Judge sides with Mike McQueary in allowing whistleblower lawsuit against Penn State to move forward

mdawson@centredaily.comApril 17, 2013 

061312JERRY17

Former Penn State football coach Mike McQueary enters the courthouse. Tuesday, June 12, 2012, is the second day of the Jerry Sandusky sexual abuse trial, at the Centre County Courthouse, in Bellefonte, Pa. Centre Daily Times/Nabil K. Mark

NABIL K. MARK — CDT file

Former Penn State assistant coach Mike McQueary scored an important court victory over the university Tuesday in his lawsuit to recover millions of dollars after he lost his job in the fallout of the Jerry Sandusky scandal.

Out-of-county Judge Thomas Gavin struck down the objections by Penn State’s legal team, who argued McQueary’s claims were far too vague to stand up in court and asked the judge to throw out his whistle-blower and defamation lawsuit.

In the court order, Gavin said the allegations in McQueary’s lawsuit are enough to show claims of “outrageous conduct” by Penn State. The judge’s decision gives the lawsuit the green light to move forward and the McQueary lawyers to go after punitive damages.

The judge gave Penn State’s lawyers 20 days to respond to the allegations in the lawsuit. Penn State spokesman David La Torre declined to comment Tuesday.

McQueary contends in his lawsuit that his contract was not renewed last summer because he cooperated with authorities investigating Sandusky. McQueary testified to the grand jury and was a star witness at the Sandusky trial in June, where he said on the stand he saw Sandusky in a shower with a boy in February 2001. McQueary said he reported the incident to former athletic director Tim Curley and former head coach Joe Paterno in the following days.

Details of the incident were made public in the grand jury’s presentment, and that is when McQueary is saying Penn State President Graham Spanier defamed him in a press statement in which the official threw his support behind Curley and former administrator Gary Schultz, who were indicted on perjury charges, and called the charges against them “groundless.”

But Gavin, in his order, said if the charges against Curley and Schultz were groundless, then “one cannot help but deduce that McQueary’s contradictory testimony is untruthful.”

McQueary also is suing on the grounds that Curley and Schultz misrepresented how they would respond to McQueary’s report about Sandusky in 2001.

Penn State’s lawyers called it a promise to take action in the future, not a misrepresentation. The lawyers also said the incident happened too long ago for it to be considered now.

Gavin did not buy either of Penn State’s arguments.

The judge also denied Penn State’s request to stop McQueary from pursuing punitive damages. Gavin said McQueary made sufficient claims of “outrageous conduct,” which included his being treated as a “leper to be quarantined outside of State College” when he was told by a university official to leave town in November 2011.

For Penn State, Gavin’s decision keeps the university winless in court battles over this lawsuit. Gavin previously rejected the university’s request to delay the case until the criminal proceedings against Spanier, Curley and Schultz are wrapped up.

The three men are facing obstruction of justice and related charges in what previous attorney general Linda Kelly said was a “conspiracy of silence” to cover up abuse allegations against Sandusky more than a decade ago.

The lawyers for the men have maintained their clients’ innocence and vowed to fight the charges in court. They are still awaiting important court dates, such as for a preliminary hearing, in the criminal cases.

Gavin was brought in from Chester County to hear the case because of Centre County judges’ connections with Penn State.

Mike Dawson can be reached at 231-4616. Follow on Twitter @MikeDawsonCDT.

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