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The New Jersey girl who won $1.5 million from a jury because her basketball coach acted like a foul-mouthed meanie encountered something just as rugged Thursday: the Tort Claims Act. Superior Court Judge Paulette Sapp-Peterson, finding that Jennifer Besler failed to satisfy the act’s ban on damages for pain and suffering when the injuries aren’t permanent, nullified the March 24 jury award and directed a verdict for the West Windsor-Plainsboro school district. The Mercer County jury awarded the money after hearing four months of evidence that Besler suffered from an eating disorder and stopped getting her period because of emotional distress caused by Daniel Hussong, her high school basketball coach in 1995 and 1996. Besides berating and belittling Besler and using the f-word liberally in tirades against her and the team, Hussong created intense stress at the beginning of her senior season by insisting she lose 10 pounds, the plaintiff’s evidence suggested. Sapp-Peterson said in a written opinion, however, that doctors who testified on Besler’s behalf failed to provide objective evidence that the plaintiff had an eating disorder. And while the subjective testimony by Besler, her parents and friends might have been good enough to establish damages in a civil rights or discrimination case, it failed to establish a permanent loss of bodily function required for common law claims against public bodies protected by the tort claims statute. The judge also threw out the finding that the district was liable for intentional infliction of emotional distress, saying there were minimal signs of damage in the years following her basketball ordeal. “The court does not suggest that plaintiff did not experience embarrassment, humiliation, intimidation, frustration, betrayal and other painful emotional distress at the hands of defendants during the 1995-1996 basketball season and thereafter,” the judge said. What is missing is a record of any medical treatment sought by Besler that would show her emotional distress was severe, the judge concluded. On the plus side for the plaintiff, the judge upheld a $100,000 civil rights award to Besler’s father, Philip. The jurors found that the school board violated his rights when it declined to let him speak about the coach at a public meeting. New Jersey public educators and school sports officials denounced the jury award as a threat to the independence of coaches and warned it would deter adults from taking part in sports programs on a paid or unpaid basis. To a wider audience — New York sports station WFAN devoted an hour to the Besler case on March 30 — the jury verdict prompted gloomy laments that a new generation of wimpy children of privilege and their litigation-happy parents threatened the future of traditional, albeit tough, role models running extra-curricular activities. Hussong may have gone over the line, but was a $1.5 million whack at the taxpayers the right remedy? “The day of overaggressive parents is in full flower, and the courts shouldn’t be used to carry out their personal agendas,” Michael Herbert, counsel to the New Jersey State Interscholastic Athletic Association, said after Sapp-Peterson’s reversal. “Whatever coach Hussong did, and we certainly don’t condone it, it didn’t belong in the courts, it belonged before the school or before the NJSIAA, and for that reason we support the decision of the judge,” says Herbert of Herbert, Van Ness, Cayci & Goodell of Princeton, N.J. He says the association reprimanded Hussong and placed him on probation in the mid-1990s for violating rules against criticizing referees in press interviews. After scrutiny by the school, he eventually was replaced as basketball coach. “What we were fearful about in this case was that any parent, some well-heeled parent, can blame a coach for everything from having headaches to not being successful in a career and win damages,” Herbert says. Attracting good coaches to take school jobs would become more difficult, he says. Hussong told The Times of Trenton, N.J., after Sapp-Peterson’s ruling that “it got uglier than my wildest dreams. If I have to be the torchbearer for all coaches, so be it. I never did anything wrong.” One of Besler’s lawyers, meanwhile, is not only planning an appeal of Sapp-Peterson’s decision, he is thinking about post-trial motions aimed at getting back some of the $1.5 million. The lawyer, Daniel Fleming of Princeton’s Wong Fleming, says reasonable attorney fees are recoverable under the Tort Claims Act except in cases involving pain and suffering. Now that Sapp-Peterson has wiped out the pain and suffering damages, the jury finding of liability remains on several counts, including negligent supervision, and fees are recoverable, Fleming says. He says that Philip Besler, an accountant who sells economic consulting services to hospitals, has paid about $1 million in fees to the firm and that the firm has an arrangement to share substantive winnings and fee awards with the client. Fleming says a fee award might obviate the need for an appeal. Fleming also says he is planning an application for equitable relief, including a ban on Hussong coaching and an order for professional training at West-Windsor Plainsboro to ensure there is no more abusive behavior against students. “It’s never been about the money,” he says. He says Philip Besler had planned to donate his recovery to the Diana Rochford Memorial Fund, a charity in memory of a West Windsor-Plainsboro teenager killed in a car crash. Jennifer Besler planned to donate her money for scholarships, Fleming says. As for a possible appeal, he says Sapp-Peterson’s finding that there was insufficient evidence of an eating disorder or permanent injury conflicts with the evidence. It also conflicts, he argues, with the judge’s instruction to the jury that emotional distress accompanied by an eating disorder and/or amenorrhea — the absence of a menstrual period — could be considered a permanent loss of a bodily function. School board lawyer Sharon Moore, fresh from Thursday’s legal victory, does not seem to think much of Fleming’s planned post-post-trial maneuvers. Of the motion for equitable relief she says, “I don’t see where there would be any legal justification for that.” Moore, of Clinton’s Gebhardt & Kiefer, says she knows of no decision in which a Tort Claims Act plaintiff won a fee award after obtaining a verdict on liability alone. “I think the plaintiff has to have damages for that to apply,” she says. As for an appeal on grounds that the plaintiff’s medical evidence was sufficient, she says, “I believe there was a complete lack of such evidence and the judge did as well.”

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