Years ago, I tried a personal injury case dealing with a serious head injury before a jury in the U.S. District Court in Boston. My client, who suffered from post-concussive syndrome from an auto accident, was being cross-examined by defense counsel over a medical examination she underwent at the request of the defendant’s insurance company. The insurance company, when it arranged the medical evaluation of my client referred to it (as insurance companies typically do) an “independent medical examination”. When my client mistakenly used that description – “independent medical examination” – on cross-examination, she was immediately interrupted by the judge:
Judge: “Wait just a second. Did you have any say in the selection of the doctor who examined you?”
Client: “No, Your Honor.”
Judge: “Then why are you calling it an “independent medical examination?”
My client got his point and so did the jury: the insurance company was being awfully kind to itself when it used the word “independent”.
So too, was NFL Commissioner Roger Goodell being kind to himself when he announced in January 2015 that Ted Wells was going to conduct an “independent” investigation of the so called “Deflategate” charges. Goodell doubled down on the use of the word, “independent”, when he praised Wells’ report when it was released in May 2015. Like my judge in the head injury case, Judge Richard Berman picked right up on the application of “independent” by Goodell to the Wells Report during the two court hearings in Tom Brady appeal in U.S. District Court in New York. NFL attorney Daniel Nash did a commendable job for Goodell in trying to explain it away but Berman would have none of it.
When Judge Berman’s court decision to strike down Roger Goodell’s suspension of Tom Brady came down on Thursday, September 3, 2015, Berman hung quotation marks around the word, “independent”, seven different times in reference to Ted Wells, NFL Attorney Jeffrey Pash, “Pash/Wells” and Wells’ law firm. This was nothing short of a mocking rebuke by Judge Berman of the supposed independence of Ted Wells’ investigation of Brady and the Patriots, neither of whom had any say in the selection of the investigator.
Like my judge in the head injury case, it was Berman’s way of saying to Goodell, “Where do you get off calling your own investigation, ‘independent’?”
About the Author: James M. Lynch is a Massachusetts lawyer for Lynch & Owens, located in Hingham, Massachusetts, whose practice areas include DUI defense, divorce and personal injury.
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