Bad Week for Duke - 2006 Lacrosse Team Gangsues School, Others

As if losses to Wake Forest and Miami aren't humiliating enough, Duke now has to face a public relations nightmare. Thirty-eight 2006 Duke Lacrosse players who were NOT charged with rape in the wake of Mike Nifong's botched "rape" witch hunt have filed suit against the University, the City of Durham, the hospital and others. I've had an opportunity to review the suit, and I'll analyze it here.

(Civil procedure stuff. Skip unless you REALLY care about our legal system and the differences between state and federal court.)

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First, the suit was filed in Federal court in the Middle District for North Carolina, where Durham is located. There are two jurisdictions in which civil suits can be brought in this country, either a state court or the federal system. There are a limited number of ways to get into the door in the federal system, including suits regarding federal laws, questions under the U.S. Constitution, suits between citizens of different states (with over $75K in question), and suits that are inherently federal (involving the federal government, between two states, involving an ambassador, arising from maritime or federal land jurisdiction).

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This case involves 38 of the 47 Duke Lacrosse players. Subtract the three indicted players and the one Black player and you might be left to wonder why five players are not plaintiffs. The answer is found in the legal posturing. The 38 plaintiffs are the White 2006 Duke Lacrosse players who AREN'T from North Carolina. All the defendants are North Carolina "citizens". That allows the attorneys to proceed in federal court under "diversity of citizenship" (every plaintiff is from a different state than every defendant). In addition, the plaintiffs' attorneys wisely have alleged violations of the United States Constitution.

Even if the defendants can show that one or more plaintiffs are actually North Carolina residents (domiciled in North Carolina with the requisite intent to remain there indefinitely) the suit might stay in federal court due to the court's "supplemental jurisdiction", which allows federal courts to retain jurisdiction over matters in which federal issues predominate and the common nucleus of operable fact relevant to the state and federal claims is the same. That is an avenue of attack the defendants will pursue. It's questionable whether Duke wants this in state court anyway, but then again I don't know how much sympathy Durham juries have for a bunch of preppy New York, New Jersey and Maryland kids.

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(Welcome back. Resume reading now.)

blahblahblahblah Jesus, Nifong, was the re-election worth it?

Here's a quick (sort of) rundown of the allegations and parties.

PLAINTIFFS

--Thirty-eight White Duke Lacrosse players not from North Carolina

DEFENDANTS

--Duke University, assorted higher-ups, and the campus police who assisted the investigation

--Duke University Health System, assorted higher-ups and examining nurses

--City of Durham, various higher higher-ups and various police officials

ALLEGATIONS

1) Intentional infliciton of emotional distress

2) Negligent infliction of emotional distress

3) Negligent supervision of (hospital nurses)

4) Breach of duty of care in conducting/reporting forensic examination

5) Breach of duty of care to warn and protect against hazard

6) Intentional infliction of emotional distress (second fact set)

7) Negligent infliction of emotional distress (second fact set)

8) Fraud and conspiracy to defraud

9) Negligent misrepresentation

10) Abuse of process and conspiracy to abuse process

11) Constructive fraud through abuse of confidential relationship

12) Breach of duty of care in conduct of a voluntary undertaking

13) Breach of duty based of special relationship of mutual benefit

14) Breach of duty to protect students from known dangers and harassment

15) Breach of contract

16) Tortious (constituting a tort) breach of contract

17) Promissory estoppel (inducement of detrimental reliance)

18) Intrusion upon seclusion, solitude and private affairs

19) Negligent supervision of Duke professors and employees

20) Fourth Amendment search violation - Key card reports

21) Fourth Amendment search violation - DNA samples

22) Fourthteenth Amendment due process violation - Malicious investigation

23) Obstruction of justice

24) Fourth Amendment due process violation - deprivation of property

25) Fourteenth Amendment due process violation - False public statements

26) Monell v. Dep't of Soc. Servs. (Durham responsible for ratifying Nifong/police acts)

27) Negligent supervision of Durham police

28) Intentional infliction of emotional distress (third fact set)

29) Negligent infliction of emotional distress (third fact set)

30) Negligence by Durham police

31) Negligent hiring/training/supervision/retention of Durham police

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Basically, this is what you need to know. Duke screwed up by allowing the campus, and particularly the faculty, to incite feelings against the lacrosse team. It should not have suspended the season and fired the coach based on the shaky allegations of one woman. They should not have turned over key card records for the players and they should not have allowed warrantless searches of the players' rooms.

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The Duke University Health System screwed up by having a recently trained nurse examine the accuser, and then ratifying everything she said without even reviewing the record of the examination. They also should have stopped the nurse from changing her story over time and reporting facts that did not exist.

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The City of Durham and Durham Police should not have conducted the illegal searches and should not have suppressed statements and evidence that would have exonerated the players.

BIG FINISH

Sorry, no big finish. The suit asks for damages to be proven at trial rather than some exorbitant number that draws big headlines. Don't get me wrong though, the attorneys in this case want big headlines. Check out the hot new blog, http://www.dukelawsuit.com/. It's run by Robert Bork, Jr., the son of Reagan Supreme Court nominee (and famous political victim) Robert Bork, and it's labeled "official".

Some of these claims are quite weak, but taken as a whole the 225-page complaint is quite damning. I don't know that I have ever seen such a clusterfuck of incompetence at so many levels, and the suit doesn't even include Nifong or the lying accuser. I'm including Hurricane Katrina, 9/11 and Abu Gharib when I say that. The most difficult aspects of the suit are going to be procedural, in that there do not appear to be enough federal claims to keep the matter in federal court if diversity of citizenship can be successfully challenged. After that it's just a matter of which defendants are writing checks and how many zeroes they need.

The only thing I know for sure is that this is NOT going to trial, at least not with Duke and the Duke medical system as defendants. This is an ugly, career-killing trial for many people if it sees the light of day. I wouldn't be surprised to see the players get on the order of $1.5M each from the University. The City of Durham will fight harder (because it has better defenses as a government entity and because it has a duty to its citizens to limit damages whereever possible).

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Duke's endowment, as of 2005, was valued at around $2.5 billion. They won't be shuttering the university over this.