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The alleged nickname “Chester the Molester” is so unfairly prejudicial that a federal judge has ruled that it cannot be uttered during the trial of a high school student’s sexual harassment suit against the Lower Merion School District in Ardmore, Pa. In DiSalvio v. Lower Merion, which is currently on trial before Senior U.S. District Judge James McGirr Kelly of the Eastern District of Pennsylvania, plaintiff Danielle DiSalvio claims that she was sexually harassed by Thomas Russell, an assistant football coach at Harriton High School in Rosemont, Pa., and that school officials ignored her repeated pleas for help. DiSalvio’s lawyers, Joanne W. Rathgeber and Linda P. Falcao of Rathgeber & Associates in Doylestown, Pa., argued that the jury should be allowed to hear testimony from several students who say that Russell was nicknamed “Chester the Molester” due to his reputation for touching female students in ways that made them feel uncomfortable. And since numerous school officials knew of the nickname, they argued, the testimony is relevant because it shows that the school was on notice of Russell’s reputation. But defense lawyers urged Judge Kelly to prohibit any reference to the nickname during the trial, arguing that its unfairly prejudicial effect would far outweigh its probative value. Kelly agreed, saying “the word ‘molester’ suggests an individual of sexual perversity and deviance, particularly of an individual who engages in indecent behavior towards young children, which is particularly abhorrent.” In a three-page order handed down Monday, Kelly wrote: “Once the jury hears this phrase in connection with Russell, regardless of the purpose for which it is offered, Russell and the school defendants will be unfairly prejudiced.” Instructing the jury to limit its consideration of such evidence simply wouldn’t work, Kelly found. “Considering the feelings of disgust and outrage this word is likely to cause, a curative instruction to the jury is unlikely to be effective,” Kelly wrote. According to the suit, DiSalvio was a ninth-grader at Harriton High School in 1998 when Hal Smith, the head football coach, offered her a position as the student manager for the football team. She began in the fall of 1999, her sophomore year. From the beginning, the suit says, she was harassed by Russell, whose continual advances during three months made DiSalvio afraid to return to school. Ultimately, she claims she left school and finally relapsed into bulimia, for which she had successfully received treatment several years earlier. In their first meeting, DiSalvio claims in court papers that Russell rubbed her inner thigh and smiled at her in a sexually suggestive manner. In later incidents, court documents claim that he slid his hand down the back of her shirt and patted her buttocks, saying, “Thanks, sweetheart”; winked at her suggestively when they saw each other in school hallways; and brushed his hand against her breast as he grinned at her, feigning an accident; and constantly greeted her with the salutation “What’s up, honey?” Once, the suit says, Russell followed her into the women’s room and conversed with her while she was in the stall. DiSalvio claims in the suit that she repeatedly informed school employees about Russell’s conduct but that no one attempted to prevent it. A principal, a vice principal and a guidance counselor, all of whom accused DiSalvio of provoking Russell, instructed her not to discuss a meeting she had with them with anyone, not even her parents, the suit says. Russell has testified that the harassment incidents DiSalvio described did not occur. School officials have also testified that DiSalvio never reported the incidents to them as she claims. In pretrial rulings, Judge Kelly refused to dismiss DiSalvio’s claim of intentional infliction of emotional distress, saying that while the Pennsylvania Supreme Court has never officially recognized the tort, the federal courts have repeatedly predicted that it will one day. Kelly also ruled that while the Lower Merion School District and the school itself are immune from all of the state law claims, none of the individual defendants enjoys that immunity. In the trial, Lower Merion is represented by attorney Jeffrey H. Quinn of Pittsburgh-based Dickie, McCamey & Chilcote. Russell is represented by attorneys Michael I. Levin and David W. Brown of the Levin Legal Group. The jury of five women and three men is expected to begin deliberations by Friday.

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