Judge: No dismissal for drug company

Sheila Burt

Following a filing in which Northwestern said it had no duty to reveal that physical records for football player Rashidi Wheeler disappeared shortly after his death, a judge denied a motion to dismiss a supplement manufacturer from the Wheeler lawsuit at a June 19 hearing.

Jack Riley Jr., a lawyer representing Phoenix Laboratories, argued that NU should produce Wheeler’s missing file or the court should find NU “committed spoliation of evidence.” Riley argued that if NU cannot produce the records, Phoenix Laboratories should be dismissed from the lawsuit.

Phoenix Laboratories manufactures Xenadrine, a weight-loss supplement that once contained ephedra, the NCAA-banned substance that NU’s lawyers have argued contributed to Wheeler’s death.

Wheeler, a former defensive back for NU’s football team, collapsed and died after a conditioning drill in August 2001.

The Cook County Medical Examiner ruled Wheeler’s death resulted from exercise-induced asthma, though Wheeler’s parents blame his death on the rigorous workout and poor medical treatment.

Circuit Judge Kathy Flanagan denied Phoenix Laboratories’ motion for dismissal “without prejudice,” so the company may bring up the motion again at a later date.

Representatives for Phoenix Laboratories declined to comment on whether or not they plan to reintroduce the argument, but NU lawyer Eric Quandt said he is prepared for any such motion.

At the hearing, Riley also questioned NU’s filing on June 17. He argued that the university has not followed Flanagan’s June 10 ruling requiring a thorough explanation of its search for records of Wheeler’s last physical examination.

“Northwestern has chosen to blame everyone but itself,” Riley told Flanagan.

NU officials announced this month that they believe the records were destroyed by Dr. Mark Gardner, former director of Searle Heath Service, and that he acted independently of the school. Gardner resigned from his post at the university in April 2002.

At a June 3 press conference, lawyers for Wheeler’s mother, Linda Will, accused the university of participating in a “cover-up” and said NU should claim responsibility for the actions of its employees.

Quandt asserted at the June 19 hearing that the missing medical record is only a solitary piece of evidence in a much larger investigation.

“The medical record is gone. There is no doubt about that,” he said. “Now the question is how the court deals with that.”

Later in the hearing, Tom Marszewski, a lawyer for Will, questioned NU’s demand for the contents of Wheeler’s locker to be released.

Will’s lawyers have provided the university with a list of the contents of Wheeler’s locker, but the university says statements from an equipment manager and players contradict the list provided.

Arguing that NU was trying to “harass his client,” Marszewski questioned the testimony of player Marvin Ward.

Marszewski said that Ward testified at a court hearing that he did not see Wheeler drinking Ultimate Orange or Ultimate Punch, but he signed an affidavit that stated he saw Wheeler drinking the supplement.

Quandt held that Ward never changed his statement.

Flanagan said that she was not sure what lawyers for both sides were arguing because she did not have a copy of Ward’s deposition.

“We can argue the credibility of all the witnesses later on,” she said. “The order stands on the locker.”

The next hearing in the case is scheduled for July 15.