EAST ST. LOUIS – U. S. Magistrate Judge Mark Beatty decided not to exclude testimony of Flora school board’s expert psychiatrist Alexander Rose, who overheard conversation between a lawyer and the son of a client.
Beatty struck the portion of Rose’s report about what he heard through the door of an examination room but denied a motion to disqualify him.
“Ultimately, the court believes that the communication Dr. Rose overheard did not pervade or infect his ultimate opinions,” he wrote.
James Radcliffe, Lloyd M. Cueto, and Christopher Cueto of Belleville and Michael Gras of St. Louis represent plaintiff James Pennington, father of autistic twins James and Jacob.
Pennington claims the school district discriminated against the twins and failed to protect them from bullying by other children.
In August 2021 Pennington brought the twins to Rose’s office in Richmond Heights, Missouri, for separate examinations.
Rose’s report on his examination of James Pennington stated that he paused for a moment to listen before opening the door, “as is my well trained clinical habit.”
He wrote that he opened the door and recognized the father but saw a man he didn’t expect who introduced himself as an attorney for the family.
The record of the dispute doesn’t identify the lawyer.
Rose reported that he heard a young man going over, sharing, or rehearsing a narrative.
At a deposition in November 2021, he stated the lawyer’s presence genuinely surprised him.
Radcliffe moved for default judgment, claiming Rose violated attorney client privilege.
He claimed Rose stated plaintiffs were rehearsing as if it was fact.
He claimed Beatty should at least strike Rose’s report and preclude his testimony.
School board counsel David Braun of Monticello opposed default judgment, stating privileged conversations should have occurred at counsel’s office.
Beatty denied default judgment last April, finding no misconduct on Braun’s part, but he found Rose improperly disclosed James’ statements.
He indicated he was inclined to strike the report and preclude Rose’s testimony, but he held off and asked for briefs on an appropriate remedy.
Braun proposed to excise the offending portion of the report, stating there was no evidence that what Rose heard infected his opinions.
Radcliffe moved for exclusion, claiming Rose’s eavesdropping tainted his examination.
He claimed excising the offending portion would not address the severity of Rose’s action.
Beatty chose the less drastic course.
He found Rose didn’t set out to overhear privileged communications.
He found Rose testified he was trained to pause and listen as he approached the room.
Beatty also found Rose testified he listened for mere seconds.
“It stands to reason that if he was trying to secretly listen to the content of what was being said, he would have stood there for much longer and tried to hear as much as possible before opening the door and announcing his presence,” he wrote.
Beatty found Rose believed it was professionally responsible to include it in his report.
He found Rose explained that psychiatrists mention any irregularity in an evaluation.
He found plaintiffs provided no explanation or example to support an argument that Rose’s action tainted his examination.
“Perhaps it would taint the outlook of a lay person but not a trained psychiatrist well versed in how the autistic brain functions and how autism manifests itself,” Beatty wrote.
He found nothing to suggest Rose would have reached a different opinion had he not heard James prior to the examination.
At a status conference on Feb. 16 Beatty gave the parties 21 days to wrap up discovery.
He set trial in October.