Lawyers for a Newport News teacher who was shot by her 6-year-old student can start the process of interviewing eyewitnesses, reviewing the student's disciplinary files and accessing other records for a $40 million lawsuit against the school system, a judge ruled Friday.
But the judge is yet to decide whether Abby Zwerner's case will end up in a civil courtroom or before the Virginia Workers’ Compensation Commission.
The Newport News School Board wants the lawsuit dismissed and argues that Zwerner suffered employment-related injuries. Workers’ compensation can provide up to 500 weeks (just under 10 years) of benefits and lifetime medical care for injuries.
Zwerner was a first-grade teacher at Richneck Elementary School when she was shot in the hand and chest while sitting at her classroom reading table. The 25-year-old spent nearly two weeks in the hospital and has had multiple surgeries since the January shooting.
Newport News Circuit Court Judge Matthew Hoffman said Friday that he will hold a hearing on the workers’ compensation matter in late October. Matters before the judge on Friday mostly involved the process of discovery, an early phase of a lawsuit where parties share evidence.
Anne Lahren, an attorney for the school board, argued that discovery should wait until Hoffman decides on the workers’ compensation matter.
But Kevin Biniazan, an attorney for Zwerner, pointed to other cases in the state in which discovery was allowed to proceed. Jeffrey Breit, another attorney for Zwerner, also said it was important to interview teachers before the new school year began.
Breit told reporters after the hearing that the legal team had no intention of interviewing any children before the workers’ compensation matter is resolved, while they may only seek to talk to one or two students if the case goes to trial.
Friday's decision was a victory for Zwerner, who did not attend the hearing and no longer works for Newport News Public Schools.
Zwerner is still on a “long road to recovery,” another one of her lawyers, Diane Toscano, said after Friday's hearing. “She's going to have physical and emotional scars for the rest of her life.”
The incident sent shock waves through the military shipbuilding community and the country, with many wondering how a child so young could access a gun and shoot a teacher.
The child used a gun that belonged to his mother, Deja Taylor. She is facing trial in August on state charges of felony neglect and reckless firearm storage. Last month, Taylor pleaded guilty in federal court to using marijuana while possessing a firearm.
Prosecutors in Newport News had also said in April that they were investigating whether the “actions or omissions” of any school employees could lead to criminal charges.
Meanwhile, Zwerner's lawsuit accuses the school system of gross negligence.
She describes a series of warnings school employees gave administrators in the hours before the shooting, beginning with Zwerner, who told an assistant principal that the boy “was in a violent mood,” had threatened to beat up a kindergartener and stared down a security officer in the lunchroom.
Other warnings included those from two students, who told a reading specialist the boy had a gun in his backpack, the lawsuit states. A search of his backpack found no weapon. And the assistant principal said the boy’s “pockets were too small to hold a handgun and did nothing,” Zwerner’s lawsuit states.
The lawsuit claims that school officials dismissed concerns about the student's violent behavior over the course of months. Often, after he was taken to the office, “he would return to class shortly thereafter with some type of reward, such as a piece of candy,” the lawsuit states.
The school board has pushed back, arguing in court documents that the student was being evaluated and treated for possible ADHD — which causes inattention, hyperactivity and impulsivity. State and federal laws call for keeping such children in the classroom when possible.
The school system argues that Zwerner was “clearly injured while at work, at her place of employment, by a student in the classroom,” the board stated in court documents.
“While in an ideal world, young children would not pose any danger to others, including their teachers, this is sadly not reality,” the board stated, pointing to numerous incidents of violence against teachers.