#mccusker v haney | Explore Tumblr Posts and Blogs

freifraufischer · 2 years

Photo

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.

#gymnastics #mccusker v haney

26 notes · View notes

freifraufischer · 2 years

Text

A Brief Update on McCusker v Haney:

The judge has denied McCusker's request to seal the medical records in evidence in the case. She did rule that they could request to have them removed from public access.

Our (not lawyers in New Jersey or elsewhere) understanding of this is that what the judge is suggesting means that the records will simply require a court system login to see whereas if she had sealed them then you would have to have a court order to see them. We have been careful to respect the request to seal pending a ruling. I would suggest people continue reframe from discussing the actual lab values and similar information.

However it is now public record in court documents that will not be sealed and will not be marked as confidential that Riley McCusker never met even the wildest definition of rhabdomyolysis.

With that understanding I will say what I've been biting my tongue about for a month. The "mild rhabdo" symptoms described in non medical evidence can entirely be explained by the eating disorder Riley herself says she had. Other exhibits in this case include text messages between Jessica McCusker and Maggie Haney referencing a 1500 calorie per day deficit.

Both women appear concerned about the deficit but neither seems to recognize the serious eating disorder playing out in front of them and neither does Riley's doctor who is billed as an expert in the female athlete triad and is currently one of the US National Team Doctors.

Riley's lawyers never introduced evidence that Maggie was responsible for the eating disorder. I'd be happy believe she was given what we know about Maggie but if the evidence was there they were wildly incompetent in their representation of her (much like every adult was in their duty to Riley it seems). My feeling is that this discussion does not exonerate Maggie in the least.

But it is fatal to Riley's legal case against her.

I started out these updates with the phrase "not all harms have remedy in the law" and that remains true. Maggie can be a terrible coach and have done great harm to Riley without being civilly liable for her suffering.

Riley's lawyers have indicated that they intend to drop this case with prejudice (meaning that it will not be able to be refiled). The Emily Liszewski's case--which always appeared much stronger--has apparently reached a settlement during mediation. We may never know what the terms were.

So where are we now: There are likely a few more procedural steps before the case file is officially closed but the court story here is nearing it's end. I would expect that Riley will--as is her right--talk about her experiences at MG Elite. I hope she does. And I would also expect Maggie Haney to defend herself. My deepest hope is that rhabdomyolysis is not a word Riley utters as she talks about her experience. Things will get extremely messy for her if it does.

But I do want to say something else. A lot of gym gossip from the MG Elite families loyal to Maggie have mentioned that texts from Jessica McCusker would come out showing terrible things about her role in the eating disorder. Those never showed up in the case either and they would have unless they were somehow just as damaging to Maggie as they were to Jessica McCusker. The texts that were entered suggest two women deeply oblivious to how far and how fast Riley's body was failing. To borrow a medical phrase, they were looking for zebras instead of the entirely predictable horse stamped in front of them.

#mccusker v haney

12 notes · View notes

freifraufischer · 2 years

Text

Once upon a time there was an anime voice actor who was a legendary sex pest among con staffers and his fellow voice actors. At the height of MeToo his past finally came back to bite him and after an investigation her was fired. Several of his former coworkers told their stories about him publicly and several cons decided they did not want him as a guest.

He had a dedicated fanbase who decided that all of these women were lying (even when there was video evidence) and a youtube shouty man organized both a crowd funding campaign and arranged to hire him a lawyer (who turned out to be shouty man’s family estate lawyer.

Estate lawyer sent a comically bad cease and desist letter to the women and a bunch of lawyers on twitter proceeded to mock it. Angry at the mocking and egged on by Shouty Man in the fanbase the sex pest made the catastrophically bad decision to sue the women for defamation in Texas. Texas has a very strong law meant to prevent people from being sued to shut them up.

Shouty man, the fan base, and the worst lawyer in Texas proceeded to screw up this case so royally that he now owes the women a great deal of money. And has now lost on appeal. One of the defining features of watching this train wreck was watching angry anime fans try to lecture lawyers on twitter about how they didn’t know the law. An entire legal community formed on twitter around mocking bad lawsuits in general but defamation lawsuits in particular.

One of the most horrifying realizations of reading the documents in the McCusker v Haney case how similar the cast of characters were but with the sympathetic parties reversed.

The out of their depth and out of their field lawyers. Including typos, mistakes of law and potentially now what might be a clumsy attempt at rules lawyering the process.

The fan base that was encouraged to think this lawsuit was a good idea.

And gym fandom has it’s own version of the shouty man too. Jessica from Gymcastic.

#mccusker v haney

8 notes · View notes

freifraufischer · 2 years

Photo

A Brief Update on McCusker v. Haney: September 2022

Just to keep people up to date on the docket in the court case since apparently this is now my thing:

[Brief Reminder: Riley is the plaintiff, she sued Maggie saying that she was legally responsible for her pain and suffering both from abuse, mismanagement and injuries. In response Maggie's lawyers* say that there were many people including her parents, her medical providers, and Tom Forster who were also involved in managing her gymnastics career. These people are 3rd party defendants]

The most recent filings involve a sports psychologist, Robert Andrews (pictured above with Simone Biles), that Haney's side added as a 3rd party defendant asking to be removed. The judge will rule on this without a hearing.

His lawyer made three arguments:

The New Jersey court lacks personal jurisdiction. That is that he's never lived in or done business in New Jersey. He never traveled there to see Riley, he never spoke to her, her family, or her coaches over the telephone or email and he does all his business out of Houston, Texas which is the only place he communicated with her. In other words, since there are no Federal issues in this case New Jersey has no claim to be able to "touch" him. [Comment: This is probably a winning issue that will get him out of the case]

He was characterized by Maggie's lawyers as being in charge of Riley's mental health but not only did he have limited contact with her he does not now nor has he ever provided patient therapy. He simply doesn't provide the kind of services that would attach him to this case. [Comment: Maggie's lawyers are going to have to provide proof to their contention, which they will have a chance to do at the hearing. My gut says that this will likely go in his favor as well but that's not as clear cut as the first issue]

They claim Maggie's lawyers never properly served them. [Comment: Their argument is actually kind of a stretch here, which amounts to that Maggie's lawyers served them by mail as an out of state defendant and they refused to open the mail and let the time pass. It seemed insane to me that you could claim lack of service by refusing to open your mail and a glance at the New Jersey civil procedures for serving out of state defendants suggests that this is in fact... not how that works. As I understand it making this argument helps support point 1 which his stronger argument and it’s a fail safe because this is the only point in the case that he can make this argument. Cavate I am not a lawyer, either in New Jersey, nor do I play one on the Internet. This doesn't seem like a winning argument here.]

The only other thing to note in this document is that Maggie's lawyers misnamed his employer (Institute of Sports Performance versus Institute for Sports Performance). Not super important but is kind of amusing.

*There are a number of parties including the gym, Victoria Levine, ect, for my sanity referred to as Maggie's lawyers.

#mccusker v haney #gymnastics #maggie haney #riley mccusker

9 notes · View notes

freifraufischer · 2 years

Text

An Update in McCusker v Haney

The case has been continued again with a note that they are close to settlement. However it should be noted that Maggie’s lawyers have filed a motion opposing the sealing of medical evidence:

Ms. McCusker’s motion to seal should in all respects be denied. As explained below, Ms. McCusker has agreed to and intends to sign a stipulation dismissing all of her claims against Ms. Haney in this action with prejudice. Ms. McCusker has nevertheless made clear her intent to bandy those same claims in the Court of public opinion after this case is dismissed. Any order sealing the record of the documents that refute Ms. McCusker’s claims and support Ms. Haney’s recently filed third-party claims – which is precisely the relief Ms. McCusker is seeking on her motion – will prejudice and result in a grave injustice to Ms. Haney as it will deny Ms. Haney of her right to fully and fairly defend herself against what she believes are Ms. McCusker’s baseless allegations against her.

In lay terms: The medical information relates to charges that Riley has made publicly and has made clear that she will continue to make publicly and Maggie should have the right to refute those claims with evidence.

#mccusker v haney

3 notes · View notes

freifraufischer · 2 years

Note

IMO in addition to having bad lawyers, Riley and her mom just seem…dumb. There’s not a single action that they’ve taken during her career or during this lawsuit that was well-advised in any way.

I am absolutely unwilling to disparage Riley's intelligence. She seems sheltered and that's how I think I'd frame both the lawsuit and the public comments.

Her mother... I don't know what the hell to make of her mother to be honest. There are text messages in one of these filings that I'm tempted to post but I'm going to have to go through them with a very serious marker because there are things in them that just DO NOT need to be out there.

I will say that Jessica McCusker strikes me as a wealthy white woman who didn't understand how to do an activism and accidently did a stalking.

#mccusker v haney

6 notes · View notes

freifraufischer · 2 years

Text

Maggie is the defendant.

You can not like Maggie all you want but she's still the defendant.

#mccusker v haney

2 notes · View notes

freifraufischer · 2 years

Photo

An Elementary Guide to Maggie Haney’s counter claim

I thought it would be useful for people to have a simple explanation of what is going on with the McCusker v. Haney suit.

Please do not shoot the messenger. I don't like Haney and I want everything in the world for Riley I'm just trying to explain what the legal process going on is in lay terms:

Riley is suing Maggie for the harm done to her during her time at MG Elite. Riley is the plaintiff, Maggie is the defendant and in the US legal system that means Riley has the burden of proving her cause. Because this is a civil case it's not "beyond a reasonable doubt" as a standard but "by the preponderance of the evidence"--in basic terms Riley has to prove that Maggie is more likely at fault than not.

So Maggie's path to defending this is not as I've seen some gymternet people say, saying Riley was to blame for her own injuries. Maggie isn't counter suing her in a way you would understand (that would saying Riley caused Maggie other harms--like if you sued someone for breaking your nose in a fight, they could counter sue you for physical harm you did to them in that fight). What she's doing is saying "hey these things that McCusker says I'm to blame for there were all these other people that were also to blame for her injuries/distress that she didn't choose to sue and I want them brought into the case". It includes her parents, Tom Forster, and a bunch of national team staff. Essentially she is saying that Riley was selective in who she chose to sue and the courts really don't like when you sue one person who caused you a harm when there was a group who contributed.

So here is why this is important. The goal of this is not to say all these people should have stopped Maggie from abusing Riley. The goal is to decide who is to blame for what extent of Riley's injury/pain.

Again, I'm explaining this not defending Maggie or the things she does.

In cases of like this what often happens is the court determines a percent of blame. So say you have a car accident the court might decide that Driver A is 40% to blame, Driver B is 30% to blame, and the State is 30% to blame for having a dangerous road. If Driver B is the one suing this structure sets it up so they can't get all of the cost of their damages from the person who is only 40% to blame for them.

What is going on here is a standard way to defend these suits. Maggie's attorneys aren't doing anything improper as far as I can see, or even unusual. Riley's attorneys hopefully told her that this was coming because it's a very foreseeable outcome of this lawsuit. I'm sure she wanted to express outrage at the idea that Maggie was dragging her parents into this but whatever she might have said publicly about this move would almost certainly have hurt her case against Maggie. It's not as I've seen some people suggest, some kind of settlement offer. Riley is understandably upset because there were going to be days like this in this kind of suit.

/ Fin the legal explanation.

Begin my small bit of snark: I will die laughing of Tom Forster's posting of that picture of him and Riley eating ice cream as evidence of a culture of change while she was still at MG Elite comes back to bite him. Because there is no way Maggie's lawyers don't enter it into evidence.

#gymnastics

71 notes · View notes