Reporters Committee for Freedom of the Press Coverage of Their Amicus Brief in Our Support in ‘Muchnick v. Regents of the University of California’
March 26, 2022Pope Apologizes for Canada’s Abusive and Homicidal Missionary Schools. All Records Must Be Unsealed Regarding Charges Against Olympics Chieftain John Furlong – Irish School Colleague of George Gibney.
April 6, 2022
The university, however, appealed the lower court’s ruling to the Court of Appeal. Absurdly, UC even doubled down on the previously rejected claim that my legal action had been “clearly frivolous,” which would call for me to be on the hook for their fees. Our response to the appeal, filed by California appellate specialist John Derrick, https://concussioninc.net/?p=14949, was followed last week by an amicus, or “friend of the court,” brief on our behalf by the Reporters Committee for Freedom of the Press and the First Amendment Coalition, https://concussioninc.net/?p=14970.
Below, we’re reprinting, in succession, the three articles at Concussion Inc. that were directly driven by documents produced in this case – and were published immediately to drive angles of our coverage of the Agu death cover-up.
– Muchnick
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NEW TED AGU PAPERS: Background of University of California Team Doctor’s Deception of Coroner in 2014 Football Death Is Revealed in Internal Emails, September 11, 2018, https://concussioninc.net/?p=13231
by Irvin Muchnick
At the very moment in 2014 when the University of California-Berkeley was privately misleading the Alameda County medical examiner on the cause of the extreme conditioning drill death of football player Ted Agu — who suffered an exertional collapse associated with the sickle cell trait — officials under then athletic director Sandy Barbour were honing public talking points to anticipate and tamp down swirling questions pertaining to their knowledge that Agu carried the trait.
Fresh evidence of a cover-up is the major finding from an analysis of 194 pages of internal Cal emails and documents that the university produced last month in Concussion Inc.’s ongoing California Public Records Act (CPRA) lawsuit, which I filed last year.
Additional possible disclosures of internal Cal emails and other records loom in my CPRA case. A key remaining dispute is release of 141 pages of campus police reports relating to the Agu death. On August 8, Alameda County Superior Court Judge Jeffrey S. Brand ordered the parties to agree on a briefing schedule for arguments on that issue.
Among the previously hidden memos revealed in the new document production is a February 9, 2014, email — two days after the death — from Teresa Kuehn Gould, a deputy athletic director, to Barbour and six other department officials. Gould wrote that she was gathering “some of the basic questions we anticipate our staff getting.” The first of the eight questions: “Did Ted test positive for sickle cell trait?”
Earlier the same day, another deputy athletic director, Phil Esten, was being kept informed on the background of an anonymous poster’s comment at sfgate.com, the San Francisco Chronicle‘s website. Among other things, the poster claimed to have witnesses to Golden Bears team physician Dr. Casey Batten, head coach Sonny Dykes, and Barbour having “huddled up outside of the hospital (Alta Bates) to decide how to cover their asses.” A Cal Sports marketing employee, Andy Lempart, told Esten, “The person seems to have some sort of access based on their comments.”
In the emails released, athletic director Barbour did not admit to the possibility that anyone saw her in a huddle with other officials at Alta Bates Hospital. However, she did say “It’s certainly possible” that outsiders had access to the football facility in the midst of the chaos that day.
At http://muchnick.net/cal0818production.pdf, Concussion Inc. has uploaded ten key documents, totaling 48 pages, from the new 194-page production. These show Cal officials’ discussions, from the earliest point, of the public relations implications of the Agu death.
Late yesterday Dan Mogulof, UC Berkeley’s assistant vice chancellor for public affairs, said: “We reject in the strongest possible terms any suggestion or allegation that our physician, or for that matter anyone else working for the University, ever sought to deceive or mislead anyone in so far as this tragic case is concerned.”
Exposure of the background of the public talking points is significant because Dr. Batten is already known to have called Dr. Thomas R. Beaver, then the Alameda County medical examiner, within hours of Agu’s death. When their conversation came to light during the Agu family’s wrongful death lawsuit against the UC Regents, it helped set the stage for a $4.75 million settlement in 2016.
According to Beaver’s deposition testimony in that suit, Batten concealed Agu’s sickle cell trait (SCT) from the coroner and seemed to push an alternate theory that the 21-year-old pre-med walk-on team member had suffered generic heart failure — hypertrophic cardiomyopathy, or “HCM.”
At the deposition, Beaver was asked, “So sickle cell trait was not even in your mind at the time you talked to Dr. Batten the day of your autopsy and your cutting young Agu?” Beaver replied, “That’s correct…. [I]t didn’t even cross my mind.”
Asked about this at his own deposition, Batten replied haltingly and incoherently: “Umm, I don’t recall that I had a conversation where we – I think we did say something along the lines of it appeared to be, but it was – I think it was – it might have been after – I really don’t recall when I spoke with [Beaver].”
And after being confronted with fuller information during his testimony, Beaver — who by then had moved to a new position in Florida — took the extraordinary step of having his former office amend the original finding of the cause of death to state that HCM and a sickling episode were dual contributors.
(On May 29, 2016, we first reported on the Beaver deposition and the medical examiner’s reflection that he had been wrongly steered by Batten’s “preconceived idea about the cause of death.” See https://concussioninc.net/?p=11127.)
These new CPRA-liberated documents reveal one other important thing, according to Dr. E. Randy Eichner, the leading expert on sickling attacks (abbreviated in medical literature as ECAST, for Exertional Collapse Associated with Sickle Cell Trait). Campus public relations officials’ script for a live televised news conference on the day of the Agu death — a script Batten followed almost verbatim — also included details of the episode and the emergency medical response that had the perhaps unintended effect of reinforcing that the cause of death had to have been ECAST, not HCM.
Eichner is the retired football team physician at the University of Oklahoma, and he has consulted in more than 20 lawsuits revolving around football conditioning deaths, including Agu’s. Eichner and the Oklahoma head athletic trainer, Scott Anderson, are leading voices of a campaign to call attention to football conditioning abuses. The subject gained a new level of scrutiny with three deaths this year — most notably that of Jordan McNair at the University of Maryland in a scenario strikingly parallel to Agu’s at Cal in its suggestions of a “toxic culture” in the conditioning program.
A quickly generated university-commissioned investigation of McNair’s death already has led to Maryland’s cutting ties with conditioning coach Rick Court and evaluating the future of head football coach DJ Durkin and others.
All told, there have been 37 documented non-traumatic, non-game fatalities in college football since 2000. Twelve of these deaths were ECAST events. Eichner believes that ECAST is grossly underreported, at the high school level in particular, because of low awareness. Some deaths are wrongly attributed to basic heat strokes or heart attacks, Eichner says; worst of all, some are written off as “not football-related.”
In contrast with Maryland, Cal did not appoint an outside investigation of the Agu fatality. Instead, the university commissioned two general reports on the football conditioning program. The second one, ordered after the first was roundly criticized for its slapdash quality and the conflicts of interest of the co-authors, took nearly two years before being released. At the direction of Nicholas B. Dirks, the former chancellor, the instructions for the second report were explicitly changed, after the initial announcement, to restrict the co-authors — Dr. Elizabeth Joy, past president of the American College of Sports Medicine, and Wayne Brazil, a retired Berkeley law professor — from examining past events or holding accountable former coaches, trainers, or medical staff.
In a story whose accuracy is not disputed by the university, Concussion Inc. reported that a Cal football player carrying SCT had a scary echo of the Agu death at the first day of this year’s winter conditioning in January — prompting a 911 call and two nights of hospitalization. This student-athlete was diagnosed with a mild-to-moderate case of rhabdomyolysis, a condition in which muscle tissue deadened by overexertion gets released into the bloodstream. Rhabdomyolysis, which also was cited in the hospitalization of three Oregon football players last year during offseason conditioning, can cause kidney failure or death. (This Cal player did recover, resume conditioning, and play in the spring practice game. See https://concussioninc.net/?p=13115.)
Agu’s fatal collapse on February 7, 2014, came in early morning darkness during a team run on a campus hill, which was combined with a rope-pulling exercise by competing groups. The unorthodox drill was devised and supervised by Damon Harrington, conditioning assistant to head coach Dykes.
According to the Centers for Disease Control, one out of every 12 African-Americans carries sickle cell trait, which is not the same as the better-known sickle cell anemia. Carriers can lead normal lives but need to be monitored closely for sudden attacks under great exertion. Cal and other football programs screen for SCT, but student-athletes also can opt out of screening.
Agu was one of three known SCT carriers on the Bears squad at that time. In testimony in the family lawsuit, Cal coaching, training, and medical staff would say that Agu was in distress only once, at the very end of the running-rope pull drill. Their testimony, however, was consistently contradicted by that of eyewitness players, who told of Agu collapsing multiple times throughout.
ECAST expert Eichner told me that he was watching his medical counterpart Batten speak at the news conference the day of the death. Our new Cal document production includes the preparation of a script of talking points. Eichner’s extensive contemporaneous notes confirm that Batten parroted almost word for word the lines for him circulated beforehand by Wesley Mallette, the associate athletic director for communications.
Eichner’s notes show that Batten said, in part:
“Toward the end of the workout, the medical staff noticed Ted was having difficulty completing the workout, so as a precaution, his activity was immediately stopped and he was attended to. He was hydrating, responsive, talking. As a precaution, they placed him on a cart and took him 150 yards to the medical facility in the stadium for observation and treatment. The whole ride [to the Simpson football complex], he was communicative and alert. As they reached the north tunnel, he became unresponsive. EMS [Emergency Medical Services] was immediately alerted and high-quality CPR [cardiopulmonary resuscitation] was started and continued until EMS arrived. An AED [automated external defibrillator] was attached by the medical training staff to monitor his heart, and EMS, Berkeley fire and paramedics, arrived and took him to the ER, and that’s when I was alerted, and we’re still gathering further details.”
According to Eichner, this very explanation demonstrates that “this is ECAST, not HCM.” He explained:
“The collapse syndrome from ECAST is different than from HCM. In ECAST, the muscles give out first, as the heart beats strongly. So when the athlete goes to the ground, as Ted did on that hill, he can still talk and follow commands. Over the next ten or 20 minutes, however, his condition can deteriorate, from a metabolic storm caused by the explosive muscle breakdown (rhabdomyolysis, from exertional sickling) that finally stops even his normal heart.”
In an HCM event, Eichner said, there is a vastly different and more truncated timeline. “In HCM, the heart is structurally abnormal and the collapse is from a dire cardiac arrhythmia. So the athlete hits the ground hard, typically says nothing, is unconscious in seconds, and unless his heart is shocked back into normal rhythm, is soon dead. It’s all over in seconds.”
What Batten described, Eichner emphasized, “was the ECAST syndrome, a steady deterioration over many minutes, not the HCM syndrome, an ‘instantaneous’ death.”
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In connection with Concussion Inc.’s continuing quest for 141 pages of campus police reports in the Agu death, there is also important deposition testimony from the family lawsuit raising questions of university malfeasance. In 2015, Lieutenant Riddic Bowers, head of the coroner bureau of the Alameda County Sheriff’s Office, agreed with a presentation by the plaintiffs showing that the university had shared with the office only 29 of the since-documented 141 pages of such reports.
In my current public records case, UC did not disclose the existence of anything resembling these 141 pages, either in response to my 2016 requests to the campus public records compliance office or in an additional negotiated “algorithm” search of documents in the early stage of litigation in 2017. In a case management report, the university told Judge Brand that if such a police document does exist, it would not be protected from disclosure under the Federal Educational Records Privacy Act; the university asserted, however, that it would be covered by sections of the state public records act exempting files of law enforcement agencies.
At an August 1 hearing, UC Office of the President senior counsel Michael Goldstein conceded the existence of what Goldstein called “a binder,” containing approximately 141 pages and apparently corresponding to our description.
Parts of the disputed police records may be what campus police chief Margo Bennett was referencing in a March 20, 2014, email — earlier disclosed during the CPRA case — when she wrote to a university official, “please don’t share the papers … I am happy to give a verbal briefing, but not documents. The case is not available for a PRA request and I’d like to keep it that way.”
Concussion Inc. already has independently acquired and published what may be one of the documents in the 141-page set: statements to campus police, following Agu’s death, in which Bears backup quarterback Joey Mahalic linked the fatal extreme drill to the culture and coaching methods of conditioning coach Harrington. The Mahalic account included the story of the criminal attack, three months prior to the death incident, by player J.D. Hinnant on teammate Fabiano Hale after Hale skipped a conditioning session. In the account to campus police (and to university officials as high up as former senior vice chancellor John Wilton), Harrington had punished the athletes present by instituting extra sets of drills and had encouraged them to hold accountable the absent teammate; they were to do so “by any means necessary,” Harrington added, slamming a fist into a palm for emphasis.
Hale was hospitalized with a concussion in the assault by Hinnant, who nonetheless was allowed by the coaches to suit up for the home game against Arizona the next day. Ultimately the Alameda County district attorney would “defer” criminal charges against Hinnant, and they were effectively expunged after Hinnant expressed remorse and accepted campus administrative discipline, which included community service.
*****
Former team physician Batten is now affiliated with the Los Angeles Rams of the National Football League through the Kerlan-Jobe Orthopaedics Clinic at Cedars-Sinai Medical Center. Batten did not respond to a request for comment for this article sent through Cedars-Sinai.
Former athletic director Barbour now holds the same position at Penn State. She did not return an email requesting comment, which was copied to Jeff Nelson, the Penn State athletics director of strategic communications.
Former head coach Dykes signed a multiyear, multimillion-dollar contract extension during the same period when the Agu family lawsuit was being settled in early 2016. Dykes would be fired in January 2017 for unrelated reasons. He is now the head coach at Southern Methodist.
Former conditioning assistant Harrington’s contract was renewed each year of the Dykes tenure. Harrington now holds the same position at Grambling State.
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2017 op-ed article for theDaily Californianon my Public Records Act lawsuit:http://www.dailycal.org/2017/04/25/lawsuit-uc-regents-emblematic-issues-facing-college-football/
Second op-ed article for theDaily Californian(published May 4):http://www.dailycal.org/2018/05/03/years-later-questions-remain-regarding-football-player-ted-agus-death/
“Explainer: How ‘Insider’ Access Made San Francisco Chronicle and Berkeley J-School Miss Real Story Behind Death of Cal Football’s Ted Agu,”https://concussioninc.net/?p=10931
Complete headline links to our Ted Agu series:https://concussioninc.net/?p=10877
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NEW TED AGU PAPERS: As Public Records Act Case Awaits Court Moves on 141-Page Campus Police Report in 2014 Football Death, A New Outline of Internal University of California Emails Is Revealed, September 21, 2018, https://concussioninc.net/?p=13270
by Irvin Muchnick
Today I turn to another batch of emails — totaling nearly 400 pages — that UC produced earlier this month.
As noted here three days ago, an important case management conference is set for next Thursday before Judge Jeffrey S. Brand. We are asking the court to set a briefing schedule for the question of whether UC should be forced to produce a 141-page Berkeley campus police report, or collection of reports, generated in the wake of the Agu fatality. We have informed the court, as we earlier did the university, that we independently obtained the text of the table of contents of that document. There will be another report here on this prior to next week’s hearing.
The September document release, the subject of this story — part of an earlier order by Judge Brand for the respondent to disclose additional material “on a rolling basis,” as it is identified and cleared — is the potential subject of a future dispute in the case. This is because, in almost all the emails offered up, the university has given up only the date/time, “from,” “to,” “cc,” “subject,” and (where applicable) “attachments” fields at the tops of emails, with the claim that all or the bulk of their text content is subject to attorney-client privilege. But for right now, since we have requested the court’s focus on the 141 pages of campus police documents and to suspend all other activity in the case, we are simply analyzing what we received.
The volume of the production is not as large as it sounds. These are group emails with a lot of non-substantive forwarding and concatenating. By my crude count, there is a total of 55 base emails from two broadly defined periods:
- anticipation of the Alameda County medical examiner’s findings of cause of death in the Agu autopsy, and the development of talking points and public relations as the coroner’s report gets released to the public;
- the end game of the Agu family’s wrongful death lawsuit against UC, which resulted in a $4.75 million settlement — communications laying the groundwork for approval of the settlement at an “interim” (and hence non-public) meeting of the board of regents, and coordinating the announcement and messaging with the plaintiffs and their attorneys.
As I said, there is almost no text in this production below the subject lines. In one exception, on April 21, 2014, Cal athletic director Sandy Barbour writes to aide Ryan Cobb and football team physician Dr. Casey Batten, “Not sure what this means for how we handle the team.” The subject line is “Ted Agu – Cause of Death.”
Later the same day, John Wilton, then the vice chancellor for finance and administration, writes to campus police chief Margo Bennett and another recipient, “I wonder if we should bring Dan M into the picture?” Dan Mogulof is Cal’s assistant vice chancellor for public affairs — the chief campus media relations person.
All told, there are around 40 total recipients of the collection of emails: athletic department and central administration officials (including the late chief campus counsel, Christopher Patti, whose presence is undoubtedly central to the claim of attorney-client privilege), others at the UC office of the president, and outside lawyers and consultants.
Of keen interest to the Agu narrative are the emails involving athletic director Barbour and team physician Batten. What happened before and after Agu’s death has long been exposed as a cover-up in at least three aspects.
Chronologically, the first of these was the cover-up of the November 1, 2013, criminal beating of player Fabiano Hale by teammate J.D. Hinnant, on the watch of Damon Harrington, the assistant coach for strength and conditioning under then head coach Sonny Dykes. Harrington also designed and supervised the February 7, 2014, punishment drill that killed Agu, and whistleblower testimony ties the two events to Harrington’s intentional shift in the culture of his conditioning program.
The second cover-up was Batten’s misleading of the medical examiner with respect to Agu’s status as a sickle cell trait carrier; this caused, for more than a year, an official finding of cause of death as generic heart failure when it was actually an exertional collapse associated with the sickle cell trait.
The third cover-up was the concealment from the county sheriff (and I would argue, the district attorney as well) of the bulk of the 141 pages of campus police reports that are now the focus of my CPRA case.
What we learned from the university’s August “rolling basis” document production is that there is no longer a shadow of a doubt regarding Batten’s misconduct. At the exact time the team physician was, in adherance to a university scripted Q&A, warding off media questions on the known fact that Agu was a sickle cell trait carrier, Batten was lobbying on the phone with coroner Thomas Beaver to nudge him toward a quick finding of “hypertrophic cardiomyopathy” — and not enlightening Beaver that Agu carried the trait.
On September 12, I wrote, “Cal Football Doc Casey Batten Spun, Lobbied, Misled Coroner in Ted Agu Death. Only Question Is: Did Batten Do This on His Own?”, https://concussioninc.net/?p=13240.
This new email batch could bring us closer to answering that question — that is, a better understanding of any level of institutional coordination or collusion or conspiracy.
Again by my crude count, Barbour is involved in 10 of the newly revealed 55 emails. She was possibly in an additional 25, if the recipient “Athletic Departmental” refers either to Barbour personally or to a email distribution to a group of department staffers. (Barbour is now the athletic director at Penn State.)
Batten is found in 32 emails. (He is now on the medical staff of the Los Angeles Rams.)
On April 22, 2014, deputy athletic director Phil Esten emailed Dr. Batten, “Can you give me a call when you have a second? Cell is best — thanks.”
On June 9, 2014, Batten initiated emails to Mark DeCoulode, a campus cop, and to Barbour, campus counsel Patti, police chief Bennett, and Dr. Brad Buchman of University Health Services.
On February 9, 2016, at the start of the family lawsuit settlement end game, Batten initiated an email to Buchman, with cc’s to a host of Berkeley campus and office of the president officials, with the subject “Agu – Draft Media FAQs – CONFIDENTIAL/ATTORNEY-CLIENT PRIVILEGED.”
On March 30, 2016 — just prior to the settlement announcement — Batten sent an email to lawyer Patti only with the subject “ATTORNEY-CLIENT PRIVILEGED INFORMATION TIME SENSITIVE: Fwd: TIME SENSITIVE: Agu / Press Release.”
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2017 op-ed article for theDaily Californianon my Public Records Act lawsuit:http://www.dailycal.org/2017/04/25/lawsuit-uc-regents-emblematic-issues-facing-college-football/
Second op-ed article for theDaily Californian(published May 4):http://www.dailycal.org/2018/05/03/years-later-questions-remain-regarding-football-player-ted-agus-death/
“Explainer: How ‘Insider’ Access Made San Francisco Chronicle and Berkeley J-School Miss Real Story Behind Death of Cal Football’s Ted Agu,”https://concussioninc.net/?p=10931
Complete headline links to our Ted Agu series:https://concussioninc.net/?p=10877
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”Inadvertently’ Omitted Documents in California Public Records Act Case Show Berkeley Football Team Doctor Casey Batten — Point Person in the Ted Agu Sickle Cell Trait Death Cover-Up — Corresponding With Chief Campus Counsel, April 1, 2019, https://concussioninc.net/?p=13745
PREVIOUSLY:
“University of Oklahoma Athletic Trainer: From the Moment of Ted Agu’s Death, Cal Football Staff Feared Implications of a Finding of Sickling Collapse, Instead of Coronary,” March 25, 2019, https://concussioninc.net/?p=13743
Complete headline links to our series on the Ted Agu death cover-up (beginning November 2013 – before Agu’s death): https://concussioninc.net/?p=10877
by Irvin Muchnick
(I am back from a hiatus caused by a random violent street crime against two family members and myself on March 24. We are all doing better. Thank you to friends who learned about the incident and have sent along good wishes.)
Dr. Casey Batten, Cal football team physician who executed the University of California’s cover-up of the cause of Ted Agu’s 2014 death by misleading the coroner and withholding information about the dead student-athlete’s sickle cell trait, communicated directly with the chief campus counsel in December 2015 in documents that were belatedly released just last week in Concussion Inc.’s state Public Records Act lawsuit.
In forwarding the email exchange to my attorney Roy S. Gordet, UC claimed the two additional documents were “inadvertently” not included in a September 6, 2018, batch of almost entirely redacted records, for which the university is claiming attorney-client privilege and exemption from public release.
Like almost all of the rest of the assertedly privileged earlier production, these new documents are blacked out except for the “To,” “From,” “cc,” “Subject,” and “Attachment” lines. And unlike the earlier production, this one additionally blacks out the title of an apparent attachment document — suggesting that an unnamed attachment was part of the exchange.
On December 15, 2015, Christopher M. Patti, the chief counsel for the Berkeley campus, wrote to Batten, the team doctor, in an email cc’d to “Athletic Departmental.” The Athletic Departmental moniker is believed to correspond to a list of top athletic department officials. (Patti would die tragically in an accident in 2017.)
Later the same day, Batten replied to Patti in an email cc’d to Matt Conant and Jeff Hosking (outside lawyers who were defending the Agu family’s wrongful death lawsuit against the university, which would settle the next year for $4.75 million), Ryan Cobb (an associate athletic director), and Brad Buchman (director of the campus University Health Services). The entire substance of the exchange is redacted.
We have uploaded facsimiles of these documents to http://muchnick.net/batten-patti-exchange.pdf.