Lisa Scottline's "Damaged": Chapter Two, continued

This is the third of three excerpts from Lisa Scottoline's new novel, "Damaged," now in stores.

'He broke up with Suzanne when she got pregnant. She met him up at Penn State. She was in the honors program but when she got pregnant, she dropped out. Suzanne could have been an accountant, too. " Edward shook his head. "Anyway, we heard he died in a motorcycle accident, two years later."

"And when Suzanne dropped out, did she come home?"

"Yes, and I was happy to have her. Patrick was born, and Suzanne devoted herself to him. Since she passed, I'm all Patrick has now. I'm his only family."

"I see." Mary's heart went out to them both, but she had to get back on track. "When did you notice his reading problems?"

"Suzanne did, in kindergarten." Edward ran his fingers over his bald head. "Then after she passed, I would try to get him to read with me, and we'd get books from the library. He didn't know the words, not even the little ones like 'the.' He couldn't remember them either. But he's smart."

"I'm sure he is." Mary knew dyslexic children had high IQs, but their reading disability thwarted their progress in school. They often had retrieval issues, too, so they forgot names and the like.

"He does better when there's pictures, that's why he likes comic books. He draws a lot, too. He's very good at art."

"So back to the IEP. May I see it?"

"Sure." Edward opened the manila envelope and extracted a wrinkled packet, then slid it across the table.

"Bear with me." Mary skimmed the first section of the IEP, and the first thing she looked at was Present Levels, which told her where a student was in reading, writing, math, and behaviors. Patrick was only on a first-grade level in both reading and math, even though he was in fifth grade. The IEP showed that Patrick had been evaluated in first grade but not since then. Mary looked up. "Is this all you have? There should have been another evaluation. They're required to reevaluate him every three years."

"I didn't know that. I guess they didn't."

Mary turned the page, noting that Patrick had scored higher than average on his IQ tests, but because he couldn't read, he had scored poorly on his achievement testing, which a district psychologist had administered, and the IRA, the curriculum-based assessment test that the teachers administered. She looked up again. "Is he in a special-ed classroom or a regular classroom?"

"Regular."

"Are they pulling him out for help with his reading?"

"No, not that I know of."

"How about any small-group instruction? Does he get that?"

"No, I don't think so."

"So what are they doing for him?"

"Nothing that I know of."

"So they identified him as eligible for services, but they're not programming for him or giving him any services." Mary wished she could say she was surprised, but she wasn't.

"They're supposed to be giving him interventions, and he can learn to read if they do, I've seen it. I've seen wonderful progress with dyslexic children."

Edward brightened. "What kind of interventions?"

"A dyslexic child needs to be drilled every day for his brain to connect sound and symbol, then language. There are many great research-based programs, and they work."

"He hates school, more and more."

Mary had seen this before, with dyslexic children. Early on, they might use pictures to make it look like they were reading, but by fourth grade, when pictures were gone and the words took over, the fact that they couldn't read became more evident. They couldn't read aloud and avoided group projects. The axiom was that children learn to read, then read to learn, but that was a heartbreak for dyslexics.

"Patrick gets nervous, and when he gets really nervous, lately, he throws up. He did it in school a couple times already this year. They sent a note home, then they called me. The teachers don't want to deal with it anymore. But it's not his fault, it's his nerves." Edward pressed his glasses up higher on his long nose. "The kids make fun of him, call him names. Up-Chucky. Vomit Boy. Duke of Puke.

They make throw-up noises when he comes into the classroom."

Mary felt for the boy. "First, have you taken him to a pediatrician?"

"Yes, but she said there's nothing medically wrong."

"It could be from anxiety. Have they evaluated him to determine if anything else is going on?"

"Not that I know of." Edward blinked, uncertainly.

"They should have done a social-emotional assessment, like the BASC test, which will pick up how he's feeling. It's a questionnaire that asks the child a series of questions and it tells the psychologist if he's anxious, depressed, or shutting down. The evaluation determines what his programming should be. If they don't do the evaluation, they don't know what services or counseling he needs."

"The teasing only makes him more nervous, and his teacher sends him to the guidance counselor. They say they send him there to calm down, but I think it's because they don't want him to throw up in the classroom. They said it's normal, they call it something."

"It's called a 'cooling-off room,' " Mary said, supplying him with the term of art.

"But he sits there for hours, like a punishment."

"The school can't punish him for behaviors associated with his disability. For example, a child with ADHD will have a problem completing assignments on time. The teacher can't say to the child, 'You have to stay in for recess or you can't go on a class trip.' They can't punish him for the manifestation of a disorder that he can't help. It's illegal and it's just plain" - Mary searched for the words, then found them - "cruel."

"But wait, Mary." Edward leaned over with a new urgency. "The worst of it is Patrick got hit in the face by a teacher's aide, Mr. Robertson."

"My God, what happened?" Mary asked, appalled. She had heard horror stories, but this was the worst. Teacher's aide was a misnomer; aides weren't teachers, they could be a bus matron or a cafeteria worker. They couldn't teach, nor were they trained to work with children with behaviors.

"Patrick threw up and Robertson made him clean it up. Patrick got some on the desk, so Robertson punched him in the face and told him to 'cut the crap.' "

"That's an assault!" Mary said, angry. "Robertson should have been arrested on the spot."

"Patrick didn't tell anybody what happened, and Robertson told Patrick that if he told, he'd beat him up." Edward frowned, deeper.

"Patrick was so scared, he didn't say anything. When he came home that day, I asked him about the bruise on his cheek, it was swollen. He told me that he fell against the desk. I gave him Advil, I put ice on it. I believed him because he does fall, he can be clumsy."

"Were there any witnesses to the assault?"

"No."

"Any surveillance cameras that you know of?"

"No, only in the halls." Edward shook his head. "The next day Patrick was really afraid to go to school. He begged me not to make him, so I didn't. By Friday, I started to think something was really wrong, and over the weekend, he finally admitted it to me."

"Poor kid." Mary felt a pang. "Did you call the police?"

"No, I called the school and I told them what Patrick said, and they said they would look into it. So then the school called back and said that Robertson had quit. They denied knowing anything about Patrick getting punched. They said they were going to investigate the matter." Edward dug into the manila envelope again and pulled out a packet of papers. He grew more upset, his lined skin mottled with pink. "Then the next thing I know, yesterday, I'm being served with a lawsuit."

"Who would be suing you?" Mary asked, incredulous.

"Robertson hired a lawyer named Machiavelli, if you can believe that, and they're suing me and the school district, claiming that Patrick attacked Robertson with a scissors."

"What?"

Mary felt her blood begin to boil.

"It's a complete fabrication." Edward handed Mary the suit papers. "Here, take a look. But I know my grandson, and he did not attack anybody with a scissors. He's not aggressive. He doesn't have it in him. It's not possible."

"Bear with me while I read this." Mary skimmed the cover letter on Machiavelli's letterhead, then she turned to the facts and read aloud:

"Defendant Patrick seized a scissors from the teacher's desk and lunged at Plaintiff with the weapon, attempting to do him grievous bodily harm."

Edward scoffed in disgust. "That's false."

"Has Patrick ever been disciplined in school, for fighting or violence?"

"No, not once."

"What about when the other kids tease him?"

"No, never. He just cries or gets sick. He won't hit back, he's little."

"Does he tell the teacher?"

"No, he hides it, like with Robertson. He doesn't want trouble."

"Poor kid." Mary flipped the pages to the causes of action, where it set forth claims against the O'Briens for battery, assault, and intentional infliction of emotional distress. Again, she read aloud,

"Plaintiff was so frightened by the assault and battery by Defendant Patrick that Plaintiff has been unable to return to his position and was compelled to terminate his employment and seek psychiatric counseling. ..."

Edward groaned. "Can he win on that?"

"Doubtful. He has proof problems with the assault and battery claims, and to qualify as intentional infliction, an action has to be extreme and outrageous. I doubt a court would find it met by a little boy lunging at an adult male, even with a school scissors."

"God, I hope not." Edward frowned. "Why are they doing this, then? Is it a money grab?"

"Yes, but you're not the deep pocket here, the school district is. Wait 'til they find out it's not so easy to sue the district, they have immunity." Mary returned her attention to the complaint and flipped to the causes of action against the school district, which were for negligence and breach of contract. She read aloud:

"Defendant School District has a duty to keep the Plaintiff safe from harm while performing his jobs on school grounds and also has a duty to train Plaintiff on how to deal safely with violent and emotionally disturbed 'special-education' students at the school.

Defendant School District breached each such duty to Plaintiff and Defendant School District was grossly negligent in compelling the Plaintiff to deal with a violent, emotionally disturbed 'special-education' student on his own, untrained and unsupervised."

Edward shook his head. "Robertson punches my grandson, then turns around and sues us and the school?"

"It's hard to believe." Mary wondered if Machiavelli knew that Robertson was lying, but she wouldn't put it past him. To Machiavelli, the end justified the meanness.

"Robertson's asking for half a million dollars in damages, claiming he can't return to work, and he'll have psychiatric and medical expenses."

Mary fumed. "But wait, if Patrick really attacked Robertson, why didn't Robertson report it to the police? Or the school?"

"I don't know."

"I bet I do. Robertson didn't think of it right away. It's some story he thought up later, to drum up a lawsuit. Robertson will have to think of some reason to explain it, but it argues in our favor."

"Good point." Edward nodded. "The school called me this morning after they got the complaint and they said Patrick broke a school rule, using a weapon like a scissors, and he had to stay home on an at-home suspension pending their investigation. They said if he did it, he's getting sent to disciplinary school."

"Oh no." Mary knew that if a child was found with a weapon in a Philadelphia public school, he could get transferred to a disciplinary school, after a hearing. The problem was that disciplinary schools contained kids with more serious anger issues.

"Mary, so what do I do now?"

Mary collected her thoughts. "There are two different legal matters here, and we have to run them on parallel tracks. One is the civil tort case, which is the complaint just filed against you, and the other is the special-education case. Both have to be dealt with.

First, we have to respond to the complaint. I would like to call Machiavelli right now and tell him we won't be offering him anything in settlement."

"I agree." Edward nodded. "I'll be damned if I'll pay a penny, it's extortion."

"Second is Patrick's special-education case. He needs to be in a school where they can program for his dyslexia and his anxiety, where he feels safe and nurtured, and can get remediation. The district is threatening to expel him, but I'm not sure I'd want him back at Grayson anyway. I know an excellent private school, Fairmount Prep in the Art Museum area."

"Private school?" Edward grimaced. "I have some savings and a trust set up for Patrick's expenses, but I had expected it to last his lifetime. We live frugally."

"Don't worry. You don't have to pay for private school, the school district does."

"Really?" Edward's sparse gray eyebrows flew upward, the first bright note in their meeting.

"Yes." Mary felt happy to give him some good news. "Legally, if the school did not program appropriately for a child, they owe that child compensatory education, that is, funding for tutoring, educational services, and materials. But if the school district cannot educate him where he is, then they have to place him in a private school where he can be educated. In other words, they reimburse you for the private schooling. We don't have to wait to enroll him, it's already October. If you have the money for this semester's tuition, we can notify Grayson that we're placing him in private school, then we place him, sue the district, and go to a hearing for reimbursement. If we win, you don't have to pay my fees, either. The school district does."

"Great!" Edward smiled, and the deep lines in his forehead smoothed briefly. "Do you work on a retainer basis?"

"No, but my fee is $300 an hour." Mary hated the size of her fee, but as a partner, she was making herself get over it, especially since Edward could get reimbursed if she won.

"OK, you're hired." Edward smiled again.

"Terrific. I'll send you a representation agreement." Mary patted his hand. "Don't worry. We can do this. We'll help him." She rose.

"Let's get started. I'll go call the lawyer and be right back. I'd like you to call the doctor and see if you can take Patrick today, to get a look at that bruise on his face. See if the doc can determine how it happened and when. Tell him the situation."

"OK. I'll go get Patrick in school now, because they are keeping him in the office until I can get back." Edward reached in his jacket pocket for his cellphone, and Mary picked up the complaint. She left the conference room and headed for her office, mentally rearranging her calendar. She had other cases to work, but none of them involved a little boy being used as a punching bag, so this got top priority.

It wasn't about Machiavelli anymore, it was about Patrick.

lisa@scottoline.com