Shooting massacre victims allege legal insults add to injuries
(Nevada Current) Roger Kenis had post-traumatic stress disorder before Oct. 1, 2017, the night Stephen Paddock opened a hailstorm of automatic gunfire on Route 91 concert goers from his Mandalay Bay suite across the street, killing 60 in the largest mass shooting in modern U.S. history.
“I was on total disability from three tours in Iraq, primarily from PTSD and a traumatic brain concussion, and I had other injuries,” says the U.S. Marine. “But that night I ended up running back into the gunfire six different times. The last two girls that died are two that I helped. We put one in a portable dumpster and pushed her out of the venue. She died two years later from complications. The other, I believe, was quadriplegic.”
Kenis says he left another woman, Carrie Ray Barnette, to help others he thought had a chance to survive. Barnett, he says, died at the scene. She was a Disneyland cast member.
The Las Vegas Strip has regained a sense of normalcy in the six years since the shooting. Tourists have returned. With the exception of concerts and big events, gone are the bag checkpoints and metal detectors conspicuous in the weeks after the massacre.
And that’s the problem, says Kenis, who turned down a $14,000 settlement offer, part of an $800 million agreement accepted by almost all of the victims. The lone remaining holdout in the settlement is suing MGM on his own – without legal counsel – adding to the David v. Goliath nature of his quest.
Judge Linda Bell granted MGM’s motion last year for summary judgment and Kenis appealed. The case is now before the Nevada Court of Appeals.
Kenis says he has more than $50,000 in medical bills resulting from the event, even though he wasn’t shot. But he says settlement attorneys never inquired about the cost of his injuries.
“I ended up suicidal and in the hospital twice,” he says, noting he’d been out of post-combat therapy for two years before the shooting. “I’ve gone through therapy, and probably still need more, to be honest.”
Kenis can’t put a number on his damages.
“I’ve represented myself in court for three years and paid all legal costs. They certainly should pay for that and fix their security,” he said in an interview. “This goes far beyond money. The shooting was foreseeable and preventable. They were warned.”
Kenis cites the attack on a Mumbai resort, notifications from the Department of Homeland Security about potential terrorist threats targeting Las Vegas, and the case of Kye Dunbar, found with automatic weapons pointed toward the Strip from his Mandalay Bay hotel room in 2014, just three years before the shooting.
“The Defendant had apparently positioned a scoped rifle so that it was pointed out of his hotel room window at the Mandalay Bay and towards the Las Vegas Strip… One of the items recovered in the room was a homemade suppressor, commonly referred to as a ‘silencer’” says the federal sentencing memo for Dunbar, who was sent to prison for 40 years.
“Yet they didn’t stop Paddock from taking one load after another of weapons and ammunition to his room,” says Kenis. Police found 23 guns in Paddock’s suite.
Safe on the Strip?
Security officials at Las Vegas Strip hotels who responded to the Current’s request declined to say what measures employed in the wake of the massacre are still in place.
Kenis alleges hotels are failing to enforce their no-weapons policies and doubts resorts have implemented unobtrusive technology to detect weapons, as some have suggested.
In June, a person was fatally shot in a Luxor hotel room, according to police. Luxor is owned by MGM Resorts International.
A security photo released by police in July following a shooting outside Caesars Palace shows a suspect inside the hotel.
In August, a retired Metro officer accidentally shot himself while near the casino cage at the Horseshoe Hotel.
“Why are people still getting shot on their properties? Their magnetometers are a lie,” Kenis says of an instrument used to detect weapons by discerning changes in the magnetic field.
“Our judges are protected by metal detectors and armed cops because it works.”
Kenis’ suit alleges retired Judge Jennifer Togliatti, daughter of George Togliatti, Vice-President of Security for MGM Resorts International at the time of the shooting, should not have mediated the settlement.
Attorney Robert Eglet, who represented about half of the 4,000 plaintiffs, and lambasted MGM before wholeheartedly embracing the company and its settlement offer, has said Togliatti’s disclosure to attorneys in the mediation was sufficient.
“Judge Togliatti, she’s been one of the very, very best judges in Nevada,” Eglet told an Arizona TV station. “She did disclose to us that ‘my dad works for MGM’ and we talked to all the lawyers in our group and laid it all out to them; We don’t think that’s a problem. We want to go forward with her.”
Kenis alleges in his suit that Togliatti was bound by a provision of Model Standards for Mediator Conduct, which says “If a mediator’s conflict of interest might reasonably be viewed as undermining the integrity of the mediation, a mediator shall withdraw from or decline to proceed with the mediation regardless of the expressed desire or agreement of the parties to the contrary.”
Asked whether she considered the provision in her decision to mediate the case, Togliatti, now chairwoman of the Nevada Gaming Commission, said via email that given her work and travel schedule, she was unable to give a “complete response” until Tuesday, Oct. 3.
“When I thought of it in terms of Las Vegas, I was not surprised, but that’s quite possibly one of the grossest miscarriages of justice I can imagine,” says attorney Frank Hartman, who represents Arizona resident Michelle Leonard in a malpractice case against her former attorney, Brian Claypool of California. Leonard, a Route 91 vendor, was trampled as concert goers sought shelter from the bullets.
Claypool’s 30% share of Leonard’s settlement was $385,000. Leonard says she never knew Eglet was co-counsel in her case until she fired Claypool.
In non-binding arbitration, a judge reduced Claypool’s fees to $17,000. He is not suing Leonard for breach of contract. He did not respond to requests for comment.
Leonard contends all the plaintiffs’ attorneys received 30% of their clients’ awards. Eglet, founder of a prestigious law firm, was out of town, according to a spokesman, and declined to say whether he received a share of fees earned by out-of-state attorneys he sponsored, allowing them to practice in Nevada. Aaron Ford, now attorney general of Nevada, was a partner in Eglet’s firm at the time of the shooting massacre litigation.
“They shouldn’t have been paid 30%,” she says. “They didn’t go to trial. They were pushing paper through computers.”
Leonard says she was livid when she learned of Togliatti’s involvement in the mediation, and badgered the former judge until she recused.
In an email obtained by the Current, Togliatti notified attorneys in Sept. 2020 that because of “commentary to my staff questioning and expressing dissatisfaction with my involvement in this matter, I have chosen to wall myself off from Ms. Leonard’s claim administration…”
“I don’t know if she recused herself from any other case, but that is demonstrative of the point,” says Leonard’s new attorney, Frank Hartman. “She recused herself because she knew better.”
“If she had cause to recuse from one, she should have recused from all,” says Kenis.
Kenis, noting that insurance covered all but $50 million of MGM’s $800 million settlement, says all victims should have been notified of Togliatti’s potential conflict, a suggestion discarded by Eglet.
“Nevada law does not require attorneys to disclose to their clients potential conflicts disclosed by mediators,” the Las Vegas attorney said to the Arizona television station reporting on Leonard’s case.
Eglet’s spokesman, Tom Letizia, said his client was unable to respond to: questions submitted by the Current, but provided a statement alleging Leonard “has a strong desire for media attention.”