EUGENE — Lane County Circuit Court judge Clara Rigmaiden denied the third attempt by defense lawyers to prevent jurors from considering testimony from former Oregon Ducks stars Marcus Mariota, Tyrell Crosby and Henry Mondeaux in the civil trial brought by former UO offensive lineman Doug Brenner.
Rigmaiden also on Thursday morning denied the NCAA’s motion for a directed verdict to dismiss Brenner’s claims against the organization in the case.
Brenner, who suffered rhabdomyolysis from strenuous workouts in January 2017, is seeking $125.5 million in the case: $100 million in punitive damages against the NCAA, plus $20 million for pain and suffering and $5.5 million for past and future medical expenses from UO, former football coach Willie Taggart and former strength and conditioning coach Irele Oderinde.
David Fuad, one of the NCAA’s lawyers from Orrick Herrington & Sutcliffe LLP, and Travis Eiva, one of Brenner’s lawyers from Kafoury & McDougal and Eiva Law, filed opposing motions and made oral arguments Wednesday regarding the request for a directed verdict as to Brenner’s claims of negligence and for punitive damages against the NCAA.
“I did some reading about this motion and it became clear that Mr. Eiva was correct in several of his arguments and I am required to extend to him every reasonable inference that can be drawn from the evidence,” Rigmaiden said Thursday morning. “I am not permitted to weigh conflicting evidence or evaluate credibility. The question is whether the evidence is insufficient to prove the claim and whether the ruling party is negligent … as a matter of law.
“On the negligence claim, there are factual disputes regarding whether the … negligence can be proven. When there are factual disputes, the non-moving party wins. There are factual disputes and I don’t decide factual disputes, the jury does. (I’m) denying the motion for directed verdict as to negligence. On punitive damages there is also factual dispute as to whether defendant NCAA acted with malice or showed a reckless and outrageous indifference to an unreasonable risk of harm and acted with conscious indifference to the health and safety and welfare of others. I was invited by the NCAA to weigh evidence and evaluate credibility and I am declining to do so.
“Directed verdicts are rarely granted for this reason and are often reversed and I am not going to take the factual disputes that exist in this case away from the jury. I am denying in its entirely the motion for a directed verdict from the NCAA.”
In arguing for a directed verdict, Fuad said the NCAA does not have the authority to adopt the bylaws Brenner’s legal team suggests would have prevented the workouts that are the subject of the case. The NCAA wasn’t involved in designing, implementing or monitoring the workouts, Fuad said, and “the actions the NCAA did take within its authority were universally praised by the plaintiff’s experts in the testimony.”
Regarding the punitive damages claim, Fuad said: “The jury is not permitted to speculate … only admissible evidence can be considered and at least some of that evidence must meet a ‘clear and convincing’ standard. There is none of it in this case.”
Fuad continued: “There is no evidence supporting it. There is nothing for the court to weigh. There’s nothing for the jury to consider. … The plaintiffs have not given enough evidence for the jury to consider. The jury is going to be very confused when they go back there and try and figure out what exactly are we supposed to be punished for.”
Eiva countered that the NCAA was “taking all inferences in their direction” and the court is obligated to take all evidence in the “light most favorable to the plaintiff.”
Regarding the NCAA’s claims that it has no authority to enact the bylaws to address such matters, Eiva drew a comparison to government.
“To suggest that the NCAA has no authority to pass rules is kind of like saying the United State Congress has no authority to pass a law,” he said. “Because if you think about it, it’s the delegates from the states who are actually passing the laws. It’s silly. …
“Regulate transition periods for strength and conditioning coaches and protect you against this particular injury. Over-exertional injuries and deaths, there’s plenty of evidence … that they occur repeatedly during the sacred periods of transition periods when athletes are asked to do too much too soon and there needs to be no punishment in exercises, there needs to be pre -approved written workouts during these periods.”
Eiva argued it was a “simple” motion for the court to deny and that, “We don’t take (verdicts) away from the jury on technical points; we take them on when there’s no evidence.”
Rigmaiden sided with that argument, preserving Brenner’s claims against the NCAA.
UO’s lawyers moved to have the earlier testimony of Dr. Ben Gleason stricken from the record, on the grounds that he did not meet the thresholds to be an expert witness, and to have the testimonies of Mariota, Crosby, Mondeaux and former Oregon offensive line coach Steve Greatwood stricken. They all tested last week regarding Brenner’s playing abilities and traits that made him a viable NFL prospect.
“I am denying that motion,” Rigmaiden said. “I’m denying their request for me to reconsider the testimony of the players.”