Stringer case at turning point

Kelci Stringer’s $100 million wrongful death lawsuit against the Minnesota Vikings has been whittled from 11 claims to three over the past 13 months.

Today, Hennepin County District Judge Gary Larson will listen to the Vikings’ arguments to end the case with a summary judgment. His ruling, which might not come for a week or two, could effectively finish Stringer’s lawsuit.

Kelci Stringer claims Vikings doctors and trainers were grossly negligent when caring for her husband, Korey, a Pro Bowl right tackle who died of heatstroke on Aug. 1, 2001, after collapsing in training camp. She claims the team is liable for the employees and that the Vikings intentionally inflicted emotional distress on the family by releasing confidential information about Stringer to the press.

John Goetz, a Minneapolis attorney who has handled many multi-million-dollar verdicts and settlements related to personal injury and wrongful death suits, said Kelci Stringer needs just one of those claims to get past the summary judgment phase to sway the momentum of the case.

"If the plaintiffs get by the motion for summary judgment, I think there will be serious settlement discussions, and I’d be surprised if this case ever went to trial," said Goetz, a partner at Schwebel, Goetz & Sieben.

"I think (the Vikings) would put quite a bit of money on the table rather than risk taking it to a jury. If (Larson) denies motions on any of those claims, that would be a big victory for the plaintiffs."

If the claims against the Vikings and the three doctors are dismissed, only one allegation would remain — a malpractice claim against Dr. David Knowles, the Vikings’ training camp physician since 1970, and the medical professionals who cared for Stringer at Immanuel St. Joseph’s hospital in Mankato, Minn., on July
31 and Aug. 1, 2001.

Over the past week, attorneys for the Vikings and the Stringer family have gone back and forth on the role ephedrine might have played in Stringer’s death.

A dietary supplement containing ephedrine, a substance being investigated by the federal government because of links to heart attacks, stroke and high blood pressure, was found in Stringer’s locker after he died.

The Vikings contend Stringer is responsible for his death because he used ephedrine, despite warnings from the NFL, and reported to camp out of shape.

The family argues there’s no evidence Stringer used the controversial supplement on the morning of his collapse, and that supplement use was common, and even encouraged, in the Vikings’ locker room.  Ephedrine was not found in Stringer’s body in an autopsy; the Vikings contend it was not among substances tested for.

Vikings attorney Jim O’Neal said the core of the case remains unchanged: that the Vikings cannot be sued because Minnesota workers’ compensation law protects an employer from lawsuits by an employee or an employee’s family.

"We are moving to have the last three claims against the Vikings defendants be thrown out as a matter of law," O’Neal said.

There is a narrow exception in the case of gross negligence. O’Neal and Kelci Stringer’s attorney, Paul DeMarco, disagree on the definition of that standard.

George Dunn, a partner with Tilton & Rosenbaum, a medical malpractice and personal injury firm in St. Paul, offered this definition based on Minnesota law:

"Negligence is a failure to act appropriately in a given situation, as a reasonable person would," Dunn said.

"Gross negligence is an extra high degree of negligence, and occurs when someone acts or fails to act without taking into consideration the slightest attention to the consequences, or uses no care at all."

DeMarco said the Stringer family is confident it can prove gross negligence.

"If what the Vikings trainers did to Korey Stringer is not gross negligence, there is no such thing in Minnesota," DeMarco said.

The Stringer family has targeted Knowles and Paul Osterman, an assistant trainer no longer with the team.  They contend Knowles didn’t treat Stringer for heat illness on July 30, the day before he collapsed, and didn’t follow up with him.

They argue that Osterman, who spent more than a half-hour with Stringer in an air-conditioned trailer after his collapse, was grossly negligent in his care.

The Vikings and the Stringer family agree on one crucial point: The doctors shouldn’t be protected under the workers’ compensation law.

The Vikings argue that Knowles, Dr. David Fischer, the team’s medical director, and Dr. Sheldon Burns, the team’s medical consultant, are not team employees but independent contractors.

That’s significant because doctors covet the protection of gross negligence afforded to other defendants who are clearly established as team employees — coach Mike Tice, former coach Dennis Green, medical consultant Fred Zamberletti and trainers Chuck Barta and Osterman.

If Knowles, Fischer and Burns are considered independent contractors, the Stringer family would need to show only negligence, not gross negligence.

Stephen Befort, associate dean of the University of Minnesota law school and author of a book on employment law, said the court still could rule that the doctors are protected under the workers’ compensation law.

"Calling someone an independent contractor doesn’t necessarily make them so," Befort said. Goetz said if this case reaches a jury, the definition of gross negligence and negligence could be blurred.  "The jury probably wouldn’t pay much attention to the difference between gross negligence and negligence," he said. "That’s not as meaningful to a jury as opposed to a trained legal mind."

Regardless, Goetz believes the Stringer family at least has a case against the doctors. "It’s solid enough to get to jury," he said, "but plaintiffs lose 80 percent of all medical malpractice suits that go to a jury."

In December 1998, Stringer signed a five-year contract worth $18.25 million, including a $4 million signing bonus.  His 2001 salary of $2.35 million was guaranteed. In the past week, two offensive tackles who never had played in a Pro Bowl were given six-year contracts worth more than $25 million each.

One lawyer, who wished to remain anonymous, suggested the Stringer family could sue the manufacturer of Ripped Fuel, the supplement containing ephedrine found in Stringer’s locker.

The widow of Baltimore Orioles pitching prospect Steve Bechler, who died of heatstroke on Feb. 17, is suing the manufacturer of Xenadrine RFA-1, another supplement that contains ephedrine, which her husband was believed to be using.

Asked if the plaintiffs have considered such a suit, DeMarco declined to comment.