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Jury Awards $7.3 Million After Experts Battle Over Whether Penn State’s Actions Toward McQueary Damaged His Career

A jury has awarded former Penn State University assistant football coach Michael McQueary over $7 million in damages in his suit against the university for firing him after he implicated Jerry Sandusky as a sexual predator. This award comes after the expert witnesses for each of the parties arrived at drastically different estimates of the financial impact that Penn State’s actions after the Sandusky scandal had on McQueary’s career prospects.

Sandusky Scandal

McQueary was an assistant football coach for Penn State University. He claims that he saw former coach Jerry Sandusky raping a young boy in the shower in 2001. McQueary said that he quickly reported it, but no action was taken. McQueary also implicated the university athletic director Timothy Curley and a Penn State vice president, Gary Schultz, in the cover-up.

In 2012, Sandusky was convicted of molesting 10 boys and sentenced to 30 to 60 years in prison.

Also in 2012, McQueary lost his $140,000-a-year coaching job for his role as a whistleblower in the scandal. After his dismissal, McCreary was unable to obtain other employment, which he attributed to other schools viewing him as “damaged goods.”

McQueary’s Lawsuit

McQueary filed a defamation lawsuit against Penn State, arguing that the school fired him in retaliation for being a whistleblower in the Sandusky scandal. Initially, McQueary sought $4 million in damages along with a rider to cover the potential income he could have made over 25 more years working as an assistant football coach.

McQueary claimed that Penn State did not inform him that he was no longer a university employee, did not offer to cover his legal fees, and delayed his severance payments and insurance benefits. McQueary also claimed that the school defamed him when it issued a public statement supporting the two university administrators who were charged with perjury and failure to report abuse.

Penn State argued that it had treated McQueary fairly and pointed to its agreement to pay him an 18-month severance benefit upon the expiration of his last contract.

At trial, economics expert Samuel Kursh testified for the defendants that the Jerry Sandusky scandal cost McQueary a maximum of $590,000 in future earnings. Kursh also testified that it was possible that McQueary suffered no loss at all.

Kursh’s estimate was in sharp contrast to McQueary’s expert, forensic accountant James Stavros, who testified that McQueary’s potential for future earning had been diminished by $1.8 million to $7.4 million. Stavros’ estimates were based upon the assumption that McQueary would have been able to continue his career as a high-level college position coach for the next 20 years.

At the conclusion of the trial, the jury ruled on the defamation and misrepresentation claims and awarded McQueary $7.3 million in compensatory and punitive damages. Judge Thomas Gavin reserved his ruling the whistleblower claim.

Attorneys for all parties have declined to comment on the case, citing the gag order that Judge Gavin has placed on the case.

Update: Judge Gavin ruled in McQueary’s favor on his whistleblower claim and awarded him an additional “$3.97 million in past and future economic losses and $1 million in non-economic losses for harm to his reputation and humiliation. Penn State also was ordered to pay legal fees and the bonus he would have received for coaching in the 2012 Ticket City Bowl.”

Photo Credit: Pennsylvania State University

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Medical Expert Not Required to Practice in Same Specialty as Defendant Physician

The Florida 4th District Court of Appeal held in Weiss, et al vs. Pratt, (4D08-2179 and 4D10-593) that a testifying medical expert witness did not have to practice in precisely the same field as the treating physician in a medical malpractice action to allow testimony as an expert. The Court’s opinion interpreted a portion of Florida law that may provide some immunity for volunteer medical care. The Court suggested that the legislature may want to review the statute to clarify the immunity issue, but did not specifically address that issue in the opinion. It did, however, rely upon the existing language of the Florida statute in its analysis.

Factual Background

A high school football player was hurt in a football game. An orthopedic surgeon who had previously worked in an emergency room and had some training in pediatric orthopedics and sports medicine volunteered as the team physician.

When the injury occurred, the team physician examined the player, asked questions about what happened and what the player felt and saw (a flash of light). He did not recall asking the player about any period of unconsciousness or paralysis, but did not think that there was a spinal cord injury. After that, the doctor helped the player walk from the field. Paramedics arrived, put the player on a backboard and took him to a hospital. The doctor also went to the hospital, ordered tests and based on them and his clinical experience ruled out a spinal cord injury or a hematoma. He diagnosed a neck strain, a right shoulder contusion and prescribed pain medication.

A few days later, the player went back to the physician’s office but was seen by another doctor. By then, he could not lift his arm, flex his elbow and had lost significant strength in the arm. An MRI disclosed an epidural hematoma on the right side of his spinal cord and a contusion near C-5. At some point after that, the team doctor acknowledged that he should have put the player on a backboard on the field, rather than having him walk off of the field. The player sued the team doctor, the emergency room doctor and the hospital.

Trial and Appellate Theories

The trial court allowed expert testimony for the Plaintiff by an emergency room physician about treatment rendered on the football field. The jury found that the emergency room doctor and the hospital did nothing wrong. However, the jury did find against the team doctor and awarded a total of $750,000 as past and future damages.

The basis of the volunteer doctor’s appeal was that the Plaintiff’s expert should not have been allowed to give an expert opinion because he was neither an orthopedic surgeon nor a volunteer team physician and therefore, not “a similar heath care provider.” He also argued that the [Florida] immunity statute for volunteer doctors prevents an expert from another specialty from testifying.

Court’s Reasoning

The 4th DCA held that the team doctor was “similarly licensed” as the expert witness and therefore, the expert testimony was permissible. The court held that the “similarly licensed” reference related only to the introductory paragraph of the statute to include medical practice, osteopathic medicine, chiropractic medicine, podiatric medicine, and dentistry. Therefore, since the team doctor and the expert witness were both medical doctors, the expert testimony was allowable.