GREENSBORO - In what could have been the end of a three-year legal battle between Duke University and Heather Sue Mercer, Trinity '98, the verdict came yesterday in favor of the anguished ex-football player.
Mercer was awarded a total of $2,000,001 in damages-$2 million of which was meant to punish and deter the University from ever again showing deliberate indifference to complaints of discrimination.
The jury's compensatory award of $1 represents its belief that Mercer deserved to be compensated for the damages she incurred, but that those damages could not be measured.
After deliberations that lasted just over two hours, the five-woman-and-three-man jury issued its verdict in favor of the plaintiff on all questions:
Yes, gender had been a motivating factor in the treatment of Mercer;
No, the actions of the defendant would not have been the same had she been a man;
Yes, the necessary Duke officials were made aware of the discriminatory accusations; and
Yes, they acted with deliberate indifference to those charges.
"I feel great," Mercer said. "I worked for years to be heard. I was heard by a jury of my peers, they ruled in favor of me. I understand it as a complete victory."
Mercer plans to put the award, which she called "icing on the cake," into a scholarship fund she will create for female placekickers.
But John Burness, senior vice president for public affairs and government relations, said in a statement last night that the case is not over yet.
"We're obviously disappointed with the jury's finding and are confident the judgment will be rectified on appeal," he said.
And when other University officials, both past and present, were informed of the decision, they could only express disbelief.
"You're kidding me, you got to be kidding," said former football coach Fred Goldsmith. "I just basically.... The only thing I can say is what I said about her kicking ability. She didn't have the ability. That was apparent to the people that had seen
Myrna Adams, special assistant to the executive vice president and former vice president for institutional equity, was shocked.
"I thought Duke had presented a very strong case," she said. "I thought it would come out with a different resolution, favorable to the University."
After hearing the verdict in favor of the plaintiff, both sides were given 15 minutes to speak to the jury concerning damages.
Although both sides refused to specify an amount they thought was appropriate, the plaintiffs requested that Mercer receive at least the cost of four years of tuition as remuneration for her experiences at Duke.
"[They] took $120,000 from Heather Sue for her college experience," said Mercer's attorney Burton Craige. "They need to give that money back-a full refund."
Duke attorneys countered that Mercer's Duke degree allowed her to procure a high-paying job at Charles Schwab in New York and that because her parents paid for her education, the court could not award Mercer the refund.
Craige also asked that the jury include in compensatory damages the short-term, long-term and permanent emotional effects of the discriminatory treatment Mercer endured as a member of the football team.
In his statements, John Simpson, the attorney for the University, urged the jury to focus not on emotion, but on the evidence. Because Mercer did not seek medical attention and was never diagnosed as having depression or any other clinical disorder, Simpson said that emotional damages could never be quantified and therefore should not be awarded.
In his instructions to the jury, Federal Court Judge James Beaty told the panel that if it believed the University acted with malice or reckless indifference toward Mercer's discrimination claims, then it could also award punitive damages.
Mercer's attorneys argued that the jury ought to use this option in order to deter the University from behaving similarly in the future.
As for the amount, Craige said the
In response to this suggestion, Simpson argued that the University did not "go after" Mercer and acted with no malice, so the jury could not, by law, award punitive damages.
Less than an hour later, the jury emerged and announced its decision.
"I'm very much surprised-well, I was first surprised it ever went to trial and now I'm surprised.... I thought if we were guilty of anything it was letting her come out in the first place," said assistant football coach Fred Chatham, who worked with Mercer and the team's other kickers. "The jury must have seen something I must not be aware of."
Athletic Director Joe Alleva was also taken aback at the case's outcome.
"Of course I'm disappointed. I'm just disappointed. I'm surprised and I'm disappointed," Alleva, who became Duke's athletic director in 1998, said from his Durham home. "I think that's more than what she was even asking for, and I'm very surprised."
Simpson, Duke's attorney, was exasperated as he left the federal courthouse here.
"We're disappointed by it. Like they say in football, I left everything on the field," he said.
Although at the end of the trial Simpson would not confirm whether the University would take further action, several University officials predicted a win in the appeal.
"It seems likely that we can [win]. At this point its hard to be totally confident about anything," Adams said. "My confidence is shaken a little bit, [but] there certainly seems to be grounds for us to win on appeal," Adams said.
President Nan Keohane was out of town yesterday evening and was unavailable for comment.
"I haven't had a chance to even digest this," said Tom Butters, athletic director from 1977 to 1998.
Ambika Kumar contributed to this story.
Get The Chronicle straight to your inbox
Signup for our weekly newsletter. Cancel at any time.