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A.T. v. Oley Valley School District

United States District Court, E.D. Pennsylvania

November 8, 2019

A.T. INDIVIDUALLY and as PARENT AND NATURAL GUARDIAN OF O.T., a minor
v.
OLEY VALLEY SCHOOL DISTRICT

          MEMORANDUM

          SCHMEHL, J.

         Plaintiffs brought this action under Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681, et seq., (Count One) and § 504 of the Rehabilitation Act, 29 U.S.C. § 701, and the Americans with Disabilities Act, 42 U.S.C.§ 12132 (Count Two), claiming the Defendant allowed Plaintiff O.T. to be bullied, harassed and intimidated while she was a high school student under the Defendant's care and control. Plaintiffs allege that a result of the bullying, Plaintiff O.T. suffered, inter alia, severe psychological injuries.

         On September 26, 2019, Plaintiff O.T. appeared at defense counsel's law office with her lead counsel, Gregory A. Smith, Esq., for a mental examination. Defense counsel had arranged for Julie A. Kessel. M.D. to travel from Florida to conduct the examination of O.T. Defense counsel did not appear at the examination because she was attending depositions in another matter. Mr. Smith sat in on the mental examination of O.T. The examination was transcribed by a court reporter via telephone. Mr. Smith limited the examination to three hours.

         E-mail exchanges between Mr. Smith and defense counsel reveal that defense counsel was aware as of September 25, 2019, that Mr. Smith would be sitting in on the mental examination of his client and that defense counsel expressly consented as follows:

I'm very accustomed to having someone's paralegal sit in and take notes. It is very odd in my experience that a law firm partner would sit in, but that's ok. Please advise me ahead of time who else will be there.

(Letter to the Court from Gregory Smith dated October 23, 2019, p.2.)

         In addition, the transcript of the examination reveals that defense counsel, through her paralegal, stated that that she did not object to having a stenographer transcribe the examination as long as Dr. Kessel did not object. (Tr. 18.) Dr. Kessel did not have any objection. (Tr. 14.) There is no evidence that defense counsel objected to the 3-hour time limit at any time prior to the examination.

         Defense counsel now objects to Plaintiff's counsel having sat in on the examination and “obstruct[ing] the process in every way imaginable”, the fact that the examination was transcribed and that Plaintiff's counsel unilaterally imposed a three-hour time limit on the examination. Defense counsel seeks sanctions against the Plaintiffs in the form of dismissal of their damages claims as they relate to psychiatric, psychological or emotional distress or, in the alternative, for a new mental examination to be conducted by Dr. Kessel within 30 days, with exam being limited to one day and without the presence of counsel and without recording of any kind.

         Plaintiff's counsel argues that defense counsel has waived any objections, but has offered to have O.T. appear to continue the mental examination at the defense's costs with Plaintiff's counsel attending the examination and the examination being transcribed.

         While the record does not reflect that Mr. Smith “obstructed the process in every way imaginable, ” it does reflect that Mr. Smith interrupted the examination on multiple occasions as follows:

Mr. Smith: If there . . .if there are areas in which I believe I need to interject, I will do so.
Dr. Kessel: Okay.
Mr. Smith: Other than that, I-it's not my intention to be disruptive in any way.
Dr. Kessel: Okay. Thank you.
And I understand anew that we have a time limit, until 1 ...

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