NEWPORT NEWS, Va. — Former Richneck Elementary School teacher Abby Zwerner's $40 million lawsuit can move forward as scheduled after the Virginia Court of Appeals declined to hear an appeal in the case.
On Friday, the Virginia Court of Appeals declined to hear the Newport News School Board’s appeal that could have stopped the lawsuit from going to trial.
The decision comes more than a year after Zwerner was shot by her Richneck Elementary School student in her classroom.
In November, Judge Matthew Hoffman sided with Zwerner’s attorneys to allow the case to go to trial, rejecting the school board’s claim that Zwerner’s only remedy for her injuries was filing a workers’ compensation claim.
Though the judge allowed the school board to appeal his ruling before the trial in what's called an 'interlocutory appeal,' the division now will have to wait until the trial ends to take that argument to the appeals court.
Zwerner’s attorneys applauded the decision.
“The higher court has spoken—we will go to trial. This is another important victory in a string of victories for Abby Zwerner that paves the way for her finally having her day in court. Newport News School Board has made every effort to skirt accountability, but their day is coming," attorneys Diane Toscano, Kevin Biniazan and Jeffrey Breit said in a statement.
On the other side, Anne Lahren, an attorney with Pender & Coward representing the school board, said they knew the option was a long shot.
“An interlocutory appeal is an extraordinary remedy that is rarely ever granted. We knew when we filed the petition that the Court of Appeals granting our petition at this stage in the litigation was a long shot. With the interlocutory appeal being denied, the case will now proceed to trial and we firmly believe that the Supreme Court of Virginia will ultimately rule that Ms. Zwerner’s workplace injuries fall under the exclusive jurisdiction of Virginia’s Worker’s Compensation Act."
While Zwerner said from the beginning she did not want workers' compensation benefits, the school division filed on her behalf. Her attorneys called the move an "insult" in a previous interview with 13News Now.
"We haven't seen something like this happen where you have your civil case going forward in the circuit court and then the employer turns around and files for workers compensation when they lose a motion," said Toscano at the time.
At the time, Lahren said because of a two-year statute of limitations for benefits, "we do not want to see these significant benefits jeopardized by letting the deadline for filing lapse," and "we firmly believe that the Workers’ Compensation Commission is the correct forum to determine this case, not the Circuit Court."
In that same interview with Zwerner’s team, they said delaying the trial any longer is in no one’s best interest.
"Abby will have waited two years by January for anything to happen," said Breit.
Many believe the case will ultimately end up in front of Virginia’s Supreme Court. A ruling in the board’s favor could nullify the entire outcome of the trial.
In Lahren's statement for the school board, she added, "as clearly shown in the order denying the interlocutory appeal, all issues are preserved for future appellate review.”
That jury trial is now slated to begin on Jan. 21, 2025, which will mark just over two years since the shooting.
On Jan. 6, 2023, one of Zwerner’s first-grade students pulled a gun from his front hoodie pocket and fired a single round at Zwerner. The bullet went through her left hand and hit her in the upper chest and shoulder.
She managed to get her students out of the classroom before collapsing and spending 10 days in the hospital.
In her lawsuit, Zwerner asserts that the school division’s negligence allowed the shooting to happen and alleges the assistant principal ignored several warnings the boy had a gun that day.
Newport News Police Chief Steve Drew said the shooting was "intentional" and called Zwerner a hero for protecting her students after the shot rang out.