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March 7, 2003

Lawyer talks up a 3-hour storm

From: Exeter News Letter, NH - 07 Mar 2003

By Susan Nolan

STRATHAM - At a meeting akin to a Senate filibuster, a local attorney spoke almost nonstop for more than three hours at a special School Board meeting Tuesday night, making his main point after about two-and-a-half hours - that his clients did not want to sign an agreement with the Stratham School District.

That conclusion came near the end of the three-hour monologue in which Peter Smith told the board where he went to law school, when he graduated and how many years he has been practicing, as well as discussing his various jobs and going over minute details of his clients? experience in their two-year attempt to get the school board to pay for mileage related to their son?s travel to an audiologist.

Last month a federal district court judge ordered the School Board to reimburse Beth and David Petit for travel expenses and other costs associated with the programming of their deaf son?s cochlear implant.

The Petits incurred approximately $1,800 in unreimbursed treatment-related expenses and nearly $32,000 in legal expenses during litigation. The latter sum was incurred at the state school administrative level (where they prevailed) and again in federal court where a judge ruled again in their favor.

But in early February, after a federal judge ordered payment, the Stratham School Board asked the Petits to sign an agreement in exchange for the board?s not filing an appeal to the federal appellate court.

It was that agreement that Smith told the board Tuesday that the Petits would not sign. Why, he asked, should they give up future rights and sign an agreement when they were the winners of the lawsuit?

"They said we?ll vote not to appeal if we sign something, and that?s blackmail," said Beth Petit Wednesday. "We already won."

Smith spent a significant part of his time Tuesday emphasizing his suspicion that the School Board?s attorney changed the wording and intent of the agreement after the School Board proposed it at its Feb. 12 meeting.

Smith said when he received a copy for his clients to sign the next day that he noticed a difference. On Feb. 12, said Smith, "totally resolves this matter" referred to the payment of attorney fees. But when the school board?s attorney Jeanne Kincaid wrote the agreement the following day, Smith said, she changed "totally resolves this matter" to mean the entire case.

"I am highly critical of your attorney," Smith said at one point.

A footnote in the Feb. 5 order issued by federal Judge Joseph DiClerico Jr. criticized Smith and Kincaid for their animosity toward each other.

"Counsel were unable to comply with Local Rule 9.3(d) due to their personal dislike for each other," the judge wrote.

He referred to a Dec. 20, 2002 report and recommendation regarding a sanction hearing for the two attorneys.

"Although the magistrate judge concluded that sanctions were not appropriate," wrote DiClerico, "he detailed the history of the difficulties that counsel had with each other. When personality conflicts are allowed to interfere with the progress of a case, there is a disservice done to the litigants and the court."

At another point during Tuesday?s school meeting, Smith said the "board was seeking to rub their (the Petits?) noses in something."

Smith said he was reasonable about even considering the agreement. "A lot of lawyers would have torn it up and thrown it in your face," he told the board.

Smith, who repeatedly referred to his 39 years as a lawyer, said at one point, "In 39 years, I have never seen anything this bizarre."

Smith said he discovered the duplicity of the School Board and its attorney after re-reading the proposed agreement.

"I would really have to be a moron to not realize that this document then could be shoved in my client?s face to defeat the very core of the litigation that has been going on for three years," said Smith.

"What?s worse than a moron is an idiot. I would really be an idiot ... at my client?s expense."

The board went into nonpublic session after Smith?s three-hour near-monologue to decide whether it will appeal the February court decision.

After an hour, the board continued that nonpublic session until Monday, March 10 at 3 p.m. at the Stratham Memorial School.

DiClerico?s Feb. 5 ruling upheld a state Education Department ruling that the school district was responsible for the costs under the federal Individuals with Disabilities Education Act (IDEA).

The case involved 6-year-old Hunter, who in 1999 underwent surgery to receive a cochlear implant, which sends auditory signals to the brain to restore hearing in people with certain types of hearing loss.

Afterward, he made repeated trips to Dartmouth-Hitchcock Medical Center in Lebanon to have the implant?s speech processor "mapped" or programmed. During those appointments, a specially trained audiologist used a computer to determine the proper level of electrical current needed to stimulate electrodes implanted in the ear. The Petits sought reimbursement for mileage for the trips to Lebanon and for reimbursement of insurance co-payments of $10 per visit the family paid for the appointments, but the School District rejected both requests. Beth Petit said at one session the board made its decision without hearing her out first.

School officials argued federal law does not cover cochlear implant services because the implant is not an acoustical hearing aid and is not included in a listing of sample-related services specified in the law.

"Our argument was, ?life is not that simple?," said Peter Smith, the Petits? attorney. "Science is being constantly updated. Because the word ?airplane? isn?t mentioned in the U.S. Constitution doesn?t mean the government has no power to regulate transportation by airplanes."

The decision essentially identifies the cochlear implant mapping services as a necessary service even if it isn?t specifically listed. Without it, the implant wouldn?t work properly.

The court said since the school district?s Individualized Education Plan for the boy is based on his using the cochlear implant to communicate, it must provide services necessary for him to use the device.

"Although mapping for cochlear implants is not included within the enumerated audiology services provided in the statute and regulations ... (section) 300.14 broadens the scope of the definition of audiology beyond the enumerated examples," Judge DeClerico wrote in the 15-page order.

" ... Absent a clear indication that such audiology services were not intended to be included within ?related services,? the definition would appear to encompass the mapping process," he wrote.

Seacoast Newspapers reporter Larissa Mulkern contributed to this report.

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