JOHNSTOWN - A federal judge has refused to dismiss a civil lawsuit filed against the Altoona Area School District over the sudden death of a third-grader in 2003 because of an asthma attack.
Devin J. Taylor had a history of asthma attacks, including 12 trips to the hospital emergency room and a January 2003 helicopter flight to a Pittsburgh hospital, just eight months before he died at his desk at Wright Elementary School.
His mother, Sonya Taylor, claims the district violated the federal Individuals with Disabilities Education, Rehabilitation and Americans with Disabilities acts and the 14th Amendment.
U.S. District Judge Kim R. Gibson retained Sonya Taylor's claims under the Rehabilitation Act and the Americans with Disabilities Act but dismissed the other claims. Gibson spent 17 months preparing the 32-page opinion, which was issued late Friday.
School district attorney David P. Andrews said Wednesday that the judge's opinion brings the case nearer to trial. An attempt by the judge to settle the case out of court probably will occur next - possibly through mediation or a status conference.
If the case goes to trial, it could be a lengthy one, he said.
Attorney Alan Krier, who represents Sonya Taylor, was not available for comment Wednesday.
The lawsuit "arises from the most tragic of circumstances," Gibson said.
Devin's asthmatic condition was known to the school principal, the nurse and his teacher and the school district has a plan in place to address the boy's condition while he was in school, court documents state.
Devin was permitted to use an inhaler prior to exercise. If his asthmatic symptoms continued despite the use of the inhaler, the parents were to be notified. If his condition worsened, 911 was to be called.
Devin looked congested Sept. 24, 2003, according to Gibson, who cited testimony so far in the case.
After recess, the boy returned to his classroom, and as Gibson pointed out, "from this point on very few facts are undisputed."
The mother contends the boy asked to go see the nurse, but the teacher replied "not now."
She said the boy had his head on the desk. School officials say he was upright and struggling to breath.
The principal was notified but how she was notified is in dispute.
There are disputes about the adequacy of the Devin's service plan and whether Devin should have been provided with transportation to and from school, Gibson said. The disputes raise the question whether the district met its legal obligations under the Rehabilitation Act and Americans with Disabilities Act.
No date has been set for the trial, Andrews said.
Mirror Staff Writer Phil Ray is at 946-7468.