Aurora massacre survivors sued. How did some end up owing the theater $700,000?

The lights of the Century 16 theater in the background as dawn breaks with the crosses, messages and flowers at the roadside memorial in the foreground in Aurora, Col. on July 26, 2012.

By Nigel Duara

Aug. 30, 2016 3 AM PT

Reporting from DENVER — They had survived brain damage, paralysis and the deaths of their children. For four years, they met in secret as a group. Now, they were finally prepared to settle with the owners of the Aurora movie theater where the opening of a summer blockbuster became the site of one of the deadliest massacres in U.S. history.

Marcus Weaver kept a calm facade, but writhed with anxiety within. His dreams often return him to the theater, the sounds of gunshots and the feeling of his friend’s lifeless body slumped against him. After he escaped, he found a bullet hole in his shoulder.

For the record:

7:20 p.m. Sept. 1, 2016An earlier version of this article stated that four survivors were liable to pay the theater chain $700,000. There were 15 survivors who were liable. The earlier version also did not say that, according to a source close to the theater chain, there was no intention to seek recovery of the court costs.

A day earlier on a conference call, the federal judge overseeing the case told the plaintiffs’ attorneys that he was prepared to rule in the theater chain’s favor. He urged the plaintiffs to settle with Cinemark, owner of the Century Aurora 16 multiplex where the July 20, 2012, shooting occurred. They had 24 hours.

But before that deadline, the settlement would collapse and 15 massacre survivors would be liable to pay the theater chain more than $700,000.

It was the biggest smack in the face.

— Marcus Weaver, Aurora theater shooting survivor

The settlement conference, corroborated by The Times with four parties present at the conference, was hastily convened after a separate set of survivors suffered defeat in state court, where a jury decided that Cinemark could not have foreseen the events of that night in 2012, when James Holmes killed 12 people and injured 70 others in a 10-minute rampage at a screening of “The Dark Knight Rises.”

The survivors, some of whom had two and even three attorneys with them, were told that the state case had in effect decided the issue: Cinemark was not liable for the shooting.

The federal lawsuit was effectively over.

U.S. District Court Judge R. Brooke Jackson, though, wanted the survivors and Cinemark to end the case with a settlement. It was Thursday, June 23, at 8 a.m. For the next eight hours, attorneys for both sides inched closer to a deal.

At 4 p.m., Cinemark’s attorneys presented a settlement offer. Before it was read, a federal magistrate cornered Weaver to speak with him one-on-one. He asked Weaver to remember the slow pace of change in the civil rights movement, and told him that changing theater safety would also be slow.

“It was the biggest smack in the face,” Weaver said. “He was basically telling us, you’re right, they’re basically at fault, but there’s justice and then there’s true justice.”

The settlement offer was a pittance, Weaver thought: $150,000 split among the 41 plaintiffs.

Weaver leaned in close to his attorney.

“That’s it?” he asked.

“That’s it,” Phil Harding replied.

But the settlement would achieve the one thing Weaver had been pushing for, an acknowledgment that the theater chain would take new measures to protect patrons. Still, something was worrying him.

“It was the 12th hour, we were all feeling the same way. We all knew they were liable. We knew they were at fault,” Weaver said. “[The settlement] was a slap in the face. But I said, ‘Let’s go for it because it’s better than nothing.’”

The deal came with a worrisome caveat : If the survivors rejected the deal, moved forward with their case and lost, under Colorado law, they could be responsible for the astronomical court fees accumulated by Cinemark.

The choice for the survivors was clear: “Either seek justice and go into debt, or take that pitiful offering of money and the improved public safety,” Weaver said.

The plaintiffs and their attorneys all seemed to agree. They decided on a split of $30,000 each to the three most critically injured survivors. The remaining 38 plaintiffs would equally share the remaining $60,000.

Attorneys with Cinemark drafted a news release to distribute the next day.

Then one plaintiff rejected the deal. Her suffering had been profound: Her child was killed in the shooting, she was left paralyzed and the baby she was carrying had been lost.

Weaver’s vision briefly blurred. The eight hours they had spent negotiating the deal, the weeks of the failed state court trial, the four years of anger at the theater since the shooting — all of it was for nothing.

“It was done then,” Weaver said.

None of the plaintiffs would receive a dime. And, more vexing to Weaver, the theater chain would make no public acknowledgment of safety improvements.

The chain issued a “bill of costs” in the state case, which amounted to more than $699,000, but has not issued a similar explanation of costs in the federal case, which are expected to be far more.

Although a source close to the theater chain said that there is no intention to actually seek recovery of the court costs, the theater chain has not issued any statement about its intentions.

Weaver removed himself as a plaintiff immediately. So did 25 others. By the next day, 15 plaintiffs remained when Jackson handed down the order that Cinemark was not liable for the damages.

“A blind guy in a dark alley could have seen [the state verdict] coming,” Harding, Weaver’s attorney, said.

Several plaintiffs and attorneys, including those who would not comment on the settlement negotiations, expressed frustration with the way the state case was handled.

In that case, a New York attorney representing 27 people paid one expert $22,000 to testify. Cinemark paid five experts $500,000 to testify. Most damaging to their case, the state plaintiffs were not permitted to enter a crucial piece of evidence before the jury: a May 2012 warning from the Department of Homeland Security to theater chains nationwide concerning the potential for a mass-casualty attack on a theater.

“I strongly think that this guy was trying to make a name for himself and he wanted to get ahead of the curve,” Weaver said. “You’ve got this guy from New York representing people in Colorado who were probably misguided, to be honest.”

The case put forward in state court was so weak, the federal plaintiffs felt, that a rumor circulated among them that the case was a setup by Cinemark designed to fail.

“That’s ridiculous,” said Marc Bern, the attorney who argued the state case and is known for representing rescue workers from the Sept. 11 attacks. “We had all the resources possible. The only expert we needed was a security expert.”

In August 2015, Holmes was sentenced to life in prison without the possibility of parole, avoiding the death penalty.

Weaver, 45, has married and had a child since the shooting, a blue-eyed girl named Maggie. He still goes to therapy, which he said has helped him. The way the case ended, however, will never leave him.

“Theaters aren’t any safer,” Weaver said. “It’s almost like everything was for naught.”

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Follow Nigel Duara on Twitter @nigelduara

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UPDATES:

7:15 p.m., Sept 1: This article was updated with material omitted from the original story.