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Washington U School of Medicine found liable for age discrimination

This article first appeared in the St. Louis Beacon, Feb. 2, 2009 - A jury determined today that the Washington University School of Medicine discriminated against renowned lung surgeon, Dr. Joel T. Cooper, because of his age, and forced his departure from the school where he had been head of the cardiothoracic division.

The jury also found that the university had retaliated against Cooper after he filed an age discrimination and breach of contract suit.

The seven women and five men awarded Cooper $325,000 in actual damages and $200,000 in punitive damages for a total of $525,000. The jurors found in favor of the school on the breach of contract issue and found no wrongdoing by Cooper's boss, Dr. Timothy Eberlein, who had also been a defendant.

The jurors in St. Louis Circuit Court deliberated for more than three hours on Monday before Judge Dennis M. Schaumann called it a night; they resumed deliberations at 9 a.m. today and returned the verdicts about 2:30 p.m.

"We are very pleased with the award,'' said Cooper's attorney, Jerome Dobson. "Dr. Cooper's rights were violated. We proved he was the victim of age discrimination.''

Cooper told the Beacon while the jury was deliberating that he had brought the suit because someone needed to take a stand over actions by the university and he was satisfied that he had brought the issues to light, whatever the outcome.

Defense attorney Joseph P. Conran said afterwards: "We are pleased by the verdict that exhonerated Dr. Eberlein. We are pleased that he has been vindicated."

Conran said the university will appeal the age discrimination award and is confident that a higher court will find the school's actions and the reduction of Cooper's bonus before his departure dealt with his lack of productivity, not his age.

The jurors heard three weeks of testimony in the case. Both Cooper and Eberlein were portrayed as medical geniuses in their respective fields, lung surgery and breast cancer.

But the men clashed over fiscal matters and both had a different view of financial operations.

Eberlein ran the Department of Surgery, its five divisions and its 125 surgeons. He alleged in two days of testimony that Cooper ran up huge deficits in the cardiothoracic division he headed, primarily because of large bonuses Cooper paid himself and his staff. And Cooper failed to heed Eberlein's continuing advice to increase productivity through more surgeries.

Cooper testified for portions of several days. He said he never had a deficit in his division. He said the application of charitable donations and funds from endowments put his budget in the black each year.

And a good percentage of those donations came from patients or former patients of his or from funds he had helped raise, he noted. A pioneer in lung transplants and the creator of a lung transplant center here, Cooper drew patients from all over the world between his arrival in 1988 and the cloudy departure in 2005.

Cooper, 70, and Janet, his wife of 46 years, now live in Philadelphia where Cooper is the head of thoracic surgery at the University of Pennslyvania School of Medicine. He is paid $875,000 a year, or $125,000 more than his best year in St. Louis.

In his summation, Dobson told the jury that St. Louis had lost much as a community by Cooper's departure for Penn. "His patients are not here; his research is no longer here,'' Dobson said. "They wanted him to be a machine: do more surgeries, bring in more money.''

Read the Beacon's earlier story: 

A lawyer for Washington University told a jury today that an age discrimination claim by renowned lung surgeon Dr. Joel T. Cooper against the university and its head of surgery is one of the most meritless cases he had ever seen in years of practice.

In a stinging closing argument, Joseph P. Conran said Cooper left the medical school voluntarily in 2005 for the University of Pennsylvania in Philadelphia, where he is making $875,000 a year - more than he ever earned at Washington U. Conran suggested that Cooper's lawsuit is motivated by greed and ego.

But Cooper's attorney, Jerome Dobson, argued that Cooper "is a man who has stood for principles all his life. He has stood for people who couldn't pay their medical bills. He stands here as a symbol of older workers who have been discriminated against."

The jury of seven women and five men in the court of St. Louis Circuit Judge Dennis M. Schaumann began deliberations at 1:30 p.m. after three hours of arguments by Dobson and Conran. A verdict is expected Tuesday.

Cooper is alleging age discrimination and breach of contract against the medical school and Dr. Timothy Eberlein, the head of surgery. Now 70, Cooper has been chief of thoracic surgery at Penn since 2005. He claims he was forced out of Washington University by Eberlein and others because of his age.

Dobson asked the jury this morning to award $1.75 million in actual and $12 million in punitive damage from the defendants. Conran said jurors should find in favor of the university and Eberlein because they did nothing wrong.

The trial has lasted three weeks, and the jury has heard about the medical credentials of both Cooper and Eberlein, both considered titans in the field of medicine.

Cooper was part of a team that performed the first successful lung transplant in Toronto in 1983. In 1988, his Toronto team performed the first successful double lung transplant. That year, he came to St. Louis, where he set up a lung-transplant center at the Washington U. medical school.

In 1997, Cooper became head of the cardiothoracic division. That year, he was a finalist to head the department of surgery at Harvard-affiliated Massachusetts General Hospital.

To keep him, Washington U. agreed to pay Cooper $200,000 a year in deferred payments for 10 years - on top of his $550,000 annual salary and bonuses.

Eberlein arrived in 1998 from Harvard to serve as chairman of the department of surgery, its five divisions and its 125 surgeons. Eberlein is a world-renowned expert in breast cancer and has been a leader in the development of the Siteman Cancer Center.

Eberlein testified that Cooper's division had high operational deficits and Cooper did little to improve the bottom line despite Eberlein's urging.

Using a different set of figures, Cooper claimed he never ran up a deficit.

The relationship between the two men deteriorated from the fall of 2003 until December 2004, when Eberlein presented Cooper with a proposal that would pay him $600,000 a year for three years; Cooper would retire at the end that time.

Conran, the university's attorney, said testimony showed that proposal was the work of six people, including Dr. Larry J. Shapiro, dean of the medical school. Cooper's age was never a consideration, witnesses testified, but budget deficits and lack of productivity were.

Cooper did not sign the agreement in the four days specified in the proposal. The university then officially removed him as chair of his division and canceled his semi-annual bonus of $125,000.

While Cooper continued to negotiate in early 2005, he was also applying at Northwestern University and the University of Pennsylvania. By February, Conran said, Cooper had made a down payment on a $4.15 million house in Philadelphia. Conran alleged that Cooper wore a secret tape recorder in May 2005 in a meeting with Shapiro, the dean, in an unsuccessful effort to get evidence against the university for his case.

But Dobson, Cooper's attorney, said Cooper wore the recorder to protect himself. Dobson said the suit was about abuse of power by Washington University.

Bill Lhotka is freelance journalist who has long covered the courts.