Eappens' award to be set by new jury

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IT IS a sequel that was not meant to be. In six weeks' time, a federal court in Boston will open a new trial in the case of Louise Woodward and the death of the eight-month-old boy who had been in her care, Matthew Eappen. There will be a judge, a jury and, at its end, possibly a monetary award running in the millions.

The trial was set for 4 January by Judge William Young at a hearing in Boston on Thursday into a civil lawsuit filed against the former au pair by Matthew's parents, Sunil and Deborah Eappen. The judge thus dealt a new blow to Ms Woodward, who is now studying law at South Bank University in London.

Until the start of this month, it had seemed that Ms Woodward, 20, would not be contesting the lawsuit on the basis that her family could not afford to pay for lawyers to represent her. Judge Young had indicated he would find for the Eappens, who were seeking $9m in damages, by default.

That all changed on 6 November, however, when two lawyers saying they were representing Ms Woodward approached the judge and asked him to overturn the default. They argued that Ms Woodward should not be found liable for any punitive damages because her final conviction for manslaughter - delivered by Judge, Hiller Zobel a year earlier - fell short of the standard under Massachusetts law for such damages to be warranted.

The sudden entry of the two lawyers, John Ryan and Myles McDonaugh, was itself something of a surprise. It transpires, however, that, unbeknown to the Woodward family, coverage of legal representation in civil proceedings was included in the insurance policy held by the agency that hired her, EF Au Pair.

In one sense, Ms Woodward's lawyers prevailed. The default ruling has been voided and she now has the opportunity to fight the Eappens' claims. But in making his decision on Thursday, the judge more fundamentally sided with the lawyers for the Eappens. He dismissed the claim made by Ms Woodward that the punitive claims could not be entertained on the basis of her manslaughter conviction.

"The court rules that punitive damages are warranted," Judge Young declared at the conclusion of the hearing. "But to say that they're warranted does not mean that they are awarded."

That decision could, in theory, have been left for the judge to take himself. Instead, he decided to empanel a jury whose members will decide on the final amounts of both compensatory and punitive damages, which could run into the tens of millions of dollars.

While it remains unclear whether the Eappens would ever be able actually to collect the money from Ms Woodward under British law, any awards would be enough to prevent her from making any profit from her story.

Ms Woodward, who has been attempting to resume something close to an ordinary and private life, will not be compelled to revisit the city of her long nightmare. It will be sufficient to provide the court with written submissions. While she will attempt to beat claims for punitive damages, it is a foregone conclusion that compensatory damages will be awarded against her.

The holding of the trial will rekindle the trauma that attended the criminal trial. Its climax came on 5 November last year, when Judge Zobel unexpectedly reduced Woodward's original jury conviction of second degree murder to one of involuntary manslaughter and released her on time already served.

It was on the basis of Judge Zobel's broadly sympathetic summation that Woodward's lawyers attempted to thwart moves for punitive damages. Under Massachusetts statutes, such damages can be awarded in cases where there has been "wilful, wanton and reckless" conduct by the defendant.

In his ruling, Judge Zobesaid Woodward's actions "were characterised by confusion, inexperience, frustration, immaturity and some anger, but not malice".

It was a conclusion that many considered over-lenient. Now a new jury will have the opportunity to have its say.

t Susan Woodward, Louise's mother, is being investigated by British police and the FBI for allegedly skimming money from the defence fund, and it emerged yesterday that the Woodward Trust Fund trustees have also launched an investigation.