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Darling family intends to sue FSU

Lawyers allege the school was negligent in the death of Devaughn Darling.


© St. Petersburg Times,
published August 29, 2001

The family of Devaughn Darling, the Florida State linebacker who collapsed and died after a strenuous offseason workout on Feb. 26, has taken the first step in bringing a wrongful death lawsuit against the school.

Michael A. Lewis, a partner in a prominent Stuart law firm who is representing the Darlings, complied with state law and notified the school in a certified letter dated Aug. 8 of the family's intent to sue. He has six months to file a civil suit.

"If we can't arrange a settlement with Florida State, then that's probably the next step," he said Tuesday.

If the case gets that far, Lewis' brief letter outlined some, but not all, of the crucial allegations: that Darling "experienced exhaustion, dizziness and other signs of extreme fatigue that were ignored by trainers and/or coaches," and that he was "deprived of water and/or other fluids" during the mat drills.

"No one drank water during the drills; it's understood," said Devard Darling, Devaughn's identical twin who recently transferred to Washington State.

Other players have said water was available, but that they only had time to take a quick gulp or two before moving to the next station in the grueling drills, FSU's signature offseason program.

Frank Rutherford, 36, Darling's cousin, told the Times that players, including Devard, have said if a player stopped to drink during the mat drills, he would be chided by the coaches.

"We're not going to allow them any kind of tactics in covering their tail and not accepting responsibility for Devaughn's death," he said. "I'll say that much."

According to a voluminous police report, Darling told teammates he had chest pains and could not see clearly, but no teammate said he saw Darling talk to the trainers or coaches. In fact, several players admitted they encouraged him to finish the drills despite his apparent struggles. He collapsed and died about an hour later.

He was 18.

The FSU police spoke to 4 coaches, 16 trainers and 21 players and exonerated the school, concluding that "there is no cause to believe that any action or lack of action contributed to or caused the death of Mr. Darling."

Leon County medical examiner David E. Craig found no definitive cause of death from an autopsy, but he noted that Darling carried a rare sickle cell trait. An increasing amount of research suggests the trait, the inheritance of one abnormal hemoglobin gene, can be a factor in exercise-related sudden death.

The Darlings have said they believe the water deprivation exacerbated the situation, but Craig previously told the Times he found no postmortem signs of dehydration.

"We're not looking at the mat drills in and of themselves being too demanding, but how they went through them and how they were treated as they went through them that is really what's caused us a major problem," Lewis said.

"I don't want to make it sound like Devaughn or Devard are weak physically or psychologically, but these are things you have to look at," said Monique Smith, 32, Darling's eldest sister. "These are behind-the-scenes things that football players endure and even people in the Army endure but are never brought to light."

FSU coach Bobby Bowden has relied on the drills throughout his career and had never before had such a tragic result.

That is no comfort for the Darlings.

"We have no animosity toward Florida State at all," Smith said. "They have to do what's best for them and we have to do what's best for us as well as for Devard and for Devaughn. ... It started snowballing the day Devaughn died, and six months later, it's still snowballing."

FSU general counsel Richard McFarlain, notified that Darling's father, Dennis Darling Sr., had hired an attorney on April 16, hasn't spoken to anyone about a possible settlement.

"That's what the courts are for; if there's a discrepancy and if someone feels they've been damaged, that's how we do it in this country," McFarlain said. "Some people might be surprised by it (the notice of intent to sue), but I've been at this a long time."

In an Aug. 14 letter obtained by the Times from FSU associate general counsel Leonard Helfand, information on the case has been forwarded to the State Division of Risk Management for "review and investigation." By then, FSU might have an attorney to handle negotiations or a suit.

McFarlain, according to records, has such high regard for Lewis' lead partner, Willie E. Gary, that he "strongly recommends that someone of equal stature be retained to represent FSU in this matter."

Gary, known as the "Giant Killer" and recently interviewed on 60 Minutes, has a track record for big paydays for his clients, mostly through settlements. But he did win a $500-million judgment against the Loewen Group, Inc., a funeral home operator, and settled for $175-million. He recently won a $50-million breach of contract suit for Roger Maris' family against Anheuser-Busch.

Lewis wouldn't indicate what monetary amount would be needed to end this case. While Florida Statutes limit the award for a wrongful death suit against a state agency to $100,000, if a plaintiff's attorney receives a jury verdict greater than that, he or she can ask the Legislature to eliminate the cap.

So far, the university would be the lone defendant and, Lewis said, it wouldn't be necessary to add individuals, including Bowden or his assistants, who oversaw the drills. Bowden declined comment.

"This terrible tragedy has left all of us with heavy hearts," athletic director Dave Hart said in a statement. "That remains the case. As I have stated previously, for me or anyone else in our department to discuss the legal elements relating to this tragedy would be inappropriate."

- Times staff writer Stephanie Scruggs contributed to this report.

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