EAST ST. LOUIS – U.S. Magistrate Judge Mark Beatty must decide whether psychiatrist Alex Rose of Richmond Heights, Mo. acted as scientist or spy outside an examination room on Aug. 28.
Rose had set appointments that day to meet identical twins James and Jacob Pennington as independent examiner for the Flora school board.
Parents of the twins claim school officials discriminated against them on account of their autism and allowed students to act as bullies.
As Rose approached the examination room he heard a child’s voice, according to a report he wrote on Sept. 18.
“I paused for a moment to listen before opening the door and making my presence known as is my well trained clinical habit,” Rose wrote.
“What I heard was a young man’s voice verbally going through, sharing, and or rehearsing aloud a narrative of negative events that had occurred at his prior school and which are relevant to this case.”
When he opened the door, according to his report, he readily recognized the child and father James Pennington.
“There was another man in the room who I was not expecting and subsequently introduced himself as the attorney for the family relevant case,” Rose wrote.
He didn’t provide a name.
Attorneys James Radcliffe, Christopher Cueto, and Lloyd M. Cueto, all of Belleville, represent the family along with Michael Gras of St. Louis.
Rose included the attorney’s presence in his report as an important irregularity.
“While I did not say anything explicitly, I was and am concerned about the atypical presence of an evaluatee’s legal counsel immediately prior to an independent evaluation, which was only compounded by the verbal rehearsing of a narrative of events relevant to the present case and in the presence of said counsel,” he wrote.
“I believe that at least one effect of counsel’s presence may be the initially very rehearsed nature of the narrative as at first, he was not responding to my questions directly but was instead perseverating on and switching among several major narrative events.”
Rose sent reports on the twins to school board counsel David Braun of Monticello.
At a deposition on Nov. 8, Rose said he wasn’t told an attorney would be present and he was genuinely surprised.
He said he included it in his report because, “When atypicality happens you mention it to someone with perhaps different expertise than you.”
That action should cause the school board to lose the case, according to Radcliffe.
He moved for default judgment on Dec. 30, claiming Rose violated attorney client privilege and put the school board on notice that he did.
“Plaintiffs would be severely prejudiced if defendant is allowed to rely on such an abusive litigation practice at trial,” Radcliffe wrote.
He wrote that Rose eavesdropped and admitted he didn’t get informed consent.
“Dr. Rose improperly states in his report that plaintiffs were rehearsing their story as if it is a fact,” he wrote.
“It is not a fact, and patently false.”
He wrote that Rose examined the twins believing one had rehearsed his story.
He wrote that the court should at a minimum strike Rose’s report and preclude his testimony at trial.
Beatty has set trial in March.
The family and the school board will meet with mediator James Mendillo of Belleville later this month.