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Penn State Files Motion to Set Aside Jury Verdict in McQueary Case

on November 07, 2016 7:12 PM

Penn State on Monday filed a motion for post-trial relief, asking a judge to set aside a jury's verdict awarding Mike McQueary $7.3 million in damages in his civil lawsuit against the university.

A Centre County jury on Oct. 27 found in McQueary's favor on claims of defamation and misrepresentation by Penn State. He was awarded $1.15 million in compensatory damages on both counts and $5 million in punitive damages on the misrepresentation charge. Specially presiding Judge Thomas Gavin still must rule separately on McQueary's claim that Penn State violated the state's whistleblower statute and retaliated against him for cooperating with prosecutors in the Jerry Sandusky child sexual abuse case.

Penn State's motion asks for a "judgment notwithstanding the verdict, a new trial or remittitur." The first option would require the judge to set aside the jury's verdict and enter his own, while the third would lower the amount of damages awarded.

Regarding the damages awarded, Penn State attorney Nancy Conrad wrote "The juries awards are plainly excessive, grossly exorbitant and shock the conscience."

The jury should have been instructed, Penn State argued, that it could not award double damages. The identical compensatory damages, Conrad wrote, suggest the jury did so.

Additionally, the motion states that the jury's award was speculative and not based on evidence presented by McQueary's team.

The jury agreed with McQueary's claim that former Penn State athletic director Tim Curley and vice president Gary Schultz intentionally misrepresented what they would do with his 2001 report of seeing Sandusky with a boy in a locker room shower. McQueary's attorney argued that the two administrators had knowledge of a 1998 allegation of Sandusky and did not take appropriate steps to investigate and report what McQueary told them what he saw in 2001.

Both men still await trial in Dauphin County court on charges of failure to report suspected child abuse and child endangerment. Because of that, both asserted their Fifth Amendment rights in depositions for the McQueary case and did not testify in the trial.

Among Penn State's arguments for setting aside the jury's verdict is that the court erred in not granting its motions for a stay pending the outcome of the criminal cases. In the motion for relief, Penn State attorney Nancy Conrad argued that the university suffered "substantial prejudice" because all three of McQueary's claims relate to the information McQueary "allegedly communicated to Schultz and Curley and the alleged responses of Schultz and Curley regarding the report of the alleged misconduct."

Penn State further argues that McQueary's misrepresentation claim was groundless because Curley and Schultz did inform him of what they had done -- informed Sandusky's Second Mile charity for at-risk youth and told him not to bring children to football facilities -- and McQueary took no other action to report to law enforcement or child welfare authorities. Conrad also wrote that McQueary did not object when told about their course of action.

There was no evidence presented, Conrad wrote, that what Curley and Schultz told McQueary in 2001 caused McQueary damage 10 years later when Sandusky was charged and McQueary was identified as the graduate assistant who was the witness in the Victim 2 case.

Conrad also wrote that Gavin erred when he instructed jurors that they "may take an adverse inference against the university," because Curley and Schultz, who were not parties to the suit, asserted their Fifth Amendment rights and did not testify.

The university argues that an error was committed in Gavin's instruction to the jury that Curley, Schultz and former president Graham Spanier were mandated reporters of child abuse as a matter of law. Conrad cited the mandated reporter law that was in place at the time of the 2001 incident, which described mandated reporters as individuals who come into contact with children in the course of their jobs and "have reasonable cause to suspect... that a child coming before them in their professional or official capacity is an abused child."

There was no evidence, Conrad argues, that any of the men came into contact with children as part of their jobs or that an abused child came before them. She also cited testimony from former university counsel Wendell Courtney, who said he advised Schultz to report it out of caution but found no legal obligation for him to do so, and McQueary family friend Dr. Jonathan Dranov, a physician to whom McQueary spoke about the incident and said he did not believe what McQueary told him required reporting it to police or child welfare authorities that night.

McQueary's attorney did not raise the mandated reporter issue during the trial, and did not request the jury instruction.

"The court's instruction to the jury here was erroneous, an abuse of discretion and substantially prejudiced the university," Conrad wrote, stating that it was grounds for a new trial.

The instruction, Conrad later wrote, was one of several instances of Gavin acting as an advocate for McQueary.

The defamation claim asserted that statements of support made for Curley and Schultz made by Spanier in the wake of the charges against them implied that McQueary had lied to the grand jury about what he saw. In the motion, Penn State argued, as it did through the trial that the defamation charge should have been dismissed earlier because the statements were opinion and did not reference McQueary.

The university also argues that Gavin should have defined McQueary as a public figure -- making the statements subject to the standard of actual malice -- and that Spanier's statements were a matter of public concern, in which case they would have to be proven false for a defamation claim.

Gavin, meanwhile, refused to permit the university to offer certain negative media stories about McQueary which would have bolstered the university's defense that his reputational damage was the result of a focus on McQueary's own actions and not Penn State's.

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