SANTA ANA, Calif. — In a significant, previously unreported development, the Los Angeles Angels’ top human resources executive testified on Monday that the team was working with Major League Baseball to treat Eric Kay’s drug addiction, years before Angels pitcher Tyler Skaggs died.
Angels VP Deborah Johnston said it was her understanding that Kay, then the Angels’ director of communications, “was drug tested under the MLB policy, not the Angels policy.” It is the first time a witness in the wrongful death civil trial brought by Skaggs’ family has said that MLB was put on notice about Kay’s drug addiction.
“When there is an illegal drug, or we go through an investigation and we find somebody has used illegal substances on property, one of the options is to terminate,” Johnston testified. “But another option is to work with MLB, as we did in this case.”
While there’s no known evidence to support the claim, the testimony establishes the Angels’ contention that the league was aware of Kay’s abuse and supported the Angels’ steps to address it.
MLB denied Johnston’s claims in a statement to The Athletic.
“Neither MLB or The Drug Oversight Committee, which is responsible for administering and overseeing MLB’s Drug Policy and Prevention Program, was notified of or involved in the treatment of Eric Kay,” an MLB spokesperson said.
Kay is serving 22 years in federal prison for providing the fentanyl-laced pill that Skaggs ingested, leading to his death on July 1, 2019.
Johnston had her deposition taken twice in this case, underscoring her importance as a witness. She testified about her own observations, and as “the person with the most knowledge” about the Angels’ policies and procedures.
The claim that the league was notified contrasts with testimony from every other witness so far. Angels-represented witnesses have largely stated they were unaware of Kay’s drug abuse.
At the heart of the Angels’ case has been that they utilized the team’s Employee Assistance Program, and its doctor, Erik Abell, for psychiatric treatment of Kay. Team doctor Craig Milhouse said that he viewed the EAP as an arm of the league, and that as such the team satisfied its obligations to the league by utilizing Abell — but he never stated that the team actively notified MLB.
The league requires that suspected drug abuse be reported to them, and that a Drug Policy Oversight Committee made up of four MLB-determined specialists, in conjunction with a team’s EAP doctor or team doctor, come up with a treatment plan.
Johnston’s testimony was the first indication that the DPOC may have been actively involved with Kay, and contrasted with Milhouse’s testimony. Johnston even testified that she had communications in the 2016-2019 timeframe with MLB’s executive VP for investigations, Moira Weinberg, regarding “the nature and purpose and goals of the DPOC.”
Skaggs family lawyers, citing MLB’s policy, have contended that the Angels violated league rules by not reporting Kay’s drug abuse, and that Abell’s psychiatric treatment did not satisfy their reporting requirements.
When asked at her deposition in September if she believed that no one from the Angels reported Kay’s drug abuse to MLB, Johnston testified “that is my understanding.”
Johnston’s deposition was read back to her Monday by Skaggs family attorney Daniel Dutko, and Johnston responded in court by saying, “At the time of my deposition, that is what I believed. I’ve learned additional information since then.”
Dutko asked if she learned that from Angels lawyers. She said, “I would just say from documents I reviewed.” Dutko asked which documents, to which Johnston replied, “A lot of different things.”
“OK,” Dutko said. “Tell me one.” Johnston went on to say she couldn’t remember the exact document where she learned the Angels reported Kay’s drug use to MLB.
“I know there were some medical files that I did review of Eric’s,” Johnston said. “I can’t remember if that’s where I learned it or not.”
The Skaggs side served MLB with subpoenas in an attempt to depose the league during the pre-trial discovery process, according to attorney Rusty Hardin. But the league rebuffed the attempt, contending they had no knowledge of the issues being litigated. They were never deposed, and Skaggs family attorneys have not indicated that they think MLB acted improperly.
Johnston was also asked about investigatory steps taken to address Kay’s conduct, and whether it aligned with their process for less senior employees. Johnston acknowledged that, in two separate instances, a custodian and two housekeepers were fired by the Angels for violating the club’s policies surrounding drugs and alcohol.
In one situation, an employee drank a White Claw, a hard seltzer that contains alcohol, at work. The 63-year-old custodian, Johnston said, wasn’t aware it was an alcoholic beverage and showed no signs of impairment. And in another, two housekeeping employees were caught smoking marijuana while on a break.
With Kay, Johnston said the only reprimand he received was related to a different violation of team policy. She said that the company never reviewed his admitted improper reselling of team-issued postseason tickets on the secondary market, which he told Johnston was his uncle’s doing. When asked if she just took Kay’s word, Johnston responded, “I did. That is typically what you do when you talk to people that you work with and trust.”
Johnston also said the team never took action to review Kay’s email communications, including upon his return from rehab in June of 2019.
Kay had been using his work email address to try and procure drugs through an online marketplace called OfferUp. In March of 2019, he emailed a different user asking for “Oxy t-shirt size 30.” Johnston, in reviewing this email and others, said Kay’s communications wouldn’t have given her concern, even if she had reviewed them.
She isn’t familiar with drug terminology, she said, and might have believed the email was referring to the detergent brand OxiClean.
In another email, Kay requests from someone on OfferUp, “Roxy shirts size m30 color blue,” to which Johnston said, “My mind would have gone to a female shirt.” On another he asked for “blue m30 lego studs, made in Mexico,” to which the responder said he hadn’t tested them, but they were “fent free,” referring to fentanyl. Johnston said the Lego reference wouldn’t have raised an issue, because Kay has children.
A June 8, 2019 email was sent five days after Kay returned from rehab, and three weeks before Skaggs died, asking for “blue Roxy shorts size m30.” Dutko sarcastically quipped to Johnston, “He sure wears a lot of these Roxy shorts.”
Johnston said the team couldn’t legally search his emails at that time because it would violate the Americans with Disabilities Act, and that it would be “against the law to target somebody based on their protected status.”
Angels team policy states “Management, in its sole discretion and without notice, may periodically monitor, review, audit or control any aspect of access to, or use of company computer resources.”
The topic of Kay’s return to work on June 3, 2019, was another critical part of Johnston’s testimony. It was revealed that the doctor’s note that Kay provided, as required by team policy, made no mention of him being fit to resume his job.
It simply read, “Eric Kay medical leave of absence extended till 5/31/2019” with no comment on whether he was fit to return to work, or whether he’d have any restrictions at his job.
Dutko questioned why Johnston took this note to extend Kay’s treatment to mean he was fit to return to work with no restrictions.
“I have gone to many doctors,” Johnston testified. “I have seen many doctors’ notes, and they write notes that are appropriate for them. At no time does it say he is not able to work. It also does not show any restrictions.”
According to Kay’s medical records, the same doctor who oversaw Kay’s outpatient treatment wrote at the completion of his treatment, “(patient) reports he understands his biggest obstacle is going to be not using drugs, he has not worked without using so this will be new.” It’s unclear if the Angels would have had access to this note at the time.
On direct examination by Angels attorney Todd Theodora, Johnston said she had never heard about Kay being intoxicated “in any way, shape or form” and that terminating him following his rehab stint wouldn’t have been proper, since he had “legally protected status.”
Johnston also responded to multiple questions about Kay with answers about Skaggs. When asked by Theodora what would have happened had she investigated Kay, she said, “I may have found that Tyler was distributing drugs.” When asked by Dutko if employing Kay, a drug addict, could be dangerous for team employees and players, Johnston said, “I think the same could be said for Tyler.”
There’s been no evidence presented in court thus far that Skaggs was distributing drugs.
Given her role as “the person with the most knowledge,” Theodora asked Johnston numerous questions unrelated to the case, to establish the club’s own credibility with the jury:
“Is diversity in the workplace important to you?”
“Are you proud of Angels Baseball and their commitment to women in high executive positions?”
“In terms of commitment to the community, is that important to you personally?”
The three questions elicited lengthy responses that lasted nearly 10 minutes. Johnston answered the final question by talking about owner Arte Moreno donating $500 million in scholarships. She also complimented the club’s commitment to creating baseball fields in the community, a free dental clinic the team was set to offer next week, and an upcoming holiday party for disadvantaged people in the area.
The answer went on so long that the judge, who has lamented the length of the trial and instructed both parties to keep their questions tight and relevant, took the rare step of interjecting at the start of the lunch hour, and asked if Johnston was almost done with her answer.