Former Patients of USC Gynecologist Might Opt Out of $215 Million Settlement Proposal

On October 19, 2018, the University of Southern California announced that it had come to a tentative agreement that it would allocate $215 million to a settlement fund for former patients of Dr. George Tyndall. At this time, there are currently hundreds of pending lawsuits in state and federal courts in Southern California and this settlement will resolve only a single class action currently pending before the United States District Court for the Central District of California.

The current proposed settlement creates three tiers with varying degrees of proof required. The first tier provides that any person treated for women’s health issues by Dr. Tyndall is entitled to $2,500 in compensation without any additional information regarding the experience. It also applies to all patients, regardless of when they saw Dr. Tyndall. The second tier allocates an additional amount on top of the $2,500 from tier 1 of between $7,500 and $20,000 to be determined based on a written claim for of the patient’s experience with Dr. Tyndall and any resulting injury described. The third tier allocates an additional amount from tier 1 of between $7,500 and $250,000 based on the same documentation required for tier 2 claims and the additional requirement that the claimant provide information during an in-person session with a licensed psychologist chosen by USC. Participation in any of the three tiers is confidential and will remain private.

Under the Federal Rules of Civil Procedure, any claimant may opt out of a proposed settlement and pursue a remedy through their own action. To this end, various plaintiff law firms are encouraging people to opt of USC’s propose settlement and instead file separate lawsuits against the university. So, that naturally gives rise to the question of whether or not a potential claimant should opt out of USC’s proposed settlement.

As an initial matter, a claimant should determine whether or not her claim is within the applicable statute of limitations in California. While the statute of limitations for assault and battery is generally two years in California, acts that fall within the definition of “sexual assault” will have a new statute of limitations for actions filed on or after January 1, 2019 due to a bill signed by Governor Jerry Brown on September 30, 2018. The new law provides that a victim of “sexual assault,” as defined by the new statute, now has ten years to file a claim. While current plaintiffs are arguing that the two-year statute of limitations does not apply, such an argument is uncertain at best and it will likely take considerable time for any award to be paid. So, a plaintiff should consider when a sexual assault occurred and then determine the applicable statute of limitations for bringing such a claim; keeping in mind the above-mentioned changes in California law. For this reason, any such plaintiff should consult with experienced legal counsel on this matter before making any decision to opt in or out of the proposed settlement.

The next determination for a claimant to make is how severe was her interaction with Dr. Tyndall. If it was merely an appointment with no memorable inappropriate conduct, then such conduct might fall into tier one of the proposed settlement. If there was some inappropriate conduct, but without any severe reaction or long-term consequences, this might fall into tier two of the settlement. Here, a claimant might want to consider the confidential nature of settlement in comparison to the generally public nature of litigation. The settlement process is private, whereas an individual lawsuit could require the claimant to be named publicly, and potentially sit through a deposition where that claimant’s experience would need to be laid out in detail before an opposing attorney. However, there are certain circumstances in which such lawsuits might be filed anonymously, and the plaintiff might be anonymized (i.e., listed as “Jane Doe”) in a lawsuit for sexual misconduct allegations.

Furthermore, a large portion, potentially up to 50% of any civil award, could presumably then be allocated to the claimant’s lawyer. Alternatively, a claimant could hope that they opt out of this class and participate in a separate lawsuit or another class action. However, class actions frequently end up being more about deterring and punishing defendants than they do about compensating individual class plaintiffs. As a result, individual members of large classes tend to receive small amounts of what appears to be a large aggregate award, particularly after plaintiff’s class counsel take their sizeable portions.

What’s left are claimants who suffered egregious conduct during examinations and suffered emotional distress and anxiety for more than a fleeting period. Individuals in this group, who would might fall into tier 3 of the settlement, face the more difficult choice. A sensational story, if taken to its conclusion at a jury trial, could receive greater compensation from such a jury award than from USC’s settlement fund. This would depend on whether evidence demonstrates that USC knew of and covered up Mr. Tyndall’s behavior, such that punitive damages could be appropriate. However, there are downsides. First, there is always a risk that a claimant could lose and recover nothing. Second, the process might not be private; however, as noted above, in certain situations the identity of a claimant might be protected from public disclosure. Moreover, it is not likely to be a particularly respectful or harmonious process. Depending on the facts, the opposing attorney may attempt to prove that the offensive conduct never occurred. Further, the opposing attorney may attempt to impugn a claimant’s credibility and downplay any actual injury in order to reduce a potential damages award. In all likelihood, this could be a painful and emotional process and one that could take over a year and a half to come to any resolution.

By contrast, the settlement fund requires only a single private consultation with a psychologist. While it is possible that such a licensed professional could be incentivized to minimize a claimant’s injury, he or she is far less incentivized to do so than an attorney retained by USC. Furthermore, the entire process would also likely take less than a year to complete from the date of this article, and possibly even less time depending on if/when the settlement is approved by the Central District.

Nonetheless, given the need to balance the above-mentioned facts, along with others beyond the scope of this article, any such claimant should consult with experienced legal counsel to determine whether her best course of action is to opt in or opt out of the proposed settlement.

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