PITTSBURGH – A student who was inappropriately photographed by a KinderCare teacher has been ordered to participate in a half-hour-long remote video deposition in the next three weeks, as a part of the case’s discovery process.
Plaintiffs P.H., D.H. and T.H. initially 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 for the Western District of Pennsylvania Judge Nora Barry Fischer on May 14.
UPDATE
After consideration of the defendants’ July 27 motion to compel a video deposition featuring P.H. over Zoom technology, the plaintiffs’ opposing response on Aug. 7 and the defendants’ objections on Aug. 13, Fischer ruled that the video deposition would in fact take place.
“It is ordered that plaintiffs shall make P.H. available for a remote video recorded discovery session via Zoom technology within the next 20 days, and it is further ordered that defense counsel shall be allowed to conduct age appropriate questioning of P.H. for a total of no more than 30 minutes, unless otherwise agreed to by the parties, and shall afford P.H. breaks, as necessary, and upon the request of plaintiffs’ counsel,” Fischer said in an Aug. 25 ruling.
“Such breaks will not count against the time. To the extent that additional time is necessary, defendant shall file an appropriate motion with the Court seeking leave to conduct a second session.”
Fischer explained the deposition is both relevant and necessary.
“The deposition is relevant as 5-year old P.H. is a named party in this action and plaintiffs are seeking damages for her alleged emotional distress resulting from an incident at defendant’s facility in September of 2018,” Fischer said.
“To properly defend his client, defense counsel must have access to evaluate the minor plaintiff and her claims. The discovery session is not unreasonably duplicative because plaintiffs’ counsel has been equivocal as to whether P.H. will be called as a witness at trial or not.”
Fischer continued that the plaintiffs have not set forth any evidence that a 30-minute discovery session over Zoom would cause P.H. irreparable harm.
“To the contrary, they concede that ‘it is expected that defendant’s counsel will exhibit an appropriate demeanor with the minor plaintiff – P.H. when and if he questions her’ and have agreed to participate if defense counsel would provide his questions to plaintiffs’ counsel in advance,” Fischer stated.
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