Foster Smith was 10 years old and suffering from muscular dystrophy when his family negotiated an individualized education program (IEP) with the Reynolds School District, which required that a teacher or an aide provide “close standby supervision” whenever Foster was walking. All involved understood that because of his illness, he was at high risk of fracturing a leg if he should fall, and that such an injury would likely place him in a wheelchair for the rest of his life.

Trial lawyer Greg Kafoury, along with defense counsel, spoke with jurors after the verdict, and they reported that they were dismayed that both Foster’s teacher and his aide would rather routinely allow the child to walk around the room without an adult nearby to protect him. Foster had been on an experimental drug, and his physicians had hoped it might enable him to walk until the age of 20.

The teacher and the aide were the two adult witnesses to the fall, and their versions of what happened were contradictory. The principal signed and filed an incident report which not only contradicted what each of the adult witnesses claimed, but which, if true, would have refuted any claims of liability.  Jurors said they believed that the varying versions presented by the school represented “a cover up.”

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The Oregonian — Aimee Green (09/04/2015)