A superior court justice granted motions to dismiss allegations as part of a civil suit a Stockton Springs couple filed in May accusing the district and a hired consultant of implementing a treatment plan for their autistic child without their consent.

Court records show that on Monday, Dec. 9, plaintiffs Paul and Barbara Caron filed a document outlining their intention to appeal the court's decision through their attorney, Eric Mehnert of Bangor.

The Carons stated in their initial complaint that during the 2011-12 school year, their then 11-year-old child was subjected to psychological and behavior-modification treatment plans that they alleged were not only non-consensual, but involved "offensive physical contact" and caused their child unnecessary emotional distress.

In a ruling filed at Waldo County Superior Court Nov. 20, Justice Robert Murray granted the motions to dismiss. Justice Murray granted the motion to dismiss, without prejudice, for "failure to exhaust administrative remedies as to all the counts except the assault and battery count, which is dismissed with prejudice as to Paul and Barbara Caron only."

"[The child's] claim for assault and battery is dismissed without prejudice for failure to exhaust administrative remedies," stated the judge's decision.

The Carons sought unspecified damages on behalf of their child from a series of named defendants, most of whom are either currently employed with RSU 20, were formerly employed by the district or acted as a contracted consultant to the special services staff at Stockton Springs Elementary School.

Court records list the defendants as Allen Tomasello, a consultant with the private company Discovering Kids Consultation LLC in Bremen, SSES Principal Jan Austin, RSU 20 Director of Special Services Sharon Goguen, former RSU 20 Superintendent Bruce Mailloux, current RSU 20 Superintendent Brian Carpenter and the school district itself.

The lawyers for the RSU, Keriann Roman and Melissa Hewey with Drummond Woodsum, and the attorneys for Tomasello and Discovering Kids Consultation, all filed motions to dismiss the claims in the Carons' suit.

The judge's reference to the Carons’ failure to exhaust available administrative remedies provided under existing state and federal laws was at the heart of the RSU's motion to dismiss the case.

Roman and Hewey argued the law requires the Carons to request a due process hearing with the state Department of Education, and further stated the family's filing of a complaint and the DOE investigation that followed does not constitute such a hearing. Laws under Maine Unified Special Education Regulations (MUSER) and the Individuals with Disabilities Education Act (IDEA) dictate such a hearing must occur before an aggrieved party can file a civil suit.

Roman and Hewey stated in their brief that a hearing would have produced a more detailed record of the allegations and any responses from the defendants in this case, information they described as an "invaluable resource for a state or federal court required to adjudicate a subsequent civil action covering the same terrain."

The district's lawyers also disagree with the plaintiff's claims that requirements under IDEA and MUSER do not apply in this instance, which would excuse them from the requirement of requesting a hearing before DOE prior to filing suit. Those statements stem from the Carons' claims that school staff held an Individual Education Plan meeting without notifying them or inviting them to participate in the meeting. The Carons further alleged that school staff subjected their child to psychological and behavior modification treatment plans crafted with the assistance of Tomasello even after the Carons informed the staff and Tomasello they must cease all of those activities involving their child.

The attorney for Tomasello and his consulting firm, Humphrey Johnson of Portland, asked the court to dismiss the Caron's allegations against his clients on grounds that the Carons sought damages on behalf of themselves as individuals based on allegations of unfavorable conduct toward their child. Johnson further explained that since the alleged damaging conduct did not directly impact the named plaintiffs, they failed to prove their claim.

Johnson offered a similar argument with regard to the Carons' claims that their child suffered past and continuing emotional distress based on the alleged actions of Discovering Kids Consultation. Those claims are unfounded, Johnson said, because in order to be entitled to monetary damages the Carons have to establish that Discovering Kids Consultation owed them a duty and breached it, causing the Carons to suffer harm as a direct result of that breach of duty.

In his decision to dismiss the Caron's claims, Justice Murray referenced existing standards the court must adhere to when considering whether to dismiss a case.

"A dismissal should only occur when it appears beyond doubt that the plaintiffs are entitled to no relief under any set of facts that they might prove in support of their claim," stated the judge's ruling.

On the Caron's argument that their complaint does not fall within the scope of MUSER or IDEA because the school never mentioned the Behavior Modification Plan in question during a Dec. 8, 2011 IEP meeting, Justice Murray took exception.

"They offer no support for this peculiar argument," stated the judge. "…The argument is particularly unpersuasive because the failure by the school to obtain their informed consent would be just the type of claim normally evaluated through the procedural protections of IDEA and MUSER."

In regards to the Caron's complaints that were specific to Tomasello and his consulting firm, Justice Murray stated the plaintiffs sought to amend the complaint to clarify they were not claiming individual causes of action for alleged assault and battery inflicted on their child. Instead, the judge dismissed their claims altogether, as they related to the Carons, personally, because he stated in his decision that doing so accomplished the same.

Justice Murray referred specifically to the Caron's claims that Tomasello negligently inflicted emotional distress, and stated the plaintiffs failed to prove their claims as "indirect victims."

The judge stated the way a court must analyze those claims differ depending on whether the plaintiff was a direct or indirect victim. He defined a direct victim as someone who was the object of alleged negligent conduct, and an indirect victim as someone who is the loved one of a victim and was not the object of the conduct in question.

The justice stated an indirect victim, a description fitting the Carons in this case, "may recover for serious mental distress only if the psychic injury may be foreseeable when the plaintiff bystander was present at the scene of the accident, suffered mental distress as a result of observing the accident and ensuing danger to the victim, and was closely related to the victim."

To prove such a claim, Justice Murray stated the plaintiff must show:

The defendants intentionally or recklessly inflicted severe emotional distress or was certain or substantially certain that such distress would result from the conduct;

The conduct was so extreme and outrageous as to exceed all possible bounds of decency;

The actions of the defendant caused the emotional distress, and;

The distress was so severe that no reasonable person could be expected to endure it.

On the Carons' arguments that Tomasello and his firm owed them an independent duty because they were a  necessary member of their child's IEP team, which hired Tomasello for his services, the judge stated the court did not have the information it needed to make an informed decision.

"Whether a duty was owed and whether that duty was breached are questions that would be informed by the findings from an administrative appeal, which would reveal the degree of autonomy available to the school and its agents in providing services to [the child] without parental consent," the judge stated. "Similarly, the existence of a duty would also inform how 'extreme and outrageous' Mr. Tomasello's conduct was, if at all, for the purposes of intentional infliction of emotional distress."

In the Carons’ statement outlining their reason for appealing the court's decision, the plaintiffs question whether the court erred in its ruling that they must first exhaust administrative remedies under IDEA before filing a civil suit "when the defendants have claimed they were not acting under the requirements if IDEA."

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