's girlfriend of nearly ten years, Debra Davis. Flemmi had Davis

murdered because after their lengthy liason, Davis showed an inclination to get on with her life (without Flemmi) and had displayed an interest in another man. 86:8, December 21, 2004. Olga Davis Dep. at 78:7-

Flemmi himself testified that it was

Bulger who wanted Davis murdered because he was jealous of Flemmi and Davis, and feared she knew of Flemmi's relationship with Connolly. These, however, are the vapid maunderings of a Flemmi had Davis murdered for that most

supremely evil old man.

common and banal reason underlying male domestic violence against women: Flemmi thought he "controlled" Davis. on this matter is not credible. Flemmi lured Davis to Bulger's mother's house in South Boston. Bulger, lying in wait, grabbed her and scissored her As Flemmi's testimony

neck between his forearms in order to crush her windpipe.10

No witness testified to this level of detail concerning the strangulation of Davis. The Court draws this inference from Weeks' description (and illustrative gestures) of the strangulation of Deborah Hussey for which he was present. The Court infers that when Bulger strangled his victims by hand, he did so in a roughly uniform fashion. 19

10

Flemmi watched, Bulger strangled her.11 within a few minutes and died. E.

Davis lost consciousness

Between the Davis & Hussey Murders

Starting several months before the murder of Davis and continuing for several years afterward, the Bulger Gang went on a killing spree of sorts, committing at least six murders. Four of

the murders related to a particular scheme involving the World Jai Alai company.12 This scheme and the murders it spawned were

described in great detail by Judge Lindsay in McIntyre and do not warrant repeating here. McIntyre, 43-64. In addition, the

Bulger Gang murdered John McIntyre, an informant, and Arthur Barrett, a thief and drug dealer. Facts ¶¶ 8-9. McIntyre, 73-83; Statement of

Although two of these six victims were informants

(McIntyre and Halloran), the rest were not. Despite the rising body count, Connolly continued to protect Bulger and Flemmi. In the investigation into the four World Jai

Alai murders, out-of-state law enforcement worried that the relationship between the Bulger Gang and the Boston FBI hindered Weeks' more lurid description of Davis' murder, which he claimed to have received from Bulger, replete with duct tape bondage and a ghoulish blessing from Flemmi, "You're going to a better place," is not credible. The Court recognizes that this version is adopted as factual in Davis v. Flemmi, No. 01-282 (Norfolk Super. Ct. Sept. 11, 2009) (Brady, J.). That case is but an assessment of damages following Flemmi's default. In making such an assessment, the court necessarily accepted as true all the well pleaded facts, focusing instead on the assessment of damages. Multi Tech., Inc. v. Mitchell Mgmt. Sys., Inc., 25 Mass. App. Ct. 333, 334-35 (1988) (citing Productura e Importadora de Papel, S.A. de C.V. v. Fleming, 376 Mass. 826, 833-35 (1978). The present case, in contrast, involved a full trial as to liability. 12 Roger Wheeler and John Callahan worked for World Jai Alai. Brian Halloran was an informant with knowledge of the World Jai Alai murders. Michael Donahue was the unfortunate companion of Halloran when Halloran was gunned down. 20
11

the investigation.

These agencies also noted that the Bulger Trial Ex. 59. When

Gang was the primary suspect in the murders.

out-of-state law enforcement asked the Boston FBI to check its files for contacts with Bulger or Flemmi on the dates of the Wheeler and Callahan murders, Connolly provided an alibi. He

drafted a memo stating that he had spoken with Bulger the night of the Wheeler murder and that Bulger was with a female companion at a hotel on the night of the Callahan murder. Trial Ex. 65.

Connolly's activities during this period increased his standing in the FBI. In 1983, Morris wrote of Connolly: "His

performance has been, and is expected to continue, at a level to which all should aspire to attain, but few will realistically reach." Trial Ex. 57 at MCN003-0068. In the same year, Connolly

was recommended for an increase in salary on the basis of his performance. Connolly. Id. But it wasn't just the FBI that was paying

Starting as early as 1979, Connolly received Over

"Christmas" and "vacation" money from Bulger and Flemmi.

his career, Connolly accepted approximately $200,000 from the pair. Trial Ex. 66. F. The Murder of Deborah Hussey

If Flemmi's relationship with the FBI was going swimmingly, his domestic life was another matter. Flemmi began living with

Marion Hussey, Deborah Hussey's mother, and Deborah herself when Deborah was still a child. When Deborah was a teenage minor, Likely as a result of this

Flemmi began to abuse her sexually.

abuse, Hussey led a troubled life, turning to drug abuse and prostitution. In late 1984, Hussey informed her mother of 21

Flemmi's abuse. of the house.

As a result, her mother asked Flemmi to move out

Deborah Hussey herself was proving an inconvenience to both Flemmi and Bulger. Hussey was relying on their reputation in

South Boston to get her out of scrapes arising from her drug abuse and prostitution. her. As a result, Flemmi and Bulger killed They murdered her in much the

Statement of Facts ¶ 10.

same way they murdered their other victims, by luring her into a house and strangling her. Here again, Bulger grabbed Deborah

Hussey from behind and scissored her neck between his forearms to crush her windpipe. knocked Bulger over. Hussey fought desperately for her life and When the two fell to the floor, Bulger

jack-knifed his body to work his legs around Hussey's body to crush her torso. The Court infers Hussey lost consciousness from

asphyxiation and died within a few minutes. G. Knowledge of the Murders & the FBI's Role

Despite years of media speculation, the publicly available information regarding the murders at issue and the FBI's role in those murders never went beyond innuendo until Weeks and Flemmi started to cooperate with authorities. Nor did the family

members of these murder victims possess anything beyond mere suspicion regarding the demise of their loved ones and the government's role in that demise. Curry's narrative of Litif's murder became public in late 1998, when Curry apparently spoke with a reporter at the Boston Herald. The Herald published an article offering a précis of

Curry's testimony, stating that Litif was facing murder charges 22

and contemplated testifying against Bulger, that this information was divulged to Walsh and then to Connolly, and that Litif was killed shortly thereafter. The article also mentioned that Ralph Ranalli,

Halloran had fingered Bulger in Litif's murder.

Questions Arise over FBI Agent's Knowledge of Slaying, Boston Herald, Aug. 5, 1998, available at 1998 WLNR 278441; Trial Ex. 113. The next day, the Herald reported Walsh's and Connolly's The Herald also reported Connolly's

denial of these allegations.

statement that Litif was an informant and Connolly was his handler. Ralph Ranalli, Ex-FBI Agent Says Slain Dealer Was

Informer, Boston Herald, Aug. 6, 1998, available at 1998 WLNR 258174; Trial Ex. 113. Nonetheless, there is no evidence that

the Litif family knew of these revelations or would have had reason to believe them given the official denials until the circumstances surrounding the murders of other informants became public and Weeks and Flemmi were able to corroborate Bulger's role in the murder. The day after he murdered Debra Davis, Flemmi visited her mother, Olga Davis. He professed to know nothing of her He received

disappearance and to be actively looking for her. consolation for his loss from Olga Davis.

He also led the Davis A year after

family to believe that Debra was in Houston, Texas.

she was reported missing, Debra Davis was removed from the missing persons database with a notation that she might be in Houston. Flemmi remained in regular contact with the Davis Of course the manner of Debra's

family until his arrest in 1995.

disappearance -- she was on her way to meet Flemmi and he later 23

answered her beeper when her mother called -- and knowledge of Flemmi's violent capabilities would have raised suspicion in any reasonable person that Flemmi was involved in her murder. not surprising that Debra's brother Victor was strongly suspicious of Flemmi. Olga Davis Dep. 111:5-112:21. That Victor It is

turned out to be correct, however, does not change the fact that his suspicions were just that, suspicions. The Hussey family too, never had anything more than speculation as to the exact role of Flemmi and the FBI in Deborah's demise. In approximately 1985, Marion had a

confrontation with Flemmi when the two were visiting their son who had been hospitalized. Hussey. Flemmi denied it. She accused him of killing Deborah Marion Hussey Dep. 128-29; Trial Ex.

101 at 14-16.

This was a cruel accusation made at a time of

vulnerability, and does not prove that Marion had any inside knowledge. Marion also speculated that Deborah was living in After Deborah disappeared,

California under an assumed name.

Marion was contacted by an unidentified female from California and two local detectives, all of whom indicated that Marion's other daughter Stephanie, was having an affair with a man in California and tried to help that man kidnap his daughter. Because Stephanie could not have been in California at the time, Marion guessed that Deborah might be living in California under an assumed name. Deborah was listed as a surviving sibling when Trial Ex. 73.

one of Marion's other daughters died.

For Davis and Hussey, conjecture turned to knowledge only when Kevin Weeks began to cooperate with authorities in late 1999 24

and early 2000.

Weeks' debriefing began in late December 1999. Marion Hussey

On January 14, 2000, Hussey's body was recovered. was notified the same day.

Weeks also provided the first Davis' body was not

independent corroboration of Davis' murder. recovered until October 2000.

Flemmi was not indicted for the Additional

murders of Davis and Hussey until September 27, 2000.

information came to light when the FBI first began to release information about the wrongfully convicted individuals in the Limone case in December of 2000. III. RULINGS OF LAW There are several elements of an FTCA claim. The United Trial Ex. 91.

States is only liable when: (1) its employees, acting within their scope of employment, (2) caused personal injury or death, (3) by negligent or wrongful acts or omissions, (4) in circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. 28 U.S.C. § 1346(b)(1). The

law of the place in this case is the Massachusetts Wrongful Death Act, Mass. Gen. Laws ch. 229, § 2, which provides for recovery when a person causes the death of another through negligence. "To prevail on a negligence claim, a plaintiff must prove that the defendant owed the plaintiff a duty of reasonable care, that the defendant breached this duty, that damage resulted, and that there was a causal relation between the breach of the duty and the damage." Jupin v. Kask, 447 Mass. 141, 146 (2006).

25

A.

Liability for Litif13

The duty of care at issue for the murder of Litif is perhaps the most basic one: "As a general principle of tort law, every actor has a duty to exercise reasonable care to avoid physical harm to others." Remy v. MacDonald, 440 Mass. 675, 677 (2004).

One particular manifestation of this duty occurs when "the actor realizes or should realize that [his act] involves an unreasonable risk of harm to another through the conduct of . . . a third person which is intended to cause harm . . . . `even though [the third person's] conduct is criminal.'" Jupin, 447

Mass. at 148 (citing Restatement (Second) of Torts § 302B (1965)). This duty does not depend on any special relationship

between the FBI and Bulger and Flemmi, on the one hand, or Litif, on the other. "It is simply the duty that one person owes to

another to act with care when he knows or should know that his action poses an unreasonable risk of harm to the other through the intentional conduct of a third person." Supp. 2d at 107. McIntyre, 447 F.

One element of this duty is that "the risk of Jupin,

harm . . . be recognizable or foreseeable to the actor." 447 Mass. at 147.

Based on the factual findings in this case, there is no question that Connolly had a duty of care, breached it, and by breaching it, created a foreseeable risk of injury to Litif. The same basic framework for liability regarding the murder of Louis Litif was applied by Judge Lindsay, with the same results, in McIntyre v. United States, 447 F. Supp. 2d 54 (D. Mass. 2006), aff'd, 545 F.3d 27 (1st Cir. 2008), Estate of Castucci v. United States, No. 02-11312 (D. Mass. Mar. 31, 2008), and the consolidated cases of Estate of Donahue v. United States, No. 01-10433 (D. Mass. Nov. 19, 2007) and Estate of Halloran v. United States, No. 01-11346 (D. Mass. Nov. 19, 2007). 26
13

Castucci already had been murdered as a result of Connolly's leak of Castucci's informant status. It therefore strains credulity

to argue that a reasonable person in Connolly's position would not foresee what would happen to Litif once he leaked to Bulger information about Litif's desire to incriminate Bulger. Doing so

was an obvious breach of the general duty of care not to cause foreseeable harm to others through the criminal acts of a third person, a breach that caused Litif's death. B. Liability for Davis & Hussey

While the Litif murder was foreseeably brought about by Connolly's leak, the murders of Davis and Hussey present more complicated issues regarding foreseeability. The record does not

demonstrate that Connolly reasonably should have known that Davis and Hussey particularly, rather than anyone else who happened to cross paths with Bulger and Flemmi, would be harmed. There is

also not one specific act, such as a leak, that led to these acts of violence. Instead, there was a pattern of conduct lasting

over a decade that kept Bulger and Flemmi out on the streets and able to commit violent crimes. For liability to attach, the injury must be "within the scope of the foreseeable risk arising from the negligent conduct." (2009). Leavitt v. Brockton Hosp., Inc., 454 Mass. 37, 45

An actor should be held liable only for harm that was

among the potential harms -- the risks -- that made the actor's conduct tortious. Id. at 45, n.20 (citing approvingly

Restatement (Third) of Torts § 29 cmt. j, at 594 (Proposed Final Draft No. 1, 2005)). Such a limit avoids "what might be 27

unjustified or enormous liability by confining liability's scope to the reasons for holding the actor liable in the first place." Id. at 47 (quoting Restatement (Third) of Torts § 29 cmt. d, at 579-80). The fact pattern in Leavitt is illustrative. A hospital, in

violation of its policy, released a patient who had taken sedatives and anesthetics without an escort. meandered home and was struck by a car. The patient

The police were called.

While racing to the scene of the accident, the police cruiser was hit by another vehicle, permanently injuring the police officer. The officer seeks to recover from the hospital, but he cannot. The harm to the officer is not the type of risk that made the hospital's conduct negligent in the first instance. Mass. at 38-39, 44-46. Contrast Leavitt with Jupin v. Kask, 447 Mass. 141 (2006). Kask, a homeowner, lived with a man named Rivers, who had a gun collection he stored in Kask's basement. Rivers' son Jason had a Jason had a key to The Leavitt, 454

history of violence and mental instability.

the house and was permitted full access to the property.

guns were locked in a cabinet in the basement, but the fastener on the lock could be unscrewed. Due to a missed probation One

violation hearing, a warrant issued for Jason's arrest.

night, the police stopped Jason while he was walking alone on a dark country road. They found a hunting knife on his person and Before the warrant check was complete,

ran a warrant check. Jason fled.

In the ensuing chase, Jason shot and killed a police

officer with a gun he had taken from Kask's basement without her 28

knowledge or permission.

Kask was found to be negligent.

The

harm to the police officer was the type of potential risk that made her behavior negligent in the first instance. It did not

matter, for instance, that the officer was a total stranger, that the precise victim could not have been foreseen, or even that the extended sequence of events could not have been foreseen. All

that mattered was that (1) Kask negligently gave Jason access to the premises without ensuring additional security for the guns; and (2) Jason committed a violent crime with one of the guns that was negligently stored. "Whether the owner actually did or

should have foreseen the particular [victim] and the particular circumstances of the harm that eventually occurred was irrelevant." Coombes v. Florio, 450 Mass. 182, 189 (2007)

(citing Jupin, 447 Mass. at 149 n.8). Given the Commonwealth's definition of foreseeability, it is easy to conclude that Davis and Hussey's deaths were the type of potential risks -- violent crimes by Bulger and Flemmi -- that made the FBI's conduct negligent in the first instance. At several

critical junctures -- when Rico tipped off Flemmi about the Fitzgerald indictment; when Connolly and Morris had Bulger and Flemmi removed from the indictment in the race-fix prosecution; when Connolly tipped off Bulger about Litif's desire to provide incriminating information about Bulger to authorities; and when Connolly tipped off Bulger about the wiretap in the Lancaster Street garage -- the actions of the FBI created an unreasonable risk of physical harm to others, enabling Bulger and Flemmi to avoid arrest and continue to murder. 29 That Davis and Hussey were

the unfortunate victims, victims who could not have been particularly foreseen, does not matter under Massachusetts law. Had the FBI not taken these actions, various law enforcement agencies would have investigated and prosecuted Bulger and Flemmi. The various investigations and prosecutions were

unsuccessful only because the FBI intervened to ensure that Bulger and Flemmi stayed out on the street. Doing so was

negligent, and caused foreseeable injury to the victims of their violence, Davis and Hussey.14 C. Scope of Employment

The FTCA requires that the government employee's conduct fall within the scope of his or her employment as determined by state law. 28 U.S.C. § 1346(b)(1); Aversa v. United States, 99 Massachusetts uses a threeThe conduct

F.3d 1200, 1209 (1st Cir. 1996).

pronged test to determine the scope of employment.

must be: (1) of the kind the employee was hired to perform, (2) occur within authorized time and space limits, and (3) motivated, at least in part, by an intent to serve the employer. Metro. Dist. Comm'n, 402 Mass. 687, 694 (Mass. 1988). The scope of employment analysis in this case is greatly simplified because the First Circuit has already held, on more or less identical facts as those at issue here, that Connolly's conduct was within the scope of his employment. McIntyre v. As to the Pinshaw v.

United States, 545 F.3d 27, 38-47 (1st Cir. 2008).
14

Because the FBI is liable under a theory of general negligence, the Court will not address the Plaintiffs' alternative negligence theories regarding liability such as providing substantial assistance to Bulger and Flemmi or failing to control Bulger and Flemmi despite having a special relationship with them. 30

first prong of the test, the First Circuit held that the disclosure of an informant's identity under circumstances where Connolly should have known that Bulger and Flemmi would murder the informant was a part of Connolly's employment that was not only tolerated, but rewarded, by his superiors. Regarding the

third prong, the First Circuit held that the bribes that Connolly took did not change the fact that Connolly was motivated, at least in part, by a desire to serve his employer. The record in this case establishes that the protection Bulger and Flemmi received from their FBI handlers was acquiesced in, and rewarded by, their superiors. Both Rico and Connolly

received various financial and other incentives for their work with informants. Even after years of thwarted investigations, In fact they did

Connolly's supervisors failed to rein him in.

the opposite, drafting memos to justify keeping Bulger and Flemmi as informants. Thus, both the leak of Litif's desire to

cooperate and the various actions taken to keep Bulger and Flemmi out of prison were within the scope of Rico's and Connolly's employment. D. Intentional Infliction of Emotional Distress

The Litif and Hussey families make claims for intentional infliction of emotional distress. The elements of this tort in

Massachusetts are that (1) the actor intended to inflict emotional distress or he knew or should have known that emotional distress was the likely result of his conduct; (2) the conduct was "extreme and outrageous," was "beyond all possible bounds of decency," and was "utterly intolerable in a civilized community;" 31

(3) the actions of the defendant were the cause of the plaintiff's distress; and (4) the emotional distress sustained by the plaintiff was "severe" and of a nature "that no reasonable man could be expected to endure it." Agis v. Howard Johnson Co.,

371 Mass. 140, 144-45 (Mass. 1976) (internal citations omitted). Traditionally, bystander plaintiffs, i.e., family members distressed by harm inflicted on a relative, could only recover if they were present during the commission of the injury. The

Supreme Judicial Court, however, relaxed the strict physical presence requirement, instead requiring "substantially contemporaneous knowledge of the outrageous conduct." v. D'Amato, 401 Mass. 516, 522 (Mass. 1988). In Limone v. United States, 497 F. Supp. 2d 143 (D. Mass. 2007), Judge Gertner offered two alternative theories for intentional distress liability in the context of the FBI's coverup of a wrongful conviction. Judge Gertner held that the Nancy P.

victim's family had contemporaneous knowledge of the wrongful conviction. Judge Gertner also held that a cover-up suspended

the contemporaneous knowledge requirement so that a tortfeasor might not profit by concealing his wrongdoing. Supp. 2d at 228-29. The Litif and Hussey families' claims, however, are different in important respects from the claim in Limone. Hussey's family did not have knowledge of her murder until decades later. They cannot be said to meet the substantially Heinrich ex rel. Heinrich Limone, 497 F.

contemporaneous knowledge requirement.

v. Sweet, 49 F. Supp. 2d 27, 40 (D. Mass. 1999) (denying recovery 32

where family learned of harm decades later).

As to Litif:

First, his family's discovery of his murder was not "substantially contemporaneous." Second, the later discovery of

the "outrageous conduct" in terms of government involvement did not cause severe emotional distress. And third, the grisly

manner in which the family discovered Litif's body was not foreseeable by Connolly. Massachusetts courts have not construed the "substantially contemporaneous knowledge" as broadly as Litif suggests. The

courts of the Commonwealth have ruled against liability in cases where the injury was discovered only four or seven hours after the fact. See Krasnecky v. Meffen, 56 Mass. App. Ct. 418, 422 Litif's body was discovered nearly a Thus, his family did not have Nor can

(2002) (collecting cases).

full day after he was murdered.

the requisite contemporaneous knowledge of the injury.

some kind of equitable tolling help the family in this case. Although Connolly's "outrageous conduct" was only discovered years after the fact, there is no evidence that the discovery of Connolly's involvement caused any emotional distress. Any

emotional distress the Litif family experienced occurred in the period immediately following the murder. Finally, if the

"outrageous conduct" is the placement of Litif's body in the trunk, where Luanne Litif may have seen it, there is no evidence that Connolly should have known that the body would be discovered in this way. If anything, the proper inference is that Litif's

body would be hidden, like the Bulger Gang's other murder

33

victims.

The Litif family's claim for intentional infliction of

emotional distress is denied. E. Affirmative Defenses 1. Statute of Limitations

The statute of limitations in this and the other FTCA cases involving the same misconduct has been much contested.15 Once

again, the First Circuit has dealt with this issue in nearly identical factual contexts, although the Davis and Hussey cases present some new wrinkles. Judge Lindsay has also addressed this Estate

issue in this very case at the motion to dismiss stage.

of Davis ex rel. Davis v. United States, 340 F. Supp. 2d 79, 8384 (D. Mass. 2004). The general framework is well-known. Plaintiffs must

present an administrative claim to the relevant agency within two years of the date the claim accrued. 28 U.S.C. § 2401(b).

Claims that do not meet this requirement must be dismissed. Skwira v. United States, 344 F.3d 64, 71 (1st Cir. 2003). The

"`discovery rule' . . . governs claim accrual under the FTCA under circumstances where the fact or cause of an injury is unknown to (and perhaps unknowable by) a plaintiff for some time after the injury occurs." (1st Cir. 2006). Under the discovery rule, claims will accrue only "when the injured party knew or, in the exercise of reasonable diligence, The claims in McIntyre, Castucci, Halloran/Donahue, and Limone were timely. Several claimants were untimely. See Rakes v. United States, 442 F.3d 7, 23-24 (1st Cir. 2006); Barrett v. United States, 462 F.3d 28, 39-41 (1st Cir. 2006); Callahan v. United States, 426 F.3d 444, 455 (1st Cir. 2005); Wheeler v. United States, 367 F.3d 38, 61 (1st Cir. 2004). 34
15

Rakes v. United States, 442 F.3d 7, 19

should have known the factual basis for the cause of action." Id. (internal citations ommitted). That is, the claims do not

accrue until "a person in the plaintiff's position . . . would believe that he had been injured and would `know sufficient facts to permit a reasonable person to believe that there is a causal connection between the government and the injury.'" (quoting Skwira, 344 F.3d at 78). In determining what the plaintiff "should have known" the court "start[s] the analysis by asking what generally available information about the relevant facts the plaintiffs should be charged with knowing." Id. It "then ask[s] whether a plaintiff Id. at 20

who knew at least that much would have made a further investigation, and what such an investigation would likely have revealed." Id. Finally, the court "asks whether the plaintiff,

if armed with the results of his or her investigation, would know enough to permit a reasonable person to believe that she had been injured and that there is a causal connection between the government and her injury." Bennett ex rel. Estate of Bennett v.

United States, 429 F. Supp. 2d 270, 277 (D. Mass. 2006) (Lindsay, J.) (internal citation omitted). The "knowledge" component of the test "is far from definitive" instead suggesting "a host of epistemological possibilities." Id. (internal citation omitted). The First

Circuit variously has formulated the standard as: "sufficient facts to permit a reasonable person to believe that there is a causal connection between the government and her injury;" "aware[ness] of [an] injury and its probable cause;" "notice of 35

the injury and its potential cause;" "hav[ing] reason to believe that the government was responsible for the injury;" and "hav[ing] some indication that there may have been a government cause of the injury." Id. (quoting Skwira, 344 F.3d at 78).

When the plaintiff in a FTCA action is an estate, the knowledge of any beneficiary with full authority to file a FTCA claim is imputed to the estate. a. Bennett, 429 F. Supp. 2d at 277.

Timeliness for the Litif Family Thus, the

Litif's claim was filed on September 10, 2001. cut-off date for accrual is September 10, 1999.

The analysis for

Litif is nearly identical to the First Circuit's analysis in McIntyre v. United States, 367 F.3d 38 (1st Cir. 2004). To have

actual or constructive knowledge of their claim, the Litif family would need to know that: (1) Litif was an informant; (2) Bulger

and Flemmi killed Litif; (3) they did so because he was threatening to incriminate them; (4) and they knew of his desire to incriminate them through Connolly. Assuming that the media

reports obligated the Litif family to make an inquiry, before September 10, 1999, their inquiry would have run into several dead ends: (1) no way to pin Litif's murder on Bulger (since Weeks and Flemmi were not yet cooperating); (2) no way to show that Bulger knew that Litif was an informant (for the same reason); (3) official denials from the FBI as well as unofficial denials from Connolly and Walsh in the press; and (4) no mention

36

in the Salemme proceedings16 that Litif had been murdered because he was an informant. Further, as in McIntyre:

Most avenues of investigation were cut off by the possibility of criminal liability for any FBI agents and others involved. Attempts to gain information through depositions would likely have been thwarted by invocations of the Fifth Amendment privilege against self-incrimination. And other information - such as testimony before the grand jury or facts discovered in the government investigation - was hidden behind a veil of secrecy. McIntyre, 367 F.3d at 54-55. Perhaps the most compelling way to frame the paucity of evidence an investigation would have turned up is to note that no one was ever indicted for Litif's murder, even after Flemmi and Weeks fingered Bulger.17 In other words, all the Litif family

would have had after an investigation was "a mere . . . suspicion . . . of a claim." b. Id. at 52. Timeliness for the Davis & Hussey Families

The cut-off date for the Davis family's claim is September 17, 1999. The cut-off date for the Hussey family's claim is To have knowledge of the factual bases of

January 11, 2000.

their claims, these Plaintiffs must have known that: (1) the missing person was dead; (2) the missing person was murdered; (3) Bulger and Flemmi were the murderers; and (4) the FBI's

The only time Litif appears to have been mentioned in the Salemme proceedings is when Flemmi was asked about Litif's murder and invoked the Fifth Amendment. See Ralph Ranalli, Flemmi's 'Immunity' Challenged - Quizzed on Stand about Alleged Hit List, Boston Herald, Aug. 27, 1998, available at 1998 WLNR 275699. 17 Indeed, the government continues to argue, in its posttrial submissions, that even now there is insufficient evidence for the Court to find that Bulger murdered Litif due to a leak from Connolly. Gov.'s Reply to Pls. Litifs' Post-Trial Brief at 2-3 (August 31, 2009) [Doc. No. 255]. 37

16

protection of Bulger and Flemmi was a substantial cause of the murders. In Wheeler v. United States, 367 F.3d 38 (1st Cir. 2004) (consolidated with McIntyre), and again in Rakes v. United States, 442 F.3d 7 (1st Cir. 2006), the First Circuit addressed FTCA claims that centered on the FBI's decades-long protection of Bulger and Flemmi, as opposed to one discrete act (such as the leak of an informant's identity). The court held that news

reports of relevant testimony in various proceedings and statements that family members made to the media tipped the scales against the plaintiffs. May 1999 cut-off date. Like the Rakes and Wheeler plaintiffs, the Davis and Hussey families rely on the FBI's general protection of Bulger and Flemmi. Further, both the Davis and Hussey families' claims were Their claims accrued before the

filed after Salemme was decided and after the claims of the plaintiffs in Rakes and Wheeler. timely. Nonetheless, the claims are

Neither family knew, should have known, or could have

known about the murders of their decedents until it became public that Kevin Weeks was cooperating with authorities in January 2000. By contrast, the plaintiffs in Rakes and Wheeler had

firsthand knowledge of their injuries. An investigation by the Davis family before Weeks' cooperation would not have revealed that Davis was murdered or that Bulger and Flemmi were responsible. Flemmi denied it. She had been

Davis might have had personal reasons to run away. removed from the missing persons database. 38

Thus, even with the

reasonable suspicions and the exposure of the FBI's protection of Flemmi and Bulger, the Davis family had no sufficient knowledge of the factual bases of their claim. Hussey family. The same is true for the Flemmi

Hussey's sad life involved long absences.

denied any wrongdoing.

The strange reports of a daughter living

in California kept Marion Hussey's hope alive. The plaintiffs in Rakes and Wheeler had much more concrete information at their disposal. There was no question that Roger Further, John Morris'

Wheeler was dead and that he was murdered.

testimony during the Salemme proceedings, reported in the media, explicitly mentioned Wheeler's murder, noting that Halloran told Morris that Halloran was offered the "job" of murdering Wheeler. Wheeler, 367 F.3d at 41, 50, 59. had definitive information. own extortion. The plaintiffs in Rakes also

The Rakeses obviously knew of their

Moreover, Stephen Rakes was prosecuted for At his trial,

perjuring himself due to threats from Bulger.

Julie Rakes Dammers testified that an IRS agent admitted to her that Bulger was being protected by the FBI. A police officer

testified that he spoke to Connolly about the extortion and speculated that Connolly passed this information to Bulger. Rakes, 442 F.3d at 23. Had they inquired, both the Wheeler and

Rakes plaintiffs would have discovered sworn testimony supporting the factual bases of their claims. No such information was Because they could

available to the Davis and Hussey families.

not have discovered the factual bases of their claims before the applicable cut-off date, the claims of the Davis and Hussey families are timely. 39

2.

Discretionary Function Exception

Like Sisyphus rolling his rock uphill, the government again asserts that the discretionary function exception to the FTCA applies, despite having failed to convince the courts in McIntyre and Limone during motion practice, at trial, and o