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Court: School District Attorney’s Communications with Former Coaches in Concussion Lawsuit Are Fair Game
(Editor’s Note: What follows is an excerpt of a case summary that appeared in the December issue of Concussion Litigation Reporter. For this summary and the case citation and many others like it, consider subscribing to the Reporter at https://concussionpolicyandthelaw.com/subscribe/)
In a majority decision involving a student athlete’s concussion-related lawsuit against a school district, the Washington Supreme Court has ruled that communications between the school district’s attorney and former coaches employed by the district are not shielded by the attorney-client privilege.
In so ruling, the court conceded that it “follows a flexible approach to application of the attorney-client privilege in the corporate context.” However, the privilege “does not broadly shield counsel’s post-employment communications with former employees.”
Highland High School quarterback Matthew Newman and his parents claimed in a lawsuit that Newman suffered a permanent brain injury while playing in a high school football game in 2009, one day after he allegedly sustained a head injury at football practice. Specifically, the plaintiffs alleged that the Highland School District No. 203 violated Lystedt law, RCW 28A.600.190, which requires the removal of a student athlete from competition or practice if he or she is suspected of having a concussion.
In pre-trial proceedings, the district moved for a protective order to prevent the plaintiffs from obtaining discovery of communications between the school district’s counsel and former coaches during time periods when the former coaches were not represented by the school district’s counsel. The state court judge denied the motion and the school district appealed.
In reviewing the appeal, the court noted …
A school board in Portsmouth, New Hampshire codified a new concussion policy, which requires, among other things, that the school district distribute head injury and concussion information to all parents and guardians of student-athletes before the first practice or game of a new season.
The policy also requires that the athletic director review any changes in procedures required for concussions and adopt those changes for the upcoming school year, ensuring the district implements the latest accepted practices for handling head injuries.
In addition, the policy states that any time a coach or other official suspects a student athlete has received a concussion, he or she must immediately remove the student from the game. The student will not be able to return to the game or practice on the same day and/or until he or she is evaluated by a health care provider and receives medical clearance. The existing policy requires student athletes to sit a minimum of five days before he or she can return to play, and only then with a signed permission from parents, a doctor, and athletic trainer.
Finally, coaches, including volunteers, must undertake ongoing training as recommended by the New Hampshire Interscholastic Athletic Association, Department of Education and any other relevant organizations.
California School District Settles Lawsuit Brought by Former Football Player Who Suffered Concussion
The East Nicolaus High School District, north of Sacramento, has settled a lawsuit brought by a former football player, who suffered a concussion after a coach directed 11 of his teammates to tackle him repeatedly as punishment for missing practice.
The settlement, reportedly for $40,000, closed the chapter on allegations made against the district and then-head coach Mark Varnum, which the district originally claimed were “totally unfounded.”
The Sutter County Sheriff’s Department also conducted an investigation, interviewing the player Justin Williams, his mother, the school’s coaches, and players. But Sheriff J. Paul Parker determined that there “wasn’t a basis for a criminal conduct charge” at the time. Sacramento attorney Noel Ferris represented Williams’ mother, Marcie Mackay.
With the settlement, Williams will reportedly receive approximately $25,000. From the $40,000 settlement total, $8,149.04 is mandated to go to the attorney, $4,656.33 as reimbursement for medical expenses and $2,747.52 to Healthcare Recoveries for medical expenses. Williams cannot access the proceeds until he turns 18 in July 2013.
One factor in the settlement was a neuropsychological evaluation earlier this year, which showed that Williams is experiencing symptoms consistent with concussions, including mild anxiety, and could benefit from accommodations in school, consultation with a speech and language therapist and pharmacological therapy for attention difficulty.
Varnum, who is also a teacher, was placed on paid administrative leave during the course of the investigation.
Matthew Roberts, Athletic Director Darren Brown, and assistant football coaches John Dolenga and Geoff Wahl were also listed in the claim.