NEWPORT NEWS, Va. — The decks are clearing for a seven-day jury trial to begin early next year in the $40 million lawsuit brought by the teacher who got shot by a 6-year-old student at Richneck Elementary School in early 2023.

The trial is now slated to go forward after the Virginia Court of Appeals on Friday declined to allow the Newport News School Board to appeal a judge’s ruling allowing Richneck teacher Abby Zwerner to take her case to trial.

The school board — which contends Zwerner’s sole remedy for her shooting injury is by way of the Virginia Workers’ Compensation Act— will have to wait until after the seven-day trial is over to take up that issue.

Zwerner’s attorneys hailed the ruling as a victory.

“The higher court has spoken — we will go to trial,” Zwerner’s team of attorneys, Diane Toscano, Kevin Biniazan, and Jeffrey Breit, said in a statement. “This is another important victory in a string of victories for Abby Zwerner that paves the way for her finally having her day in court.”

But Annie Lahren, an attorney with Pender & Coward representing the school board, downplayed the ruling. She called “an interlocutory appeal” — or an appeal of an issue before a case is ultimately decided in a trial court — “an extraordinary remedy that is rarely ever granted.”

“We knew when we filed the petition that the Court of Appeals granting our petition at this stage in the litigation was a long shot,” she wrote in a statement. “The case will now proceed to trial, and we firmly believe that the Supreme Court of Virginia will ultimately rule that Ms. Zwerner’s workplace injuries fall under the exclusive jurisdiction of Virginia’s Worker’s Compensation Act.”

All issues in the appeal, she said, “are preserved for future appellate review” after the trial.

The trial is now slated to begin on Jan. 21, 2025, which would be about two years after the shooting.

On Jan. 6, 2023, one of Zwerner’s first grade students pulled a gun from his front hoodie pocket during a reading class. He pointed the firearm at Zwerner, who sat at her reading table about 10 feet away, and fired a single round.

The bullet went through Zwerner’s left hand — which she held up as the boy opened fire — and struck her in the upper chest and shoulder. She managed to shuttle about 18 students out of the classroom before seeking help. Zwerner was released from the hospital 10 days later.

The news that a 6-year-old student shot his teacher made headlines across the world.

In the $40 million lawsuit, filed in April 2023, Zwerner asserts that the school division allowed the shooting to happen. For one thing, the lawsuit maintains, Richneck’s assistant principal ignored several credible warnings that the boy was armed.

In November, Newport News Circuit Court Judge Matthew W. Hoffman rejected the school board’s argument that Zwerner’s sole remedy was filing a worker’s compensation claim. He ruled in part that getting shot by a student in a classroom cannot be considered a job hazard of teaching first grade students.

But the school board contends Hoffman got it wrong.

Under long-standing Virginia law, personal injury claims “arising out of and in the course of employment” must be resolved exclusively by the Workers’ Compensation Act. In other words, such workers are barred from pursuing claims through personal injury lawsuits like Zwerner’s. The school board contends the school shooting arose out of Zwerner’s employment.

If she collected Worker’s Comp, Zwerner would collect two-thirds of her teacher’s pay — tax-free — for nine years and eight months, plus lifetime medical benefits for the treatment of her injury.

Although judicial rulings typically cannot be appealed until after a trial is over, the school board sought permission to have the Worker’s Compensation issue decided now rather than after the time and expense of the January trial.

The appellate court ruling Friday doesn’t mean Zwerner’s side will ultimately prevail on the issue. The school board could still appeal the ruling after trial, which could nullify the trial and send the case for a Worker’s Comp claim.

State law allows such “interlocutory” appeals only under certain conditions. Such criteria include that there’s no “clear, compelling” higher court precedent on the issues in dispute, that there’s substantial disagreement over it, and that an appeal is in the parties’ best interest.

In its ruling on Friday, the Court of Appeals panel said there is a “clear, controlling precedent” on the issues presented in the case. Zwerner’s attorneys interpreted that to mean the appeals court believes Hoffman had a firm basis in the case law to allow the case to trial.

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