MOUNT VERNON — On Monday, U.S. District Judge Gregory Frost denied a motion by John Freshwater and Attorney Kelly Hamilton and upheld sanctions previously issued. Frost is presiding in the civil case brought against Freshwater by the Doe family.
As part of that case, the Does filed a motion to compel Freshwater and Hamilton to provide certain documents and materials relevant to the case. The judge granted that motion and ordered the documents be turned over to the Does and their attorney. Those materials were not produced. Consequently, on May 26 Judge Frost ordered Freshwater and Hamilton to pay the “reasonable attorneys’ fees and costs that plaintiffs incurred as a result of filing their Motion to Compel.”
Freshwater and Hamilton filed a motion for reconsideration of that order, and on July 29 a hearing was held. Witnesses were limited to Freshwater; Steve Short, superintendent of Mount Vernon City Schools; and David Millstone, the Mount Vernon school board’s attorney in Freshwater’s contract termination hearing case.
According to court documents, the judge found no reason in the testimony to withdraw the sanctions against Freshwater and Hamilton.
“With regard to the testimony of Superintendent Short and Attorney Millstone, the Court found both witnesses forthcoming and believable. ... The Court has no uncertainty whatsoever as to the truthfulness of the testimony of these two witnesses,” Frost wrote.
Frost found Freshwater’s testimony less believable. He wrote, “The Court finds that Freshwater’s testimony, and the reasonable inferences drawn from his testimony, in several instances was incredible.”
Freshwater on one occasion said he had destroyed and discarded the Tesla coil which the Does allege caused an injury to their minor child, and on another occasion said he gave the pieces to Hamilton, whose wife put it in their freezer.
“Freshwater’s sworn testimony about the Tesla coil given on two separate occasions simply cannot both be true,” Frost said.
The following footnote also relates to the Tesla coil: “In response to a question by the Court, Attorney Hamilton explained that his wife mistakenly believed the Tesla coil was groceries and put it in the freezer at their home.”
Frost also said testimony concerning a certain affidavit filed by Hamilton was implausible. “Moreover,” he ruled, “although the affidavit does not state that Attorney Hamilton attached the affidavits to Exhibit 161, to the extent that the affidavit was meant to state such, the Court finds the testimony unbelievable.”
In conclusion, Frost wrote, “Based on Freshwater’s and Attorney Hamilton’s less than forthcoming behavior, it would be a manifest injustice for Plaintiffs to be required to pay their attorneys for work necessitated only by Freshwater’s and Hamilton’s misconduct. Based on the foregoing, the Court denies the Motion for Reconsideration filed by Defendant John Freshwater and Attorney R. Kelly Hamilton.”
In their memorandum in opposition to the motion for reconsideration, the Does requested judgment to be entered against Freshwater or for evidentiary inferences to be permitted against Freshwater at trial. Frost ruled, “ That request, however, has been rendered moot by the settlement of this matter.”
Mrs. Doe told the News, “There’s nothing we can say right now except that the parties have not signed a settlement agreement.”
