Northwestern has one week to provide better information about its search for the records of Rashidi Wheeler’s last physical, a Cook County judge ruled Tuesday.
Circuit Court Judge Kathy Flanagan gave NU seven days to reveal when it first knew the records of the July 12, 2001, physical were missing. Flanagan ripped the university for not notifying all parties early on in the case that it could not locate the important documents.
“It’s absolutely like pulling teeth trying to get any information on this,” she said. “I don’t see why it is so arduous of a task.”
NU officials filed documents last week saying that Dr. Mark Gardner, the former director of Searle Health Service, was responsible for the records. University officials have said that if Gardner destroyed the documents — as they believe he has — he acted on his own.
In last week’s filing NU also asserted that certain conversations between university lawyers and officials about the physical did not have to be revealed because they were legally protected. But Flanagan ruled that only the content of those conversations could be protected. She gave the university one week to provide the names of the people involved in those conversations and the dates they took place.
NU lawyer Eric Quandt said the university would comply with Flanagan’s ruling, but the judge expressed frustration that she had to issue another order to get the information she wanted.
“This is like an onion,” Flanagan said. “You keep peeling the layers off, and there are more and more layers.
“It reeks. It absolutely reeks.”
The missing records could cause more problems for NU, as Flanagan will hold oral arguments June 19 to determine if the university should face a penalty for the records being destroyed. Jack Riley Jr., who represents supplement manufacturer Phoenix Laboratories, said he was confident he could show NU deserved to be punished even without interviewing Gardner first. Gardner’s deposition is scheduled to start July 17.
“I think I have all the information I need based on this latest bombshell,” Riley told Flanagan. Riley later said there is a range of punishments the university could face, including a monetary penalty.
Wheeler, a former defensive back, collapsed and died Aug. 3, 2001, during a preseason conditioning drill. His parents blame his death on the rigorous workout and poor medical treatment. The university faults supplements containing the NCAA-banned substance ephedra.
Flanagan did rule in favor of NU in another area of the case Tuesday. She ordered Linda Will, Wheeler’s mother, to make the contents of Wheeler’s locker available to the university. In a document filed last week, the school disclosed that Oscar “Bill” Jarvis, NU’s equipment manager, said he saw Wheeler’s relatives take a canister and a pill bottle out of Wheeler’s locker shortly after his death.
Lawyers for Will have provided the university with a list of the contents of Wheeler’s locker, but the school says Jarvis’ statements contradict the list provided.
Will’s lawyers said the university was just trying to create a distraction by asking for the locker’s contents, including T-shirts and sneakers. But Quandt argued the university needed to inspect the contents of the locker to see if Wheeler possessed any supplements containing ephedra.
“This is not a t-shirt case,” Quandt said. “This is an ephedra case.”
James Montgomery, one of Will’s lawyers, held up a canister of the supplement Creatine and argued that this was the canister Jarvis saw.
“This is the product they provided to their own players,” Montgomery said. Under a ruling issued Tuesday, NU must provide information on all performance-enhancing supplements it bought for its players in the three years before Wheeler’s death.
In another development, Flanagan ruled that Tom Marszewski, another of Will’s lawyers, did not have to provide further information about a conversation he had with an official at the Cook County Medical Examiner’s office in August 2001.
Marszewski said he taped part of the conversation and provided NU with a transcript of the recorded segments. University lawyers said they wanted more details about the conversation and the whereabouts of the tape, which Marszewski says cannot be found.
Things got heated when NU lawyer Walter Jones Jr. accused Marszewski of violating state law by recording the conversation without first getting the official’s consent. Marszewski denied that he violated any laws because he later received permission to record the conversation.
Flanagan also told all sides that she will issue an order by Friday that establishes what sort of information about the supplements involved in the case can be protected. Lawyers for the supplement companies have indicated they do not want trade secrets to come out as part of the lawsuit.
