for BigTrial.net
An explosive lawsuit filed this afternoon in Philadelphia Common Pleas Court charges that top officials at the University of Pennsylvania conspired with journalists at The Philadelphia Inquirer to smear a Penn grad student who had just won a prestigious Rhodes scholarship.
"Due to the inaccessibility of the Caster Building, and specifically its basement, and the Penn Defendants’ improper emergency protocol, it took more than an hour for emergency personnel to remove [Fierceton] from the building," the lawsuit states.
"This delay caused [Fierceton's] condition to further deteriorate, and as such, she was required to be admitted to the neurological intensive care unit for three days at the Hospital of the University of Pennsylvania, where she spent a total of five days."
Shortly before class began at 6:45 p.m. on September 11, 2018, according to the lawsuit, Driver, a black 38-year-old graduate student, “suddenly and unexpectedly experienced what was described as ‘seizure like activity’ in connection with a cardiac arrest."
"Because there was no available landline in the classroom and cell phone service was 'inconsistent and/or non-existent' in the basement, Mr. Driver’s classmates were required to leave the classroom to call emergency responders," the lawsuit states.
“It was not until 7:43 p.m., nearly an hour after [Driver] experienced a medical emergency, that Philadelphia EMS dispatch received a 911 call," the lawsuit states. "The students formed a human telephone chain from basement classroom A14 to the lobby, to relay information from the 911 dispatcher to [a professor] who was attempting to render aid to [Driver].”
“In the interim, [the University Medical Emergency Response Team] arrived on the scene after being significantly delayed due to logistical and systematic failures including a lack of proper training and the inability to locate the Caster building," the lawsuit states.
Emergency responders were hampered by "structural defects in the Caster Building, including stairwells and an elevator that could not accommodate an EMS stretcher or backboard," the lawsuit states. Driver was "eventually extracted by personnel from the Philadelphia Fire Department who carried him up the stairs from the basement 'using some sort of a mat or rug,'" the lawsuit states.
“Finally and at about 8:48 p.m., [emergency medical workers] departed the Caster building with [Driver] and arrived at Penn Presbyterian Medical Center at 8:50 p.m. . . Driver was pronounced dead at the hospital at 9:00 p.m. on September 11, 2018."
"After suffering her own medical emergency in the basement of the Caster Building, and experiencing first-hand the delays in medical care due to the inaccessibility of the building," the lawsuit states, Fierceton met with Penn officials to discuss the "safety concerns uncovered by these two incidents."
On February 24, 2020, Fierceton sent emails to Penn President Amy Gutmann and other senior administrators "with details of the failures displayed in both medical emergencies." Fierceton's activism resulted in student protests that ended when the Covid-19 pandemic hit.
As part of her investigation, Fierceton "took measurements and photographs of the entrances and exit doors, stairwells, hallways and elevator in the Castor Building," the lawsuit states. Fierceton presented all of this information to Driver's widow, whom, the lawsuit states, "was unaware of the true facts and circumstances surrounding her husband’s death, which had been concealed by the Penn Defendants."
Approximately three months after the filing of the wrongful death lawsuit, on Nov. 22, 2020, Fierceton was awarded a Rhodes Scholarship to study at the University of Oxford.
Inquirer reporter Ruderman interviewed Fierceton for a story that ran that same day in the Inquirer under the headline, "Penn student who aged out of foster care wins prestigious Rhodes Scholarship."
“I would trade all of this to have been adopted and have a family and have had that experience and that never happened, and that’s really sad,” Fierceton told Ruderman. “But I also feel like I’ve healed from that to the extent that I can, and I carry it with me now in a way that feels very empowering.”
That feel-good storyline appeared to collapse, however, when Fierceton's biological mother told Ruderman and Penn officials that her daughter's up-from-poverty story wasn't true.
"Still, in selecting Rhodes candidates, Penn officials had heard what they wanted to hear, and told Mackenzie’s story in the way that they wanted to tell it," the professors wrote. "The Philadelphia Inquirer had done the same when reporting on her Rhodes award. As the media buzz grew, Mackenzie’s high school time in foster care was made to sound like a lifetime in foster care, despite the precision of Mackenzie’s own statements and her subsequent efforts at correction."
"When Penn officials realized self-congratulatory celebration of their Rhodes could lead to false impressions, they had a choice of clarifying — or castigating Mackenzie," the two professors wrote. "It probably did not help that she uncovered, exposed, and is now a witness in a wrongful death lawsuit against the University. The decision was made quickly, if not instantly, without time for adequate investigation. Penn could not admit error. Mackenzie Fierceton had to be discredited and buried."
On December 7, 2020, the lawsuit states, "as part of the plan, Defendant Winkelstein authored a secret letter to The Rhodes Trust, the entity that awards the Rhodes Scholarships, expressing 'serious concerns'” about the credibility of Fierceton.
The lawsuit claims that the defendants, "through their agent Ms. Shepard, then leaked the false and baseless accusations against [Fierceton] to the Editor of The Inquirer, who coincidentally is Ms. Shepard’s husband."
"However, that proceeding only demonstrates that the St. Louis Circuit Court was able to change its findings years later, so that [Fierceton's] biological mother, a prominent local physician, could have an ostensibly unsullied record going forward, despite the fact that her teenage daughter was removed from her household and placed in foster care during high school," the lawsuit states.
"The medical records and witness statements speak for themselves and confirm that [Fierceton] suffered horrific abuse which created the foster care necessity," the lawsuit states. "Indeed, no one, not even the Court in St. Louis, can erase or rewrite the fact that [Fierceton] was removed from her home and placed in foster care during high school and prior to her application to Penn."
"These contrived investigations' by both The Inquirer and Defendants, working in concert, are clear retaliation, and reached what was the pre-ordained conclusion: to drudge up painful and debilitating memories of [Fierceton's] background and youth as a child abuse survivor and a foster care child, all to discredit [Fierceton] for Penn’s institutional protection."
In discussions with Fierceton's lawyer, White "outrageously, extortionately and in an ultimatum stated that Penn would not further pursue any action against [Fierceton's] if: (1) she declined the Rhodes Scholarship; (2) withdrew or took a leave of absence from her Master of Social Work degree and then reapplied or returned to complete her MSW degree in one year; and (3) signed a release which included a non-disclosure agreement (NDA), confirmation that she would not sue the Defendants, and language stating that she did not sign under coercion or duress."
At the time, Fierceton had begun her last semester at Penn and only had to complete two classes to get her master's degree.
Fierceton said no to Penn's deal. On Jan. 19, 2021, she submitted a letter to The Rhodes Trust, along with 44 supporting documents, including her medical records and the records of her foster care residency, records that were shared with Penn.
On March 3, 2021, Fierceton was deposed in the Driver case.
On April 16, 2021, "having no alternative and clearly coerced by Defendant White’s threats, [Fierceton] submitted her formal withdrawal from the Rhodes Scholarship," the lawsuit states.
The lawsuit, which does not specify an amount of damages sought, claims retaliation, intentional interference with business relations and intentional infliction of emotional distress.
When she worked at the Inquirer, Wendy Ruderman described herself as an "investigative reporter who is committed to bringing light (and sometimes heat) to broken systems and wrongs."
But Ruderman is best known for her work at the Philadelphia Daily News, where she and Barbara Laker wrote a 2010 Pulitzer Prize for their series, "Tainted Justice," an exposé of a squad of Philadelphia narcotics officers that subsequently became mired in controversy.
In the original series, the reporters charged the narcs with fabricating evidence and looting bodegas during police raids. The reporters also accused one cop, Thomas Tolstoy, of molesting three women during the raids.
Cops, of course, hated the series, dubbing Ruderman and Laker the "Slime Sisters." John McNesby, president of the FOP, claimed that the two reporters had behaved unethically during their investigation of the cops by buying diapers and food and paying utility bills for a woman they wrote about who had accused police of misconduct.
Then-Police Commissioner Charles Ramsey picked up the charge, saying that if the two reporters crossed an ethical line it may have tainted the criminal investigation of the cops. It was just another pissing match between reporters and cops until the Daily News's sister paper took up the case.
In 2014, the Inquirer reported that after years of investigation, the feds would bring no charges against the narcs who had been hung out to dry in the Daily News series.
Then Inquirer Editor Bill Marimow, who himself had won two Pulitzers for his own exposés of cop misconduct, assigned reporters Mike Newall and Aubrey Whelan to do an investigative story on why the feds didn't charge the narcs.
That assignment set off an epic newspaper feud between the Inquirer and Daily News that ended when H.F. "Gerry" Lenfest, the new owner of both papers, decided to kill the Inquirer story, at the request of the Daily News.
Big Trial broke the news that Lenfest had killed the story. Then, the Columbia Journalism Review picked up the story and the controversy went national.When the two newspapers merged, Ruderman became an Inquirer reporter who understandably wasn't too crazy about working for a newspaper where the editors and reporters had publicly questioned her reputation and cast doubt on her Pulitzer.
When Ruderman began her year-long investigation of Fierceton, according to newsroom sources, Inquirer editor Gabriel Escobar, who could not immediately be reached for comment, initially told the reporter that he had a conflict of interest because of his wife's employment at Penn. And that's why James Neff, a deputy managing editor, would function as Ruderman's editor.
But the pairing didn't go well. According to sources, Ruderman had numerous conflicts with Neff over what became an extremely lengthy story.
After a year of investigating Fierceton, but not being able to get the story published, Ruderman announced that she was resigning from the Inquirer, to take a job on Aug. 18th as a staff reporter for The Marshall Project, a nonprofit that covers the national criminal justice system.
That's when according to newsroom sources, Escobar, despite his self-confessed conflict of interest, decided to get involved, telling Ruderman that he wanted her to finish the story.
Newsroom sources say that Escobar wanted Ruderman to finish the Fierceton story as a freelancer, which posed a conflict with the newsroom's union labor contract. During negotiations that involved the NewsGuild of Greater Philadelphia, the argument was over how Ruderman would be paid.
Ruderman, according to sources, also wanted the newspaper's editors to guarantee in writing that if the Inquirer was sued for libel over the Fierceton story, the newspaper would represent Ruderman.
When the newspaper's editors declined to put that guarantee in writing, Ruderman, at the advice of the Newspaper Guild, wrote to Escobar, stating that she would do no further work for the newspaper. Another problem for Ruderman was that as a condition for her employment with The Marshall Project, she told the Guild she wasn't supposed to write for any other publication.
In exit interviews, according to newsroom sources, Ruderman trashed her editors, particularly Neff, whom she described as the worst editor she had ever worked for. But she also panned Escobar.
"She ripped everybody," a source said.
Ruderman's follow-up story about Fierceton was never published. The Inquirer's editors better hang on to a copy because now it's part of a lawsuit.
'The Shame of Penn's Hypocritical Meritocrats'
In their article submitted to the Chronicle, Penn professors Norton and Smith wrote that "Penn wants to present itself as a grand meritocratic escalator on which gifted young people from less advantaged backgrounds can ascend to stardom in all fields."
"Ironically, Penn had such a student in Mackenzie: a talented woman who [by all accounts] overcame childhood trauma, aged out of foster-care, and achieved a superlative academic record while working multiple jobs," the two professors wrote.
"But, perhaps finding her story more than they wanted to tell, they [Penn officials] chose to abandon her when the biological mother from whom the State of Missouri removed her began attacking her yet again. They have made the University of Pennsylvania administration complicit in continuing abuse."
"Though Interim Provost Winkelstein and General Counsel White are most directly culpable for the savaging of Mackenzie Fierceton, ultimate responsibility for all this must reside with Penn’s chief policymaker, its longtime president Amy Gutmann, now President Biden’s nominee to be ambassador to Germany," the two professors wrote.
"We have both known and worked with Amy Gutmann for many decades, and we credit her with many exceptional achievements," the two professors wrote. "Among them is great expertise in professional ethics. In this case, however, ethics appear to have succumbed to ego."
"Gutmann could not resist immediately issuing a press statement portraying Mackenzie’s Rhodes as a triumph for Penn’s FGLI [first-generation, low-income] program," the two professors wrote.
"Though the statement was accurate, she may have feared that the facts of Mackenzie’s life might differ from the impression that Penn’s trumpeting of its FGLI enrollments seeks to convey, despite the fact that Mackenzie’s status as a foster youth who aged out of care with no financial or emotional support indisputably makes her as low-income and FGLI student by institutional, state, and federal guidelines," the two professors wrote."
"In any case, ignoring our expressions of concern, Gutmann has done nothing while her top officials have flaunted the University’s rules and human decency, in order to defame and silence a young woman, a survivor of long-time abuse, whom we, along with many of our colleagues, have come to regard as one of the finest members of the Penn community," the two professors wrote.
"Because that is who she is, Mackenzie Fierceton will in the end rise above this unjust and abusive treatment, as she has done for years," the two professors wrote. "The shame of Penn’s hypocritical meritocrats should, in contrast, endure forever."