Gathers Trial Reduced to One Issue; Tape Ruled Out

The list of issues in the death of Hank Gathers was pared to one Wednesday when Judge J. Gary Hastings ruled there was insufficient evidence to try Dr. Benjamin Shaffer on intentional infliction of emotional distress. Shaffer, however, remains a defendant for possible negligence.

In another ruling, Gathers’ aunt, Carole Livingston Gilmore, was removed as a plaintiff, the judge pointing out that she was not qualified to sue solely because of her relationship to Gathers.

But the attorneys for the defendants suffered a setback later in the day when Hastings ruled out an audiotape that recorded the sounds of their doctors treating Gathers outside the Loyola Marymount University gym after Gathers had collapsed on March 4, 1990, while playing in a postseason basketball game.

The remaining plaintiffs in the case are Gathers’ mother, Lucille, and his brothers, Derrick and Charles. At issue is possible negligent infliction of emotional distress by Shaffer, the Kerlan-Jobe Orthopaedic Group, which Shaffer worked for at the time of Gathers’ death, and Dan Hyslop, the staff physician at Loyola, where Gathers went to school.

The family’s charge of intentional infliction against Shaffer was based on his decision to move Gathers outside the gym rather than treat him on the floor where he collapsed. But Hastings could not find evidence that Shaffer’s actions were calculated to cause the Gathers’ family emotional distress.

“Ben is going to be happy to hear this,” said Richard Carroll, co-counsel for Shaffer, who is now an assistant professor of orthopedics at Georgetown University. “Nobody likes to be accused of intentionally causing harm to somebody else.”

But Carroll, co-counsel Marshall Silberberg and Hyslop’s attorney, Craig Dummit, were sent scrambling later when Hastings disallowed as evidence an audiotape. The tape, according to the attorneys, is a copy of the one that was built into the school’s defibrillator and began recording when the device was opened outside the gym. The attorneys say it recorded the sounds of the resuscitation efforts of Shaffer and Hyslop when they attended Gathers, as well as all the sounds surrounding Gathers during that period.

Bruce Fagel, the Gathers family’s attorney, questioned the chain of custody and authenticity of the tape. Silberberg said he plans to have the tape authenticated today and resubmit it as evidence.

“In Fagel’s opening statement he said that when Lucille Gathers was in the gym she heard Ben Shaffer say, ‘Damn, no pulse,’ “Silberberg said. “Shaffer said that when he was outside the gym, not in the gym. Then you hear Lucille scream. That is all on the tape.”

Hyslop said Wednesday that he ordered Gathers hooked up to the defibrillator monitor when they arrived outside the gym because Gathers had no pulse. Hyslop said he did not know that the defibrillator was an automatic-type that did not have a monitor and would not shock while motion was caused by the resuscitation efforts. He said they had to stop CPR for 10-20 seconds before the machine would function and deliver a shock.

Hyslop added that he had never been told by the Loyola athletic department what type of defibrillator it had purchased or even if one had been purchased.