Davis v. United States

United States Court of Appeals
For the First Circuit

Nos. 10-1418, 10-1419, 10-1465, 10-1466,
10-2368, 10-2369, 11-2254, 11-2256

JOHN E. DAVIS, Administrator of the Estate of Debra Davis; ROBERT
P. DAVIS, Administrator of the Estate of Debra Davis; MARION
HUSSEY, in her capacity as Administratrix of the Estate of
Deborah Hussey,

Plaintiffs, Appellees/Cross-Appellants,

v.

UNITED STATES OF AMERICA,

Defendant, Appellant/Cross-Appellee.
__________

JOHN J. CONNOLLY; JOHN M. MORRIS; LAWRENCE SARHATT; H. PAUL RICO;
ROBERT FITZPATRICK; JAMES RING; RODERICK KENNEDY; JAMES
GREENLEAF; JAMES AHEARN; JAMES BULGER; STEPHEN FLEMMI; JOHN DOES
1-50,

Defendants.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before
Boudin, Howard and Thompson,
Circuit Judges.

Thomas M. Bondy, Appellate Staff, Civil Division,
Department of Justice, with whom Tony West, Assistant Attorney
General, and Jonathan H. Levy, Appellate Staff, Civil Division,
Department of Justice, were on brief for defendant,
appellant/cross-appellee.
Ann M. Donovan with whom Law Office of Ann M. Donovan was on
brief for plaintiff-appellee/cross appellant Marion Hussey, in her
capacity as Administratrix of the Estate of Deborah Hussey.
Michael J. Heineman with whom Paul J. Griffin and Mingace &
Heineman were on brief for plaintiffs-appellees/cross-appellants
John E. Davis and Robert P. Davis, Administrators of the Estate of
Debra Davis.

January 20, 2012
 BOUDIN, Circuit Judge. The United States appeals from a

judgment awarding damages to the families and estates of two women,

Deborah Hussey and Debra Davis, killed by James Bulger and Stephen

Flemmi in the 1980s. Litif v. United States, 682 F. Supp. 2d 60

(D. Mass. 2010). It also appeals from an award of $10,000 in

attorney fees in the Davis case as sanctions against the United

States. Davis v. United States, 739 F. Supp. 2d 64 (D. Mass.

2010). The families and estates of the murder victims cross-

appeal, seeking an increase in damages for the victims' pain and

suffering.

This appeal is one of a number of cases in this circuit

in which families of victims murdered by members of a Boston

organized crime gang have brought suit under the Federal Tort

Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b)(1), 2401(b), 2671 et

seq.1 The suits have aimed to impose liability on the United

States for the actions of Federal Bureau of Investigation ("FBI")

agents for protecting gang members who were also FBI informants.

1
Donahue v. United States, 634 F.3d 615 (1st Cir. 2011);
Limone v. United States, 579 F.3d 79 (1st Cir. 2009); McIntyre v.
United States, 545 F.3d 27 (1st Cir. 2008); Barrett v. United
States, 462 F.3d 28 (1st Cir. 2006), cert. denied, 550 U.S. 936
(2007); Patterson v. United States, 451 F.3d 268 (1st Cir. 2006);
Rakes v. United States, 442 F.3d 7 (1st Cir. 2006); Callahan v.
United States, 426 F.3d 444 (1st Cir. 2005); McIntyre v. United
States, 367 F.3d 38 (1st Cir. 2004). See also United States v.
Connolly, 504 F.3d 206 (1st Cir. 2007); United States v. Connolly,
341 F.3d 16 (1st Cir. 2003), cert. denied, 552 U.S. 1260 (2008);
United States v. Flemmi, 225 F.3d 78 (1st Cir. 2000), cert. denied,
531 U.S. 1170 (2001).

-3-
Unlike a number of such suits, the timeliness of the Hussey and

Davis claims is not disputed.

The claims stem from the murders--in 1981 and 1984 or

1985, respectively--of Debra Davis ("Davis"), Flemmi's girlfriend,

and Deborah Hussey ("Hussey"), the daughter of Marion Hussey (with

whom Flemmi had a relationship and lived for some years). Both

Davis and Hussey, then in their mid-20s, were murdered in the same

fashion: on separate occasions Bulger and Flemmi lured each one

into a house and then strangled her. The district judge found that

the motive for the murders was primarily domestic rather than to

kill business associates of, or potential witnesses against, Flemmi

and Bulger. Litif, 682 F. Supp. 2d at 71, 73.

The bodies of the women were not discovered until 2000,

and Flemmi pled guilty to their murders in 2003. Litif, 682 F.

Supp. 2d at 64. The Davis and Hussey families filed complaints in

the district court against the United States under the FTCA in 2002

and 2003.2 The gist of the claims, drawing upon Massachusetts tort

law, was that the FBI had caused the women's deaths through their

flagrant negligence in utilizing Flemmi and Bulger as informants,

continuing to do so even after becoming aware of the pair's

2
Davis' suit was brought by her mother, Olga Davis, in her
capacity as the administratrix of her daughter's estate; Olga Davis
having died in 2007, the new administrators of Debra Davis' estate
now carry on this litigation. Hussey's suit was brought by her
mother, Marion Hussey, who is the administratrix of Deborah
Hussey's estate.

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dangerousness, shielding them from prosecution, and "failing to

control" them.

The cases were consolidated,3 and they were tried by the

district judge in a bench trial. At the conclusion, the district

court found the government liable for negligence. It awarded the

Davis estate $1 million for her mother's loss of consortium, the

Davis and Hussey estates $350,000 each for pain and suffering

resulting from their murders, and much smaller amounts for funeral

expenses. Litif, 682 F. Supp. 2d at 85. Later, the court added

sanctions against the government as described more fully below.

Davis, 739 F. Supp. 2d at 69-70.

Certain of the findings of fact and chronology help to

put the judgment in context:

1964: FBI agent Paul Rico opens Flemmi as an
informant. Litif, 682 F. Supp. 2d at 68.

1969: Flemmi is indicted for the 1967 murder
of Edward Bennett and attempted murder of John
Fitzgerald. McIntyre, v. United States, 447
F. Supp. 2d 54, 78 (D. Mass. 2006). Rico
tipped Flemmi off about the pending indictment
and Flemmi was able to flee to Canada and
escape further prosecution. When he tipped
Flemmi off, Rico had intelligence information
that Flemmi was guilty of the murder. Litif,
682 F. Supp. 2d at 68-69.

1971: Rico opens Bulger as an informant. Both
Bulger and Flemmi were designated as top

3
Davis and Hussey's claims were consolidated with each other
and with that of Louis Litif's. Our separate opinion addressing
Litif's suit is also released today, Litif v. United States, Nos.
10-1417, et al. (1st Cir.).

-5-
echelon informants, and were part of the FBI's
overall priority at that time of prosecuting
La Cosa Nostra, a rival organized crime group.
Id. at 68.

1974: Flemmi returns to Boston after Rico told
him it was safe to do so. Id. at 69. The
murder and attempted murder charges were
dismissed in November of 1974 due to
unavailability of the principal witness.

1975: FBI agent John Connolly takes over as
Bulger and Flemmi's handler. McIntyre, 447 F.
Supp. 2d at 73-74.

1976: Connolly tells Bulger that Richard
Castucci, a bookmaker, has been cooperating
with the FBI. Castucci was murdered shortly
thereafter and Flemmi and Bulger disposed of
the body. McIntyre v. United States, 545 F.3d
27, 31 & n.5 (1st Cir. 2008). The FBI
received information following the murder that
Bulger was responsible. Litif, 682 F. Supp.
2d at 69.

1979: Connolly asks a federal prosecutor to
remove Bulger and Flemmi from a race-fixing
indictment; this request was a "substantial
factor, if not the sole reason, that Bulger
and Flemmi avoided indictment." Id. at 70.
Connolly then asked Bulger and Flemmi to not
murder the cooperating witness in that case.
Id.

1980: Louis Litif, a former top echelon
informant handled by Connolly and a bookmaker,
is murdered by Bulger and an associate (a
finding of fact disputed by the government in
today's companion case, see note 3, above)
after Connolly leaked Litif's recent offer to
cooperate with law enforcement and to
incriminate Bulger. Litif, 682 F. Supp. 2d at
70.

1980: State police decide to wiretap a garage
frequently used by Bulger and his associates
and Connolly leaks this information to Bulger.
Id. at 71.

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 1981: Bulger and Flemmi murder Debra Davis,
Flemmi's girlfriend of nearly ten years, by
strangling her, because she "showed an
inclination to get on with her life (without
Flemmi) and had displayed an interest in
another man." Id. at 71.

1983: In response to an inquiry from out-of-
state law enforcement officers, Connolly
writes a memo establishing a plausible alibi
for Bulger for the murders of Roger Wheeler
and John Callahan. Id. at 72. At least one
of these alibis was pre-arranged in a phone
call between Bulger and Connolly. McIntyre,
447 F. Supp. 2d at 82.

1984 or 1985: Flemmi and Bulger murder Deborah
Hussey by strangling her because she had
become an "inconvenience." Litif, 682 F. Supp.
2d at 73.

The FTCA is a limited waiver of the sovereign immunity

that the United States otherwise enjoys, and it allows suits

against the United States for money damages for

personal injury or death caused by the
negligent or wrongful act or omission of any
employee of the Government while acting within
the scope of his office or employment, under
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). Thus, the legal questions in this case--

centering on principles of causation and damages--are primarily

those of Massachusetts law.

On appeal, the government challenges both the district

court's reading of Massachusetts case law on proximate cause (as

well as its factual findings underlying but-for causation) and the

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award of loss-of-consortium damages to Davis' deceased mother. It

also contests the sanctions against it. The Davis and Hussey

families have cross-appealed, seeking an increase in the respective

$350,000 awards of damages for conscious pain and suffering.

Liability. Massachusetts' Wrongful Death Act, Mass. Gen.

Laws ch. 229, § 2 (2011), imposes liability, inter alia, on "[a]

person who [] by his negligence causes the death of a person." The

statute largely incorporates common law tort principles. Matsuyama

v. Birnbaum, 890 N.E.2d 819, 836-38 (Mass. 2008). In addition to

wrongfulness, it must be shown "that defendant's conduct was a but-

for cause of [plaintiff's] injury . . . and that defendant's

conduct was a 'substantial legal factor' in bringing about the

alleged harm to the plaintiff." Jorgensen v. Mass. Port Auth., 905

F.2d 515, 524 (1st Cir. 1990).

Our review of FTCA bench trial awards is for clear error

as to factual issues and de novo as to questions of law.

Wojciechowicz v. United States, 582 F.3d 57, 66 (1st Cir. 2009).

"The existence and extent of a duty of care are questions of law;

whether any such duty has been breached and whether proximate cause

exists are questions for the factfinder, whose determination is

binding on appeal unless clearly erroneous." Id. (internal

quotation marks and citations omitted). As it happens, proximate

cause can also raise legal issues as well as factual ones; but-for

causation is almost always a factual issue.

-8-
 The district court found that the FBI's handling of

Flemmi and Bulger was "negligent," Litif, 682 F. Supp. 2d at 76;

but, as the facts demonstrate and the district judge's closing

denunciation confirmed, id. at 86-89, it was negligence of a wildly

reckless flavor. See also note 1, above. No detailed recitation

is required here because the government makes no attempt to

challenge the findings of wrongdoing by FBI handlers; its attack is

on findings of "but for" and "proximate" causation.

The government first disputes but for causation, saying

that proof is lacking that FBI negligence more likely than not led

to the deaths of the two women. The district judge, by contrast,

found that the FBI handlers kept Flemmi and Bulger in play and on

the street, and deliberately interfered with attempts by

prosecutors or other law enforcement entities and agents to arrest

and prosecute Flemmi and Bulger. Litif, 682 F. Supp. 2d at 76.

The chronology set forth above bears out these premises.

Yet the question remains whether any specific sequence of

events--or a cumulation of them--makes it more likely than not,

Enrich v. Windmere Corp., 616 N.E.2d 1081, 1084 (Mass. 1993), that

the FBI's actions were causal steps leading to the women's deaths.

After hearing Flemmi's testimony at the bench trial, the district

court explicitly accepted the finding made by another district

judge in a sentencing hearing for Flemmi:

It is clear to me that Mr. Flemmi would have
either been killed or in prison . . . if Paul

-9-
 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.

Litif, 682 F. Supp. 2d at 68-69 (quoting United States v. Flemmi,

195 F. Supp. 2d 243, 247 (D. Mass. 2001)) (internal footnotes

omitted).

Flemmi's co-defendant Francis Salemme was convicted of

the bombing in 1973 and sentenced to a substantial term. United

States v. Salemme, 91 F. Supp. 2d 141, 184 (D. Mass. 1999). The

district judge concluded in substance that, but for Rico's tip and

Flemmi's flight, Flemmi would likely have suffered the same fate

and been in jail when the two women were later killed. Although

Bulger as well as Flemmi participated in the actual murders, it was

Flemmi who had the relationship with the women, had the clearer

motive, and lured them into the houses where they were strangled.

The government says that Salemme's conviction does not

show that Flemmi too would have been convicted. It points to an

"important witness" who testified that Salemme had participated in

the attempted murder and that his (the witness's) previous

statements that Flemmi was involved were false. Salemme, 91 F.

Supp. 2d at 184. Flemmi, it notes, agreed during his 2009

testimony with the statement that "Mr. Salemme had a much more

-10-
substantial role in the planning and execution" of the attempted

murder than did Flemmi. Overall, the government suggests that

Flemmi, even if convicted, might have received a shorter sentence.

Yet the government indicted Flemmi and had evidence

against him even if part of it later proved to be unreliable;

Flemmi also admitted in his testimony at this trial that "he

assisted in placing the bomb" in the murder attempt; and the

government continued to assert his involvement when it prosecuted

him in the 1990s. Salemme, 91 F. Supp. 2d at 181-82.

Reconstructing now just what evidence the government might have

presented many years ago is difficult, but the district court's

but-for finding is not clear error.

The but-for determination is reinforced by evidence of

the other episodes described in the chronology above in which the

FBI frustrated the capture and prosecution of Flemmi and Bulger.

Even if each of the others is attended by more doubts as to

consequences than Rico's original warning to flee, each adds

something to the overall percentage chance that--but for the FBI

misconduct--these murders would not have occurred. That no one can

assign exact probabilities is beside the point, and does not

prevent an ultimate "more likely than not" finding.

The government also contests whether, even if the

FBI's actions were a but-for cause of Davis and Hussey's murders,

the government can be held liable for the murder of victims whom

-11-
the FBI could not, in the district court's words, have

"particularly foreseen." Litif, 682 F. Supp. 2d at 76. Here, the

primary question is whether the district court correctly discerned,

and then properly applied, the proximate cause concept under

Massachusetts law; the first is reviewed de novo; on the second,

the district court's judgment is reviewed with more deference.

Wojciechowicz, 582 F.3d at 66.

That the FBI agents could not have foreseen that Davis

and Hussey were going to be victims is true in one narrow sense;

there is no evidence that the agents focused on these two women or

had special reason to believe that Flemmi or Bulger would act

violently toward them. What the agents knew, as the prior

chronology demonstrates, is that the agents were protecting

extraordinarily violent men who had already seemingly murdered

others. To this extent, it was foreseeable that Bulger and Flemmi

might well kill anyone who threatened or seriously inconvenienced

them. Davis and Hussey were not random victims; they had close and

prolonged associations with Flemmi. The district judge thus found:

Given [Massachusetts'] 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.

Litif, 682 F. Supp. 2d at 76.

The Massachusetts case most closely in point is Jupin v.

Kask, 849 N.E.2d 829 (Mass. 2006). There, a homeowner had provided

-12-
unsupervised access to a gun collection to a young adult whom she

knew "had a history of violence, had recent problems with the law,

and had been under psychiatric observation" and therefore might use

one of the guns "in the commission of a violent crime." Id. at

837. The young man fatally wounded a police officer with one of

the guns, and the state's Supreme Judicial Court ("SJC") reversed

a grant of summary judgment for the homeowner and remanded for

trial. Id. at 833.

Jupin is also on point on a closely related issue, for it

declares:

It is irrelevant whether [the defendant]
foresaw or should have foreseen the specific
danger that occurred . . . . "It is
sufficient that the same general kind of harm
was a foreseeable consequence of the
defendant's risk-creating conduct."

849 N.E.2d at 837 n.8 (quoting Andrew J. McClurg, Armed and

Dangerous: Tort Liability for the Negligent Storage of Firearms, 32

Conn. L. Rev. 1189, 1232 (2000)). Accord Carey v. New Yorker of

Worcester, Inc., 245 N.E.2d 420, 454 (Mass. 1969) ("The specific

kind of harm need not be foreseeable as long as it was foreseeable

. . . that there would be violence toward others.").

Massachusetts case law is equivocal where mere

carelessness creates a hazard to an unlimited class of potential

plaintiffs. In Kent v. Commonwealth, 771 N.E.2d 770 (Mass. 2002),

a police officer, shot by a released parolee serving a life

sentence in prison for second degree murder, sued Massachusetts,

-13-
arguing that the parole board had been negligent in releasing the

prisoner. Although the SJC said that the parole board action was

not the proximate cause, it stressed that before the shooting,

custody of the parolee had been transferred by the state to the

Immigration and Naturalization Service to effectuate his

deportation. Id. at 777-78.

Leavitt v. Brockton Hospital, Inc., 907 N.E. 2d 213

(Mass. 2009), is a similar example of a hedged denial of liability

where the harm was more immediately due to the negligence of a

third party. There, a police officer was injured while responding

to an emergency call where a patient was struck by a car when

walking home from the hospital; the officer argued that the

hospital had negligently released the patient without an escort.

Id. at 215. The SJC pointed to the negligent driver as an

intervening cause, adding that liability might have existed had the

patient directly injured a third party (for example, by driving a

car home from the hospital that struck a pedestrian). Id. at 220.

The latter caveat could easily capture our own case, so

Leavitt is far from helpful to the government. Nor is the

government helped by incautiously quoting Leavitt's statement that

"there is no duty to control another person's conduct to prevent

that person from causing harm to a third party," 907 N.E.2d at 216;

affirmatively empowering known killers to remain at large is

unlikely to be what the SJC had in mind in the quoted statement.

-14-
 Although foreseeability is a prime element in proximate

cause, Palsgraf v. Long Island Railroad Co., 162 N.E. 99 (N.Y.

1928), the concept is freighted with policy concerns about open-

ended liability for remote effects, which courts may cut off under

a variety of labels (lack of duty, unforseeability, intervening

cause, scope of the risk). E.g., McCloskey v. Mueller, 446 F.3d

262 (1st Cir. 2006). The concerns are especially acute where

official or institutional actors are engaged in inherently

dangerous activities, such as law enforcement or custodial care.

But here, as in Jupin, this is not a mine-run case. The

FBI agents affirmatively intervened to protect Bulger and Flemmi

both by tips to the men and by blocking law enforcement measures

that would likely have brought them to justice before the murders

of the two women. See McCloskey, 446 F.3d at 267 ("[A] defendant's

duty is more limited when negligence consists of an omission rather

than an act of commission."). Given the agents' knowledge of their

charges' murderous inclinations, the threat to others was in broad

terms foreseeable; and the FBI agents' actions were not merely

negligent but reckless in the extreme.

In Johnson v. Summers, 577 N.E. 2d 301 (Mass. 1991),

cert. denied, 502 U.S. 1093 (1992), a case involving arguably

attenuated causation, the SJC cited the Restatement (Second) of

Torts § 501 (1965), which says that "[t]he fact that the actor's

misconduct is in reckless disregard of another's safety rather than

-15-
merely negligent is a matter to be taken into account in

determining whether a jury may reasonably find that the actor's

conduct bears a sufficient causal relation to another's harm to

make the actor liable therefor."4 Id. at 306.

This brings us to McCloskey, 446 F.3d 262, heavily relied

upon by the government. There, an FBI employee failed to follow up

with a wanted bank robber who called offering to surrender; the

next day the robber murdered a stranger whose estate sued the

federal government under the FTCA and, as here, invoked negligence

under Massachusetts law. This court agreed with the district judge

that Massachusetts courts would not have imposed liability on a

similarly situated private employer.

But in McCloskey, the FBI agent had done nothing other

than fail to pursue a tip, in no way "taking charge" of the

telephoning criminal or otherwise assuming responsibility for him.

446 F.3d at 270. Here, by contrast, the agents deliberately

intervened to prevent their own dangerous informants from being

caught and prosecuted. And, of course, their actions were not

merely careless but reckless in the extreme, making the outcome--

4
Restatement (Third) of Torts § 33(b) (2010) elaborates: "An
actor who intentionally or recklessly causes harm is subject to
liability for a broader range of harms than the harms for which
that actor would be liable if only acting negligently. In general,
the important factors in determining the scope of liability are the
moral culpability of the actor, as reflected in the reasons for and
intent in committing the tortious acts, the seriousness of harm
intended and threatened by those acts, and the degree to which the
actor's conduct deviated from appropriate care."

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albeit inspecific as to the victim--eminently predictable.

Johnson, 577 N.E.2d at 306.

Loss of Consortium. The district court awarded the

estate of Davis' mother Olga, who died in 2007, $1 million for loss

of consortium. Litif, 682 F. Supp. 2d at 82-85. At common law, a

number of claims did not survive the death of the sufferer, but a

Massachusetts statute preserves a variety of such claims including

"[a]ctions of tort . . . for assault, battery, imprisonment or

other damage to the person." Mass. Gen. Laws ch. 228, § 1 (2011).

See Rendek v. Sheriff of Bristol Cnty., 797 N.E.2d 891, 891-92

(Mass. 2003). The government disputes that Olga's loss of

consortium constitutes "damage to [her] person."

The government's argument rests importantly on Hey v.

Prime, 84 N.E. 141 (Mass. 1908), which (interpreting the same

language in a predecessor statute) held that the statute did not

preserve a loss of consortium action brought by a widower because

"the wrong suffered by him while personal in effect, is regarded as

purely consequential in character." Id. at 143. The case is over

100 years old but was followed, somewhat more recently, in Summers

v. Boston Safe Deposit & Trust Co., 16 N.E.2d 670, 672 (Mass.

1938).

However, 40 years later, the SJC held that a claim for

intentional infliction of emotional distress did survive as a claim

for "other damage to the person"; and the court declared that the

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statute was intended to be "sufficiently dynamic to allow for a

change in judicial conceptions of what types of harm constitute

legally redressable 'damage to the person.'" Harrison v. Loyal

Protective Life Ins. Co., 396 N.E.2d 987, 989 (Mass. 1979). It

then said of Hey and other similar cases from the same time period:

Those cases cited . . . which gave a narrow
construction of 'damage to the person' were
decided at a time when the general attitude of
the court toward mental or emotional distress
as a legally redressable harm was more
restrictive than it is today.

Id.

Although the court did not formally overrule Hey v.

Prime, it is not apparent why one would distinguish--from the

standpoint of harm--between the emotional damage inflicted by

insults or harassment and the emotional damage suffered from the

loss of companionship stemming from the loss of a spouse or child.

In other situations the SJC has tended to treat the two torts as

closely related variants. Nancy P. v. D'Amato, 517 N.E.2d 824, 828

n.9 (Mass. 1988). Accord Agis v. Howard Johnson Co., 355 N.E.2d

315, 319-20 (Mass. 1976).

Of course, one could draw a line between wicked torts and

mere carelessness, but despite the companion references to

"assault, battery, [and] imprisonment," other preserved tort claims

in the state statute are in no way so qualified (e.g., "for damage

to real or personal property"), Mass. Gen. Laws ch. 228, § 1; nor

does Harrison suggest such a distinction. The consortium loss in

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this case was caused by murder at one level (Bulger and Flemmi) and

patently reckless behavior at another (the agents).

The SJC declined to extend Harrison to preserve a

statutory privacy claim for unlawful wiretapping, pointing out that

the Harrison tort involved "severe emotional injury" while the

wiretap claim had an "ephemeral quality that has undoubtedly led

the Legislature to grant statutory minimum damages without any

proof of harm." Pine v. Rust, 535 N.E.2d 1247, 1251 (Mass. 1989).

But emotional impact is central to loss of consortium which

compensates "for the loss of the companionship [and]

affection . . . of one's spouse." Agis, 355 N.E.2d at 320. We

agree with the Davis estate that the claim is saved by the statute.

Pain and suffering. Both the Davis and Hussey estates

ask that we increase the $350,000 awarded to each by the district

court for conscious pain and suffering. The district court found

that

Davis and Hussey were strangled to death.
Death by asphyxiation is not immediate, so at
least a few minutes must have passed from the
time that these victims realized they were
being murdered until they lost consciousness.
The Davis family has not carried its burden of
proving that Debra's final moments were more
extensive than that.

Litif, 682 F. Supp. 2d at 85.

The Davis estate contests the finding condensed in the

second of the two sentences just quoted--that the period of

suffering was brief--by arguing that the evidence shows Debra Davis

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was killed because Flemmi and Bulger thought she knew too much

about the pair's relationship with Connolly. This might make more

likely the estate's proposed inference--that Flemmi and Bulger

"debriefed" Davis before killing her and that at the very least

there was a substantial period in which she would have apprehended

death.

But the "knew too much" inference is no more than

reasonable speculation and, even if assumed true as a partial

motive, does not entail that Flemmi and Bulger had any reason to

think that she had already confided to the police. Other evidence

to show prolonged detention (specifically, that she was dragged to

a basement and her mouth was duct-taped) was found by the district

judge not to be credible, Litif, 682 F. Supp. 2d at 72 n.11, and

the finding has not been shown to be clear error.

Hussey does not make a comparable factual claim but does

join with Davis in arguing that it was an abuse of discretion to

award only $350,000 for pain and suffering. And, as Hussey points

out, the district court's description of Hussey's death suggests

that even if the period was brief, it was still pretty terrible:

Bulger grabbed Deborah Hussey from behind and
scissored her neck between his forearms to
crush her windpipe. Hussey fought desperately
for her life and knocked Bulger over. When
the two fell to the floor, Bulger jack-knifed
his body to work his legs around Hussey's body
to crush her torso.

Litif, 682 F. Supp. 2d at 73.

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 Under Massachusetts law, the compensation for wrongful

death can include mental, as well as physical, suffering

(especially that in contemplation of imminent death), Sisson v.

Lhowe, 954 N.E.2d 1115 (Mass. 2011); but, unlike the calculation of

economic damages, assigning a dollar figure to such an ordeal--

perhaps very brief but horrible to imagine--is very difficult. We

have been hesitant to overturn an "an award of non-economic damages

unless the award is either grossly disproportionate to the proven

injuries or trenches upon a miscarriage of justice." Limone v.

United States, 579 F.3d 79, 103 (1st Cir. 2009).

The closest thing to an objective measure is itself

nothing other than the composite of subjective judgements reflected

in other awards in like cases. The problem for the Davis and

Hussey families is that the awards in this case are in line, even

adjusting for inflation, with many awards in similar cases

involving either asphyxiation or murder. Consider, for example,

the following:

Jutzi-Johnson v. United States, 263 F.3d 753,
760-61 (7th Cir. 2001) (surveying accidental
drowning cases and finding the pain and
suffering awards to range from $15,000 to
$150,000);

Miles v. Melrose, 882 F.2d 976, 980-81 (5th
Cir. 1989), aff'd, 498 U.S. 19 (1990)
($140,000 for pain and suffering when victim
had been stabbed or cut at least 62 times);

Luecke v. Mercantile Bank of Jonesboro, 720
F.2d 15, 18 (8th Cir. 1983) ($25,000 for

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 bludgeoning death where victim was alive for
one to five minutes before her death);

TGM Ashley Lakes, Inc. v. Jennings, 590 S.E.2d
807, 820 (Ga. App. 2003) ($2.5 million for
strangulation with a stocking where the victim
retained consciousness for 40 seconds to three
to five minutes).

The families in this case rely on McIntyre, 447 F. Supp.

2d at 118-19. There, Bulger attempted to strangle McIntyre, who

had been handcuffed and chained for five or six hours, inflicting

such pain that McIntyre vomited and gasped for air, and responded

"yes, please" when Bulger offered to shoot him instead. The judge

in McIntyre concluded that this amounted to "torture," id. at 119,

and awarded $3 million for pain and suffering.

Although McIntyre does not stand alone,5 it appears to be

at the high end of the range. And the question whether it might

itself have been excessive was never presented on appeal to this

court. Given that a substantial cluster of awards for similar

suffering are at or below the amounts awarded in this case,

$350,000 cannot be said to be so low as to represent an abuse of

discretion, let alone a miscarriage of justice. Limone, 579 F.3d

at 103.

Sanctions. After the final judgment, the Davis and

Hussey estates moved for sanctions against the government, which

5
E.g., TGM Ashley Lakes, Inc., 590 S.E.2d at 820; Stethem v.
Islamic Republic of Iran, 201 F. Supp. 2d 78, 88-89 (D.D.C. 2002)
($1 million award for victim who lived several minutes after being
shot).

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the district court granted in part. Davis v. United States, 739

F. Supp. 2d 64 (D. Mass. 2010). The district court awarded $5,000

in the form of attorney's fees to each estate on the ground that

the government had asserted a comparative negligence defense in bad

faith and, by inference, that the purpose must have been to harass

and embarrass. The government's appeal includes a challenge to the

sanctions.

A court may sanction a completely baseless argument,

e.g., Whitney Bros. Co. v. Sprafkin, 60 F.3d 8, 14 (1st Cir. 1995),

although if this were taken too literally, the rubric would cover

a vast number of briefs and memoranda. Here, the district court

found baseless only a single defense, asserted by the government's

amendment to its answer: that the murdered women and their mothers,

like the United States, "also should have known about that risk and

taken steps to avoid it, and failed to do so."6 The government

asserted that the women and their mothers

were aware of the violent and criminal history
and propensities of Stephen Flemmi but failed
to take action to alert any law enforcement
agency of those facts and otherwise failed to
warn or protect [themselves] from the known
risk of harm; and such negligence . . .
caused, or contributed to, the damages
complained of.

6
The government withdrew the defense as asserted against
Davis' deceased mother, but it remained against Hussey, her mother,
and Davis.

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 The defense was unlikely to prevail on its own facts,

especially with respect to Deborah Hussey, whom Flemmi had abused

as a teenager. While the plaintiffs' charge here was negligence,

and comparative negligence is a defense, or basis for reducing

damages, in Massachusetts, e.g., Haglund v. Philip Morris Inc.,

847 N.E.2d 315, 323 n.9 (Mass. 2006), the FBI agents' conduct was

not merely negligent but culpably reckless. So the odds that a

comparative negligence defense might succeed were surely very

small.

Still, our review of Massachusetts case law--including

that cited by the Davis and Hussey estates--indicates it does not

explicitly rule out the defense in somewhat similar circumstances.

See, e.g., Lakew v. Mass. Bay Transp. Authority, 844 N.E.2d 263,

269 (Mass. App. Ct. 2006). So a sanction against the government

could not rest merely on the asserting of a defense quite unlikely

to succeed. Rather, there would have to be something more--such as

finding that the defense was employed simply in order to harass.

The district judge's decision may be read to rest in part

on such an inference. A portion of the government's opening

statement as to Hussey's mother, Marion Hussey, included statements

like:

That's all blood money coming to her from
Flemmi from his life of crime, and she comes
in here says it's not my fault. . . . She
washed his clothes after he cut the teeth out
of all these people.

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Davis, 739 F. Supp. 2d at 69. The government continued this line

of questioning when Marion Hussey testified, focusing on financial

benefits she may have gained from Flemmi. The district judge's

sanction discussion pointed to these excerpts.

If the district judge reasonably concluded that the

opening statement and questioning were intended to harass, a

sanction would be permissible. United States v. Knott, 256 F.3d

20, 36 (1st Cir. 2001), cert. denied, 534 U.S. 1127 (2002). But

the district court explicitly rested its finding of intent to

harass in part on the premise that the defense itself was patently

baseless--a view we do not share. Davis, 739 F. Supp. 2d at 69. So

the finding of intent to harass must be reconsidered on remand.

In addition, the district court did not limit the

sanction to Hussey but referred to "the cognate arguments sullying

Debra Davis." Davis, 739 F. Supp. 2d at 69. Neither the district

court nor the Davis estate has pointed to similarly specific and

potentially harassing conduct directed towards Davis or her mother,

other than simply raising the defense itself. And, as already

noted, we do not think that by simply raising the abstract defense

the government opened itself to sanctions.

This was a set of cases with very difficult issues, much

emotion, and a sprawling background that is hard enough to organize

even on appeal--let alone in a full-blown trial; the district judge

deserves credit for having brought the ship safely into port. But

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we have to keep in mind that both sides in a hard fought case often

overdo their presentations, and misconduct sanctions are a serious

business. We are confident that the district judge will take a

fresh look at the matter on remand.

The judgments of the district court are affirmed save as

to sanctions. The sanction awarded to the Davis plaintiffs is

reversed; that awarded to the Hussey plaintiffs is vacated and the

district court may consider on remand whether, granting that the

defense was permissibly asserted, it wishes to treat the trial

opening and cross examination as intentional harassment. If it

does, it should make appropriate findings as well. Each side is to

bear its own costs on this appeal.

It is so ordered.

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