The following is exclusive legal commentary from KnightNews.com legal analyst and Orlando attorney Lisa Figueroa.
Boxing Match With Words – And the Fight Continues
On the day of the most important witness for the UCFAA’s testimony, the Courtroom seemed more like a boxing ring than a court of law. It’s no wonder Plancher family attorney Steven Yerrid told the Judge he couldn’t take a doctor’s deposition on Saturday because he was being inducted into the boxing Hall of Fame.
Throughout the day, the two parties were slinging objections and accusations at each other and a mistrial was requested multiple times. In one corner, we had Plaintiff’s counsel at one point ask the Judge for permission to temporarily practice law (via Motion Pro Hac Vice) in Colorado so he can go take up a matter with the Courts and Bar regarding complaints of attorney misconduct against the Defendant’s out of state attorney. In the other corner, we had UCFAA’s attorney throwing some serious jabs when he accused Plancher family attorney as intentionally committing a fraud on the Court and saying that the Judge is allowing it to happen. This constant bickering back and forth had the judge questioning the attorneys’ professionalism and testing his patience. In fact, the Judge said his golf game suffers due to his lack of patience, but after sitting as the Judge in this case, no doubt his golf game is going to improve.
Live video: Ereck Plancher Trial (Or replay when court is out)
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With that said, the first of the most important testimony in this case came from Head Trainer Mary Vander Heiden. Interestingly, she was asked by Plancher’s attorney if there was anything they could have or should have done, or was this “just one of those things?” Her response was that she could only go by what was told or what it “says here,” in apparently some reports or documents she had in front of her. By not following his lead and saying yes, I think it was “just one of those things”, she left the door open to the fact that something different could have or should have been done. While that could be something the Plaintiffs capitalize on, it was clear she felt she and Coach O’Leary were being attacked and singled out as those responsible in large part for a failure to act. But were they?
On Demand Video: Watch O’Leary Testify Here
Vander Heiden testified she was not on the field, however the standard “recommendation” if an athlete with sickle cell trait is in distress would have been to pull him from activities, hydrate them, and it would be beneficial to get them oxygen. The Plaintiffs pointed out this was not done, while the Defense says they treated it as an emergency, but in this case they didn’t give him oxygen. Vander Heiden admits there is no “known downside” to not giving oxygen to the sickling player, however players who are “sickling” experience a phenomenon that inhibits delivery of oxygen to vital organs, which is why it is recommended even in NCAA guidelines to give oxygen. Vander Heiden went on to admit that the coaches can’t make this call; the trainer is supposed to when there is an onset of symptoms. She also says Coach O’Leary was told Ereck Plancher had sickle cell trait and the kind of things to look out for so he would know when the player should be pulled from activity if certain things start happening.
Then the much anticipated, key witness for the UCFAA, Coach George O’Leary took the stand and was thrown in the middle of this legal battle. O’Leary’s testimony, even as UCFAA attorney stated in his motion for mistrial, was the most critical testimony of the Defense’s case. His demeanor and candor, even more than what he actually says, was going to be the most critical factor in how the jurors will base their verdict.
O’Leary made it a point to highlight how he treated or felt about individual players and the team. That they were treated like a family and that there was nothing out of the “norm” than what you’d expect to see at this level when it came to football. He talked about how Ereck was a smart young man, that he was one of the ones that if told to do something, he would be the one to follow through and get it done.
Coach O’Leary admitted that he knew Ereck suffered of sickle cell trait, as well as 3 other people, though it turned out one of those 3 (ex-assistant trainer Robert Jackson) did not. His testimony was basically he was out on the field and as Head Coach he had “a lot of eyes” out on the field, but no one saw Ereck in any kind of distress. He admits seeing Ereck stumble and finish further behind than normal in one of their runs, but he didn’t think much of it. He also singled Ereck out and told him he expected or wanted to see more from him. He did, however, say in hindsight how bad that makes him feel to have said that, since basically he had no idea that this would end so tragically.
The final kicker was when ex-trainer Robert Jackson’s testimony was presented via video since he could not be physically available in Florida for the trial. With this video came to be the most damaging testimony of the day for the defense. Basically, Jackson was allowed to talk about the current protocol or standard for dealing with athletes with sickle cell trait there at the new university where he is currently working. Essentially, they screen ALL athletes for the trait, they sit down with each one that tests positive, they have them sign a form acknowledging they’ve been advised of the trait and what it means, they explain to them what it means, and they explain the life-threatening nature of it and what signs to look for to avoid the serious risks associated with the trait.
The jury is hearing all of this and basically being told how important it is for these things to be done. It is undisputed that at the time of Ereck Plancher’s death, or even his joining the team, there was no such formal protocol, nor were those specific things done. What juror wouldn’t think, well it should have been!? The problem is, that testimony was totally “legally” irrelevant and extremely prejudicial.
So why didn’t UCFAA object? Well, they did during the trial since it was clearly damaging testimony, so much so they asked for a mistrial! The problem for them was that during the actual taping of the video testimony they had one of their lawyers present and she simply did not ask ANY questions. UCFAA attorneys allege the reason they didn’t was because they had an issue related to that witness on appeal (waiting for a decision from appeals court), and so they wanted to “preserve the issue”, meaning make sure they didn’t ruin their chance or waive their rights on the appeal. However, the judge basically said too bad so sad. You had an attorney there, they don’t get to sit there and sit back and say nothing, then come in today in the middle of the testimony –- not before, not just before trial — but in the middle of the testimony, and cry “Foul!”. The Judge said sorry, but it’s coming in. Best he offered was to give an instruction to the jury to attempt to “cure” the damage.
But it’s anybody’s guess as to how this will play out because even the Judge said he reserves the right to reverse himself. So there is no telling what he’ll decide or if he’ll change his mind once the case gets back underway. O’Leary’s testimony was cut short but will be back to testify for the Defense’s case, and the Plaintiff’s attorney made it clear he wasn’t excused from his subpoena and is subject to recall.
The Plaintiff’s attorney made much of O’Leary’s contract, where he highlighted the importance of winning and how winning equals dollar signs. On top of the $650,000 contract, O’Leary gets paid or bonuses for radio and media attention, speaking engagements, and based on the number of folks in the stands. While again, he stressed this is contract isn’t anything different (I guess compared to other college football coaches), the Plaintiffs were trying to highlight how a coach is going to push for wins, no matter what the cost, because of the cost to him. This is going to be a running theme in a time where many question the perceived exploitation of these young athletes who aren’t really being paid, yet the colleges, the coaches, and these “private” organizations like UCFAA, are making hundreds of thousands of dollars. No matter what the outcome of this case, more care will clearly be given to avoid incidents and lawsuits like this.
So as this exciting legal battle continues, we continue to watch the “drama”, though one can only hope the reality is not lost. Among all the bickering, there was even a lot of joking and laughter intermixed in the courtroom. Many times it seemed as if this was basically a game to the “players”, the attorneys fighting this out. But let’s not forget, accident or not, regardless of whose fault this ends up falling on, a young man died tragically and his parents sit in that courtroom while the lawyers banter back in forth with many times what seems to be a wholly insensitive approach in light of this family’s loss.
