KATHRYN COLLARD, #0697
THE LAW FIRM OF KATHRYN COLLARD, L.C.
4265 South 1400 East, Suite A
Salt Lake City, UT 84124
Tel: (801) 277-2277
Facsimile: (801) 277-2557
ROBERT D. STRIEPER, #10145
STRIEPER LAW FIRM
2366 Logan Way
Salt Lake City, UT 84108-2737
Tel: (801) 631-64211
MACON COWLES, #6790 (Colorado)
EASON RHODE, LLC.
1129 Cherokee
Denver, CO 80204
Tel: (303) 381-3406
Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
ABBY TISCARENO and GUILLERMO
TISCARENO,
Plaintiffs,
v.
LORI FRASIER, in her individual capacity;;
IHC HEALTH SERVICES, INC., in its
individual capacity; WILLIAM BEERMAN, in
his individual capacity; JOHN and JANE DOES
1-20, in their individual capacities,
Defendants.
PLAINTIFFS SECOND
AMENDED COMPLAINT
AND JURY DEMAND
Case No. 2:07-cv-336
Judge Clark Waddoups
Magistrate Judge Dustin B. Pead
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TABLE OF CONTENTS
TABLE OF CONTENTS ................................................................................................................. i
I. JURISDICTION AND VENUE ..............................................................................2
II. COMPLAINT TO BE READ AS AN INTEGRATED DOCUMENT ...................2
III. THE RELEVANT TIME PERIOD .........................................................................2
IV. PLAINTIFFS ...........................................................................................................2
V. DEFENDANTS .......................................................................................................3
A. Defendant Lori Frasier .............................................................................................3
B. Defendant Intermountain Health Care .....................................................................5
C. Defendant William Beerman ...................................................................................6
E. Defendants John And Jane Does 1-20 .....................................................................8
VI. INTENT OF DEFENDANTS ..................................................................................8
VII. DEFENDANTS ACTED UNDER COLOR OF STATE LAW ..............................9
A. The States Exercised Their Compelling Parens Patriae Interest in
Protecting Children By Adopting A Multidisciplinary Approach To The
Reporting, Investigation and Prosecution of Child Abuse.......................................9
B. The State of Utah Assumed Duties For The Reporting, Investigation and
Prosecution of Child Abuse and Delegated These Duties To State
Agencies DHS/DCFS and State Law Enforcement Agencies Under State
Statutes And Regulations .......................................................................................10
C. Utah Adopts A Multidisciplinary Team Approach Encouraging The
Cooperation of State Social Services and Law Enforcement Agencies In
The Reporting, Investigation and Prosecution of Child Abuse .............................11
D. The State of Utah Contracts with Defendant IHC to Assist the State in Its
Public Functions Of Reporting, Investigating And Prosecuting Child
Abuse Cases Using An MDT Approach ................................................................13
E. DHS/DCFS Require IHC To Provide Staff Training And Reserve The
Right to Monitor IHCs Performance And Provide Training to Improve
IHCs Performance of Contract Services ...............................................................14
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Tiscareno v. Frasier, et al., Second Amended Complaint Page ii
F. DHS/DCFS Allows Defendant IHC To Subcontract Performance Of
Services Under The State Contract ........................................................................15
G. DHS/DCFS Exempts Defendant IHC, As A Sole Provider, From State
Bidding Process .....................................................................................................15
H. DHS/DCFS Requires IHC to Comply With All Applicable Federal and
State Laws, Including DHS/DCFS Provider Code of Conduct, In
Providing Contract Services In The Reporting, Investigation And
Prosecution of Child Abuse Cases .........................................................................15
I. DHS/DCFS Pays State Funds To IHC For Contract Services And Passes
Federal Funds Through to CSHF ...........................................................................18
J. The State Contract Imposed Special Record Keeping Requirements on
IHC Regarding Records of Minors Such as N.M. .................................................18
K. DHS and DCFS Have A Non-Exclusive Ownership Interest And Ready
Access To Records Relating To Contract Services Provided By IHC And
Its Staff, Including Defendants Frasier And Beerman ...........................................18
L. Defendant IHC Has The Duty To Inform DHS/DCFS Of The Request For
N.M.s Records From Any Entity Other Than DHS or DCFS ..............................19
M. DHS/DCFS Has The Right To Participate In Any Suit Against Defendant
IHC .........................................................................................................................19
N. Defendants IHC, Frasier and Beerman Performed Public Functions Under
The State Contract..................................................................................................20
O. Defendants Federal Constitutional Duty to Disclose Exculpatory
Evidence .................................................................................................................20
VIII. GENERAL ALLEGATIONS REGARDING DEFENDANTS
CONDUCT IN THE CASE OF N.M. ...................................................................21
A. Abby Tiscareno Finds N.M. In Distress ................................................................21
B. N.M. Is Admitted To PCMC .................................................................................22
C. Dr. Walker Sends Specimen of N.M.s Hematoma for Pathology
Examination ...........................................................................................................23
D. Dr. Pysher Performs Pathology Examination of N.M.s Hematoma .....................25
E. Pathology Report w/ Concurring Report of Dr. Townsend Sent to Dr.
Walker, Dr. Reading and Medical Records Department .......................................26
F. DCFS, IHC and Summit County Detectives Conduct Multi-Disciplinary
Team Investigation of Suspected Abuse of N.M. ..................................................27
G. Defendant Frasier Enters The Case........................................................................29
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Tiscareno v. Frasier, et al., Second Amended Complaint Page iii
H. Defendant Frasier Interviews James Molineux......................................................32
I. Defendant Frasier Forms A Conclusion ...............................................................33
J. Defendant Frasier Discusses N.M.s Case with Dr. Walker ..................................35
K. Defendant Frasier Informs Detectives N.M. Could Only Have Only Been
Injured While in Abby Tiscarenos Care, While Withholding And
Concealing Exculpatory Pathology Evidence ........................................................37
L. Based on Defendant Frasiers Representations Regarding the Timing of
N.M.s Injury, Detectives Focused Their Investigation On Abby Tiscareno ........38
M. Defendant Frasier Continues To Encourage The Prosecution Of Abby
Tiscareno ................................................................................................................41
N. Defendant Frasier Views Surgical Records Showing Specimen of N.M.s
Hematoma Submitted for Pathology Examination ................................................45
O. Defendant Frasier Fails To Obtain Pathology Report or Discuss Its
Findings..................................................................................................................45
P. DCFS Returns N.M. And His Brother To Fathers Custody Based On
Frasiers Representations That Abby Tiscareno Caused N.M.s Injury ................46
Q. Based On Defendant Frasiers Time Line Eliminating All Other Suspects,
Summit County Arrests And Charges Abby Tiscareno with Felony Child
Abuse of N.M.........................................................................................................46
R. DCFS Revokes Abby Tiscarenos License To Operate Day Care ........................48
S. Detective Dorman Contacts Defendant Frasier Again To Confirm That
N.M. Could Only Have Been Injured In While In Abby Tiscarenos Care...........48
T. Abby Tiscarenos Attorney Requests Discovery Documents For Her
Defense And Prosecutor Brickey Responds ..........................................................49
U. Prosecutor Brickey Formally Requests Complete Records of N.M. from
Defendants IHC, Beerman And Frasier .................................................................51
V. Defendants Frasier, IHC and Beerman Violate Their Duties To Produce
Exculpatory Medical Records of N.M. To Prosecutor Brickey .............................52
W. Abby Tiscareno Deprived Of Exculpatory Evidence At The Preliminary
Hearing ...................................................................................................................55
X. Prosecutor Brickey Continues To Provide Discovery Documents To
Attorney Xaiz And Works With Defendant Frasier To Prosecute Abby
Tiscareno ................................................................................................................57
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Tiscareno v. Frasier, et al., Second Amended Complaint Page iv
Y. Defendant Frasier Writes Journal Article About N.M. Omitting Evidence
Contrary To Her Conclusions Regarding The Timing And Perpetrator Of
N.M.s Injuries .......................................................................................................58
Z. Prosecutor David Brickey Attempts To Obtain N.M.s Complete
Medical Records For Disclosure to Abby Tiscarenos Defense Attorney .............58
AA. Frasier Fails To Disclose Exculpatory Pathology Evidence To Prosecutor
Brickey During Trial Preparation ..........................................................................61
BB. The First Trial of Abby Tiscareno Without Exculpatory Pathology
Evidence Results In Wrongful Conviction ............................................................62
CC. N.M.s Parents File Damage Action Against Abby Tiscareno And Her
New Attorneys Discover Exculpatory The Exculpatory Pathology
Evidence .................................................................................................................65
DD. The Second Trial Of Abby Tiscareno Results In Acquittal ...................................67
IX. FIRST CAUSE OF ACTION AGAINST DEFENDANTS FRASIER,
IHC AND BEERMAN FOR DEPRIVING ABBY TISCARENO OF HER
RIGHT NOT TO BE DEPRIVED OF LIBERTY WITHOUT DUE
PROCESS OF LAW ..............................................................................................73
X. SECOND CAUSE OF ACTIONAGAINST DEFENDANT FRASIER
FOR DEPRIVING ABBY TISCARENO OF HER RIGHT AGAINST AN
UNREASONABLE SEIZURE UNDER THE FOURTH AND
FOURTEENTH AMENDMENT BY A MALICIOUS PROSECUTION
PURSUANT TO 42 U.S.C. 1983 ........................................................................78
XI. PRAYER FOR RELIEF ........................................................................................79
XII. JURY DEMAND ..................................................................................................79
END NOTES .................................................................................................................................81
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Tiscareno v. Frasier, et al., Second Amended Complaint Page 2
I. JURISDICTION AND VENUE
1. This action arises under 42 U.S.C. 1983 and 1988 and the Fourth and
Fourteenth Amendments to the United States Constitution.
2. Jurisdiction of the Court to hear and determine the Plaintiffs claims is invoked
pursuant to 42 U.S.C. 1983; 28 U.S.C., 1331, 1343(a) (3), 2201, 2202, 1367 and the
aforementioned federal and state constitutional provisions.
3. Venue in this Court is proper under 28 U.S.C. 1391 because the Defendants
reside in this judicial district and the asserted claims for relief arose in this judicial district.
II. COMPLAINT TO BE READ AS AN INTEGRATED DOCUMENT
4. This Complaint is to be read as an integrated document with the allegations
contained in each portion thereof to be incorporated by reference into all other portions of the
Complaint to the extent they are relevant.
III. THE RELEVANT TIME PERIOD
5. The time period relevant to Plaintiffs claims against Defendants is November 14,
2003, through May 26, 2005 (the relevant time). The conduct of the parties and the events
described in this Complaint occurred during the relevant time unless otherwise indicated.
IV. PLAINTIFFS
6. Plaintiff Abigail (Abby) Tiscareno was and is a resident of Summit County,
State of Utah, and the wife of Plaintiff Guillermo Tiscareno.
7. Plaintiff Guillermo Tiscareno was and is a resident of Summit County, State of
Utah, and the husband of Plaintiff Abby Tiscareno.
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V. DEFENDANTS
A. Defendant Lori Frasier
8. Defendant Lori Frasier, M.D. ("Defendant Frasier") was and is a resident of Salt
Lake County, State of Utah.
9. Defendant Frasier was employed as the Director of the Medical Assessment Team
of the Center for Safe and Healthy Families (CSHF), a Department within Primary Childrens
Medical Center (PCMC), and conducted child abuse assessments within the scope of her
employment at PCMC.
10. CSHF interfaced with the Utah Department of Human Services (DHS) and the
Utah Division of Child and Family Services (DCFS) and state law enforcement agencies in the
reporting, investigation and prosecution of child abuse cases. CSHF received substantial state
and federal funds directly or indirectly through Defendant IHC, doing business as PCMC,1
including funds from DHS/DCFS to pay part of Defendant Frasiers salary. 2
11. As the Director of the Medical Assessments Team, Defendant Frasier had the
authority and duty to respond to requests for medical records of N.M. maintained in the CSHF.
Pursuant to the longstanding policy and practice of IHC, CSHF records concerning N.M. were
sequestered away from the medical records of N.M. housed in Medical Records Department at
PCMC.3
12. Defendant Frasier acted as the chief forensic investigator, complaining witness,
expert medical consultant, expert medical witness and member of the prosecution team in the
criminal case of State of Utah v. Maria Abigail Tiscareno, Summit County District Court Case
No. 031500228.
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13. Defendant Frasier exercised final policymaking authority for IHC in determining
the course of action in:
a. Diagnosing and investigating the nature, mechanism and timing of N.M.s injury;
b. Providing copies of her reports regarding her diagnosis and investigation in
N.M.s case to DHS/DCFS, Summit County Detectives and Summit County Prosecutor David
Brickey (Prosecutor Brickey);
c. Consulting with and directing Summit County Detectives in the investigation of
N.M.s case based on her diagnosis;
d. Assisting Prosecutor Brickey in the prosecution of Abby Tiscareno in N.M.s case
by providing him with her opinions regarding potential medical expert witnesses for the
prosecution;
e. Assisting Prosecutor Brickey in the prosecution of Abby Tiscareno in N.M.s
case by providing him with information to disqualify and/or cross-examine Abby Tiscarenos
expert medical witness;
f. Collecting and maintaining the evidence and medical records relating to her
diagnosis and investigation in N.M. case in the CSHF;
g. Providing the medical records relating her investigation of N.M.s case to the
Medical Records Department at PCMC, for use in responding to official subpoenas and/or
requests of Prosecutor Brickey for N.M.s medical records for use in the criminal prosecution of
Abby Tiscareno; and
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h. Providing exculpatory evidence obtained in her investigation of the suspected
child abuse of N.M. to Prosecutor Brickey for disclosure to Abby Tiscarenos attorney
(Attorney Xaiz) in the prosecution of N.M.s case.
14. As a policymaking official and staff member of IHC, Defendant Frasier acted
under color of the statutory laws, rules, regulations, policies, procedures and customs of the State
of Utah, including those referenced in the State Contract between DHS/DCFS and Defendant
IHC described herein.
15. Defendant Frasier is sued for damages in her individual capacity.
B. Defendant Intermountain Health Care
16. Defendant IHC Health Services, Inc. ("IHC" or Defendant IHC) was and is a
private corporation organized and existing under the laws of the State of Utah, doing business as
Primary Childrens Medical Center (PCMC) in Salt Lake City, State of Utah, and operating the
Center for Safe and Healthy Families (CSFH) as a Department within PCMC.4
17. The CSHF receives substantial public funding, including public funding under the
State Contract between DHS/DCFS and IHC (the State Contract) described below, a copy of
which is attached and incorporated by reference herein. 5
18. Defendant IHC acted under color of the statutory laws, rules, regulations, policies,
procedures and customs of the United States and the State of Utah, including those referenced in
the State Contract described herein.
19. In performing its duties under the State Contract to assist DHS/DCFS in the
diagnosis of child abuse and providing supporting written reports to DHS/DCFS regarding the
results of these evaluations and to provide consultation for professionals utilizing medical
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assessments to make legal decisions regarding the care of [IHC] clients who have been allegedly
abused, Defendant IHC deferred to Defendant Frasier as the final policymaker for IHC in
determining the course of action regarding these matters in the case of N.M. and provided no
meaningful review of her decisions.
20. In performing its duties under the State Contract: (1) to collect and maintain the
medical records relating to the suspected child abuse of N.M. housed in the CSHF and the
Medical Records Department at PCMC, including medical records exculpatory of Abby
Tiscareno, for disclosure to Prosecutor Brickey for use in the criminal prosecution of Abby
Tiscareno; and (2) to disclose these records to Prosecutor Brickey for use in the criminal
prosecution of Abby Tiscareno in response to his official subpoenas and/or requests, Defendant
IHC deferred to Defendant Beerman as the final policymaker for IHC in determining the course
of action regarding these matters in the case of N.M. and provided no meaningful review of his
decisions.
21. Defendant IHC is sued for damages in its individual capacity and no claims are
asserted against IHC in this action based upon respondeat superior.
C. Defendant William Beerman
22. Defendant William Beerman ("Defendant Beerman") was and is a resident of Salt
Lake County, State of Utah.
23. Defendant IHC employed Defendant Beerman as the Director of Patient
Administration at PCMC.6
24. As Director of the Medical Records Department (also known as the Health
Information Services Department) at PCMC, Defendant Beerman oversaw the general operations
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of the Medical Records Department including the compilation, storage and distribution of
medical records.7
25. As the Director Patient Administration at PCMC, Defendant Beerman had the
duty to manage and supervise the production of medical records of suspected victims of child
abuse, including N.M., requested from PCMC Medical Records Department and/or the CSHF,
by state prosecutors in connection with the prosecution of criminal child abuse cases, including
the case of N.M.8
26. The policies of CSHF provided, in part, that Referral to Medical Records
Department. All subpoenas or other requests for medical records, including but not limited to
child abuse records, shall be immediately referred to the PCMC Health Information Services
(HIS Department)[also known as the Medical Records Department], regardless of where the
actual records are kept.9
27. Defendant Beerman exercised final policymaking authority for IHC in
determining the course of action in:
a. Collecting, maintaining and providing the exculpatory Pathology evidence and
medical records relating to IHCs investigation of the suspected child abuse of N.M. to
Prosecutor Brickey for use in the criminal prosecution of Abby Tiscareno; and in
b. Collecting, maintaining and providing the exculpatory Pathology evidence and
medical records relating to IHCs investigation of the suspected child abuse of N.M. to
Prosecutor Brickey for use in the criminal prosecution against Abby Tiscareno in response to his
official subpoenas and/or requests.
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28. As a policymaking official and staff member of IHC, Defendant Beerman acted
under color of the statutory laws, rules, regulations, policies, procedures and customs of the
United States and the State of Utah, including those referenced in the State Contract between
DHS/DCFS and Defendant IHC described herein.
29. Defendant Beerman is sued for damages in his individual capacity.
E. Defendants John And Jane Does 1-20
30. Defendants John and Jane Does 1-20 are individuals whose names are unknown
to Plaintiffs at this time, who caused or contributed to the unlawful actions of the other named
Defendants herein, or who independently violated the federal constitutional rights of Plaintiff
Abby Tiscareno.
31. Defendants John and Jane Does 1-20 acted under color of the statutory laws,
rules, regulations, policies, procedures and customs of the State of Utah, including those set forth
in the State Contract between DHS/DCFS and Defendant IHC described herein.
32. Defendants John and Jane Does 1-20 are sued for damages in their individual
capacities.
VI. INTENT OF DEFENDANTS
33. By doing or failing to do the acts alleged herein, Defendants IHC, Beerman,
Frasier and John and Jane Does, and each of them, acted maliciously, knowingly, intentionally,
recklessly and/or in bad faith, in depriving Abby Tiscareno of the federal constitutional rights
described herein.
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VII. DEFENDANTS ACTED UNDER COLOR OF STATE LAW
A. The States Exercised Their Compelling Parens Patriae Interest in Protecting
Children By Adopting A Multidisciplinary Approach To The Reporting,
Investigation and Prosecution of Child Abuse
34. States have a compelling parens patriae interest in protecting children. Santosky v.
Kramer, 455 U.S. 645, 766 (1982) All 50 states have laws criminalizing child abuse.10
35. In furtherance of their compelling interest in protecting children, many States,
including Utah, have enacted statutes or adopted policies designed to encourage state child
welfare agencies and state law enforcement agencies to cooperate in investigating and
prosecuting child abuse.11
36. Most States, including Utah, have recognized that the best way to achieve safety
for children and to minimize trauma to child victims is to require the state agencies and law
enforcement agencies charged with investigating and prosecuting child abuse to cooperate. Child
abuse investigations necessarily implicate law enforcement issues.12
37. Beginning with the passage of the Child Abuse Prevention and Treatment Act
(CAPTA) in 1974, Pub. L. No. 93-247, 88 Stat. 4 (Jan. 31, 1974) (codified as amended at 42
U.S.C. 5101 to 5119c), the federal government demonstrated an interest in improving child-
abuse prevention efforts, specifically by creating and improving the use of multidisciplinary
teams [MDTs] and interagency protocols to enhance investigations. 42 U.S.C. 5106a
(a)(2)(A).13
38. Under 42 U.S.C. 5106a(b)(2)(A)(xi) of CAPTA, States eligible for federal grants
to support the development of these multidisciplinary investigation teams (MDTs), may lose
those funds if they do not submit a plan that assures that a state law or program relating to child
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abuse and neglect includes the cooperation of State law enforcement officials, courts of
competent jurisdiction, and appropriate State agencies providing human services in the
investigation, assessment, prosecution and treatment of child abuse and neglect.14
39. Following CAPTAs enactment, the States quickly adopted joint investigation
protocols for state social service and law enforcement agencies, using the MDT approach.15
B. The State of Utah Assumed Duties For The Reporting, Investigation and
Prosecution of Child Abuse and Delegated These Duties To State Agencies
DHS/DCFS and State Law Enforcement Agencies Under State Statutes And
Regulations
40. Traditionally and during the relevant time, the State of Utah assumed, as its
exclusive prerogative and public functions of reporting, investigating and prosecuting child
abuse cases in Utah.16
41. The State of Utah voluntarily undertook responsibility for the reporting,
investigation and prosecution of child abuse cases in Utah by enacting official state statutes,
rules, regulations, policies and procedures, requiring the reporting, investigation and prosecution
of suspected cases of child abuse.17
42. The State of Utah also voluntarily undertook responsibility for the reporting,
investigation and prosecution of child abuse cases in Utah by creating and delegating duties for
the reporting, investigation and prosecution of child abuse cases to state agencies including DHS,
DCFS and state law enforcement agencies under the aegis of the Utah Attorney Generals Office.
43. In 1988, the Utah Legislature enacted the Utah Child Abuse Reporting Act to
govern the reporting, investigation and prosecution of child abuse, declaring the legislative
purpose of the Act to protect the best interests of children, offer protective services to prevent
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harm to children, stabilize the home environment, preserve family life whenever possible, and
encourage cooperation among the states in dealing with the problem of child abuse.18
C. Utah Adopts A Multidisciplinary Team Approach Encouraging The Cooperation of
State Social Services and Law Enforcement Agencies In The Reporting,
Investigation and Prosecution of Child Abuse
44. In the Child Abuse Reporting Act, the Utah Legislature adopted a
multidisciplinary approach (MDT), encouraging state child welfare agencies such as DHS and
DCFS and state law enforcement agencies and prosecutors, to work together in the reporting,
investigation and prosecution of reported child abuse.
45. Thus, 62A-4a-403 of the 2003 version of the Utah Child Abuse Reporting Act
provided, in pertinent part, that:
When any person including persons licensed under Title 67, Utah
Medical Practice Act has reason to believe that a child has subjected to physical abuse., he shall immediately notify the appropriate local law enforcement agency. On receipt of this
notice, the peace officer of law enforcement agency shall
immediately notify the nearest office of the division [DCFS]. If an
initial report of child abuse is made to the division, the division shall immediately notify the appropriate local law enforcement
agency. The division shall, in addition to its own investigation,
comply with and lend support to investigations by law enforcement
undertaken pursuant to this section. 19
46. Additionally, 62A-4a-409 of the 2003 Utah Child Abuse Reporting Act further
encouraged the cooperation of state social service agencies and law enforcement agencies in
providing that:
(1) the division [DCFS] shall make a thorough pre-removal
investigation upon receiving an oral or written report of alleged
child abuse.The primary purpose of that investigation shall be the protection of the child. (2) The pre-removal investigation shall
include the same investigative requirements described in 62A-4a-
202.3. (3) The division [DCFS] shall make a report of its
investigation. The written report shall include a determination
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regarding whether the alleged abuse was substantiated, unsubstantiated, or without merit (4) (a) The division shall use an interdisciplinary approach whenever possible in dealing with
reports made under this part. (b) For this purpose, the division
shall convene appropriate interdisciplinary child protection teams to assist in its protective, diagnostic, assessment, treatment, and coordination services. (c) A representative of the
division shall serve as the teams coordinator and chair. Members of the team shall serve at the coordinators invitation, and whenever possible, the team shall include representatives of
health, mental health, education, law enforcement agencies, and
other appropriate agencies or individuals. (11) With regard to
cases in which law enforcement has or is conducting an
investigation of alleged abuse of a child: (a) the division shall coordinate with law enforcement to ensure that there is an
adequate safety plan to protect the child from further abuse or
neglect; and (b) the division is not required to duplicate an aspect
of the investigation that, in the divisions determination, has been satisfactorily completed by law enforcement.
20
(Emphasis supplied.)
47. Beginning in 1991, DCFS contracted with Prevent Child Abuse Utah (PCA), a
private, non-profit agency, to update and create a manual of the statewide protocol for the
reporting and handling of child abuse cases using the MDT approach in the investigation of child
abuse by DCFS Child Protection Service (CPS), the investigative arm of DCFS, and state law
enforcement agencies required by Utah statutes (the State Protocol).21
48. The State Protocol provides that CPS personnel and law enforcement officers are
required to make a thorough investigation up receiving a report of alleged abuse or neglect. The
primary purpose of the investigation is the protection of the child. In order to protect the child,
prosecution of the abuser is sometimes necessary.22
49. The State Protocol also provides that CPS and law enforcement investigators
may conduct a joint interview with victims of abuse. Law enforcement officers will be
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involved on any serious physical abuse casewhere a crime may have been committed. CPS
and law enforcement work as a team to serve the best interest of the child and uphold the law.23
50. To implement Utah statutes governing the MDT approach to the reporting,
investigation and prosecution of child abuse cases by DHS/DCFS and state law enforcement
agencies, the State of Utah also provided a CPS telephone hotline for the reporting of child
abuse, created Childrens Justice Centers throughout the state which are overseen by the Utah
Attorney Generals Office, established Domestic Violence Shelters, Family Support Centers, an
Office of Child Protection Ombudsman, the State of Utah Office of Crime Victim Reparations,
and the Utah Attorney Generals Office Child Protection Division.24
D. The State of Utah Contracts with Defendant IHC to Assist the State in Its Public
Functions Of Reporting, Investigating And Prosecuting Child Abuse Cases Using
An MDT Approach
51. Defendants IHC and Beerman admit that from at least 1986 through the present
year, the State of Utah, through DHS /DCFS, has contracted with Defendant IHC to assist
DHS/DCFS in the performance of the States public functions and duties in regard to the
reporting, investigation and prosecution of child abuse.25
A copy of the State Contract, Doc. 140-
10, is attached as Pltf. Exhibit 1 hereto, and incorporated by reference herein.
52. On April 3, 2003, pursuant to authority granted under state and federal laws,
DHS/DCFS entered into such a contract (the State Contract) with Defendant IHC for the
period July 1, 2003 through June 2004, and every subsequent year, in which Defendant IHC is
referred to as the Contractor.26
53. The State Contract provides that Defendant IHC will assist DHS/DCFS in the
investigation and prosecution of child abuse cases by: 27
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a. Providing medical examinations for children who have allegedly been abused or
neglected;
b. Assisting DHS/DCFS in the diagnosis of child abuse and neglect and submitting
written reports to DHS/DCFS regarding the results of these evaluations;
c. Providing training and/or consultation for professionals utilizing medical
assessments to make social and legal decisions regarding the care of clients who have been
allegedly abused or neglected; and
d. Providing training to professionals in the child welfare community in the
identification of child abuse and neglect, particularly in rural areas of the State.
54. The State Contract provides that Defendant IHC will provide office space and
furnishings to the DHS/DCFS Child Protection Team Coordinators.28
E. DHS/DCFS Require IHC To Provide Staff Training And Reserve The Right to
Monitor IHCs Performance And Provide Training to Improve IHCs Performance
of Contract Services
55. The State Contract provides that Defendant IHC is required to conduct all
necessary training to ensure that its staff carries out IHCs responsibilities under the State
Contract and is familiar with the requirements imposed by the State Contract and applicable
laws.29
56. The State Contract provides that DHS/DCFS has the right to monitor IHCs
performance of all services purchased under the Contract and to provide consultation, technical
assistance and training to Defendant IHC to improve its performance under the Contract.30
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F. DHS/DCFS Allows Defendant IHC To Subcontract Performance Of Services
Under The State Contract
57. The State Contract provides that Defendant IHC has the authority to subcontract
any of the services it performs under the State Contract to other entities or individuals upon
notice and approval by DHS/DCFS, and that IHCs subcontractors are required to comply with
the Contractors duties under the State Contract. Thus, under the State Contract, Defendant IHC
itself serves the governmental function of regulating other private parties conduct and
controlling how public funds are disbursed.31
58. The State Contract provides that Defendant IHC is a service provider, which is
defined as a private or governmental entity that receives funds from DHS/DCFS for services
provided to clients of DHS/DCFS under a program developed by DHS/DCFS.32
G. DHS/DCFS Exempts Defendant IHC, As A Sole Provider, From State Bidding
Process
59. The State Contract provides that Defendant IHC is exempt from the state bidding
process because IHC is the sole provider for the services under the State Contract.33
60. The State Contract provides that Defendant IHC is an independent contractor
and that persons employed or volunteering for IHC are authorized to act as agents for
DHS/DCFS only as expressly provided in the State Contract.34
H. DHS/DCFS Requires IHC to Comply With All Applicable Federal and State
Laws, Including DHS/DCFS Provider Code of Conduct, In Providing Contract
Services In The Reporting, Investigation And Prosecution of Child Abuse Cases
61. The State Contract provides that Defendant IHC is required to comply with all
applicable federal and state laws in the performance of its duties under the State Contract,
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including state statutes and regulations, and DHS policies that apply to the contractors
activities.35
62. The State Contract provides that Defendant IHC is responsible to obtain
appropriate advice regarding the federal and state laws applicable to its activities under the State
Contract.36
63. The State Contract specifically provides that Defendant IHC is required to comply
with the Utah Child Abuse Reporting Act.37
64. The State Contract provides that Defendant IHC shall follow and enforce the
DHS Provider Code of Conduct, and shall require any employee or volunteer, including a board
member, officer, or person who is substantially involved in Contractors decision making
processes, or is a person who has unsupervised contact with DHS/DCFS clients, to sign and date
a certification that he or she has read and understands the DHS Provider Code of Conduct and
will comply with it, before allowing any employee or volunteer to work with clients under the
State Contract. See, e.g., Title 62A, Chapter 3 of the Utah Code (definition of adult abuse) and
Title 78A, Chapter 6 (definition of child abuse) and Title 76, Chapter 5 (definition of child and
adult abuse) of the Utah Code. 38
65. The DHS/DCFS Provider Code of Conduct, Section II, 1, B, 4, defines child
abuse to include Physical injury, such as a contusion of the skin, laceration, malnutrition, burn,
fracture of any bone, subdural hematoma, injury to any internal organ, any injury causing
bleeding, or any physical condition which imperils a clients health or welfare.39 (Emphasis
supplied)
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66. The DHS/DCFS Provider Code of Conduct, Section IV, provides that If a state
statute, rule or policy defines abuseas including conduct that is not expressly included in this
Code of Conduct, such conduct shall also constitute a violation of this Code of Conduct. See,
e.g., Title 62A, Chapter 3 of the Utah Code (definition of adult abuse) and Title 78A, Chapter 6
(definition of child abuse) and Title 76, Chapter 5 (definition of child and adult abuse) of the
Utah Code. 40
67. The DHS/DCFS Provider Code of Conduct, provides, in pertinent parts, that:
Providers shall document and report any abuseas outlined in this Code of Conduct, and they
shall cooperate fully in any investigation conducted by DHS, law enforcement or other
regulatory or monitoring agencies The Provider shall make all reports and documentation
about abuseavailable to appropriate DHS personnel and law enforcement upon request.41
68. DHS/DCFS regulations and guidelines detail and govern the manner in which
IHC is to function with DHS/DCFS and state law enforcement agencies in the MDT
investigation and prosecution in cases of suspected child abuse under the State Contract.42
69. DCFS also provides a computer data system called SAFE in which the activities
of DCFS personnel, IHC staff and state law enforcement agencies engaged in the MDT
reporting, investigation and prosecution of child abuse, are reported and monitored by DCFS for
various purposes.43
70. Defendants IHC and Beerman admit that they were bound by the applicable
federal and Utah laws and DHS/DCFS policies, rules and regulations referred to in the State
Contract.44
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I. DHS/DCFS Pays State Funds To IHC For Contract Services And Passes Federal
Funds Through to CSHF
71. The State Contract provides DHS/DCFS will pay Defendant IHC/CSHF a
maximum of $200,000 annually for its performance of contract services.45
72. Defendant IHC received and passed through to CSHF, substantial public funds
from the federal government and from state agencies other than DHS/DCFS, including the Utah
Attorney Generals Office, for other services IHC/CSHF performs for the State in the reporting,
investigation and prosecution of child abuse cases.46
J. The State Contract Imposed Special Record Keeping Requirements on IHC
Regarding Records of Minors Such as N.M.
73. The State Contract provides that Defendant IHC is required to maintain and
supervise the maintenance of all records necessary for the proper and efficient operation of the
programs covered by the Contract, including records relating to the provision of [contract]
services.47
74. The State Contract imposes special record keeping requirements on Defendant
IHC in regard to the documentation of: (a) medical assessments of children; (b) training for
identification of child abuse and neglect, and (c) the number of persons attending all trainings in
the professions of law enforcement, social work, medical professionals and others.48
K. DHS and DCFS Have A Non-Exclusive Ownership Interest And Ready Access To
Records Relating To Contract Services Provided By IHC And Its Staff, Including
Defendants Frasier And Beerman
75. The State Contract requires Defendant IHC to acknowledge that DHS/DCFS has a
non-exclusive ownership interest in the records relating to the Contract and that IHC has a duty
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not to destroy or relocate any records relating to the Contract, or the services provided under the
Contract, for a six year period without notice to DHS/DCFS.49
76. The State Contract provides that Defendant IHC has a duty to provide DHS/DCFS
with ready access to any records produced or received by IHC in connection with the services or
programs performed under the State Contract.50
L. Defendant IHC Has The Duty To Inform DHS/DCFS Of The Request For N.M.s
Records From Any Entity Other Than DHS or DCFS
77. The State Contract provides that Defendant IHC is required to inform DHS/DCFS
upon receiving a request for patient records or information from any individual or entity other
than DHS or DCFS, or a request from or authorized by the patient or a person or entity
authorized to receive the records by the patient in writing.51
78. The State Contract provides that because Defendant IHC is not a governmental
entity, Defendant IHC has the duty to consult with DHS/DCFS to determine the appropriate
response under the State Contract and federal and state laws, including GRAMA, to requests for
patient records.52
79. The State Contract provides that if requested patient records come within the
scope of GRAMA and if DHS/DCFS so requests, Defendant IHC has the duty to deliver the
requested records to DHS/DCFS and allow DHS/DCFS to respond directly to the records
request.53
M. DHS/DCFS Has The Right To Participate In Any Suit Against Defendant IHC
80. The State Contract provides that DHS/DCFS has the option to participate in the
defense of any suit brought against Defendant IHC.54
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N. Defendants IHC, Frasier and Beerman Performed Public Functions Under The
State Contract
81. By allowing and authorizing DHS/DCFS to enter into the State Contract with the
Defendant IHC, the State of Utah allowed IHC and its staff, including Defendants Frasier and
Beerman, to exercise, and they did exercise, public functions and powers traditionally and
exclusively reserved to the State of Utah, in the reporting, investigation and prosecution of child
abuse cases, including the case of N.M., subject of this action.
82. By allowing DHS/DCFS to enter into the State Contract with the Defendant IHC
and its staff, including Defendants Frasier and Beerman, and by allowing DHS/DCFS to interact
with these Defendants under the terms of the State Contract for many years prior to and
including the relevant time, the State of Utah insinuated itself into a position of long term
interdependence with these Defendants in the performance of the States voluntarily assumed
duties regarding the reporting, investigation and prosecution of reported child abuse, including in
the underlying criminal case involving N.M., under the management and control of DHS/DCFS.
O. Defendants Federal Constitutional Duty to Disclose Exculpatory Evidence
83. In performing delegated public functions of the State of Utah in the reporting,
investigation and prosecution of child abuse in particular cases under the State Contract,
including N.M.s case, Defendant IHC and its staff, including Defendants Frasier and Beerman,
had a legal duty under the Due Process Clause of the Fourteenth Amendment to the Constitution
of the United States, as established in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963) and
its progeny, to voluntarily disclose all exculpatory evidence, including medical records,
generated in such investigations, to the prosecutor for disclosure to the defendants attorney.
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84. In performing delegated State public functions related to the reporting,
investigation and prosecution of child abuse in particular cases under the State Contract,
including N.M.s case, Defendant IHC and its staff, including Defendants Frasier and Beerman,
had a duty under the Due Process Clause of the Fourteenth Amendment to the Constitution of the
United States, to produce all medical records pertinent to their investigations, including medical
records exculpatory of an alleged perpetrator, in response to a prosecutors official subpoenas or
requests, for use in the criminal prosecution of the alleged defendant.
85. Thus, in violating the federal and state constitutional due process rights of
Plaintiff Abby Tiscareno by their conduct in N.M.s case as alleged herein, Defendants IHC,
Frasier and Beerman engaged in conduct that was fairly attributable to the State of Utah and
under color of the state laws, rules and regulations described in this Complaint.
VIII. GENERAL ALLEGATIONS REGARDING DEFENDANTS CONDUCT IN THE CASE
OF N.M.
A. Abby Tiscareno Finds N.M. In Distress
86. On the morning of November 14, 2003, Plaintiff Abby Tiscareno was preparing
for children to arrive at the state licensed daycare center she operated in her home in Summit
County, State of Utah.
87. At approximately 7:40 a.m. that morning, James Molineux dropped off his sons,
N.M., age 1, and J.M., age 2, at Abby Tiscarenos home for daycare.
88. The Molineux children had been in daycare with Abby Tiscareno since September
2003.
89. In addition to the two Molineux boys, an eighteen-month old child was in day
care with Abby Tiscareno on November 14, 2003.
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90. On this particular morning, when Abby took N.M. from his father, N.M.s head
fell against her shoulder and he appeared to be sleepy, so Abby placed him in a crib.
91. Later that morning, Abby tried to give N.M. a bottle, but the milk spilled out of
his mouth, his eyes rolled back in his head and he appeared to lose consciousness and experience
severe difficulty in breathing.
92. Abby appropriately shook or jostled N.M. to try and revive him.
93. When N.M. did not respond and continued to have trouble breathing, Abby called
911.
94. Emergency personnel responded to the Tiscareno home and began to treat N.M.
95. Around 10:40 a.m. on November 14, 2003, N.M. was transported to PCMC.
B. N.M. Is Admitted To PCMC
96. N.M. was admitted to PCMC at 11:01 a.m. At that time, a CT scan of N.M.'s head
was performed by the Attending Radiologist, Dr. Barbara P. Reid.
97. IHC policies required that all patient medical records at PCMC, including lab
tests and reports, list several forms of patient identification for use in tracking a patients medical
records, including the patients name, medical record number and billing number.
98. The CT head scan of N.M. included his name, address, date of birth, ordering
physician, medical records number: 49-32-45; UR number: 547545061, and log number:
11/14/2003.0141. Dr. Reids report of the CT head scan was generated and date stamped at 2:16
p.m. on November 14, 2003.
99. Dr. Reids report of CT head scan of N.M. concluded: Impression: probable
acute subdural hemorrhage superimposed on chronic subdural hemorrhage [prior bleeding].
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There is a significant mass-effect with shift of the ventricles from the right to- left side. No
parenchymal hemorrhage is identified.
100. N.M. was immediately taken to surgery to relieve the pressure on his brain. The
surgery was performed by Dr. Marion Walker.
C. Dr. Walker Sends Specimen of N.M.s Hematoma for Pathology Examination
101. Prior to conducting the surgery on N.M., Dr. Walker reviewed the CT head scan
of N.M.
102. During the operation, Dr. Walker removed a subdural hematoma or clot from
N.M.'s head.
103. Once removed, the hematoma had no relevance to the surgery Dr. Walker
performed on N.M.
104. Dr. Walker routinely sent a specimen of the N.M.s hematoma to the Pathology
Department (Pathology) for examination because theres always questions about clots and the
age of clots in cases of suspected trauma.
105. According to Dr. Walker, the purpose for a pathology examination of a subdural
hematoma is that It gives us some idea as to the age of the clot. If we have questions about the
age of the clot, sometimes that can be helpful. Its very difficult sometimes to distinguish how
fresh a clot is in the sense of, you know, a few hours or a day, but older clots begin to go through
certain changing processes that you can see.
106. Defendant Frasier knew that Dr. Walker had an obligation and responsibility to
obtain and preserve a sample of N.M.s hematoma and send it to Pathology Department for
examination to preserve such evidence relative to child abuse cases investigated at PCMC.
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107. The PCMC Surgical Services Procedure for Specimen Procurement requires, with
certain exceptions inapplicable in this case, that specimens of all tissue removed from patients be
submitted to the Pathology Department for examination. Specimens are to be identified at the
time they are removed from the patient and information concerning specimens conveyed to the
circulating nurse, so that the specimen is properly labeled. 55
108. The Perioperative Nursing Record form for N.M.s surgery dated November 14,
2003, is signed by Nurse Kathy Nasworthy. Under the heading Specimen?, it states: subdural
hematoma. The Patient Information section of the form contains N.M.s trauma name: ZZZ,
CHI-CE; his age-15 months; his date of birth-August 1, 2002; his sex-male; his patient account
number - 58150822; his medical records number- 49-32-45, his surgeon-Walker; and procedure
date: 11/14/03.56
109. At 12:25 p.m. on November 14, 2003, an individual named Sean in Operating
Room No./Clinic 5, signed an Anatomic Pathology Requisition form ordering a pathology test of
the subdural hematoma specimen taken from N.M.s head. The Requisition lists Dr. Walker as
the submitting and/or attending physician.57
110. In the Operating Room, N.M.s hematoma specimen was assigned a pathology
accession number (PS#) 352q that was hand written on the Anatomic Pathology Requisition
form.58
111. The Anatomic Pathology Requisition form for the pathology examination of
N.M.s hematoma specimen was logged into the Laboratory Information System and a bar code
label PCS-03-03528 was affixed to the Requisition for tracking purposes.59
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112. The Patient Information section on the Anatomic Pathology Requisition form
also lists N.M.s trauma patient identification: ZZZ CHI-CE; his patient account number:
58150822; his treating physician: Dr. Teresa Reading; his date of birth: August 1, 2002; his age
in months: 15; an unidentified number: U547545061; his medical records number: 49-32-45,
and the date of his admission: November 14, 2003.60
113. An excerpt from the PCMC Surgery Pathology Log Book shows the stamp for
patient ZZZ, CHI-CE, which is N.M., and the entry to the left side of the stamp shows that the
surgical specimen of the hematoma taken from N.M.s head was dropped off at the surgery main
desk at 12:35 p.m. on November 14, 2003 by N.D., a surgical department technician, and
picked up from the same desk at 12:36 by DS, another technician, and taken to the Pathology
Lab.61
D. Dr. Pysher Performs Pathology Examination of N.M.s Hematoma
114. On November 14, 2003, Dr. Theodore J. Pysher, Director of the Pathology
Department at PCMC, conducted a pathology examination of N.M.s hematoma specimen and
listed his findings in Pathology Report dated November 17, 2003.62
115. The Pathology Report authored by Dr. Pysher lists N.M.s medical records
number: 49-32-45; his date of birth: August 1, 2002; his date of surgery: November 14, 2003;
his pathology accession number: 3528-30; his patient account number: 58150822; and an
unidentified handwritten number: U547545061.63
116. The Pathology Report on N.M.s hematoma specimen, dictated by Dr. Pysher on
November 17, 2003, indicated, in part: "hemosiderin deposition and reactive meningeal cells
suggesting elements of previous [bleeding] as well as acute hemorrhage."64
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117. The Pathology Report on N.M.s hematoma specimen also stated that, "This case
was reviewed by Dr. Jeannette Townsend, who concurs in the diagnosis. A copy of her report is
attached."65
118. In her report to Dr. Pysher regarding his Pathology Report on N.M.s hematoma
specimen, (Concurring Pathology Report), Dr. Jeannette Townsend stated that, "Dr. Yang
informed me that there was iron in the tissue on special stains confirming a prior bleed. I would
agree that these nodules represent meningeal reactive changes most likely secondary to a prior
bleed."66
(Emphasis supplied)
119. Thus, Dr. Pysher, Dr. Townsend and Dr. Yang all agreed that the pathology
specimen of N.M.s hematoma showed evidence of a prior bleed.67
120. At the time Dr. Jeanette Townsend wrote and signed the Concurring Pathology
Report, she was employed by the University of Utah as a Professor of Anatomic Pathology and
Director of Neuropathology at the University of Utah School of Medicine.68
121. Although Dr. Townsends Concurring Pathology Report is dated August 22,
2003, reference to the letter shows it was delivered by facsimile to Dr. Pysher at 3:23 p.m. on
Monday, November 17, 2003, and is simply misdated.69
E. Pathology Report w/ Concurring Report of Dr. Townsend Sent to Dr. Walker, Dr.
Reading and Medical Records Department
122. The Pathology Report on N.M.s hematoma specimen lists Dr. Walker as the
attending physician and indicates that a copy of the Pathology Report was also sent to Teresa
Reading, M.D.70
123. On November 14, 2003, the Pathology Report on N.M.s hematoma specimen
was logged in the PCMC Surgery Pathology Log Book with its identifying Pathology Specimen
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number, 3528, N.M.s trauma name: ZZZ-Chi-Ce, N.M.s medical records number: 49-32-
45, and listed Dr. Walker as N.M.s surgeon.71
124. The fact the Pathology Report on N.M.s hematoma specimen was logged in the
PCMC Surgery Pathology Log Book, indicates that the pathology examination was complete and
copies of the report were placed in envelopes in the Outgoing Mail, for delivery to Medical
Records, Dr. Walker, and Dr. Reading on November 18, 2003.72
125. On or about November 18, 2003, Dr. Walker received a copy of the Pathology
Report which he thereafter maintained in his office file on N.M.s case.
F. DCFS, IHC and Summit County Detectives Conduct Multi-Disciplinary Team
Investigation of Suspected Abuse of N.M.
126. At approximately1:30 p.m. on November 14, 2003, Eden Krehbiel, case intake
worker at the DCFS office in Heber, Utah, received a report from IHC staff that N.M. had been
admitted to PCMC and that child abuse was suspected.
127. The DCFS New Case Worksheet indicates the billing number assigned N.M.s
case is 2544-1779, that the Assistant Utah Attorney General assigned to N.M.s case is
Deborah and lists the type of abuse case as Physical.
128. At approximately 2:00 p.m. on November 14, 2003, Dean Evans was assigned as
the DCFS case worker on N.M.s case, case number 1184776.
129. Dean Evans reported on the SAFE system that, at this time, he went to PCMC to
coordinate [the investigation of N.M.s case] with Summit County Detectives Andrew Leatham
and Tom James, while other DCFS staff coordinated with the Utah Attorney Generals Office to
obtain a warrant placing N.M. and his brother, J.M., in DCFS custody.
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130. On arriving at PCMC, Dean Evans learned that N.M.s father, James Molineux,
and other relatives had already been interviewed by Summit County Detectives and reported on
the SAFE system that the records and information from these interviews would be obtained by
DCFS and placed in N.M.s file.
131. DCFS caseworker Dean Evans and Summit County Detectives Leatham and
James next interviewed Dr. Mel Wright at PCMC who indicated N.M. had a subdural hematoma,
retinal hemorrhages and an abrasion on his left flank.
132. Dean Evans and Detectives Leatham and James next went to physically observe
N.M. in the PICU. Detective Leatham noticed blood smears on NMs right side and arm, as well
as an abrasion just below N.M.s right nipple and down further on his side, and took photographs
of N.M., who had just come out of surgery.
133. After leaving PCMC on November 14, 2003, Dean Evans staffed the
information he and Detectives Leatham and James had obtained about N.M.s case with DCFSs
attorney, Deborah Wood, the Assistant Utah Attorney General assigned to N.M.s case.
134. At approximately 1:30 p.m. on November 14, 2003, while Dean Evans went to
PCMC to coordinate the investigation with Detectives Leatham and James, Summit County
Detective Mike Dorman was assigned to go to Abby Tiscarenos home to conduct a fact-finding
interview to find out what had happened with N.M. earlier that morning.
135. After conducting a 35-40 minute interview with Abby Tiscareno on November
14, 2003, Detective Dorman did not conclude that she was a target or suspect in the case.
136. Detective Dorman initially suspected the person who caused N.M.'s injury
resided, or was otherwise present, in the apartment where N.M. had been staying with his father,
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James Molineux, his fathers brother, his fathers sister, N.M.s two-year old brother, his
grandmother, his grandmothers boyfriend and other relatives. Detective Dorman considered
James Molineux as a significant suspect in the case.
137. Based on this suspicion, at 6:25 p.m. on November 14, 2003, Detective Dorman
obtained a search warrant James Molineuxs vehicle and his mothers apartment where N.M. had
been residing. Detective Dorman immediately executed the warrant and seized numerous items
of property from the apartment and James Molineuxs vehicle.
138. Later in the evening on November 14, 2003, DCFS caseworker, Dean Evans, and
Summit County Detectives Leatham and James, jointly conducted a second interview of James
Molineux at PCMC.
139. At approximately 8:10 p.m. on November 14, 2003, DCFS, through its legal
counsel, Assistant Attorney General Julie Nelson, sought and obtained a warrant from the Third
District Juvenile Court of Salt Lake County, State of Utah, to take N.M. and his brother, J.M.,
into DCFS protective custody.
140. The application for the custody warrant was supported by the Affidavit of DCFS
caseworker, Leland Robinson, and stated, in pertinent part, that 5. The parents should not be
notified prior to removal because the mother is incarcerated and the father is a suspected
perpetrator of the shaken baby which demonstrates an anger problem. (Emphasis supplied)
G. Defendant Frasier Enters The Case
141. Defendant Frasier did not receive training in the medical evaluation of child abuse
cases in medical school and there was no board certification in this specialty during the
relevant time.
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142. Defendant Frasier was employed to do child abuse and neglect assessments at
PCMC.
143. In the three years prior to her investigation of N.M.s case, Defendant Frasier was
only involved in the treatment of children, as opposed to their medical assessment for child
abuse, on two occasions.
144. Regardless, Defendant Frasier considered herself to be a specialist in child abuse.
145. In addition to her employment as the Director of Medical Assessments at PCMC,
Defendant Frasier advertised for employment as an expert medical witness in state and federal
court cases involving issues of child abuse cases.
146. Prior to evaluating N.M.s case, Defendant Frasier had testified as a paid expert
witness in hundreds of child abuse cases and had derived substantial income from such
employment.
147. Prior to evaluating N.M.s case, Defendant Frasier had testified in court cases
hundreds of times that, based on her analysis, a child had been physically abused, but had not
testified in any case that the child in question was not physically abused. In one prior case,
Defendant Frasier was impeached by her deposition testimony at trial. See, Taleia Larson v.
Chris E. Nelson, M.D. and Tammy Nelson, 110 Wash. App. 1002 (Washington Court of
Appeals) (January 18, 2002) (unpublished opinion), at *4, and footnotes 13-17.
148. On November 14, 2003, at approximately 3:30 p.m., the Medical Assessment
Team was contacted for consultation on N.M.s case. Defendant Frasier arrived at the Pediatric
Intensive Care Unit (PICU) at PCMC. Her job was to conduct an active and thorough medical
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investigation to determine whether N.M.s injury was intentionally inflicted child abuse, the
mechanism of injury and the identity of the perpetrator.
149. When Defendant Frasier arrived at the PICU, N.M. an ophthalmologist was
examining N.M.
150. The ophthalmologist informed Defendant Frasier that N.M. had retinal
hemorrhaging but was not able to state when this condition occurred.
151. Defendant Frasier took pictures of the ophthalmologists examination of N.M. for
a book she was writing on child abuse.
152. Before she arrived at the PICU or shortly thereafter, Defendant Frasier looked at
the pre-operative head CT head and body scans of N.M., which showed no evidence of skull
fracture or fracture of any other part of N.M.s body.
153. Dr. Reids report of N.M.s CT head scan revealing prior bleeding in N.M.s
brain, was generated and date stamped at 2:16 p.m. on November 14, 2003.
154. In reviewing the CT head scan of N.M., Defendant Frasier saw a hematoma that
was consistent with the radiologists description of the hematoma as a multi-density subdural
hematoma.
155. Defendant Frasier read the report of the CT head scan of N.M., which concluded,
in part: "Impression: Probable acute subdural hemorrhage superimposed on chronic subdural
hemorrhage [prior bleeding].
156. Defendant Frasier knew that if there was prior bleeding in N.M.s brain as
indicated in the CT head scan report, N.M. could have been injured prior to the time he was left
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with Abby Tiscareno on November 14, 2003, by any number of individuals other than Abby
Tiscareno.
157. Defendant Frasier thought the CT head scan of N.M. was not inconclusive and
was concerning for old and new hemorrhages.
158. Based on the CT finding of prior bleeding in N.M.s brain, Defendant Frasier
knew that an injury to N.M. that occurred prior to the time he was left with Abby Tiscareno for
day care on November 14, 2003, presented as a differential diagnosis regarding the timing of
N.M.s injury.
159. Defendant Frasier agreed that a radiologist is more qualified to read a CT scan
than she is.
160. Defendant Frasier conducted a physical examination of N.M. and found a small
scratch on the right side of his chest but no sign of broken bones, fractures or bruises anywhere
on N.M.s head or body.
H. Defendant Frasier Interviews James Molineux
161. After arriving at the PICU, Defendant Frasier conducted an interview regarding
N.M.'s health history with his father, James Molineux ("Molineux").
162. Molineux told Defendant Frasier that N.M. was a healthy child that had no
medical problems that morning,that N.M. had eaten a pop-tart that morning, and that N.M. was
starting to walk.
163. Molineux also told Defendant Frasier that N.M. had not been ill during the week
prior to November 14, 2003.
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164. Molineux did not tell Defendant Frasier, as he later told police, that on the night
of Wednesday, November 12, 2003, N.M. had had the flu for a couple of days, projectile
vomited, had a fever of 102 and that Molineux had called a medical facility regarding treatment
for N.M. that night.
165. Molineux told Defendant Frasier that N.M screamed in the morning the past few
weeks when Molineux took him out of the car to deliver him to daycare, but did not tell Frasier,
as he later told police, that there was nothing unusual about N.M. crying for a few minutes when
Molineux left N.M. with Abby Tiscareno for daycare.
166. Molineux told Defendant Frasier that he had seen unexplained bruises on N.M. in
prior weeks and that he "didn't think anything about it because N.M. falls with some frequency
as he is getting around and learning to walk."
167. Molineux told Defendant Frasier that N.M.'s mother was in prison for identity
theft and hadn't lived with N.M. since he was about three months old.
168. Molineux told Defendant Frasier that N.M.'s bother, J.M., and Molineux's mother
and others resided in the home.
169. In fact, at least six people resided in the two-bedroom apartment where N.M.
lived on November 14, 2007.
170. Defendant Frasier concluded the interview with Molineux at about 3:45 p.m. on
November 14, 2003.
I. Defendant Frasier Forms A Conclusion
171. Following her interview of James Molineux, Defendant Frasier made a
handwritten note indicating her diagnosis that N.M.'s injury was highly suspicious for abusive
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head injury (mechanism shaken) and Very likely extremely short interval between injury and
symptoms, and that Frasier planned to contact DCFS and law enforcement.
172. Defendant Frasiers handwritten note did not indicate that she had spoken with
Dr. Walker, N.M.s surgeon, or Dr. Barbara Reid, the radiologist who interpreted the CT head
scan of N.M, prior to concluding that N.M.s injury was highly suspicious for abusive head
injury and Frasier does not think she spoke with Dr. Walker prior to making her handwritten note
stating her conclusions regarding N.M. on November 14, 2003.
173. An article by Defendant Frasier and a coauthor stated that Clear history should
be obtained from all possible witnesses to the event. Corroboration of facts can be key to making
the correct diagnosis.
174. Defendant Frasier also agreed that inconsistent statements by family members and
other persons at or near the time of a childs injury, may be relevant in determining whether child
abuse has occurred.
175. Defendant Frasier admitted that in diagnosing N.M.s injury as physical child
abuse, and in determining the time of his injury, she relied on the history of N.M.s health given
by James Molineux, as being accurate, and that she did not interview any other members of the
Molineux family who resided with N.M. in his grandmothers apartment at the time of his injury.
176. Defendant Frasier stated that in an article she wrote on N.M.s case that the police
had told her that Abby Tiscareno had given inconsistent statements.
177. Defendant Frasier admitted she did not interview Abby Tiscareno, did not review
the tapes of Summit County Detectives interviews with Abby Tiscareno, did not know what
Abby Tiscareno said in the five hours she was interrogated concerning N.M.s injury, and did not
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find out whether Abby Tiscarenos statements were consistent with the statements given to her
and Summit County Detectives by James Molineux and other family members, prior to
concluding that N.M. could only have been injured while in Abby Tiscarenos care.
178. Defendant Frasier did not review the medical records from N.M.s pediatrician
before making the diagnosis that N.M. was the victim of shaking and would have been
immediately unconscious, and stated she did not think it was important to review N.M.s
pediatric records prior to reaching her conclusion regarding the timing of N.M.s injury.
179. Although the pediatric records of N.M. were available at PCMC, Defendant
Frasier did not review these records to determine whether they were consistent with James
Molineux's representations to her regarding N.M. health prior to concluding that N.M.s injuries
could only have occurred while he was in the care of Abby Tiscareno.
J. Defendant Frasier Discusses N.M.s Case with Dr. Walker
180. During the late afternoon or evening of November 14, 2003, Defendant Frasier
spoke with Dr. Walker about N.M. in a hallway at PCMC.
181. According to Dr. Walker, Defendant Frasier is on the Child Protection Team and
was basically asking for my input about the case.
182. Defendant Frasier asked Dr. Walker about the presence of old versus new blood
in N.M.s head because the CT head scan report had conclusively indicated a mixed density of
old blood and new blood in N.M.s brain.
183. Dr. Walker told Defendant Frasier there was a lot of acute blood on N.M.'s brain
during surgery and that he did not see any chronic subdural (prior bleeding).
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184. When Defendant Frasier spoke with Dr. Walker on November 14, 2003, she knew
Dr. Walker would not necessarily be able to grossly observe a chronic subdural hematoma (prior
bleeding) in N.M.s brain during surgery because the evidence could be microscopic, and that a
microscopic examination of the hematoma specimen by the Pathology Department at PCMC
would routinely be obtained to confirm or deny the existence of prior bleeding in N.M.s brain.
185. At the time Defendant Frasier spoke with Dr. Walker on November 14, 2003, she
knew it was Dr. Walker's obligation and responsibility to send a sample of the hematoma he
removed from N.M.'s brain to the Pathology Department for examination.
186. When Defendant Frasier spoke with Dr. Walker on November 14, 2003, she knew
that a pathology examination of N.M.s hematoma specimen could: (a) confirm or deny the
existence of prior bleeding in N.M.s brain reported on the CT head scan; (b) provide
information as to when the injury to N.M.'s brain occurred; and (c) provide information about the
identity of the person or persons who inflicted the injury based on the timing of the injury.
187. At the time Defendant Frasier spoke with Dr. Walker about N.M.s case on
November 14, 2003, she understood the importance of having a sample of the hematoma sent to
Pathology for examination for forensic purposes and that the Pathology Report was an
important piece of the puzzle in determining when N.M.s injury occurred.
188. When Defendant Frasier spoke with Dr. Walker on November 14, 2003, she knew
that if the CT head scan report of prior bleeding in N.M.s brain was confirmed by the Pathology
Report, her expert opinion and conclusion that N.M. could only have been injured while in Abby
Tiscarenos care, was incorrect and would be discredited.
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189. Despite her knowledge of the critical importance of reviewing the Pathology
Report in determining the timing of N.M.s injury and by inference, the identity of the
perpetrator of N.M.s injury, Defendant Frasier did not obtain the Pathology Reports on N.M.s
hematoma specimen or discuss the findings of the Pathology Reports with Dr. Walker, or with
Drs. Pysher, Townsend or Yang, at any time prior to the first trial of Abby Tiscareno.
K. Defendant Frasier Informs Detectives N.M. Could Only Have Only Been Injured
While in Abby Tiscarenos Care, While Withholding And Concealing Exculpatory
Pathology Evidence
190. Between 8:00 and 8:30 p.m. on November 14, 2003, while Detective Leatham
was on his way back to the Summit County Sheriffs Office from PCMC, he spoke with
Defendant Frasier by phone.
191. Defendant Frasier told Detective Leatham she had been working on N.M.s case
and had information for him pertaining to N.M.s injuries. Defendant Frasier told Detective
Leatham that N.M. had sustained a massive brain injury caused by severe shaking and that blunt
force trauma had not been ruled out but there were no outward signs. She also stated that N.M.
would not have acted normally at any time after his injury and would have become unconscious
immediately after the injury.
192. Detective Leatham then told Defendant Frasier what Abby Tiscareno stated had
happened during the morning, and Defendant Frasier responded she did not believe it was
possible for several hours to pass before N.M. started to show signs of injury.
193. Defendant Frasier knew that law enforcement officials would rely on the timeline
for N.M.s injury she created by her conclusion that N.M. would have become immediately
symptomatic at the time of injury.
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194. Defendant Frasier knew that her representations to Detective Leatham regarding
the timing of N.M.s injury led to the conclusion that the only person who could have injured
N.M. was Abby Tiscareno.
195. In her conversation with Detective Leatham on the evening of November 14,
2003, Defendant Frasier did not inform Detective Leatham: (a) that a CT head scan had been
performed on N.M. and showed prior bleeding in N.M.s brain; (b) that this finding was
consistent with the conclusion that N.M.s injury occurred prior to the time he was left with
Abby Tiscareno on the morning of November 14, 2003; (c) that a radiologist was more qualified
than her to read and interpret the CT head scan; (d) that the CT head scan finding of prior
bleeding in N.M.s brain was contrary to Frasiers opinion that N.M.s injury could only have
occurred while in Abby Tiscarenos care; (e) that a Pathology examination would confirm or
dispute the CT head scan finding of prior bleeding in N.M.s brain, and that (f) Frasier would
need to wait to review the Pathology Report before she could reach a reliable conclusion
regarding the timing of N.M.s injury.
196. In deciding not to inform Detective Leatham of the foregoing facts, Defendant
Frasier maliciously, intentionally, knowingly or recklessly withheld and concealed exculpatory
evidence and deliberately misled Detective Leatham to believe that Abby Tiscareno was the only
person who could have injured N.M.
L. Based on Defendant Frasiers Representations Regarding the Timing of N.M.s
Injury, Detectives Focused Their Investigation On Abby Tiscareno
197. At approximately 9:00 p.m. on November 14, 2003, the Summit County
Detectives assigned to N.M.s case, including Detectives Leatham and Dorman, met at the
Summit County Sheriffs Office to share information gathered in their investigation. Based on
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Defendant Frasiers representations to Detective Leatham regarding the timing of N.M.s injury,
the Detectives focused their investigation on Abby Tiscareno and away from N.M.s father,
James Molineux.
198. Immediately following this meeting, Detective Dorman telephoned Abby
Tiscareno and asked her to come to the Sheriffs Office for a few minutes to answer a few
questions, which she voluntarily agreed to do. Detective Dorman did not tell Abby Tiscareno
she was going to be interrogated for several hours.
199. From approximately 9:30 p.m. on November 14, 2003, until 2:30 a.m. the
following morning, November 15, 2003, DCFS caseworker Dean Evans and Summit County
Detectives Dorman, Leatham and James jointly interrogated Abby Tiscareno at the Summit
County Sheriffs Office according to a prearranged plan.
200. During the interrogation, which was videotaped, Abby Tiscareno told the
Detectives that N.M. had not been eating for about two weeks, that she would often spend two
hours trying to get him to eat, that she would put food in his mouth but he would not swallow it,
and that N.M. appeared to be losing weight and that when N.M. first came to day care, he had a
good appetite and would always want more.
201. During the interrogation, Abby Tiscareno stated that on November 14, 2003,
N.M. arrived at the daycare at 7:40 a.m., he was crying, but not as he normally cried. She also
stated that James Molineux told her that N.M. had eaten, that N.M. appeared tired that morning,
and that when Molineux handed N.M. over to her that the child kind of sat in her arms and his
head went into her shoulder, and that she took him right to bed and he went right to sleep,
whereas he would normally cry vigorously for about an hour.
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202. During the interrogation, Abby Tiscareno stated that sometime later, she heard
N.M. make a cry, prepared a bottle and picked N.M. up out of the crib, that she took N.M. from
the bedroom out to the front room to feed him, sat down with N.M. on her lap, put the bottle to
his mouth, and that the milk came back out of N.M.s mouth; that N.M. appeared pale, that his
eyes were rolled back in his head, and that he was having extreme difficulty breathing and was
gasping for air, and that she abruptly stood up, called N.M. by name, moved the childs body in
an effort to revive him, took N.M. out on the porch and called 911.
203. During the interrogation, Summit County Detectives repeatedly confronted Abby
Tiscareno about the fact that she had injured N.M. in her home. Abby Tiscareno repeatedly
denied that she had injured N.M. and was consistent in her statements about what happened
while N.M. was in her care.
204. After Summit County Detectives focused their investigation on Abby Tiscareno
based on Defendant Frasiers representations regarding the timing of N.M.s injury, they
canceled the polygraph examination they had scheduled for James Molineux, and never
interrogated James Molineux, his mother, Kathy Galvan, or any of Galvans children or
grandchildren who were residing or otherwise present in the apartment where N.M. resided prior
to his admission to PCMC.
205. After Summit County Detectives focused their investigation on Abby Tiscareno
based on Defendant Frasiers representations concerning the timing of N.M.s injury, they never
issued investigative subpoenas for N.M.s pediatric records, or submitted the stains found on the
bedding in N.M.s apartment for forensic examination.
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M. Defendant Frasier Continues To Encourage The Pr