Wednesday, October 08, 2008


Vanguard post-Felix lawsuit goes to jury as state dips into your pocketbook for extra legal fees

by Larry Geller

The first of a series of post-Felix Consent Decree lawsuits went to the jury at 3:30 p.m. today in Judge Alan C. Kay’s courtroom. Three more cases, each alleging deliberate indifference on the part of the DOE to their responsibility to educate the children, are poised to go forward next. These cases are subject to section 504 of the Rehabilitation Act and are not the same as cases filed under the IDEA (Individuals with Disabilities Education Act).

Ian Lind discovered and  posted today a contract amendment that more than triples the state Attorney General’s previous request for funds to defend these cases:

The state is seeking to expand a contract with the law firm of Watanabe Ing & Komeiji to defend the Department of Education in three lawsuits in which the state faces millions of dollars of potential liability. The original value of the contract was $500,000, but the Attorney General is asking to more than triple the cost to $1,740,750, citing the need for extensive discovery.

The second page of the document lists the cases that will follow this one.

Stakes are high for the DOE, and of course, the Legislature will be asked to dip into taxpayer’s pocketbooks not only for attorneys fees but to pay for awards or settlements that may come out of these cases. Juries decide the amount of any awards, although the plaintiffs in the current case have made suggestions and provided supporting data for compensation in the neighborhood of $7 million.

The case that went to the jury today is Ann Kimball Wiles and Stanley Bond and their son, Bryan Wiles-Bond, vs. the Department of Education and Alvin Rho, in his official capacity as West Hawaii District Superintendent. There is a pre-trial statement for the case here.

It’s impossible to summarize a 4 1/2-week trial in a short space, but my understanding, after listening to closing arguments in court today, is that plaintiffs have held that Bryan, who is a student with autism, came to Hawaii in 1999 and far from receiving access to education, was very badly set back in his progress and in his life-skills. He went to school in Kona on the Big Island.

The damages being sought are not punitive (punitive damages are not allowed in these cases), but are requested to provide care for Bryan caused by DOE’s deliberate indifference to his needs, care that he will need throughout his life and after his parents are not around to look after him.

Defendant's argument today (offered by attorney Kenneth Robbins) was basically a smear of the parents. I don’t think the jury will be convinced of that, but it should not matter. Even a child with bad parents has the right to an education under both state and federal law. And Robbins’ attempt fell far short of proving any culpability on the part of the parents for the DOE’s failure to implement Bryan’s educational program. The DOE had been ordered to provide specific services by several hearing officers and in a court settlement, but did not do so.

Attorney Carl Varady’s closing remarks to the jury for the plaintiffs contained several gems. He described the DOE’s testimony that it wouldn’t pay for experts (called as witnesses in this trial) to develop a program for Bryan as a confession. In response to DOE claims that they hired numerous therapeutic aides and others to work with Bryan, Carl pointed out (and I have to paraphrase, I could not write as quickly as the arguments were flying) that 20 farmers hired to do brain surgery are not likely to be able to do the job. The reference is to the lack of training of the people provided by the DOE for Bryan’s program.

Again, it’s not possible in this space to provide an adequate summary of today’s closing statements. And it’s clear that I have my own bias. As a case manager for Felix children in a previous life I flashed back to several of the students in my caseload who were treated similarly. For those families not able or willing to mount a complicated and expensive case against the DOE, the students may not be able to recover what the DOE cost them…. by its “deliberate indifference,” something I think the jury will understand.

Update: a followup article is here. The family did not prevail


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