Attorneys want state to investigate MSU's treatment of Larry Nassar victims

Larry Nassar victims who waited to come forward with claims of sexual assault shouldn't be treated like second-class citizens by Michigan State University, a group of lawyers said Thursday.

The lawyers, representing 110 women suing Michigan State University in a second wave of lawsuits related to sexual assaults by Nassar, want the state to take a close look at whether the school deliberately underfunded its Nassar settlement fund to deprive the second set of victims the same amount as the first group. 

In a complaint sent to the Michigan auditor general, the lawyers claim former interim President John Engler and former MSU General Counsel Bob Young knew there were more than a hundred victims who hadn't filed suit when they negotiated a settlement with more than 330 victims in the first wave of lawsuits. The lawyers say Engler and Young rigged the system to make sure the second wave of victims wouldn't get the same amount of money as the first.

MSU was unable to be reached immediately for comment.

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In that $500 million settlement, $75 million was set aside to pay for any defense lawyers for MSU in any suits going forward and to cover settlement costs for those suits.

Engler fraud?

But that setup was flawed from the start, the attorneys said. Even more, it's a violation of the Equal Protection Clause of the Michigan Constitution. The attorney coalition has asked the auditor general to investigate whether Engler and Young committed fraud or other violations.

“Our clients have been retraumatized by MSU’s public pretense of truly caring about them," attorney Michael Pitt said. "Our clients want no more or no less than what their sister survivors received and the coalition attorneys will keep fighting MSU to make sure this happens."

The initial $425 million settlement was split among 333 people victimized by the former sports medicine doctor who is serving what in effect is a life sentence for sex abuse. If all receive the same amount, they would average just under $1.3 million. If MSU only uses the $75 million — minus whatever is spent on MSU's lawyers — the average per person is likely to be about $410,000. 

"Interim President John Engler and former General Counsel Robert Young knew that the set aside of $75 million would result in Wave 2 survivors receiving a mere fraction of what the Wave 1 survivors received," the attorneys argue in their filing. "To add insult to injury, MSU has been permitted to use funds earmarked for future claims to cover its attorney fees in defending against the claims of Wave 2 survivors."

A judge asked about this

In their complaint, the attorneys point out the federal judge overseeing the first wave of cases was concerned with the issue and even asked MSU a question about it.

"“…[H]ow does the allocation account for late-filing plaintiffs? New cases are being filed weekly. Have all victims been identified and, if not, does a mechanism exist for reserving some portion of the fund for victims who come forward later?" the attorneys quote Judge Gordon Quist as saying. 

MSU never responded to the judge's question.

And MSU knew how many victims were out there still when it signed the first settlement. Eighty-seven percent of the second wave of victims were sexually assaulted at MSU. That means MSU has medical records showing they were treated by Nassar.

"The auditor general should investigate the reasons why the set-aside for future claims was grossly underfunded and determine which state or MSU officials are responsible for this decision and the reasons for what arguably amounts to an abuse of authority," the complaint reads. "The underfunding of the (settlement) set-aside has resulted in an Equal Protection violation that is forcing Wave 2 survivors to accept approximately 1/3 of what the similarly situated Wave 1 survivors received from the Compensation Plan. There is no rational basis for the difference in treatment."

The need for a second wave of lawsuits is simple, the survivors in the second wave have said: People process what happened to them at different paces.

Consider Lana Horning, who, as a 10-year-old gymnast in the early 1990s, had stiff elbows that she was unable to completely straighten. She was told to go to the best doctor around — Larry Nassar. She ended up being diagnosed with a crooked spine, which needed regular treatments, at which she was regularly sexually assaulted. 

Horning said the fact that she was being sexually assaulted didn't really cross her mind until after she was in college, and didn't really register until Nassar's trial began. Then she started getting emails and calls from her former teammates who wondered whether she had been abused. She stayed quiet.

"When it first came out, I didn't have the courage," she said. "It was so public. I just needed time — time to come to grips that I was a victim."

She had to quit her job as a schoolteacher because she was teaching kids who were about the same age she was when she was abused.

"It was just too traumatic," she said. "I wasn't doing the kids justice."

Now that Horning is going public with her abuse, she's hoping MSU will treat her like it treated those who came forward earlier.

"I'm hoping the school I graduated from will make it right," she said. "We need to be treated the same as the other victims. Since it's not in the public eye as much, (MSU) is kind of ignoring us. We went through the same as the earlier ones."

Contact David Jesse: 313-222-8851 or djesse@freepress.com. Follow him on Twitter: @reporterdavidj