Posted on 14 Nov 2011
It may take years, but Penn State, its administrators and possibly even the former coach Joe Paterno could be the targets of civil lawsuits seeking extensive monetary damages once the criminal case against a former assistant coach is concluded, trial lawyers with experience in similar cases said Friday.
“People say there might eventually be 20 victims identified in this case, but who knows if the number might not be 200?” said Michael Dowd, a New York lawyer who has represented hundreds of child abuse clients. “The damages sought could total $100 million.”
Other lawyers with experience in civil lawsuits agreed that Penn State was vulnerable because it appeared to have had warnings that the former defensive coordinator Jerry Sandusky was suspected of preying on children and did not meaningfully act to prevent it.
“The damage to the victims is so profound — pain, suffering and perhaps lifetime injuries — that juries usually are unbridled as to how to calculate the damages,” said Harold Goodman, a Philadelphia lawyer who has represented multiple clients in similar cases. “The damages are likely to be immense.”
There were, however, law experts who saw obstacles to civil cases against the university and its employees.
“It’s a huge uphill battle to collect from the state,” said Saul Levmore, a professor and former dean at the University of Chicago Law School. “Plaintiff lawyers love to jump up and down about $100 million settlements, but there are a lot of hurdles in the way to that.”
Doriane Coleman, a professor at the Duke University School of Law, said that unlike the Catholic Church, which was the target of previous child abuse lawsuits, Penn State is a state institution and thereby should be protected by a doctrine known as sovereign immunity, which in essence protects state entities — and possibly state employees acting in the normal course of their jobs — from tort claims.
“I see this as very difficult to overcome,” Coleman said.
Generally, civil proceedings begin only after the criminal case has reached its conclusion. Current Pennsylvania statute of limitations restrictions allow a victim of child abuse to file a civil claim until the victim is 30 years old, although that law was amended in 2002 when the age limit was 20. It does not appear that the change will affect any of the victims recently identified in the Sandusky grand jury investigation. But if there are additional victims who come forward, the age limit could keep them from being eligible to file civil claims depending on their ages and the years that the assaults occurred.
Sandusky has been charged with sexually abusing eight boys over a 15-year span, including at least one in the football complex locker room. Two top Penn State officials — Tim Curley, the athletic director, and Gary Schultz, the senior vice president for finance and business — have been charged with perjury and failing to report to the authorities what they knew of the allegations. Neither Paterno nor Graham B. Spanier, who was removed Wednesday as university president, was charged in the case, although questions have been raised about whether they did as much as they could to stop Sandusky.
“There are certainly elements of a cover-up or something like a conspiracy,” said Stephen Rubino, a New Jersey lawyer who began specializing in clergy sexual abuse litigation in the late 1980s. “The university president went out of his way to support two of the principals on the day of their arrests.
“If Penn State was smart it would spend whatever it takes to find the victims, settle with them, provide treatment and begin rebuilding the image of the university as a place where the safety of children was put above the football program.”
Rubino also said he believed Paterno could be named in civil lawsuits. “Yes, he’s got vulnerability,” he said. “He’s the head coach. It was his locker room. It was his program and his assistant football coach.”
The consensus from other lawyers and law experts was that Paterno could be exposed to a lawsuit from one or more of Sandusky’s suspected victims, but it would be a case that hinged on the detailed specifics of what Paterno knew and when he knew it.
On the issue of sovereign immunity for Penn State and its employees, Gerald McHugh Jr., a prominent Philadelphia lawyer, said that because the Pennsylvania university system is structured differently than those in most other states, Penn State is categorized as a state-sponsored institution and would not be afforded the immunity defense.
Deliberations in the Pennsylvania law community have already begun on whether university officials were legally required to report the allegations and eyewitness testimony about Sandusky to law enforcement authorities since Penn State is not an institution that supervises children.