In December 2023, a jury in a Pennsylvania federal court entered the largest Title IX verdict in history — $15 million — against Thomas Jefferson University (the "University") in a lawsuit involving its handling of a sexual assault investigation against a former Rothman Institute surgeon, Dr. John Abraham ("Dr. Abraham").1 At the pretrial stage, the court excluded text messages related to the sexual assault and night in question because the messages were not provided to the University as part of its investigation, and therefore, were not deemed to be relevant to the question of whether the University conducted a fair investigation.
After a four-day civil trial, jurors determined that the University's leadership violated Dr. Abraham's civil rights by discriminating against him as a male and intentionally interfered with his ability to earn money as a Rothman Institute surgeon and partner.2 A few days later, the jury awarded Dr. Abraham $15 million in damages.
In a post-trial Memorandum, the court stated that it "appropriately" excluded the text messages before trial but erred by not allowing the University to impeach Dr. Abraham with the texts once he "opened the door" to certain issues at trial. As a result, the Court granted the University's motion for a new trial. The case ultimately settled before the new trial began. Although the underlying verdict was vacated, an important takeaway for entities conducting Title IX investigations is that evidence that is highly relevant to the underlying issues may be excluded at trial if the evidence is not included in the investigation.
Factual Background – The Alleged Sexual Assault and Related Investigation
This lawsuit stemmed from a pool party in 2018 that Dr. Abraham hosted at his Main Line home for the residents in the orthopedic program and hospital staff. Resident Jessica Philips ("Ms. Philips") was a 30 year old second year resident at the University and attended the party.3 Throughout the evening, Ms. Philips became intoxicated and, realizing she was unable to drive, decided to sleep on Dr. Abraham's couch in the library until she was sober enough to drive home.4 The next morning, Ms. Phillips reported waking up in Dr. Abraham's bed with him beside her, disoriented, and bruised.5 She reported being "frozen" in bed that morning when Dr. Abraham kissed and touched her, then entered her.6 She said the interaction that morning ended when Dr. Abraham received a phone call, and she was able to leave.7
Dr. Abraham had a different story. According to Dr. Abraham, Ms. Philips insisted on Dr. Abraham drinking alcohol during the party and even tipped a glass of Irish whiskey into his mouth forcing him to gulp it.8 He reported that Ms. Philips told him she wanted to have sex and pulled him onto the floor on top of her in the library.9 He stated he knew it was not a good idea, but his "judgment was clouded" by alcohol.10 He claimed that Ms. Philips demanded sex, but he was unable to perform.11 Dr. Abraham reported in deposition testimony that he was too drunk to consent to sex that night.12
It was reported by one of Dr. Abraham's friends who attended the party that Dr. Abraham and Ms. Philips were walking through the yard with their arms draped around one another.13 Just before 11 p.m., one of Abraham's friends, texted him, "don't do it. "Getting c*** blocked anyway," Abraham replied. "One of my residents so I really can't anyway."14
Three days later, Dr. Abraham texted his then-boss (and Rothman Institute president) and said, "I have an issue." "Made a big mistake... regretting it already," he wrote in a text string. "Don't think it's illegal, just unethical ... ugh."15 Dr. Abraham and his then-boss spoke on the phone and Dr. Abraham reported that he had consensual sex with a resident.16
Shortly thereafter, Ms. Philips reported her recollection of the party to the physician overseeing the residency program and a Title IX investigation was initiated.17 Within days of the party, the Rothman Institute suspended Dr. Abraham and the University asked him to take a leave of absence.18 The University paid a private law firm nearly $100,000 to investigate the alleged sexual assault, and the resulting 58- page report drew no conclusion as to whether a rape occurred.19
The Lawsuit and Excluded Evidence
In his federal case against the University, Dr. Abraham claimed the University violated his civil rights with an unfair, gender-biased investigation.20 He said the University did not investigate his allegation that Ms. Phillips got him drunk, so he could not consent to sex.21 Dr. Abraham sought at least $5 million in damages from the University for financial losses and professional harm suffered and sought punitive damages.22
Interestingly, the sexual assault allegations were not at issue in the underlying case. The case centered on whether the University violated federal Title IX law, which prohibits sex-based discrimination at universities that receive federal funds.23 In fact, U.S. District Judge Michael Baylson told jurors, "This trial is not about what took place at the party . . . The trial is about what happened after the party."24 As a result, in pretrial procedures, the court excluded text messages sent by Dr. Abraham because these texts were not provided to the University as part of its investigation, and therefore, they were not relevant to the question of whether the University conducted a fair investigation.25
Dr. Abraham was allowed to testify and tell the jury his version of the story, i.e., that Ms. Philips forced him to drink alcohol and took advantage of him when he was drunk at his pool party.26 He also told jurors that the University and the Rothman Institute's leaders warned him that he stood no chance at a Title IX hearing — no one would believe that a woman forced him to have sex.27
As mentioned above, the University was prohibited from informing the jury of statements that Dr. Abraham had made to the contrary of his testimony at trial.28 For instance, the University was unable to introduce Dr. Abraham's text messages indicating that he wanted to have sex with a "young hot single female" and another text that the University argued showed that Dr. Abraham was not drunk. The University was not allowed to show the jury the text messages that indicated Dr. Abraham regretted having sex with the junior resident.29 Further, at trial, the court ruled that the University was unable to introduce a letter written by Dr. Abraham's counsel in response to the investigation claiming Dr. Abraham was not intoxicated at the party.30 Per the University, "the court excluded critical evidence that would have been used on cross-examination to impeach — if not completely dismantle — Abraham's tale."31
After a four-day civil trial, jurors determined that the University's leadership violated Dr. Abraham's civil rights by discriminating against him as a male and intentionally interfered with his ability to earn money as a Rothman Institute surgeon and partner.32 A few days later, the jury awarded Dr. Abraham $15 million, $11 million to compensate him for financial losses and an additional $4 million in punitive damages for "outrageous conduct" that caused emotional distress and harm to his reputation.33
The University moved for mistrial and demanded a new trial. In a 120-page Memorandum, the District Court noted (1) it erred by not allowing the University to use the text messages to impeach Dr. Abraham after his counsel opened the door by asking witnesses to testify about what happened at the party34 and (2) "seriously erred"35 by not allowing the University to cross-examine Dr. Abraham on the details of the letter which might have indicated that he was not intoxicated during the evening in question. As a result, the court granted the University's Motion for a New Trial.36
It was reported that in May 2024, Dr. Abraham and the University settled this matter, avoiding the need for a new trial.37
Conclusion and Key Take Aways
Key take aways from this lawsuit and the largest Title IX verdict in history are:
- Investigate all claims of sexual harassment, even claims that are made by purported aggressors, and have documentation clearly outlining that the claim was investigated. This is crucial to conducting a fair investigation and not prejudging the outcome of the investigation. In a post-trial interview, Juror William Mapstone said he voted in Dr. Abraham's favor largely because the University's leadership evidenced no interest in listening to what Dr. Abraham had to say in the days after the June 2018 pool party.38 Mr. Mapstone's vote may have been different if the University had maintained documentation showing that Dr. Abraham's claims were reviewed and vetted as part of the investigation.
- Include all relevant information in the investigative file. In this case, the court held that text messages that were clearly relevant to the underlying allegations of sexual harassment, but were not relevant to the lawsuit because they were not part of the underlying investigation.
- Include a list of all records requested from potential witnesses. If messages, emails, and records are requested from certain parties, document that such items were requested as part of the investigation. Even if they are not provided at the outset, it would provide a defense if the entity could show that such records were requested and sought as part of the review and investigation.
Footnotes
1. Abraham v. Thomas Jefferson Univ., No. CV 20-2967, 2023 WL 8358115, at *1 (E.D. Pa. Dec. 1, 2023).
2. Wendy Ruderman, Former Rothman orthopedic surgeon takes on Jefferson in federal court over sexual assault allegations, The Philadelphia Inquirer (Dec. 5, 2023, 12:20 PM), https://www.inquirer.com/health/john-abraham-rothman-jefferson-sex-discrimination-case-jury-federal-20231205.html
3. Wendy Ruderman, The quiet handling of rape allegations at two Philly health institutions, The Philadelphia Inquirer (May 8, 2023), https://www.inquirer. com/health/inq2/jefferson-rothman-rape-allegation-medical-resident-surgeon-title-ix-20230508.html
4. Id.
5. Id.
6. Id.
7. Id.
8. Id.
9. Ruderman, supra note 3.
10. Id.
11. Id.
12. Id.
13. Id.
14. Id.
15. Ruderman, supra note 3.
16. Id.
17. Wendy Ruderman, Jury tells Jefferson to pay $15 million to former Rothman surgeon in sex discrimination case, The Philadelphia Inquirer (Dec. 11, 2023, 1:52 PM), https://www.inquirer.com/health/thomas-jefferson-university-john-abraham-rothman-federal-jury-20231211.html
18. Wendy Ruderman, Federal jury rules in favor of former Rothman orthopedic surgeon against Jefferson in sex discrimination case, The Philadelphia Inquirer (Dec. 7, 2023, 7:31 PM), https://www.inquirer.com/health/thomas-jefferson-university-john-abraham-rothman-20231207.html
19. Wendy Ruderman, Federal judge rules in favor of Jefferson, tossing out $15 million jury verdict for former Rothman surgeon, The Philadelphia Inquirer (Mar. 14, 2024, 6:23 PM), https://www.inquirer.com/health/jefferson-rothman-john-abraham-title-ix-sex-discrimination-rape-20240314.html#loaded
20. Ruderman, supra note 3.
21. Id.
22. Wendy Ruderman, Federal jury rules in favor of former Rothman orthopedic surgeon against Jefferson in sex discrimination case, The Philadelphia Inquirer (Dec. 7, 2023, 7:31 PM), https://www.inquirer.com/health/thomas-jefferson-university-john-abraham-rothman-20231207.html
23. Ruderman, supra note 2.
24. Id.
25. Abraham, 2024 WL 1120987, at *1
26. P.J. D'Annunzio, Info Kept From Jury In $15M Gender Bias Case, Pa. Court Told, Law360 (Jan. 9, 2024, 6:35 PM), https://www.law360.com/employment-authority/discrimination/articles/1783770/info-kept-from-jury-in-15m-gender-bias-case-pa-court-told
27. Wendy Ruderman, The $15 million jury award to a male former Rothman surgeon against Jefferson in a sex discrimination case is the largest ever, The Philadelphia Inquirer (Dec. 22, 2023, 5:00 AM), https://www.inquirer.com/health/john-abraham-thomas-jefferson-university-verdict-20231222.htm
28. D'Annunzio, supra note 26
29. Id.
30. Id.
31. Id.
32. Ruderman, supra note 2.
33. Wendy Ruderman, Jury tells Jefferson to pay $15 million to former Rothman surgeon in sex discrimination case, The Philadelphia Inquirer (Dec. 11, 2023, 1:52 PM), https://www.inquirer.com/health/thomas-jefferson-university-john-abraham-rothman-federal-jury-20231211.html
34. Abraham, 2024 WL 1120987, at *113 (The court had ordered pretrial that Dr. Abraham's counsel was precluded from asking questions about the events at the party. As noted in the Memorandum, Dr. Abraham's counsel asking these questions and "opening the door" was an additional reason for granting a new trial).
35. Abraham, 2024 WL 1120987, at *117.
36. Id. at *1.
37. Wendy Ruderman, Jefferson and former Rothman surgeon settle federal gender-bias lawsuit, The Philadelphia Inquirer (May 16, 2024, 3:27 PM), https://www.inquirer.com/health/thomas-jefferson-university-john-abraham-settlement-20240516.html#:~:text=Jefferson%20and%20former%20 Rothman%20surgeon%20settle%20federal%20gender%2Dbias%20lawsuit,verdict%20in%20favor%20of%20Abraham.
38. Ruderman, supra note 33.
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