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Late-night settlement ends long court fight

ALBUQUERQUE, N.M. — T he end of a long-fought lawsuit against the University of New Mexico came suddenly in the night for Cynthia Herald.

For eight days of testimony in an Albuquerque courtroom and eight years of legal battles before that, we had heard Herald’s story spool out like a bad dream – how she as a second-year anesthesiology resident at the UNM Health Sciences Center was raped by a senior anesthesiology resident in June 2009 and how she, and not he, was later expelled from the program.

Herald sued UNM and its entities in 2011, lost at trial in 2013 but successfully appealed a previous ruling by state District Judge Shannon Bacon, got a second trial and a new round of having her life scrutinized in open court.

UNM officials had argued that they had good reason to fire Herald. She had a substance abuse problem, they said. She was not cooperating, they said. She was a danger to patients, they said. They said they had tried to help Herald in her hour of need, that they had offered her counseling and support and remedial medical training and mentoring, but she had refused nearly all of it.

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“I don’t want to do anything about it,” she had written in an email to a UNM faculty member, according to testimony.

But in what was literally an eleventh-hour decision – the phone call between attorneys coming at 11 p.m. Thursday, the night before closing arguments and jury deliberations – UNM offered to settle the case.

It was over, just like that.

Although neither side is allowed to reveal the details for six months, Herald was pleased with the outcome.

Perhaps the UNM folks had looked into the eyes of the jurors and decided they had lost them.

Perhaps they knew that if jurors had sided with UNM, Herald’s attorneys, Randi McGinn and Lisa Curtis, would almost certainly file an appeal and the case would go on and on.

Perhaps they agreed with the judge that the state Whistleblower Protection Act under which Herald had filed her claim was too poorly worded to argue well, even by strong veteran attorneys like UNM’s Patricia Williams and Lorna Wiggins.

Perhaps, as the judge had admonished, the case had grown too cantankerous, too unwieldy, punctuated as it was with two motions for mistrial, countless objections, a missing juror and a crying witness after McGinn confronted her outside court and condemned her new, unexpected testimony as “chickenshit.”

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“You all hate this case,” Bacon had barked in court Thursday.

Perhaps they realized that the ground had shifted, that women across the country were coming forward with their stories of sexual abuse and harassment by powerful men in powerful institutions and how finally, finally, they were being heard. They were being believed. Perhaps the jury would believe Herald, too.

Perhaps they simply decided it was long past time to cut their losses and move on.

“Ensuring the safety and well-being of our patients is a critical priority,” Dr. Paul Roth, UNM Health Sciences Center chancellor, said in a statement. “Cases like this demonstrate the need for us also to renew our commitment to timely and appropriately addressing allegations of sexual harassment and sexual assault.”

I sat in the courtroom for nearly every minute of testimony, and just as Bacon had said, it was a cantankerous two weeks, each side presenting witnesses with wildly different recollections of what had transpired eight years ago.

What seemed to be agreed upon was that Herald had been raped and needed help.

But what that help looked like or whether it had been offered at all – well, that was up for heated debate.

But there are a few things that UNM would be wise to look at if it truly wants, as Roth says, to more timely and appropriately address allegations of sexual harassment and sexual assault.

That begins when Herald was escorted into a room and asked about the rape by her three male supervisors, who should have never been the ones to question her. According to the National Center for Higher Education Risk Management and UNM’s own policies, a report of sexual assault should be sent to an internal audit department with examiners trained in dealing with victims.

No notes were kept at that meeting, another policy violation, setting up an intractable “he said, he said, he said, she said” scenario.

Her accused rapist was never interrogated, never reported to law enforcement, never questioned about other allegations against him, including reports that he had an alcohol problem, repeatedly showed up for work hung over and exhibited violent, misogynistic tendencies toward women. (He’s now a doctor working in a pain clinic outside Austin, by the way.)

Witnesses for UNM say they never spoke to the accused rapist because Herald had asked them not to.

“Dr. Herald did not want anything to be done,” Dr. David Sklar, associate dean for graduate medical education at the time, testified. “Anything more would have violated her wishes.”

But UNM policy says that her supervisors should have reported the allegations of rape to law enforcement – something Herald had not done and says she was encouraged not to do for the sake of the medical school’s reputation – if not for her safety, then for the safety of other UNM staff and patients.

UNM officials also testified that at her request they did their best to keep Herald separated from her accused attacker, assigning them to different facilities. But Herald presented at trial a calendar in which she had marked the shifts she had seen her accused attacker.

Herald testified that she was denied a leave of absence several times to deal with her post-traumatic stress disorder before she was finally given a month off. But UNM officials testified that she had never requested time off.

UNM officials also testified that Herald’s performance had gone downhill and that they had grown concerned with what they believed was her inability to keep up with her class, possibly exacerbated by a debilitating dependency on medications such as Ambien and Ativan. Several witnesses had reported seeing her at the hospital on one occasion slurring her words, stumbling and mishandling basic medical procedures, putting patients at risk.

Therapeutic assessments, according to testimony, later found no substance abuse concerns. By then, however, Herald was on her way out. She was fired in June 2010.

Details of the settlement are confidential for six months. Had the jury sided with Herald, UNM could have faced a payout of nearly $4 million in the cost of lost pay alone.

It’s not just the money that matters to Herald.

“I feel a huge sense of relief and just a sense of resolve after such a long, long road,” she said. “It looks like we’re finally effecting some change.”

As they walked down the hallway from the courtroom on Friday, attorney Curtis slung her arm around Herald’s shoulder.

“Now it’s a new day,” Curtis told her. “Justice matters.”

I so hope that is true.

UpFront is a front-page news and opinion column. Comment directly to Joline at 823-3603, jkrueger@abqjournal.com or follow her on Twitter @jolinegkg. Go to www.abqjournal.com/letters/new to submit a letter to the editor.


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