PHILADELPHIA – After one dismissal of federal law claims last summer, a lawsuit filed by the parents of a Penncrest High School special needs student who sued the school district after their son was assaulted in the campus cafeteria has now been dismissed in its entirety.
The dismissal came from U.S. District Court for the Eastern District of Pennsylvania Judge Timothy J. Savage on Dec. 30.
Plaintiffs David and Kristin Brown, parents of student Justin Brown, filed a lawsuit against the Rose Tree Media School District, its board of directors, Penncrest High School, principal Steven Silva and school nurse Alisa Herman-Liu, plus four minors.
Brown’s parents claimed the school district’s nurses failed to give proper care to their son, afflicted with autism and Asperger’s Syndrome, after he was assaulted in Penncrest’s cafeteria.
Per the complaint, “On Mar. 1, 2017, plaintiff Justin Brown was eating his lunch of a hamburger and French fries in the cafeteria of defendant Penncrest High School, when plaintiff Justin Brown was approached by one of the minor defendants, who hammered a savage punch upon the plaintiff’s face, with such force that you could hear the bones in the plaintiff’s nose and maxillofacial structure shatter upon such a brutal impact.”
Brown was bleeding after being injured, and sought medical assistance from school nurse Herman-Liu, the suit said.
“The assault upon plaintiff Justin Brown caused an immediate traumatic brain injury, and due to the concussive blow upon the plaintiff’s brain, plaintiff immediately began to suffer severe vertigo and took quite a bit of time to walk to the school nurse, defendant Alisa Herman-Liu’s office, on his own, as he was left unassisted by the supervising teacher or any other staff member of defendant Penncrest High School, in his attempt to reach defendant Alisa Herman-Liu,” the complaint said.
At the school, Justin was treated only for a nose bleed, and he was not taken to the hospital, as it was deemed “not necessary,” as per the complaint.
Seeking further medical assistance, the Browns then transported their son to the DuPont Hospital for Children in Wilmington, Del., the suit said.
There, they learned Justin had sustained permanent brain damage, diffuse axonal injury and shearing to his brain, a hematoma, a severe concussion, and at least six separate fractures of his left orbital floor, and a shattered nose and/or maxillofacial structure, the suit said.
Subsequently, Justin was bedridden for at least six weeks, missing school in the process, suffered permanent brain damage, facial disfigurement, amblyopia (a/k/a lazy eye), ocular hypertension, orbital emphysema, a shattered nose and/or left maxillofacial structure, a collapsed naval cavity, neurological disorders and speech difficulties, among many other medical maladies, the suit said.
The case raised the question of what kind of liability a school nurse can be exposed to.
Donna Mazyck, executive director for the National Association of School Nurses, previously told the Pennsylvania Record, “School nurses, like all nurses, are licensed by the state and have the same education, training and licensure as nurses in other settings. In Pennsylvania, additional certification exists for school nurses.”
When asked whether school nurses should receive immunity from lawsuits, Mazyck added, “It is not within NASN’s purview to prevent citizens from filing suits.”
“The plaintiffs asserted federal claims under the Americans with Disabilities Act, the Rehabilitation Act, Title IX, and Section 1983 against the School District Defendants. They allege state law claims for battery, civil conspiracy, intentional infliction of emotional distress, negligent infliction of emotional distress, and negligence against the Healy and the Martin defendants,” Savage said.
Savage granted the school district defendants’ dismissal motion on July 23, because “the plaintiffs have failed to file a response within 14 days of the filing of the defendants’ motion,” and thus considered it uncontested. However, the case show the plaintiffs’ response to the motion to dismiss was filed the very next day, on July 24.
On Sept. 5, 2019, default was entered against the Healy Defendants for failing to appear or otherwise respond to the complaint. On Nov. 9, 2019, each Martin defendant filed a motion to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), according to Savage.
With the dismissal of federal law claims against the school-based defendants, that only left other state law claims remaining in the case. The Healy and Martin defendants requested the federal court decline to exercise supplemental jurisdiction over the state law claims, while the Brown plaintiffs wanted the court to consider them.
Savage said there was no reason for a federal court to do so.
“There is no reason to retain jurisdiction over Brown’s state law claims against either the Martin or the Healy defendants, which may be asserted in state court. Pennsylvania allows litigants to transfer a case dismissed from federal courts for lack of jurisdiction to state court by promptly filing certified transcripts of the final judgment and pleadings from the federal action,” Savage said.
“Pennsylvania courts then treat such a transferred case as filed in state court as of the date the case was filed in federal court. Following a jurisdictional dismissal of state claims from federal court under 42 U.S.C. Section 1367, a plaintiff has the amount of time that remained on the limitations period at the time they filed the federal action plus a 30-day grace period to re-file in state court.”
Savage said dismissal for the Martin defendants would also apply to claims against the Healy defendants, since they “suffer from the same defects raised in the moving parties’ motions.”
“Although default has been entered against the Healy defendants, judgment has not been entered. The status of the case against the Healy defendants is not an impediment to pursue a judgment against them in state court,” Savage said.
“With respect to the state law claims for battery, civil conspiracy, intentional infliction of emotional distress, negligent infliction of emotional distress, and negligence, we shall decline to exercise supplemental jurisdiction. Therefore, we shall grant the Martin defendants’ motion to dismiss without prejudice to Brown transferring the case to the Pennsylvania court so he may pursue his claims against them and the Healy defendants.”
The Browns are seeking damages in excess of $5 million, plus interest, court costs, attorneys' fees, and punitive damages, as well as a jury trial.
The plaintiffs were represented by J. Conor Corcoran in Philadelphia.
The defendants were represented by Gabrielle C. Sereni and Tracey Dolin Waldmann of Wisler Pearlstine in Blue Bell, Katherine H. Meehan of Raffaele & Puppio in Media, plus Richard F. Klineburger III of Klineburger & Nussey, in Philadelphia.
U.S. District Court for the Eastern District of Pennsylvania case 2:19-cv-00836
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com