PITTSBURGH – A protective order will apply to an employee personnel file to be examined in the course of discovery, in the case of a KinderCare teacher who has been accused of taking inappropriate pictures of a student and then sharing them with other adults.
Plaintiffs P.H., D.H. and T.H. filed suit on Feb. 6 in the Washington County Court of Common Pleas against KinderCare Education, LLC. However, the defendant removed the case to the U.S. District Court for the Western District of Pennsylvania on Feb. 25.
“Defendant’s teacher took photographs of P.H. in which P.H. was depicted nude from the waist down. Defendant’s teacher then uploaded and disseminated these photographs to dozens of people via email, including plaintiffs, D.H. and T.H., other students’ parents, family, and friends,” the lawsuit alleged.
P.H. was pulled from the school right away and his parents have had trouble finding a new daycare, the suit said. P.H. is also said to have experienced depression, moodiness, anti-social conduct, inability to sleep and other psychological repercussions.
On Feb. 25, KinderCare filed a response to the lawsuit and denied many of its allegations, adding it failed to state a claim upon which relief could be granted.
“The complaint fails to state a claim upon which relief can be granted. KinderCare at all relevant times acted with due care and complied with all requirements of applicable law and did not breach any duty that may have been owed to plaintiffs,” the motion to dismiss stated.
“Plaintiffs’ alleged injuries were not proximately caused by any act or omission on the part of KinderCare. KinderCare hereby gives notice that it intends to rely on any additional affirmative defenses that become available or apparent during discovery or prior to trial, and thus KinderCare reserves the right to amend this answer to assert such defenses.”
In the course of discovery, KinderCare further filed a subpoena to Pecosh Counseling and Consulting, LLC, for all mental health records pertaining to the minor plaintiff, P.H. After plaintiff counsel lodged objections to that move on April 29, they were overruled by U.S. District Court Judge Nora Barry Fischer on May 14.
UPDATE
On May 20, counsel for KinderCare applied for a mutually stipulated protective order concerning the personnel file of KinderCare employee Laurie Franco.
According to the filing, the personnel file is confidential, shall not be disclosed by defendant or its counsel to any person other than individuals directly involved with the case and shall not be distributed for any other purposes.
Furthermore, the original files will be returned at the conclusion of the case and that marked copies will likewise be destroyed after the case concludes. Lastly, the order will remain in effect even after the disposition of the action, unless explicitly amended by the court.
For counts of negligence, negligence per se, and intentional infliction of emotional distress, the plaintiffs are seeking punitive and compensatory damages upwards of $50,000.
The plaintiffs are represented by Jarrod Timothy Takah, Mary Chmura Conn, Paul A. Tershel and Sarah M. Zeh of Tershel & Associates, in Washington.
The defendant is represented by Edward A. Greenberg and Ivy E. Waisbord of Ward Greenberg Heller & Reidy, in Philadelphia.
U.S. District Court for the Western District of Pennsylvania case 2:20-cv-00277
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com