EAST ST. LOUIS – Psychiatrist Alex Rose didn’t violate attorney client privilege when he reported what he heard at an examination room door, the Flora school board argued in U.S. district court on Jan. 11.
Board counsel David Braun of Monticello, defending a discrimination suit, opposed a motion for default judgment as a sanction for Rose’s conduct.
“There is no case law or statute to support plaintiff’s assertion that any communications in a public location are subject to privilege,” Braun wrote.
He claimed that privileged conversations should have occurred at counsel’s office, not a monitored waiting room.
Plaintiff James Pennington, father of identical twins James and Jacob, moved for default judgment on Dec. 30.
His counsel James Radcliffe of Belleville claimed Rose violated privilege and put the school board on notice that he did.
Pennington sued the board last year, claiming staff discriminated against the twins on account of their autism and allowed other students to bully them.
The board hired Rose to evaluate the twins, and he saw them at his office in Richmond Heights, Mo., on Aug. 28.
He sent an evaluation to Braun in September, starting with an account of what he called an important irregularity.
“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.
He wrote that he heard a young man “going through, sharing, and or rehearsing aloud a narrative of negative events that had occurred at his prior school.”
He wrote that upon entering, a man he didn’t expect introduced himself as attorney for the family.
He didn’t name the attorney.
Radcliffe represents Pennington in association with Christopher Cueto and Lloyd M. Cueto of Belleville and Michael Gras of St. Louis.
Rose wrote that he was concerned about the presence of counsel prior to evaluation, compounded by the rehearsing of a narrative.
“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 wrote.
Radcliffe claimed in his default motion 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,” Radcliffe wrote.
Board counsel Braun responded that nothing in Rose’s report suggested he heard any advice or request for advice.
“The only verbal statements Dr. Rose’s report suggests he heard was a narrative of facts, the very same narrative that he heard from the examinee during the examination,” Braun wrote.
“It is not abnormal for a medical examination report to include information about the patient’s conduct in the waiting room.”
Braun claimed the motion for sanctions was a bargaining chip, “to frighten opposing counsel into reaching a settlement favorable to plaintiff’s terms.”
He called it the kind of bullying that court rules were designed to prevent.
Magistrate Judge Mark Beatty has set trial in March.