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Newspaper attorney says law requires disclosure
Revived student case settled, but Lodi Unified School District won't release amount
By Jennifer Bonnett
News-Sentinel Staff Writer
News-Sentinel Staff Writer
Monday, March 2, 2009 1:01 PM PST
The Lodi Unified School District has refused to release a figure on how much it settled out of court with a former Lodi High School student who was resuscitated after suffering cardiac arrest during physical education class.
The action came less than a week before the jury trial was set to begin and two years after Adam Kloose sued the district and Medtronic, Inc., the manufacturer of the heart defibrillator used by school staff. Kloose claimed in the suit filed in San Joaquin County that a faulty machine caused him brain damage.
Both Kloose's attorney, R.J. Waldsmith, and the district's Modesto-based attorney, Jeffrey Olson, refused to say how much the district settled for because there were other non-public parties involved, according to Doug Barge, the district's chief financial officer who oversees litigation.
Board president Richard Jones declined to comment, instead forwarding all legal questions to Olson, who was out of the office Friday.
But legal adviser Jim Ewert, of the California Newspaper Publishers Association, said that under both the state's public record act and open meeting law, the district is legally required to not only provide a settlement figure, but also the settlement contract showing how much taxpayer money was used.
"It doesn't matter," Ewert said of the other parties' involvement. "The case involves public funds. The law prohibits (withholding settlement information)."
Further, he said, three recent court cases prohibit any government agency from entering into confidential settlement agreements.
When reached late Friday on her cell phone, Superintendent Cathy Nichols-Washer said she did not have all of the details surrounding the case or its settlement, but would provide the information after a public records request is made.
"We will follow the law," she added.
In November, during closed session, the school board discussed the litigation and provided settlement authorization, essentially turning the issue over to the attorneys involved. No other information was provided because "disclosure would jeopardize existing settlement negotiations," according to the Nov. 18 agenda.
Later in the month, the district filed its settlement with the court, but details were not made public. On Dec. 29, the district requested from the court that the case be closed, and exactly a month later, Kloose's attorney followed with the same action and the trial date set was vacated, according to court documents.
A jury trial had been scheduled to begin earlier this month.
According to reports, Kloose collapsed before a game of dodge ball and went into a cardiac arrest on Nov. 4, 2005. After Kloose's body convulsed on the gymnasium floor, he lay motionless, his face turning purple, while PE teachers gave him CPR.
Another teacher retrieved from a nearby room an automated external defibrillator, which uses an electric shock to revive a stopped heart. The machine failed to work, and paramedics with their own defibrillator worked on Kloose for 10 minutes and resuscitated the student before taking him to Lodi Memorial Hospital.
But in an e-mail Friday, Waldsmith, the student's attorney, said the litigation was not aimed at the teachers and "their heroic efforts" but at the district's alleged neglect to keep the machine maintained.
"After the incident, it was discovered that the battery pack on the Lodi High School's AED had expired. An icon visible on the outside of the AED indicated that the machine needed servicing," Waldsmith said.
"(Kloose) suffered a brain injury because someone did not do their job, and his case was about holding that person accountable."
Waldsmith has said there are gaps in Kloose's memory and he has some permanent brain damage.
The student could not be reached for comment.
Kloose, formerly of Stockton, filed a claim with the district in May 2006, but it was rejected two weeks later. A claim filed against a public agency is typically a precursor to a lawsuit, which was filed in November 2006.
Last spring, the district filed a countersuit against Medtronic, claiming in court papers that the defibrillator company should bear liability, if any exists. In the documents filed in San Joaquin County court, the district also called Kloose's suit "a sham" and "frivolous."
In court papers, Minnesota-based Medtronic and its affiliates blame Lodi Unified for the defibrillator's failure, claiming the district failed to perform routine maintenance on it.
Katecho, Inc., an Iowa-based medical device manufacturer, was also named in the suit. Legal representatives for neither could be reached for comment.
Contact reporter Jennifer Bonnett at jenniferb@lodinews.com.
This story was updated at 1 p.m. March 2, 2009. Adam Kloose is not a student at California State University, Fresno, nor did he graduate from high school a month after he was resucitated. The information was incorrect in an earlier version of the story.
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SHCDHP wrote on Mar 2, 2009 12:15 PM:
Lodian wrote on Mar 2, 2009 12:11 AM:
Lodian wrote on Mar 2, 2009 12:10 AM:
LodiREaderFromStockton wrote on Mar 1, 2009 11:53 PM:
gimpy wrote on Mar 1, 2009 10:53 PM:
LHSTeach wrote on Mar 1, 2009 4:41 PM:
citizen wrote on Mar 1, 2009 2:28 PM:
LHSTeach wrote on Mar 1, 2009 1:09 PM:
As a person who was intimately involved with this incident, I can understand the Kloose family's sense of loss. As far as the silly comments about letting people die, I can say that we would, of course, handle a situation of this sort in much the same way, if it were to happen again. No one will know if the final outcome (any brain injury that MAY exist) would have been different, had the AED performed as designed.
When commenting, be mindful that caring professional people at LHS as well as the Kloose family were affected greatly by this incident. School staff continue to put the health and safety of our students as our highest priority. It is unfortunate that we live in this litigious society, however, there should be a remedy if people are wronged. If the AED machines are maintained on a regular basis then this litigation will not be a total waste. It is unfortunate that it took the event at LHS and the subsequent litigation to cause this positive change. I'm pleased this is over. "
citizen wrote on Mar 1, 2009 9:53 AM:
edumacation wrote on Feb 28, 2009 8:15 PM:
"A condition poses an emergency or urgent threat to the health or safety of students or staff.
Emergency or urgent threat means structures or systems that are in a condition that poses a threat to the health and safety of students or staff while at school, including but not limited to gas leaks; nonfunctioning heating, ventilation, fire sprinklers, or air-conditioning systems; electrical power failure; major sewer stoppage; major pest or vermin infestation; broken windows or exterior doors or gates that will not lock and that pose a security risk; abatement of hazardous materials previously undiscovered that pose an immediate threat to students or staff; or structural damage creating a hazardous or uninhabitable condition. (Education Code 17592.72).
Do we spend $100k/year to count books under part 1 of the Williams Act, or spend $30k/year to check the other issues listed above? Its the Superintendent's CHOICE! "
edumacation wrote on Feb 28, 2009 8:09 PM:
A technician at $30k/year to assure that Fire extinguishers and other safety devices like AED's are functioning or $100k/year to count textbooks. "
Whoa Nellie! wrote on Feb 28, 2009 5:23 PM:
Now, let me play devil's advocate. Who is going to perform these tests? An LUSD employee who would need to be trained and go from school to school to do her/his job. Or an outside contractor?
Either way most of you bloggers would BBQ the district for the "waste of money." "
SSG Jeremy wrote on Feb 28, 2009 5:14 PM:
I dont think anyone is judging this young man, but he is alive. Should LHS inspected their AED's, any idiot could answer that question. But this young man is obviously doing well if he is currently in college. "
SJUNE74 wrote on Feb 28, 2009 4:24 PM:
Jerry wrote on Feb 28, 2009 1:08 PM:
Lawsuits are filed against school districts [most of the time] because the District or the School has been found to be negligent in some way. I would assume that there is a standard of care that [would assume] administrators should change out the batteries in defibullators on a regular basis. To do less, would unnecessarily put our children at risk; why would you buy a defibullator unless you thought it had the potiential for being used in an emergency. It seems to me, defibullators and emergencies go together hand-and-glove, do they not?
What I have seen of L.U.S.D.'s administrors is that they are overpaid and under qualified. They are more concerned about their next paycheck than the welfare of our children. This attitude combined with breath taking stupidity is easily translated into legal actions for negligence and thereafter millions in costs to defend and payoff; a lawyer's wetdream.
L.U.S.D. has been named in over forty seperate lawsuits in the last couple of years and the cost to defend and indemnify those lawsuits have been astronomical. "
WingIt wrote on Feb 28, 2009 11:42 AM:
HappyDays94 wrote on Feb 28, 2009 11:07 AM:
Bob Hussein Loblaw wrote on Feb 28, 2009 10:23 AM:
lodivice wrote on Feb 28, 2009 10:09 AM:
Gator wrote on Feb 28, 2009 8:23 AM:
(ungrateful punk) What about failure to maintain cant penetrate your Cranium??
My,my Lodi should be proud!!! "
al da long wrote on Feb 28, 2009 6:38 AM:
t jefferson wrote on Feb 28, 2009 6:30 AM:
Ungrateful punk. "
LodiJoe wrote on Feb 28, 2009 5:23 AM:
Comments on this story are now closed.