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Wheeler's Mother May Try to Settle

A legal counterpunch is weighed after wrongful death lawsuit against Northwestern is joined with others against ephedra product maker.

March 11, 2004|Lance Pugmire | Times Staff Writer

The mother of the late Northwestern football player Rashidi Wheeler is considering a settlement with an ephedra product maker after a federal judge grouped the family's wrongful death lawsuit against the university with more than 50 other suits in U.S. Bankruptcy Court in New Jersey.

Northwestern has named New Jersey-based Nutraquest Inc. and another ephedra product maker as third-party defendants in the Wheeler family's suit against the university, claiming that Wheeler ingested the since-banned supplement in Nutraquest's Xenadrine RFA-1 and that the products caused his death.

Wheeler's family contends the 22-year-old senior safety from La Verne Damien High died after collapsing on a practice field Aug. 3, 2001, solely from an asthma attack provoked by a grueling conditioning drill that was declared mandatory by Northwestern football Coach Randy Walker.

Linda Will, the mother of Wheeler, said Northwestern's third-party claim against Nutraquest now looks like "masterful artwork," because it ended up removing the case from Cook County jurors, who were more likely to be familiar with the highly publicized death than would a jury in New Jersey.

Will said she feared her son's death "would now be painted as an ephedra case in that courtroom."

Will acknowledged Wednesday that she was weighing the legal counterpunch of striking a financial settlement with Nutraquest, perhaps for as little as $1, hoping that agreement would effectively remove Nutraquest from the case against the university and leave U.S. District Judge Garret E. Brown Jr. in Trenton, N.J., with no option but to remand it back to Illinois.

"It is my understanding that if we settle directly with the plaintiff [Wheeler's family], that would bar any third-party claim from Northwestern against us," said Shane Freedman, Nutraquest's general counsel.

The obstacles to such a deal, Will said, are that her former husband and co-plaintiff George Wheeler Jr. doesn't want to accept a low-dollar figure from Nutraquest, and that the arrangement would give Northwestern ammunition to later argue, "Look, they [the Wheeler family] took money from the ephedra makers -- it's not our fault," Will said.

"Northwestern would use a settlement to their advantage, because it so badly wants to clean up its public image."

Walter Jones Jr., a Northwestern attorney, said a Wheeler family-Nutraquest settlement would not guarantee a return to Cook County, insisting that "nothing will save them from New Jersey."

Brown's order "means we get a chance to put the entire case in front of one jury, and that jury can decide all of the issues together," Jones said. "It would be unfair to not have the peddlers of the poison in that courtroom with us."

Cook County Judge Kathy Flanagan previously severed Nutraquest from the suit when Brown ruled in January to consolidate the case with other suits against Nutraquest, including that filed by the widow of Baltimore Oriole pitcher Steve Bechler.

Brown noted in his Tuesday decision that Wheeler's family filed suit against Nutraquest in July 2003, before dismissing the claim in October, five days after Nutraquest declared bankruptcy.

Will said Nutraquest is "anxious to settle," and has previously offered a substantial settlement figure that was rejected because "ephedra did not kill my son -- Northwestern did."

Freedman declined to discuss the details of previous settlement talks.

"It is our position we have no liability in this death, but there are practicalities associated with litigation -- when, in some cases, it may make sense to settle rather than litigate," Freedman said.

"Nutraquest was never the proper defendant in this case. It is our opinion Northwestern will bear the full responsibility for Rashidi Wheeler's death."

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