by Ali Abdollahi

The family of a Milpitas High School student who nearly drowned in the school pool last October has filed a $10-million personal injury claim against the Milpitas Unified School District. The claim filed on behalf of 14-year-old Jerry Pham states that Milpitas High and physical education teacher Kristina Edwards "were profoundly incompetent, negligent, and grossly reckless" in providing due care and supervision, and that "Jerry Pham has suffered brain damage and will never be the same." The claim does not detail how the plaintiffs determined that Pham suffered brain damage. Calls to Richard Alexander, the San Jose attorney representing Pham, were not immediately returned.

In the claim filed March 25, Alexander details the circumstances of the incident, and alleges failures and careless practices by Milpitas High and Edwards. Filing a claim typically precedes the filing of a lawsuit.

On Oct. 12 of last year, Pham reported to the swimming pool for the final day of the mandatory swimming unit with his physical education class. Though Pham was listed in school records as a "non-swimmer," he bore no wristband or other visual cue that would let instructors know of his status, according to the claim.

When Edwards opened the 12-foot pool a few minutes into the class, Pham followed most of his classmates into the deep pool but "stayed close to the pool's edge," according to the claim.

The claim also states that Edwards was socializing with students

"about clothing styles that were popular in the 1980s."

"Meanwhile," the claim reads, "Pham began to drown."

Students began to notice something at the bottom of the pool, some believing that they saw clothing, according to the claim. When Edwards noticed the commotion and realized Pham was laying at the bottom of the pool, she ordered everyone out of the pool, but "did not dive in to rescue her drowning student," the claim states.

Instead, the claim asserts that Edwards removed her warm-up suit and went to the lifeguard station to get her radio. She radioed for help, according to the claim, and said, "ÔKid at the bottom of the pool. Need security,'" but did not call 911.

After trying unsuccessfully to use a rescue pole to reach Pham at the bottom of the pool, she again pleaded for help on the radio. The claim states, "She was panicked. Her young students were trying to calm her down."

When Milpitas High security guards Scott and Arlene Rancourt arrived, Edwards "was nowhere to be seen, having fled the pool area," according to the claim.

The claim credits the Rancourts for continued efforts to rescue Pham, but neither was able to swim to the bottom of the 12-foot pool.

Two students attempted, with the Rancourts' permission, to dive in and reach Pham, according to the claim. After Pham had spent "minutes" submerged, student Perry Pham, no relation, finally reached the bottom of the pool and pulled Pham up to where others could assist him. According to the claim, when Pham was pulled from the pool, "(his) lips were blue and blood and water came out of his mouth. He was unconscious."

The claim asserts that Milpitas High and Edwards were negligent in several regards, including that Edwards was not capable or trained to supervise a swim class or rescue a drowning student; she was "recklessly hired without adequate screening"; that Edwards was reckless in accepting the duty of supervising students without rescue training; and the school lacked appropriate emergency equipment and procedures.

Pham suffered "serious and life-long brain damage as a result of the oxygen deprivation he sustained in nearly drowning," according to the claim. The general and special damages request of $10 million is based on all economic damages, including medical expenses, lost earning capacity and the "expense of reasonable rehabilitation and training necessary for coping with his traumatic brain injury," according to the claim.

It is unknown if Pham has since returned to Milpitas High, though school officials last fall said he could be back within weeks of the accident.

District spokesman Luis Gonzales and a representative of the legal firm that represents the school district both declined comment about the claim.

Milpitas High closed the pool in response to the incident, and re-opened it in January only for members of the school swim team. All physical education teachers are now required to hold a current CPR and first aid certification, according to a column by district Superintendent Karl Black in January in the Milpitas Post. He also said that a minimum of four teachers assistants will be assigned to every swim class, all required to hold lifeguard or water safety certification.

In addition, Black wrote that the school will add a portable defibrillator, telephone and 16-foot rescue pole to the swim area, and "non-swimmers" will be assigned a "buddy" and not be allowed in the deep pool. Parents and students will be required to sign an acknowledgment that they have read swim class rules provided by the physical education teachers.

The police report about the near-drowning was withheld from the public following an order from the Santa Clara County Superior Court of California in November, due to the involvement of minors in the incident.

The order stipulates California Welfare and Institutions Code 676, which states the juvenile court can prohibit the release of files or records "if it appears that the harm to the minor, victims, witnesses, or public from the public disclosure outweighs the benefit of public knowledge."