The Law Weighs In
That evening Daniel returned from Virginia and we were able to sit down with his stepmother and have dinner. She had once worked in the federal government herself, and so was genuinely interested when she asked him about the conference and what had been discussed as far as a regulatory structure.
After dinner, Anguel did what he usually did at home: watch TV and play around in that room with Dan. I went upstairs with our voluminous files and prepared for the next day’s work, my special errand in coming to Washington, as the conference had largely been his show.
Mr. Scherr had said he was especially interested in seeing anything we had that documented money we had spent. We had it alright, down to the last little hotel receipt from Russia.
After Anguel drifted off to sleep, Daniel came up and joined me as we made meticulous photocopies of everything we had saved for months. It was very late when we finished and the details we were working on sometimes seemed so repetitive and painstaking, but we knew this would be to our benefit in evaluating the case.
The next morning, after breakfast, I headed out on foot, files in a carrying bag, to Scherr’s offices in downtown Bethesda, less than a mile from Dan’s father’s house. This would be the moment of truth on whether we had a legal case or not.
He spent some time looking over the material and being appropriately horrified. It was obvious Denise Hubbard’s business practices — or, rather, the lack thereof — did not impress him much, either.
However, he pointed out that when we received the second video of Cyril, we had a week yet to go till we went to Russia. It would not have been too impossible, if we were really concerned about it, to drive down to Long Island and have Adesman look at it himself.
There are, of course, a number of reasons why we didn’t do this at the time — we were caught up in the excitement of going to Russia and preparing our home for our new baby son, we were still under a generally favorable impression from Adesman’s assessment of the first video and were thus evaluating the second one in the most favorable light possible, Adesman himself has a rather formal procedure for looking at videos and our experience the first time had not led us to believe that he would be amenable to walk-ins, and so forth.
But all of this is a hill of beans as far as the law is concerned. The point is, and Mr. Scherr was right on in making it, is that the burden of due diligence was on us at that point. Not the agency.
And, as he put it, any good lawyer for the other side would bring it up on cross-examination. It would likely cost us the case whether it was heard by a judge or jury.
Since nothing else in our Cyril file could really have been used to argue breach of contract, that was effectively the end of any thought of suing over his death.
As for Anguel, Mr. Scherr generally agreed with Mr. Albers that, since we had brought him home successfully, thus having our major contractual demand on BBAS fulfilled, it would be hard for a judge or jury to see what we were so upset about.
He did, however, have a sticking point when he looked at the May 29, 2000, email, the one that had so sickened Daniel when he first read it, in which Denise not-so-subtly threatens to end Anguel’s adoption if we kept trying to do things ourselves.
When he compared it over and over to the newsletter Denise sent out around the same time, he was struck by the discrepancy behind her stated reasons for the trip: while in the email she said it was a special trip to deal with the problem we had supposedly created, she had told BBAS’s clients as a whole in advance that it was a routine visit to Bulgaria to check up on the orphans and bring them supplies.
He was still preoccupied with this as our meeting ended. I also raised to him the suggestion, which Dan had gotten from Maureen Hogan the day before, to consider suing BBAS under the federal RICO law.
He’d never thought of that, and said it might have merit in our case, but that we’d have to get at least two other people to come in on it with us.
At that time we weren’t sure. There were many other dissatisfied clients, we knew, but other than the Corrigans we couldn’t imagine anyone willing to be a co-plaintiff.
I said we’d keep it in mind, but in my heart I really didn’t think it was likely to happen.
I left with the feeling of a burden lifted. We’d always known that a lawsuit was a dicey proposition at best, and even if we had had a case suing would have intruded into our lives and set us back financially more than the adoptions had. It was nice to hear an expert back that up.
However, there were still two things to consider.
First, compared to what we now know about BBAS, ICCF and Denise Hubbard, there might be more to the story — and thus more reason to launch a lawsuit — than mere incompetence and negligence on BBAS’s part.
If Mr. Scherr had seen some of this evidence then (particularly Denise’s attempt to spin things her way in her response to our ODHS complaint), we wonder if he might have wanted to take things further.
Second, lawyers like Scherr who specialize in wrongful adoption and adoption fraud cases tend out of necessity or habit to see things through a financial lens. Perhaps a more generally focused tort lawyer might have picked up on the aspects beyond the money that were most important to us ... the intentional infliction of emotional distress by freezing us out of the loop during the wait and misrepresenting to us the length of time that would take while we were still grieving over Cyril, and the possible impacts of that extended timeline on Anguel’s development.
But that’s all water under the bridge, as the statute of limitations has probably lapsed on any claim. I returned home and shared the results of the encounter with Dan, who wasn’t surprised either.
We packed up the car, and drove back to the Hudson Valley that same day.
We were now free to move on with creating this website, as indeed I had already started doing.
Little did we know then that our evidence was soon to bear fruit in a foreign legal system, where we had least expected it to.