NEWPORT NEWS, Va. — An appeals court can now rule if former Richneck Elementary School teacher Abby Zwerner's injuries fall under worker's compensation, leaving a Newport News judge to decide whether Zwerner’s $40 million lawsuit can move forward on schedule.
The former first-grade teacher was shot by her 6-year-old student last January.
Both Zwerner's legal team and representatives for the Newport News School Board gathered in Newport News Circuit Court Wednesday.
First, attorneys for the school board asked Judge Matthew Hoffman to grant an interlocutory appeal. Meaning, an appeals court can take on the issue of whether Zwerner's injuries are covered by workers' compensation, rather than wait for trial.
He granted that request, saying it met the four necessary criteria.
"It makes sense to settle the question of law of jurisdiction before taking up two weeks of this court's docket, all the expense of a trial, and, in fact, we will reach a faster conclusion this way," said Anne Lahren, an attorney for the Newport News School Board.
In November, the judge ruled that Zwerner's injuries did not fall underneath the provision of workers' compensation, meaning that she could move forward with her lawsuit.
However, nearly a year after the shooting, the school system filed a worker's compensation claim for the former Richneck teacher.
"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 Diane Toscano, one of Zwerner's attorneys.
As for the second motion, the judge said he needed time to deliberate.
The legal team for the school division asked the judge to essentially stop the trial from moving forward until the appeals court makes its decision or, at the very least, decides to take up the case. That would put a pause on the discovery process of gathering evidence until that happens.
Judge Hoffman did not make his ruling on Wednesday. That will come in 45 days after both sides submit new briefings.
Right now, the trial is set for January 2025, but based on the judge's decision, that could change.
Jeffrey Breit, one of the attorneys representing Zwerner, said delaying the trial is in no one’s best interest.
"We would like to be able to do our discovery and we'd like to hold our trial date because Abby will have waited two years by January for anything to happen," said Breit.
Breit alleges the school division sent out a memo telling current employees not to talk to Zwerner's team. He said he worries about witness' memories fading.
"I’m embarrassed for the school board of Newport news. I think that they should do what everyone in this city thinks is the right thing to do is to take care of Abby. By not paying her a penny in workers comp or insisting that you take the money and drop the your case which is basically what they’ve said is the wrong thing to do," said Breit. "I think the city of Newport News needs to look at their school board and say, 'why are you doing this to this woman?'"
For now, Breit said they just have to wait.
"The risk is that the judge thinks the court of appeals needs to make a decision before we get a trial date. We’ll see what the judge does," he said.
Zwerner's team says she deserves justice sooner rather than later.
"Our hope is that the trial date in January stays on and we'll be ready to try that case in January. Certainly Abby needs to be ready to try the case in January and that's what justice should provide for her the opportunity to do so. If it takes longer, justice is sometimes a long road, but it bends in the right direction," said Kevin Biniazan, also on Zwerner's legal team.
Both sides have said this issue and case will likely be challenged all the way up to the Supreme Court.