The drug supplement company made party to the Rashidi Wheeler lawsuit demanded Monday that Northwestern release additional information withheld about its football team — including information collected by NU’s private investigators.
The request would sanction NU, which revealed Wednesday it had been quietly holding NCAA-banned substances found in its football locker room in August 2001.
The motion asks Circuit Judge Kathy Flanagan to order NU to disclose all interviews not conducted by lawyers in the wrongful death lawsuit filed against NU by Wheeler’s family after the senior safety’s Aug. 3, 2001 death.
In April 2002, NU pulled five pharmaceutical companies into the suit as third-party defendants. The university has tried to link Wheeler’s alleged use of supplements with his death.
Now NU has admitted that more than a dozen players on that team were using supplements the day Wheeler died. At a hearing Monday where the motion was filed, two current NU employees testified that in the weeks following Wheeler’s death, they found five containers of the supplement Ultimate Orange in the lockers of Matt Ulrich, Kevin Lawrence and Billy Silva. Ultimate Orange contains the NCAA-banned substance ephedrine.
The motion for discovery sanctions was filed by Jack Riley, attorney for Phoenix Laboratories, which produces Xenadrine — another supplement containing ephedrine. The motion claims NU evaded numerous discovery requests which would have drawn out the information. NU’s lawyers introduced the containers Wednesday because they want permission to test the substances.
Wheeler’s family is suing the university and eight individuals for negligence in causing their son’s death.
The only evidence that Wheeler used supplements is trace amounts of ephedrine found in his system during an autopsy, which the university disputes. The Cook County Medical Examiner ruled that Wheeler died of bronchial asthma — and that the supplement ephedrine wasn’t a contributing factor.
“Northwestern is trying to pass the buck,” said Gary Moore, attorney for Next Proteins, one of the other third-party supplement companies. “And it’s fumbling the ball right now.”
Scott Arey, NU’s assistant athletic director for facilities, testified at the hearing that he found a bottle of Ultimate Orange capsules and a one-pound can of powdered Ultimate Orange in then-senior linebacker Silva’s locker in August 2001, while the team was practicing in Kenosha, Wis. Arey said he was checking for locker repairs when he found the supplements.
Silva, now a member of the Green Bay Packers, said he could not comment on the case under orders from his agent.
Also that August, assistant athletic trainer Nichelle Pajeau was instructed by former head athletic trainer Tory Aggeler — another defendant in the original lawsuit — to search the lockers and take all supplements she found to his office. She found two cans of Ultimate Orange in Lawrence’s locker and one in Ulrich’s. Ulrich, a sophomore left guard, is the only one of the three eligible to play next season. Lawrence is a senior and Silva graduated last year.
The supplements were turned over to NU investigators James Martin and Robert Walsh in separate meetings on Oct. 8 and 10, 2001. Walsh, a former FBI agent, held the containers in a closet at his house in Naperville, Ill., until recently.
Flanagan called Wednesday’s revelation a “bomb” and ordered NU to disclose the chain of custody of the containers, the circumstances in which they were found and the date they were given to Walsh.
James Montgomery, one of the Wheeler family’s attorneys, said the information from Monday’s hearing provides lawyers with background information for depositions beginning Thursday.
“We think this whole business of whether he ingested the product is irrelevant,” Montgomery said, “because once he collapsed with an asthma attack, they failed to give him appropriate medical attention.”
