Dartmouth filing contests use of ‘Jane Doe’ pseudonyms in lawsuit

Valley News Staff Writer
Published: 5/15/2019 1:22:53 PM
Modified: 5/15/2019 8:18:33 PM

HANOVER — Dartmouth College is contesting the use of pseudonyms in the $70 million class-action lawsuit that alleges college administrators turned a blind eye to sexual misconduct by three former professors in the Department of Psychological and Brain Sciences.

In its more recent response, filed on Tuesday in federal court in Concord, Dartmouth contends that its ability to defend itself against the plaintiffs’ charges is compromised by the use of pseudonyms and that this use is particularly unfair “given Plaintiffs’ use of publicity as a sword.”

The filing comes in response to an amended lawsuit the plaintiffs filed earlier this month that added two new plaintiffs, Jane Doe 2 and Jane Doe 3, bringing the total to nine.

The suit alleges that college administrators ignored sexual harassment and assault for more than 16 years, despite knowing about the alleged misconduct of three now-former professors — Todd Heatherton, William Kelley and Paul Whalen. The professors retired or resigned last summer before the college could fire them following internal investigations that resulted in recommendations that they be terminated.

Both of the new plaintiffs have filed court motions seeking anonymity “due to the sensitive nature of the acts perpetrated upon them and to mitigate against additional extreme emotional distress that would result in publicly identifying them,” their filing said.

Six of the former students are named in the lawsuit, while another of the original plaintiffs is known as Jane Doe 1.

Dartmouth, in its opposition, contends that the sensitive nature of some of the plaintiffs’ allegations, which include sexual assault, is not “necessarily sufficient” to allow them to proceed under a pseudonym.

Instead, Dartmouth said, “Plaintiffs must show actual and reasonable risk of severe retaliation or other significant harm.”

In addition, Dartmouth points out that the plaintiffs are bringing not only their individual claims but claims on behalf of an entire class.

“Indeed, the very public nature of what a class representative is supposed to do — represent and stand in the place of other plaintiffs — is at odds with the request to remain anonymous,” Dartmouth said in its filing.

The college said the request for anonymity is especially “unfair” given that the six plaintiffs who are not using pseudonyms have made efforts to publicize the case and that the complaint specifically accuses members of the Dartmouth faculty and administration “of wrongdoing, despite the fact that Dartmouth (and the individuals) vigorously dispute any suggestion that they did anything wrong, much less contributed to the core allegations that underlie Plaintiffs’ claims.”

Jamie Moss, a spokesman for Sanford Heisler Sharp, the law firm representing the plaintiffs, declined comment via email on Wednesday.

“Our response will be set forth in the reply brief we submit in court,” Moss wrote.

Eric MacLeish, a Boston-based attorney who has represented victims of clerical abuse and litigated against several private schools in New England, said he was “appalled” by Dartmouth’s opposition to the use of pseudonyms.

“Many survivors elect not to use their names,” MacLeish said.

Preventing the use of pseudonyms forces survivors to choose between exercising their legal rights and seeing their names appear in the media, which can leave them open to stigma that survivors of sexual violence may face, he said.

MacLeish said he perceives Dartmouth’s opposition as an effort to coerce the plaintiffs into dropping their claims.

“Shame on Dartmouth,” MacLeish said. “The students at that school should be out protesting.”

But Harvey Wolkoff, a Boston-based attorney and 1972 Dartmouth graduate, said a class-action case is different than if the individual women were bringing cases against the college. The college needs to be able to determine whether the named members of the class accurately represent those who are not named.

“Dartmouth College has the right to know who their accusers are,” Wolkoff said.

This is not for the purpose of embarrassment or intimidation, Wolkoff said but so the college can have the ability to defend itself.

Dartmouth spokeswoman Diana Lawrence said in an emailed statement Wednesday that the college does not defend the former professors and commends “the bravery of the individuals who have stepped forward to expose misconduct by three former faculty members.”

“We deeply regret that any student experienced or was exposed to such conduct at Dartmouth,” she said.

But, she said, the use of pseudonyms “limits Dartmouth’s ability to defend itself. It hinders Dartmouth’s investigation of the claims and prevents proper evaluation of whether the new plaintiffs can serve as representatives of a class.”

Additionally, she said, college officials are “open to a fair resolution of all plaintiffs’ claims through an alternative to the court process and are exploring mediation.”

A criminal investigation into the actions of the professors is ongoing, a spokeswoman for the New Hampshire Attorney General’s Office said in a Wednesday email.

Nora Doyle-Burr can be reached at ndoyleburr@vnews.com or 603-727-3213.

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