NEWPORT NEWS — Attorneys for the Newport News School Board and former Richneck Elementary School teacher Abigail Zwerner are sparring over evidence sharing in the teacher’s pending lawsuit against the board.
But a Circuit Court judge on Friday ruled that the document sharing and questioning can begin, even as a dispute looms over whether the former teacher has the right to sue in the first place.
Zwerner, 25, who was shot Jan. 6 by a 6-year-old student in her first grade classroom at Richneck, filed suit in April against the school board and past administrators. Among other things, she contends the former assistant principal failed to act on clear threats that the boy was armed that day.
The lawsuit seeks $40 million in damages.
But a dispute has arisen over many of the documents that Zwerner’s attorneys want from the school division as part of “discovery” — the information sharing between the sides before trial. That includes requests for particular documents and a list of questions to the board they want answered.
The school board asked Judge Matthew W. Hoffman to delay such evidence sharing until he rules on whether the case is limited to a worker’s compensation claim. If he says it’s a worker’s comp case, that would mean the Circuit Court would have no jurisdiction over the matter.
The board’s lawyers assert that because Zwerner was shot on the job, she suffered a workplace injury and cannot file suit in Circuit Court. Instead, she would be entitled only to what she would get under the Worker’s Compensation Act.
The board contended it doesn’t make sense to move forward with the evidence sharing phase until Hoffman rules on the worker’s comp issue.
Zwerner’s lawyers say limiting the claim to a worker’s comp is nonsense — that being shot by a student isn’t a reasonable expectation of her job.
Moreover, they asserted it’s more efficient to get the discovery process underway, especially given the time involved with lining up eyewitnesses and interviewing minors — such as other students in Zwerner’s class who watched their teacher get shot.
In the end, Hoffman on Friday sided with Zwerner’s lawyers, allowing them to begin the discovery process before he rules on the worker’s comp issue. That means Zwerner’s lawyers can go forward with several dozen requests for documents and can get answered a series of questions called interrogatories.
The lawyers should now get, for example, the names and dates of birth of all eyewitnesses to the shooting, to include the other first graders in Zwerner’s class.
There’s a process under federal law for parents of those students to object to interviews, according to Anne Lahren, one of the school board’s lawyers. Still, an attorney for Zwerner, Kevin Biniazan, said depositions of the first grade witnesses could begin as early as this fall.
Hoffman then set a date of Oct. 27 for a hearing to decide the worker’s compensation issue.
“Today was a good victory for us,” said one of Zwerner’s lawyers, Diane Toscano. “We look forward to starting the discovery process and getting (the worker’s comp issue) argued.”
As for Zwerner, she said the teacher “is on a long road to recovery.”
“She’s still healing,” Toscano said. “She’s going to have these emotional and physical scars for the rest of her life.”
Even as the judge’s ruling Friday now means that much school division information will begin to be shared with Zwerner’s attorneys, there’s still plenty at issue in the discovery process.
The school board still objects to nine requests for information — six requests for documents and three interrogatories — from Zwerner’s lawyers, generally calling the requests overbroad.
For example, Zwerner’s lawyers asked for the school system’s “entire file of the incident,” as well as the investigative file on it, statements about it, to include on cellphones and social media posts and “journals,” and any texts or memos “from anyone in the school district.”
They also asked for the names and home and business addresses of anyone with “information or knowledge” of the case, anyone who has investigated it, and any other first grade teacher in the school district last year.
But the school board’s lawyers contend those requests are too broad.
“Asking (the board) to state all such information would literally include any person who has read a newspaper article about the incident … amounting to potentially millions of people,” the board’s attorneys said in response.
Hoffman set a hearing for Aug. 9 to go line-by-line through the board’s objections and rule on each.
The two sides have separately agreed to a protective order pertaining to Newport News Police Department investigative files stemming from the shooting. That means Zwerner’s lawyers will get access to such documents, but can’t share them with the public or others outside the court process.
Peter Dujardin, 757-247-48749, pdujardin@dailypress.com
