john grant cox, ) ) summons v. ) clemson university, ) › nxs-wspatv-media-us-east-1 ›...

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STATE OF SOUTH CAROLINA ) IN THE COURT OF COMMON PLEAS ) COUNTY OF PICKENS ) C.A. No.: ______________________ ) John Grant Cox, ) ) Plaintiff,

) SUMMONS

) (Jury Trial Demanded) v. ) ) Clemson University, ) ) Defendant. ) )

TO THE DEFENDANT ABOVE-NAMED:

YOU ARE HEREBY SUMMONED and required to answer the Complaint herein,

a copy of which is herewith served upon you, and to serve a copy of your Answer to the

said Plaintiff upon the subscriber, at his office at 1007 East Washington Street, Greenville,

South Carolina, within thirty (30) days after the service hereof, exclusive of the day of such

service, and if you fail to answer the Complaint within the time aforesaid, judgment by

default will be rendered against you for the relief demanded in the Complaint.

/s/ W. Harold Christian, Jr. S.C. Bar Number: 1230 CHRISTIAN & DAVIS, LLC Post Office Box 332 Greenville, South Carolina 29602 (864) 232-7363 [email protected] Attorney for Plaintiff

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/s/ Joshua D. Christian S.C. Bar Number: 73820 CHRISTIAN & DAVIS, LLC Post Office Box 332 Greenville, South Carolina 29602 (864) 232-7363 [email protected] Attorney for Plaintiff Greenville, South Carolina Date: August 31, 2018

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STATE OF SOUTH CAROLINA ) IN THE COURT OF COMMON PLEAS ) COUNTY OF PICKENS ) C.A. No.: ____________________ ) John Grant Cox, ) ) Plaintiff, ) COMPLAINT ) (Jury Trial Demanded) v. ) ) Clemson University )

)

Defendant. ) )

That the Plaintiff above named, complaining of the Defendant herein, would show

this Honorable Court the following:

I.

That Plaintiff John Grant Cox is a resident of Greenville County, South Carolina.

II.

That upon information and belief, at all times relevant herein Clemson University

was and is a governmental entity or subdivision and owned, operated, and managed an

educational facility and/or a university known as Clemson University.

III.

That all allegations in this complaint include the acts and/or omissions of any and all

agents who were working on behalf of Clemson University, including but not limited to:

Travis Johnston, Danny Poole and Dr. Douglas “Len” Reeves.

IV.

That upon information and belief, at all times relevant herein:

a. Travis Johnston was the assistant athletic trainer for the baseball program;

b. Danny Poole was the director of sports medicine/head athletic trainer;

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c. Dan Radicovich was and is the Athletic Director;

d. Dr. Reeves was the staff/team physician.

V.

That Plaintiff Grant Cox was born on October 11, 1996, and is a resident of

Greenville County, South Carolina. Grant attended high school in Greenville County, where

he played baseball for his high school baseball team. In or around November 2014, Grant

committed to play baseball for Defendant Clemson University’s baseball team. Grant

received a partial scholarship of 25 percent in-state tuition to attend Clemson University to

play college baseball beginning in the fall of 2015.

VI.

Grant was a highly recruited and sought-after prospect who verbally committed in

August 2012 and signed with Clemson University in November 2014 to play baseball

beginning in 2015.

VII.

That Defendant Clemson University’s baseball team began fall workouts in or around

September 2016. During these workouts, the student athletes would be required to participate

in strenuous activity in training to prepare themselves for the upcoming season in the spring

2017.

VIII.

That in September 2016, while working out, Grant strained lower leg and was placed

in a “boot” on or about September 13, 2016, by an athletic trainer at Clemson.

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IX.

That on or about September 16, 2016, Grant was diagnosed with a strained soleus

began to wear an immobilization boot as prescribed. During this time, Travis Johnston was

treating Grant and had placed Grant in the immobilization boot. That in addition, during this

time, Travis Johnston was treating Grant, with various modalities including dry-needling and

heat. Further, that Grant was allowed and encouraged to engage in “baseball activities” while

wearing the boot.

X.

That on or before October 10, 2016, Grant was seen by Dr. McCallum at Blue Ridge

Orthopaedic Clinic and was diagnosed with an accessory soleus muscle and was to be treated

conservatively to give the injury a chance to “calm down.”

XI.

That subsequently, on or about October 13, 2016, was seen by Dr. Chad Hembree at

Blue Ridge Orthopaedic Clinic, where excisional surgery was recommended.

XII.

That on or about November 1, 2016, Dr. McCallum injected Grant’s injury to “get

him over the hump.”

XIII.

That as a result of concern expressed by Grant’s parents, Grant was then scheduled

to see Dr. Robert Anderson, a foot and ankle specialist at OrthoCarolina medical facility in

Charlotte, North Carolina, on or about November 22, 2016.

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XIV.

That on or about November 30, 2016, Grant underwent surgical excision of the

accessory soleus muscle by Dr. Robert Anderson at OrthoCarolina. As a result of and

following the surgery, Grant was to be splinted, non-weight bearing, and walking in a boot

for fourteen days after the surgery, to then begin gentle range of motion for two weeks. It

was noted that Grant was to begin gradually increasing his range of movement and weight

bearing two weeks later. The hope was for Grant to return to playing baseball in the spring.

Following the surgery, Grant was released for post-surgical care to the Clemson Sports

Medicine Program. Grant saw no physician for post-surgical care at Clemson.

XV.

That during December through the spring of 2017, Travis Johnston again began

aggressive therapy, exercises and dry-needling Grant’s foot and ankle and leg.

XVI.

That during December 2016 through March 2017, Travis Johnston and head coach

Monte Lee insisted that Grant perform practices including “baseball activities” in his

immobilization boot.

XVII.

That as a result of not progressing and continuing to have problems, Grant followed

up with Dr. Robert Anderson on March 24, 2017. On exam there was noted leg weakness

and calf atrophy. Dr. Anderson ordered an EMG and nerve conduction study as well as an

MRI, and other testing.

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XVIII.

That during this time in which Grant was seeing Dr. Anderson, Monte Lee and Travis

Johnston insisted that Grant participate in baseball practice in the immobilization boot, and

this forced participation continued throughout Grant’s treatment.

XIX.

That on April 13, 2017, Dr. Anderson informed Grant that his MRI was not abnormal.

However, testing revealed Grant had suffered nerve damage and had lost significant strength.

At this time, Dr. Anderson recommended independent consultation for rehabilitation.

XX.

That during this period in time, Grant had failed to adequately progress in his

recovery, lost significant mobility and had functional deficit in his leg as a result of the injury.

XXI.

That during this time, Travis Johnston was continuing to perform the dry-needling

procedure. He also continually berated Grant, calling him demeaning names. Furthermore,

he continued to pressure Grant to play and/or otherwise aggressively “push” Grant while he

was injured.

XXII.

That furthermore, it was apparent throughout this time that Travis Johnston and

Danny Poole believed that Grant was a malingerer. Travis Johnston recommended that Grant

receive a psychological evaluation, therapy and counseling.

XXIII.

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That furthermore, post-operatively, Grant was never seen by any Clemson Sports

Medicine physicians, and any care was solely by its trainer, Travis Johnston with no

physician oversight.

XXIV.

Furthermore, during his rehabilitation period, Grant suffered significant mental

bullying by the training staff.

XXV.

That in June of 2017, as a result of the continued requirement that he practice while

wearing the immobilization boot, Grant began to suffer from hip soreness and pain.

XXVI.

That after receiving an MRI on July 11, 2017, Dr. Jason Folk advised Grant that he

was suffering from a torn labrum in his right hip. That upon information and belief, the torn

labrum resulted from the inappropriate therapy and rehabilitation provided by the Clemson

Sports Medicine Program.

XXVII.

That subsequently, on August 8, 2017, Grant underwent surgery by Dr. Folk to repair

the torn labrum in his hip.

XXVIII.

That this significantly interfered with Grant’s ability to drive to classes and also

interfered with his ability to participate in baseball team activities.

XXIX.

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That subsequently it has been determined that Grant has suffered exertional

compartment syndrome, tarsal tunnel syndrome, excessive scar tissue, nerve injury and other

harm. That upon information and belief, these injuries resulted from Clemson trainers and

its medical providers’ continued dry-needling and failure to properly follow-up, treat,

rehabilitate, and provide adequate care for Grant’s initial injury. (These allegations are

addressed below and in a subsequent Notice of Intent to File a Medical Malpractice

Complaint which will be filed simultaneously.)

XXX.

That as a result of his injuries, Grant has lost his scholarship for participating in

collegiate baseball at Clemson University and has lost his ability to pursue a career in

professional baseball and lost all prospects of being drafted into professional baseball. That

as a further result, Grant has undergone pain, suffering, mental suffering and anguish, loss of

enjoyment of life and lost economic opportunity.

XXXI.

That during the time of his recruitment, Grant was advised that Clemson would

provide top-level sports medicine for all injured athletes.

XXXII.

That at the time Grant signed his letter of intent and accepted his scholarship,

Clemson University represented to Grant that he would be treated fairly, that he would

receive excellent care if he was injured, and that the Sports Medicine Program at Clemson

was properly trained and staffed. That at the time Grant was recruited to play baseball at

Clemson, it was represented that his scholarship would be renewed annually and that state of

the art treatment, medical care and training would be provided.

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For a First Cause of Action Against Clemson University (Negligence and Gross Negligence, Breach of Fiduciary Duty)

XXXIII.

Plaintiff hereby incorporates all prior allegations as set forth herein.

XXXIV.

The Defendant had, and further undertook, a legal duty to Plaintiff to properly

oversee his treatment, hire appropriate staff, and to possess and apply the knowledge and to

use the skill and care which would be appropriate, within the accepted standard of care, and

as would best facilitate the healing of the Plaintiff, should he be injured.

XXXV.

The Defendant also owed a fiduciary duty to the Plaintiff. There existed a special

relationship between Grant, the athletic department, his coaches and the Sports Medicine

Program at Clemson.

XXXVI.

The Defendant breached this fiduciary duty and was negligent as relates to the

incident in question. The Defendant’s negligence, errors, acts, and/or omissions include but

are not limited to:

a. Negligently failing to have or implement adequate procedures and/or

policies as follows:

1. Treating and clear student athletes to play after an injury;

2. Recording, maintaining and retaining medical records for student

athletes;

3. Referring/consulting with specialists in specialized medical fields

related to Plaintiff’s injury;

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4. Administering pharmaceutical drugs, dry-needling, and local

anesthetics and sterilization;

5. Informing student athletes of the risk and long-term implications of

playing with injuries.

b. Standards for hiring/training/supervision of doctors, athletic trainers,

coaches, and staff.

c. Negligence in failing to provide an independent orthopedist or orthopedic

surgeon for Grant who would provide for and act in Grant’s best interest.

d. Failing to provide protective equipment necessary for baseball players who

return to play after being treated for an injury such as the Plaintiff suffered.

e. Failing to have the procedures and protocols in place to prevent pressure

being applied to student athletes to play when they are injured.

f. Other breaches which may be discovered throughout litigation.

g. Returning players to play or practice following injury.

XXXVII.

The Defendant’s breaches of its duties were conscious, malicious, fraudulent,

wanton, reckless, and unrelenting. The Defendant’s breaches of its duties proximally caused

injury to the Plaintiff, which resulted in the Plaintiff’s suffering past and future damages,

including past and future medical expenses, past and future lost wages and/or lost earning

capacity, past and future pain and suffering, past and future mental anguish, past and future

physical disfigurement, past and future physical impairment, and past and future aggravation

of existing condition.

XXXVIII.

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As a direct and proximate result of the Defendant’s acts and/or omissions, Plaintiff

has suffered injuries as set forth above.

For a Second Cause of Action Against Clemson University (Negligent Hiring, Retention, Supervision, Training and Management)

XXXIX.


XL.

The Defendant employed Travis Johnston, Danny Poole and Dr. Douglas Reeves

during the incident and issues in question herein.

XLI.

The aforementioned individuals lacked the skill, training and aptitude necessary to

carry out the responsibilities of their positions, particularly relating to John Grant Cox and

his injury.

XLII.

The Defendant Clemson University knew or should have known that hiring and

retaining the aforementioned individuals would create unreasonable risk to members of their

student athlete body.

XLIII.

The Defendant failed to use ordinary care, or even slight care, in hiring, retaining,

supervising, training and managing the aforementioned individuals.

XLIV.

The Defendant’s negligence in hiring, retaining, supervising, training, and managing

the aforementioned individuals proximately caused the Plaintiff’s injuries and damages.

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XLV.

The Defendant’s actions and/or omissions were committed with conscious

indifference and malice and were willful, wanton and reckless.

XLVI.

The Defendant’s acts and/or omissions proximately caused injury to the Plaintiff,

which resulted in the Plaintiff suffering past and future damages, including past and future

medical expenses, past and future lost wages and/or lost earning capacity, past and future

pain and suffering, past and future mental anguish, past and future physical disfigurement,

past and future physical impairment, and past and future aggravation of existing condition.

XLVII.


has suffered injuries as set forth above and is entitled to judgment against this Defendant.

For a Third Cause of Action Against Defendant Clemson University (Negligent Misrepresentation)

XLVIII.


XLIX.

Defendant represented the following to the Plaintiff:

a. that Clemson’s baseball program had the nation’s best Sports Medicine

Programs;

b. that any injuries Plaintiff suffered would be treated properly;

c. that Plaintiff’s health would be a top priority as it related to playing baseball;

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d. that Plaintiff would not be placed in a compromising position of being forced

back on the baseball field or into activity likely to cause harm, or not in his

best interest.

e. That his scholarship would be renewed annually.

L.

The Defendant’s negligent misrepresentation took place in the course of the

Defendant’s business and in the course of transactions in which the Defendant had an interest

in recruiting players for the school’s baseball team.

LI.

The Defendant’s representation was a misstatement of facts and opinions. The

Defendant did not use reasonable care in communicating information to the Plaintiff.

LII.

Plaintiff relied upon the Defendant’s representations when the Plaintiff agreed to play

for the school’s baseball team.

LIII.

The Defendant’s acts, actions, and/or omissions were conscious, indifferent,

malicious, fraudulent, willful, wanton, and reckless.

LIV.

The Defendant’s misrepresentations proximally caused injury to the Plaintiff which

resulted in the Plaintiff’s damages, including past and future medical expenses, past and

future lost wages and/or lost earning capacity, past and future pain and suffering, past and

future mental anguish, past and future physical disfigurement, past and future physical

impairment, and past and future aggravation of existing condition.

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LV.

All injuries suffered by the Plaintiff, as set forth in this Complaint, past, present, and

future, were due to the negligence and gross negligence of the Defendant in its

representations to the Plaintiff.

LVI.



For a Fourth Cause of Action Against Defendant Clemson University (Intentional Infliction of Emotional Distress)

LVII.


LVIII.

Plaintiff brings this suit against the Defendant in the Plaintiff’s individual capacity.

LIX.

Defendant’s conduct as described above during the incident in question was

intentional and/or reckless.

LX.

Defendant’s conduct was extreme and outrageous.

LXI.

Defendant’s conduct proximally caused severe emotional distress to the Plaintiff.

LXII.

Plaintiff’s severe emotional distress which cannot be remedied by any other cause of

action.

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LXIII.

Defendant’s actions proximally caused injury to Plaintiff which resulted in the

Plaintiff’s damages, including past and future medical expenses, past and future lost wages

and/or lost earning capacity, past and future pain and suffering, past and future mental

anguish, past and future physical disfigurement, past and future physical impairment, and

past and future aggravation of existing condition.

LXIV.


has suffered injuries as set forth above and is entitled to damages.

For a Fifth Cause of Action Against Clemson University (Fraud)

LXV.


LXVI.

The Defendant represented to Plaintiff:

a. that Clemson’s baseball program had the nation’s best medical personnel;

b. that any injuries Plaintiff suffered would be treated properly;

c. that the Plaintiff’s health would be a top priority as it relates to playing

baseball;

d. that it would it would not place the Plaintiff a compromising position of being

forced back onto the baseball field or into activity which would cause harm,

or not in his best interest.

LXVII.

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The Plaintiff depended upon these representations when making his decision to

attend Clemson University and to play baseball for Clemson University.

LXVIII.

The Defendant’s representations to the Plaintiff were false statements of opinion. The

Defendant knew that its statements:

a. were false;

b. were based on untrue facts; and/or

c. that the Plaintiff would rely upon them because of the Defendant’s

specialized knowledge.

LXIX.

The Defendant made the false representations knowing that they were false.

LXX.

The Defendant made the false representations recklessly, as a positive instruction,

and with knowledge of their untruth.

LXXI.

The Defendant intended for the Plaintiff to rely upon these false representations

and/or expected that the Plaintiff would act on reliance upon the false representations.

LXXII.

The Plaintiff justifiably relied upon the Defendant’s false representations when the

Plaintiff agreed to attend Clemson University and to play for the Defendant’s baseball team.

LXXIII.

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The Defendant’s fraudulent conduct proximately caused injury to the Plaintiff,

including past and future medical expenses, past and future lost wages and/or lost earning

capacity, past and future pain and suffering, past and future mental anguish, past and future

physical disfigurement, past and future physical impairment, and past and future aggravation

of existing condition.

LXXIV.



For a Sixth Cause of Action Against Defendant Clemson University (Breach of Contract)

LXXV.


LXXVI.

By virtue of entering into a contractual agreement for a scholarship, giving the

Defendant valuable consideration in the form of playing baseball and giving up his ability to

play professional baseball, Plaintiff entered into a contract with Defendant wherein if they

signed the national letter of intent and athletics financial aid agreement, that the Defendant

would provide appropriate care if Plaintiff was injured and provide appropriate modalities

and appropriate personnel to treat any injuries suffered in the course of his playing collegiate

baseball. That further, the Defendant represented to the Plaintiff that the scholarship would

be renewed annually.

LXXVII.

The Defendant breached this contract by failing to provide appropriate care,

appropriate modalities, appropriate staff, appropriate policies and procedures, appropriate

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oversight of its Sports Medicine Program, and by creating an environment in which an athlete

would feel pressured to return to playing prior to being fully and completely healed of an

injury. That further, the Defendant cancelled or refused to renew the Plaintiff’s scholarship.

LXXVIII.

That as a direct and proximate result of the Defendant’s failure to comply with such

agreement and in breaching such agreement as mentioned above, the Plaintiff has suffered

injuries and damages, including past and future medical expenses, past and future lost wages

and/or lost earning capacity, past and future pain and suffering, past and future mental

anguish, past and future physical disfigurement, past and future physical impairment, and

past and future aggravation of existing condition.

Medical Malpractice (For a First Count)

LXXIX.


LXXX.

Plaintiff hereby incorporates the subsequent Notice of Intent to File a Medical

Malpractice Suit, which will be filed simultaneously with this complaint, and incorporates

all factual and legal allegations in that complaint into this complaint.

LXXXI.

That after Grant’s lower leg, foot and ankle injury as set forth above, and before his

surgery on November 30, 2016, the Defendant, Clemson University, by and through its

Sports Medicine Program, including, but not limited to, treatment through its athletic trainers,

failed to act as reasonably prudent medical providers, trainers, therapists and other

caregivers. That during this time, the standard of care required as follows:

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a. that the Sports Medicine Program provide reasonable and adequate

rehabilitation;

b. that the Sports Medicine Program not place the patient in a walking boot

without a physician’s order;

c. that the Sports Medicine Program not instruct the patient to engage in baseball

drills wearing a walking boot;

d. that the Sports Medicine Program not engage in “dry-needling” without

adequate training and supervision, physician order, informed patient consent,

and full documentation of the procedure;

e. that the Sports Medicine Program not engage in “dry-needling” of the injured

soft tissue area.

f. that the Sports Medicine Program not provide heat therapy in the early stages

of a soft tissue injury;

g. that the Sports Medicine Program engage in adequate physician oversight of

the rehabilitation of the injured player;

h. having a proper chain of command and responsibility for treatment between

physician, trainer, therapist and patient;

i. knowing how to properly use dry-needling and only using it in the proper

circumstances;

j. properly communicating with the patient;

k. heeding the complaints of the patient;

l. recognizing inadequate progression, recovery and healing;

m. understanding the seriousness of the patient’s presenting symptoms;

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n. properly documenting the treatment and progress for the patient;

o. following a physician’s instructions regarding rehabilitation and therapy;

p. having qualified athletic trainers to provide care to patients such as John

Grant Cox;

q. providing accurate information to physicians;

r. having a system in place to ensure a proper chain of command and

supervision;

LXXXII.

That the Defendant Clemson University, by and through its agents, servants and

employees, fell below the accepted standard of care for reasonably prudent athletic programs,

medical care providers, athletic trainers, team physicians, sports medicine programs and

others connected to the care of John Grant Cox and were willful, wanton, negligent, careless

and grossly negligent and below the accepted standard of care, among others, in the following

ways:

a. failing to provide reasonable and adequate rehabilitation;

b. placing the patient in a walking boot without a physician’s order;

c. instructing the patient to engage in baseball drills wearing a walking boot;

d. engaging in “dry-needling” without adequate training and supervision;

e. engaging in “dry-needling” of the injured soft tissue area.

f. performing heat therapy in the early stages of a soft tissue injury;

g. providing adequate physician oversight of the rehabilitation of the injured

player;

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h. failing to have a proper chain of command and responsibility for treatment

between physician, trainer, therapist and patient;

i. failing to understand and use proper dry-needling methods and failing to use

dry-needling in the proper circumstances;

j. failure to properly communicate with the patient;

k. failing to heed the complaints of the patient;

l. failing to recognize inadequate progression, recovery and healing;

m. failing to understand the seriousness of the patient’s presenting symptoms;

n. failing to properly document the treatment and progress for the patient;

o. failing to follow a physician’s instructions regarding rehabilitation and

therapy;

p. failing to have or provide qualified athletic trainers to provide care to patients

such as John Grant Cox;

q. failing to provide accurate information to physicians;

r. failing to have a system in place to ensure a proper chain of command and

supervision;

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Medical Malpractice (For a Second Count)

LXXXIII.

That following surgery to John Grant Cox on November 30, 2016, that the Defendant

Clemson University, by and through its agents, servants and employees, fell below the

accepted standard of care for reasonably prudent athletic programs, medical care providers,

athletic trainers, team physicians, sports medicine programs and others connected to the care

of John Grant Cox and were willful, wanton, negligent, careless and grossly negligent and

below the accepted standard of care, among others, in the following ways:








player;








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therapy;





supervision;

LXXXIV.

That following surgery to John Grant Cox on November 30, 2016, that the Defendant

Clemson University, by and through its agents, servants and employees, fell below the

accepted standard of care for reasonably prudent athletic programs, medical care providers,

athletic trainers, team physicians, sports medicine programs and others connected to the care

of John Grant Cox and were willful, wanton, negligent, careless and grossly negligent and

below the accepted standard of care, among others, in the following ways:







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player;











therapy;





supervision;

LXXXV.

That all of the above negligent acts and omissions, all of which fell below the

accepted standard of care for trainers, sports medicine departments and medical providers,

was a direct and proximate cause of the injuries and damages sustained by the Plaintiff

herein, including, but not limited to, the following:

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a. a labral tear;

b. tarsal tunnel syndrome;

c. compartment syndrome;

d. nerve injury;

e. excessive scar tissue;

f. extended period of debility;

g. pain and suffering;

h. medical costs and expenses;

i. loss of ability to engage in baseball activity;

j. permanent injury and damage;

k. loss of opportunity to play college and professional baseball.

WHEREFORE, the Plaintiff prays for judgments against the Defendant as to each

and all causes of action and counts set forth above for damages to be determined by the trier

of fact of this case and for the costs and expenses of this case.

The Plaintiff requests a jury trial.

Respectfully submitted on this the 31st day of August, 2018.

/s/ W. Harold Christian, Jr.

S.C. Bar Number: 1230 CHRISTIAN & DAVIS, LLC Post Office Box 332 Greenville, South Carolina 29602 (864) 232-7363 [email protected] Attorney for Plaintiff

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/s/ Joshua D. Christian S.C. Bar Number: 73820 CHRISTIAN & DAVIS, LLC Post Office Box 332 Greenville, South Carolina 29602 (864) 232-7363 [email protected] Attorney for Plaintiff

john grant cox, ) ) summons v. ) clemson university, ) › nxs-wspatv-media-us-east-1 ›...

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