Jury Finds Against Test for Boxers

In what an attorney called a rebuke of California’s neurological testing program for pro boxers, a Los Angeles Superior Court jury awarded boxer Dio Colome $1,235,500 in damages Friday.

The jury indicated that the money compensated Colome, of the Dominican Republic, for what it ruled were improper procedures when Colome failed the state-required neurological test in 1988.

Colome, 27, claimed in his $25-million suit against the state that his test was improperly administered, that he should not have been required to take it on Feb. 2, 1988, and that the test itself is educationally and culturally biased.

Colome, who testified that he has only a second-grade education, failed the test several days before he was to box in the semifinals of a Forum tournament, where he stood to win $100,000.

Instead, Colome was denied a license and not permitted to box. He was told of the test result, he said, the day he was to box. Later that day, he punched a door in anger, breaking his right hand.

Several boxing experts testified that Colome would have won the tournament and would subsequently have earned larger purses.

The jury, which twice studied videotapes of Colome’s fights, agreed. It awarded him $500,000 as compensation for lost earnings. He was also awarded $85,500 for being denied the opportunity to box during the rest of the 1988 Forum tournament.

He was further awarded $225,000 from the Forum tournament for pain and suffering and $425,000 for overall non-economic damages.

The jury found, however, that Colome was partially responsible for limiting his future earnings by breaking his hand, and subtracted 9% from either the $500,000 figure or the grand total, to be determined by the judge in the case, Ernest George Williams.

In a companion action, Colome’s manager-trainer, Jimmy Montoya, was awarded $200,000 for his lost earnings after Colome could not be licensed.

Friday’s verdict was delivered after the six-man, six-woman jury had deliberated six days and ended a 35-day trial during which 23 witnesses testified.

Michael Hughes, deputy attorney general who represented the state, said the state would appeal. So did attorney Richard Hall, who represented five defendants:

--Ken Gray, former executive officer of the California Athletic Commission.

--Frederick Flynn, a neurologist who designed the test for the commission in 1986.

--Richard Drew, a Sacramento neuropsychologist who administers the testing program for the commission.

--Kimberly Kelly, a UCLA neurologist who was assigned to administer the test to Colome.

--Armando Morales, a UCLA professor of social work.

Kelly was to have given the test to Colome, but instead assigned Morales, who speaks Spanish, to administer the mental status portion of the test to Colome.

Carl Douglas, Colome’s attorney, made much of the fact that Morales is neither a physician nor a neurologist.

State law requires the test to be administered by “a licensed physician and surgeon who specializes in neurology or neurosurgery.”

“Obviously, the fact that Morales didn’t have the right initials after his name hurt us,” Hall said.

Douglas said he hoped the verdict would deliver a message to the athletic commission.

“I doubt if the state will accept the broader implication of this case, that (the test) is not a valid way of testing boxers of low education levels and those who speak only Spanish,” he said.

Colome was jubilant.

“I am happy,” he said. “Now I will box again, right away.”

The test has been controversial since 1986, when the state legislature directed the commission to begin testing boxers.

Nearly everyone in California boxing supports the intent of the test, to prevent the licensing of boxers who show signs of boxing-related neurological impairment.

But the test itself and its administration by the commission have been under almost constant criticism.

A recent accounting showed that 3,630 boxers had been given the test since 1986 and that 325 have failed it. Of the 325, 150 also failed the backup exam, called the neuro-psyche.

A failed test nearly resulted in cancellation of a Forum card in 1990. World bantamweight champion Raul Perez, a Mexican with a third-grade education, flunked the test for a second time at midafternoon on the day of his title fight, against Gaby Canizales.

He was given a third test four hours before his fight and passed it. Normally, boxers are given two chances to pass the exam. The Forum’s John Jackson and Ten Goose Boxing promoter Dan Goossen have called for the testing program to be altered so that a boxer who fails can instead be examined by any state-certified neurologist.

Currently, the second test must be administered by a commission-designated neurologist.

The California test came under direct attack by the Nevada Athletic Commission in August, 1990.

Nevada, fearing a liability problem if it licensed boxers who had flunked the California exam, commissioned a panel of neurologists to study the California test.

The panel, after a two-year study, declared the test “not valid” for detecting boxing-related neurological impairment.

Further, panelists said nine boxers who had failed the California test were given “standard” neurological exams in Nevada and all passed. The exam also was given to 15 non-boxers, and 10 failed.

After the Nevada report, Drew defended the test. He said the Nevada panel had not scored and graded the tests properly.

“Our tests are given, scored and interpreted inside a rigid set of parameters, and if they’re administered outside those parameters, then the results are not valid,” he said.

In 1987, three Southern California neurologists who were administering the tests for the California Athletic Commission criticized the tests in a Times story. All three later were fired by Gray, at the time chief executive officer for the commission. He has since retired.

“What it comes down to is that a boxer could pass the exam and still walk out of our office with a subdural hematoma or some other type of boxing-related brain injury that we couldn’t detect,” said one of the neurologists, Laurence Carnay.

“I think the exam is fairly worthless,” said another, Clark Espy, who testified for Colome during the trial. “But it’s a start . . . the start of a consciousness that we need some kind of early warning system to spot the kind of brain damage boxers get if they box too long.”

The test has never had across-the-board support from the California Athletic Commission or its staff. One former commissioner, Raoul Silva of Garden Grove, said the exam was not educationally or culturally sensitive.

“I teach English to Spanish-speaking immigrants, and the education level of some of them is so low they don’t even know how to hold a pencil,” he said. “How can a person like that be expected to be a good test-taker?”