Pa. settles lawsuit over boy’s shooting for $12.5M
By JOE MANDAK Associated Press Writer
PITTSBURGH—The state will pay $12.5 million to settle a lawsuit brought by the father of a 12-year-old boy who was fatally shot by troopers after he hopped out of a stolen vehicle.
A federal jury in Pittsburgh had awarded the boy’s father, Michael Hickenbottom, more than $28 million, including $24 million in punitive damages.
Police attorneys had appealed, arguing the punitive damages were excessive. The case settled late Wednesday before the issue could be decided, according to online court records.
The boy, Michael Ellerbe, was unarmed when he was shot during the chase on Christmas Eve 2002 in Uniontown, about 40 miles south of Pittsburgh. The jury didn’t believe two state troopers’ claim that only one of them shot Ellerbe—and then only because the officer believed his partner had been shot by Ellerbe.
Michigan attorney Geoffrey Fieger, who represented Hickenbottom, did not immediately return calls.
Peter Vaira, the Philadelphia attorney representing troopers Juan Curry and Samuel Nassan, who remain on the job, declined to comment because of a confidentiality agreement.
The Associated Press obtained the eight-page settlement agreement Thursday from the Pennsylvania Office of General Counsel.
The state will pay Hickenbottom $6.5 million within a month. He will receive $6 million more next year.
The Ellerbe jury had awarded $4 million in compensatory damages for Ellerbe’s pain and suffering, plus $12 million in punitive damages against each trooper for using excessive force; plus $4,058 for burial expenses.
The troopers had claimed the verdict was “the product of passion and prejudice … purposely and continuously injected into the trial” by Fieger, who is best known as the defense attorney for assisted suicide physician Jack Kevorkian.
In July, the troopers’ attorney filed a motion to limit the punitive damages based on a June decision by the U.S. Supreme Court. In that decision, which related to the Exxon Valdez oil spill in 1989, the high court found that punitive damages could not exceed a 1-to-1 ratio to compensatory damages.
The settlement doesn’t break down the damages, but essentially amounts to the unchallenged $4 million compensatory award, $4 million in punitive damages for each trooper—plus $500,000.
The settlement document says it is not to “be construed as an adjudication on the merits” of the case but “is made as a compromise to avoid further expense and to terminate all controversies and/or claims or causes of action.”
Fieger, in April, dismissed police complaints about how he tried the case by saying, “The jury concluded that they were liars, that they were covering up the truth,” he said. “Like the jury didn’t really hear the evidence, OK?”
Internal state police investigators concluded that Nassan shot Ellerbe because he believed Ellerbe had shot Curry. In reality, Nassan had heard Curry’s gun fire when its trigger snagged on a fence he was climbing, the troopers said.
But Fieger contended both troopers shot at Ellerbe even though they were within grasping distance of him when the foot chase began and could clearly see he was unarmed.
