{"id":111,"date":"2008-09-09T12:00:43","date_gmt":"2008-09-09T17:00:43","guid":{"rendered":"http:\/\/www.wrightslaw.com\/blog\/?p=111"},"modified":"2008-11-07T20:33:38","modified_gmt":"2008-11-08T01:33:38","slug":"damages-deliberate-indifference-lawsuit-against-hawaii-doe-goes-to-the-jury","status":"publish","type":"post","link":"https:\/\/www.wrightslaw.com\/blog\/damages-deliberate-indifference-lawsuit-against-hawaii-doe-goes-to-the-jury\/","title":{"rendered":"Law &#8211; Damages? Deliberate Indifference? Lawsuit Against Hawai&#8217;i DOE Goes to the Jury"},"content":{"rendered":"<div style=\"padding-bottom:20px; padding-top:10px;\" class=\"hupso-share-buttons\"><!-- Hupso Share Buttons - https:\/\/www.hupso.com\/share\/ --><a class=\"hupso_pop\" href=\"https:\/\/www.hupso.com\/share\/\"><img decoding=\"async\" src=\"https:\/\/static.hupso.com\/share\/buttons\/gallery\/share-button-gray.png\" style=\"border:0px\" alt=\"Share\" \/><\/a><script type=\"text\/javascript\">var hupso_services=new Array(\"Twitter\",\"Facebook\",\"Google Plus\",\"Pinterest\",\"Linkedin\",\"StumbleUpon\",\"Digg\",\"Reddit\",\"Bebo\",\"Delicious\");var hupso_icon_type = \"labels\";var hupso_background=\"#FFFFFF\";var hupso_border=\"#FFFFFF\";var hupso_image_folder_url = \"\";var hupso_twitter_via=\"wrightslaw\";var hupso_url=\"\";var hupso_title=\"Law%20-%20Damages%3F%20Deliberate%20Indifference%3F%20Lawsuit%20Against%20Hawai%27i%20DOE%20Goes%20to%20the%20Jury\";<\/script><script type=\"text\/javascript\" src=\"https:\/\/static.hupso.com\/share\/js\/share.js\"><\/script><!-- Hupso Share Buttons --><\/div><p><span style=\"color: #993300;\">(Archived from 10\/09\/08)<\/span><\/p>\n<p>After a  4 1\/2-week jury trial, the first damages case against the Hawai&#8217;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.<\/p>\n<p>What are the odds that the jury will find for the child and family?<!--more--><\/p>\n<p>We don&#8217;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.<\/p>\n<p>This case is <em>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. <\/em>You can read a pre-trial statement for the case <a href=\"http:\/\/disappearednews.com\/docs\/wiles-pretrial.pdf\"><span style=\"color: #000080;\">here<\/span><\/a>. <span style=\"color: #000080;\"><a href=\"http:\/\/disappearednews.com\/docs\/wiles-pretrial.pdf\"><span style=\"color: #000080;\">http:\/\/disappearednews.com\/docs\/wiles-pretrial.pdf<\/span><br \/>\n<\/a><\/span><\/p>\n<p><span style=\"color: #000080;\"><span style=\"color: #000000;\">This article by Larry Geller describes the issues in these cases.<\/span><\/span><\/p>\n<p><strong><span style=\"color: #000080;\">Lawsuit Goes to Jury As State Dips Into Your Pocketbook for Extra Legal Fees<br \/>\n<span style=\"font-weight: normal; color: #000000;\">by Larry Geller, <span style=\"color: #000080;\"><a href=\"http:\/\/disappearednews.com\/\"><span style=\"color: #000080;\">Disappeared News<\/span><\/a><\/span><\/span><\/span><\/strong><\/p>\n<p>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\u2019s 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 <a href=\"https:\/\/www.wrightslaw.com\/info\/sec504.index.htm\"><span style=\"color: #000080;\">section 504 of the Rehabilitation Act<\/span><\/a> and are not the same as cases filed under the <a href=\"https:\/\/www.wrightslaw.com\/idea\/index.htm\"><span style=\"color: #000080;\">IDEA (Individuals with Disabilities Education Act).<\/span><\/a><\/p>\n<p>Ian Lind discovered and <a href=\"http:\/\/ilind.net\/2008\/10\/08\/wednesdaypbn-pounds-lingle-self-promotion-decosta-hit-with-foreclosure-suit-cost-of-doe-defense-more-than-triples\/#comments\"><span style=\"color: #000080;\">posted<\/span><\/a> a contract amendment that more than triples the state Attorney General\u2019s previous request for funds to defend these cases:<\/p>\n<blockquote><p>The state is seeking to <a href=\"http:\/\/disappearednews.com\/docs\/form07753.pdf\"><span style=\"color: #000080;\">expand a contract with the law firm of Watanabe Ing &amp; Komeiji <\/span><\/a>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.<\/p><\/blockquote>\n<p>The second page of the document lists the cases that will follow this one.<\/p>\n<p>Stakes are high for the DOE, and of course, the Legislature will be asked to dip into taxpayer\u2019s 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.<\/p>\n<p>It\u2019s 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.<\/p>\n<p>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\u2019s deliberate indifference to his needs, care that he will need throughout his life and after his parents are not around to look after him.<\/p>\n<p>Defendant&#8217;s argument today (offered by attorney Kenneth Robbins) was basically a smear of the parents. I don\u2019t 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\u2019 attempt fell far short of proving any culpability on the part of the parents for the DOE\u2019s failure to implement Bryan\u2019s 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.<\/p>\n<p>Attorney <a href=\"http:\/\/varadylaw.com\/\"><span style=\"color: #000080;\">Carl Varady\u2019s<\/span><\/a> closing remarks to the jury for the plaintiffs contained several gems. He described the DOE\u2019s testimony that it wouldn\u2019t 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\u2019s program.<\/p>\n<p>Again, it\u2019s not possible in this space to provide an adequate summary of today\u2019s closing statements. And it\u2019s 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 &#8230; by its \u201cdeliberate indifference,\u201d something I think the jury will understand.<\/p>\n<p><a href=\"http:\/\/disappearednews.com\/2008\/10\/vanguard-post-felix-lawsuit-goes-to.html\"><span style=\"color: #000080;\">Link to article<\/span><\/a>: <a href=\"http:\/\/disappearednews.com\/2008\/10\/vanguard-post-felix-lawsuit-goes-to.html\"><span style=\"color: #000080;\">http:\/\/disappearednews.com\/2008\/10\/vanguard-post-felix-lawsuit-goes-to.html<\/span><\/a><\/p>\n<p><strong>Update on Case<\/strong>: 10\/9\/08, 4:15 p.m. HST<\/p>\n<p>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&#8217;s civil rights were violated. The jury agreed with some and not with others, so the DOE won.<\/p>\n<p>The family did not prevail. It was devastating to hear the verdict read.<\/p>\n<p>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&#8217;s required  to mount a case like this.<\/p>\n<p>Maybe it\u2019s just hard for a jury to understand the complexity of a section 504 case. I don\u2019t know what to think.<\/p>\n<p>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, <a href=\"http:\/\/disappearednews.com\/\"><span style=\"color: #000080;\"><span style=\"color: #000080;\">Disappeared News<\/span><\/span><\/a><\/p>\n","protected":false},"excerpt":{"rendered":"<p>(Archived from 10\/09\/08) After a 4 1\/2-week jury trial, the first damages case against the Hawai&#8217;i DOE went to the jury 24 hours ago. Three more cases alleging deliberate indifference <a class=\"more-link\" href=\"https:\/\/www.wrightslaw.com\/blog\/damages-deliberate-indifference-lawsuit-against-hawaii-doe-goes-to-the-jury\/\">Continue Reading \u2192<\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"om_disable_all_campaigns":false,"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"_uf_show_specific_survey":0,"_uf_disable_surveys":false,"footnotes":""},"categories":[216,1363,6],"tags":[221,1327,218,217,219,220,1297],"class_list":["post-111","post","type-post","status-publish","format-standard","hentry","category-damages","category-discrimination-section-504-adaa","category-legal-decisions","tag-attorneys-fees","tag-damages","tag-deliberate-indifference","tag-hawaii-department-of-education","tag-jury-trial","tag-rehabilitation-act","tag-section-504"],"aioseo_notices":[],"_links":{"self":[{"href":"https:\/\/www.wrightslaw.com\/blog\/wp-json\/wp\/v2\/posts\/111","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.wrightslaw.com\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.wrightslaw.com\/blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.wrightslaw.com\/blog\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.wrightslaw.com\/blog\/wp-json\/wp\/v2\/comments?post=111"}],"version-history":[{"count":0,"href":"https:\/\/www.wrightslaw.com\/blog\/wp-json\/wp\/v2\/posts\/111\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.wrightslaw.com\/blog\/wp-json\/wp\/v2\/media?parent=111"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.wrightslaw.com\/blog\/wp-json\/wp\/v2\/categories?post=111"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.wrightslaw.com\/blog\/wp-json\/wp\/v2\/tags?post=111"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}