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Duke Lacrosse Lawsuits to Move Forward, Judge Rules; Discovery ahead !!
Topic Started: Mar 31 2011, 04:21 PM (12,242 Views)
kbp

buddy
Apr 1 2011, 09:54 PM
A great two days. I am just getting up to speed, and really appreciate Acc Esq and Walt-in-Durham for their legal analysis. And Jmoo for the quick read and boxscore. It seems to me that Beaty may have been playing CYA with his criticism of the length of the complaints. Because they were so long, it took him all this time to reach a decision. Can't blame him for the delay, no sir, blame those nasty plaintiffs lawyers. His ruling against punitive damages will limit any financial recovery, but I believe the families when they say it is not about the money. (I doubt their lawyers agree entirely.)

I am really disappointed with the ruling about the Student Handbook, although from what I have read of North Carolina law, Beaty got it right. Next time Brodhead (or any administrator or admissions person) speaks to a Duke alumni group, I hope he gets asked directly why the university refuses to be bound by its own document, and why any parent (or student) should feel safe attending an institution that won't follow its own announced procedures. Should be interesting.

Elsewhere I have read that Brodhead wants to get back to teaching while he still has "some good years" ahead of him. My guess is he may get his wish.
"Brodhead ...has "some good years" ahead of him."


I suppose it's possible, but based on all I've read ab out the years behind him, that "good" part would require a few changes.
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sceptical

Ray Gronberg in the Herald-Sun with more about the liability of Durham and Duke:

http://www.heraldsun.com/view/full_story/12600152/article-City-happy-with-lacrosse-ruling?instance=homesecondleft
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Payback
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kbp
Apr 1 2011, 10:21 PM
buddy
Apr 1 2011, 09:54 PM
A great two days. I am just getting up to speed, and really appreciate Acc Esq and Walt-in-Durham for their legal analysis. And Jmoo for the quick read and boxscore. It seems to me that Beaty may have been playing CYA with his criticism of the length of the complaints. Because they were so long, it took him all this time to reach a decision. Can't blame him for the delay, no sir, blame those nasty plaintiffs lawyers. His ruling against punitive damages will limit any financial recovery, but I believe the families when they say it is not about the money. (I doubt their lawyers agree entirely.)

I am really disappointed with the ruling about the Student Handbook, although from what I have read of North Carolina law, Beaty got it right. Next time Brodhead (or any administrator or admissions person) speaks to a Duke alumni group, I hope he gets asked directly why the university refuses to be bound by its own document, and why any parent (or student) should feel safe attending an institution that won't follow its own announced procedures. Should be interesting.

Elsewhere I have read that Brodhead wants to get back to teaching while he still has "some good years" ahead of him. My guess is he may get his wish.
"Brodhead ...has "some good years" ahead of him."


I suppose it's possible, but based on all I've read ab out the years behind him, that "good" part would require a few changes.
kbp :bd: :bd: :bd:
I'm doing my best to point out his being guilty of constructive fraud as a critic (and surely as a teacher).
Edited by Payback, Apr 2 2011, 12:23 AM.
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kbp

Payback
Apr 2 2011, 12:22 AM
kbp
Apr 1 2011, 10:21 PM
buddy
Apr 1 2011, 09:54 PM
A great two days. I am just getting up to speed, and really appreciate Acc Esq and Walt-in-Durham for their legal analysis. And Jmoo for the quick read and boxscore. It seems to me that Beaty may have been playing CYA with his criticism of the length of the complaints. Because they were so long, it took him all this time to reach a decision. Can't blame him for the delay, no sir, blame those nasty plaintiffs lawyers. His ruling against punitive damages will limit any financial recovery, but I believe the families when they say it is not about the money. (I doubt their lawyers agree entirely.)

I am really disappointed with the ruling about the Student Handbook, although from what I have read of North Carolina law, Beaty got it right. Next time Brodhead (or any administrator or admissions person) speaks to a Duke alumni group, I hope he gets asked directly why the university refuses to be bound by its own document, and why any parent (or student) should feel safe attending an institution that won't follow its own announced procedures. Should be interesting.

Elsewhere I have read that Brodhead wants to get back to teaching while he still has "some good years" ahead of him. My guess is he may get his wish.
"Brodhead ...has "some good years" ahead of him."


I suppose it's possible, but based on all I've read ab out the years behind him, that "good" part would require a few changes.
kbp :bd: :bd: :bd:
I'm doing my best to point out his being guilty of constructive fraud as a critic (and surely as a teacher).
...and I've read it. Thanks for your efforts you share here and the link to your latest blog post!
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kbp

Acc Esq
Apr 1 2011, 04:01 PM
kbp,

On your question on punitive damages, Durham cannot be held vicariously liable for the acts of their employees in the course and scope of employment. My understanding of the law is that the employees can be held individually liable for punitives; this creates regular counseling problems when representing municipalities and frequently results in reservation of rights letters to the employee and sometimes even leads to the hiring of separate counsel.
Answered in response to my question here.
Quote:
 
A question for legal minds here:
The ruling mentions no punitive damages against Durham, but in my brief reading of the ruling parts related to this limit on damages, I did not notice the employees of Durham having that limit. Could Durham be held liable for punitive damages if an employee is found liable for them, or does the “Durham” cover all employees also?

I borrowed a list from a post here. Looking it over, it seems hard to imagine that someone held liable for damage under a few issues in this list would not be subject to punitive damages, so in turn the entity responsible for paying their liabilities would be. The intentional acts involved to create the damage required in a few listed sure inflicted what I’d classify as punitive damage in the first place.

-CONCEALMENT OF EVIDENCE
-FABRICATION OF FALSE EVIDENCE
-MAKING FALSE PUBLIC STATEMENTS
-MALICIOUS PROSECUTION AND CONSPIRACY
-OBSTRUCTION OF JUSTICE AND CONSPIRACY
-NEGLIGENCE BY DURHAM POLICE
-NEGLIGENT SUPERVISION, HIRING, TRAINING, DISCIPLINE, AND RETENTION BY DURHAM POLICE
-FRAUD


ADD:

The claims asserted in Counts 1, 2, 3, and 4 are also going forward against the City based on the additional allegations contained in Count 5 setting out claims for municipal liability. However, to the extent that there are claims proceeding against the City, Plaintiffs may not recover punitive damages from the City. See City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271, 101 S. Ct. 2748, 2762, 69 L. Ed. 2d 616 (1981).31 Therefore, the claim for punitive damages against the City will be dismissed.



Considering the fact that the response from Durham, regarding PUNITIVE DAMAGES, came across like a celebration, I have to wonder why it was ever in question for them. I understand the city must create the impression they somehow won advantage in the ruling, but I have difficulty understanding WHY the PUNITIVE DAMAGES were excluded.

It’s a given that absolutely none of the plaintiffs could have created cause for damages that they may be held INDIVIDUALLY liable for PUNITIVE DAMAGES on unless they held the authority assigned them by the City of Durham. Knowledge of what actions created damages was certainly NOT limited to only the individuals personally responsible for such conduct, the FRAME was involving approval or reckless disregard of such conduct by the parties supervising those individuals. If the pattern of policy and procedure operates from top to bottom in allowing the damage to occur, the entity that provides that opportunity seems to carry some of the responsibility for that damage, much like it would if it were a corporation or organization. It seems like any exception / excuse that excludes the city from PUNITIVE DAMAGES should equally apply to all other defendants if it is worthy.

Another issue I question is ruling out EMOTIONAL DISTRESS.

I CAN’T THINK OF A DRIVING FORCE FOR THE LAWSUITS STRONGER THAN THE “EMOTIONAL DISTRESS” SUFFERED. It would really be a grave disappointment if the reason this damage is excluded was the result of inadequacies on the part of the counsel representing the plaintiffs. (maybe it can be added back in after discovery??)

Maybe our wizards for details (Quasi & Sceptical) can start a thread to display all the cases cited in the Complaints and the Ruling that show WHY these were excluded. Knowledge from our legal experts is welcome here also, should any undertake this task.
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sceptical

Some interesting comments in The Chronicle:

http://www.dukechronicle.com/node/155122/talk
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Quasimodo

sceptical
Apr 4 2011, 10:03 AM
Some interesting comments in The Chronicle:

http://www.dukechronicle.com/node/155122/talk


Fact Checker's is an excellent commentary:


Quote:
 

Fact Checker here.

To understand this series of decisions last Thursday, we have to roll the clock back to the day in 2006 that former Senior Vice President John Burness smeared the fired lacrosse coach Mike Pressler. The liability was clear, with the judge in a defamation lawsuit that Pressler brought even remarking out loud that he could not understand how anyone could be "so dumb" to make the remarks that Burness did.

The "so dumb case" -- as it became known -- dragged on and on. But on the eve of discovery -- that is, just hours before Burness was being forced to face questions in a sworn pre-trial deposition and to deliver documents that had been demanded -- Duke put serious money -- and more in the form of certain concessions -- on the table and Pressler settled.

Serious money. The settlement is confidential. FC confirms it was serious money and much more.

Silence. No depositions, no subpoenas. This is the goal of this University at any cost in the three lawsuits pending before Judge Beaty.

Silence. At any cost. Duke will continue to incur massive bills "vigorously" appealing portions of Judge Beaty's orders. Anything to put off and avoid the day that a renowned lawyer for the plaintiffs, Charles Cooper, has promised will come immediately: subpoenas for Brodhead and former Trustee chair Robert King Steel.

(snip)

✔✔✔ Duke will fight and appeal and procrastinate and try to wear the plaintiffs down. But remember, please, the mother of David Evans, one of the players who was indicted on false charges. She said on the day David and his teammates were declared "innocent," that the prosecutor Mike Nifong picked on the wrong people.

In other words, we have a group of people of remarkable inner strength, who support each other to a uncanny -- I use this word in its best sense -- degree, and who are not going to be worn down and go away.

Loyal Readers, make no mistake. There is money at stake here, yes, but that is not the prime motivation. The lacrosse players and their families want justice. They want people held accountable, but even above that, they want the facts to be known, facts of the scandalous and disgraceful response of Brodhead and Steel to a crisis. "We must know," as one parent told FC.

✔ With respect to the city of Durham, the plaintiffs want a court to supervise the police department for ten years, so that there is no repeat of the rampant violation of fundamental Constitutional rights that Judge Beaty discussed in his 499 pages. Yes 499 pages in his decision, something like 24,000 pages of legal maneuvering filed so far.

[I object to the length!! (sarc/off)]

(snip)

✔ Silence. In a part of the University response that the Chronicle did not print, Michael Schoenfeld, vice president for public relations and obfuscation, reveals Duke has been upping the ante -- translation putting more and more cash on the table -- to get a settlement in at least one of these cases.

So far, no deal. Duke's offer included paying for all the plaintiffs' legal fees -- huge huge -- and all their out of pocket costs -- huge huge.

It said nothing about truth.


The litigation goes on. We shall not forget 6 and 13 and 45.

(snip)
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Quasimodo

and THIS, from 2007, cited in todays' Durham-in-Wonderland blog, bears repeating:

Quote:
 
http://www.metronc.com/article/?id=1374

My Usual Charming Self

July 2007

Shame on Duke

By Bernie Reeves

(snip)

I can detect their fingerprints earlier than most, and they were all over this case from the beginning. I wrote in this space in May 2006 that “trial by candlelight vigil,” referring to the Buchanan Street protests at the time of the accusations by Nifong, meant the same nasty “tenured radicals” and their groupies were declaring class warfare against the lacrosse players without regard to evidence or fairness.

(snip)


Thus, the army of fanatics who gathered forces to ruin the lacrosse players was confident of victory.
Those who would disagree were never hired or drummed out of the University corps. Relying on their typical arsenal of righteous indignation, it was damn the torpedoes of truth and legal procedure. The boys were the enemy simply for being affluent white male lacrosse players. And the victim was wholesome and truthful simply because she was a black female. Nothing else mattered.

With this cast of characters, no wonder the Group of 88 never worried that their newspaper ads and media statements would come back to haunt them. Nifong was one of them, he too spouting the party line that Duke was “inhospitable to women and people of color,” as the mantra still goes from the campus activists. And none of them cared about the effect on the boys or their families.

(snip)

But they have gotten away with it again because Duke’s administration has protected them with the settlement to the lacrosse families. As is the case at most of the heads of our top liberal arts schools and universities, Duke President Richard Brodhead is either in sympathy with the radicals, afraid of them or simply a coward.

It’s probably a little bit of all that, but this time you would think Duke would take the opportunity — with the entire world watching — to face down the radicals. Instead, as all campus presidents do, he backed down and covered up the abuses of the treacherous class warriors. I believe this action will come back to harm Duke in the future.

(snip)

Nifong was just a pawn — a useful idiot, as Lenin put it — in this battle royale. But at least he is receiving punishment for his crimes. But the key players are free to continue to radicalize scholarship and wage class warfare unscathed, to pounce again on those who don’t agree with their radical point of view. A vigorous house-cleaning at Duke could have gone a long way to repairing the sorry state of liberal arts and social politics in America. Shame on Duke.


read the whole thing
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Bill Anderson
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I just re-read Brodhead's April 5 "letter to the community." That the guy claims he all along was standing up for the rights of the accused is a sick joke. There is NOTHING in that letter that does not infer guilt.

Furthermore, it was clear throughout the case that he was not interested in learning the truth, since the truth would be quite inconvenient to him.

:bill:
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Payback
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Bill Anderson
Apr 4 2011, 10:52 AM
I just re-read Brodhead's April 5 "letter to the community." That the guy claims he all along was standing up for the rights of the accused is a sick joke. There is NOTHING in that letter that does not infer guilt.

Furthermore, it was clear throughout the case that he was not interested in learning the truth, since the truth would be quite inconvenient to him.

:bill:
Bill, I don't have time to analyze the letter now---but did you notice that Brodhead says the students' "attitude reached its peak" in an alleged event? He asserts that the worst outrage from the students, the peak of their unneighborly behavior, occurred in an alleged event.

Maybe Brodhead is the brightest man Burness ever met. Maybe Burness has had his nose in the oat bag longer than we knew and did not meet a lot of bright men.
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abb
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Jam up legal debate ongoing here!

http://www.dukechronicle.com/node/155122/talk
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Bill Anderson
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OK, guys, will someone answer this question for me? Why is my course syllabus legally considered to be a "contract," but a university student handbook is not? I have to put disclaimers all over my syllabi, but apparently a university can tell its students what it wants, break agreements, and that is considered OK.

:bill:
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sdsgo

Bill,

Consider this bit of Judge Beaty’s ruling on the enforceability of the Duke’s Student Handbook. NC law controls here. Therefore, unless the parties specifically agree to be bound by the document, no valid contract exists. So what did our good judge do? Basically, he followed Ryan v. Univ. N.C. Hosp., 128 N.C.App. 300, 494 S.E.2d 789 (1998) where the court ruled in favor of a medical resident who had a written contract that required the University to provide a training program that complied with the policies of the Accreditation Council for Graduate Medical Education Residency Review Committee. In the present case, Judge Beaty ruled for Ryan McFadyen on the narrow issue that Duke failed to follow its on very specific disciplinary procedures. Now here’s the good part. Duke argued in Andrew Giuliani’s lawsuit that Andrew could not seek relief from the court because he failed to first go through Duke’s formal appeals process. In essence, Duke went on record acknowledging that the “disciplinary process” was legally binding on the parties. Therefore, the University could not now come back in this lawsuit and claim the opposite.

“What goes around comes around.”
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cks
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Bill Anderson
Apr 4 2011, 04:47 PM
OK, guys, will someone answer this question for me? Why is my course syllabus legally considered to be a "contract," but a university student handbook is not? I have to put disclaimers all over my syllabi, but apparently a university can tell its students what it wants, break agreements, and that is considered OK.

:bill:
Good question. I know that I have to be very careful in my syllabus - if I leave something out or do not follow it faithfully, I am in huge trouble.
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MikeZPU

sdsgo
Apr 4 2011, 04:58 PM
Bill,

Consider this bit of Judge Beaty’s ruling on the enforceability of the Duke’s Student Handbook. NC law controls here. Therefore, unless the parties specifically agree to be bound by the document, no valid contract exists. So what did our good judge do? Basically, he followed Ryan v. Univ. N.C. Hosp., 128 N.C.App. 300, 494 S.E.2d 789 (1998) where the court ruled in favor of a medical resident who had a written contract that required the University to provide a training program that complied with the policies of the Accreditation Council for Graduate Medical Education Residency Review Committee. In the present case, Judge Beaty ruled for Ryan McFadyen on the narrow issue that Duke failed to follow its on very specific disciplinary procedures. Now here’s the good part. Duke argued in Andrew Giuliani’s lawsuit that Andrew could not seek relief from the court because he failed to first go through Duke’s formal appeals process. In essence, Duke went on record acknowledging that the “disciplinary process” was legally binding on the parties. Therefore, the University could not now come back in this lawsuit and claim the opposite.

“What goes around comes around.”
sdsgo: good observation!
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