Privilege argued in O’Neal photo case

Attorneys for the family and MU are seeking 622 pictures from the Tribune.
Tuesday, March 28, 2006 | 12:00 a.m. CST; updated 1:21 p.m. CDT, Tuesday, July 22, 2008

Opposing counsels in the Aaron O’Neal wrongful death suit banded together in a Boone County courtroom Monday in an attempt to obtain more than 600 photos from a Columbia Daily Tribune photographer.

Lonnie and Deborah O’Neal’s attorneys, Bob Blitz and Chris Bauman of St. Louis, requested a subpoena March 20 for the 622 photos, 18 of which were published in the Tribune, that Tribune photographer Jenna Isaacson took at Faurot Field on July 12, the day the MU football player collapsed and later died.

In the hearing, attorneys for both the O’Neals and MU agreed that because there was no promise of confidentiality by the university and because Isaacson had discussed the unpublished photos in the Tribune and other publications — including an article she wrote — reporter’s privilege should not apply.

Once Isaacson discussed the photos in a public domain, the right to confidentiality should be waived, Bauman said. “It’s not up to Miss Isaacson to decide when and where she’s going to talk about these photos,” he said.

Jean Maneke, who represents both Isaacson and the Tribune, said the subpoena was premature and there is no need to release the photos until after a deposition scheduled for Monday in St. Louis.

Maneke also said that proper compensation was not offered for the photos nor a “proper witness fee” for Isaacson’s testimony in the deposition. Isaacson was given a check for $50, which does not cover her expenses, including the round-trip drive to St. Louis for the deposition, Maneke said.

First Amendment qualified privilege should apply in protection of the editorial process, Maneke said. Isaacson should first have the opportunity to answer specific questions in the deposition before it can be determined whether the photos will prove useful in the case, Maneke said.

MU attorney Hamp Ford said there is a compelling need for Isaacson’s photographs. She witnessed an hour-long workout, he said, and because the photos were timed, they can provide insight into whether anyone on the field knew or should have known that O’Neal was in peril, based on expression, stature and what he was doing at any point in time.

“This is something both sides need to find if there was negligence,” Ford said.

“I don’t know if all these photos are relevant, but I would guess some of them are,” he said. “They may help the plaintiff, they may help the defendant. They may not help anyone.”

O’Neal collapsed at the end of a pre-season strength and conditioning workout, which was run and supervised by strength and conditioning coaches and team trainers on July 12. Isaacson captured an image of O’Neal’s collapse at 2:39 p.m.

The Missourian reported that with the help of teammate Darren Meade, O’Neal began walking off the field toward the locker room, where he began to have trouble breathing, according to assistant athletic trainer Albert Castillo’s comment in an MU police report by officer Clayton Henke.

A timeline released by the MU Athletic Department said that at 2:57 p.m., O’Neal was carried out of the locker room, placed in the front seat of a truck and driven across Providence Road to the Tom Taylor Athletic Facility.

Castillo said O’Neal was unconscious when the truck arrived at the Taylor building and O’Neal was taken into the sports medicine office inside where he had a “weak pulse.”

Assistant athletic trainer Greg Nagel called 911 at 3:08 p.m., according to 911 transcripts.

Castillo said he attached an AED, or automatic external defibrillator, to O’Neal. An AED analyzes a patient’s heart rhythm and can deliver electric shocks intended to correct a type of heart failure in which the heart beats at a pace that is too fast and irregular to effectively pump blood to the body.

Paramedics arrived at the Taylor building and took over care of O’Neal at 3:14 p.m., taking him to University Hospital at 3:30 p.m., the MU timeline said.

Attempts to resuscitate O’Neal failed, and he was pronounced dead at the hospital at 4:05 p.m.

Several weeks after Aaron O’Neal’s death, attorneys for Lonnie O’Neal asked MU to make a public apology and pay a financial settlement they termed “reasonable,” the Missourian reported.

MU refused, and Lonnie O’Neal’s attorney, Bob Blitz, filed a wrongful death suit on Aug. 24 against 14 university employees, including athletic director Mike Alden and football coach Gary Pinkel, seeking damages of as much as $350,000 for negligence in Aaron O’Neal’s death.

Judge Gary Oxenhandler is expected to rule on the photos soon, probably before the deposition Monday, Bauman said.

But Maneke said Oxenhandler’s ruling might not come that soon. “Clearly he’s interested in not doing this until the deposition takes place,” she said.

Although the attorneys for both sides in the wrongful death suit can compare the photos with the timeline issued by the university, Maneke maintains they will not be useful.

“The bulk of the photos will not contain anything of interest to anyone,” she said.

Missourian reporter Matt Jarzemsky contributed to this article.

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