No Settlement in Gathers Suits : Litigation: Family attorney seeks videotape from ESPN to support case and is refused.


In the two months since the family of Hank Gathers filed a $32.5-million suit charging negligence against 14 defendants, the 29 attorneys involved have not settled and are apparently headed to court. But a secondary issue dealing with First Amendment protection may land some of them in court as well.

"Because the case will probably go all the way through trial, the facts (surrounding Gathers' death) will all come out," Gathers' family attorney Bruce Fagel said Thursday in a news conference he called at his Beverly Hills office.

"On July 18 the answers (documents and questionnaires) are due from the defendants. . . . From that point on it is going to be a blood bath."

Gathers, a Loyola Marymount basketball player, collapsed March 4 at Gersten Pavilion while playing in a West Coast Conference tournament game. He was pronounced dead 1 hour 40 minutes later at Daniel Freeman Marina Hospital. An autopsy determined he died from cardiomyopathy, a heart disorder.

Martin Burke Jr., an attorney for Loyola Marymount, one of the defendants, said that defense attorneys believed it was premature to reasonably evaluate the circumstances of the case.

"It is strongly headed for litigation in court," Burke said.

But an additional issue raised by the Gathers' suit could provoke a Constitutional battle between ESPN, which had at least one camera operator who allegedly videotaped Gathers' collapse and the subsequent events, and Fagel, who has subpoenaed the unedited tape from the network. Fagel says he needs the unedited tape to determine what kind of care Gathers received when he collapsed, as well as the elapsed time.

"The stations that had cameras at Gersten Pavilion that night were KTLA, KCBS, KNBC and ESPN," Fagel said. "They will not turn over anything not already broadcast.

"ESPN is challenging our subpoena, and even if they lose, they say they will take it to the U.S. Supreme Court."

C. Stephen Davis, an attorney for ESPN, said the network provided Fagel with a copy of the videotape that the network aired. But Davis cited the California Shield Law for not giving him the unedited tape, which protects any unpublished information obtained for communication to the public.

"We're prepared to preserve our rights and those of any journalist under the Constitution," Davis said, adding that it's premature to predict the legal developments.

"Fagel implied that sports is not entitled to the same Constitutional protection as other news," Davis said. "Well, what Fagel wants footage of is emergency efforts to revive a human being. That activity is not sports but the tragedy of a dying athlete."

Fagel filed suit April 20 on behalf of Gathers' mother, Lucille, brothers Derrick and Charles and an aunt, Carol Livingston.

An additional suit--for an unspecified amount--was filed June 8 on behalf of Gathers' estate and Gathers' 6-year-old son, Aaron Crump, who lives with his mother, Marva Crump, in Philadelphia. It was filed by Philadelphia attorneys Martin Krimsky and Adrian Moody and Los Angeles attorney Ken Wolf.

A motion to consolidate the suits will be heard July 6 in Los Angeles Superior Court.

There are six law firms and about 25 attorneys involved in the representation of the 14 defendants, who include four Loyola Marymount employees and seven doctors.

C. Snyder Patin, an attorney for defendants Dr. Vernon Hattori and Hattori's company, Apex Cardiology, said expert testimony will be required to determine if anyone is responsible for Gathers' death, besides it being an "act of God."

"There is no reason to meet with Mr. Fagel if there are not going to be any (settlement) offers," Patin said.

"I have no reason for meeting with him because my clients do not think they did anything that was below the standard of care that caused or contributed to the death of Hank Gathers in any manner. They have therefore refused to give their consent to any offer of settlement being made at this time."

Fagel said that because both suits were filed on a legal "fast -track," the case should come to trial by next spring.

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