Kanuszewski et al
Filing
64
ORDER Granting in Part Defendants' 54 , 55 Motions for Attorney Fees and Directing Supplemental Briefing. (Defendants Supplemental Brief due by 2/8/2019, Plaintiff's Supplemental Brief due by 2/15/2019 Regarding 54 , 55 Motions for Attorney Fees. ) Signed by District Judge Thomas L. Ludington. (KWin)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
ADAM KANUSZEWSKI, et al.,
Plaintiff,
v.
Case No. 18-cv-10472
Honorable Thomas L. Ludington
Magistrate Judge Patricia T. Morris
MICHIGAN DEPARTMENT OF
HEALTH AND HUMAN SERVICES,
et al.
Defendant.
_________________________________/
ORDER GRANTING IN PART DEFENDANTS’ MOTIONS FOR ATTORNEY FEES
AND DIRECTING SUPPLEMENTAL BRIEFING
On February 8, 2018, Plaintiffs Adam and Ashley Kanuszewski, Shannon Laporte, and
Lynette Wiegand filed a complaint pursuant to 42 U.S.C. § 1983 as parent-guardians and next
friend to their minor children (collectively, “Plaintiffs”). ECF No. 1. They alleged that the State
of Michigan operates an unconstitutional Newborn Screening Program which involves sampling,
testing, and storing infant blood without parental consent. The complaint named Defendants
Michigan Department of Health and Human Services (MDHHS) and its director Nick Lyon,
MDHHS Bureau of Laboratories director Dr. Sandip Shah, state epidemiologist and Michigan
BioTrust manager Dr. Sarah Lyon-Callo, MDHHS Newborn Screening managers Harry
Hawkins1 and Mary Kleyn, Michigan Neonatal Biobank (the “Biobank”) (also known as the
Michigan Neonatal Biorepository) and its director Dr. Antonio Yancey. The named individuals
were sued in their official and individual capacities. Plaintiff filed an amended complaint (which
they titled as a “corrected complaint”)) to address a deficiency in the original complaint (no
summons requested), which was stricken. ECF No. 3.
1
Mr. Hawkins has since passed away.
Defendants filed motions to dismiss. ECF Nos. 15, 21. In response, Plaintiffs filed a
second amended complaint as of right, and the motions to dismiss were terminated as moot. See
ECF Nos. 26. Defendants then filed motions to dismiss the amended complaint pursuant to
Federal Rule of Civil procedure 12(b)(1) and 12(b)(6). ECF No. 32, 33, 34.
On August 8, 2018, the Court entered an order granting the motions to dismiss, dismissed
the complaint, and entered judgment in favor of Defendants. ECF Nos. 50–51. Plaintiffs
appealed that same day. ECF No. 52. In the order granting the motions to dismiss, the Court
addressed four potential classes of claims: 1) blood testing in violation of the fourteenth
amendment; 2) blood retention and use in violation of the fourteenth amendment; 3) blood
testing in violation of the fourth amendment; and 4) blood retention and use in violation of the
fourth amendment. The Court found that none of the claims were cognizable. On September 5,
2018, Defendants moved for attorney fees as a prevailing party under 42 U.S.C. § 1988. The
State Defendants filed their own motion, as did Defendant Biobank and Antonio Yancey. ECF
Nos. 54-55.
I.
In any action or proceeding to enforce a provision of sections 42 USCS §§ 1981-1983 the
court, in its discretion, may allow the prevailing party, other than the United States, a reasonable
attorney’s fee as part of the costs. Prevailing defendants are entitled to attorney’s fees upon a
finding that the plaintiff’s action was frivolous, unreasonable, or without foundation, even
though not brought in subjective bad faith. Christiansburg Garment Co. v. EEOC, 434 U.S. 412,
54 L. Ed. 2d 648, 98 S. Ct. 694 (1978). “[A]n award under section 1988 may only be charged
against the losing party, not the party’s attorney.” Smith v. Detroit Fed'n of Teachers Local 231,
Am. Fed'n of Teachers, AFL-CIO, 829 F.2d 1370, 1374 n. 1 (6th Cir. 1987)
-2-
To determine whether a suit is frivolous, courts consider “whether the issue is one of
first impression requiring judicial resolution, whether the controversy is sufficiently based upon
a real threat of injury to the plaintiff, whether the trial court has made a finding that the suit was
frivolous under the Christiansburg guidelines, and whether the record would support such a
finding.” Garner v. Cuyahoga Cty. Juvenile Court, 554 F.3d 624, 636 (6th Cir. 2009) (citing
Tarter v. Raybuck, 742 F.2d 977, 986 (6th Cir. 1984)). A claim may be unreasonable where no
reasonable person could think that he would succeed on the claim. See Dabbs v. Bolin, 21 F.3d
427 (6th Cir. 1994). A claim is without foundation where it is meritless or groundless. Hughes,
449 U.S. at 14. That plaintiff lost his case does not mean the action was frivolous, unreasonable,
or without foundation. Christiansburg Garment Co. v. Equal Employment Opportunity Comm’n,
434 U.S. 412, 421. Moreover, an award of fees to a prevailing plaintiff is much more common
than an award of fees to a prevailing defendant. Id. at 417–418.
II.
In the order granting the motion to dismiss, the Court considered four potential classes of
claims: 1) blood testing in violation of the fourteenth amendment; 2) blood retention and use in
violation of the fourteenth amendment; 3) blood testing in violation of the fourth amendment;
and 4) blood retention and use in violation of the fourth amendment.
A.
The Court dismissed Plaintiffs’ claim that the blood testing (i.e. the extraction itself, as
distinct from the retention and use) violated their fundamental rights under the fourteenth
amendment. Plaintiffs relied primarily on Cruzan for the notion that they had a fourteenth
amendment right to refuse unwanted medical procedures. Cruzan by Cruzan v. Dir., Missouri
Dep’t of Health, 497 U.S. 261, 278 (1990). Defendants take issue with Plaintiffs’ reliance on
-3-
Cruzan. In rejecting Cruzan, this Court noted the importance of distinguishing between the
constitutional liberty interests at issue:
First, the parties refer to the right of a child to have its parent make medical
decisions on its behalf. Second, the parties refer to the right of a competent person
to refuse unwanted medical procedures. Third, the parties refer to a parent’s right
to make decisions concerning the care, custody, and control of their children.
Order at 5. The Court concluded that there was no legal authority to support the existence of “a
child’s right to have its parent make medical decisions on its behalf.” The Court also concluded
that Cruzan did not address a parent’s right to make decisions regarding their children. Rather,
Cruzan addressed the right of competent individuals to refuse medical care. The Court
distinguished Cruzan, noting that infants are not competent individuals.
The Court also found that the right of parents to control their children did not grant
parents the right to refuse medically necessary treatment for their children:
The Supreme Court has also recognized “the fundamental right of parents to make
decisions concerning the care, custody, and control of their children.” Troxel v.
Granville, 530 U.S. 57, 66 (2000). It is equally true that “a state is not without
constitutional control over parental discretion in dealing with children when their
physical or mental health is jeopardized.” Parham v. J.R., 442 U.S. 584, 603
(1979) (holding that, notwithstanding a parent’s desire to have their child
committed for mental health treatment, the child is entitled to an evaluation by a
neutral fact finder with final decision-making authority regarding whether the
child ought to be committed). Indeed, Supreme Court precedent recognizes “two
competing values of equal worth: the right of parents to parent and the right of
children to safety.” Spiering v. Heineman, 448 F. Supp. 2d 1129, 1140 (D. Neb.
2006)
Applying rational basis review, the Court concluded as follows:
[t]he State of Michigan has a legitimate interest in early detection of
diseases in infants and that the blood testing is connected to that objective. Given
the State’s interest in safeguarding infant health, and the minimally invasive
nature of the procedure (a heel stick drawing 5-6 drops of blood), the blood test
does not violate the parents’ right to make decisions concerning the care, custody,
and control of their children
-4-
It is no easy task to draw a line beyond which the parent’s interest in parenting must yield
to the state’s interest in protecting lives. Based on this Court’s reading of the pertinent case law,
the Court disagreed with the Plaintiffs as to where that line should be drawn. Moreover, the law
of substantive due process is amorphous, and the three rights discussed above are interrelated,
albeit legally distinct. Plaintiffs’ failure to appreciate the subtlety of the distinction articulated
above is far from vexatious conduct. Plaintiffs’ position was hardly an unreasonable one and was
well within the bounds of reasonable advocacy.
B.
The Court also dismissed Plaintiffs claim that the blood testing violated their fourth
amendment rights to be free from unreasonable search and seizure. Defendants relied on Attson
to support the proposition that a blood test for strictly medical purposes is not a search under the
fourth amendment. United States v. Attson, 900 F.2d 1427, 1433 (9th Cir. 1990)). Plaintiffs
relied heavily on Dubbs to support the opposite conclusion. In Dubbs, the 10th Circuit held that
medical evaluations of school children by nurses without parental consent constituted searches
under the fourth amendment. Dubbs v. Head Start, Inc., 336 F.3d 1194, 1205 (10th Cir. 2003).
The Dubbs court rejected the notion that “non-criminal” and “non-investigatory” searches fell
outside the scope of fourth amendment protections. Id. The Dubbs court noted that fourth
amendment protections extend to administrative searches as well. Id. (citing Attson, 900 F.2d at
1433). The Dubbs court distinguished Attson, in which “the medical procedure was consensual;
the real issue was the legality of providing the results to police.” Dubbs v. Head Start, Inc., 336
F.3d 1194, 1205 (10th Cir. 2003).
After reviewing the most pertinent authority, this Court concluded that the blood
extraction was indeed a search. Ultimately, however, this Court concluded that the search was a
-5-
reasonable one, noting that 1) the exercise of government authority was entirely distinct from
that of law enforcement; 2) there was no individualized suspicion of wrongdoing (the blood
extraction was performed on all infants); and 3) the extraction was performed in furtherance of
the public health and safety, by facilitating early diagnoses, treatment, and prevention of infant
maladies. The Court underscored the minimally invasive nature of the procedure (a heel prick
drawing 5-6 drops of blood). This minimally invasive procedure was in stark contrast to the
procedure in Dubbs.
In sum, the Court disagreed with Defendants as to the first component of the fourth
amendment inquiry (namely whether the extraction was a search). With respect to the
reasonableness of that search, the Court engaged in an extensive analysis distinguishing Dubbs
and limiting it to its facts. Plaintiffs’ claim was ultimately rejected, but it was well within the
bounds of reasonable advocacy.
C.
The Court dismissed Plaintiffs’ claims that the retention and use of the blood samples (as
distinct from the extraction) violated their fourteenth amendment substantive due process rights
and their fourth amendment rights to be free from unreasonable search and seizure. These claims
were dismissed because Plaintiffs did not plead facts demonstrating that their blood samples
were used contrary to their express wishes. Order at 12.
Defendants argue that this is the most glaring defect in Plaintiffs’ complaint. Indeed,
Plaintiffs allegations and arguments here reflected a lack of pre-suit investigation and a lack of
candor. Plaintiffs contended that they “might have been presented with a card giving the Parents
an option of whether they want their Infants’ already illegally seized and tested blood to be
donated to medical research.” Compl. ¶ 46 (emphasis added, and in original). Whether they were
-6-
presented a consent card is not an issue about which reasonable minds could disagree. That
information could have been confirmed before filing suit. Plaintiffs failure to do so reflects a lack
of candor and a lack of good faith.
Plaintiffs also alleged that “if they did sign such a document they had insufficient
understanding of matters they asked/forced to sign and thus were not given proper informed
consent.” Id. ¶ 48. (emphasis added). Again, the use of hypothetical language (“if they did sign”)
indicates both a failure to confirm facts pre-suit and/or a lack of candor with respect to facts
already known. Plaintiffs never contended that the signatures were forgeries. Thus, the signatures
on the forms produced by the Defendants strongly suggests that Plaintiffs did indeed sign such
forms.2
Plaintiffs appeared to argue, in the alternative, that if they did sign such forms they did
not give proper informed consent. Plaintiffs made no attempt to develop the theory that the
consent forms were constitutionally deficient or that the consent forms were ineffective means to
request informed consent.
Plaintiffs’ use of hyperbolic language such as “forced to sign” also demonstrates a lack of
candor and a lack of good faith. If the hospital staff had in fact compelled the parents to sign the
consent forms against their will, surely that allegation would have been explained in the
complaint. A complaint is a vehicle by which a Plaintiff can set forth facts explaining how he/she
was wronged. When faced with a motion to dismiss, Plaintiffs’ allegations are granted the benefit
of a presumption of truth. A complaint is not a novel or vehicle for artistic expression. The use of
hyperbole is not consistent with rule 8(a)(2)’s requirement that a plaintiff set forth a “short and
plain statement of the claim showing that the pleader is entitled to relief,” nor is it consistent with
2
Plaintiffs noted that only 7 of the 9 forms had been produced, and 2 of those 7 contained denials of consent.
Nevertheless, Plaintiffs unreasonably refused to candidly acknowledge the other 5 forms.
-7-
Rule 11(b)’s requirement that factual allegations be asserted in good faith and with evidentiary
support.
Finally, Plaintiffs fell back on the notion that the consent forms attached to Defendants’
motion to dismiss could not be considered at the motion to dismiss stage. This was not a good
faith argument. It is well established that a district court can consider exhibits attached to a
defendant’s motion to dismiss without converting the motion into one for summary judgment
where two conditions are met: 1) the documents are referred to in the complaint, and 2) are
central to the claims contained therein. Gavitt v. Born, 835 F.3d 623, 640 (6th Cir. 2016). It is
beyond debate that the consent forms meet both criteria.
Irrespective of the consent forms, Plaintiffs claims based on retention and use of the
blood samples failed for another reason, namely lack of standing. Plaintiffs did not make a good
faith effort at articulating how they were subject to a real threat of injury. This weighs in favor of
granting fees. See Garner v. Cuyahoga Cty. Juvenile Court, 554 F.3d 624, 636 (6th Cir. 2009)
(noting that frivolousness depends in part on “whether the controversy is sufficiently based upon
a real threat of injury to the plaintiff.”). Indeed, as the Court explained in its previous order,
Plaintiffs purported injury appeared to be dependent on an entirely hypothetical state of facts:
Based on the alleged misuse of blood samples of other individuals who are not
parties to this case, Plaintiffs “are concerned and fear about the misuse of [their
private medical and genetic information] and fear the possibility of discrimination
against their Infants and perhaps even relatives through the use of such blood
samples and research activity thereon.” Am. Compl. ¶. 79 Plaintiffs further allege
that their fear is “well-founded and actual as the sharing of blood spots containing
deeply private medical information has recently resulted in the arrest of an alleged
killer but has already resulted in the wrongful arrest of persons who were not
guilty of any crime.” Id. It is entirely unclear what Plaintiffs are referring to when
they discuss their fear of the “possibility of discrimination,” or how that fear is
connected to the alleged misuse of blood samples. In a roundabout way, Plaintiffs
appear to be trying to establish that law enforcement use of blood samples in other
cases poses a realistic threat that the government will use Plaintiffs genetic
information to take some action against them. But this contention is entirely
-8-
hypothetical. It is clear that the “possibility of discrimination” is an insufficient
injury to support article III standing. See Lujan v. Defs. of Wildlife, 504 U.S. at
560 (noting that injury in fact must be “actual or imminent, not conjectural or
hypothetical”)
Order at 21–22.
In sum, Plaintiffs refused to candidly acknowledge the existence of the consent forms,
and the impact of those forms on their claims for wrongful retention and use of their blood
samples. Moreover, Plaintiffs were not subject to a real threat of injury based on that allegedly
wrongful conduct. Plaintiffs feared non-specific “misuse” and “discrimination,” and contended
that the arrest of the golden state killer was somehow an example of such misuse and
discrimination. Accordingly, the claims under the fourth and fourteenth amendment for wrongful
retention and use of the blood samples (as distinct from the initial extraction) were frivolous.
Defendants will be granted partial fees incurred in defending these claims.
III.
Two other matters should be addressed. First, Plaintiffs contend that the fee motion is
untimely under Federal Rule of Civil Procedure 54(d)(2)(B)(i), which provides that a fee motion
be filed no later than 14 days after the entry of judgment. Local Rule 54.12, of course, allows 28
days. The fee motions here were filed within 28 days of the entry of judgment, and are therefore
timely. Plaintiffs offer an extensive discussion regarding the conflict between the local rule and
the federal rule, and how that conflict ought to be resolved. Plaintiffs explanation is unavailing.
District courts are free to adopt local rules establishing timeliness standards for the filing of
claims of attorney’s fees, as the Eastern District of Michigan has done in Local Rule 54.
Epperson v. Colbert, 2017 WL 624198, at *5 (6th Cir. Feb. 15, 2017); Stallworth v. Greater
Cleveland Reg’l Transit Auth., 105 F.3d 252, 257 (6th Cir. 1997); White v. New Hampshire Dept.
of Emp’t Sec., 455 U.S. 445, 454 (1982)).
-9-
Second, Plaintiffs argue that the fees sought are not reasonable and that Defendants have
not produced sufficient billing records to substantiate their fee request. Plaintiffs are free to
renew these arguments in response to Defendants’ supplemental brief, which should reflect
significant changes to their fee request.
IV.
Accordingly, it is ORDERED that Defendants’ motions for attorney fees, ECF Nos. 5455, are GRANTED in part.
It is further ORDERED that Defendants are DIRECTED to submit supplemental
briefing setting forth the amount of those fees, as set forth above. Defendants supplemental briefs
are due on February 8, 2019. Plaintiffs supplemental response is due on February 15, 2019.
s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
Dated: January 24, 2019
- 10 -
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?