Lawyers for former S.C. Gov. Nikki Haley, now the U.S. ambassador to the United Nations, say the federal government might intervene to prevent her testimony if she is removed as a party in a Greenville disabled man's lawsuit and is called as a factual witness.
Their comments are contained in the latest court filing in the case in which they continued to argue that Haley should not be a party to the case and denied the former governor had attempted to "dodge" testifying.
"Any suggestion by plaintiffs’ counsel that Haley has dodged service of anything is a misrepresentation to this court," the lawyers wrote.
They also alleged the disabled man's lawyers want to depose Haley for a "fishing expedition" and they have not done what is required to sue Haley in her individual capacity instead of her official capacity.
"If plaintiffs intended to sue Haley in her individual capacity, (1) they should have named her individually, (2) they should have personally served her, and (3) they should have alleged sufficient facts against her which would, if proven, result in personal liability," the lawyers wrote. "Plaintiffs have failed to do any of the above."
If Haley is removed as a party to the case, her lawyers argued, and she is served with a subpoena to testify as a witness in the case, "counsel anticipates that the United States government may intervene on other grounds."
"At a minimum, due to Haley’s status as a high-ranking government official, plaintiffs would be required to show, prior to deposing Haley, that she had personal knowledge of relevant information — which she does not have — and that exceptional or extraordinary circumstances would justify the deposition," her lawyers wrote.
A federal judge has suspended her order that Haley testify in the case to give time for Haley's lawyers to make their arguments.
U.S. District Judge Mary Geiger Lewis last month dismissed concerns by Gov. Henry McMaster's lawyers about Haley's testimony, directing she be served with her order and that lawyers for the plaintiffs accommodate her U.N. schedule.
The lawsuit filed last year while Haley was still governor alleges that Johnny Timpson of Greenville was beaten, burned, subjected to physical, emotional, sexual abuse, neglect and financial exploitation while in the state Department of Disabilities and Special Needs system. He has named a number of defendants in addition to Haley, including state and local agencies and officials.
The suit seeks unspecified damages, including punitive damages, attorneys fees, compensation for Timpson's sister and various orders, including one to prohibit defendants from retaliating against plaintiffs, witnesses or their advocates.
Timpson was in the care of DDSN system facilities, including an Anderson County Disabilities and Special Needs Board group home from about 1968 to 2013, according to his family. His sister asked that she take over his care after finding burns on his arms in 2013, she said.
His allegations were reported by The Greenville News as part of a series examining the DDSN system and its problems, which include significant increases in abuse, neglect and exploitation allegations and critical-type incidents; critical state and federal audits; neglect and exploitation allegations, and critical incidents or deaths that exceed the state rates for many county disabilities agencies.
Haley is being sued, according to Judge Lewis, because the plaintiffs allege she "possessed personal knowledge of systemic abuse, neglect and exploitation of mentally disabled adults such as Timpson, failed to take reasonable action to protect them, and even retaliated against those who complained."
The News has attempted to reach Haley through the U.S. Department of State and the U.N. scheduling office, where requests for interviews are sent. She could not be reached for comment.
The Governor’s Office lawyers had fought against Haley testifying, arguing she should be dismissed from the litigation and asking for a protective order to prevent her deposition.
They also argued too much time had lapsed, that Haley was an improper defendant and McMaster should be substituted for Haley since he is the current governor.
Haley now is represented by three personal lawyers in the case, James W. Fayssoux and Paul Landis of Greenville and Butch Bowers, a Columbia lawyer who has represented Haley in the past.
Until she resigned in January to become ambassador, Haley had been represented by lawyers for the governor’s office.
But those attorneys have argued they no longer represent her since she is no longer governor.
Her new lawyers argued in court filings that Haley was not given notice of Lewis’ order at the time it was issued and was not given an opportunity to be heard.
Also filed was a response from the state's Medicaid agency, saying it had appealed its hearing officer's order awarding more hours of care to Timpson. The disabled man's lawyers had written that he was still not getting the increased hours of care despite the hearing officer's decision.
The agency said because of its motion, the September order for more hours was suspended until the motion can be heard.