WILLIAM R. BABER
ATTORNEY AT LAW

August 9, 1999

Re: Nolan-Dissell v. County of Mono. Plaintiff's Early Neutral Evaluation Statement

Dear Professor Landsberg:

Plaintiff submits the following Early Neutral Evaluation Statement.

1. Brief Statement of the Facts:
   1. Summary of the Case:

      The jury will be asked to assess the liability and damages to be assigned to three Child Protective Services workers who took a 5 year old medically fragile boy into their custody, with the knowledge of the child's special medical needs, and discontinued or altered the child's medical care. thereby causing the child to die.

   2. Trevor Nolan; a medically fragile 5 year old boy.

      Trevor Nolan (age 5) died on April 12, 1997, while under the "care, custody, and control" of Mono County. This case focuses on the acts and omissions of the Defendants that caused this tragic death. The story unfolds between March 20th and April 12th, 1997.

      Trevor was a child with special medical needs. He was born with Glycogen Storage Disease Type 1B ("GSD-1B"). This is a metabolic disease which can be treated and controlled but not cured. The condition causes problems in maintaining his blood sugar level stable and in fighting infection (neutropenia). It requires strict management of his diet and a variety of interventions on a 24 hour basis in order to maintain his health.

      Trevor's GSD1-B presented three major medical problems that had to be carefully monitored and managed. If Trevor's caretakers were negligent in any one of these three, it could lead to his death.

      (1) Neutropenia - Trevor was at serious risk if he encountered an infection, even from common sources -- skinned knees, paper cuts, common colds, etc.

      (2) Diet - Trevor could not eat "normal kid food". His GSD1-B did not allow him to eat fructose, sucrose, and very little (if any) lactose. Trevor was at serious risk if he consumed food that contained these sugars.

      (3) Hypoglycemia - Trevor's blood sugar level had to be monitored and managed carefully. During the day this could be done through feeding him corn starch through an NG tube or orally and at night he was hooked up to a system that allowed him to be fed a special formula via a drip method through his NG tube.

      Experts agree that a GSD1-B child can live a relatively normal lifespan if this disease is properly managed. Plaintiff will be presenting a 30 old nurse who has GSD1-B, and a UCSD pediatric metabolic specialist to discuss this subject.

      Trevor's mother, Plaintiff Dale Cindy Nolan-Dissell ("Dale") was very competent in the multiple interventions that Trevor needed through the day. She had been trained in the management of Trevor's condition. Trevor's physicians were confident in Dale's ability to manage Trevor's care. The county's own physician referred to her as "the most competent " person to care for Trevor. the State paid Dale to provide In-Home Supportive Services (IHSS) to Trevor because he was a "disabled child". The County knew of Dale's qualifications because they administered the State IHSS payments to her.

   3. March 20th: Trevor Removed from his Mother's Care.

      On March 20th, Dale and Trevor's father Edward Nolan ("Edward"), were in the process of completing their divorce proceedings. This involved a contentious custody fight over Trevor and his six year old brother Wade. Dale had been awarded physical custody of Trevor and Wade. She planned to move the boys closer to a major hospital. Edward strongly opposed this move.

      Edward was bitter towards Dale and he wanted custody of the boys. Edward's father ("Terry" Nolan) appears to have stepped in to help by "motivating" a local sheriff's deputy ("John Daniels") to "arrest" her on Thursday evening, March 20th. The charges were the alleged theft (approximately six months earlier) of some gold and silver coins from an elderly friend of the family.

      footnote: This claim was never proven. Dale produced the silver coins and explained that they were gifts from the elderly gentleman (Mr. Rockel) because she had been a caretaker for Mr. Rockel and his wife. Mr. Rockel did not dispute this. This hornet's nest was originally stirred by Edward who assumed Dale had stolen the coins. He reported this alleged theft to the sheriff's department. The gold coins may have been lost or misplaced by Mr. Rockel. The charges were ultimately dropped when Dale agreed to take a lie-detector test. This test was inconclusive. Mr. Rockel has since died.

      Edward, Terry, and Daniels anticipated that they could "break" Dale if she spent Thursday through Monday in jail and this would cause her to "leave town" and forfeit her custody claim to the boys. Furthermore, they planned to use this arrest to persuade CPS to "remove" the boys from Dale and to place them with Edward pending the outcome of juvenile dependency proceedings.

      However, for CPS to legally "remove" a child in this manner, without a Court Order, the children must be in some form of imminent danger. There were no Court Order and there was no imminent danger. Instead of spending the weekend in jail, Dale was bailed out after three hours and returned to her home that night. However, Edward, Daniels, and CPS refused to return the boys to her.

      In hindsight, the CPS workers claim the "danger" was that Dale was to be jailed for several days. However, these workers know (or reasonably should have known) that Dale was released on bail that evening. The CPS worker in charge admitted that Trevor was not in physical danger while he was under his mother's care. Regardless, CPS filed a juvenile dependence petition the next day and recommended that the boys stay in Edward's custody pending the outcome.

   4. March 21st: Trevor's First Medical Crisis.

      However, Edward was incapable of caring for Trevor's medical needs, and within 30 hours of Edwards "care", Trevor became critically ill. Trevor was rushed to a Reno hospital on the evening of March 21st. Not only was Trevor in crisis, but so was Edward. Edward was so mentally unstable that he attempted suicide while at the hospital. Fortunately, the Reno police were able to subdue him and he was taken into custody for a mental evaluation.

      Presumably embarrassed by its role in this episode, CPS amended the petition on March 24th, to ask that the boys be removed from Edward's care as well.

      Trevor spent the next week in the hospital recovering from the effects of this "first crisis".

   5. March 29th: Trevor placed with Geheb

      Trevor was released from the hospital in the afternoon of March 28th. CPS, tacitly acknowledging Dale's ability to care for Trevor, allowed Dale to take Trevor home from the hospital and to care for him the evening of the 28th and the morning of the 29th. CPS admitted that Trevor was not in danger while he was in Dale's care.

      CPS, was faced with a dilemma. The original plan to have Edward take the boys was a failure. They did not want to return the boys to Dale because that would have been seen as an admission of liability for the illegal "removal" of the 20th. Instead they scrambled for a short term solution and found Jenny Geheb. She was a twice married, twenty-four year old, former teacher's aid at the local kindergarten. From September to December 1996, she was assigned to Trevor while he was in kindergarten class. In that role she learned to feed Trevor his corn starch and test his blood sugar with the help of Dale. In so doing, she was able to monitor one of Trevor's three medical problems. She was never trained in monitoring the other two problems - the risk of infection and the risk associated with fructose, sucrose, and lactose.

      On March 28th, the Superior Court placed "care, custody and control" of the boys with CPS "for suitable placement". CPS chose to place the boys with Geheb even though it knew she was not a licensed foster parent. This was in direct violation of the County's state approved plan requiring these medically fragile children to be placed in: "licensed" homes where foster parents have been trained to provide specialized in-home health care to foster children. Instead, CPS tried to cover up this problem by issuing Geheb a "pre-license" certification". However, her license application was never completed and never approved. On March 29th, the County officially "placed" Trevor and his brother with Geheb.

      Geheb was not capable of caring for a medically fragile child. She did not understand the scope of Trevor's GSD1-B condition. She changed his medical regime and his diet. She was grossly unaware of his unique risk of infection. Geheb, with CPS approval, hired an untrained babysitter to watch Trevor while she was at work. The babysitter fed Trevor "normal kid food" instead of Trevor's special diet. Geheb failed to adequately monitor and manage his blood sugar level. CPS know Geheb was not prepared for this task.

      CPS failed to adequately prepare Geheb for this assignment. Although she had some experience with Trevor's blood sugar monitoring and corn starch feeding, she was not trained in monitoring or managing his neutropenia or his diet. CPS did not interview Trevor's primary pediatricians or any experts in GSD1-B. CPS did not provide Geheb with Trevor's medical records or history. (CPS did not even seek to obtain these records until after Trevor was dead). CPS did not prepare an individual medical case plan for Trevor's care.

      CPS did not tell Geheb about Trevor's doctor's appointment on April 4th with his primary pediatrician. Trevor did not make this appointment. Trevor was never seen by a GSD1-B specialist during the time he was under the "care" of CPS.

   6. April 7th - 9th: Trevor's Decline

      Dale complained to the County that Geheb was not properly monitoring or managing Trevor's health. By April 7th, Trevor's health had become critically at risk. By April 9th, his conditioned had worsened. Dale had supervised visits with Trevor on these two days. She saw his condition deteriorating. She asked the CPS for permission to care for his medical needs, but CPS refused. As explained more fully below, they were not knowledgeable enough concerning GSD1-B to trust Dale's judgment in this matter. This proved to be a fatal error.

      Geheb, still oblivious to Trevor's weakened state, sent him to school the next day. The school asked the baby-sitter to pick him up because he was vomiting and running a fever. By April 11th Trevor was back in the hospital in critical condition.

   7. April 12th: Trevor dies

      Trevor died the morning of April 12, 1997, after suffering from a cardiac arrest. The autopsy showed that his body was overwhelmed by infection. The most likely cause of the heart attack was septic shock brought on by this infection.

      Neither CPS nor Geheb understood Trevor's neutropenia, therefore when the early warning signs of the infection occurred on April 7th and April 9th, they were oblivious to their importance. Furthermore, Trevor's new diet of fructose, sucrose, and lactose system disrupted the functioning of his major body systems. The "normal kid food" they fed him ultimately was a cause of his death.

      Furthermore, even in Geheb knew how to "test his blood sugar" and "feed him cornstarch", those skills were useless unless they were deployed in harmony with an understanding of his neutropenia and dietary needs. CPS and Geheb's approach was so simplistic, that it becomes outlandish. It was as if they claimed they could repair your engine because they knew how to change your oil.

   8. The Subtext of Distrust

      How did this happen? Why did CPS ignore the advice of the person "most qualified' to monitor and manage Trevor's medical care. Edward, Weitz, Berg, and Jennings all believed that Dale was an obsessive mother whose constant "care" for Trevor was the cause of his problems. They firmly believed that if they removed Trevor from his mother and altered his care, he would improve and be like a "normal boy". They put their scheme into place and within 23 days they were proved wrong - dead wrong.

      This mistrust was fueled by Geheb's inexperience and her apparent dislike for Dale. In December of 1996, Geheb wrote to CPS and theorized that Dale had intentionally caused a blood sugar problem for Trevor at school. This theory was picked up on by Cynthia Stout, a marriage and family counselor involved in the family court dispute. (Geheb's statements were supplied to Stout by Edward's divorce attorney during the custody fight). Stout apparently considered Geheb's statements and then suggested that, if true, there was a "possibility" that Dale could be suffering from "Munchausen by Proxy Syndrome" (MBPS). Adherents to this controversial theory believe parents will cause their children intentional harm to meet their own ego needs of importance. To her credit, Stout told CPS that she "did not want to be quoted on this subject" and never conclusively determined that Dale suffered from MBPS. However, the mere introduction of this theory to this emotionally charged situation was like throwing a match on to a pool of gasoline.

      CPS decided to convert this "possibility" into law. CPS reviewed a generic memo by a UCLA psychologist who had never met Dale or Trevor. Based on this memo, CPS decided to institute restrictions on Dale's contact with Trevor during her visits. For example, CPS refused to let Dale feed him or to test his blood sugar during her visits. She could not be alone with him or even take him to the bathroom. She could not provide him any medical care. Dale was prevented from caring for her dying son. These prohibitions became known as "the Rules". If she violated "the Rules", her visitation privileges would be revoked. (Note: "the Rules" were created whole cloth by CPS without any Court approval).

   9. Procedural History

      The original complaint was filed in January of 1998. The first-Amended Complaint was filed on June 1, 1998. Defendants subsequently filed a motion to dismiss. The Court ruled on that motion on November 1, 1998, and narrowed the claims. Both sides have nearly completed discovery. Experts have been designated. Trial is set for April of 2000.

      Dale originally filed a claim against Geheb; but that claim was settled for $125,000.00. Dale also filed a claim against Edward; and that claim was settled for a confidential amount.

      Believing the value of the case to be between $1 million to $5 million, Dale has made a policy limits demand to settle the case. We have been advised that the County's insurance policy limits are $1 million.

2. Pertinent Principles of Law

   Listed below are Dale's claims against the Defendants and the key elements of each claim.

   1. Wrongful Death (State Claim)
      • CPS employee owed Trevor a duty of due care in the actual delivery of "child welfare services" incident to Trevor's placement (3)
      • CPS employee breached this duty
      • This breach of duty caused Trevor's death
      • Trevor's death caused Dale pecuniary or compensable loss.
      • The CPS employee acted within the scope of his/her County employment.
   2. Negligent Infliction of Emotional Distress (State Claim)

      (The elements described above plus the following).

      • CPS employee's negligence inflicted an injury on Trevor.
      • Dale was present at the scene of the injury producing event when it occurred.
      • Dale was aware that the injury producing event was causing injury to Trevor.
      • Dale (as a result of above) suffered serious emotional distress.
   3. Intentional Infliction of Emotional Distress (State Claim)

      (Most of the elements described above plus the following)

      • CPS employee committed outrageous conduct
      • CPS employee had a reckless disregard of the probability of causing emotional distress.
   4. Sec. 1983 Civil Rights Violation (Federal Claim)

      (As to Claims against the individual CPS employees)

      • CPS employee acted under color of state law when (1) CPS improperly removed Trevor from Dale on March 20th, and/or (2) it failed to protect Trevor or provide him with adequate care while in custody and/or (2) it created and enforced "the Rules".
      • This conduct deprived Dale of a right secured by the constitution or by a federal statute.
      • This conduct caused Dale damages either
        • Compensatory damages for injuries caused by the violation of her federal rights, plus attorneys fees. or
        • Nominal damages without proof of injury, plus attorney fees and
        • Punitive damages (against the employee) if the employee acted maliciously

      (As to claims against the County itself). The analysis is basically the same as above, except Dale must show that the County itself acted under color of state law by providing one of the following.

      • Mono county had an official custom, policy, or practice to delegate critical medical decisions to its social workers even though these social workers (1) were not properly trained or (2) were not properly supervised to insure that they were reasonably medically competent to make life and death decisions for medically fragile children.
      • Mono County's training and/or supervision program was inadequate because it did not prepare the employees to properly respond to the normal and repeated incidents they encounter in their work).
      • Mono County's failure to adequately train and/or adequately supervise its employees it the result of that government's deliberate indifference to constitutional rights.
      • The CPS Rules prohibiting Dale from caring for or feeding Trevor were an official policy of the County because one of the defendants had final policy making authority.
3. Significant Legal and Factual Issues in Dispute

   Listed below are the significant factual and legal issues in dispute in this case. Dale and her attorneys will respond to each of these issues at the early neutral evaluation session.

   1. Fact Issues
      1. Was each CPS employee negligent regarding Trevor's care? In other words, did CPS breach its duty of care owed to Trevor?
         • Did CPS breach its general duty owed to a person under its care, custody or control? In other words, did CPS breach its duty owed under a "special relationship"?
         • Did CPS breach its statutory duties to Trevor and Dale by failing to comply with the state DSS Regs and the County's own state approved plans? In other words, did CPS breach its "mandatory duties" when it:

           Failed to obtain Trevor's medical records	(DSS Reg 31-405,1(k))
           Failed to provide Geheb a medical plan for Trevor	(22 CCR § 87068.2(c))
           Failed to place him in a licensed foster home	(22 CCR § 87007.1(a))
           Failed to have him treated by a qualified physician	(DSS Reg 31-405.1(g))
           Failed to interview his prior physicians	(DSS Reg 31-335.3)
           Failed to learn of his scheduled physician exams	(DSS Reg 31-205.18)
           Failed to insure Geheb was properly trained	(W&I § 17731(c)(4))
           Failed to prevent Geheb's change of Trevor's diet	(DSS Reg 31-410.53)
           Failed to continue Trevor's IHSS Care	(W&I § 12302)
           Failed to prevent the use of an untrained bybysitter	(22 CCR § 87065)
           Failed to monitor his health status	(DSS Reg 31-405.1(3))

      2. Was this negligence the cause of Trevor's death?

         The Jury will learn that Trevor was relatively stable for the 5+ years spent under his mother's care, but within two weeks of being placed under CPS "care" he is dead. This speaks for itself.

         Furthermore, we anticipate that Dale's pediatric metabolic expert will show the causal connection between CPS ignoring the warning signs in a neutropenic child and the "overwhelming" sepsis that caused Trevor's cardiac arrest. Furthermore, we anticipate he will show three other facts that contributed to his death; the change in Trevor's diet, the blood sugar instability, and the psychological harm of removing him from his mother. These four strands, all directly arising from CPS negligence, will be woven together to explain the cause of Trevor's death.

      3. Was this conduct "reckless disregard" for Dale's rights and Trevor's safety?
      4. Was there an "emergency" that justified removing Trevor from Dale on March 20th?
      5. Was the CPS employees training and/or supervision adequate?
   2. Immunity Issues
      1. Is this like the Scott case because there is no state immunity for negligent conduct performed in the "actual delivery of child welfare services"?
      2. Do Defendants enjoy state discretionary immunity for creating and enforcing "the Rules"? In Johnson v. State of California, 69 Cal. 2d 782 (1968), the California Supreme Court held that this type of discretionary immunity applies only with respect to those "basic policy decisions" which have been committed to coordinate branches of government, and does not immunize government entities from liability for subsequent ministerial actions taken in the implementation of those basic policy decisions (Id., at pp. 793-797).
      3. In order to claim federal immunity for creating and enforcing "the Rules", the Defendants must prove their conduct was "reasonable". (Order at 16:12). Was it reasonable to prevent Dale from caring for her son based upon a theory of a counselor "who did not want to be quoted" and a memo by a psychologist who had never met Trevor or Dale?
      4. Judge Burrell has already ruled that there is no absolute federal immunity for "removing" Trevor on March 20th prior to the filing of the Petition. (Order at 14:21). This leaves open a potential qualified immunity only if Defendants can show there was an "emergency" on March 20th.
      5. Is there any federal immunity that protects CPS workers who negligently care for a medically fragile child in their care custody and control?