Hamilton County Board of Education attorneys want to separate the upcoming civil trials of two former Ooltewah High School students who were attacked in Gatlinburg, Tenn., in 2015 because they suffered different injuries.
At the same time, the students' attorneys hope to ask school board members on the witness stand why their lawyers continue to deny a hired investigator's finding that three students experienced sexual harassment on that trip.
"Richard Roe was the victim of an assault that did not result in any physical injuries," Chuck Purcell, an attorney for the school board, wrote in a motion Wednesday. "However, John Doe was the victim of rape, and he was hospitalized for six days due to traumatic injuries to his rectum and bladder. This disparity will undoubtedly engender prejudice among the jury."
Purcell has previously said Roe "has no real damages," according to court documents.
Two civil lawsuits related to the rape of an Ooltewah High School basketball student in December 2015 are scheduled for a consolidated jury trial in Chattanooga's U.S. District Court in September. Four students said they were attacked on that trip, including Doe, who required emergency surgery on a punctured bladder, and Roe, who had to fight off his teammates as they tried to insert a pool stick into his rectum.
Doe and Roe filed lawsuits against the Hamilton County Board of Education in 2016 asking for monetary damages. In a 2017 response, Purcell wrote "should the proof reveal the same," teammates Roe and Doe may have caused their own injuries, and he denied any liability for the attack on behalf of the board.
If that's the case, the students' lawyers said in a motion Monday, then Roe and Doe want to call then-board members to the witness stand in September to explain the difference of opinion.
"It does not appear possible that any board member actually believed, or honestly could believe, these aspects of [Purcell's response]," attorneys Justin Gilbert and Eric Oliver wrote. "If, as plaintiffs suspect, the individual board members themselves would not factually support [that response] of no liability to Roe, much less the inflammatory insinuation that these students may have caused their own injuries, the board members must explain."
Board Chairman Steve Highlander said Thursday he'd heard he could be a potential witness and could not comment on the case.
"I've thought all along it would be a possibility," Highlander said of being a witness.
Students' attorneys haven't filed a response to Purcell's request for separate trials. In addition to that, Purcell wants to exclude testimony from psychiatrists, professors and bullying consultants who are expected to say Hamilton County had inadequate hazing policies in place at the time of the Ooltewah rape.
Last month, U.S. District Judge Travis McDonough ruled Purcell could not depose three witnesses whose testimony he now wants to exclude at trial. McDonough said board attorneys could not show a good reason for missing a deadline he set in March 2017.
A deposition allows an attorney to question a witness under oath, prepare for their testimony during the trial, and then ask questions that could trip them up when they're on the stand. Students' attorneys have until March 1 to depose the board's expert witness, Courtney Bullard, and school system administrator Lee McDade.
Bullard was hired in March 2016 to be the board's investigator, found Hamilton County's hazing policies were "deficient" and said three students, including Roe, experienced sexual harassment on the trip. Board attorneys turned her into an expert witness in October 2017, which students' attorneys said was a calculated move to conceal parts of her investigation.
Contact staff writer Zack Peterson at email@example.com or 423-757-6347. Follow him on Twitter @zackpeterson918.