Halyna Hutchins' family seeks answers, damages in Alec Baldwin's 'Rust' shooting. Now what?
Now that a wrongful death lawsuit has been launched against Alec Baldwin and scores of others in connection with a fatal shooting on the New Mexico set of the film "Rust," what happens next?
Maybe nothing immediately, at least while the criminal investigation of cinematographer Halyna Hutchins' death is pending or if charges are eventually filed by the Santa Fe County sheriff and district attorney.
Hutchins, 42, died Oct. 21 during a rehearsal on the set after she was shot with a real gun mysteriously loaded with a live bullet and wielded by Baldwin, the star of the Western and also one of its producers.
Here's what some lawyers say are the next steps:
'Rust' fatal shooting: Alec Baldwin, movie's producers sued for wrongful death by Halyna Hutchins' family
Can the civil suit proceed while a criminal investigation is underway?
Opinions differ.
"The mere fact there is a criminal investigation is going to stay a civil lawsuit," predicts Neama Rahmani, who handles personal injury civil cases in Los Angeles and has been following the "Rust" tragedy. "The defense attorneys will file motions to stay, which will be granted. You can't conduct discovery with a criminal investigation pending."
But it happens all the time in New Mexico, says Randi McGinn, the Albuquerque personal injury attorney who represents Hutchins' estate and survivors, husband Matthew Hutchins and their 9-year-old son, Andros.
McGinn is part of a high-powered team of lawyers assembled to conduct its own investigation of Hutchins' death, some of which was presented to reporters at a news conference Tuesday to announce the filing of the lawsuit.
Putting civil suits on hold while criminal proceedings are underway is not uncommon elsewhere. The aim is to protect defendants from potential self-incrimination during the discovery and deposition phases of a civil proceeding that could later be used against them in a criminal court.
For example, multiple civil lawsuits filed against Bill Cosby in multiple states were put on hold for years while he was prosecuted for sex crimes in Pennsylvania. But he was one defendant, whereas this case involves dozens of defendants.
"I know of no judge (in New Mexico) who has stayed the entire case when someone claims they may be subject to criminal jeopardy," McGinn says. "Not all (of those being sued) are in criminal jeopardy. It is highly unlikely the whole case will be stayed."
How soon could the lawsuit go to trial?
McGinn predicts the case will proceed full speed ahead to discovery and depositions and then to a trial within the next 18 months to two years, as is typical in such cases in New Mexico.
"We find out the truth through discovery, that’s what happens next," says McGinn. "The family wants to find out the truth, so we start down the discovery path to find out who was at fault, to prevent this from happening again.
"There are a lot of people who didn’t do their job, who just blew off safety to get this movie done fast," she says. "Halyna would still be alive if a whole series of people had just done their jobs."
Those involved look back: Why wasn't anyone criminally charged in Brandon Lee's death?
Who are the defendants in the lawsuit?
Aside from Baldwin, the suit targets more than 30 named defendants, including the other producers, the production company making the movie, plus individuals whose names have already come up in the sheriff's investigation, such as armorer Hannah Gutierrez-Reed, prop master Sarah Zachry, assistant director David Halls and ammunition supplier Seth Kenney.
In addition, the defendants include up to 100 unnamed individuals or businesses, which covers anyone involved who might “bear responsibility” for the injuries the lawsuit asserts Hutchins’ family suffered as a result of her death.
Will the defendants, including Alec Baldwin, be questioned under oath?
Yes, almost certainly, especially if there is no quick settlement. But no one has to answer every question if they feel they are in criminal jeopardy.
Legal proceedings always feature involve discovery, when both sides exchange information, and depositions, when defendants and plaintiffs answer questions under oath from opposing lawyers in a non-public hearing. The idea is to find out what a witness knows and to preserve that testimony so that all parties know the facts before the trial.
However, some defendants in a civil case may fear that their deposition testimony will be used against them in a parallel criminal case.
The choice for those named in the "Rust" lawsuit who feel vulnerable to criminal charges (or are advised as such by their lawyers), McGinn says, is to plead the Fifth Amendment right to avoid self-incrimination when being questioned during a deposition.
"The choice isn't to stay the case," McGinn says. "Theoretically, we could (depose) Baldwin and his choice would be to answer our questions or plead the Fifth, and in New Mexico, if you plead the Fifth, we can introduce that fact to the jury (at a trial)."
It might be a constitutional right, but pleading the Fifth could leave a whiff of suspicion in the minds of a jury, so defendants usually hope to avoid that.
Rahmani thinks it's "very unlikely" Baldwin will be criminally charged with, say, involuntary manslaughter or criminal negligence.
"He was told the gun is cold, and maybe his finger should not have been anywhere near the trigger, but you can argue it's reasonable for him to rely on someone else's representation that it was not loaded," Rahmani says. "Criminal negligence has to be gross in nature; on the civil side, it's a much lower standard."
'Rust' shooting: As Alec Baldwin faces a lawsuit, all eyes are on the gun that killed Halyna Hutchins
Could the case be settled out of court?
It's always a possibility but lawyers don't usually want to discuss a settlement at this early stage. It's especially true in this case, where the criminal investigation is ongoing, the facts of what happened and who is responsible are still murky, there are multiple defendants, and the potential source of any financial award is unclear.
The most recent and relatively similar on-set shooting death case, the 1993 death of actor Brandon Lee on the set of "The Crow" in Wilmington, North Carolina, resulted in no criminal charges and, just months later, an undisclosed settlement before trial.
Rahmani thinks the chances the case will go all the way to a trial are "slim to none."
What role does workers' compensation play in the case?
None, McGinn says: Hutchins was an independent contractor, not an employee of the film company.
If a worker who dies on a worksite is classified as an employee, then New Mexico law considers that a workers' compensation case, under which relatively modest damages – hundreds of thousands of dollars – could be collected, Rahmani says. But because Hutchins wasn't an employee, any damages her family collected could amount to many millions.
Who will pay any damages?
That is still to be determined, by a trial or negotiations between lawyers for plaintiffs, defendants and insurance companies. But Rahmani thinks it could be the deepest pocket, maybe Baldwin's.
"The other named defendants don't have significant assets, which leads us to Baldwin," Rahmani says. "As far as collectability, Baldwin is the best target. … He has the means to make this go away. Either as an individual or as a producer, paying $10 million to $30 million is easier for him than anyone else."
Could the lawsuit bring about new safety standards on movie sets?
The insurance – who has it and how much – and other money issues will be sorted through the discovery phase, McGinn says.
But the Hutchins family has wider goals in pursuing a lawsuit, she says: Although such on-set tragedies are relatively rare, how can they be prevented in the future?
According to the lawsuit, Baldwin and the other defendants failed to follow multiple industry standards regarding gun safety rules, such as "always treat the gun as if it were loaded" even if you are told it's not, as Baldwin was, and "never place a finger on the trigger," which Baldwin denies he pulled.
"There are standards in place and if they had been followed, this would not have happened," McGinn says. "So now what do we do? Do we push for laws to make the standards mandatory? What's the best way to make sure people do their jobs?"
Gun safety protocols are rigid on film and TV sets: This 'should never have happened'