The trial in a $5 million wrongful death lawsuit against a Loudoun County Public Schools counselor who had been alerted to suicide concerns about a student who later took his own life is set to begin next month.
In Circuit Court on Thursday, attorneys argued a preliminary motion during a hearing that brought some details of the case to light.
Erin and Timothy Gallagher filed the $5 million lawsuit against Richard Bader, a guidance counselor at Potomac Falls High School, after their son, Jay, lost his life to suicide. Three weeks before that act, Bader had received an email from one of Jay’s friends raising concerns about his mental wellbeing. Bader met with Jay to discuss the concern, but never notified the student’s parents. The Gallaghers say they should have been told and that their son’s life may have been saved.
An eight-day trial is scheduled to begin April 23.
Wednesday’s hearing focused on a narrow issue that required a determination prior to the jury trial. The Gallaghers’ attorney, Robert T. Hall, sought a determination whether Bader has a ministerial role and was required to follow set procedures established by state code and the school system, or was permitted to exercise his discretion in responding to the concern.
In his testimony, Bader said he received the email near the end of the school day on Jan. 11, 2017, and he met with Jay the following afternoon, the first opening in his schedule. After talking with the student and asking questions that are part of the school system’s suicide assessment, Bader determined that Jay was at “zero” risk of committing suicide at that time. It was clear, Bader said, that Gallagher was stressed and had trouble communicating with his parents.
During the meeting, Bader said, Gallagher, who was 18 years old, asked the counselor not tell his parents about the meeting. With no concern the student was in imminent danger, Bader said he honored that request. Had Gallagher been younger than 18, Bader said it was likely he would have called the parents to let them know.
In the ensuing weeks, Bader said he urged Gallagher to seek help with therapists to learn how to better talk with his parents and to address the stress he felt in his school performance and his college expectations. Gallagher spent time working in the school guidance office, and Bader said he seemed to be doing well during those frequent contacts. It was after a trip for a college visit in February that Gallagher took his life.
Hall argued that Loudoun County Public Schools’ policies and procedures direct counselors to notify parents if they believe a student is an imminent threat of suicide.
Julia Judkins, representing Bader in the case, countered that those policies and procedures are not law, but only guidelines, and that Virginia Department of Education states that counselors can use their “critical judgement” to assess a student’s risk.
“Mr. Bader’s job is to make an assessment. Did he suspect suicide? No,” she said. “Mr. Bader assessed him at no risk of imminent suicide, or at risk of any suicide.”
The judge said he sympathized with the parents, but ruled that Bader was given discretion to assess whether Jay was a suicide risk and he followed his duty.
“A duty of a Loudoun County school counselor is set forth by Virginia Code … to use their training and experience to assess and decide what steps to take,” he said. “There is no ministerial duty to do anything—to contact anyone.”