Tensions flare at Wheeler depositions

Sheila Burt and Sheila Burt

A Cook County judge ordered a retired judge to monitor all court participants at future hearings in the ongoing lawsuit over former Northwestern football player Rashidi Wheeler’s death.

The judge also blasted NU officials at a hearing July 15 for bringing armed officers to depositions and denied the university’s request to bar Wheeler’s mother from future depositions.

The order for monitoring both sides followed heated arguments between NU lawyers and Linda Will, Wheeler’s mother. At the hearing Tuesday, one of Will’s lawyers, James Montgomery, argued that Amy Mayber, an associate general counsel for NU, mouthed the word “bitch” at Will during a June 23 deposition. Mayber denies she mouthed any vulgarity.

Circuit Court Judge Kathy Flanagan said there is no way “to determine what events occurred,” so a retired judge must watch everyone.

“I have reached the conclusion that the tendency and tenure of some of the parties’ (words) have reached a level which I consider ludicrous,” Flanagan said. “It is a waste of time.”

Flanagan said she expected all court participants to “maintain dignity and professionalism,” which have not always been present at past hearings.

Tensions at the hearing escalated when Montgomery discussed the presence of armed university officers in plain clothes at past depositions, a development discovered last week when NU disclosed the information. NU officials sought to have Will barred from the depositions and said they brought along the plainclothes officers because certain witnesses felt intimidated by Will.

Flanagan called the presence of armed police officers “absolutely appalling” and blasted NU lawyers for not disclosing this information in a timely manner to all third-party participants. Representative for supplement makers Cytodyne Technologies and Next Proteins said they did not know of armed officers.

NU lawyer Eric Quandt told Flanagan that Will “raised a certain level of concern” by calling NU football coach Randy Walker “a murderer” at an earlier deposition. But Flanagan said NU’s response was “a cheap shot” and does not justify the presence of armed officers.

“I think it was a wild, wild overreaction,” Flanagan said.

Flanagan, who normally does not attend depositions, also said she would attend today’s deposition hearing for Dr. Mark Gardner, former director of Searle Student Heath Service. NU officials said they believe Gardner acted on his own in destroying records of Wheeler’s last physical. Gardner resigned from NU in April 2002.

In another development, Flanagan asked that NU lawyers produce further details about meetings with Gardner to the third-party participants within 24 hours. She also asked that NU produce a more detailed written response within 14 days.

“We obviously will comply with the order and provide the information to the third parties,” said Alan Cubbage, NU vice president for university relations Wednesday, without specifying the details to be released.

Flanagan said so far NU has not complied with requirements to release more information and is not protected by Illinois law for not releasing details.

“It really is inadequate,” Flanagan said. “The date (and) who was present are not privileged. I should not have to sit here and lay out the rules.”

In mid-June, NU lawyers filed a brief that stated the university had no duty to reveal that physical records for Wheeler disappeared shortly after his death. The filing was prompted by Flanagan’s June 10 ruling that said NU must provide more information about its search for Wheeler’s missing records.

Later in the hearing, Flanagan granted permission for NU to continue testing different supplements at its own expense. Quandt asked that he receive batch samples from all third-party defendants.

Anne Kimball, a lawyer for Cytodyne Technologies, said it is not clear which supplements Wheeler ingested and asked for a clear understanding of what needs to be tested.

Wheeler, a former defensive back, collapsed at a practice in August 2001. The Cook County medical examiner ruled that Wheeler died from exercise-induced asthma.

Wheeler’s parents are suing NU and blame inadequate assistance and an intense workout. NU blames Wheeler’s death on supplements containing the NCAA-banned substance ephedra.