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Doe v. The Hotchkiss School

United States District Court, D. Connecticut

November 30, 2018

JOHN DOE, Plaintiff,
v.
THE HOTCHKISS SCHOOL, Defendant.

          RULING AND ORDER ON MOTION IN LIMINE AND LEAVE TO ADD WITNESS

          VICTOR A. BOLDEN UNITED STATES DISTRICT JUDGE.

         John Doe (“Plaintiff”) has sued The Hotchkiss School (“Hotchkiss” or “Defendant”) for, among other things, negligence and fraudulent concealment of severe sexual abuse.

         Hotchkiss seeks to prohibit Anthony Charuvastra MD (“Dr. Charuvastra”) from testifying as an expert at trial.

         Mr. Doe, in turn, seeks leave to allow Charol Shakeshaft, Ph.D. (“Dr. Shakeshaft”) to testify as an expert at trial.

         For the reasons that follow, the Court DENIES Hotchkiss' motion to prohibit Dr. Charuvastra from testifying as an expert at trial without prejudice to renewal at trial. The Court also DENIES Mr. Doe's motion for leave to add Dr. Shakeshaft as an expert witness at trial without prejudice to Mr. Doe calling Dr. Shakeshaft as a rebuttal witness, after Hotchkiss presents its case.

         I. FACTUAL AND PROCEDURAL HISTORY

         A. Factual Background

         On February 5, 2015, Mr. Doe filed his Complaint, alleging that when Mr. Doe enrolled at Hotchkiss at fourteen he “entered an environment of well-known and tolerated sexual assaults, sexually violent hazing, and pedophilia.” ECF No. 1. He alleges that upper classmen, “including school-appointed senior dormitory proctors, ” assaulted him on multiple occasions. Id. He further alleges that a teacher sexually abused, drugged, and raped him. Id.

         When Mr. Doe allegedly attended the school, “The Hotchkiss School charged many thousands of dollars per year for the privilege of attending the school and residing in a dormitory on school grounds” where “Hotchkiss assumed responsibility form, among other things, students' protection, safety and well-being.” Id. at ¶¶ 9, 10. The school allegedly “accepted a duty to John and to other minor children in its care and custody to do everything within its power to protect them from sexual abuse by other students and by the school's faculty, ” even while “the school and administrators knew that there was a history and tradition at the school of older male students . . . subjecting younger students to sexual hazing.” Id. at ¶¶ 12, 14.

         This was allegedly “not disclosed to John at any time prior to his arrival at the school, ” and the “school and its teachers and administrators permitted and condoned the tradition of hazing, and they allowed sexual assaults to occur without punishment and without even a meaningful threat of punishment.” Id. at ¶¶ 15, 16.

         The Complaint further alleges several sexual assaults by other students and a muted response by faculty and staff. Id. at ¶¶ 17-24. Then, the Complaint details sexual assault allegations against a teacher and dormitory master that Mr. Doe alleges Hotchkiss knew or should have known about. Id. at ¶¶ 25-45. Mr. Doe alleges that “the school created a situation that it knew and should have known was likely to be dangerous to John and to other young children in its care, ” but “the school refused to take appropriate precautions against the risk of harm.” Id. at ¶¶ 46-47.

         After allegedly suffering sexual abuse at the hands of other students and a teacher, Mr. Doe allegedly reported the incidents to teachers, staff, and administrators that “took no steps to protect John and other vulnerable children from further assaults.” Id. at ¶¶ 49-57. Mr. Doe alleges that the trauma suffered at Hotchkiss School limits his “ability to engage in normal . . . activities, ” “has adversely affected his ability to enter into and maintain lasting meaningful relationships, ” irreparably damaged his “ability to maintain intimate physical, sexual and emotional relationships, ” and caused “physical pain and suffering, ” Id. at ¶¶58-62.

         1.Dr. Charuvastra's Report

         On January 20, 2017, Plaintiff designated Dr. Anthony Charuvastra and served his report to Hotchkiss. See Forensic Psychiatric Evaluation Report, Ex. A (“Ex. A.”), ECF No. 212-1. Mr. Doe, through a referral by his former attorney Arick Fudall, requested a consultation by Dr. Charuvastra. Ex. A, at 2. To prepare for Mr. Doe's interview, Dr. Charuvastra reviewed the Complaint filed February 5, 2015, John Doe's medical records from Hotchkiss School, John Doe's school records from 1985-87, and a transcript of John Doe's November 18, 2016 deposition. Id. at 1. On January 8, 2017, Dr. Charuvastra conducted an interview of John Doe. Id.

         On January 20, 2017, Dr. Charuvastra finalized a report that included a mental status exam, an overview of Mr. Doe's medical and social history, a narrative history of Mr. Doe's psychiatric symptoms, Mr. Doe's post-traumatic stress disorder test results, Mr. Doe's case and diagnostic summaries, and treatment recommendations. See generally Id. Dr. Charuvastra concluded that “the cause of [Mr. Doe's] PTSD [Post-Traumatic Stress Disorder] is the abuse and assault that he endured while at Hotchkiss.” Id. at 11. Dr. Charuvastra based this conclusion on the consistency of his accounts between the deposition and Dr. Charuvastra's interview, Mr. Doe's lack of traumatic history, and the onset of Mr. Doe's chronic symptoms while at Hotchkiss. Id. Dr. Charuvastra concluded that Mr. Doe's subjective description and clinical presentation in the interview were consistent with “actual PTSD related to sexual assault an abuse that occurred during his adolescence.” Id. at 12.

         2.Dr. Shakeshaft's Proposed Expert Testimony

         According to the Court's Scheduling Order, Mr. Doe needed to designate his experts on or before January 20, 2017. ECF No. 54. After Mr. Doe retained his current counsel, the parties jointly moved for a modified scheduling order. Joint Proposed Scheduling Order, ECF No. 142. The parties, however, disagreed about whether Mr. Doe should be allowed to disclose new experts. See Id. at 1-2. The Court concluded that “Mr. Doe has not shown sufficient compelling cause to justify granting leave to designate additional experts after the deadline for such disclosures” and chose not to give more time for Mr. Doe to show expert testimony. Scheduling Order, ECF No. 144.

         Since the Court issued the scheduling order, Hotchkiss released a report detailing rampant sexual abuse during the 1970s and 1980s by multiple former faculty members. Report to Board of Trustees of the Hotchkiss School, Exhibit G (“Ex. G”), ECF No. 228-1. The internal report concluded that Hotchkiss missed “key opportunities to protect the student body.” Id. at 26.

         Before publication of the internal investigation, Mr. Doe's counsel commissioned a report by Dr. Shakeshaft. Memorandum of Law in Support of Plaintiff's Mot. for Leave to Add an Expert to Testify, ECF No. 228-1, at 5. Dr. Shakeshaft, an educational institution researcher and former chair of the Educational Leadership Department at Virginia Commonwealth University, has co-authored a four-year study on sexual abuse at schools, and is “noted for her studies on sexual abuse of students by school staff.” Id. To prepare her report, Dr. Shakeshaft reviewed the Complaint, deposition transcript, and dozens of documents related to the case. Report Doe v. The Hotchkiss School, Exhibit C (“Ex. C”), ECF No. 228-5, at 2-3.

         Dr. Shakeshaft determined that Hotchkiss had no documented policies to prevent peer-to-peer sexual abuse or sexual abuse by teachers, administrators, employees, volunteers, or visitors. Ex. C, at 35. To prevent peer-to-peer sexual abuse, Dr. Shakeshaft suggested that Hotchkiss should have instituted policies concerning bullying, hazing, and intimidation in the student code of conduct. Id. Although Hotchkiss changed the student handbook for the 1986-87 school year to impose disciplinary action for hazing, bullying, or baiting, Dr. Shakeshaft found those policies to be unenforced. Id. She concluded that enforcing the student conduct provisions would have reduced the health risk to students. For adults, Hotchkiss should have followed the State of Connecticut's mandatory reporting laws for educators, laws in place since 1967, which would have included training on sexual abuse and systems of investigation, grievances, and consequences for adults. Id.

         Dr. Shakeshaft further opined that Hotchkiss gave no training to employees, parents, or students about proper boundaries or mandatory reporting. Id. at 39. This lack of training included: no training on ethical issues with students; no training for employees in the athletic departments on appropriate touching; no training on sexual boundaries with students or reporting; and no training on bullying, hazing, or intimidation. Id. Dr. Shakeshaft concluded that training in those areas could have lowered potential risks to students.

         Dr. Shakeshaft also opined that Hotchkiss made no effort to report possible sexual misconduct to law enforcement or child services. Id. at 43. Moreover, Hotchkiss did not make efforts to record or investigate allegations of sexual abuse, which put students at a significantly increased risk of further abuse. Id.

         Finally, Dr. Shakeshaft did not find a system for supervising faculty or increased supervision when faculty, administration, or students observed suspicious activity. Id. at 45. She concluded that any response by Hotchkiss could have changed behaviors and reduced the risk of future sexual abuse, id., and the lack of supervision in the dorms increased the likelihood of peer-to-peer sexual abuse, hazing, bullying, and intimidation. Id. at 46.

         B. Procedural History

         On February 5, 2015, Mr. Doe filed a Complaint against Hotchkiss for negligence, recklessness, negligent infliction of emotional distress, intentional infliction of emotional distress, and breach of fiduciary duty. ECF No. 1.

         On April 10, 2015, the parties jointly filed a Rule 26(f) Report. ECF No. 17.

         On May 18, 2015, the Court granted a stay until the Connecticut Supreme Court resolved Doe v. The Hartford Roman Catholic Diocesan Corporation. ECF No. 22. On July 2, 2015, the Court lifted the Stay. ECF No. 25.

         On July 8, 2015, the parties jointly filed a supplemental Rule 26(f) Report. ECF No. 26. On July 21, 2015, the Court approved an amended report the same day. ECF Nos. 28, 29.

         On September 14, 2015, Hotchkiss answered the Complaint with affirmative defenses.

         On April 18, 2016, the Court granted Attorney Antonio Ponvert's motion to withdraw as attorney for John Doe. ECF Nos. 40, 41.

         On June 1, 2016, Hotchkiss moved to stay, which the Court denied. ECF Nos. 47, 50.

         On July 15, 2016, the parties jointly filed a supplemental Rule 26(f) Report. ECF No. 51. On July 27, 2016, the Court held a telephonic status conference and issued a scheduling order with modified deadlines. ECF Nos. 53, 54. The deadline included a deadline for Plaintiff to designate experts and provide any designated experts' report by January 20, 2017.

         On December 9, 2016, Hotchkiss moved to compel discovery responses. ECF No. 57. On December 12, 2016, the Court denied the motion to compel without prejudice to renewal if the parties did not resolve the ...


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