Panish Shea & Boyle LLP announces a $39,500,000 settlement for college student Marissa Freeman who was catastrophically injured after suffering heat stroke during an outdoor class at California State University San Bernardino. This is believed to be the largest settlement ever for an injury case involving the California State University system.
On September 26, 2018, Ms. Freeman was participating in a jogging class at CSU San Bernardino. Enrolled in the class were students with varied jogging experience, from novice to expert. Students were required to complete activity classes like this one to graduate. On the first day of exercise, the CSU instructor assigned a run on a 5K course on the concrete and asphalt surrounding campus, even though temperatures were at a dangerous 95 degrees and students were not yet acclimated to working out in these conditions. This presented an extreme risk of heat illnesses, including heat stroke. Near the end of the run and while the instructor was at another location, Ms. Freeman collapsed on the hot concrete outside of Coussoulis Arena with severe heat stroke. University personnel, including an athletic trainer, responded but did not provide any recommended rapid whole body cooling to treat her heat stroke or move Ms. Freeman to the air conditioned arena 20 feet away as they were waiting for paramedics to arrive. Evidence established that neither the instructor nor the other CSUSB employees had received required CAL-OSHA training in heat illness prevention and treatment before the incident.
As a result of the heat stroke, Ms. Freeman suffered a severe brain injury, cardiac arrest, and multi-system organ failure, she underwent months of hospitalization and more than one year of in-patient rehabilitation before she could be released home to her family. Ms. Freeman’s cognitive function, speech, and motor control remain severely impaired and she will require 24/7 care, therapy, and medical attention.
During the lawsuit, CSU denied responsibility and contended that Ms. Freeman negligently overexerted herself in the class. CSU also sued Ms. Freeman’s medical providers, including the fire department, ambulance, hospital emergency room, and skilled nursing facility, claiming that they negligently caused her injuries in the process of attempting to save Ms. Freeman’s life and provide care.
Due to the severity of Ms. Freeman’s injuries and her ongoing medical care needs, the Honorable Lynn M. Poncin, San Bernardino County Superior Court Judge, ruled the trial would begin in October 2020. The Court adopted extensive safety precautions approved by the San Bernardino County Department of Public Health and complied with all CDC guidelines. Mandatory mask use and social distancing for all attorneys, staff, and jurors were strictly enforced. Additional measures including the availability of remote appearances for witnesses and attorneys, plexiglass shields and sanitizing of all surfaces multiple times daily were implemented.
On October 26, 2020, pretrial hearings commenced in a makeshift courtroom created for trial proceedings during COVID-19 in the San Bernardino Historic Courthouse. Over three weeks, 105 pretrial motions were heard and decided. After extensive argument and submission of expert testimony by CSU, their claims that Ms. Freeman’s medical providers and first responders were negligent and caused her injuries were dismissed due to lack of evidence.
The CSU challenged Judge Poncin’s decision to proceed, even with safety precautions in place, to the Court of Appeal and California Supreme Court, but the decision and safety precautions were upheld on November 24, 2020 and the trial continued.
Once the medical providers were dismissed, and the number of parties and lawyers were drastically reduced, trial then moved to the San Bernardino Civil Justice Center for jury selection. In addition to the precautions already in place, social distancing for jurors along with PPE including masks, gloves, and microphone covers for jurors were required during this phase for additional safety. Over three weeks of jury selection, more than 250 prospective jurors appeared and were questioned. With jury selection still in progress, the court halted proceedings on December 14, 2020 due to the COVID-19 surge and ICU capacity in San Bernardino County falling to 0%. The trial was set to resume on February 16, 2021. The CSU and the Freeman family have now agreed to resolve the case, and the settlement has been approved by the Court.
“The trial was able to proceed due to the diligence, creativity, and selflessness shown by Judge Poncin and the court staff in performing their duties to allow this trial to proceed safely during the pandemic,” said Brian Panish, an attorney for the Freeman family. “Our clients are grateful for the Court allowing them to exercise their Seventh Amendment constitutional right to a trial by jury. Without the trial proceeding forward, the case would not have resolved.”
In addition to the monetary settlement and as a condition of the agreement with the Freeman family, California State University agreed to develop and implement a system-wide policy for heat illness prevention, education and protocols with input from Dr. Douglas Casa, the head of the Korey Stringer Institute, a heat illness research and advocacy organization. This policy will apply in all academic environments to the nearly 500,000 enrolled students at all 23 California State University campuses.
“The Freeman family is grateful that the Board of Trustees has agreed to put policies in place that will hopefully prevent such a tragedy from ever occurring to a CSU student,” said attorney Patrick Gunning.
Defendants were represented in the matter by James M. Baratta and Thomas J. Moran of Grant, Genovese & Baratta, LLP and Paul Buckley and Mallory Lorber of Taylor | Anderson LLP.