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Fate of civil case against NHCS unknown, but judge ok's defense calls for 'independent medical exams'

Mar 30 ruling.png
General Court of Justice Superior Court Division
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WHQR
Superior Court Judge Phyllis Gorham ruled on the 3-page motion on March 30, 2022.

Superior Court Judge Phyllis Gorham still has yet to rule on whether the John Doe 1-14 civil case can proceed against the New Hanover County Board of Education, former teacher Michael Earl Kelly, and former administrators including Rick Holliday and Tim Markley. However, in late March the judge did rule on an ‘Order on Defendant Board’s Rule 35 Motion’ — requesting that Kelly's victims and alleged victims submit to an independent psychological exam.

The approved motion means that the plaintiffs, victims and alleged victims of Michael Earl Kelly, who were granted anonymity by the court as John Does, will have to submit to independent medical evaluations requested by the attorneys for NHCS. This ruling signals that the John Does suit could proceed later this year.

Before Judge Gorham ruled on this motion, she was asked to dismiss the case entirely by the defense in early March, in part because of a December 2021 ruling from a three-judge panel – these panels review ‘facial’ or constitutional challenges. In this case, the judges struck down provisions of the 2019 SAFE Child Act, in that the state constitution bars the legislature from reopening the statute of limitations. The judges suggested that the state Supreme Court take up the issue.

NHCS's attorneys argued that without the 2019 SAFE Child Act, 10 of the 14 plaintiffs would be "time-barred," meaning they would not have been allowed to file suit, and asked Gorham to dismiss them from the case. But NHCS's attorneys also asked Gorham to throw out the case entirely, based on a host of other defenses.

The issue is complicated because the three-judge panel is not an appellate court, with superseding authority over the issue, nor is it a lower District Court ruling that a Superior Court judge can overturn. It's not known how Gorham will deal with it: She could dismiss the case entirely, or dismiss only the plaintiffs who would be time-barred without the SAFE Child Act, send the case to another three-judge panel, or rule to continue towards a jury trial with all plaintiffs.

The basis of this civil case: in June 2019, former New Hanover County Schools teacher Michael Earl Kelly pled guilty to 59 counts of felony sex crimes against students. During the trial, court proceedings revealed that Kelly had been investigated by the district for child abuse – but those investigations never made it to law enforcement; hence, the John Does are suing the district, former superintendent Tim Markey, and former deputy superintendent Rick Holliday for negligence and breach of fiduciary duty among other allegations.

Defense calls for independent medical exams for victims and alleged victims

While the John Doe attorneys from the Rhine Law Firm and the Lea/Schultz Firm have hired medical experts to conduct psychological evaluations of their clients, the defendants want the chance to submit plaintiffs to their own ‘independent psychological evaluations.’ The Board of Education will bear the cost of these exams, although the amount is undefined in the motion.

While this motion was brought forth by the defense attorneys — Tharrington Smith representing the New Hanover County School Board and Tim Markley, and the Hartzog Law Group representing Rick Holliday — the ‘qualified physician’ will be selected by mutual agreement between the plaintiffs and the defense.

Judge Gorham’s motion granting the request states that if the two sides are unable to agree on the physician they have to submit their choices to the court. The court will then decide who will be named — or Gorham herself could pick her own evaluator outside of either party's list.

The main reason for the independent medical examination is to assess the “mental health and condition of the plaintiffs.”

In these assessments, the physician will determine the John Does' mental health “prior to, during, and following the events alleged in this case – and may include assessment of causation of the plaintiffs’ conditions as well as the impact of the plaintiffs’ histories and experiences on their past, present, and future mental health and their past, present, and future treatment needs.”

Prior to the exam, the physician will also be able to review the records of the John Does disclosed in discovery.

According to the motion, the assessment instruments and assessment procedures will be determined by the physician who is selected for the work, but the testing guidelines and procedures will have to be submitted to the John Doe attorneys two weeks prior to the exams. And they can seek to “judicially intervene” if they feel the procedures are objectionable.

Once the physician has been selected, either party's attorneys cannot observe the interviews or the testing, but they can view the video recordings of the proceedings. But these recordings are “subject to the existing protective order.”

Each plaintiff will undergo no more than one day of interviews/exams, starting at 9 a.m. – and will have to stop by 5 p.m. that day.

After the exams are finished, the physician is ordered to provide the written reports and the video recordings to the parties. These deadlines will be mutually agreed upon, but if they cannot, the court will then decide on one.