“Court Finds For Concussion Inc. in California Public Records Act Case Against University of California — 730 New Pages Laid Bare in Cover-Up of Ted Agu’s 2014 Football Conditioning Death From a Sickle Cell Trait Attack,” September 9, https://concussioninc.net/?p=14572
by Irvin Muchnick
Judge Jeffrey S. Brand of Alameda County Superior Court held a social-distanced hearing onThursday, via a conferencing app, in which the Regents of the University of the California attempted to persuade him that this week’s tentative ruling — naming Concussion Inc. the prevailing party in our California Public Records Act case, and setting up our side for reimbursement of attorney fees and costs — was wrong.
Michael Goldstein, senior counsel in the UC Office of the President, appeared at the hearing many minutes late, without explanation, and began his argument with the admission that he had finished reading our motion papers, the last of which had been filed eight days ago, only the night before. The judge listened to Goldstein, heard from our own Roy S. Gordet, and promised a final ruling shortly.
In the case to date, Brand has not previously changed a tentative ruling after the losing party contested it.
The appalling tactics of the University of California in defending against our Public Records Act petition included, in the end, an almost comically desperate one. Seeming to calculate that the best defense is a good offense, the Regents last month filed a motion asking for their attorney fees to be paid by us. This was based on a wild theory, unsupported by any law, that my actions in suing the university and fighting through three and a half years of litigation were “clearly frivolous.” There is not a single published California Public Records Act case that went to appeal and shows an award of attorney fees in favor of a public agency respondent and against a requester-petitioner.
Let’s just say that Concussion Inc.’s case was the opposite of “clearly frivolous,” as those words are defined in lay dictionaries. Fortunately, the judge blew off this transparent attempt to retaliate against and chill an investigative journalist and to “send a message” to future critics.
For readers just tuning in, let’s review the dots that were connected by more than 700 new pages, all internal university documents, which are now in the public record but were previously withheld in our 2016 requests to the Berkeley campus compliance office.
The pages add a great deal to what was previously known about the cover-up of Ted Agu’s sickle cell trait. He died on February 7, 2014, during an extreme early-morning offseason conditioning drill under the direction of Damon Harrington, the strength and conditioning assistant for then head coach Sonny Dykes. Harrington’s charge was to help “toughen” the heretofore soft Golden Bears. “Culture change” is a common theme in narratives of football industry excess and avoidable death.
In the discovery and deposition testimony leading up to the Agu family’s $4.75 million lawsuit settlement with the Regents in 2016, the record showed deception by UC of the Alameda County medical examiner. This coroner, Dr. Thomas Beaver, originally ruled that the cause of death was heart failure.
Beaver had been pushed in that direction via an unsolicited and irregular contact — to put it bluntly, a lobbying effort — on the part of Dr. Casey Batten, the football team physician. In a phone call to Beaver just before the coroner cut into Agu’s body, Batten said the fatality looked like an open-and-shut case of “HCM,” or hypertrophic cardiomyopathy (heart failure).
What Batten didn’t get around to sharing with Beaver, yet was known by the university, was that Agu was one of the nearly 10 percent of African-American males who carry sickle cell trait. Unlike the better-known sickle cell anemia, this condition is mostly asymptomatic. Trait carriers, however, are uniquely susceptible to a deteriorating and potentially fatal collapse under great exertion. The syndrome has a name in the sports medicine literature: “ECAST,” or “Exertional Collapse Associated With Sickle Cell Trait.” The facts of Agu’s demise in stages during the conditioning drill on a campus hill were consistent with an ECAST event. They did not entail the kind of sudden collapse evident in a coronary episode. Testimony of eyewitness players confirmed that Agu first dropped to a knee during the conditioning drill, then minutes after that staggered, and finally and later still, was literally dragged to the finish line by the other members of his group (it was, in part, a team-building exercise).
Our public records findings cast Cal’s shady actions in an even more unflattering light.
A batch of documents on the very day of Agu’s demise involves the rehearsal of talking points for frequently asked questions put together by public relations crisis managers. Dr. Batten used these lines, almost word for word, at a live press conference just hours after Agu’s death. Pointedly, the talking points included a dodgy response, citing medical privacy grounds, that the university could not answer the question of whether Agu was a sickle cell trait carrier (athletic department officials were telling each other that “a rumor” to this effect was already in the air),
The public talking points aped by Batten were circulated during the exact period when Batten also was calling the medical examiner, withholding the sickle cell trait information, and pushing generic heart disease as the cause of death.
See “NEW TED AGU PAPERS: Background of University of California Team Doctor’s Deception of Coroner Is Revealed in Internal Emails,” September 11, 2018, https://concussioninc.net/?p=13231 (with linked documents from our public records case).
The chronology for another batch of emails was the period two months later, as Cal braced for the release of the coroner’s autopsy. A senior vice chancellor at the time, John Wilton, emailed the campus police chief, Margo Bennett, that it was time to bring into the picture “Dan M.” That was Dan Mogulof, the campus media relations chief. (See https://concussioninc.net/?p=13270.)
Giving new dimension to the term “chutzpah,” Chief Bennett would swear out a declaration to the court in our case in which she claimed that the Wilton email, with her name in the “to” line, was not really to her.
In March 2019, seven months after producing documents in accordance with a structure established by court orders, the UC Office of the President general counsel’s office shared with us two more pages, said to have been earlier “inadvertently omitted.” These were redacted emails between Dr. Batten and the chief campus counsel of the time, during the period right after the team physician’s misleading call to the medical examiner was exposed in deposition testimony, sending the Agu family and UC into final settlement talks. (See https://concussioninc.net/?p=13745.)