Lawyers for Charla Nash, who was blinded in a 2009 mauling by a 200-pound chimpanzee that tore off her face, have submitted the appeal they promised weeks ago of state Claims Commissioner J. Paul Vance Jr.’s June 14 decision to deny Nash permission to sue the state for $150 million.
The appeal, released Wednesday by Nash’s attorney, Charles Willinger of Bridgeport, was sent to Vance’s office. It will be held until the General Assembly reconvenes next February for its 2014 session. Then it will be turned over to the legislature’s judiciary committee to begin a review process, including a public hearing, that could potentially reverse Vance’s decision and let Nash make her case in state Superior Court.
Both the state House and Senate would need to approve such a decision, according to state law.
“This Request for Review is based upon clear error presented in the Nash Decision in both the rendition of the facts and, most critically, in the law cited therein,” the appeal by Willinger’s firm says. “The Nash decision allows the [Department of Energy and Environmental Protection] to avoid the consequences of its negligence and failure to act a mandated by statute.”
The state enjoys sovereign immunity against most lawsuits for damages unless the claims commissioner grants permission to bring an action in state court. Nash, 59, whose injuries required a face transplant, had asked for such permission based on her claim that the state DEEP failed in its regulatory duty to protect the public — including her — from dangerous animals.
“The decision [by Vance] is flawed because it fails to recognize the unique position of the DEEP and the horrendous consequences that can and did befall a state resident when the DEEP, despite its manifest responsibilities, ignored its obligations to the claimant [Nash] and to all of the residents of Connecticut,” the appeal says.
“In justice and equity, Charla Nash deserves to have her day in court, to have her opportunity to present her case to a judge of the Superior Court, to have her rights adjudged in accordance with longstanding legal principles,” the appeal says. “It is only in that impartial forum that the evidence and law can be objectively reviewed and fairly determined.”
The appeal says that Vance did not follow the correct standard in deciding whether Nash could sue the state. It argues that Vance wrongly required a standard of proof that a judge would use to make a decision in an actual lawsuit — and that all Vance was supposed to do was determine that Nash had a strong enough claim to potentially prevail in court if the state were “a private person.”
“There is no requirement that the Claims Commissioner find that [it] is a ‘just claim’ [and] no requirement of proof of causation … because that issue is one which would be decided by a Superior Court after a trial,” the appeal said.
Nash said last year that she thinks state environmental officials “failed to do their job” by ignoring warnings that the 14-year-old chimp, Travis, was dangerous and should be removed from the Stamford home of her friend and employer, Sandra Herold.
The attack happened on Feb. 16, 2009, when Nash answered Herold’s call to help return Travis to his cage after he had escaped and was roaming the property. Herold died in 2010. Nash received a successful face transplant in 2011. A transplant to give Nash new hands was unsuccessful. She lost all of one hand in the attack, and all but the thumb of the other.
Willinger has argued in the past that Travis was “an accident waiting to happen” – quoting a phrase used in late 2008 by a state environmental official in a memo warning other officials at the agency that Travis had grown too powerful and dangerous to remain with Herold.
Rep. Gerald Fox, D-Stamford, co-chairman of the legislature’s judiciary committee, has said that the Nash case is so big and complex that, unlike typical appeals, it may merit an all-day public hearing of its own next year.
Willinger already has retained a state Capitol lobbyist, Kevin Reynolds, for the past two years, to prepare for the possibility of an appeal to the legislature. Reynolds was paid $50,000 for lobbying on the matter in 2012, and is to be paid $60,000 for 2013, state records show. Reynolds, in addition to being a lobbyist, is legal counsel to the state Democratic Party.