Federal judge rules against school board for 2nd time in Ooltewah rape civil suits

Federal judge rules against school board for 2nd time in Ooltewah rape civil suits

Hamilton County Board of Education attorneys denied extra time to depose three expert witnesses

February 7th, 2018 by Zack Peterson in Local Regional News

The exterior of Ooltewah High School photographed on Sunday, January 31, 2016. (Staff file photo by Maura Friedman)

Photo by Maura Friedman /Times Free Press.

For the second time in seven days, a federal judge has ruled against the Hamilton County Board of Education in the 2015 Ooltewah rape civil litigation, this time denying board attorneys more time to depose three expert witnesses.

U.S. District Judge Travis McDonough issued the order Thursday, saying school board attorneys did not show good reason for missing a deadline he set in March 2017. Also last week, U.S. Magistrate Judge Christopher Steger said board attorneys "wasted the court's time" by refusing to release evidence that clearly fell under a previous order he'd made.

Travis McDonough

Travis McDonough

Photo by Maura Friedman /Times Free Press.

"At the case management conference in March 2017, the court indicated ... the deadlines in this case would be strictly enforced," McDonough wrote in his order.

His ruling means board attorneys won't get to question those witnesses under oath, prepare for their testimony during the trial, and then ask questions that could trip them up when they're on the stand.

"The importance of a deposition is to find out what an expert has relied upon and what they're going to testify to in a case," said longtime Chattanooga attorney Jerry Summers. "Normally, in these days, whenever an expert arrives on scene, most lawyers will go on to depose that particular witness."

Two civil lawsuits relating to the rape of an Ooltewah High School basketball student in December 2015 are scheduled for jury trial in Chattanooga's U.S. District Court in September. As the case moves forward, plaintiffs' lawyers and other victim advocates have questioned why board attorneys continue to deny a hired investigator's finding that three students experienced sexual harassment.

"Frankly, as Roe has no real damages and no formal expert report, we have no need to seek an extension with the Roe [lawyers]," Chuck Purcell, the lead attorney for the school board, wrote in an email on Jan. 25 during a conversation about getting more time to complete depositions.

Roe is the name given to a student who filed for emotional trauma damages in December 2016 and said he was harassed for months and attacked on the trip. The other plaintiff, Doe, was raped with a pool cue and needed emergency surgery during the trip to Gatlinburg, Tenn.

"You can deny all you want, but [the investigator] had every opportunity to find on your behalf, and she finds there was sexual harassment," said Colby Bruo, an attorney with the Victim Rights Law Center in Massachusetts. "I think it's the board that's losing sight of the futures at stake here, and that's the victims."

The school board is scheduled to discuss McDonough's order at an executive session at 4 p.m. Thursday with its legal team.

Board attorneys and victims' lawyers all declined to comment Tuesday on the ruling. School board Chairman Steve Highlander said he was aware of the order and that he would "trust the judge's wisdom."

School board lawyer Scott Bennett wouldn't say whether board members were notified about McDonough's order. Two board members said they hadn't heard about it, although one later said he did receive an update about it around 2 p.m. Tuesday.

Late last month, board attorneys asked McDonough for another 30 days to complete their depositions. McDonough agreed to give plaintiffs until March 1 to depose the board's expert witness, Courtney Bullard, and school system administrator Lee McDade.

Bullard was hired to be the board's investigator until October 2017, when board attorneys turned her into an expert witness. Plaintiffs' attorneys said that was a calculated move to keep Bullard's communications with Bennett and other board members under seal. Plaintiffs are likely going to ask Bullard during her deposition when she first knew she was going to be an expert witness.

In his ruling, McDonough refused to allow more time for board attorneys to depose the rape victims' lawyers three expert witnesses. One of them is a Virginia Commonwealth University professor who writes extensively about unreported student violence. Board attorneys learned about them in September when the victims' lawyers disclosed them to the court.

Contact staff writer Zack Peterson at zpeterson@timesfreepress.com or 423-757-6347. Follow him on Twitter @zackpeterson918.

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