Penn State verdicts could top state highs

Settlements to surface, attorneys predict

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Penn State University's board of trustees admitted it "failed" in its oversight obligations regarding the Sandusky child sex scandal, while Louis B. Freeh, the former FBI director and judge hired to investigate the university's handling of former assistant football coach Jerry Sandusky, placed the bulk of the blame on the board and directly on four of the university's top leaders who he said "concealed" facts to avoid bad publicity.

So what do Mr. Freeh's findings and the university's response mean for the civil litigation that could come and has already been brought against the university?

"Settle all the cases immediately," said Philadelphia plaintiffs attorney Ken Rothweiler, when asked what he would do if he represented the university.

"A jury in a courtroom could give any one of these kids ... there's no ceiling," said Mr. Rothweiler, who is not involved in any of the cases. "You're talking about verdicts that could be some of the highest in Pennsylvania history."

Attorneys converged on multiples of $1 million, if not tens of millions, in terms of what victims could claim.

Well before Mr. Freeh's report came out, attorneys said the report would be a launching pad for proving the university enabled Mr. Sandusky to continue his sexual crimes.

Now with the report public, along with its many findings and recommendations, those sentiments have only been bolstered, attorneys said.

Mr. Rothweiler and other attorneys said any verdict against the university would come with punitive damages.

As he put it: It's the "perfect punitive damages case" where the highest level of the institution "did absolutely nothing."

Former Assistant U.S. Attorney Barry Gross handles white-collar defense and corporate investigations as a partner at Drinker Biddle & Reath. While many corporations never issue a public report about their internal investigations, he said Penn State didn't really have that option.

All of the evidence found in the report would have been discoverable in civil litigation anyway, he said.

"If there is liability, it's already there," he said.

In the long run, Mr. Gross said, the report will be a good thing for the university despite whatever it might suggest about any potential liabilities against the school. He said the school took the longer view.

"Penn State viewed this, I'm sure, as they have much larger concerns than trying to defend these lawsuits," Mr. Gross said.

The report, which the university received at the same time as the public, revealed that former Penn State head football coach Joe Paterno, along with three of the university's top administrators, knew about abuse allegations against Mr. Sandusky as far back as 1998, but "repeatedly concealed critical facts" from police, the public and the university's board as the ex-defensive coach continued to molest children.

Anapol Schwartz attorney Stephen J. Pokiniewski Jr. said the university is going to have to look at each case specifically, taking an approach that places victims' well-being at the forefront and is carefully vetted for appearing too concerned with publicity -- a concern that Mr. Freeh's report said university officials appeared to have considered when concealing allegations against Mr. Sandusky.

"You're going to have to talk about compensation that is not only appropriate for what they've gone through, but also for their future," Mr. Pokiniewski said. "They're going to have the treatment records."

"You can imagine there's going to be a huge pain and suffering component," he added.

Matthew Casey of Ross Feller Casey represents several victims, including Victims 3, 7 and 10. He said it didn't go unnoticed that in his report Mr. Freeh, a former judge, used the words "concealment" and "shocking," which both come out of Pennsylvania law.

Mr. Pokiniewski said the university may have some viable defenses to raise regarding claims before 2001, saying there may be a "significant causation issue." But he questioned whether any juror would consider them "because they'd be overwhelmed with the failings and shortcomings" of the university.

Defense counsel for Penn State would have to consider that "we have these technical arguments that are strong, but will any juror take a moment to consider them?" Mr. Pokiniewski said.

The university has indicated it wants to settle the matters privately and quickly.

Reached Friday, a university spokesman said the university would not comment on litigation.

James A. Keller of Saul Ewing represents the university and was not available for comment.

No more than an hour after Mr. Sandusky was convicted on 45 of 48 counts of child sex abuse last month, Penn State issued a release signed by university President Rodney Erickson announcing a "program" to resolve claims "privately, expeditiously and fairly."

legalnews

Ben Present: bpresent@alm.com ort 215-557-2315. Gina Passarella: gpassarella@alm.com or 215-557-2494. To read more articles like this, visit www.thelegalintelligencer.com.


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