Ooltewah rape case set for trial in 2018, judge tells attorneys this case is a 'priority'

Staff Photo by Dan Henry / The Chattanooga Times Free Press- 2/15/16. Defendants appear before Judge Robert Philyaw during a preliminary hearing for the Ooltewah High School basketball coaches and the school's athletic director in Hamilton County Juvenile Court on February 15, 2016. Hamilton County District Attorney Neal Pinkston charged head coach Andre "Tank" Montgomery, assistant coach Karl Williams and Athletic Director Allard "Jesse" Nayadley with failing to report child abuse or suspected child sexual abuse in connection with the rape of an Ooltewah High School freshman by his basketball teammates Dec. 22, 2015.

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Nearly 15 months after Ooltewah High School freshmen were assaulted with a pool cue, a trial date has been set in the federal case, and by the trial's start - if not before - the victims are expecting large payouts from Hamilton County Schools.

During the first federal court hearing Wednesday morning, Federal District Court Judge Travis McDonough set the trial date for June 4, 2018, unless both sides agree on a settlement beforehand.

"We're going to get through this and we aren't going to drag this out," McDonough told attorneys representing both sides. " Everyone here needs to make this case a priority."

Two former Ooltewah High School freshman basketball players filed lawsuits last year, claiming Hamilton County Schools ignored signs of abuse and allowed a culture of bullying and sexual assault to fester at the school, leaving students unprotected.

Both plaintiffs were sexually assaulted by older teammates during a December 2015 trip to Gatlinburg, Tenn., for a basketball tournament. One of the victims, referred to as "Doe" in court proceedings, was injured so severely he required emergency surgery.

The lawsuits seek damages from Hamilton County Schools and three former Ooltewah High School employees. Both cases will be consolidated for the time being, McDonough said, but if necessary, the cases can be split before trial.

During the hearing, Douglas Fierberg, a Washington, D.C., attorney representing Doe, said the plaintiff "didn't go to school to buy himself a lawsuit." But a "complete breakdown in supervision" enabled the rape, he said.

Two independent investigations were conducted after the rape - one by Hamilton County District Attorney Neal Pinkston and the other by private attorney Courtney Bullard - Fierberg reminded the court. Both investigations concluded that a culture of abuse existed at the school and there was lack of oversight prior to the rape.

Fierberg said the investigations "resolve a number of factual questions."

He also suggested it might be in the best interest of all parties to start settlement negotiations, saying the trial would only relive the horrific past. It's time to start making right by the victims and move forward, he said.

McDonough said he understood where Fierberg was coming from, but it may be too early to start talking about settlements. Attorneys for the school system and individuals agreed.

Fierberg clarified that the lawsuit is filed against the Hamilton County school board and is not going after individual board members.

"Our focus is on the [school employees] that had authority," Fierberg said, adding that the board is legally responsible for the actions, or lack of actions, of its employees.

Individuals named in the lawsuit are Ooltewah's former head basketball coach Andre "Tank" Montgomery, former Principal Jim Jarvis and former Athletic Director Allard "Jesse" Nayadley. The second lawsuit also names Marsha Drake, who was the district's Title IX coordinator at the time of the rape. Attorneys signaled that the first lawsuit also will likely add Drake to its complaint in coming months.

Arthur Knight, a Knoxville attorney, is representing the former Ooltewah High School employees and attorney Charles Purcell, from Jackson, Tenn., is defending the school district and Drake.

During the one-and-a-half-hour hearing, McDonough voiced concerns about the way attorneys for the school board and individuals were responding to the lawsuit's claims.

In responses filed to both lawsuits, Knight and Purcell said their clients are not responsible for the rape and deny that a culture of abuse existed at the school.

But the responses fail to answer a majority of the issues raised in the complaint, McDonough noted.

He strongly advised Knight and Purcell to file new answers and stop avoiding the lawsuit's allegations. It may be uncomfortable for the two attorneys to work through some of the issues in the complaint with their separate clients, he said, but it's unavoidable.

Knight said he was cautious when answering the complaint, as it contained numerous allegations and loaded language.

"I was just a little scared," he said.

McDonough also voiced concern about Knight representing the three former Ooltewah employees, asking why they didn't have separate responses to the lawsuit.

"I find it somewhat remarkable there are no distinctions made in the response of the individuals," McDonough said.

Pointing out specific instances in the lawsuit, McDonough challenged Knight's answer to the complaint, saying all three men likely have differing amounts of knowledge about the allegations, but answered the same way.

"There are probably 20 instances of this throughout the answer," McDonough noted.

Knight said despite the fact all three men were in different locations at the time of the attack - Montgomery at the cabin with the team, Nayadley in Gatlinburg for the tournament, and Jarvis in Chattanooga - all were looped in about what happened.

"I don't think there is a concern [about sharing representation,]" Knight said. But he agreed to go back and amend the answer to provide more specific details from each of them.

McDonough also asked Purcell and Knight to be sure no evidence from the school district was lost or destroyed.

Local attorneys Justin Gilbert and Eric Oliver are representing the other plaintiff in this case, referred to as "Roe."

Contact staff writer Kendi A. Rainwater at krainwater@timesfreepress.com or 423-757-6592. Follow on Twitter @kendi_and.