Plaintiff  James Linnehan's Opposition and Combined Memorandum in Support of  His Opposition to the Hospital's and Eli Newberger's Motion to Dismiss Judge Robert Keeton will hear all the motions in this case on May 9th.

 

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 ------------------------------------------------------ LINNEHAN'S OPPOSITION and COMBINED MEMORANDUM IN SUPPORT OF OPPOSITION TO THE HOSPITAL'S and NEWBERGER'S MOTIONS TO DISMISS   Counsel's affidavit accompanies this memorandum,  and attached thereto are all the exhibits referred to  in the within memorandum.  In support of his opposition to both Children's Hospital's and Eli Newberger's Motions to Dismiss, Plaintiff James Linnehan submits this memorandum. As grounds, Linnehan states the following:  1. Where the hospital and Newberger knowingly violated Linnehan's clearly established rights--deprivation of constitutional due process and deprivation of parental rights--the hospital and Newberger do not have absolute quasijudicial immunity; 2. Where Linnehan's judgment was altered in some way, such altered judgment became the standard, and his cause of action did not accrue until he discovered not only the damage but who caused it.  3. Where Linnehan stated each element required for the causes of action in Counts 8, 9, and perhaps 12, the only counts for which the hospital and Newberger contend that Linnehan failed to state them, the hospital's and Newberger's motions as to those counts must fail. FACTS AS TO LINNEHAN AS THEY RELATE TO CHILDREN'S HOSPITAL AND NEWBERGER [Compl. pars. 114-160] ~ NOTE ~ Details are in FACTS of Linnehan's opposition to motions to dismiss or              for judgment on the pleadings by Christopher Salt, DSS and the Trial              Court, Eileen Kern, and Sandra Fyfe. James Linnehan's son Brenden was born out of wedlock on 9 February 1985. By 1986, the unwed couple was in court over custody and visitation. When Brenden was a little over two years old, his mother, Robyn Gerry, left Maine with him while a Mainecourt order allowing Linnehan visitation was in effect. After 10 months, Linnehan found them in New Bedford, Massachusetts.  Soon thereafter, Linnehan moved to Massachusetts to be near his son, but the Maine action was still pending. In the months that followed, Linnehan, mother, and child drove together from Massachusetts to Maine to participate in a court-ordered mediation and back again to Massachusetts. Abuse was not alleged in Maine.  Literally one day after the mediation in Maine stalemated as to the visitation issue, Robyn made an appointment at New Bedford Child and Family Services with Defendant Eileen Kern [Complaint, par. 12], who shortly thereafter filed with DSS a 51A report of suspected emotional, physical, and sexual abuse of Brenden. [Compl, par. 128.] Kern's role as a reporter was unknown to Linnehan, for, as Kern wrote, DSS never reveals who the mandated reporter is [Kern Mot. at n. 2], making Kern's identity unknown to Linnehan and available only upon accidental discovery.1 1 Linnehan was not given the opportunity to rebut and cross-examine Kern on her report. Adding insult to the deprivation of constitutional due process is that Kern never interviewed Linnehan and never met him before or after she recommended that he be denied visitation with his son. Kern's sources were Brenden's mother and the 3-year-old toddler, who spoke of kitties and toy dinosaurs and Batman and Robin and to whom Kern irresponsibly and outrageously read a sex-abuse-filled comicbook named "Spiderman."  DSS supported Kern's suspicion, albeit that it was formed without any reasonable cause to believe that an incident of sexual abuse had occurred. DSS then brought a care and protection action in New Bedford Juvenile Court, and Linnehan brought a paternity and custody action in Bristol County Probate & Family Court. One Juvenile Court justice (Judge Harper, now retired) sat simultaneously in both courts over the unconsolidated cases. Ultimately the judge ordered Linnehan to withdraw his case in Maine.  It was during the care and protection case that Eileen Kern of New Bedford Child & Family Services recommended to Judge Harper that a sexual-abuse assessment be conducted at the Collis Center.2 The record does not appear to show that Harper accepted Kern's recommendation to appoint the Collis Center to conduct the assessment, but the record does show, however, that the court or dered Christopher Salt to perform an investigation.  2 Sandra Fyfe's take on the referral is different: she wrote that the court requested Kern to refer Brenden to Fyfe's agency. [Fyfe's report at 1].  And at the Collis Center, during May and June 1988, Sandra Fyfe, a then-unlicensed caseworker, met with Brenden and Robyn, while the Executive Director, Thomas Tanguay, a licensed social worker, met with Linnehan. (Linnehan never did meet or even know who Fyfe was until her name appeared in Salt's report.) Basing his conclusions on multiple interviews with Linnehan, Thomas Tanguay recommended supervised visitation. In contrast, Sandra Fyfe both introduced the idea of sexual abuse without a clear allegation [last page of her 7/1/88 report] and wrote that the assessment did not confirm a diagnosis of sexual abuse, but then recom mended no visitation. [Comp. par. 118.]  She shared her baseless recommendation, which was contrary to four or five other opinions, with Christopher Salt, with DSS, and then with the court, apparently in a written report, despite there being no document in the records seen by Linnehan's counsel which confirms that the court appointed either her or her employer, the Collis Center, to perform an assessment.  Salt filed his report on 1July 1988 (back-to-back with Fyfe's report). He drew no negative conclusion from Robyn having left Maine with Brenden while a court order allowing Linnehan visitation was in effect [CS depo at 13-17],3 and insisted that Robyn had "justification" to disobey the Maine court order [id. at 15, lines 7 and 4] by fleeing and hiding with Brenden in Massachusetts [id. at 16].  3NOTE: All deposition and report pages cited herein this opposition are attached to Linnehan's opposition to Salt's motion to dismiss.  To Christopher Salt, Robyn claimed to have "no live-in boyfriend" [CS 7/1/88 report at 25], but Salt knew this to be untrue, viz., Salt knew that Robyn and Brenden shared an apartment for about three months with Joseph Fitzgerald, who was the tenant of record [id. at 17]. Robyn and the divorced Fitzgerald, Salt wrote, "dated a few times and have remained good friends" [id.] and with the exception of Mr. Fitzgerald who baby-sat Brenden, "there appears to be no significant males in [Brenden's] life other than Mr. Linnehan" [id. at 25].  Thus Salt's conclusion that Linnehan had to be the perpetrator of the suspected sexual abuse because there was no male around except Linnehan and because Brenden feared men was specious [CS 7/1/88 report at 25; CS depo at 28].4 4 In fact, Robyn and Brenden lived in a multifamily building where three other males also lived, one of whom lived next door with her best girlfriend.  Salt further insisted that even though "there was no diagnosis of sexual abuse, the possibility is not to be eliminated. His fear and anxiety about his father had been confirmed[;] he had undergone a traumatic experience and now suffered from post traumatic stress" [id. at 34].  Notwithstanding the absence of any proof of sexual abuse, Salt concluded that the child had been sexually abused, and recom mended that Linnehan be denied visitation with his son [CS 7/1/88 report at 26]. The court accepted Salt's recommendation. Lin nehan had no opportunity to present evidence, to cross-examine Salt, or to rebut any adverse or erroneous material.  After reading Salt's report around two months later, Linnehan was asked a question by his then-lawyer in the court hallway. Linnehan could, literally, not respond: so traumatized was he that he had spontaneously lost the use of his vocal chords.5 To this day, he remembers the tears in his eyes when he could not ar ticulate. Also to this day, he must and does utilize his speech therapy exercises.  5 Over the years many diagnoses were rendered: hyperfunctional voice disorder, maladaptive vocal and respiratory habits, vocal chord nodules. .  Subsequently, Linnehan suffered a potpourri of physical and psychological symptomatologies: agoraphobia, depression, insomnia, headaches, nightmares, appetite loss, weight loss, inability to concentrate, no trust in anyone (public officials, the judiciary, mental-health workers),6 extreme mental distress, anxiety.  6 This was particularly distressing inasmuch as Linnehan had to work on a daily basis with mental-health and social workers.  For the next three years, the court and the caseworkers held carrots on a stick in front of Linnehan to get him to go to a therapist. It was promised, If you go, you'll get visitation with Brenden. In retrospect, these games were nothing but obscenely cruel jokes. 7 7 Piteously, these games are widespread in the system. Men cooperate, go, then if they do not admit to something they did not do, they are said to be noncooperative and in violation of probation and are emprisoned. The novel has not yet been written to memorialize the outrage, the outrageous practices of today. Attached to counsel's affidavit are the "pitches" of just a few of the organizations in this few decades' old sex-abuse industry of which the defendants here are a part.  By 1991, Salt updated his report -- a "parenting" assessment -- and submitted it to the court in January 1992. Again Salt recommended that Linnehan be denied visitation with his son [CS 1/5/92 report at 16]. The court accepted Salt's recommendation. Of the 60 court investigations that Salt had performed in two-and a-half years [id. at 8], he found abuse in all but three [id. at 10] and all were done for the Bristol County Juvenile Court "except for one or two" [id. at 8].  The complaints cited by Salt were communicated to Salt not by Brenden but by Robyn (who years later also falsely accused her then-husband of child sexual abuse). Salt irrationally accepted as truth Robyn's assertion that Brenden at 6 years of age believed that his therapist (Ferreira) conspired with Linnehan so that Linnehan could take him to his house.8 8 Salt found that Michael was important to Brenden. Not in Salt's 5 January 1992 report, however, is that Robyn and Michael Sylvia had been separated in 1991 because their marital relationship was stormy and the home environment damaging to all the children [Robyn's affidavit, paragraph 8, and Michael Sylvia's affidavit, unnumbered paragraphs on pages 1-3]. The two affidavits were filed in Bristol County Probate & Family Court Docket No. 94D-1058-D1, Robyn Gerry-Sylvia v. Michael R. Sylvia. The divorce, filed on 28 June 1994, is still active and pending.  Specifically Salt himself lied in that report of 5 January 1992 to Judge Harper: he wrote that Reuben Ferreira acknowledged that Brenden's visiting Linnehan "might well be detrimental." Salt's statement was false because Salt never spoke to Ferreira, and Ferreira was in favor of visitation.  Also in 1992, Susan DesRosiers, case manager of Linnehan's case at New Bedford Child & Family Services wrote, "Dr. Chase feels it is now appropriate for Mr. Linnehan to have supervised visits" and "Dr. Ferreira recommended supervised visits resume." Dr. Kevin Chase is the executive director of Gosnold/Thorne Counseling Center in Falmouth, Mass. The court did not listen.  A third assessment was suggested by Attorney Deborah Wolf (Brenden's attorney). Linnehan was against it because Brenden had already been interviewed an excessive number of times. Eventually be was Shanghai-ed into signing a stipulation of agreement with the proviso that it would be a "psychological evaluation" of both Robyn and Linnehan and that Brenden would not be re-interviewed. It was to be conducted by Newberger. It was then February 1992. The report issued on 8 September 1992, not May 1992 as Newberger and the hospital alleged on page 2 of their briefs.9 Linnehan was upset when Newberger's focus was on Brenden rather than on the reasonable goal of bringing father and son together again.10  By the time Newberger saw Brenden, it is likely that the child's memory had been irreversibly contaminated.  9 Newberger 11 May 1992 letter to the child's attorney (Wolf) was a preliminary 1-page report in which he wrote that Linnehan was not to see the child.  10 The Children's Hospital Newberger team consisted of a licensed psychologist, (Merrill Berger), a post-doctoral psychology fellow (Maureen O'Brien) and Newberger.  Significantly, Newberger's team not only went beyond the scope of their authority, but did not perform the evaluation they were asked to conduct.11 11Mid-page 5 of the hospital's brief and Newberger's brief, they admitted that they knew that its report would be used in court. That admission of foreseeability evidences that the defendants knew their acts would deprive Linnehan of his fundamental clearly established constitutional rights. State-conferred immunity does not protect them for their unlawful actions.  Camilo-Robles v. Hoyos, 151 F.3d 1, 10 (1st Cir. (Puerto Rico) 1998) (Selya, J.).  In 1993, when still another chapter 119, sec. 26, review and redetermination sought by Linnehan was dismissed, stipulations were entered into regarding updates Linnehan was to be provided by mother about the child's health and welfare, school report cards, school papers, photos, and a short narrative of his interests.12 12 McCarthy was referred to as a court-appointed evaluator, but there is NO reference of appointment of McCarthy. He is listed as one of the possible people to be chosen as evaluator.  Mother did not comply. Also in 1993, Defendant Jack McCarthy was chosen from a list of possible people as the next evaluator by Eileen Kern's employer's lawyer Attorney Sobral). McCarthy sent one report-type letter on 28 March 1994 to the child's attorney, not to court. In August he sent a letter to mom's attorney. McCarthy continued to communicate only with the mother's and the child's attorney and never with Linnehan's counsel. McCarthy did not bother meet with Linnehan's counsel until 26 January 1995.  McCarthy again relied solely upon the report by Newberger and Children's Hospital.  Coupled with the incessant secrecy by the defendants, the pain of not seeing his son, the stress of hurdle-jumping, and the ongoing illnesses gnawed at him and altered his judgment for years. His custody case became so labyrinthine that six lawyers were unable to unravel what was happening: reports by countless biased persons were peppering the Juvenile Court docket, and decisions emanating from Juvenile Court were yet being entered into the Probate & Family Court docket through 1995 in Linnehan's case.  The record shows that some of Linnehan's lawyers took his case in for periodic reviews and redetermination pursuant to M.G.L. c. 119 sec. 26, rather than appealing adverse, baseless decisions; some attempted to get the case heard in Probate & Family Court; and another accepted money for an appeal and then left to practice in another state. Whichever way they went, they were stymied.  Linnehan, of course, had no understanding of the complicated legal maneuvering and was advised to comply with whatever advise was given him by officers of the court or whatever order issued from whichever court. Remarkably, he never gave up trying to see his son . . . which has brought him to his seventh lawyer, who upon having been met with more systemic games in the probate and family court by a judge who had already been publicly censured for exalting personal friendship over justice -- and who is a member in APSAC, of which Eli Newberger is one of the leaders -- decided to bring the instant case.  Too, Linnehan parents began their "grandparents" case in 1992 (No. 92D-1660-GP1). It needed in March 1999, when his enneagena rian's parents were denied visitation with their grandson Brenden. That event triggered Linnehan's complaint about Newberger to the Board of Registration of Medicine. On 12 October 1999, Newberger responded to that complaint. Linnehan replied. That reply, which contains both Newberger's response and Linnehan's reply, dated 29 February 2000, is attached hereto this opposition as Exh. A. The contents thereof are incorporated and referenced as if set forth herein.  He had knowledge that he and his son were being harmed, but he never had sufficient notice of what the cause of the harm was, nor who was causing it. The players changed so rapidly and frequently that the effect of the input of each of them was impos sible to assess.13 The only thing which was recognizable was the accumulative effect of the successive reports and opinions.  13 He had not met some of these people. Nor had he been given an opportunity to confront them. To this day, he has never seen any evidence of the basis or bases of these reports: no therapy notes, no progress/process notes.  Linnehan tried repeatedly to no avail to get visitation, if not custody, and at no time before being deprived of his parental rights and due process was Linnehan afforded by either court an evidentiary hearing, where he could have had an opportunity to confront his accusers or to test the alleged evidence against him.  With the exception of two supervised visits when the child was five, Linnehan has not seen his child since 1988, when the child was three-years-old. The child is now 16.  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 the hospital and Newberger knowingly violated Linnehan's clearly established rights--deprivation of constitutional due process and deprivation of parental rights14--the hospital and Newberger do not have absolute quasijudicial immunity.  ~ NOTE ~ The hospital and Newberger do not dispute or controvert  that Linnehan's clearly established rights have been  interfered with or that he was deprived of them. The hospital does not distinguish itself from its employees.  It contends (a) that its agents, servants, and/or employees prepared their reports "in furtherance of the adjudication of a pend 14 Counts 2 and 4, interference with parental rights, and violation of 42 U.S.C. 1983, respectively.ing case before the Court" and are entitled to immunity \15/ and (b) that, therefore, because they are one and the same, the hospital, too, is entitled to immunity. In such circumstances, it must be concluded (c) that the hospital has waived (i) any conceivable argument that respondeat superior is not available in section 1983 cases and (ii) that the hospital's duties and the standards by which to measure the hospital's performance are different than those used to measure performance of the individual doctors.  15 Newberger, too, contends that because he was involved in and prepared the Linnehan report "in furtherance of the adjudication of a pending case before the Court," he is entitled to immunity. That contention must fail.  Newberger, too, 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.  For instance, the hospital refers to itself as "him" (likely meaning Newberger) [see the last line on page 2 of its motion] and all its citations -- e.g., Cok, infra, and LaLonde, infra -- refer to the acts of natural citizens or humans, not institutions.  As a result, this court and Linnehan may conclude that the hospital is contending that respondeat superior is applicable to the instant case and that if its agents, servants, and/or employees are entitled to immunity, so is the hospital. Cok and LaLonde cases are but two examples of the cases which involve humans, not institutions: Cok v. Cosentino, 876 F.2d 1 (1st Cir. 1989), and LaLonde v. Eissner, 405 Mass. 207 (1989).  Eissner was a psychiatrist, not a hospital, and 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.  With that said, neither in Cok nor in LaLonde was the plain tiff denied, as was Linnehan, 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 Linnehan, an opportunity to rebut adverse or erroneous materials.  Neither in Cok nor in LaLonde did the plaintiff claim, as did Linnehan, 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 entitle one to absolute immunity, but Cok never reached the issue of whether absolute quasijudicial immunity was inappli cable when a defendant violated a plaintiff's clearly established constitutional rights. Neither did LaLonde. And here, Linnehan, under duress and intimidated, was coerced into stipulating to being evaluated by Newberger, but he never agreed to the child being re interviewed, for he had already been excessively interviewed.  "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, Children's Hospital's and Newberger's suggestions must fail also because of their own conduct: they knew that they were causing Linnehan 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 both Children's Hospital and Newberger of any immunity to which they 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 the hospital and Newberger without pointing out either the Robichaud disposition (which is unfavorable to the hospital and 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 537-538, 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 the hospital's and Newberger's acts not of the nature and quality that were intended to be shielded from liabi lity, the hospital and Newberger were not appointed by any court to Linnehan's case -- despite their averment that they were: there was a stipulation after Linnehan was once again intimidated, but there is no court reference, no record of appointment. The hospi tal and Newberger are also not shielded by absolute quasijudicial immunity because they caused Linnehan to be deprived of constitu tional, procedural due process both on its face and in practice.  The hospital and Newberger also knew that Linnehan 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 on the team's 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).  2. Where Linnehan's judgment was altered in some way, such altered judgment became the standard, and his cause of action did not accrue until he discovered not only the damage but who caused it.  Under Massachusetts law, the court applies a "discovery rule," under which the limitation period does not begin to run until the plaintiff has "(1) knowledge or sufficient notice that [he] was harmed and (2) knowledge or sufficient notice of what the cause of the harm was." Bowen v. Eli Lilly & Co., 408 Mass. 204, 557 N.E.2d 739, 742 (1990).  Armstrong v. Lamy, 938 F.Supp. 1018, 1038 (1996). "The statute of limitation starts to run `when an event or events have occurred that were reasonably likely to put the plaintiff on notice that someone may have caused her injury.'" Id., quoting Bowen, 557 N.E.2d at 741. But as the court in Kubrick, infra, stated, one must know who caused the harm in order to bring suit. That was Linnehan's problem, given the secrecy inherent in the policies of those natural and state entities involved in "Linnehan's" state cases.  Even at this writing, the details of the conduct of the defending players are unknown. Those details are in their process, or progress, notes. The licensed workers must maintain those to keep their licenses in active status. Whether or not the unlicensed Fyfe kept such notes is still not known. Whether Collis Center had a policy that all its employees, licensed or not, had to keep them is also not yet known.  Children's Hospital and Newberger, too, kept their activities secret from the accused. Upon receiving the referral, Newberger immediately sent a letter to the child's attorney saying that the child would be retraumatized were he to visit with his father. That he had not met the child yet and had heard essentially only rumor or hearsay to that point, such conduct was both humanly and legally malicious, reprehensibly malicious. From then on, letters to counsel opposing the accused was the modus operandi. Letters were never sent to the accuseds' counsel. Prejudgment was the or der of each day of the so-called evaluations.  These policies, some private and some public, kept the cause of Linnehan's injury opaque. SeeAttalah v. United States, 955 F.2d 776, 780 (1st Cir. 1992) (where cause and injury are not "immediately apparent," accrual does not occur until the reasonable diligent claimant could have discovered it).  Where Fyfe's conduct could have, in an ordinary reasonable person, caused injury which by its very nature prevented discovery of its cause, Linnehan's action cannot be said to have accrued when she left the scene. Then, when each of the others came and left the scene, Linnehan's action cannot be said to have accrued. Repeatedly Linnehan was subjected to an "experience" that injured him, but he could not sort out who it was who was causing the injury.16 16 Linnehan repeatedly sought reviews and redeterminations, pursuant to M.G.L. c. 119, went to the requested parenting class, went to therapists, did whatever was demanded of him. Then, instead of resolution, upon the scene would come still another worker -- a total of perhaps a dozen or more, from assorted "therapists" to Children's Hospital and Eli Newberger's team -- to further confuse and clutter the situation, leaving Linnehan in doubt as to who of them was causing him the injury. Was it the court or the workers or the system as a whole? The last blow was in 1999, when his enneagenarian parents were denied visitation with their grandchild before they passed. After that, he knew he had to "sue them all" to force the disclosure of the necessary information to determine "what" and "who" caused him to be deprived of his son.  Combined with chapter 119, section 26, which encourages going back to court every six months rather than appealing, the lack of a final judgment, the total absence of constitutional due process -- no evidentiary hearing, no confrontation -- from the incipiency of the charge, which is more like a birth by artificial insemination than by human action -- a secret whisper to DSS, which regurgitates it for a while before it unexpectedly files a care and protection case, the nature of which the accused generally has no idea about -- and suddenly the accused is told he cannot see or go near his child ever again.  Add to that shock the secrecy and presumption of guilt by everyone in the system, the serious loss of one's child is like a sudden death. Unprepared for it, the grief is real, overwhelming, and numbing. But unlike a real death, after which friends and family hover around and bring welcome support, the falsely accused in these cases face lonely devastation. Linnehan lost his voice, and experienced other symptoms.  Much to his credit, he became one-dimensional, consumed solely with getting back his son. As a civil servant, with limited funds and insurmountable legal debts, Linnehan kept knocking on doors for legal assistance -- the United Way, Legal Assistance, . . . -- which has taken him an enormous amount of time, but perhaps, he hopes and prays, not so much that he has also lost a chance to re-establish a positive and loving relationship with his child once again. SeeArmstrong, 938 F.Supp. at 1038-1039.  In particular, what and who caused the harm was not apparent because of the policies of the diverse entities -- DSS, the Collis Center, the independent contractors, Children's Hospital, Newberger, his team: they kept all documents and all the information in them secret, as well as the names of the people who allegedly supplied the information. Clearly these documents contained, for all intents and purposes, only the information Linnehan needed to be informed, to wit, of what he was being accused and who was doing the accusing.\17/  17 The irony is that in a criminal case, a defendant can access exculpatory evidence, but in a civil case, such evidence remains undisclosed to the party because the accusers hide behind arguably unconstitutional statutes and specious notions of privacy: typically, the person claiming privacy, such as a social worker, is not protecting his or her own private matters or those of anyone else, but only accusations of the accusing parent.  In [a] sec. 1983 action, "until the plaintiff is in possession of the 'critical facts that he has been hurt and who has inflicted the injury,' ... the statute of limitations does not commence to run."  Armstrong, at 1032, quotingLavellee v. Listi, 611 F.2d 1129, 1131 (5th Cir. 1980), citing United States v. Kubrick, 444 U.S. 111, 122, 100 S.Ct. 352, 359 (1979).  The standard in Massachusetts is the same: "The accrual of the cause of action occurs when the reasonable person who had been subject to the experience would have discovered that the injury was caused by that experience." Armstrong, at 1038-1039, quoting Riley v. Presnell, 409 Mass. 239, 565 N.E.2d 780, 786 (1991).  "[A]n injury to the mind could interfere with the discovery of the cause of action," and that a "reasonable fact finder ... could find that Riley did not make the causal link and that his failure to do so was reasonable" . . .  Riley, 565 N.E.2d at 786.  In a case not involving "repressed memory," accrual of the action does not occur until a "reasonable person who had been subject to the experience would have discovered that injury was caused by that experience." Riley, 565 N.E.2d at 786.  Armstrong, at 1039.  Although the case at bar is not a repressed memory case, it may as well have been. The result is the same: The defendants in tentionally kept Linnehan in the dark. No reports made by the defendants were given voluntarily to Linnehan and his counsel, al though they were shared with the mother's counsel and every other caseworker whether licensed or not. The court-appointed attorney for the child shared and shares information to this day with only the mother's attorney and the caseworkers of any stripe. The presumption of innocence was a constitutional right that belonged only to history; it was not operative while the two state cases were active. Fyfe's renegade report was evidently sealed. No evidentiary hearing was held by either of the two courts. No op portunity to rebut any adverse materials or to cross-examine any accusers or authors of the divers reports. Due process was only some vague concept lost to history.  The controlling question is whether a plaintiff's knowledge, actual or attributed, of both harm to it and the likely cause of such harm is sufficient to stimulate further inquiry which was likely to alert it to a cause of action against a defendant.  Hanson Housing Authority v. Dryvit System, Inc., 29 Mass.App.Ct. 440, 446 (1990).  "At that point, the plaintiff must itself undertake to investigate available sources of information, or suffer the consequences.  RohmTech, Inc. v. Taylor, 1997 WL 778669 at 8 (Mass.Sup.Ct. 1997), citing American Glue & Resin v. Air Products and Chem., 835 F.Supp. 36, 45 (D.Mass. 1993), and Friedman v. Jablonski. 371 Mass. 482, 486 (1976).  Given the intentional secrecy or withholding of information, and the arguably unconstitutional machinations of the two state courts, Linnehan could do nought but bring this case, to sue everyone in sight, all of whom shared the elusive information be tween themselves to the exclusion of Linnehan and all his counsel. Thus the statute cannot be anything but tolled.  Under the Massachusetts discovery rule, "The delayed knowledge may be either the fact of the injury ... or the cause of the injury." Cambridge Plating Co., Inc. v. Napco, Inc., 991 F.2d 21, 25 (1st Cir.1993).  Armstrong, at 1039.  Like the defendants in Armstrong, the defendants here "have not shown the absence of a genuine dispute of material fact as to whether a reasonable person who was subjected to the experience of [James Linnehan] would have discovered that injury was caused by [defendants'] conduct." Id.  For that reason, the statutes of limitations do not bar any of Linnehan's causes of action, whatever the limitations period.  3. Where Linnehan stated each element required for the causes of action in Counts 8, 9, and perhaps 12, the only counts for which the hospital and Newberger contend that Linnehan failed to state them, the hospital's and Newberger's motions as to those counts must fail.  ~ NOTE ~ Defendants Children's Hospital and Eli Newberger do not defend pursuant to Fed.R.Civ.P. Rule 12(b)(6) against Linnehan'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.18  While Linnehan's counsel has earlier admitted she should have brought the conspiracy 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 Profes sional Society on the Abuse of Children ["APSAC"], on 30 November 1995, which both demonstrates the unanimity and conspiracy of ac tion 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.  18 This count possibly should have been brought as "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; (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.  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:  . . . 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 sig nificant 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.  Linnehan opts for the "monetary inactive" 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 Herman and Ken Herman). All stalwart, unflinching, obsessed leaders who see child sexual abuse everywhere, even where it isn't.  In furtherance of their object, Children's Hospital and Newberger participated with other defendants in two or more predicate acts against Linnehan. 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 Linnehan 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 and Children's Hospital, a finding of sexual abuse has meant more court appointments and referrals by other local-area so-called "health-care" workers, who, in turn, recom mend counseling or the continuation of counseling by their respective agencies for the children, counseling for the parents, bat terer 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 Children's Hospital and Newberger are a part: they get referrals, get paid by both public and private health insurers, parents, and recommend to those who refer to the hospital and Newberger 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 Linnehan's underlying case.  Linnehan 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 child, and he suffered damages that are a direct result of those acts.  As to Count 9: Breach of Contract. Linnehan signed papers at the hospital. Consideration was his signing, his promise to par ticipate in the proposed evaluation, and his payment of the bills either directly or by his insurer. 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 and Newberger 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 enforce able pursuant to a `traditional contract theory' antedating the modern doctrine of consideration."  Loranger Constr. Corp. v. E.Of Hauserman Co., 376 Mass. 757, 761 (1978).  Linnehan relied to his detriment. "[A]n action must prove all the necessary elements of a contract other than consideration."  Rhode Island, supra at 850.  Linnehan 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, Linnehan 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 her self relied on it." Leary at 7. Linnehan relied to his detriment on the professional reputation of the hospital.  The hospital and Newberger breached the bargain not only by performing insufficiently and incompetently but also by not per forming its duties at all, by ignoring and misinterpreting what was told them, by performing no follow-up -- 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. Linnehan challenged the sufficiency of the hospital's performance 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 con cede 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 has been less costly for those defendants who might prevail on their motions. They have not had to spend time in replying to letters which they clearly would have thought nui sance 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 Linnehan prays that Children's Hospital's and Newberger's Motions to Dismiss be DENIED.

Respectfully submitted,                                           PLAINTIFFS,                                           By their attorney, 12 February 2001                     BarbaraC.Johnson                                           Barbara C. Johnson, Esq.                                           6 Appletree Lane                                           Andover, MA 01810-4102                                           978-474-0833     CERTIFICATE OF SERVICE