#29, Drano Series
Plaintiff Brown's
Opposition to Eli Newberger's Motion to DismissThere are two more oppositions by Brown: one in opposition to the Motion to Dismiss by Children's Hospital and one in opposition to the Motion to Dismiss by Amy Tishelman, a member of Newberger's "team." Because the original Motions to Dismiss were identical but for the names, the oppositions are ALMOST identical. Brown's oppoisition was geared to the identity. Newberger, a pediatrician. The hospital, an institution. Amy, a social worker. I am not taking the time to HTML them, since there is one more important opposition to a motion to dismiss to do for this case and two Surreplies . . . to Eileen Kern's Reply and Sandra Fyfe's Reply . . . to do.
There is another opposition, which has been filed but still must find the time tol HTML the document, and that is Jim Linnehan's against both the hospital and Newberger.
If anyone is particularly interested in the two I am not putting up, let me know.
UNITED STATES DISTRICT COURT
FOR THE
EASTERN DISTRICT OF MASSACHUSETTS---------------------------------------------------
Theodore S. Brown
James Linnehan
Jane & John Does
Plaintiffs
v.
CIVIL ACTION: 00-CV-11048-REK
Eli Newberger
Children's Hospital
Amy C. Tishelman
Barbara Cohen
Brockton Division of the
District Court Department
of the Trial Court of Massachusetts
Mass. Dept. of Social Services
Eileen Kern
Sandra Fyfe
Christopher Salt
Jack McCarthy, Jr.
John and Jane Smiths
Defendants
------------------------------------------------------Brown's Opposition and Memorandum in Support of Opposition to
Eli Newberger's Motion to DismissBrown's and counsel's affidavits accompany this memorandum.
All exhibits referred to in the within memorandum are in support of Brown's oppositions to the motions of Children's Hospital, Amy Tishelman, and Eli Newberger. They are, therefore, attached to counsel's affidavit so as to avoid making 30 copies of each of them.
In support of his opposition to Eli Newberger's Motion to Dismiss, Plaintiff Theodore Brown submits this memorandum. As grounds, Brown states the following:
1. Where Brown filed his claims within the applicable statute of limitations
periods, his claims are not barred by the statutes of limitations;2. Where Eli Newberger knowingly violated Brown's clearly established rights
-- deprivation of constitutional due process and deprivation of parental
rights -- Newberger does not have absolute quasijudicial immunity;3. Where Brown stated each element required for the causes of action in
Counts 8, 9, and perhaps 12, the only counts for which Newberger
contends that Brown failed to state them, Newberger's motion as to those
counts must fail.
FACTS AS TO BROWN
Brown's daughter, Charlotte, was born on 17 November 1989 and his son, Theodore Brown, Jr., ["TJ"] was born on 8 November 1993. They were the issue of Brown's marriage to Patricia ["Patty"].
While a Maine divorce-court order allowing Brown visitation was in effect, the children's mother left with them to New Hampshire around the beginning of February 1996 and then went on to Massachusetts at the end of June 1996.
A few weeks later, during the Fourth of July 1996 holiday, Brown saw his children twice. Charlotte was six and TJ, two.
Within the following week, Patty brought the children to Whitman Counseling "therapist" Barbara Cohen, who told her to get a chapter 209A temporary restraining order against Brown from Brockton District Court, which Patty did.1
1 M.G.L. c. 209A was but a backdoor used to unlawfully circumvent M.G.L. c. 209B, the Massachusetts Child Custody Jurisdiction Act (MCCJA), under which a determination of the need for emergency jurisdiction had to be made. In the c. 209A proceedings. there was no evidentiary hearing. Brown was denied due process, i.e., he was never given an opportunity to confront his accusers by cross-examination or to rebut any adverse or erroneous materials used against him.Within the next week or so, on 17 July 1996, Patty Brown decided tohave the children evaluated for sexual abuse. Exh. A, therapy note by BarbaraCohen. Barbara Cohen wrote that she would accompany Patty if Patty so desired. Id.Between July and August 1996, Patty continued wanting to take child to Brockton Hospital for evaluation. Exh. B, undated letter from Barbara Cohen to "Brockton Court System."
Mother had spoken to Brockton Hospital, but . . . she is not going to go through Brockton Hospital to have any evaluations. . . . [S]he did decide to through Children's.
So deposed Barbara Cohen on 6 November 1996. Exh. C, 11/6/96, Cohen's deposition at 45 (false starts excised).
Contact was made with Children's Hospital between August and early September 1996. Defendant Eli Newberger ["Newberger"] advised that there be no contact between Theodore Brown and the children. Exh. D, 8/20/97, Newberger deposition transcript at 12.
On 17 September 1996, Barbara Cohen wrote Warren Shay, Maine counsel for Patty Brown, that visitation with father should not be considered. Exh. E.
One day later, on 18 September 1996, Warren Shay represented to the Maine court:
And she [Patty] arranged for an evaluation of the child at Children's Hospital in Boston, and the defendant [Theodore Brown] is aware of allthis. The defendant, in fact, has agreed to participate in that. And I have received a letter today from Children's Hospital, indicating that they do not want the father visiting while they're doing this evaluation. And once the evaluation's done, then they will make some recommendations.Exh. F, 9/18/96, Maine hearing on contempt, p. 5, 11.2,3
. . . She's [stopped visitation] on the advice of her counselor and on the advice of the Children's Hospital that's gonna do the evaluation.
2 Maine never declined jurisdiction over the Browns. No home-state hearingoccurred in Massachusetts. No judges from the respective states conferred.Massachusetts did not have subject-matter or personal jurisdiction andnever declared it would exercise jurisdiction, emergency or otherwise. The Brown's Maine divorce became final in 1998.3 On page 5 of his motion to dismiss, Newberger admits against his interest that he insinuated itself into "the Maine Court proceeding involving the Brown's [sic] and the Massachusetts Court proceeding involving the Linnehan/Gerry's [sic].." The reports were replete with hearsay and, of course, should never have been admitted as evidence without the authors being available both for authentication and cross-examine on them.
Brown reluctantly participated. He did so only because his Maine lawyer, said, in words for all intents and purposes, "If you want to see your kids by Christmas, you have to participate."During October 1996, Brown signed paperwork at Children's Hospital. As a result of signing that paperwork, he received a card which bears the name of his daughter, "Charlotte A. Brown," her address and phone number, her date of birth, and Patient ID number 1187655. Exh. G.
In late October, Cohen reported suspected sexual abuse of Charlotte to DSS, and not too long after, reported abuse of TJ.
During its 10-day investigation, DSS learned that Patty and the children were living with Dell Smith ["Smith"]. Smith was a sex-offender who, upon feeling guilty about sexually abusing his infant daughter, had confessed years earlier to a counselor at Whitman Counseling. His therapist filed a 51A with DSS and Smith's name was subsequently added to the DSS central registry.
When Patty brought the children for therapy to Whitman, Whitman should have inquired about the children's current home environment. So should Newberger and his Children's Hospital team have inquired about the children's new home environment.
On 15 April 1997, the Children's Hospital team wrote to Warren Shay, Patty's Maine counsel, that it estimated that the team would finish the evaluation process in seven weeks, bringing the estimated completion date to sometime in June:
At this point [on 4/15/97], we estimate completing the evaluation process in approximately 3 weeks. We anticipate that an additional 4 weeks will be needed in order for our team to assemble the data and draft the report.
Exh. H, 15 April 1997, letter from Children's Hospital's "team" to Warren Shay, page 1, para. 1. The team was composed of Kim McNamara, Amy C. Tishelman, Renee M. Leder, and Eli Newberger, whose names at the end of the report were signed by someone whose initials appear to be "mr".On 15 May 1997, there was a hearing on a motion for visitation in the Brown's divorce case in Maine. The Children's Hospital/Newberger-team report had not yet been received by anyone. For instance, on May 15th, Patty Brown testified to the alleged medical condition of Brown's daughter. Exh. I, at 19. Patty's lawyer then represented to the Maine court that the source of this information was Children's Hospital, whereupon, after a bit more conversation, the judge said, "So, it's hearsay for now, but it's my understanding that I'm gonna read this in the deposition [of Dr. Renee Leder]" [Exh. I-2, Id. at 20, lines 11-13]. Clearly, the court did not have a copy of the written report before her nor did anyone else. Why? The evaluation had not yet been completed.
On 16 June 1997, Brown's Maine counsel, Jon Rogers, received five pages, one of which was a cover and four pages of what appears to be notes taken by a unidentified interviewer during an interview of Brown.
On 20 August 1997, during his deposition, Newberger produced in two parts 1-6, 11-26, the pages surrounding the four pages of Theodore Brown's interview. Exh. J, 8/20/97, Newberger deposition transcript at 26-27. The "26-page" undated report appears to be a draft of the team's report. Page numbers are written in hand. On pages hand-numbered 20 and 21, there is reference to phonecalls made during the month of May to collaterals: on 5/8/97 to DSS caseworker Melissa License, on 5/9/97 to Sgt. Benton, on 5/19/97 to Barbara Cohen.
Theodore Brown did not attend Newberger's deposition, so he had to wait until the deposition was transcribed and the report was reproduced. Some weeks later, well into September 1997, Brown received the alleged full report. The copy he has still looks like a draft: page numbers are handwritten, pages end arbitrarily at the top, one particular paragraph ends mid-sentence at the bottom of the page and does not continue at the top of the next page, indicating that a page or more is missing, and only two of the four people from the team had signed it.
At no time before his counsel deposed Newberger had he seen the report so that he could properly prepare for the deposition. Brown, a resident of Maine, was and is not a rich man and could not redepose or continue the deposition again in Massachusetts.
On 30 April 1998, the Maine divorce trial judge reveals that the Children's Hospital--Newberger team report was Trial Exhibit 2 and was offered by Patty's lawyer. [Exh. K, trial transcript at 107, lines 13-14]. It is unclear from the transcript how and when it was introduced into evidence. Neither Newberger nor any of his team was at the Maine divorce trial. Thus Brown never had the opportunity to cross-examine Newberger and his team on their performance or on the adverse material in the draft report. No final and fully signed report has ever been seen by Brown or his various counsel.
On 12 October 1999, in his response to Brown's complaint against him at the Massachusetts Board of Registration of Medicine, Newberger wrote "The Department of Social Services was conducting its own investigation into "Del" as a possible offender." By that statement, it is clear that Newberger knew all about Dell Smith and allowed Brown's children to continue living with the confessed sex-offender Smith. [Newberger letter dated 10/12/99, last sentence on page 5.]
No court in Brown's Maine divorce or Massachusetts 209A cases ever requested or ordered that the Newberger team report be done. Yet Newberger has explicitly admitted [mid-page 5 of his brief] that he knew that the team's reports would be used in court.
That admission of foreseeability is what the Plaintiff Linnehan has argued in the instant case (several of his oppositions having been written prior to this one): that the defendants acted independently to deprive the Plaintiffs of their fundamental clearly established constitutional rights, and thus claimed that they acted under the color of law and were then protected by state-conferred immunity for their unlawful actions.\4/
4 Newberger fails to state which conduct he contends is shielded by immunity, or which action was a matter of choice for him.[a] state-conferred immunity cannot shield a state actor from liability under section 1983. See Martinez v. California, 444 U.S. 277, 284 n. 8 (1980) ("Conduct by persons acting under color of state law which is wrongful under 42 U.S.C. sec. 1983 ... cannot be immunized by state law.") [cite omitted]. Indeed, a regime that allowed a state immunity defense to trump the imposition of liability under section 1983 would emasculate the federal statute. See id. We therefore reject the proposition that absolute immunity entitled the psychiatrists to summary judgment.Camilo-Robles v. Hoyos, 151 F.3d 1, 10 (1st Cir. (Puerto Rico) 1998) (Selya, J.).
Brown has not seen his children since that summer of '96.
DISPUTED FACTS
It is written in all three motions to dismiss by Defendants Children's Hospital, Amy Tishelman, and Eli Newberger that the evaluation was begun in order to report their results to the "Court." That is an untrue statement. Patty Brown and Barbara Cohen arranged the evaluation with Children's Hospital. See Exhs. A-F. There is no court order from any court whatsoever commanding Children's Hospital's Newberger-Team to perform any sex-abuse evaluation.
Another untrue statement by Defendants Children's Hospital, Tishelman, and Newberger is that the evaluation of the Brown family was completed by April 1997. The draft of the evaluation report explicitly identified three tasks performed in May: one phonecall to DSS caseworker Melissa License on 5/8/97; one phonecall to Sgt. Benton on 5/9/97, one phonecall to Barbara Cohen on 5/19/97. Brown's Maine counsel, Jon Rogers, received partial draft on 16 June 1997. The entire DRAFT was not produced until 20 August 1997 by Newberger at his deposition. Exh. J, at 26-27. This action was filed ON 30 May 2000.
Further, Newberger also admitted on those same pages, 26-27, that Brown did not previously have that portion of the report which included Patty's accusations and/or allegations.
Moreover, it was not until November 1997 that DSS informed Brown about Smith . . . and that was only because Brown deposed two DSS caseworkers. As soon as Brown learned that Dell was on the DSS Central Registry, Brown wrote Newberger, the hospital, and others. Brown's contended then and still contends that Newberger never finished his evaluation. He stopped short of a completed evaluation when he refused to consider Dell Smith, a confessed sex-offender, as anything but a benign presence.
As late as 12 October 1999, Newberger wrote to the Board of Registration of Medicine:
Mr. Brown's allegation that the team ignored information regarding Deli Smith is not accurate. As Mr. Brown is aware and has referred to in numerous letters to Children's Hospital and other individuals, the DSS never informed the Children's Hospital team of "Del's" history of offending behavior nor the possibility that "Del" may have been the "other" perpetrator of sexual abuse named in the 51A filed on behalf of T.J. The Department of Social Services was conducting its own investigation into "Del" as a possible offender.Newberger's response to the Board, 10/12/99. If DSS did not inform Children's Hospital and Newberger's team of Dell Smith living with Patty Brown and the children, how did Newberger know of the parallel investigation?Brown has not seen his children since that summer of '96.
ARGUMENTS
STANDARD OF REVIEW
"In ruling on a motion to dismiss, `the allegations of the complaint [and annexed exhibits], as well as such inferences as may be drawn therefrom in the plaintiff's favor, are to be taken as true.'" Whitinsville Plaza, Inc. v. Kosteas, 378 Mass. 85, 87 (1979), quoting Nader v. Citron, 372 Mass. 96, 98 (1977).
A "complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Citron v. Nader, 372 Mass. 96, 98 (1977), quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Mass.R.Civ.P. 8(f). "A complaint is not subject to dismissal if it could support relief on Any theory of law," Whitinsville, 378 Mass. at 89, "even though the particular relief [which plaintiff] has demanded and the theory on which he seems to rely may not be appropriate." Nader, 372 Mass. at 104 (citations omitted).
1. Where Brown filed his claims within the applicable statute of limitations periods, his claims are not barred by the statutes of limitations.
Given that Brown's causes of action did not accrue, assuming the earliest possible date of accrual, until August 1997, when Brown's Maine counsel received a draft of, at least, the entire report, and Brown filed his Complaint on 30 May 2000, his Complaint was timely filed for each and every one of his causes of action.
2. Where Eli Newberger knowingly violated Brown's clearly established rights -- deprivation of constitutional due process and deprivation of parental rights 5 -- Newberger does not have absolute quasijudicial immunity.
5 Counts 2 and 3, interference with parental rights, and violation of 42 U.S.C. 1983, respectively.NOTE that Brown's clearly established rights have
Eli Newberger does not dispute or controvert
been interfered with or that he was deprived of them.Newberger contends that because he was involved in and prepared the Brown report "in furtherance of the adjudication of a pending case before the Court," he is therefore entitled to immunity.6 That contention must fail.
6 He does not differentiate himself from the hospital or from Tishelman in any way, i.e., he does not attempt to put any liability onto other entities.Newberger suggests that Cok v. Cosentino, 876 F.2d 1 (1st Cir. 1989) and LaLonde v. Eissner, 405 Mass. 207 (1989) support his contention. They do not. Eissner was a psychiatrist; Newberger was a pediatrician. LaLonde was practicing in his area of expertise and Newberger was not. There was no conduct of Newberger which resembled any conduct expected of pediatricians.The LaLonde child had been subjected to a "stream of interrogatories . . . by a staggering number of people [inquiring] about the alleged incidents of abuse." LaLonde v. LaLonde, 30 Mass.App.Ct. 117, 120 (1991). In his report dated 19 December 1985, Dr. Eissner wrote,
...Nicole...caught up in the maelstrom of her parents' separation, divorce, and continual disagreements.... no evidence of sexual abuse.... we do see signs of emotional stress....it is inappropriate and even harmful for Nicole's relationship with her parents to be based on this allegation.LaLonde v. LaLonde, 30 Mass.App.Ct. at 121. Unhappy with that report, Mother LaLonde spent the next few years searching for someone to conclude that Father LaLonde had been sexually abusive. She found that someone three years later -- a Children's Hospital physician, who came up with the traditional APSAC/Children's Hospital/Eli-Newberger oxymoronic answer: We found no evidence of sexual abuse but it is consistent with children who have been sexually abused. Id. at 125. The LaLonde trial court did not buy it: there was no psychological, psychiatric, or gynecological evidence of sexual abuse. The testimony of the doctor who based his testimony on the Children's Hospital doctor was precluded. The appeals court concluded: "In the end, no more of the `truth' is now known than was known in the summer of 1985." It was in that context when Eissner was given immunity in 1989.Neither in Cok nor in LaLonde was the plaintiff denied, as was Brown, an opportunity to cross-examine in a court of law the preparer of the subject report. Aime v. Com., 414 Mass. 667, 683 (1993): "The core of procedural due process is the adequacy of the hearing provided before a deprivation of liberty or property occurs." See Mathews v. Eldridge, 424 U.S. 319, 332-333 (1976).
Neither in Cok nor in LaLonde was the plaintiff denied, as was Brown, an opportunity to rebut adverse or erroneous materials.
Neither in Cok nor in LaLonde did the plaintiff claim, as did Brown, that the defendants deprived her of or interfered with any of her clearly established constitutional rights. "At most, Cok states a claim for negligent performance or dereliction of duty." Cok, 876 F.2d at 4.
Cok does make mention of cases where appointment by a family court would be entitled to absolute immunity, but here neither Children's Hospital nor Newberger nor Tishelman nor any other member of his team was appointed. Patty Brown, Plaintiff's wife and the mother of his children, upon the recommendation of her therapist, Barbara Cohen, hired Newberger on her own.
Cok never reached the issue of whether absolute quasijudicial immunity was inapplicable when a defendant violated a plaintiff's clearly established constitutional rights. Neither did LaLonde.
"A parent's liberty interest in her relationship with her child is grounded in art. 10 of the Massachusetts Declaration of Rights and the Fourteenth Amendment to the United States Constitution." Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); Opinion of the Justices, 427 Mass. 1201, 1203 (1998).E.N.O. v. L.M.M., 429 Mass. 824, 832 (1999).In addition to those significant distinguishing factors, Newberger's suggestions must fail also because of his own conduct: he knew that he was causing Brown to be deprived of his clearly established and fundamental rights -- deprivation of due process and deprivation of parental rights. That knowledge is sufficient to divest Newberger of any immunity to which he may otherwise have been entitled.
The question is not whether some right has been established clearly at a highly abstract level . . . the question is whether, under the circumstances that confronted the official, "a reasonable official would understand that what he is doing violate[d] that right.Berthiaume v. Caron, Clark, Bivins, and O'Donohue, 142 F.3d 12, 15 (1st Cir. 1999), citing Anderson v. Creighton, 483 U.S. 635, 640 (1987); see also Hunter v. Bryant, 502 U.S. 224, 228-29 (1991) (per curiam); Brown v. Ives, 129 F.3d 209, 211-12 (1st Cir. 1997), cert. denied, __ U.S. __, 66 U.S.L.W. 3531 (Mar. 23, 1998).In Robichaud v. Ronan, 351 F.2d 533, 536 (9th Cir. 1965), cited by Newberger without pointing out either the Robichaud disposition (which is unfavorable to Newberger) or the rationale upon which it was based, the court reversed the immunity-based dismissal of the action against a county attorney and his deputy, on the grounds that it was inappropriate to protect the defendants if they deprived the plaintiff of her rights, privileges, or immunities secured by the Federal Constitution and laws.
The reason for his immunity -- integral relationship between his acts and the judicial process -- ceases to exist.Robichaud, 351 F.2d at 536.. . . why should he not be liable . . . if . . . he has derived the plaintiff of . . . rights, privileges, or immunities secured by the Federal Constitution and laws? See Monroe v. Pape, 365 U.S. [167] 187 (1965).Robichaud, 351 F.2d at 536. Because "[t]he title of [an] office, quasi-judicial or even judicial, does not, of itself, immunize the officer from responsibility for unlawful acts which cannot be said to constitute an integral part of judicial process." Robichaud, at 537-38, citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Corsican Productions v. Pitchess, 338 F.2d 441 (9th Cir. 1964) and Lewis v. Brautigam, 227 F.2d 124 5 A.L.R.2d 505 (5th Cir. 1955). "[T]he cloak of immunity should not protect them." Robichaud, at 537.Not only were Newberger's acts not of the nature and quality that were intended to be shielded from liability, Newberger was not appointed by any court to Brown's case -- despite his averment that he was. Newberger is also not shielded by absolute quasijudicial immunity because he insinuated himself into Brown's cases, causing Brown to be deprived of constitutional, procedural due process both on its face and in practice.
Newberger also knew that Brown was being deprived of due process by which he could protect his constitutional rights: being denied both the opportunity to have an evidentiary hearing at which he could present evidence, cross-examine Newberger and others from the team on his and their performance and the report of the alleged evaluation, and have an opportunity to rebut any adverse or erroneous material. Adoption of Sean, 36 Mass.App.Ct. 261, 263-264 (1994).
3. Where Brown stated each element required for the causes of action in Counts 8, 9, and perhaps 12, the only counts for which Newberger contends that Brown failed to state them, Newberger's motion as to those counts must fail.
NOTE
Defendant Eli Newberger does not defend pursuant to Fed.R.Civ.P. Rule 12(b)(6) against Brown's claims for negligence, violations of 42 U.S.C. 1983, violations of state civil rights claims (M.G.L. c. 12, sec. 11I), defamation, and negligent and intentional infliction of emotional distress.
As to Count 8: Civil RICO.7 While Brown's counsel has earlier admitted she should have brought the RICO count as a common-law conspiracy count, because of the lack of one identifiable "enterprise," she attaches to her affidavit as Exhibit L a speech given by Theresa Reid, Executive Director, American Professional Society on the Abuse of Children ["APSAC"], on 30 November 1995, which both demonstrates the unanimity and conspiracy of action in the alleged health professions to further increase reports of abuse, which numbered 3.14 million in 1994 in the United States, up from 60,000 in 1974, and doubling every few years.
7 This count possibly should have been one for "conspiracy" to encompass both statutory (Secs, 1985(3), 1986, and RICO) and common-law conspiracies. Nevertheless, as stated in note 14 of the Complaint, the elements of a civil conspiracy are: (1) two or more persons; (2) an object to be accomplished;This is 30 to 40 times the frequency of other societies. Cf. Issues in Child Abuse Accusations, "Affidavit of Ralph Underwager, Ph.D." (Northfield, MN: Institute for Psychological Therapies, Winter 1990) vol. 2, no. 1, in which Underwager wrote in 1990:
(3) an agreement on the object or course of action; (4) one or more unlawful overt acts; and (5) damages that are a direct result of those acts. Breach of a duty of loyalty satisfies the unlawful act element of a civil conspiracy claim. Here, if any of the defendants are deemed to be state actors, then Secs. 1985(3) and 1986 would come into play.. . . the actual frequency of abuse has dramatically increased to produce such startling numbers as 1,500,000 American children abused every year. This is fifteen to twenty times the estimates of the frequency in other societies. The conclusion then drawn is that our society is sick.At 3.14 million child-abuse reports by 1994, either our society is very very sick or there is, as the Plaintiffs here contend, a significant monetary incentive for APSAC and its loyal followers in the alleged health-care industry to create so many reports. If the APSAC members and colleagues were not chasing after their share of the cash cow, a multi-billion dollar industry, one could easily conclude that they were certifiable fanatics.Brown opts for the "monetary incentive" explanation. To ascribe fanaticism to our entire society is too bizarre to be acceptable as an explanation. APSAC is leader of the pack. It propogates information encouraging child sex abuse reports. Amongst its most esteemed members are Children's Hospital (Newberger) and Mass. General Hospital's Children & the Law program (Judith and Ken Herman). All stalwart, unflinching, obsessed leaders who see child sexual abuse everywhere, even where it isn't.
In furtherance of their object, Newberger participated with some of the other defendants in two or more predicate acts against Brown. They communicated by telephone and letter their biased presumptions, their flawed and specious conclusions and opinions to each other, as well as to third parties not named in this action, that Brown had sexually abused his children. Some of those communications are memorialized in their reports. [Complaint, paras. 213-216.]
The pattern is to receive income from future services which has been made mandatory when sexual abuse -- true or not -- is found. To Newberger, a finding of sexual abuse has meant more business for himself as a so-called "international expert" on child physical and sexual abuse at upwards of $450 per hour, more court appointments and referrals by other local area, so-called "health-care" workers, who, in turn, recommend counseling or the continuation of counseling by their respective agencies for the children, counseling for the parents, batterer or anger-management programs, sex-offender programs, testing, multiple evaluations, repeated testing, and so on -- out of which has grown a multi-billion-dollar sex abuse industry, and of which Newberger is a part: he gets referrals, gets paid by both public and private health insurers, parents, gets retained as an exprt for the prosecution across the country and abroad, and recommends to those who refer to the hospital or himself in the first instance or others in the cash stream further "therapy" or mandated enrolment into such programs as the batterer or anger-management programs.
To Newberger, it also means not only career advancement but also financial security -- the fear of the loss of which he writes in his recent book, which he has been vigorously marketing for the last year: by partaking in traditional book-signing tours and by hawking it on the "speakers' circuit, at high schools and women's groups, where Newberger spreads hysteria against males in general. The defendants agreed on the object or course of action.
The opinions of competent collateral health professionals, i.e., those who were not in the loop, were deliberately and intentionally ignored in Brown's underlying case.
Brown was not allowed to confront the accusing authors of the evaluation report or the hospital in a court of law before he was deprived of his relationship with his children, and he suffered damages that are a direct result of those acts.
As to Count 9: Breach of Contract. The papers Brown was required to sign constituted a contract with the hospital and conceivably with the Family Development Program, or Newberger's team. Given that Brown was not given a copy of the papers he signed, his counsel included Newberger in case discovery revealed that he was also a party to the contract.
After signing Brown was presented with his daughter's ID card. Exh. G. Consideration was his signing and his promise to participate in the proposed evaluation. He cannot precisely state the terms and conditions of the contract because the hospital failed to provide him a copy of the papers he signed. He relied on the hospital performing an unbiased evaluation.
"There are circumstances in which a promise will be enforced even in the absence of consideration." Leary v. Minichiello, 1999 WL 1324222 at 7 (Mass. Super. Feb. 25, 1999) (McHugh J.), citing Rhode Island Hospital Trust National Bank v. Varadian, 419 Mass. 841, 848 (1995). 'When a promise is enforceable in whole or in part by virtue of reliance, it is a `contract,' and it is enforceable pursuant to a `traditional contract theory' antedating the modern doctrine of consideration." Loranger Constr. Corp. v. E.F. Hauserman Co., 376 Mass. 757, 761 (1978). Brown relied to his detriment. "[A]n action must prove all the necessary elements of a contract other than consideration." Rhode Island, supra at 850. Brown performed his part of the bargain, by allowing himself to be interviewed. He gave up his privacy which was of exquisite value. Falmouth Hospital v. Lopes, 376 Mass. 580, 587 (1978).
Further, if those papers do not constitute a contract, then, Brown was, at the very least, a third-party beneficiary of that contract. "[A] third party [too] conceivably may be entitled to enforce such a promise but only is the third party himself or herself relied on it." Leary at 7. Brown relied to his detriment on the professional reputation of the hospital.
The hospital Newberger team breached the bargain not only by performing insufficiently and incompetently but also by not performing its duties at all, by recommending that Brown's children continue living with an admitted sex-offender, by ignoring and misinterpreting what was told them, by performing no follow-up -- somewhat like giving a patient chemotherapy and then not medically checking the patient to learn the effectiveness of the treatment.
In sum, there was nothing medical about the evaluation, which was but a sham and a shame. Brown challenged the sufficiency of the performance of the entire Newberger team and notified Newberger forthwith. [Complaint, par. 70.] Newberger, the team, and the hospital did nothing, and in so doing, breached the contract.
As to Count 12: Violation of M.G.L. c. 93A. Where discovery is still needed in order to write chapter 93A demand letters to address the claims against each of the defendants, Plaintiffs concede that no 93A claim letter was sent to any of the defendants, but intend to seek permission to conduct discovery, to write the letters, and then amend the last count if and as necessary.
Until the issues of immunity and the statute of limitations were decided, the writing of demand letters pursuant to M.G.L. c. 93A would have been an exercise of futility. "[T]he law does not require the doing of a useless act." Loomer v. Dionne, 338 Mass. 348, 353 (1959), citing Mowry's Case, 112 Mass. 394, 400, and Schayer v. Commonwealth Loan Co., 163 Mass. 322, 323-324.
The defendants have and will have not suffered any prejudice by receiving the letters after their motions to dismiss or for judgment on the pleadings are decided. Cf. Geary v. Herman's Sporting Goods, Inc., et al, No. 98-10318-RBC (Collings, U.S.M.J.) (29 M.L.W. 957, December 25, 2000).
In fact, it will have been less costly for those defendants who might prevail on their motions. They would not have had to spend time in replying to letters which they clearly would have thought of as nuisance letters. As in Geary, supra, the allegations of wilful and knowing violations are not so lacking as to render an amendment futile after the letters are written to the surviving defendants.
As to applicability of c. 93A: "No Massachusetts appellate court has directly addressed whether the physician/patient relationship is covered by M.G.L. c. 93A." Fitzgerald v. Goldberg, No. 94-6620-E, 1998 WL 77889 (Mass.Super. Feb. 2, 1998) (Lauriat, J.), but some trial courts which have addressed it were Riley v. Presnell, 409 Mass. 239, 243 (1991); Hutcheon v. Randolph, No. 94-5528 (Middlesex Super.Ct. Jan. 18, 1995) ("physicians are subject to the provisions of c. 93A") Bartels v. Leighton, No. 91-233 (Hampden Super.Ct. July 6, 1994) (as practice of medicine involves the rendering of services to the public, c. 93A applies); Palermo v. Brennan, No. 92-1083 (Suffolk Super.Ct. Sept. 2, 1997) ("psychiatrist is engaged in trade or commerce for the purposes of c. 93A"). Fitzgerald, 1998 WL 77880 at 3.
WHEREFORE Brown prays that Children's Hospital's Motion to Dismiss be DENIED.
Respectfully submitted,
PLAINTIFFS,
By their attorney,
12 February 2001 Barbara C. Johnson
Barbara C. Johnson, Esq.
6 Appletree Lane
Andover, MA 01810-4102
978-474-0833
CERTIFICATE OF SERVICE
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Barbara C. Johnson, Attorney at Law
6 Appletree Lane, Andover, Massachusetts 01810-4102 Phone 978-474-0833