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Defense agrees 'no teacher should expect to get shot' in Abby Zwerner's case, but maintains worker's comp argument

The attorneys representing Newport News Public Schools have 30 days to provide all of the evidence requested by Abby Zwerner's legal team in her $40 million lawsuit.

NEWPORT NEWS, Va. — At the center of the argument of worker's compensation is a pile of documents and information requests from Abby Zwerner's legal team to support their case in her $40 million lawsuit.

Zwerner, who may testify in her upcoming October hearing, filed the lawsuit against Newport News Public Schools after her student reportedly shot her inside the Richneck Elementary after using his mother's 9mm handgun.

The single gunshot, according to Newport News Police, went through Zwerner's hand after she lifted it in defense and struck her in the upper chest area. To this day, her attorneys say she is recovering both physically and mentally. 

In her lawsuit, the former teacher said administrators ignored vital warnings of the boy having a gun the day of the shooting. 

In court Wednesday afternoon, a judge listened to arguments on both sides regarding the documentation and other pieces of information requested by Zwerner's legal team. Some of the documents included all discipline records related to the investigation.

Regarding that argument, the defense originally objected, saying the Family Education Rights and Privacy Act (FERPA) prohibited them from releasing school records. However, Zwerner's attorneys argued FERPA only requires school board members to notify parents or guardians of the students about the release of records.

The defense then withdrew their objection but asked for a better way to process the documentation, saying they'd have to reach out to all the different parents if they provide a collective gathering of documentation, including "a 943-page index." 

The judge reserved that ruling while attorneys work out the details. 

The attorneys also asked for text messages to and from the defendants in this case, which includes all school board members and the listed school administrators on the day of the shooting. The defense did not object. 

Zwerner's team also asked for an explanation as to why Dr. Ebony Parker resigned from her role as Richneck's Assistant Principal and why Briana Foster-Newton was, "removed from her position as principal."

"If the Newport News School Board is willing to acknowledge internally that there was an issue with the way that this was handled and that's the reason for somebody leaving their position, then that is a critical issue in our case," one of Zwerner's attorneys, Kevin Biniazan, explained.

In a "Stipulation of Facts" file -- which is an agreement on the facts of a case for the purpose of simplifying issues -- the defense agreed with Zwerner's team that, "a Newport News Public Schools teacher should not expect to get shot by a first-grade student."

However, this agreement does not impact the defense's argument that Abby Zwerner suffered a workplace injury. 

"The stipulation itself is a method by which – for the plea in bar only – the facts alleged are treated as true even though we do not actually agree with all of these facts. It is our position that even if the alleged facts are treated as true, the case is still a workplace injury subject to the Virginia Worker’s Compensation Act," Newport News Public Schools' attorneys wrote in a statement to 13News Now. 

The attorneys went on to say in their statement, in part, "If this is a workplace injury and worker’s compensation applies, as we believe it does, the case ends there and Ms. Zwerner would still be entitled to worker’s compensation benefits, which include up to 500 weeks of compensation as well as lifetime medical benefits. If not, the case proceeds and the stipulation would no longer apply for further proceedings. “

The attorneys told 13News Now if the judge determines Zwerner's case should go to trial, this agreement would not be included in the trial and the arguments would remain.

"It's ultimately up to the court to decide whether removing that expectation of risk ultimately is the deciding factor in the plea in bar," Biniazan explained.

The defense withdrew their objection to Zwerner's attorneys receiving a list of witnesses, including potentially a couple of students who saw the shooting unfold that day.

Dr. Ebony Parker, who resigned from her position as Richneck's Assistant Principal, was represented by Sandra Douglas, a partner with Hancock-Daniel law firm. 13News Now asked Douglas questions about Wednesday's hearing, but she did not wish to comment on the case.

Attorneys on both sides are due back in court on October 27 for their "Plea in Bar" hearing to formally present arguments to the judge over the worker's compensation claims.

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