Herman Quoted in Column

Herman Quoted in Column

In Everybody vs. Penn State, many should pay — but not Paterno

By Gregg Doyel | National Columnist The lawsuits are coming, and Joe Paterno could spend the rest of his life — and his money — fighting them.

Some would say that’s justice. Paterno was the Penn State coach when two different people at his football building — a janitor in 2000, an assistant coach in 2002 — reported seeing former defensive coordinator Jerry Sandusky sexually assault a boy in a shower. Paterno was personally told by witness Mike McQueary about the 2002 incident, and he told his boss. Up the chain went the allegation, but it never reached the police. Sandusky remained at large for nine more years, free to add more alleged victims.

Gruesome stuff.

Lawsuits are coming, and soon. I talked to three prominent attorneys about this case — two on the record, one who wished to remain off — and all three said civil lawsuits against Paterno and Penn State probably will come even before Sandusky is finished in criminal court. How so? Simple: A plaintiff doesn’t need a criminal disposition to seek damages in civil court.

What’s more, a criminal disposition is often inadmissible in civil court, even irrelevant. O.J. Simpson was found not guilty of murdering Nicole Brown Simpson and Ron Goldman in 1995 — yet was ordered to pay their families $33.5 million in civil court in 1997.

Civil lawsuits are coming against Penn State and Joe Paterno — and soon. That’s what I’m hearing from experts in the field like Mike Weilmuenster, a personal injury attorney from Belleville, Ill., who litigates sexual abuse cases and recently won a $6.3 million judgment against the Belleville Catholic diocese.

“I’d be really surprised if lawsuits aren’t filed in the next week or two,” Weilmuenster said.

And what kind of damages, I asked Weilmuenster, could plaintiffs win from Paterno and Penn State?

“I really don’t know,” he said. “But I expect it will be astronomical.”

This is where I jump off the bandwagon, or at least part of the bandwagon. When this story first broke, I was in the mob with everyone else — waving my pitchfork, demanding Penn State fire everyone who could have stopped Sandusky in 2002. Paterno? Fire him. President Graham Spanier? Him too. And the athletics director, Tim Curley. And the assistant coach, McQueary.

They’re gone in some shape or form, all but McQueary, who is on “administrative leave” but only for reasons relating to the legal system. For all intents and purposes, McQueary is in the same position as Paterno, Spanier and Curley: Gone from Penn State. Disgraced. Career? Over.

And I’m fine with all of that. I’d be fine with a little bit more too. Any victim preyed upon by Sandusky after that 2002 incident should sue Penn State for monetary damages higher than I can count. When all is said and done, the only thing Penn State might own is the name to its school. The buck was passed from McQueary to Paterno to Curley to Spanier, but the horrific bill was allegedly paid by victim after victim. If “astronomical” civil damages are somewhere north of $100 million, so be it.

But those damages need to come from Penn State. Not Joe Paterno. That’s where I jump off the bloodlust bandwagon, for three reasons:

1. The victims will get damages from Penn State. Not enough to heal their wounds — that sum of money doesn’t exist — but more money than they can spend in a lifetime.

2. Paterno has paid enormously. The coaching job he wouldn’t relinquish, even as he turned 84 and had stopped doing the actual coaching, was ripped from his grasp. He wasn’t allowed to retire, or even resign. He was fired. And his name has been trashed. This scandal cannot undo the good Paterno did in decades at Penn State — and he did a world of good, no doubt about that — but it will be the first sentence on his coaching epitaph, above even his status as the winningest coach in Division I history.

3. Legally, Paterno is blameless. Not morally, so don’t get distracted by the word “blameless.” Joe Paterno is not blameless in this episode, not morally or ethically. His mistake in 2002, a mistake he duplicated every minute of every day for the next nine years by never making sure police were aware of the alleged predator in State College, was a personal failing that deservedly cost him his job and his reputation. But it was not a legal failing. Technically speaking, Paterno met the legal standards in 2002. He reported the incident to his superiors. Legally, he should be off the hook — in criminal court, civil court, any court.

If that’s me going soft, fine. Joe Paterno deserved to be fired in humiliating, phone-call fashion. He deserves to have his name mocked everywhere from living rooms to message boards to last week’s South Park episode.But he doesn’t deserve to be sued for every penny he has.

He will, however. That’s what attorneys are telling me. They’re saying Paterno — and Penn State, and probably Spanier and Curley as well — will be sued. And soon. And probably with success.

“In terms of the civil liability, they’re on the hook — and they should be,” said Jeff Herman, of Herman, Mermelstein & Horowitz, a Florida law firm that represents only victims of sexual abuse and won a $100 million judgment against a Catholic priest in Miami on Nov. 10. “It’s the same theory as lawsuits against the church. These guys are essentially enablers. As an enabler, they had the power to make kids safe. I don’t know what a jury would do [against Paterno], but juries know the best way to protect kids in the future is to hold the predators — and the institution or the individuals that protected the predator — responsible.”

Point taken. And Graham Spanier, the former school president who was earning more than $800,000 a year ago, had better start clipping coupons and acquiring a taste for ramen noodles. As the guy with the final say on campus, the buck stopped with him in 2002. I’d be fine with a jury cleaning out his wallet before moving on to the deeper pockets at Penn State.

But Joe Paterno? The man has paid what he owed. Paterno’s pockets may be all he has left, but they should be left alone.

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