United States District Court, E.D. Pennsylvania
A.T. INDIVIDUALLY and as PARENT AND NATURAL GUARDIAN OF O.T., a minor
OLEY VALLEY SCHOOL DISTRICT
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.
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.
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
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,
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.
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
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.
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