A Pennsylvania state court judge has dismissed a former Penn State football team doctor’s claim that head football coach James Franklin pressured him to prematurely allow injured players to return to the playing field.
The ruling was made because the statute of limitations had expired.
The judge admitted that the ruling may seem harsh. But “the 180-day limitations period is mandatory and may not be extended by the court by even one day. Moreover, if we were to forgive one day of lateness, would we then have to forgive five days of lateness? Or 10? Where would we draw the line?”
The statute of limitations began when plaintiff Scott A. Lynch, MD had an exit interview on Feb. 21, 2019, according to the court. Lynch filed his lawsuit Aug. 23, 2019, or 183 days later.
Earlier this year, Justin B. Kozubal, MSA (an Executive Professor of Sport Management and a second-year Ph.D. student at Troy University) and Michael S. Carroll, PhD (an Associate Professor of Sport Management at Troy University) wrote about the complaint in Sports Litigation Alert. There summary follows:
On Aug. 23, 2019, Scott A. Lynch, MD (Plaintiff) filed with the Dauphin County Court of Common Pleas, 12th Judicial District of Pennsylvania, a civil action lawsuit for retaliation against numerous defendants including The Pennsylvania State University; Sandy Barbour, Vice President for Intercollegiate Athletics and Athletic Director at The Pennsylvania State University; Charmelle Green, Senior Associate Athletic Director at The Pennsylvania State University; James Franklin, Head Football Coach at The Pennsylvania State University; Penn State Health; The Milton S. Hershey Medical Center; and Kevin P. Black, MD, Chairman of Orthopedics and Rehabilitation of Penn State Health (Defendants). The plaintiff seeks a sum in excess of $50,000 plus interest and costs of damages.
Background
The plaintiff accepted employment with defendant, The Milton S. Hershey Medical Center, and The Pennsylvania State University in 1997 under the direct supervision of defendant Kevin P. Black, MD. In February 2013, Black appointed plaintiff the role of intercollegiate athletics team orthopedic physician for the Penn State football team. In August 2014, Black appointed plaintiff the additional role of Director of Athletic Medicine for Penn State Athletics.
The plaintiff served in the roles mentioned above until March 1, 2019, at which time defendant dismissed the plaintiff from those roles, but allowed him continued employment. Plaintiff cites standards safeguarding institutional governance of athletes, particularly standards designed to prevent coaches from having direct responsibility for or exercising undue or improper influence over the hiring or supervision of any member of the medical or athletics training staff who works with the coach’s team as a relevant policy to the retaliation claim.
The plaintiff further cites the recently adopted NCAA Bylaw 3.2.4 17 regarding protecting student-athletes and prioritizing student-athlete medical, such as support for good faith reporting of wrongdoing. Plaintiff claims he presented defendants, The Milton S. Hershey Medical Center and Black, a report of wrongdoing, which included examples of obstruction with compliance over standards of care by defendant James Franklin. The plaintiff also claims he sent a report of wrongdoing to Penn State University official, Mr. Robert Boland. The plaintiff alleges Franklin, created a culture and climate which obstructed rules for safeguarding the medical management of student-athletes and attempted to interfere with the plaintiff’s authority to determine medical management and return-to-play decisions.
Court documents state that on Jan. 24, 2019, defendants Sandy Barbour and Charmelle Green, demanded Black remove the plaintiff from his roles. Plaintiff claims that the demand for him to be removed from his role resulted from the plaintiff’s good faith reporting of wrongdoing under the provisions of the Pennsylvania Whistleblower Law, 42 P.S. § 1423. The plaintiff further claims that the demand of Barbour and Green, to remove him from his roles was influenced by Franklin. On Feb. 21, 2019, the plaintiff participated in an exit interview conducted by Penn State University human resources consultant Ms. Kristen Wright, and Penn State University Athletic Integrity Officer Mr. Robert Boland. During the Feb. 21, 2019 exit interview, the plaintiff provided Ms. Wright and Mr. Boland information regarding the alleged obstruction of medical authority by Franklin and provided a written list of recommendations for safeguarding student-athletes. On March 1, 2019 plaintiff was formally removed from his previous roles. On March 10, 2019, Black informed plaintiff by email that the written recommendations to safeguard student-athletes presented by plaintiff to Penn State University officials during the exit interview would not be supported due to insufficient information to agree or disagree with the recommendations. Plaintiff’s civil suit cites conspiracy to create a pretextual narrative in furtherance of a scheme and plan to retaliate against plaintiff for reporting wrongdoing with the meaning of the Pennsylvania Whistleblower Law; seven counts of violation of The Whistleblower Law; civil conspiracy to violate the provisions of The Pennsylvania Whistleblower Law; and two counts of violations of public policy from retaliatory adverse employment consequences. The plaintiff request punitive damages, interest, and damages for prejudgment delay, and further relief.
The defendants filed coordinated responses on Oct. 21, 2019, asking the Court to dismiss the suit, citing Pennsylvania’s statute of limitations. Defendants claim the plaintiff’s suit was filed after the 180-day deadline under the Pennsylvania Whistleblower Law. Court documents state that defendants removed the plaintiff from the Director of Athletics Medicine role on Feb. 4, 2019, giving the plaintiff until Aug. 4, 2019, to file a claim. The defendant’s written responses also claim the plaintiff was not adversely affected by the change because the plaintiff remains employed at The Milton S. Hershey Medical Center, and the plaintiff’s compensation remains intact.
Penn State was “gratified” with the ruling.
“We are gratified by today’s ruling because we have always rejected the claims in the complaint. Protecting the health and well-being of students is the single most important priority at Penn State, and that is certainly true for our student-athletes as well,” the university said in a statement. “We are pleased that the highly-regarded athletic medicine program supporting our student-athletes moves forward under the outstanding direction of a national leader in orthopedic sports medicine.”
Lynch’s attorney, Steven Marino, told the media he will likely appeal.
“He relied on an unpublished, unprecedential decision to support his conclusions. It’s an area of law that’s unsettled in Pennsylvania,” Marino said. “It should be addressed by the appellate courts in a clearer way.”
