Judge Defers Final Ruling in ESD Case

Although a jury handed down a $9.2 million verdict against the Episcopal School of Dallas in September, the plaintiffs are now seeking just $6.7 million.

“Rarely do you get a judgment for the entire amount of the verdict,” said attorney Charla Aldous, who represents the Doe family.

The Does sued ESD for damages related to history teacher John Nathan Campbell’s sexual relationship with their daughter and her subsequent separation from the school.

Judge D’Metria Benson heard a variety of motions related to the final judgment and sanctions against ESD this afternoon, but deferred ruling on any of them until a later date.

Fifteen attorneys, including a handful of newly acquired appellate counsel from Haynes & Boone, attended the hearing on behalf of ESD. The school sought to have the judgment thrown out entirely, but offered an award around $3 million should its first request fail.

Attorney George Bramblett urged Benson to delay ruling on the plaintiffs’ proposed sanctions against Locke, Lord, Bissell & Liddell.

“There’s no reason, your honor, to rush to judgment on such an important thing,” said Bramblett, who was named the 2011 Malpractice Lawyer of the Year by the organization Best Lawyers in America.

On Nov. 2, the plaintiffs filed additional sanctions against lead counsel Chrysta Castaneda as well as Locke Lord for witness tampering, intimidation, obstruction of justice, and perjury. The plaintiffs’ original motion for sanctions was filed in January. Taking into account the sanctions’ wide scope (they covered issues from the entire length of the trial), as well as Castaneda’s recent abdominal surgery, Benson acquiesced to Bramlett’s request and postponed the hearing on the Nov. 2 sanctions until “a later date.”

In a move that seemed to surprise ESD’s gaggle of legal representatives, Benson bifurcated the hearing on sanctions and heard arguments contained in the plaintiffs’ initial filing.

Brent Walker, a lawyer representing the family, acknowledged that it was unusual to seek sanctions against a firm after prevailing with a multi-million dollar verdict. But Walker asserted that Lock Lorde’s “unconscionable” behavior merits legal action. Some of the charges heard against the firm included withholding tax documents and other evidence, and misconduct during witness depositions.

“A business open since 1974 should have more than five IRS documents,” Walker said. “I think that’s self-evident.”

Walker alleged that ESD displayed “a pattern of abuse throughout the entire discovery process” before asking for 50 percent of the total monetary sanctions listed in the Nov. 2 filing, which came to about $45,000.

Defense attorney Chip Brooker of Haynes & Boone argued that awarding legal fees was not an “appropriate response” to discourage this type of behavior.

“They’re asking simply for money, again,” Brooker said.

Walker also took issue with ESD’s conduct during Father Stephen Swann’s deposition, which occurred last year. Walker said Castaneda purposefully spread the deposition over multiple days and improperly restricted Swann from answering questions.

Attorney Shonn Brown defended Castaneda and attacked Aldous’ conduct, calling her questioning style “extremely abusive” with the purpose of “beating [Swann] into submission.”

Regarding the accusation that ESD withheld tax documents, Brown said they produced documents “as they became aware of them” and always acted “in good faith.”

During the motion for judgment, attorney Cynthia Timms asked Benson to take judicial notice of ESD’s settlement offer to Jane Doe II on Feb. 23, 2011. The $626,000 offer was extended only to Jane and would not have settled the entire case. The plaintiffs rejected the offer. Under Rule 167, Timms said should the court award an ultimate verdict less than 80 percent of the settlement offer, the plaintiffs would be responsible for ESD’s legal fees since March, which total $1.5 million.

Walker argued that figure seemed a bit high.

“My guess is it’s not reasonable to have 15 attorneys billing for this hearing,” he said.

By Claire St. Amant Nov. 10, 2011 | 6:02 pm | 23 Comments | Comments RSS
23 comments to "Judge Defers Final Ruling in ESD Case"
  1. *breaking news* @ November 10, 2011 at 6:40 pm
    Doesn’t Haynes and Buffon represent D? Is ESD trying to put indirect pressure on this media company to prevent reporting on this issue? I’m just asking.

  2. Claire St. Amant @ November 11, 2011 at 10:47 am
    @breaking news, While I can’t speak to ESD’s motivation in hiring Haynes & Boone, I can confirm the firm represents D.

  3. *breaking news* @ November 11, 2011 at 12:45 pm
    Can you also confirm that John Eagle made a large media buy with D the week the trial verdict came down. If D and PHP are as awful as ESD claims, why share attorneys, and advertise with D?

  4. Claire St. Amant @ November 11, 2011 at 1:59 pm
    @breaking news, I checked with management and received this response:

    “John Eagle Companies has been an advertiser in D Magazine for decades. The company has sponsored our FrontRow blog in support of the Dallas arts since its inception over a year ago.”

    Any other riddles you need solving? I’m here til 5.

  5. Avid Reader @ November 11, 2011 at 3:09 pm
    I have a riddle or more of a question. From reading the plaintiffs filing of 11/2 and the response from defendants; it seems like both sides ignored “orders” from the Judge. Plaintiffs didn’t hand over JD’s laptop or the tapes of Burrow/Campbell when asked; and the defendants didn’t hand over discovery items, make witnesses available, as well as not accepting Burrow’s supoena. I am sure there are some legal strategery involved these situations and that they are not exactly cut-dry. But when the Judge pretty much makes it simple: “castaneda will accept the supoena for Burrow”; “plaintiffs will turn over laptop”; how do you not get disbarred or something for not following orders?

  6. *breaking news* @ November 12, 2011 at 8:40 am
    @Claire- Thanks for the infor. It seems like ESD’s defense was all about influence. That tact doesn’t seem to be working for them.
    If “the enemy of my enemy” is a friend, what does ESD snuggling up to the company they criticize so loudly say?

    Influence? Priceless. Unless you have none because people don’t like a community that’s okay with shaming a rape victim.

  7. Claire St. Amant @ November 14, 2011 at 11:27 am
    @Avid Reader, All of those issues piqued my interest as well. My understanding is that the plaintiffs handed over the Burrow/Campbell tapes to Benson, who referred them to the DA. The plaintiffs had a copy made available to ESD, but they wanted the original. There was a similar situation with the laptop, in that the plaintiffs provided a “mirror image” of Jane’s hard drive to ESD, but they wanted her original computer. Since that contained attorney-client privileged communications, it wasn’t required to be turned over in its original form.

    I believe ESD was able to get around the subpoena issue by the fact that Burrow has his own legal representation. A trio of filings from Nov. 10 show that neither Castaneda, Joe Cox (Burrow’s attorney), nor George Bramblett or Chip Brooker of Haynes & Boone, would accept service on behalf of Burrow, who was apparently attempted to be subpoenaed by the plaintiffs prior to Thursday’s hearing.

    Btw, props for the SNL reference with “strategery.”

  8. BigTenFan @ November 14, 2011 at 4:23 pm
    Jane Doe, Former Student, abuses by the track coach and math teacher and how many more students that haven’t come forward for fear of retribution by all of the ESD “This is our house” Kool-aid drinking fans.
    If only Rev. Swann could remember other children seeking help instead of protecting his brand.
    Maybe ESD’s Board should look at the fallout from the Penn State scandal. Icons at Penn State have been fired or indicted for perjury – University president, Athletic director, JoePa all will be remembered for this more than their other accomplishments. Their school’s slogan “We are Penn State”.
    While ESD allowed Campbell to resign(not fired) and placed Burrow on administrative leave. What about Swann, Royall, Mayo? And then appealing the verdict? They should follow Penn State’s lead by cleaning house.

    Great read below:

    http://www.grantland.com/story/_/id/7233704/the-brutal-truth-penn-state

  9. Lisa @ November 14, 2011 at 9:17 pm
    ESD has held onto their “principles” and repeated their message until their community bowed under the very real threat of retribution on any who complain. They believe themselves to be bullet proof and so far they have been.
    It is inconceivable to me (still) that Steve Swann remains at the top, not to mention disgusting. The powerful know no shame.

  10. interested observer @ November 15, 2011 at 4:34 pm
    All: You ignore a critical jury finding: ESD did not know and could not have known that Campbell was abusing Doe II. It was not negligent in failing to protect Doe II and other students.

    No one has come forward who knows that ESD knew of prior incidents. This forum would allow them to assume an anonymous name and at least say it. They haven’t.

    And what if there had been prior incidents, with prior firings or disciplinary actions? There is in the record a prior allegation with disciplinary action taken, but no proof that it happened. It was a mere allegation. If it actually happened,a parent of the child should have gone forward with a prosectuion,but didn’t. That tends to make the allegation suspect.

    What if there were one or more proven incidents of sexual abuse? That alone does not prove ESD was negligent. One or two incidents, with appropriate discipline administered is all the school can do. Prior incidents are not necessarily relevant unless they show a habit, custom or routine. The school isn’t strictly liable just because someone else later, after having been properly screened before hiring commits sexual abuse. As long as the school administrators were doing what any other prudent school administrators were doing to protect their children, what else could they have done?

    Do you think a school administrator should monitor every teacher’s e-mail and messages on school issued cell phones? Who would do that and how much time would it take? Does any school actually do that? How about parents? Aren’t they responsible to monitor their children’s text messages, e-mail, and after school whereabouts? Why is the school more responsible than the parent to exercise that oversight?

    The jury was half right. What doesn’t make sense is that that a school was grossly negligent in the way it dismissed a student. How it could not have been negligent in failing to protect the child, yet have a legal duty not to discharge the child, I do not see.

    People here are saying th school had a moral duty to keep the child enrolled, but a moral duty is not necessarily a legal duty. For example, a person might be drowning in the ocean. There might be a moral duty to rescue the person, but there is no legal duty to put one’s life at risk to save someone who is drowning.

  11. *breaking news* @ November 15, 2011 at 4:51 pm
    @ Interested observer: the Monday morning quarterback who called this case wrong all the way through.

    Spoken like a member of the ESD “family.”

  12. Walnut Hill @ November 15, 2011 at 5:39 pm
    @Interested Observer – Please direct us to the question in the jury charge to which the jury answered finding “It {ESD} was not negligent in failing to protect Doe II and other students.” It appears to me the jury in fact did find ESD guilty of negligence by its “failure to select, perform background checks, hire, train, or retain teachers competent to be trusted with the welfare and safety of minor students” and “failure to have a Quality Assurance program in place to monitor and promote compliance with above policies and procedures”. It also appears to me the jury did in fact find that “by clear and convincing evidence that the harm against {Jane Doe II} resulted from gross negligence by ESD”. Not sayin’ its right or its wrong, just sayin’ thats what it says.

    BTW @Claire – great article a few months ago about former students teaching at their alma maters. Just think, if you had written this a year and half ago you may have profiled ESD’s former student/(then)current teacher……..

  13. Lisa @ November 15, 2011 at 6:10 pm
    Get serious! There was/is a pattern at ESD of these kinds of crimes and most certainly a pattern of threatening, and intimidating the victims and their parents to protect the school’s reputation and it’s tony investors. And they are not sorry enough to clean “THEIR HOUSE”! What they evidently are inclined to be sorry about is the loathsome and ugly public relations stain on their brand’s image- they only have themselves to thank for that.

  14. interested observer @ November 16, 2011 at 11:25 am
    Walnut Hill: I stand corrected. I have relied on media reports that reported that the jury failed to find ESD was negligent in protecting Jane Doe II and other students. I’ve looked for the jury’s answers themselves on line and I haven’t found them. The general consensus among commenters here, though, is that the jury found the manner in which Jane Doe II was discharged to be grossly negligent, and it was in connection with that answer that punitive damages were awarded.

    The problem I have is that, in order for there to be gross negligence, there must first be simple negligence. That is, there has to be a legal duty first, and there must be a breach of that duty. Once we reach that part of the question, we ask whether the breach of that duty was so lacking in due care as to be reckless, or without regard to the safety of an injured victim. It would be more than momentary thoughtlessness or inattention. It would be callous.

    So, I go back to the facts. If the relationship between a student and a private school is an at-will relationship and where the administration has the right to exercise its discretion at will, where is the duty to keep a child enrolled for any length of time? If the relationship is contractual in nature, why don’t ordinary contract rules govern the question of damages? How do we go from a simple breach of contract case to negligence? It is a real problem, and I hope to learn the answer as this matter moves forward.

  15. *breaking news* @ November 16, 2011 at 7:33 pm
    IO…the relationshiop between a minor and teacher is not “at will.” Employment law does not apply. It’s abuse. Rape, by statute, and even if the student was 18, still a crime in Texas.

    Get your “facts” straight before posting more crap on this thread.

    ESD supporters looks like real creeps.

  16. amanda @ November 17, 2011 at 6:10 am
    Maybe ESD should stop skating down a technical line, and start acting in a Biblical manner?

    I think that defining this situation as a mere contract is completely bogus. The relationship wasn’t contractual. The teacher used school property to carry out his sick intentions. Either parents have the understood ability to believe that the school won’t contribute to a molestation or not. I think what the jury said was that the parents should be able to expect that the school isn’t contributing on any level.

    As the case moves forward…what we’ll see is another jury and judge horrified by ESD”s actions. And, we’ll see more arrogance. Burrows backfired, and the attempt to explain away all of this by current admin and faculty was solidly rejected.

  17. BigTenFan @ November 17, 2011 at 2:45 pm
    JoePa and Rev.Swann, eerily similar… just substitute Rev.Swann wherever you see Joe Paterno and ESD for Penn State.

    From Jack Bechta – National Football Post – player agent and Pennsylvania native.

    http://www.nationalfootballpost.com/Did-Joe-Pa-have-too-much-power.html

  18. Walnut Hill @ November 18, 2011 at 6:39 pm
    @Interested Observer – the “general consensus” is uninformed. The jury found ESD negligent for its actions prior to the assault, negligent for some of its actions after the assault but before the withdrawal, grossly negligent for some of its actions after the assault but before the withdrawal, and grossly negligent for its actions at the instant of the withdrawal. The jury further found ESD to have breached its fiduciary duty and to have committed fraud, the fraud being “misrepresentation” which equates to fraudulent concealment/inducement. Assuming ordinary contract rules apply as you suggest, the jury in fact did find ESD did not exercise due care throughout the unfortunate sequence of events, hence their finding that the harm to JDII resulted from gross negligence.

    The technical analysis notwithstanding, @Amanda has it right.

  19. Mothe of Alum @ November 19, 2011 at 7:21 am
    Chris Rock, after the OJ Simpson murder trial, joked that whenever attorney Johnny Cochran was brought in for a case, the defendant was “guilty, guilty, guilty”. So how do we think 15 lawyers brought into court for the ESD defense appears? DESPARATE as well as “guilty, guilty, guilty”. I’m having a hard time understanding why a firm like Haynes and Boone would want to sully their hands by association with this case. Of course the fees and hundreds of yummy billable hours pay the rent, but are times really that tough?

  20. AuntieCairo @ November 21, 2011 at 5:31 pm
    I guess it was inevitable some would try to compare this case to Penn State – even though they are vastly different. Most notably – the age of consent in Pennsylvania is 16 – so this case would not exist in Texas. Considering Jane Doe’s parents and attys have stated they didn’t want to put JD through another trial – it’s odd they keep going to Court and dragging this stuff up — money has to be the only motivation at this point. By not going after Campbell full force it’s clearly not justice. And it’s not unusual to have alot of attys because of specialization -I can assure you Jane Doe’s team consisted of multiple attorneys and experts. I understand the updates on the story – but I don’t understand the harsh feelings on both sides – except I suspect there are still “plants” on both sides of the issue. I think there’s a second story here somewhere. . .

  21. interested observer @ November 22, 2011 at 9:02 am
    Walnut Hill:

    I have yet to label anyone’s comments “crap.” Disagree, but disagree respectfully, please.

    Here are some facts I gleaned from ESD’s Motion for Judgment NOV.

    1. Jury refused to find that ESD caused the inappropriate relationship between Doe II and Campbell. (Page 3, ESD’s motion for Judgment NOV, citing the jury’s answer to question 1) If chain of causation is broken, there can be no negligence and no damages,as a matter of law.

    (2) Relationship between school and student is contractual in nature. Right to sever relationship is “at will” in nature. Therefore there is no duty to refrain from separating student.

    (3)Any mental anguish is negligent infliction of emotional distress, rejected by Supreme Court years ago.

    This is not a frivolous defense. It is credible. The law is the law, and it protects us from kneejerk emotional judgment calls on the part of runaway juries and the masses in general whose emotions are inflamed by media coverage.

  22. Anxious Spectator @ December 8, 2011 at 4:25 pm
    Claire, is it true that the sanctions hearings will resume on Thursday, Dec. 15? We would all like to know when they will resume. I remember you said earlier likely before the end of the year.
    Thanks.

  23. Claire St. Amant @ December 9, 2011 at 11:09 am
    @Anxious Spectator, It is true. Check out my latest blog post for more details.

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