Chapter 47: Witness for the Defense

October 18, 1988, McKinley, Ohio

On Tuesday morning, Doctor McKnight and I went to the county courthouse for the hearing. We checked with the clerk to find the correct courtroom, located it, and sat down next to Doctors Warren and Mertens to wait for the case to be called. About ten minutes later, the court clerk stood up.

"Strickland versus Warren, et al," she intoned.

"Good morning, Your Honor," a man who I recognized immediately said, stepping up to the lectern. "Arthur Braun, of Volstead and Braun, for the plaintiff."

"Jason Firth, counsel for McKinley Medical School, representing all named defendants."

"Your honor," Mr. Braun said, "we're here on your order for a hearing with regard to extending the TRO you issued in camera on Friday evening."

"Do you have any additional information or pleadings beyond what was submitted to me on Friday?"

"No, Your Honor."

"Has counsel for the defendants been provided with copies?"

"Yes, Your Honor."

"Mr. Firth?" the judge said. "I understand you have a motion?"

"Yes, Your Honor. I move on behalf of all defendants to immediately dissolve the TRO and dismiss the case with prejudice. I've served the plaintiff and his attorney with copies of the motion. If I may, Your Honor."

"Proceed."

"In the Plaintiff's filing for the TRO, they made only a 'due process' claim. I believe this case can be resolved immediately if we proceed to arguments."

"I would like time to review the motion," Attorney Braun said.

"Mr. Firth?" the judge inquired.

"McKinley Medical School objects to an extension of the TRO beyond today and is prepared to move immediately to that hearing. I'll remind Your Honor that the TRO was granted ex parte and, in order to be extended beyond 5:00pm today, it must survive an adversarial hearing. We are willing to defer the motion to dismiss if opposing counsel needs time, but we are not willing to waive our right to a hearing on an extension of the TRO."

"Mr. Braun?"

"Your Honor, the Medical School intends to suspend my client immediately upon lifting the TRO and, as such, it will inflict irreparable harm on my client. That alone warrants extending the TRO."

"Mr. Firth?" The judge inquired. "Your answer?"

"Mr. Braun is correct that is our intent, but it is also the case that we are entitled to a hearing today, and your honor is bound by statute and precedent to dissolve the TRO if a hearing is not held at the request of the party subject to the TRO. And in order to sustain the TRO, the plaintiff must not only show that it is the least restrictive means necessary to protect his interests, but also show a likelihood of success on the merits. We submit there is no chance of success on the merits based on law, precedent, and the agreements Mr. Strickland signed when applying to, upon acceptance to, and upon commencing his tenure at McKinley Medical School. We are prepared for the hearing."

"Mr. Firth is correct on the law and precedent," the judge said, "as well as the procedures set forth by our State Supreme Court with regard to emergency applications for Temporary Restraining Orders. Mr. Braun, we'll hold the hearing on the TRO now, as scheduled, and you'll need to show you have a reasonable chance of success on the merits."

"If I may, Your Honor," Mr. Firth interjected. "We can quickly dispense with this if I may approach and hand up three documents, signed by Mr. Strickland, each of which confirms his agreement to accept discipline as detailed in the Student Handbook, along with a copy of that handbook with the appropriate sections highlighted. I have a witness who will testify that the procedures were followed, and, in fact, a member of the Student Ethics Committee is in attendance, and I could also call him to testify to the same."

I winced, because the last thing I wanted to do was testify in court, but I'd do it if required.

"You may hand those to the bailiff," the judge said. "I'll take them to chambers to review. We're adjourned for fifteen minutes. Please use the time to try to find a settlement."

He banged his gavel, accepted the papers which Mr. Firth handed to the bailiff, then went through a door to his chambers. Mr. Firth came over to where we were sitting and addressed Doctor Warren.

"Is there any settlement offer you're willing to make?"

Doctor Warren shook his head, "No. As we discussed, he could have been expelled. A suspension was leniency, especially after three written reprimands."

"OK," Mr. Firth replied. "The 'due process' claim is unsupportable against a private institution, and even if it were enforceable, you followed the procedures outlined in the Student Handbook. As we discussed, there is no such thing as 'substantive due process' in a case such as this, and he raised no discrimination claims, not that a white, middle class kid from Toledo could have such a claim. Let me go speak with Mr. Braun."

He walked over to the table with Arthur Braun and Jack Strickland were sitting, and had a conversation, and I could tell from Jack's body language that he didn't like what was being said. That didn't surprise me, as there was literally no reason I could think of for the school to yield, and the only real solution was for Jack to be a model student for the next three-and-a-half years, and hope that letters of recommendation would overcome the suspension.

I would have my own chance to evaluate him during his Preceptorships and clinical rotations, assuming he made it that far. I'd keep an open mind, but he would be on very thin ice, given his history. As I'd said to Fran and Clarissa, and had thought to myself, he would have to be a model medical student from now until graduation if he was to have any hope of becoming a physician.

The judge came back as he'd said he would, and the bailiff called for everyone to stand.

"You may be seated," the judge said after taking his seat. "Mr. Braun?"

"We were unable to reach a settlement," Attorney Braun said.

"Mr. Firth, would you please call your witnesses to the procedure that was followed?"

"Your Honor?" Mr. Braun spoke up. "Don't we have the right to go first?"

"Let me be blunt, Mr. Braun," the judge said. "If both witnesses testify that the procedures outlined in the Student Handbook were followed, you have no chance of sustaining the TRO or gaining a permanent restraining order or injunction. I won't dismiss your case today, as you're entitled to time to prepare a response to the defendant's motion, but the TRO will be dissolved as a matter of law with sworn testimony about the procedures. You may, of course, contest my ruling, and may seek monetary and other damages, but I'm bound by the rules and precedent with regard to the TRO."

"Your Honor, this will do irreparable harm to my client," Attorney Braun protested.

"That may be so, but you have to show a chance of success on the merits, and unless your client is going to deny he signed three times agreeing to the process outlined in the Student Handbook, testimony from two witnesses will suffice to show you have no reasonable chance on the merits."

And that was, I thought, a neat trap, because if Jack Strickland repudiated his signatures, he wasn't a student, and as such, no suspension was necessary, or at least that's how I thought it would end. I knew that the law sometimes had crazy results, but I didn't think, based on everything I'd heard over the years about suing medical schools, that this would end with a crazy result.

"Mr. Firth, please call your first witness," the judge continued.

"I call Doctor Christopher Warren, Dean of McKinley Medical School, a named defendant."

Doctor Warren went to the witness stand and was sworn by the bailiff, and asked to spell his name and give his title.

"Doctor Warren," Mr. Firth said, "I'll keep this brief. Are you the dean of McKinley Medical School?"

"I am."

"Did you conduct an investigation in accordance with the procedures outlined in the Student Handbook with regard to a report by Doctor Nora Mertens detailing multiple violations of the McKinley Medical School behavioral code by Mr. Jack Strickland, a First Year medical student?"

"I did."

"What were your findings?"

"That Mr. Strickland had, on three previous occasions, received disciplinary letters in his file for inappropriate behavior in violation of the code. Given this was his fourth violation, I elected to suspend him."

"And then what happened?"

"He requested, as is his right, a hearing before the Student Ethics Board."

"And the results of that hearing?"

"Confirmed my decision."

"Thank you," Mr. Firth said, then turned to Mr. Braun, "Your witness."

"Doctor Warren, did you consider any alternative punishments?"

"Historically, the norm was expulsion, but I chose to apply leniency and impose only a suspension."

"Oops!" Doctor McKnight whispered. "He walked right into that one!"

I nodded as he'd made a huge mistake, though I didn't think there was anything he might have asked that could help his case.

"I see," Mr. Braun said. "Were you required by the Student Handbook, or any other document, to suspend Mr. Strickland?"

And that, unfortunately, was a perfect recovery from what I had thought was an unforced error.

"No," Doctor Warren admitted.

"Thank you," Mr. Braun said. "No further questions."

"You may step down, Doctor," the judge said.

"I call Michael Loucks, Fourth Year medical student and member of the Student Ethics Board," Mr. Firth said.

I got up and walked forward, passing Doctor Warren on the way. I stood and waited for the bailiff to come to me.

"I prefer to affirm," I said.

He nodded, "Do you affirm that you will tell the truth, the whole truth, and nothing but the truth?"

"I do."

"You may be seated. Please spell your name and give your title."

"M-I-C-H-A-E-L P-E-T-E-R L-O-U-C-K-S. I'm a Fourth Year medical student."

"Michael," Mr. Firth said, "I will also make this brief. Are you a member of the Student Ethics board?"

"I am."

"Did the Student Ethics Board convene and hear Mr. Strickland's appeal, as outlined in the Student Handbook?"

"We did."

"And was Mr. Strickland permitted to speak and offer a defense?"

"Yes."

"Did he also offer an admission to all four incidents?"

"Yes, he did."

"Did the Ethics Board deliberate?"

"We did," I replied.

"What conclusion was reached by the Ethics Board?"

"That the suspension was justified."

"Was that decision unanimous?" Mr. Firth asked, surprising me, given the secrecy rules for deliberations.

"We're not permitted to reveal anything about the deliberations or votes," I replied.

Mr. Braun stood up and said, "Your Honor, we believe the answer to that question is relevant and no law or precedent prevents you from ordering Mr. Loucks to answer."

"Given the defense asked the question, I'll direct the witness to answer," the judge said, "Mr. Firth, please ask your question again."

"Was that decision unanimous?" Mr. Firth asked.

"Yes," I replied.

"Thank you," he said to me, then turned to Mr. Braun and said, "Your witness."

"Good morning, Mr. Loucks," Attorney Braun said. "It's nice to see you again."

I wanted to reply 'I wish I could say the same', but knew that would get me in trouble with the judge.

"Likewise," I said.

"How long did the Ethics Board deliberate?"

I wanted to be careful because it had been a quick vote, but I didn't want to give the impression that it was hasty or ill considered.

"After each member spoke, we voted. I believe the process took about ten minutes."

"Don't you feel that was awfully fast for so great a punishment?" Mr. Braun asked.

"All five of us reached the same conclusion based on the evidence, so there was no lengthy debate as there was in the case of your previous client."

I saw Mr. Firth start to smile, but he quickly pursed his lips to stop the smile.

"Let's focus on Mr. Strickland's hearing, please," Mr. Braun said. "Did you reach a conclusion before the hearing?"

"Personally? No. I can't speak for the others, though we were all provided with the three letters of reprimand and the latest disciplinary report."

"Mr. Loucks, if it were up to you personally, would you have imposed a suspension?"

"Objection," Mr. Firth said, rising to his feet. "Calls for speculation as to what Mr. Loucks might do if he were Dean of McKinley Medical School, which he obviously is not."

"Withdrawn," Mr. Braun said. "Mr. Loucks, did you personally consider an alternative?"

"I felt Mr. Strickland was lucky to only receive a suspension."

"That's not what I asked," Mr. Braun said with a smile. "Did you consider any alternatives?"

"The Student Ethics Board can only confirm or reject a specific disciplinary action. If we were to reject it, which we did not, then we can propose an alternative."

"Did you consider that?"

I felt he was trying to trap me, and I had to carefully state my answer so as not to give him any toehold.

"I considered the imposed discipline and found it to be to be right and just, based on the totality of the circumstances."

"Did you, at any time, speak with Doctor Nora Mertens before the hearing?"

I nodded, "I did, as she's my advisor. Because she was the person who filed the disciplinary report, we expressly agreed not to discuss the situation before the hearing."

"So you did speak with her?"

"About my daughter and my upcoming marriage," I replied. "We also discussed public health."

"You admitted, just now, to mentioning the case. How can we be sure there was no collusion?"

"Objection!" Mr. Firth said, quickly rising to his feet. "That question is purely speculative and has no foundation."

"Sustained," the judge declared.

"Withdrawn," Mr. Braun said. "I have no further questions."

"You may step down," the judge said.

I got up and went back to my seat next to Doctors McKnight and Warren.

"Argument? Mr. Firth."

"This is an open and shut case," Mr. Firth said. "We have two witnesses, both directly involved in the process, who have testified under oath that the procedures outlined in the Student Handbook were followed. That is conclusive to defeat any procedural due process claims the plaintiff might make, and no court has ever, in any case in Ohio, applied substantive due process in a challenge to a medical school's admissions, grades, discipline, or dismissals. Had such a thing escaped my notice, we can be sure Mr. Braun would have brought it to the Court's attention today. That he did not is telling. Nothing in any testimony, nor any sworn statements, contradicts the fact that Mr. Strickland received due process, which is his sole claim. Thank you."

"Mr. Braun?"

"We have an admission of communication between the doctor making the complaint and Mr. Loucks, which should call into question the fundamental fairness of the proceedings. That question, which would be developed in a merits hearing, is sufficient to call into question the entire process, and is sufficient to sustain a temporary restraining order until a merits hearing can be conducted. Thank you."

"Mr. Firth?"

"Mr. Braun is making an unfounded accusation for which he has presented no evidence beyond a conversation between an advisor and her student, and the student has denied, under affirmation, that the case was not discussed beyond agreeing not to discuss it. That said, even if Mr. Braun's scurrilous, defamatory, and unfounded accusation were true, it would not help his case, as the proper process was followed, and if Mr. Loucks' vote were to be excluded for any reason, four votes are sufficient to sustain the suspension. Thank you."

The judge was quiet for a moment, then spoke.

"I find as a matter for the record that Doctor Warren and Mr. Loucks were credible witnesses, and provided truthful answers. Therefore, I declare the TRO dissolved effective immediately. The clerk will schedule arguments on the motion to dismiss."

"Your Honor," Mr. Braun said, quickly standing up. "I'll have a notice of appeal to you within the hour. I'd like Your Honor to stay his order."

"No, Counselor," the judge said. "I do not believe you have any reasonable chance of succeeding on the merits. You may apply to the Court of Appeals for a new TRO or a stay of my order once you file your notice of appeal."

He banged the gavel.

"The clerk will call the next case," he said.

Doctor McKnight, Doctor Warren, and I all went out into the corridor where Mr. Firth joined us a minute later.

"What do you think, Jason?" Doctor Warren asked.

"About the appeal of the denial of the TRO? He won't win it because the Court of Appeals has to accept the facts found by the judge, and he declared Doctor Warren and Mike to have been credible and truthful. That means the Court of Appeals has to accept that ruling unless the judge abused his discretion, which he did not. As I said to you on Friday evening, this was a losing proposition for them from the start."

"Just to be clear, this means the suspension is effective immediately?" Doctor Warren inquired.

"I handed his attorney a notice that it begins tomorrow and goes through Tuesday of next week. I did that assuming, correctly, that they would appeal. That way, he has time to get to the Court of Appeals today to seek his stay."

"Is that ex parte?" I asked.

"No," Mr. Firth replied. "I informed him I'm available to appear before the judge hearing emergency interlocutory appeals at any time."

"Interlocutory?" I asked.

"An appeal before a case is concluded. There are very narrow grounds where that is permitted and restraining orders and injunctions are on that very limited list. But as I said, he won't get it. That should be obvious to him, given the judge refused to stay his order pending appeal."

"So it's not really over, then?"

"Technically, no. But if he wins a stay of the order dissolving the TRO and an extension of the TRO, I'll buy you and your fiancée dinner at the most expensive restaurant you can name, including The Maisonette in Cincinnati!"

"I'd say he's sure," Doctor Warren declared. "That's a Mobil Five-Star restaurant and you can't eat there for under $150 plus drinks."