Judge to ban UM from contacting potential victims of former doctor

Kim Kozlowski
The Detroit News

U.S. District Court Judge Victoria Roberts said Tuesday she will issue an order barring the University of Michigan from reaching out to any more potential victims of the late Dr. Robert Anderson, a former top physician accused of sexual assault by hundreds of former patients.

"I will issue an order today that there should not be any further communication," said Roberts.

The move comes after several attorneys representing alleged victims of Anderson raised concerns about UM contacting potential victims of the doctor in the middle of litigation against the university — and without the university alerting possible victims that lawyers are available to represent their interests.

Robert E. Anderson

The concerns were raised during a status conference call with Roberts regarding scores of lawsuits filed against UM linked to Anderson, the former head of University Health Service and team physician for the UM Athletic Department from the 1960s through 2003.

It came a week after UM announced it had widened its investigation and reached out to 300,000 alumni who attended during Anderson's tenure. Previously, the university announced it had sent emails or letters to 7,000 athletes.

Jonathan D. Selbin, a New York-based lawyer for the proposed class-action lawsuit against the university, said UM's outreach is concerning because it is contacting potential victims without letting them know of the possible class litigation.

"They have an obligation to let us know what they are sending out," said Selbin. "They probably have an obligation to get either our agreement or the court's approval for such communications. They need to disclose to folks, at a minimum, that there are lawyers representing their interests."

Rochester-based lawyer Powell Miller added that the more he has learned about the external investigation the university has sanctioned in the Anderson case headed up by law firm WilmerHale, the more he is concerned. 

"The University of Michigan does not have the right to take it upon itself to circumvent (the law), your honor's authority to communicate to the ... class under the guise of independence," Miller said.

Stephen Cowen, a Jones Day law firm attorney defending UM, addressed some of he concerns raised by lawyers suing the university.

“The university has not reached out to anyone it knows is represented (by a lawyer),” said Cowen. 

He also said it was the first time this issue has been raised.

"At the same time (lawyers) are mocking this independent investigation and calling it a whitewash ... the purpose of these communications, as you can read when you see them, is to encourage survivors to come forward and share their information so their stories can be heard," Cowen said.

UM spokesman Rick Fitzgerald added afterward that the university sent letters to all former student athletes and former students because "that is the best practice in these types of matters."

"The letters encourage people to share evidence with investigators and alerts them to free counseling services that are available," said Fitzgerald. "We are confident that WilmerHale is conducting this investigation in a completely independent fashion."

Fitzgerald also added that through June 18, there have been 383 unique complaints regarding Anderson that are being investigated by the WilmerHale team. 

But attorney Mike Cox called the judge's move "absolutely the best and right call" since UM had time to bring in outside investigators after former UM wrestler Tad Deluca wrote to Athletic Director Warde Manual in 2018 about Anderson's abuse. Though UM launched a 1 1/2-year-long police investigation into Anderson after that letter, the university did not decide to do an external investigation until an account of Anderson's alleged abuse emerged first appeared in The Detroit News in February.

"Since July 18, 2018, the General Counsel's office and the ... Office of Institutional Equity at the University of Michigan has known about Dr. Anderson abusing hundreds of athletes and before athletes, gay young men who saw him at University Health Service," Cox said

"It's a bit duplicitous and disingenuous to say they need to do an independent investigation now after lawsuits have been filed when they had a year and a half ...," he said. 

Cox, along with Roberts, suggested bringing WilmerHale, the law firm doing the investigation, into court discussions about the cases since the firm's final investigative report is not expected until the end of October, which is beyond the dates scheduled around the litigation.

"The end of October might be too late for the questions posed here," Roberts said.

Cox agreed.

"WilmerHale should be here and they should not be doing things that get in the way of the parties here and the court," he said. 

Stephen Estey, of the California-based law firm of Estey & Bomberger, reached out after the status conference, saying the firm represents nearly 50 UM alumni allegedly harmed by the university's handling of allegations against Anderson.

"Our alumni clients continue to wait for the university to do the right thing by compensating alumni for what's been taken from them," Estey said, "and also to ensure policies and procedures are in place for this never to occur again."