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Judge questions proposed settlement in Dartmouth lawsuit

  • FILE — In this Wednesday, Nov. 14, 2018 file photo, from left back row, Annemarie Brown, Andrea Courtney, and Marissa Evans, and from left front row, Sasha Brietzke, Vassiki Chauhan, Kristina Rapuano, pose in New York. Dartmouth College has settled a federal lawsuit with nine women, including those pictured, who sued the school over allegations that it ignored years of harassment and assault by former psychology department professors. In a statement Tuesday, Aug. 6, both sides say the settlement includes $14 million for students who can prove they suffered abuse. The settlement's still subject to approval by a U.S. District Court judge in Concord. (AP Photo/Mary Altaffer, File) Mary Altaffer

Valley News Staff Writer
Published: 10/17/2019 9:54:46 PM
Modified: 10/18/2019 11:00:16 PM

CONCORD — A federal judge on Thursday raised technical questions about a proposed settlement in a class-action lawsuit stemming from the alleged sexual misconduct of three former Dartmouth College professors.

U.S. District Court Chief Judge Landya McCafferty said the $14 million settlement included “numerous positives,” including anonymity and “closure” for the alleged victims without subjecting them to a trial.

“There is, as you can imagine, momentum, positive momentum, behind this,” McCafferty said during a settlement conference in Concord on Thursday morning.

However, McCafferty also worried that legal precedent could prevent her from approving the class, or those eligible for damages, presented in the settlement and wondered whether the group was too broad.

“That really is, in my mind, the main hurdle,” she said.

In November, nine female science students and researchers in the Department of Psychological and Brain Sciences sued Dartmouth, saying they and dozens of others were sexually harassed by Todd Heatherton, Bill Kelley and Paul Whalen, three tenured professors who have since left Dartmouth. At least two of the women said they had been sexually assaulted.

A settlement was first announced in August and would provide each of the nine plaintiffs with at least $75,000. Under the deal, supplemental payments would be determined by a neutral third party retained by the plaintiff’s attorneys and based on several factors, including: the severity of allegations; the duration of the mistreatment; and the severity and duration of resulting emotional distress, physical illness, economic losses and other harm.

Included in the settlement are current and former female graduate students at Dartmouth who were graduate advisees or assistants of any of the three professors between April 1, 2012, and Aug. 31, 2017, and those who co-authored papers with the professors during that time period.

The class also includes those who do not fit within those categories but were graduate students in the department between March 31, 2015, and Aug. 31, 2017, and say they experienced harm as a result of the professors’ alleged misconduct. They each would be eligible for $1,000 and also could be eligible for supplemental payments.

In court Thursday, McCafferty compared the Dartmouth case to a 2013 class-action lawsuit that sought damages from the Shelby County (Ala.) Board of Education for students who were “injured, sexually harassed, abused or molested” over the 22-year tenure of a teacher who pleaded guilty to the abuse. That lawsuit also requested money for students who witnessed the teacher’s inappropriate conduct or were exposed to a “sexually hostile environment.”

However, a federal court judge declined to allow the case to move forward, saying the victims didn’t suffer similar injuries or share enough common grievances.

The accusations of the nine women suing Dartmouth are “horrendous,” McCafferty said, but was their experience like those of other graduate students and researchers in the Department of Psychological and Brain Sciences?

David Sanford, a New York-based attorney who is representing the plaintiffs, said Dartmouth’s alleged inaction following reports of misconduct by Heatherton, Whalen and Kelley is the common factor connecting the victims.

“Dartmouth knew over the period of time in question about the behavior of the three professors,” he said, adding that the college didn’t act appropriately to handle the behavior.

Dartmouth maintains that administrators took steps to remove the professors once the allegations of misconduct came to their attention and admits no wrongdoing as a part of the settlement.

While the victims don’t have identical injuries, everyone in the department suffered some harm, Sanford said. It was considered a “tight-knit group” and many of those interviewed in investigations reported witnessing inappropriate conduct with alcohol, groping or some form of sexual innuendo, he said.

“There was enough there to support a hostile environment claim,” Sanford said.

While the college is party to the settlement, it would likely raise questions akin to McCafferty​​​’s at trial, said Justin Wolosz, a Boston-based attorney representing Dartmouth in the case. However, Wolosz added that standards for approving a settlement are lower than class-action suits in active litigation.

McCafferty said both views went “a long way” toward addressing her concerns and gave attorneys another 14 days to file formal arguments. She’ll then decide whether to give the settlement her preliminary approval.

Sanford, the plaintiff’s attorney, said after the conference that the court was “extremely thoughtful” in its questions, adding that he looks forward to submitting further arguments.

Meanwhile, Dartmouth spokeswoman Diana Lawrence said the college hopes the judge will offer a preliminary approval to the settlement, adding that the college looks ”forward to strengthening the efficacy of our Campus Climate and Culture Initiative by further integrating the voices of survivors into the work.”

Tim Camerato can be reached at or 603-727-3223.

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