The fight over a $180 million lawsuit filed against Cornell by the father of a student who committed suicide has intensified in the last month, with both sides toughening their rhetoric and accusing each other of distortions and ethical improprieties.
Cornell filed a motion to dismiss the lawsuit on Tuesday, arguing that the father and his attorney failed to present any facts that could prove their case. Last month, the father’s attorney filed a motion for recusal, asking the judge to step aside because of several connections he has to Cornell.
The lawsuit argues that Cornell, the City of Ithaca and several University administrators “were negligent, careless and reckless” because they did not do enough to prevent suicides on bridges on or near campus. The suit was filed in November by Howard Ginsburg ’70, whose son, Bradley Ginsburg ’13, died in Fall Creek Gorge in 2010 after jumping from the Thurston Avenue Bridge. Bradley Ginsburg’s death was part of a string of student suicides that led to fences on bridges and intensified mental health programs on campus.
Father’s Concerns About the Judge
In last month’s motion, Howard Ginsburg’s attorney argued that the judge in the case, David Hurd ’59, should recuse himself because of his ties to Cornell. The motion said that, in addition to being an alumnus, the judge is listed as an “honor roll donor” to the University and has acted as a judge in the law school’s moot court competition.
“In the strongest of terms, we state that a reasonable person would see that Your Honor’s Cornell affiliations, experiences and relationships constitute the appearance of partiality,” Ginsburg’s attorney wrote in a letter to Hurd earlier this month.
Ginsburg, in an interview Tuesday, emphasized that he would be more confident his lawsuit was getting a fair chance if a different judge took the case.
“I want to deal in a straight game. I don’t want to deal in a game that could be rigged,” he said.
Cornell countered that Ginsburg’s allegations of bias “are not, by any stretch of the imagination, sufficient to warrant recusal.” The University concluded that there is no evidence to “question the integrity and impartiality of the Court.”
But Ginsburg and his attorney also took issue with Cornell’s response. The lawyer wrote a letter to Hurd about a week later to fight what he saw as unfair characterizations by Cornell and its lawyer, Nelson Roth, deputy University counsel.
“It is totally wrong and intentionally misleading for Mr. Roth to make the statement that [our] motion for recusal ‘cast doubt upon Your Honor’s integrity,’” Ginsburg’s attorney wrote. “What we say has absolutely nothing to do with Your Honor’s integrity and ethics.”
“Anybody with any empathy would understand how [Ginsburg] would be more than extremely upset knowing that the case was going to be heard by a jurist with broad and continuing Cornell affiliations, experiences and relationships,” the attorney stated in his letter to Hurd.
Phone Call to the Judge
Ginsburg’s concerns about Hurd’s relationship with Cornell were heightened, he said, after he learned about a phone call Roth made to the judge’s office.
Earlier this month, Roth put Bradley Ginsburg’s suicide note under seal to avoid making it available to the public. He sent a letter to Hurd to request the seal. The letter, which was copied to Ginsburg’s attorney, referenced a previous phone call to “Your Honor’s Chambers” regarding the request to file the suicide note under seal.
In a subsequent letter to the judge, Ginsburg’s lawyer argued that the phone call mentioned in Roth’s letter violated a number of rules regarding communication between judges and lawyers.
“You have to have the other attorney present. You can’t talk about the case with the judge. You could be disbarred for that,” Ginsburg said in an interview Tuesday. “The fact that Roth asked him to sign off on something without the proper procedures indicates a familiarity with this judge.”
As of Wednesday, Cornell and Roth did not appear to have sent a response to the judge regarding Ginsburg’s allegations.
Possible Distortion
But Ginsburg and his attorney did not escape an accusation that they had also made a misstep.
In their motion for recusal, they included a quote from Roth — which originated from an email he sent to Ginsburg’s attorney — that appeared to indicate he also wanted Hurd to step aside. Following the quote, Ginsburg’s attorney wrote that he “fully agrees with Mr. Roth, and is making this motion seeking recusal or disqualification of Judge Hurd.”
But Roth, calling the attorney’s use of his quote inaccurate and improper, responded that Ginsburg’s attorney “attempted to mislead the Court by suggesting that I agreed with his motion.”
The exchange typified an apparent escalation in rhetoric between the two sides, who have occasionally gone beyond arguing the lawsuit and attacked each other instead.
“I don’t like the guy, but I’m professional,” Ginsburg said on Tuesday, referring to Roth. “But this guy, with a lot of the stuff he’s done, he has not acted in a professional manner.”
Arguing the Lawsuit
If Cornell’s motion for dismissal of the lawsuit is not successful, it will still be months, if not longer, until the lawsuit is decided.
Ginsburg insists that he is not pursuing the suit for the money — although the lawsuit asks for $180 million from Cornell, the City of Ithaca and several University administrators. Rather, he said he wants to hold administrators responsible for what he sees as their failure to take action before his son committed suicide.
“We want someone to say, “We fucked up, and we’re sorry, and what do you want us to do to make amends?’” Ginsburg said in an interview in November, adding that the money was not important to him. “I’d live in a car and die a thousand deaths to get Bradley here.”
The Thurston Avenue Bridge, from which Bradley Ginsburg jumped, is owned by the City of Ithaca. But the suit holds Cornell equally responsible for the bridge, arguing that the University “has a leadership role relative to safety issues regarding the bridge.”
The University is now working with the City of Ithaca to install nets under six of the seven bridges on or near campus. The seventh, the Suspension Bridge over Fall Creek Gorge, will be enclosed by protective netting.
In its motion to dismiss the lawsuit, Cornell argued that Ginsburg and his lawyer had not presented any evidence that could prove their case. There was no way the University could have known of Bradley Ginsburg’s intentions, the University said.
“No one had any indication that [Bradley Ginsburg] was even depressed, much less suicidal,” Cornell said in the motion for dismissal. “In fact, all available information … indicates that [Bradley Ginsburg] was a well-adjusted, extremely successful student who had made the transition from high school to college, both academically and socially, without exhibiting any concerning behavior of any kind.”
“However, rather than accept that his son tragically caused his own death, [Howard Ginsburg] instead mischaracterizes the contents of the evidence with speculative and self-serving attempts to absolve his son of any fault, and instead blame the Cornell defendants,” the University’s motion stated.
In 1981, Cornell won a similar lawsuit that was filed by the parents of a student who committed suicide. The parents of Jonathan Levin ’79 sued the University and Ithaca for $1 million after Levin jumped to his death from the Stewart Avenue Bridge over Fall Creek Gorge.
The parents in that suit argued that Cornell and Ithaca were negligently responsible for their son’s death because of a lack of suicide barriers on bridges and because Levin had spent the night before his death seeking psychiatric help in Cornell’s Sage Infirmary. Levin left the infirmary without the knowledge of its staff, Cornell’s associate counsel told The Sun in 1981. A jury decided the case in Cornell’s favor.
A few years earlier, in 1977, the father of another student who jumped from a bridge sought a court order to require Ithaca to install suicide barriers. The father, Daniel Kram, took the city to court after the Board of Public Works decided not to build barriers “because of financial, aesthetic and effectiveness considerations,” according to a Sun article.
A judge ruled against Kram in 1978, and no bridge barriers were installed.
Original Author: Michael Linhorst