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twoflipstwotwists · 2 years

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McCusker v Haney: Resetting Expectations

Not all harms have remedy in the law.

I recently posted an elementary guide to recent developments in the McCusker v Haney court case just based on how the law works and general tactics in such court cases. I have since had a chance to read over the court filings in this case and I think it’s best to reset some expectations.

A Plea: I am not Maggie Haney, I don’t like her. I think Riley has suffered far too much and I wish all the best for her. This post is about the legal case and not about her feelings or frustrations which I’m sure are overwhelming and which I have a great deal of sympathy for.

Disclaimers: I’m not a lawyer, I don’t play one on the internet, to the extent I have had professional training it is in a field called legal history where I was taught how to read court documents as historical sources. It’s very easy for historians to misunderstand what they are reading without such training and think the documents prove things that they do not. The New Jersey court system does not charge for these documents but it is extremely difficult to navigate their website. I did not do so myself. I was given these files on a google drive but they are open to the public. Everything I am about to relate is a matter of public record.

Remember the basics: Riley McCusker is suing Maggie Haney (and others associated with MG Elite and its business entities–for my sanity I’m going to describe the entire MG Elite group of defendants as Haney). McCusker has the burden of proving her case as she is the one using the power of the state to force Haney into court. There is no responsible interpretation of this court case as Haney forcing McCusker to do anything because they wouldn’t be here without McCusker initiating this. The burden of proof in a civil case is the preponderance of the evidence–is the outcome more likely than not. And in this kind of civil liability case blame can be divided up by percentage among several parties. The more people are to blame the lower the amount of damages they can be forced to pay … or blame can be seen as too diverse to award damages at all. Many people failed Riley McCusker besides Maggie Haney. Riley is trying to show it’s mostly Maggie while Maggie’s defense is to show that she isn’t even the majority to blame for Riley’s suffering.

Now for the many buckets of cold water: Riley’s lawyers are well out of their field of expertise and it shows. Their primary area of the law is asbestos litigation and class action cases against defective products. No where have I seen any indication that they have ever handled a case like this before.

In their filings there are occasional typos in the legal language that suggest that these are not the kinds of filings they have boilerplate versions that they use all the time.

At one point her lawyers filed a form saying that Riley and Maggie had no previous or ongoing relationship. While Maggie’s lawyers filing the same form checked that box and identified that relationship as coach/student.

At one point in the initial filing they claimed that the gym didn’t have policies for protecting athletes and then the next paragraph said Maggie had violated those policies.

At one point in this case they asked for an extension of a discovery deadline (for material they should have been able to give the defendants day one of the suit) and didn’t notice that the court hadn’t issued the extension and had to beg for a last minute extension.

They seem to have no idea what the doctrine of Parental Immunity was before invoking it (more on that later).

I might have wondered if these lawyers were a McCusker family friend (and in legal cases that is generally a bad idea). Maggie Haney has hired lawyers who know what they are doing and appear to handle cases like this regularly. They do not come off as people I like and if I was going to draw a picture of a villain’s lawyer this would be them. But they are smart, competent and effective. Which is what their job is here. They have done nothing unethical as far as I can see.

As you might be getting so far … this case started out on a great foundation for Riley. It’s going to get worse as I lay out how things have played out in court.

Emily Liszewski, currently a gymnast at Pitt, also sued Haney. This is the case where Maggie and Victoria refused to spot her on a new skill, she fell and hit her head on concrete and they were laughing at her until they realized she was having seizures. She also is alleging hair pulling. Riley’s case does not include these physical abuse claims. Early on Emily was represented by the same lawyers as Riley though she now appears to be represented by … the kind of lawyer who should have been handling this case to start with but also the kind who might have told the McCuskers not to file it in the first place. The two cases were combined fairly early on (same defendants and similar facts makes it more efficient for the court system).

The Liszewski case appears to be much stronger and the combination of the cases makes things IMO worse for Riley’s case. In addition to physical claims, Liszewski left MG elite very shortly after the incident, and that’s where things get sticky for Riley’s case. Riley was boarding with the Liszewski family around the time of the accident and there is strong reason to think Riley’s family knew about the details of the incident. Shortly after the incident the McCusker family was living in New Jersey and Liszewski was no longer training at MG Elite. The McCusker family specifically moved to New Jersey so that Riley could continue training with Maggie. In other words, the McCuskers had prior knowledge of abusive behavior on the part of the MG Elite coaches and took large affirmative steps to keep Riley in that gym. The timeline of the Liszewski incident and the McCusker move is … I suspect … devastating to Riley’s case.

From the start in their initial response to the suit Haney’s lawyers signaled that they intended to show that many people were responsible besides Maggie for Riley’s injuries including her parents. This was not only predictable but it is the correct and appropriate tactic for Haney’s lawyers to be taking in defending this case. Riley’s lawyers should have been prepared for this before they filed the case because it was as inevitable as the sun rising.

After the initial discovery phase (establishing specific incidents and who would have knowledge of them) was completed in November 2021, the McCusker side asked for mediation. That went on until sometime in March when Maggie’s lawyers went to the court and said that the mediation did not seem to be going anywhere and filed to add third party defendants to the case. My instinct says that Riley’s lawyers thought Maggie would settle quickly or they only realized after the initial filings and discovery that this case was not going to go well and sought mediation to get out of the case. Maggie’s lawyers rightly see a winning case and aren’t willing to back down. Reminder: Riley is the one who sued here. Haney has an absolute right to defend herself and she shouldn’t be expected to settle a case she can win. If her lawyers advised her to do so it would be unethical on their part because their duty is the the best interest of their client.

So the mediation fails and Haney’s side adds a bunch of third party defendants to the case (as they warned they would). Who are these people:

Jessica and Thomas McCusker. Haney’s defense boils down to the fact that Jessica was highly involved in Riley’s elite career, frequently attended practice, and hired doctors and other health care professionals to manage Riley’s health. They were aware of (what Maggie’s attorney’s characterize as false) rumors about Maggie’s coaching style in 2018 but continued to take Riley to the gym and leave her there alone until January 2020. They also filed a claim for something called trade libel against them, essentially spreading lies to third parties to make people not patronize a business. My lay reading is that Maggie will probably not win on this count because one of the elements of that tort is false accusation. But I will say Jessica McCusker’s zeal in trying to get MG Elite families to leave the gym may give her that one too.

A range of doctors and medical staff who treated Riley during her elite career. Maggie’s defense is that she was following the treatment and training plans of these medical professionals. This has been characterized as including “national team staff” but this isn’t as clear cut as that.

There is a sports psychologist who worked for the men’s program and at some point with Simone Biles but never worked for the women’s program during Riley’s elite career. They are in the middle of mediation to remove themselves from the case.

There is a national team physio therapist based in Chicago that Maggie’s lawyers describe as Riley’s personal physio and whose training plans Maggie was relying on. While she is on the national team staff she also has a side business and the filings don’t characterize her involvement as being in association with the national team. I think it’s a stretch that someone based so far away was actively controlling Maggie’s actions but they’re almost certainly not getting out of the case.

The current women’s national team doctor who is based in New York and whose private specialties suggest that she may have been seeing Riley as a private patient.

Tom Forster in his capacity as high performance coordinator making decisions about competition and team selection.

[Reminder: Courts don’t like when people selectively sue one person who caused them harm when that harm was caused by a group of people. If you were punched by three people and you only sue one of them the court is going to ask why. On a formal level bringing in third parties is about correctly assigning liability. On a strategic level it is about forcing all of these other parties to (involuntarily) help Maggie defend against Riley’s claims.]

You will notice that USAG is not listed here. USAG is not a party in this case (and Maggie Haney’s suit against USAG for her suspension was dismissed last March). There will be no trove of documents found in discovery from USAG because they are not a party to this case. To the extent that such discovery might involve them it will relate to Tom Forster who was hired by USAG in 2018. Despite how much a certain podcaster might want this to be the back door into a treasure trove of USAG’s dirty secrets… this is not the vehicle for that. It was never the vehicle for that.

The latest actions in this case were a hearing on adding the third party defendants (and filings for a reconsideration of that ruling). Riley’s lawyers tried to challenge the inclusion of he parents under a doctrine called “parental immunity”. Except… it doesn’t remotely apply in this case. Parental immunity shields parents from liability for negligent supervision of their child (the controlling case involves a child whose mother was gardening and didn’t notice her child had wandered off to be bitten by a dog). It doesn’t shield parents from willful refusal to supervise and it very narrowly covers things related to a “unique philosophy of child-rearing”. Riley’s parents’ desire for her to go to the Olympics isn’t even in the same universe as this doctrine’s application.

And that’s basically where we are now. Most of the third party defendants haven’t yet responded, no depositions have been taken.

The chances that Maggie Haney wins this case are, IMO, extremely high. And that would be the correct legal outcome of this case. It never should have been filed. Many many people have failed Riley McCusker along the way and the latest people who failed her were these lawyers.

#riley mccusker #maggie haney #tw abuse #ty for the deep dive #sounds like this isn’t going to turn out the way she hoped

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