EAST ST. LOUIS – U.S. Magistrate Judge Mark Beatty decided not to enter default judgment against Flora’s school board as punishment for their expert psychiatrist listening to a plaintiff through a door.
Beatty denied drastic sanctions on April 18, finding neither the board nor its counsel violated a discovery order or engaged in egregious practices.
He wrote that sanctions must be premised on a finding that a party willfully abused the judicial process or litigated in bad faith.
Although he spared the board from outright failure, he didn’t wipe the slate clean.
He asked for briefs on an appropriate remedy at trial.
The eavesdropping occurred in the course of a suit that James Pennington filed for autistic twin sons James and Jacob in 2020.
The complaint alleges that the schools discriminated against the twins and failed to protect them from bullying by other children.
Last Aug. 28, Pennington brought his sons to the office of psychiatrist Alex Rose of Richmond Heights, Mo.,for separate examinations.
A report that Rose sent to school board counsel David Braun of Monticello started with a description of 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.
Rose wrote that he heard a young man “going through, sharing, or rehearsing aloud a narrative” of events at a prior school.
He wrote that he opened the door, recognized the father, and saw a man he wasn’t expecting who introduced himself as the attorney for the family.
He expressed concern about the presence of counsel prior to an evaluation, writing that the son at first didn’t respond to his questions.
At a deposition on Nov. 8, Rose said he wasn’t told an attorney would be present and was genuinely surprised.”
Pennington’s lead counsel James Radcliffe of Belleville moved for default judgment in December, claiming violation of attorney client privilege.
He claimed Rose stated plaintiffs were rehearsing as if it was fact.
“It is not a fact, and patently false,” Radcliffe wrote.
He claimed Beatty should at least strike Rose’s report and preclude his testimony.
Braun opposed the motion in January, stating privileged conversations should have occurred at counsel’s office.
He claimed the report didn’t suggest that Rose heard advice or requests for advice.
Beatty found no misconduct on Braun’s part, writing that he didn’t engage in bad faith, abusive practices, or other conduct warranting a harsh remedy.
He found Braun wasn’t responsible for Rose’s conduct and Rose’s report was disclosed to plaintiffs.
As for Rose, Beatty found his report called into question its admissibility and his ability to act as witness.
He found the child and his counsel reasonably expected that a third party wouldn’t eavesdrop on their conversation.
“This type of secret eavesdropping is the type of surreptitious activity that distinguishes this case from those where privilege is waived,” Beatty wrote.
He found no evidence that the attorney counseled plaintiffs to avoid the truth or otherwise obstructed the evaluation.
He found nothing atypical about counseling clients through each stage of litigation.
Beatty granted leave for amendment of the complaint to reflect that James and Jacob have grown to adulthood.
He hasn’t set trial.
The case record doesn’t identify the attorney in the room.
Radcliffe represents the Penningtons in association with Lloyd M. Cueto and Christopher Cueto of Belleville and Michael Gras of St. Louis.