Arick Fudali and Jeff Herman with Herman Law in Boca Raton
Arick Fudali and Jeff Herman with Herman Law in Boca Raton (Melanie Bell)

Details: In November 2011, a 7-year-old Miami boy was sexually assaulted by an 11-year-old student in a school van on his way to school at the Downtown Miami Charter School operated by Charter Schools USA.

The victim reported the incident to his mother, who notified the school and police. School officials did not remove the assailant from school but promised the mother they would keep him away from her son.

Case: John Doe v. Charter Schools USA et al

Case no: 12-25666CA01

The verdict

Description: Negligence

Filing Date: July 2, 2012

Judge: Miami-Dade Circuit Judge Beatrice Butchko

Plaintiffs attorneys: Jeffrey Herman and Arick Fudali, Herman Law, Boca Raton

Defense attorneys: Todd R. Ehreneich and Lawrence Burkhalter, Weinberg Wheeler Hudgins Gunn & Dial, Miami

Verdict amount: $5.25 million

In May 2012, the same boy sexually abused the victim twice in a school restroom. The younger boy then tried to kill himself and was admitted to a psychiatric facility.

Herman filed a $25 million lawsuit against the school. Trial began March 30 after mediation failed.

Plaintiffs case: Plaintiffs called to the stand the school principal, who testified the school was aware of the initial sexual abuse allegations and admitted it did not take the safest course, according to Herman. They also called the vice principal, who met with the victim’s therapist. The therapist told the vice principal the assailant kept harassing and taunting the victim after the first incident, Herman said. He alleged the vice principal wrote a note after the lawsuit was filed mischaracterizing the meeting and stating the victim only saw his assailant once after the first incident.

Herman also called two experts. One was Charol Shakeshaft, a Virginia educational researcher and sex abuse expert who testified the school fell below the required standard of care and should have removed the assailant. The second expert was Dr. Wade Myers III, a Rhode Island forensic psychiatrist who testified the victim now suffers from a complex form of post-traumatic stress disorder. He experiences severe anxiety entering public restrooms.

Herman also called a Miami-Dade County school official, who testified about the contract between the School Board and the charter school and its agreement to comply with county safety codes. Additionally, several of the victim’s teachers testified for him, labeling him articulate, outgoing and highly credible, which, according to Herman, contradicted the defense theory that he was confused and not in touch with realty.

The victim testified for less than a half hour.

“He looked the jury right in the eyes and told his story,” Herman said. “It was emotional for everyone.”

Defense case: The defense called several teachers who testified the victim couldn’t have been abused in the bathroom because the assailant wasn’t allowed to roam the hallways without an escort. However, in his cross-examination, Herman established the escort did not arrive until 8 a.m. when classes began, but children starting arriving at the school at 7:30 a.m., which is when the abuse occurred. They also called a Jackson Memorial Hospital doctor who admitted the victim after his suicide attempt, who testified that he kept the boy for observation.

Outcome: After a 12-day trial, jurors deliberated for a day before awarding $5.25 million in pain and suffering damages for the victim identified in court papers only as John Doe and his mother. They found negligence on the part of the charter school, but did not find the school liable under Title IX, the federal law that protects students from gender discrimination at schools that receive federal funding.

Comments: “I’m very pleased,” Herman said. “It’s a significant number for this boy. It validates something bad happened to him and it wasn’t his fault, and it’s a vindication for him that the jury believed him.”

Post-verdict: The defense filed motions for directed verdict, a remittitur and sovereign immunity on the basis of receiving public funds. All were denied. The defense also filed a motion for a new trial.

Herman executed a writ of garnishment and froze $2 million in school bank accounts. Charter Schools last week filed an emergency motion seeking dissolution of the writ, stating the school would go out of business and could not pay the teachers if the bank accounts remained frozen.