U-M is negotiating with survivors of former 'U' doctor Robert Anderson. Here’s what that means.

Monday, February 1, 2021 - 2:05pm

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Design by Aya Salim

 

Since the late University of Michigan athletic doctor Robert Anderson was named in numerous allegations of sexual abuse dating back to the 1970s, more than 70 lawsuits have been filed in federal court. Hundreds of former students allege Anderson sexually abused them while he was employed by the University from 1968 to 2003. 

Among these suits is a class action complaint which, unlike the individual lawsuits against the University representing specific plaintiffs, seeks to prosecute the University on behalf of all students affected by Anderson. 

The lawyers bringing the class action suit and those representing the University have been in mediation since mid-October. A settlement between the parties would offer monetary damages to the hundreds of former students Anderson allegedly abused. By including reform measures in their negotiations, it would also result in changes to the University’s sexual misconduct policy, which applies to all students, faculty and staff on the University’s three campuses.

In an interview with The Michigan Daily last September, Annika Martin, the interim class counsel for the class action suit, said the lawsuit is unique because it aims for institutional reform as well as collecting monetary damages for survivors. Martin has worked on previous class actions, including a now-settled case against George Tyndall, a former University of Southern California campus gynecologist, who sexually abused thousands of former patients.

“Class actions can ask for change, not just money,” Martin said. “So that was one thing that was really important because when you have these institutions like USC, like U of M, like churches, like youth organizations, sports organizations, the institution needs to make changes to make sure that these kinds of things can never happen again.”

When contacted by The Daily, University spokesman Rick Fitzgerald declined to comment on active litigation. 

In October 2020, Fitzgerald told The Detroit News that “substantial changes” have been made to the University’s sexual misconduct policies and procedures over the past few years. The interim sexual misconduct policy, which took effect in August 2020, received a mix of support and criticism from the campus community for including cross-examination between the accuser and accused in cases of sexual misconduct. 

Fitzgerald also told The Detroit News the University is continuing to review the recommendations from WilmerHale, the law firm hired by the University to investigate decades of sexual misconduct from former Provost Martin Philbert, as they consider further changes. In July, the WilmerHale report found Philbert committed numerous acts of sexual misconduct over the course of two decades at the University. The University has hired WilmerHale to investigate Anderson’s alleged behavior as well.

Given a string of additional allegations against faculty in recent years — including against two professors in the School of Music, Theatre & Dance, an English professor in LSA and, more recently, two professors in the College of Engineering — some student organizers argue the University’s policy changes are insufficient and hope the Anderson case will compel more robust change.

Business freshman Aditi Jain, co-president of the on-campus survivor advocacy group Roe v. Rape, said the University’s choice to appoint professor Jason Mars’ to teach a required computer science course this semester despite allegations of sexual misconduct can be compared to the University’s alleged failure to respond to warnings about Anderson in the years he was employed.

“This is just a repetition of exactly what happened with Anderson,” Jain said. “They’re not taking these … allegations seriously and something needs to be put in place to have real consequences for these (employees).”

The class action: One path to justice

In an interview with The Michigan Daily in September 2020, Martin explained class action lawsuits have their roots in the Civil Rights Movement of the 1960s, with Brown v. Board of Education of Topeka being one of the first. She said though class action suits have evolved over time, they have been used to create institutional reforms. 

“(Brown v. Board of Education) had a really laudable goal that has changed our society for the better, obviously,” Martin said. “What we were thinking (with the Anderson case) was ‘let’s go back to the way that (class actions) started and this idea of institutional change.’” 

Martin said one appeal of the class action option for survivors is the different tiers of participation claimants can choose — the only requirement is that one representative is willing to prosecute on behalf of other survivors.

The Anderson case could follow the same class action model used with survivors from the USC-Tyndall case, which included a three-tier setup. In the USC model, the first tier is the least demanding option, in which survivors can opt to be certified as a class member but do not have to share their story, either written or verbally. The second tier asked claimants to share their specific accounts in writing only, and the third tier requested claimants share their accounts in writing and during an interview. The eventual settlement provided baseline compensation for all three tiers of claimants.

The University has also offered its own avenues for survivors to seek remediation. In June 2020, the University began reaching out to nearly 300,000 former students in hopes that they would share information about Anderson’s misconduct.

In August 2020, the University filed a motion to dismiss the Anderson lawsuits, citing the statute of limitations as well as the fact that Anderson is deceased in arguing that the victims have no right to sue. The same week, a press release from University President Mark Schlissel and University Regent Ron Weiser (R), the University encouraged survivors to consider options outside the legal system. 

Elizabeth Abdnour, a lawyer with experience representing complainants in Title IX investigations, said while the motion to dismiss the lawsuits was a reasonable move from the University’s defense team, the suggestion that extralegal mediation would be better for survivors was not realistic.

“When defense counsel comments about what they think is best for plaintiffs and what’s in their best interest, I find it very paternalistic,” Abdnour said. “I think that survivors are best positioned to know what’s best for them.”

LSA sophomore Ceciel Zhong, an advocate for survivors’ rights on campus, echoed these sentiments, saying the University should give survivors as many options to seek justice and healing as possible.

“There are different methods for justice, but it should all be decided by survivors,” Zhong said. “We’ve also been hearing (about) the restorative justice kind of approaches, but before those approaches are fully-fledged, I don’t think that it is up to the University to say what is fair for survivors.”

Understanding the Anderson case in context: MSU’s Nassar and USC’s Tyndall

While horrific, the allegations against Anderson and the University are not necessarily unique. Michigan State University also faced multi-year lawsuits after hundreds of former patients of Larry Nassar, a former USA Gymnastics national team doctor and MSU team physician, alleged sexual assault. 

Karen Truszkowski, an attorney who specializes in representing students in Title IX matters, said the University of Michigan’s response to allegations against Anderson are vastly different from what she witnessed at MSU, in that the MSU administration continues to deny responsibility for their complicity. 

“The response (from MSU) was diametrically, completely the opposite: deny, deny, deny,” Truszkowski said. “And they still are denying it … to this day. It’s disheartening and very sad because when they … take ownership of it ... then it gives other people a little more courage and a little more impetus to be able to come forward. If they don’t take ownership of it, then nobody’s ever going to say anything. Why would they?”

No class action suit was ever filed against Nassar. In May 2018, a $500 million settlement was reached between MSU and the 332 survivors who filed individual lawsuits. 

Abdnour — an MSU alum who worked for their Title IX office as an investigator during the height of the Nassar case— said while she remains skeptical about whether MSU was truly held responsible, “hitting (MSU) in the pocketbook” served as a wake-up call for their administration.

“I don’t really think MSU has totally cleaned things up, but … I think there was a real wake up call for a lot of folks (in the MSU community at large),” Abdnour said. “But I’m not sure … that U-M has really had that same community-wide awakening … I think there’s still this impression that it was just a few bad apples.”

At USC, the first allegations of sexual harassment surfaced against Tyndall, a campus gynecologist, in May 2018. Alongside these allegations came details of USC’s efforts to quietly dismiss Tyndall after decades of complaints against him went unheeded.

In June 2018, a class action suit was filed against USC, which was a new approach to class actions that Martin said she and other class counsel “invented” to address institutional sexual assault cases. A $215 million settlement was approved in February 2020, which required that USC reform its sexual misconduct reporting system and methods for collecting information about potential misconduct. 

Martin said class action suits help ensure survivors receive a portion of the settlement. If lawsuits are all filed individually, it can result in a first-to-come-forward issue, in which not all individuals receive proportionate compensation if they make a claim after a settlement for an individual lawsuit is reached.

Two key areas of reform: prevention and response

Martin said the class action lawsuit will negotiate for reform in two key areas: prevention and response. Prevention refers to enacting campus community education on what constitutes appropriate and inappropriate behavior; response deals with the procedures in place once someone comes forward with a report of inappropriate behavior.

Advocates on campus have been campaigning for change in these same areas and say they are hopeful the class action suit will push the University to implement policy changes.

LSA senior Morgan McCaul, an organizer around gender-based violence prevention and survivors’ rights, wrote in an email to The Daily that the University needs to offer increased support services for survivors.

“There is a dearth of consistently available, confidential campus resources for survivors at this time,” McCaul wrote. “It is essential that the University consistently invest in and develop a robust list of prevention and response options for survivors and their communities; no one should wait for significant amounts of time to receive psychological care from CAPS, (Counseling and Psychological Services) for example, or feel unsure as to whether or not they’ll be believed when/if they speak up. There’s much to be done.”

Zhong focused on the response aspect of these reforms, saying she hopes to see more robust policies to protect complainants from having to see their alleged abusers.

“In this case, Anderson abused (patients) as a doctor, someone that a patient is supposed to trust,” Zhong said. “I think that there should be a no-questions-asked policy for anyone who came forward to be immediately separated from their alleged perpetrator.”

McCaul said survivors’ needs should remain central to the resolution of the case.

“I hope that when this process is said and done, the survivors of Anderson are given recognition and thanks for what they have done to make this institution and the surrounding community safer,” McCaul wrote. “I hope that they get their justice.”

Correction: a previous version of this article stated Ceciel Zhong was the outreach director for Roe v. Rape. Zhong no longer serves in this position.

Daily News Editor Calder Lewis contributed reporting.

Daily Staff Reporter Julianna Morano can be reached at jucomora@umich.edu.

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