A federal jury in Philadelphia handed up a complete defense verdict for Cornell University in a case brought by a student gymnast who claimed $57 million in damages after being rendered a quadriplegic in a tumbling accident on campus.
In the midst of the month-long trial in Duchesneau v. Cornell University, plaintiff’s counsel Kenneth M. Rothweiler of Eisenberg Rothweiler Winkler Eisenberg & Jeck sent an email to the defense noting his client, Randall Duchesneau, would not settle for anything less than $20 million.
Rothweiler, according to the October 16 email obtained by The Legal, said that demand would go up by $5 million a day for each day there was no settlement.
Less than two weeks later, the jurors found the sole remaining defendant, Cornell, was not liable for the paralyzing injuries Duchesneau suffered when he fell while on the university’s Tumbl Trak, a trampoline-like rebound device used for practicing back flips and other tumbling. The unanimous 12-member jury found the university was not negligent in Duchesneau’s tumbling accident at a student-run club and therefore never reached the other questions on the verdict slip regarding causation and assumption of risk.
At the close of the plaintiff’s case, the judge granted an unopposed motion for nonsuit of the case against Tumbl Trak. Rothweiler said his client settled with Tumbl Trak but wouldn’t disclose the amount.
The university was represented by co-counsel Joe H. Tucker Jr. of the Tucker Law Group and Richard B. Wickersham Jr. of Post & Schell.
Tucker said the verdict was a "complete vindication" of Cornell in the case. In talking to the jury afterward, the jurors said they didn’t believe Duchesneau needed anything from Cornell and felt the university ran its program correctly, according to Tucker.
Rothweiler has filed a post-verdict motion for mistrial, for which he said his right to file after the fact was sua sponte supported by the judge in the midst of trial. That is something Rothweiler said he has never seen in his 32 years of practice.
In the midst of trial, which was held before U.S. District Judge C. Darnell Jones II of the Eastern District of Pennsylvania, the defense introduced a waiver form signed by Duchesneau as part of his joining the gymnastics club on Cornell’s campus. Under prior rulings from Jones, only portions of the waiver form could be introduced so the parties crafted a new form with the parts that were allowed into evidence as well as the signature line, Tucker said.
New York law applied in this case and, according to Rothweiler, the state has "a waiver-busting statute" that barred Duchesneau’s signed waiver from being introduced. Rothweiler said the judge "split the baby" by allowing into evidence the portion of the form that outlined the risks associated with performing gymnastics in the gym. Rothweiler said the plaintiffs went through great pains to keep from the jury any suggestion of, or reference to, the waiver.
When Wickersham showed the waiver form to the owner of Tumbl Trak and in front of the jury, he noted to Jones that the form was prepared at the request of the court.
"’I didn’t know if it was appropriate for you to give an instruction to the jury that this is not the actual document but was something that you asked counsel to piece together,’" Wickersham said, according to Rothweiler’s motion.
Rothweiler objected to that statement and Jones held a sidebar in which he said he was "hurt" by Wickersham’s action and asked whether Rothweiler would be filing any motions, according to the court filing.
Rothweiler said he didn’t want to request a mistrial midway through the trial. Jones then informed Rothweiler that Jones would allow him to file a motion for mistrial after the verdict even if the jury found against Duchesneau. Rothweiler has now done that, arguing the jury could only infer from Wickersham’s statements that the original signed form spoke to issues of waiver or assumption of the risk.
"This is the first case I ever tried where I really felt my client didn’t get a fair trial, because of what Cornell’s counsel did," Rothweiler said.
Rothweiler said he knew there was no way he could win if the jury thought there was a waiver signed because he had done four focus groups prior to trial that all said as much.
Tucker said the defense thinks the motion for a mistrial will be rejected because it goes to the issue of assumption of the risk, which was not even reached by the jury that found Cornell wasn’t negligent to begin with. Tucker said there was weeks of additional testimony after those statements were made.
The suit against Cornell was filed in 2008. Rothweiler said two other firms turned the case down because of the waiver issue. Tucker said he was brought in last year. The jury was selected September 25. The case went to the jury October 26 and the jurors deliberated for less than three hours.
Jones did not let Duchesneau’s request for punitive damages go to the jury. Cornell had filed an "open door" motion alleging the plaintiff opened the door to allow the university to tell the jury about $5 million in medical care and $3 million in cash Duchesneau received from the university through Cornell’s insurance provided to gymnastics club members. It is unclear from the docket whether the judge ever ruled on that motion, but Tucker said the jury never heard about the $8 million.
Duchesneau was a senior at Cornell in October 2006 when he went to the gymnastics club and used the Tumbl Trak. He performed a back flip and sustained a C-5/C-6 neck dislocation that rendered him quadriplegic.
Rothweiler said he argued Cornell’s gym had no policies, procedures or safety equipment in place and, rather, let anyone come into the gym and use whatever equipment they wanted.
Rothweiler said he argued the university did not have an experienced gymnast supervise the gym, but rather paid a student who it hired as a staff person to sit at the gym when it was open. Rothweiler further argued Cornell closed down the gym in the months prior to the accident in order to ensure it had qualified advisers and then the university ignored its own goals and placed an unqualified supervisor in the gym.
According to Rothweiler, it came out toward the end of trial that another person was paralyzed at the gym in early 2006, prompting its closing.
Tucker said the defense’s main argument was that Duchesneau knew how to do a back flip, as he had been trained in gymnastics and breakdancing before. The defense also argued there was nothing Cornell did to cause him to mess up that particular back flip that resulted in injury. The defense further argued that Duchesneau assumed the risk of doing a back flip.
"[Rothweiler's] case was about distraction, and boiled down to the brass tacks of it, it was about a single back flip that happened with an unfortunate result," Tucker said.
The parties sat through days of mediation in June 2011 and August 2012, but were too far apart to come to any resolution. Tucker said the demands vacillated between $26 million and $38 million and went to $20 million during trial.