Judge lets Duke lacrosse suits proceed

A federal judge will allow three lawsuits filed by most of the members of the 2006 men’s lacrosse team to move forward against Duke and Durham.

The judge rejected many of the claims made in the two suits against Duke and specific employees, but claims still stand against President Richard Brodhead, Dean of Students Sue Wasiolek, Robert Steel, Trinity ’73 and former chair of the Board of Trustees, and Dr. Victor Dzau, chancellor for health affairs and president and CEO of the Duke University Health System. A substantial number of the claims in all three suits against Durham and its employees were allowed to proceed.

The judge’s decision to allow specific claims to proceed does not mean that those claims are true. Lawyers for the players involved in the suits will now be allowed to collect evidence and conduct interviews as they attempt to prove allegations including fabrication of evidence, wrongful searches, fraud and negligence.

Two of the three suits were brought against Duke and the City of Durham as well as individuals for their roles in the 2006 lacrosse case, in which exotic dancer Crystal Mangum falsely accused three Duke men’s lacrosse players of rape. Mangum is not named as a defendant in the cases. The individuals bringing these suits were never charged with any crimes.

“We are heartened by the judge’s carefully considered decision permitting the lacrosse players’ primary claims to move forward,” attorney Charles Cooper, who represents 38 of the unindicted players, said in a statement. “We will immediately begin taking extensive discovery and preparing the case for trial.”

Robert Ekstrand, an attorney for three other unindicted players, did not respond to requests for comment.

The third suit, brought by the three players who were wrongly charged with rape and other crimes, is directed at the City of Durham and related individuals. The players—David Evans, Collin Finnerty and Reade Seligmann—were ultimately declared innocent and Mike Nifong, the district attorney who bungled the case, was disbarred and jailed for a day. The three have already settled with the University, so Duke is not a defendant in their suit.

Robert Cary, an attorney for the three wrongly indicted players, declined to comment on the judge’s decision.

“The intentional use of false or misleading evidence before a grand jury to obtain an indictment and arrest without probable cause is exactly the type of unreasonable search and seizure that the Fourth Amendment was designed to protect against, and would violate the most fundamental concepts of due process,” Beaty wrote in that case [PDF].

Beaty noted in the case of the 38 unindicted players [PDF] that requiring the teammates to submit DNA evidence may have violated their constitutional rights. The players contend that the order was obtained using false information.

The judge allowed several claims to proceed relating to Durham Police Department Sgt. Mark Gottlieb’s conduct in the case. Gottlieb was responsible for the investigation, and the players say he made up evidence. Beaty allowed claims to proceed against Gottlieb for violating the players’ Fourth Amendment rights, obstruction of justice and making false public statements.

The players also said Gottlieb should not have investigated the lacrosse case because he had a pattern of violating the constitutional rights of Duke students, such as by manufacturing evidence and filing false police reports.

Beaty rejected claims for punitive damages against Durham, though the city may still eventually have to pay the players for actual damages that they suffered. Beaty also threw out the players’ emotional distress claims in all three cases, saying they presented no specific evidence of emotional or mental harm.

Thomas Metzloff, a professor in the School of Law who specializes in civil suits, said the City of Durham still faces substantial claims.

“This is still, even without punitive damages, potentially high-stakes litigation for the city,” he said.

Beverly Thompson, Durham’s public affairs director, said in a statement that the city is hopeful the cases will ultimately be decided in its favor.

“The city is gratified that the court has dismissed many of the plaintiffs’ claims and has narrowed the issues raised in these cases,” she wrote. “We believe the court correctly dismissed the punitive damages claims against the city and are pleased and encouraged by that favorable determination.”

Claims narrowed against Duke

The judge rejected many of the claims made by the unindicted players in their two suits against Duke, including all claims against Provost Peter Lange and Vice President for Student Affair Larry Moneta, who both declined to comment. He also threw out all claims made by the players’ parents.

Duke will “continue to vigorously defend” the remaining claims in the suits, Michael Schoenfeld, vice president for public affairs and government relations, wrote in a statement.

“Many of the claims in the lawsuit have been dismissed and the few claims remaining are substantially narrowed, as we had hoped,” he wrote.

Many of the remaining claims against Duke, DUHS and individual administrators relate to the alleged conduct of the nurse who examined Mangum. According to the players’ suits, the nurse, Tara Levicy, said Mangum showed physical signs of rape, although no such evidence was present. In addition, the suits state that Levicy altered the examination report to support Mangum’s claim that she was raped.

The judge allowed claims related to Levicy’s alleged conduct to proceed on grounds including obstruction of justice and negligent hiring, training and supervision of an employee.

According to the obstruction of justice claim, Steel and Dzau allegedly helped create false reports and the two men—in addition to Brodhead and John Burness, former senior vice president for public affairs and government relations—then allegedly attempted to conceal the acts.

‘Relationship of trust’

Brodhead, Executive Vice President Tallman Trask and Wasiolek face a claim brought by the 38 unindicted players of constructive fraud, which is deception without intent. The players say the three administrators created a “relationship of trust” with them by encouraging them to discuss details of the situation under promises of confidentiality and then disclosed that information to the Durham police.

The players also state that Wasiolek, who holds a law degree, told them not to hire a lawyer or discuss the case with their families. Instead, she recommended that they consult with a lawyer selected by Duke, the players state.

“An administrator who is a lawyer, who discusses pending criminal charges with her students, who affirmatively cuts them off from other advice by telling them not to seek legal advice and not to tell their parents, and who then directs them to the institution’s attorney in an effort to protect the institution at the students’ expense, could plausibly be liable for constructive fraud under state law,” the judge wrote regarding Wasiolek’s alleged actions.

He added that the plaintiffs will ultimately be responsible for proving these claims.

The judge ruled that the administrators’ disclosure of the players’ DukeCard swipe records to Durham police was not a violation of the players’ rights. But subsequent efforts the players say Duke made to conceal this disclosure might constitute fraud.

Administrators named in that part of the suit include former Duke Police Chief Robert Dean, former DukeCard office head Matthew Drummond, Aaron Graves, former associate vice president for campus safety and security, and Deputy General Counsel Kate Hendricks.

Beaty also said[PDF] that if Duke failed to follow the disciplinary procedures laid out in the Code of Conduct when it suspended then-sophomore Ryan McFadyen in Spring 2006, the University could be liable for a breach of contract. McFayden, a former lacrosse player, was suspended after sending a vulgar email that mentioned killing strippers in what he later said was a joking film reference.

But the judge rejected the portion of the players’ breach of contract claim based on the allegation that Duke faculty and staff harassed the players in violation of University policy. He wrote that the University’s handbook and other policies are not legally enforceable contracts.