Gathers Family Might Not Testify : Jurisprudence: If mother and brothers don’t take the stand, it might end the case.

The three-week old trial dealing with the death of Hank Gathers took a sudden twist Tuesday when the Gathers family members who are suing two doctors for negligence decided they do not want to testify, which might put an end to the case entirely.

Derrick Gathers, Gathers’ brother, was scheduled to testify Tuesday morning in Superior Court in Torrance but did not show up. Gathers’ mother, Lucille, and another brother, Charles, were scheduled to fly to Los Angeles from Philadelphia on Tuesday to testify after Derrick, but did not board the flight.

It is not clear why the Gathers’ family members do not want to testify and their attorney, Bruce Fagel, said he would not discuss it until possibly today. Lucille Gathers, reached by phone in Philadelphia, said she would not answer any questions. But some of those involved say that Fagel has a weak case without the testimony of the family members, who are claiming that negligence by the doctors who attended to Gathers courtside the night he died caused them emotional distress.

Judge J. Gary Hastings recessed the court until today at 1:30 p.m. to give the family time to rethink its position. But if the Gathers family refuses to testify and does not give Fagel authority to ask for a dismissal, the decision on whether the case continues will be Hastings’.

“I’ve had to go to the court and tell them what is going on and the judge, on his authority, may have to make the decision,” Fagel said. He would not explain or comment further on the case.

If Derrick Gathers shows up to testify and the remaining family members arrive from Philadelphia, the case will probably proceed. However, as of late Tuesday, Derrick had not reviewed his testimony with Fagel.

Hank Gathers, a basketball star at Loyola Marymount University, collapsed March 4, 1990, while playing in a postseason game and died shortly thereafter of a heart problem.

The family members who witnessed his death are suing Ben Shaffer, the doctor-on-duty at the game from the Kerlan-Jobe Orthopaedic Group, and Dan Hyslop, Loyola’s staff physician in its student health center. Kerlan-Jobe is also named in the suit.

Fagel had originally scheduled a medical expert to testify Tuesday but decided Friday that the jury had heard enough medical evidence. Instead, he delayed the expert and scheduled the Gathers family members to testify.

When Derrick Gathers did not show up Tuesday morning, the attorneys met privately with Hastings. Fagel also met with Hastings alone.

Hastings told the jury that there were some witness scheduling problems and he was allowing some time to work out the schedule.

Craig Dummit, the attorney for Hyslop, said he was not told in court that the Gathers family was reluctant to testify but he anticipated it.

So he issued a notice to Lucille and Charles, who live in Philadelphia, which required their presence at the trial. The notice, which is like a subpoena, would ensure that Dummit could call them as witnesses.

“Bruce (Fagel) made it clear to people before the trial started that his clients wanted to settle and did not want to go to trial even before they settled the other (issues) and got a large amount of money,” Dummit said.

“I figured they wouldn’t want to return to Los Angeles to testify, which is understandable since it carries a very bad memory for them.”

The portion of the suit that settled involved wrongful death claims filed by Lucille Gathers and dealt with the moral responsibility of Loyola officials and the treatment Gathers received by the doctors before his death. From that settlement, Lucille received $895,000 and Aaron Crump, Gathers’ 8-year-old son, received $1.505 million.

Aside from Dummit’s notice to the Gathers family, there is no legal basis for the case to be dismissed if they refuse to testify. However, since their testimony is crucial to the suit, it brings in to question their desire to proceed.

That answer should come this afternoon.