Judge Victor Bolden. Photo: Diego M. Radzinschi/ALM

A federal judge has issued a mixed ruling in the case of a former student who alleged former English teacher Roy Smith sexually assaulted him at the prestigious Hotchkiss School in the 1990s.

His decision means the case against the private Lakeville-based boarding school proceeds, with attorneys for the plaintiff hoping for a 2020 trial.

In his ruling, issued Monday afternoon, U.S. District Judge Victor Bolden of the District of Connecticut granted the school's request to dismiss the count of intentional infliction of emotional distress. However, he denied the school's motion to dismiss breach of fiduciary duty claims, leaving the case to proceed with that allegation, as well as claims of negligence, recklessness, and negligent infliction of emotional distress.

The school did not contest the latter three claims. Smith died in 2015 at age 72.

Annika Martin is one of two attorneys with New York City-based Lieff Cabraser Heimann & Bernstein representing the plaintiff. She and Lieff Cabraser colleague Wendy Fleishman teamed with Hugh Cuthbertson and Glenn Duhl of New Haven-based Zangari Cohn Cuthbertson Duhl & Grello.

Martin told the Connecticut Law Tribune Tuesday that her client “is pleased and gratified that his claims are going forward.”

“He is anxious to hold the school accountable for what they put him through by harboring Smith and giving Smith access and opportunity to sexually assault my client,” Martin said.

In an October 2018 federal lawsuit, a former student identified by the pseudonym Richard Roe said Smith sexually assaulted him in his junior year. There were several incidents of alleged sexual abuse, the lawsuit claims, and Smith allegedly drugged Roe at one point before the assault.

Martin's firm filed a separate suit in 2015 on behalf on another former student, who alleges Smith sexually assaulted him. That case is still pending.

The state statute of limitations provides a five-year window to bring criminal charges. Connecticut law also allows victims of childhood sex abuse to file lawsuits up until their 48th birthday. Roe is younger than 48.

Martin declined to comment on Bolden's dismissal of the intentional infliction of emotional distress claim, but said keeping the breach of fiduciary duty claim alive is “a real win.”

“Fiduciary duty has to do with power imbalance and knowledge imbalance,” she said. “When you think of a boarding school and a student, who has the power—the student or the school? And, who has the knowledge—the student or the school?”

In dismissing the intentional infliction of emotional distress claim against the school, Bolden wrote that Roe “has not alleged that Hotchkiss intended for Mr. Smith to abuse him sexually as part of his work for the school.”

“Mr. Roe's claim against Hotchkiss for the intentional infliction of emotional distress fails as a matter of law,” the judge found.

But with regard to breach of fiduciary duty, Bolden found Roe has pleaded sufficient facts to show he ”was 'wholly dependent upon the expertise of a fiduciary,' in this case Hotchkiss.”

Now, the next step is discovery.

“Mr. Roe has been deposed and we are talking to other witnesses who were at the school at the time,” Martin said. “There are other victims of Mr. Smith who will come forward and talk to us. Based on Smith's behavior and tenure at the school from the 1970s to the 2000s, I believe there may be hundreds of victims.”

Hotchkiss spokeswoman Danielle Sinclair did not respond to a request for comment, and neither did the school's two attorneys, Robinson & Cole's Brad Babbitt or Jeffrey White.

The lawsuit seeks monetary damages.

“It's a past trauma you have to go back and relive as part of the process of litigating,” Martin said. “It can be retraumatizing and can bring back a lot of things that have been buried.”

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