Law – Damages? Deliberate Indifference? Lawsuit Against Hawai’i DOE Goes to the Jury

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(Archived from 10/09/08)

After a 4 1/2-week jury trial, the first damages case against the Hawai’i DOE went to the jury 24 hours ago. Three more cases alleging deliberate indifference on the part of the DOE are poised to go forward.

What are the odds that the jury will find for the child and family?

We don’t know. We do know that the DOE was ordered to provide specific services by several hearing officers and in a court settlement, but failed to do so. We know that the DOE requested substantial funds to defend against these cases.

This case 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. You can read a pre-trial statement for the case here.

This article by Larry Geller describes the issues in these cases.

Lawsuit Goes to Jury As State Dips Into Your Pocketbook for Extra Legal Fees
by Larry Geller, Disappeared News

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 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.

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.

Link to article:

Update on Case: 10/9/08, 4:15 p.m. HST

The jury turned its verdict over to the court at 4:15 p.m. HST, in a plain brown envelope. Inside were the answers to the series of questions that are necessary, taken together, for the family to prove that Bryan’s civil rights were violated. The jury agreed with some and not with others, so the DOE won.

The family did not prevail. It was devastating to hear the verdict read.

The family had the best representation possible. The attorneys and their staff worked so hard, not just during the 4 1/2 weeks of trial, but on the excruciatingly detailed, painstaking preparation that’s required to mount a case like this.

Maybe it’s just hard for a jury to understand the complexity of a section 504 case. I don’t know what to think.

Three more cases are scheduled to follow this one. I know the attorneys will carefully analyze and discuss this one for guidance on the others. ~ Larry Geller, Disappeared News

  1. Dear Wrights Law, Arizona DOE flaunts “Deliberate Indifference” in the implementation of the increased standard of “Fully Informed Consent” under the Final Rules & Regulations written into the Federal Register August 14, 2006 for IDEIA 2004. Why has there not been one single lawsuit that I can find where someone has taken legal action against a school district or the DOE of any one of fifty states? I advocate on a daily basis for Parents, Children and Families and I have never found a school district in Arizona that does reach the new “Fully Informed Consent” standard yet no one says a word or takes any action. I have written to the Governor, the head of DOE, I have even written to the U.S. Secretary of Education and not one single entity has respopnded to my letters, e-mails or phone calls? Where can you go when the entire systems fails?

  2. “20 farmers hired to do brain surgery are not likely to be able to do the job.”

    Ouch. That should hurt.

    Exactly how many parents feel when they have to work with the “education experts” poised to work with their children. Tenure and a special ed degree alone do not an expert make.

  3. If attorneys for the school district were held to the same standards as attorneys who represent children in special education, things may be different.

    The attorney fees for representing a child in special education can not be reimbursed unless the parents win in Federal Court or the unlikely event that a Hearing officer orders in due process.

    Law firms that represent school districts and DOE’s should be compensated at the same rate as the para-professionals who are hired to assist in our kid’s education. In the event that a parent looses in Federal court, the attorney/law firm should be compensated at a rate that is capped but a little higher than the para-professional rate. Maybe tripple.

    Congress never intended to guarantee wealth to local law firms when they wrote the IDEA.

    Who is protecting our kids?

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