Litif v. United States

United States Court of Appeals
For the First Circuit

Nos. 10-1417, 10-1472, 11-2255

ANNA M. LITIF, individually, and in her capacity as
Administratrix of the Estate of Louis R. Litif; LUANNE LITIF;
LEE LITIF,

Plaintiffs, Appellees/Cross-Appellants,

v.

UNITED STATES OF AMERICA,

Defendant, Appellant/Cross-Appellee.
__________

FEDERAL BUREAU OF INVESTIGATION; JOHN J. CONNOLLY; JOHN M.
MORRIS; LAWRENCE SARHATT; 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.
Edward Berkin for plaintiffs, appellees/cross-appellants.

January 20, 2012
 BOUDIN, Circuit Judge. The United States seeks review of

a judgment awarding $1.15 million to the family and the estate of

Louis Litif ("the Litif estate"), resulting from Litif's murder by

James "Whitey" Bulger in 1980. Litif v. United States, 682 F.

Supp. 2d 60 (D. Mass. 2010). The Litif estate cross-appeals,

seeking an increase in the damage award. This case, like its

companion case decided by us today ("Davis-Hussey") and others

already decided,1 stems from FBI agents' sheltering of Bulger and

his associate Stephen Flemmi over several decades.

In the 1970s, Louis Litif worked as a bookmaker in the

Boston area and was involved with Bulger's Winter Hill gang. In

September 1979, Litif was charged with murder in the death of James

Matera. While out on bail, Litif secretly offered to cooperate

with the Boston police, in exchange for leniency, in the

investigation of an ongoing drug conspiracy involving Bulger and

his gang. In March or April of 1980, Litif's attorney, Kevin

Curry, met with Boston Police Detective Edward Walsh to discuss

this offer. The meeting was also attended by FBI agent John

Connolly.

Unbeknownst to Litif and Curry, Bulger was a "top

echelon" FBI informant, Connolly was his primary handler, and

1
The Davis and Hussey cases, Davis v. United States, Nos. 10-
1418, et al. (1st Cir.), ("Davis-Hussey"), decided today in a
separate decision, were tried and decided together in the district
court and briefed and argued together in this court. Other civil
cases involving similar claims are cited in Davis-Hussey, n. 1.

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Connolly and others within the FBI were taking measures to protect

Bulger from prosecution so that he could continue supplying

information. Roughly three weeks after the meeting, Litif was

murdered in South Boston. His body, repeatedly stabbed and shot,

was discovered the day after the murder in the trunk of his car.

At this early stage there was nothing directly connecting FBI agent

actions to Litif's death.

A news article at the time of Litif's death reported that

"Litif had lost the 'blessing' of the so-called South Boston gang

allegedly headed by James J. (Whitey) Bulger Jr." Richard J.

Connolly, Slaying Victim Alienated Mob, Prober Says, Boston Globe,

Apr. 15, 1980. But the Boston Globe stated that, "according to

investigators, there was no evidence . . . that he was killed for

[losing Bulger's support] or that he had been murdered by friends

of Matera." Id. The Boston Police Department appears to have

stopped investigating Litif's murder in the summer of 1980.

Throughout the 1990s, the Boston press and eventually the

national news media began to report on alleged ties between Bulger,

Flemmi and the FBI. First in news stories and then in judicial

proceedings, it emerged that certain FBI agents allowed Bulger and

Flemmi to engage in serious criminal activity while Bulger and

Flemmi informed on other criminals (and paid at least some of the

agents, including Connolly). United States v. Connolly, 341 F.3d

16, 23 (1st Cir. 2003). Eventually, it was learned that in some

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instances Connolly had tipped off Bulger and Flemmi about

cooperating witnesses against them.

In 1997, the Boston Globe ran a front-page story about

Litif's death. Shelley Murphy, In '80s, FBI saw Bulger as both

informant and murder suspect, Boston Globe, Oct. 3, 1997 at A1.

The article said that in 1982 Brian Halloran--a criminal associate

of Bulger's--gave the FBI an eyewitness account of Litif's murder

implicating Bulger, shortly before Halloran was himself murdered,

allegedly by Bulger. According to the article, Halloran claimed

that Bulger murdered Litif because Litif had been freelancing as a

drug dealer and because Litif had killed Matera without Bulger's

permission. Id.

However, the Globe story identified its sources only as

unnamed "law enforcement" officials and noted that the FBI was

skeptical of Halloran's reliability because he was facing murder

charges at the time of his cooperation, was abusing drugs, and was

unwilling to take a lie detector test. Murphy, In '80s, at B7.

Halloran himself was killed in 1982. The Globe story also

recounted that in 1980 a Boston Herald reporter had investigated

stories about Bulger's involvement in the Litif murder and had been

threatened by Bulger. The reporter acknowledged to the Globe that

the encounter occurred, but refused to comment on the details. Id.

In the late 1990s, District Judge Mark Wolf held the

first extensive judicial proceedings (the "Salemme proceedings")

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documenting the relationship between Bulger, Flemmi and the FBI.2

In April 1998 testimony, FBI Agent John Morris implicated the FBI

and, in particular, both himself and Connolly in covering up crimes

by Bulger and Flemmi. Morris also testified that Connolly told

Bulger and Flemmi of Halloran's offer to cooperate with the FBI

against them, which Morris suspected to be the cause of Halloran's

murder. Salemme, 91 F. Supp. 2d at 209-10.

Litif's murder was not a significant subject of testimony

during the Salemme proceedings, although one Quincy police

detective stated in his testimony that Bulger was suspected in

Litif's murder, among others. This testimony was reported in the

Boston Herald and Quincy Patriot Ledger. Ralph Ranalli, Cop:

Whitey linked to IRA gun-running, Boston Herald, June 3, 1998;

Robert Sears, Former Quincy detective recalls Bulger connection,

Quincy Patriot Ledger, June 3, 1998. The police, however, never

charged Bulger with Litif's murder.

On August 5, 1998, the Boston Herald, citing "[a] local

attorney who requested anonymity," ran a story detailing the

substance of Litif's offer to cooperate with the Boston police just

weeks before his murder. Ralph Ranalli, Questions arise over

2
United States v. Salemme, 91 F. Supp. 2d 141 (D. Mass. 1999).
The proceedings, which were initiated to determine Flemmi's claim
of immunity in the criminal case against him as well as evidentiary
issues, continued throughout 1998 and unearthed considerable
evidence about the relationship of the FBI to its Boston-area
informants. Id. at 163.

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agent's link to murdered drug dealer, Boston Herald, Aug. 5, 1998.

The anonymous attorney said that he told Detective Walsh, in the

presence of Connolly, that Litif would implicate Bulger in exchange

for leniency. The next day, the Herald reported Connolly's denial

that the meeting ever took place. Ralph Ranalli, Ex-FBI agent says

slain dealer was informer, Boston Herald, Aug. 6, 1998.

On September 15, 1999, Judge Wolf published his decision

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

This lengthy decision provided the first detailed, publicly

available legal document describing in great detail the

relationship between the FBI, Bulger and Flemmi. Litif's murder

was not discussed but Brian Halloran's cooperation with the FBI and

subsequent murder was canvassed in considerable detail. Id. at

208-13. The decision recounted and placed in context Morris'

testimony that Connolly had leaked Halloran's name to Bulger who

had then likely killed him. Id.

The decision also contained summaries of evidence linking

Bulger and Flemmi to the murders of Roger Wheeler, John Callahan,

and John McIntyre. Salemme, 91 F. Supp. 2d at 208-15. Further,

the discussion of the McIntyre murder noted his offer of

cooperation to law enforcement officials shortly before his

disappearance. Id. at 213-15. Together with Morris' testimony as

to Halloran, the decision warranted at least a strong suspicion of

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systematic FBI leaks of informant names to Bulger followed by their

death at Bulger's hands.

Litif's widow thereafter spoke with her family and

engaged an attorney, and the Litif estate filed the administrative

claim under the Federal Tort Claims Act ("FTCA") on September 10,

2001, 28 U.S.C. §§ 1346(b)(1), 2401(b), 2671 et seq.; when no

action was taken by the government, the instant lawsuit was filed

on September 9, 2002. 28 U.S.C. § 2675(a). After consolidation,

discovery and pre-trial motions, the district court conducted a

single twelve-day bench trial on the Litif, Davis and Hussey claims

in July 2009.

Thereafter, the district court found in favor of the

Litif plaintiffs. It concluded that "Connolly leaked to Bulger

Litif's willingness to incriminate Bulger." Litif, 682 F. Supp. 2d

at 70. In reaching this conclusion, the court expressly relied on

the trial testimony of Litif's former attorney, Kevin Curry, as to

Litif's offer to cooperate; evidence of the relationship between

Connolly and Detective Walsh; Connolly's leaks to Bulger of

information regarding other informants; and testimony (see note 6,

below) from Bulger associates Kevin Weeks and Stephen Flemmi. Id.

Having concluded that Connolly generated this leak, the

district court ruled that "there [was] no question that Connolly

had a duty of care, breached it, and by breaching it, created a

foreseeable risk of injury to Litif." Litif, 682 F. Supp. 2d at

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75. In particular, the district court ruled, Connolly breached

"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." Id.

The district judge then awarded the Litif plaintiffs

damages totaling $1.15 million: $500,000 to Litif's daughter for

loss of consortium, $250,000 to Litif's son for loss of consortium,

$50,000 to Litif's wife for loss of consortium, and $350,000 to

Litif's estate for Litif's conscious pain and suffering incident to

his murder. The government filed the appeal now before us to

challenge the judgment; the plaintiffs have cross-appealed to

challenge as inadequate the award for Litif's conscious pain and

suffering.

The government contests liability on three grounds--that

the administrative claim was filed after the statute of limitations

had run; that there is insufficient admissible proof that the leak

occurred and that Bulger killed Litif; and that the Litif estate

failed to meet its burden for liability based on conscious pain and

suffering. The limitations and the proof issues are connected but

not identical so we address them separately in turn, reserving

damage appeals on both sides for later discussion.

As for the standard of review, the pure issues of law are

reviewed de novo; findings of fact in a bench trial are reviewed

for clear error. United States v. Padilla-Galarza, 351 F.3d 594,

-8-
597 n.3 (1st Cir. 2003). Of course, an individual claim, defense,

or precondition (e.g., the statute of limitations) can turn on

issues of law, fact, or law-application--or any combination of

them; and on law-application some deference may be afforded to the

district court's judgment. Id. Within this framework, the

standard as to particular issues is discussed below as needed.

Statute of Limitations. The relevant statutory language

of the FTCA provides that "[a] tort claim against the United States

shall be forever barred unless it is presented in writing to the

appropriate Federal agency within two years after such claim

accrues." 28 U.S.C. § 2401(b). The Litif plaintiffs filed their

administrative claim on September 10, 2001. The government

contends that their claim accrued prior to September 10, 1999, so

that their lawsuit is now time-barred.

The pertinent legal doctrine governing timeliness has now

been repeated so often (see Davis-Hussey at n.1) that a brief

summary will suffice. Litif's murder occurred in 1980, but the

"discovery rule"--applied to FTCA claims, United States v. Kubrick,

444 U.S. 111 (1979)--delays accrual "where the fact or cause of an

injury is unknown to (and perhaps unknowable by) a plaintiff for

some time after the injury occurs." Rakes v. United States, 442

F.3d 7, 19 (1st Cir. 2006). This court has applied the discovery

rule in a number of Bulger-related FTCA claims at this point; its

applicability here is not in dispute.

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 Under this rule, "a claim accrues under the FTCA once a

plaintiff knows, or in the exercise of reasonable diligence should

know, (1) of her injury and (2) sufficient facts to permit a

reasonable person to believe that there is a causal connection

between the government and her injury." Skwira v. United States,

344 F.3d 64, 78 (1st Cir. 2003), cert. denied, 542 U.S. 903 (2004).

The inquiry is an objective one--it includes not only what was

actually known but what a reasonable person, once fairly prompted

to investigate, would have discovered by diligent investigation.

Rakes, 442 F.3d at 20, 23.3

The district court ruled that whatever the plaintiffs may

have suspected, they did not have actual or constructive knowledge

of their claim prior to September 10, 1999. Litif, 682 F. Supp. 2d

at 79-80. Specifically, they did not know that Litif was an

informant, that he was murdered by Bulger and Flemmi, that this

occurred because he was threatening to incriminate them, and that

Bulger and Flemmi knew these facts because Connolly so warned them.

The court supported this conclusion by pointing to the lack, at

that time, of identifiable first-hand witnesses or other admissible

evidence to corroborate any of these facts. Id.

3
In some cases, the plaintiffs' subjective knowledge was clear
and was therefore held against them for claim accrual purposes.
E.g., Skwira 344 F.3d at 80. Here, however, the plaintiffs all
disclaim any knowledge--at least prior to the Salemme decision--of
the news articles or other information linking Litif's death to
Bulger and the FBI.

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 The plaintiffs could not prove based on newspaper stories

quoting anonymous sources that Bulger knew of Litif's offer to

cooperate. The FBI was formally and informally denying

involvement; Litif was not mentioned in any detail in the Salemme

proceedings; and most of the helpful witnesses (e.g., Bulger,

Connolly) would hardly agree to incriminate themselves. The court

noted that even today no one has ever been indicted for Litif's

murder. Litif, 682 F. Supp. 2d at 80.

The government counters by saying that proof was

unnecessary; prior to the cut-off date there were newspaper

accounts suggesting, though falling far short of proving, that

Bulger killed Litif; and evidence generated in the Salemme

proceedings, reported before the decision, indicating that the FBI

was protecting Bulger. This, according to the government, was (1)

enough to require the filing of an administrative claim under an

emboldening theory of liability,4 and (2) therefore triggered the

accrual period as to all related theories to support a liability

claim.

4
Our prior cases have distinguished between "emboldening" and
"leak" theories of liability asserted by the plaintiffs. Roughly,
the emboldening theory suggests that the FBI protection of Bulger
and Flemmi enabled or emboldened them to commit further crimes for
which the government bears responsibility. The leak theory focuses
more specifically on Agent Connolly leaking confidential
informants' identities to Bulger and Flemmi. E.g. McIntyre v.
United States, 367 F.3d 38, 53-54 (1st Cir. 2004).

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 Even if we assume the second proposition to be a

mechanical rule, but see Donahue v. United States, 634 F.3d 615,

625 (1st Cir. 2011) (citing Rakes, 442 F.3d at 21)--we do not

accept the first one. Whether the liability theory is emboldening

or leak, prior to the Salemme decision, and arguably for some time

after it, there was only press speculation--itself seemingly

unknown to the plaintiffs--that Bulger killed Litif. Thus the

plaintiffs lacked "sufficient facts to permit a reasonable person

to believe that there is a causal connection between the government

and [the] injury." Skwira, 344 F.3d at 78.

First, the plaintiffs denied being familiar with the

early and relatively sparse newspaper coverage--two major articles

and a few other isolated press mentions--connecting Bulger with

Litif's death. The modest scale of coverage on this issue

contrasts with our cases charging plaintiffs with knowledge

regarding facts that have "achieve[d] a local notoriety great

enough that the only practicable course is to attribute knowledge

of them to people in a position to become familiar with them."

Rakes, 442 F.3d at 20. See also Donahue, 634 F.3d at 625-26;

Rakes, 442 F.3d at 22-24; Callahan v. United States, 426 F.3d 444,

448-50, 452-54 (1st Cir. 2005).

Second, even assuming the articles were known, nothing

available prior to September 10, 1999 would have yielded enough for

a reasonable belief that Bulger killed Litif. See Rakes, 442 F.3d

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at 20. Halloran's hearsay statement was discredited in the same

article in which it appeared; Connolly himself refuted the next day

the Boston Herald story that Connolly had been advised of Litif's

offer to cooperate. There is little else beyond those articles,

nor any indication that a diligent inquiry would have yielded

anything more prior to September 10, 1999.

Much of the evidence at trial--which the government says

is still insufficient to establish liability--emerged after

September 10, 1999. The September 15, 1999, Salemme decision

assembled for the first time a well-documented story of the FBI's

protection of Bulger and Flemmi. It included a description of the

evidence suggesting Halloran's murder by Bulger and the prospect

that this information had been leaked by Connolly along with

discussion of other murders and players in the saga. The Halloran

episode in turn offered helpful indirect evidence, later reinforced

by additional examples, of a sequence similar to the one that

caused Litif's death.

Nor, prior to September 10, 1999, could the plaintiffs

know of Bulger and Flemmi's incriminatory conduct (described below)

both before and after Weeks' wedding; Kevin Weeks did not begin to

cooperate with law enforcement until 2000 and his book containing

substantially similar information was published in 2006. Kevin

Curry's trial testimony was also essential--both to the leak theory

because it showed that Connolly was aware of Litif's offer to

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inform, and to substantiate the basic fact necessary to any theory

supporting recovery that Bulger was the killer.

The government also argues that our conclusion is at odds

with prior Bulger-related cases in which FTCA plaintiffs have been

barred under the discovery rule. However, in Donahue, the case

most heavily relied upon, there was solid and well-publicized

direct proof, more than two years before the Halloran plaintiffs

filed their claims, that Morris had told Connolly of Halloran's

cooperation, that Connolly had told Bulger and Flemmi, and that

Hallaron's death had followed. Donahue, 634 F.3d at 625-26.5

So, too, in Rakes. There, the plaintiffs were charged

with knowledge, more than two years before their claim was filed,

of Connolly's corrupt relationship with Bulger, Rakes, 442 F.3d at

15-17, 22-24 (and thus the arguments for an emboldening theory); in

addition, quite unlike the present case, they knew at the same time

without any doubt that Bulger was the direct agent of the harm

caused to them by the extortion, because it was Bulger who forced

them to sign title of their store over to him. Id. at 12-14.

5
On April 22, 1998, FBI Agent John Morris had given sworn,
sensational and well-publicized testimony in the Salemme
proceedings that he had told Connolly of Halloran's cooperation
with the FBI, that Connolly told Bulger and Flemmi about this
cooperation, and that "he believed that Bulger and Flemmi may have
killed Halloran." Donahue, 634 F.3d at 626. And Flemmi had
acknowledged that the FBI had tipped him off about Halloran, which
information was made public in a September 1, 1998 judicial order
and widely reported the next day. Id. at 620, 626.

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 Similarly, in Skwira, the debarred plaintiffs filed no

timely claim within two years even after the following had emerged:

a highly publicized investigation of suspicious deaths in the ward

of a Veteran's Administration Hospital in which Skwira died, the

exhumation of Skwira's body after a government request to the

family citing "suspicions" about the deaths, and information passed

to the family after an autopsy was performed confirming that the

cause of death listed on the death certificate was inaccurate.

Skwira, 344 F.3d at 80.

To sum up, the legal "reasonable belief" standard is not

in dispute (save on one issue that we have assumed arguendo in

favor of the government). Nor is the pattern of relevant facts as

to what was or should have been known by the plaintiffs in this

case the same as that in our earlier decisions. Applying the legal

test to the facts of this case, our own evaluation, although not

identical to that of the district judge, coincides with his

conclusion, namely, that the reasonable belief standard did not

require an administrative filing earlier than September 10, 2001.

Causation. The substantive tort law of Massachusetts has

been set forth in the Davis-Hussey decision, see Davis-Hussey at

*8-17, and need not be repeated. In its application to the present

case, the strongest claim for plaintiffs--both as to negligence and

causation (but for and proximate)--was that Connolly leaked Litif's

offer to inform to Bulger and that, as a direct and foreseeable

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consequence, Bulger killed Litif. The government contends that the

admissible evidence for this conclusion is too thin.

This is surely an uncomfortable position for the

government since its own agents took statements from Halloran who

told them that he witnessed Litif entering the bar on the night of

his death and Bulger or Flemmi helping to carry out a body bag then

loaded into a car trunk, where it was in fact found the next day.

Nor is there anything implausible about that story. Nevertheless,

we agree with the government that Halloran's statements to Agent

Montanari were hearsay under the Federal Rules of Evidence.

The district court said the statements could still be

considered, reasoning that federal law incorporates state

competency rules in FTCA cases and that Massachusetts law provides:

In any action or other civil judicial
proceeding, a declaration of a deceased person
shall not be inadmissible in evidence as
hearsay or as private conversation between
husband and wife, as the case may be, if the
court finds that it was made in good faith and
upon the personal knowledge of the declarant.

Mass. Gen. Laws. ch. 233, § 65 (emphasis added). Litif, 682 F.

Supp. 2d at 65-66. Reading the underscored language as a rule of

competency under Massachusetts law, the district court said that it

rendered Halloran's statement admissible even in the absence of a

federally recognized hearsay exception. Id. at 67-68.

Assuming arguendo that state competency law did govern

FTCA claims, but see 27 Wright & Gold, Federal Practice & Procedure

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§ 6007 (2d ed. 2007), the Federal Rules of Evidence treat

competency (Rule 601 et seq.) as quite distinct from hearsay (Rule

801 et seq.). So application of Rule 601--the only invoked basis

for importing state competency law--cannot be read to trump federal

hearsay rules in a federal proceeding, whether the substantive

claim rests on federal or state law. See Wright & Gold, § 4512;

accord Fitzgerald v. Expressway Sewerage Constr., Inc., 177 F.3d

71, 74 (1st Cir. 1999).

Likely aware of such doubts, the district judge did not

significantly rely on Halloran's hearsay testimony to prove that

Bulger did kill Litif. That Bulger was responsible for the

killing, one way or another, was amply supported by other evidence.

Before saying anything about the "manner" of the murder--where the

court did briefly mention Halloran's statement--the district judge

had already concluded:

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 . . . . Several pieces of evidence,
taken together, mandate this conclusion:
Curry's testimony (which the Court finds
c r e d i b l e) ; Connolly and Walsh's
relationship . . . ; Connolly's leak of
Castucci's cooperation; Connolly's later leaks
of other informants' status, leading them to a
similar fate; . . . and Bulger's statements
to Weeks and Flemmi, made shortly after the
murder, that Litif was an informant.

Litif, 682 F. Supp. 2d at 70.

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 In other words, there was a pattern of FBI leaks of

informants to Bulger and Flemmi, which was well supported: Flemmi

testified that Connolly leaked the names of between six and twelve

informants to him. How many were then murdered was unclear but

McIntyre, Halloran, and Castucci were apparently leak victims. And

Connolly, as Curry testified, was present when Litif's plans to

cooperate and incriminate Bulger were made known to the Boston

Police, posing a serious danger to Connolly's continued use of

Bulger as an informant and a threat to expose Connolly's role in

covering up crimes.

The inference that Connolly then told Bulger and Bulger

killed Litif is supported by their respective motives, the timing

of Curry's meeting with Connolly in relation to Litif's death

shortly thereafter, and remarks by Bulger to Weeks around the same

period that in context can be taken to indicate knowledge by Bulger

of Litif's fate.6 All that was required for plaintiffs to prevail

was to show that this was more likely than not. The district judge

so found and his conclusion is unsurprising, does not rest solely

on pattern, and is not even arguably clear error.

6
Weeks testified that shortly before his wedding on April 26,
1980, he talked to Bulger about his concerns regarding where to
seat Litif at the wedding reception to prevent conflicts. Bulger
told Weeks not to worry about it, that "he probably won't even
show." At the reception, Bulger pointed to an empty chair at his
table and said "[s]ay hi to Louie." Flemmi then made wiping
motions with his napkin in the area where Litif's head would be and
said "he keeps on drinking but it keeps on leaking out of his
head."

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 Damages. Both parties appeal from the district court's

award of $350,000 for Litif's conscious pain and suffering. The

district judge concluded that Litif was stabbed dozens of times

before he was shot in the back of the head, but nothing proved that

the murder took more than a couple of minutes. Litif, 682 F. Supp.

2d 70-71 & n.9. The government argues that the plaintiffs have not

proved that Litif was conscious while he was stabbed, that is, that

he could have been stabbed after being shot.

This is possible but the district judge was right to deem

it improbable: Bulger, as other evidence indicates (e.g., the

strangling of Davis recounted in the companion case), was a cruel

man; and stabbing a turncoat while alive and then ensuring his

death with a bullet would in any event be more probable than stabs

pointlessly inflicted after unconsciousness or death. The district

judge certainly could find conscious pain and suffering shortly

before Litif's death.

The Litif plaintiffs ask that we increase the district

court's award for conscious pain and suffering, arguing that Litif

was tortured over an extended period of time, with many of his stab

wounds being to the liver (which is thought to be particularly

painful). The plaintiffs also contend that Bulger had a motive for

prolonged torture, namely, to determine what, if anything, Litif

had already said to law enforcement officials. But this is

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conjecture: the district court found vicious stabbing but no proof

that it lasted long, and this can hardly be deemed clear error.

Plaintiffs say the award was too low even if Litif's

agony was brief, but our discussion in Davis-Hussey forecloses this

claim. See Davis-Hussey at *19-22. If published cases that

involve stabbings are deemed important, we note two in that

category: 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); Givens v.

Rochester City School Dist., 741 N.Y.S.2d 635, 636 (N.Y. App. Div.

2002) (reducing $1,000,000 verdict to $300,000 for pain and

suffering in a stabbing death). As in Davis-Hussey, we cannot

conclude that the district court's award was an abuse of

discretion.

The judgment of the district court is affirmed. Each

side is to bear its own costs on this appeal.

It is so ordered.

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