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Suit says district liable for athlete's brain injury

01/03/2012, 8:00am PST
By J. Harry Jones

In a high-school football game more than four years ago, Mission Hills High linebacker Scott Eveland limped off the field and collapsed on the sideline. Now, a Vista Superior Court jury will be asked to determine why Eveland suffered a catastrophic brain injury that night.

— On the second play of the second quarter of a high-school football game more than four years ago, Mission Hills High linebacker Scott Eveland limped off the field and collapsed on the sideline.

The 17-year-old’s life would be saved in surgery many hours later, but it would be a life greatly altered.

Now, a Vista Superior Court jury will be asked to determine why Eveland suffered a catastrophic brain injury that night in September 2007.

More to the point, they will be asked to decide if employees of the San Marcos Unified School District bear the brunt of responsibility.

Barring a last-minute settlement, the trial is scheduled to begin Friday and could last eight to 14 weeks. According to court documents, Eveland’s lawyers will ask the jury for roughly $25 million, which is what they say is needed to provide the expensive, 24-hour-a-day care Eveland will need the rest of his life.

Eveland suffered a subdural hematoma — bleeding in the brain. His mind is active, but his is body crippled. He can type out responses to some questions on a keyboard but can barely speak. He’s made some progress physically, but his mobility is very limited.

“He’s going to be severely disabled for the rest of his life,” said his mother, Diane Luth. “But you know what? That kid is motivated. He’s working hard. … He’s doing what he can to get the connection back. He hasn’t given up.”

Eveland will be brought into court in a wheelchair during the trial but will not testify, his attorney said.

Football head injuries have become a hot legal and health topic nationwide in the past few years, with far more attention being paid to signs of concussion because of the long-term effects such incidents can cause.

The trial is scheduled to be webcast live on Courtroom View Network, a pay website that caters to attorneys and law schools across the country. A spokesman for the network said it chose the Eveland trial because it will feature “top-tier litigators and extensive expert witness testimony, which along with significant outside interest makes it a great candidate for electronic coverage.”

Eveland’s lawyers maintain that during the days before the game, Eveland was experiencing worsening headaches. Just minutes before the game, they will argue, Eveland went to the team’s athletic trainer and told him his headache was so bad, his eyes couldn’t focus. They will say that he asked to be held out of the game for at least the first quarter and that the trainer, Scott Gommel, then went to Coach Chris Hauser with the information.

According to one witness, who was a student trainer at the time, Hauser was overheard telling Gommel “You aren’t a (expletive) doctor,” and something to the effect of “These are my players, and I’ll decide who plays and who doesn’t.”

Eveland started the game. Two other young witnesses are expected to testify that in the days after Eveland collapsed, Gommel told them that he had gone to Hauser and told him of Eveland’s health complaints but that the coach put Eveland in the game anyway.

But under oath during two of the more than 300 depositions taken in the marathon legal case, both Hauser and Gommel swore those conversations never took place.

Lawyers for the school district will maintain there was no indication Eveland had been having health problems before the game and that his injury was the result of one hit when a player’s knee collided with Eveland’s head. There is no medical evidence to suggest, they will argue, that his injury was the result of “Second-Impact Syndrome,” which is the core of Eveland’s claim. SIS is a condition in which the brain swells rapidly and catastrophically after a person suffers a second concussion before symptoms from an earlier one have lessened.

The trial will feature much medical testimony, but in the end could mostly be about deciding who is telling the truth, and who isn’t.

Eveland’s lawyers will also contend that the school district engaged in a cover-up in the days, months and even years after Eveland fell to the ground.

In court pleadings, Eveland attorney Robert Francavilla wrote, “Following this tragic incident, administrators and (the school district) ordered students and faculty to keep quiet. That silence was not broken until more than three years later, when former assistant trainer Breanna Bingen bravely came forward and testified that (district) personnel knew before the game that Scott had a medical problem and should not have played. Thereafter other witnesses confirmed Bingen’s account and (the district) retaliated against them for their honesty.”

District lawyers Daniel Shinoff and Gil Abed will present a very different story.

They say the three key witnesses all have “dubious reputations” and that Eveland’s lawyers have pursued numerous legal theories before settling on the present one.

“Several of Eveland’s teammates, as well as his parents, his girlfriend, his brother, his best friend — all those closest to him — didn’t observe any signs that Eveland had a headache or had been in any pain before the game,” Shinoff wrote in court pleadings. “And the objective medical evidence shows that Eveland suffered an acute injury minutes to hours before the treating neurosurgeon saw him. The objective medical testing is significant for no pre-existing neurological issue. Thus, the headache issue is a red herring, as is the contention that Eveland was forced to play.”

Eveland’s lawyers at first sued the city of San Marcos on the theory that Eveland was not taken to the hospital quickly enough. That tactic fell apart, and the city was dropped from the suit. They also sued the helmet manufacturer, which just recently settled out of court for $500,000. Judge Thomas Nugent, approving the settlement, noted there was no evidence the helmet was at fault, and the company, Riddell, Inc., said it settled simply to avoid further legal costs.

The plaintiffs have listed more than 1,300 exhibits and 271 possible witnesses they want to present to the jury. The defense has 751 exhibits and listed 379 potential witnesses.

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