Peschong et al v. Children's Healthcare et al

Filing 61

ORDER granting 14 Motion for Judgment on the Pleadings; denying 20 Motion for Summary Judgment(Written Opinion) Signed by Senior Judge David S. Doty on July 14, 2017. (JRC)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 17-706(DSD/KMM)
Essie Peschong and
D.P., E.P.P., and E.C.P.,
minors, by and through their parent
and natural guardian, Essie Pechong,
Plaintiffs,
v.

ORDER

Children’s Healthcare, d/b/a
Children’s Hospitals and Clinics
of Minnesota, and Alice Swenson, M.D.,
Defendants.

Scott Matthew Cody, Esq., Kyle Kosieracki, Esq. and Tarhish
Cody, PLC, 6337 Penn Avenue South, Richfield, MN 55423,
counsel for plaintiffs.
Jonathan P. Norrie, Esq. and Bassford Remele, 100 South 5th
Street, Suite 1500, Minneapolis, MN 55402, counsel for
defendants.

This matter is before the court upon the motion for judgment
on

the

pleadings

by

defendants

Children’s

Healthcare,

d/b/a

Children’s Hospitals and Clinics of Minnesota (Children’s), and
Alice Swenson, M.D.

Also before the court is the motion for

partial summary judgment by plaintiffs Essie Peschong; D.P., a
minor, by and through his parent and natural guardian, Essie
Peschong; E.P.P., a minor, by and through his parent and natural
guardian, Essie Peschong; and E.C.P., a minor, by and through his
parent and natural guardian, Essie Peschong.

Based on a review of

the file, record, and proceedings herein, the court grants the

motion for judgment on the pleadings and denies the motion for
partial summary judgment as moot.

BACKGROUND
This civil rights action arises out of a Child in Need of
Protection or Services (CHIPS) proceeding in Hennepin County that
resulted in D.P.’s seven-month placement in foster care.

D.P. was

born to Essie Peschong in 2004 with dysmorphic features, a bone
disorder, and obstructions within his upper airway. Compl. ¶¶ 7-8.
D.P. received his primary medical care from Children’s from 2004 to
2007, and thereafter from Gillette Children’s.
Providers

from

Children’s

transfer to Gillette.

continued

to

treat

Id. ¶¶ 9, 14.
D.P.

after

the

Id. ¶ 14.

D.P. was in and out of the hospital during his first eleven
years; he was hospitalized for forty-one days, treated nine times
in

the

emergency

room,

and

procedures, and sleep studies.1

underwent
Id. ¶ 11.

numerous

surgeries,

Among other ailments,

D.P. suffered from persistent respiratory illness and obstructive
sleep apnea.

Id. ¶ 12.

Over the years, D.P. used supplemental

oxygen to manage his symptoms and regularly used a wheelchair. Id.
¶¶ 11-12, 20.

On July 1, 2014, D.P. underwent a successful

1

The court will not detail all of D.P.’s health issues or
care, but will focus instead on the facts directly relevant to the
instant motions.
2

tracheostomy2 procedure to relieve his sleep apnea.

Id. ¶¶ 18-19.

According to Ms. Peschong, after the procedure, D.P. rarely used
supplemental oxygen or a wheelchair.

Id. ¶ 20.

D.P.’s ability to

sleep

did

behavior,

increased

dramatically,

performance, and social skills.

as

his

school

Id. ¶ 21.

In approximately February 2015, Cindy Brady, a nurse who last
provided care to D.P. in 2008, reported to Dr. Swenson, a child
abuse pediatrician at Children’s, that D.P. may be the victim of
medical child abuse.3

Id. ¶¶ 22-24.

Specifically, Brady reported

that D.P. continually used supplemental oxygen without cause and
opined that a tracheostomy may not have been necessary.

Id. ¶ 24.

Brady asked Dr. Swenson to review D.P.’s medical records to
determine whether Ms. Peschong was abusing D.P.

Id. ¶ 27.

On June 17, 2015, Dr. Swenson wrote a report concluding that
Ms.

Peschong

“appears

to

be

misrepresenting

[D.P.’s]

medical

conditions in order to obtain care that [D.P.] does not need and

2

A tracheostomy is “a surgically created hole through the
front of your neck and into your windpipe (trachea) .... [It]
provides an air passage to help you breathe when the usual route
for breathing is somehow obstructed or impaired.” Mayo Clinic,
http://www.mayoclinic.org/tests-procedures/tracheostomy/home/ovc20233993 (last visited July 7, 2017).
3

“Medical child abuse” occurs “when a parent or guardian ...
seek[s] excessive medical care for their child, even to the point
of creating symptoms in the child, or report[s] symptoms that are
not there to medical providers in order to have interventions
performed, and for the child to have the sick role.” In re Welfare
of E.P., No. A16-0281, 2016 WL 4163219, at *1 (Minn. Ct. App. Aug.
8, 2016).
3

that may, in fact, be harmful.”
at 4.

Id. ¶ 28; First Cody Decl. Ex. A,

She noted that D.P.’s medical records indicate “a clear

long-standing pattern of mother reporting symptoms that are not
observed by the medical staff.”

First Cody Decl. Ex. A, at 4.

Dr.

Swenson further noted that although D.P. does have “documented
medical disorders,” they did not warrant his ongoing use of oxygen,
use

of

a

wheelchair,

or

a

tracheostomy.

Dr.

Id.

Swenson

recommended that D.P. “be placed in a safe environment where
medical

interventions

can

be

removed

as

quickly

beginning with the most invasive interventions.”

as

possible

Id.

On June 22, 2015, Dr. Swenson submitted the report to Hennepin
County Child Protective Services (HCCPS).

Compl. ¶ 43.

HCCPS

thereafter filed an ex-parte child protection petition with the
Hennepin County Juvenile Court asserting that D.P. was the victim
of medical child abuse by his mother.
based exclusively on the report.

Id. ¶ 48.

Id. ¶ 49.

The petition was

On July 13, 2015, the

juvenile court granted the petition and removed D.P. from his home
and family.4

Id. ¶¶ 61, 63; Norrie Decl. Ex. 3, at 1.

HCCPS

placed D.P. at Children’s where he remained as an inpatient for
more

than

a

week.5

Compl. ¶ 64.

Doctors downsized D.P.’s

4

Until that time, D.P. had lived with Ms. Peschong and his
two siblings, E.P.P. and E.C.P., both of whom are plaintiffs in
this case. Id. ¶ 62.
5

It is unclear from the record, but it appears that D.P. may
have been hospitalized at Children’s on July 8, several days before
the court granted the petition. Norrie Decl. Ex. 1, at 2.
4

tracheostomy tube during his hospitalization.

Id. ¶ 65.

Ms.

Peschong was not permitted to see or communicate with D.P. during
that time, nor was she aware of or involved in decisions regarding
his medical care.

Id. ¶¶ 64-65.

After his release from Children’s, D.P. was placed in foster
care with family members.

Id.

¶ 68.

Although not in the

complaint, the record properly before the court establishes that
Ms. Peschong, who was represented by counsel, challenged the basis
for the Petition throughout the proceedings.

In July and August,

she moved twice - both times unsuccessfully - for the juvenile
court to reconsider the removal order.

Norrie Decl. Ex. 3, at 1.

On December 23, 2015, Ms. Peschong moved to dismiss the petition,
arguing that its allegations were untrue and belied by the medical
records.

Id.

Ms. Peschong also moved for sanctions against HCCPS

for its alleged failure to reasonably investigate the matter before
filing the petition.

Id. at 2.

The court denied both motions,

concluding that there were “sufficient facts to support a juvenile
protection matter under current law, and the issues raised by [Ms.
Peschong] may be appropriately addressed at trial.”

Id. at 4.

On January 5, 6, and 7, 2016, the court held a bench trial on
the matter.

Norrie Decl. Ex. 1, at 1.

and represented by counsel.
but was not present.

Id.

Ms. Peschong was present

D.P. was represented by counsel,

Id.

The court heard testimony from thirteen

witnesses, including Dr. Swenson and several medical professionals

5

called

by

Ms.

examination.

Peschong,
Id. ¶ 1.0.

all

of

whom

were

subject

to

cross-

The court also admitted twenty-three

exhibits, which included, among other documents, Dr. Swenson’s
report and hundreds of pages of medical records. Id. ¶¶ 2.0, 25.025.2.
The court carefully assessed each witness’s credibility.
¶¶ 11.0-24.0.

Id.

As to Dr. Swenson, the court determined that her

testimony was credible “in all respects.”

Id. ¶ 15.0.

The court

specifically noted that Dr. Swenson was “knowledgeable about the
facts of this matter,” her demeanor was “forthcoming and earnest,”
and her “answers were thoughtful and her testimony was persuasive.”
Id.

The court gave “significant weight” to her testimony.

Id.

In

contrast, the court concluded that Ms. Peschong was a “poor
historian - particularly regarding the child’s medical history” and
gave little weight to her testimony.

Id. ¶ 21.0.

The court also

gave little weight to the medical professionals called by Ms.
Peschong because they lacked comprehensive knowledge of D.P.’s
medical history.

Id. ¶¶ 16.0, 17.0, 18.0, 19.0, 20.0.

On February 5, 2016, after weighing the evidence and after the
parties had the opportunity to submit post-trial briefing, the
court concluded that D.P. was a victim of medical child abuse:
Respondent has subjected the child to numerous
unnecessary medical procedures and interventions, and as
a result the child is without the required care for the
child’s physical and mental health. Respondent mother
has not corrected the situation that led to the child’s
removal from the home, and has demonstrated an inability
6

or unwillingness to provide the child with only medically
necessary care. Thus, the child is in need of protection
or services.
Id. at 21 ¶¶ 1.0, 1.1; see also id. ¶¶ 27.0-39.4.

The court

ordered legal custody of D.P. transferred to HCCPS for continued
foster care placement in a third-party non-relative home.6
21 ¶ 2.0.

Id. at

The court also ordered Ms. Peschong to complete a case

plan, which required her to participate in individual and family
therapy, follow all recommendations of D.P.’s medical providers,
ensure that D.P. has one primary care provider, maintain safe and
suitable housing, and cooperate with HCCPS and the appointed
Guardian ad Litem.

Id. ¶¶ 3.0-3.5.

Ms. Peschong immediately appealed, arguing, in part, that Dr.
Swenson’s report and testimony were “ill-informed” because she did
not (1) review all of D.P.’s medical records, (2) speak to D.P.’s
specialists, (3) examine D.P., or (4) interview Ms. Peschong.
Second Norrie Decl. Ex. 8, at 40. Ms. Peschong further argued that
the report and Dr. Swenson’s testimony were “riddled with errors”
and that Dr. Swenson “either exaggerated her study of D.P.’s
medical records or knowingly misrepresented their contents.”

Id.

at 41. The Minnesota Court of Appeals affirmed the lower court and
in doing so specifically rejected Ms. Peschong’s objections to Dr.
Swenson’s “inferences, opinions, and conclusions.”

6

In re Welfare

D.P. was removed from his relative’s home due to conflicts
with other people in that home. Id. at 18 n.107.
7

of E.P., 2016 WL 4163219, at *4.
Ms. Peschong filed a petition for review with the Minnesota
Supreme

Court,

again

challenging

Dr.

Swenson’s

report

and

testimony.

Norrie Decl. Ex. 6, at 3-5.

Id. Ex. 7.

D.P. was eventually returned to Ms. Peschong’s custody

after

the

court

concluded

that

The court denied review.

“all

medically

unnecessary

interventions have been appropriately addressed” and that “all
necessary components” of Ms. Peschong’s “case plan have been
satisfactorily completed.”
On

March

7,

2017,

Second Cody Decl. Ex. M, at 2.
plaintiffs

filed

this

suit

against

Children’s and Dr. Swenson alleging that Dr. Swenson’s report,
which served as the basis for the CHIPS petition, was false.
Plaintiffs raise eight claims:

Count I asserts a claim by Ms.

Peschong that Children’s and Dr. Swenson violated Minn. Stat.
§ 626.556 subdiv. 5; Count II asserts a claim by D.P. that Dr.
Swenson violated the Fourth Amendment and 42 U.S.C. § 1983; Count
III asserts a claim by all plaintiffs that Children’s and Dr.
Swenson violated their right to family integrity in violation of 42
U.S.C.

§

1983;

Count

IV

asserts

a

claim

for

defamation

and

defamation per se against Children’s and Dr. Swenson by Ms.
Peschong and D.P.; Count V asserts a claim for false imprisonment
by D.P. against Children’s and Dr. Swenson; Count VI asserts a
claim for intrusion upon seclusion by all plaintiffs against
Children’s

and

Dr.

Swenson;

Count

8

VII

asserts

a

claim

for

intentional infliction of emotional distress by all plaintiffs
against Children’s and Dr. Swenson; and Count VIII asserts a claim
by D.P. against Children’s for negligent supervision.7
now move for judgment on the pleadings.

Defendants

Plaintiffs move for

partial summary judgment on Counts I and VI and on several of
defendants’ affirmative defenses.

DISCUSSION
I.

Motion for Judgment on the Pleadings
A.

Standard

The same standard of review applies to motions under Federal
Rules of Civil Procedure 12(c) and 12(b)(6).

Ashley Cty., Ark. v.

Pfizer, Inc., 552 F.3d 659, 665 (8th Cir. 2009).

Thus, to survive

a motion for judgment on the pleadings, “a complaint must contain
sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face.”

Braden v. Wal–Mart Stores,

Inc., 588 F.3d 585, 594 (8th Cir. 2009) (citation and internal
quotation marks omitted).

“A claim has facial plausibility when

the plaintiff [has pleaded] factual content that allows the court
to draw the reasonable inference that the defendant is liable for
the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009).

Although a complaint need not contain detailed factual

7

Plaintiffs filed an amended complaint on March 8, 2017.
ECF No. 4.
9

allegations, it must raise a right to relief above the speculative
level.

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).

“[L]abels and conclusions or a formulaic recitation of the elements
of a cause of action” are not sufficient to state a claim.

Iqbal,

556 U.S. at 678 (citation and internal quotation marks omitted).
The court does not consider matters outside of the pleadings
under Rule 12(c).

Fed. R. Civ. P. 12(d).

The court, however, may

consider matters of public record and materials that do not
contradict

the

complaint,

as

well

as

“necessarily embraced by the pleadings.”

materials

that

are

Porous Media Corp. v.

Pall Corp., 186 F.3d 1077, 1079 (8th Cir. 1999) (citation and
internal quotation marks omitted).

In this case, the documents

relevant to the CHIPS proceeding are necessarily embraced by the
pleadings and are properly considered.
B.

Collateral Estoppel

Defendants argue that plaintiffs are collaterally estopped
from

pursuing

their

claims

because

Ms.

Peschong’s

numerous

challenges to Dr. Swenson’s report in the underlying case were
heard and rejected.

The doctrine of collateral estoppel bars the

re-litigation of an issue that was “distinctly contested and
directly determined” in an earlier adjudication.

Hauschildt v.

Beckingham, 686 N.W.2d 829, 837-38 (Minn. 2004).

The issue must

have been “necessary and essential to the resulting judgment” in
the earlier action.

Id. at 837.
10

“[I]ssues actually litigated in

a state-court proceeding are entitled to the same preclusive effect
in a subsequent federal § 1983 suit as they enjoy in the courts of
the State where the judgment was rendered.”
Sch. Dist. Bd., 465 U.S. 75, 83 (1984).

Migra v. Warren City
Under Minnesota law,

collateral estoppel is appropriate when the following four elements
are met:
(1) the issue was identical to one in a prior
adjudication; (2) there was a final judgment on the
merits; (3) the estopped party was a party or in privity
with a party to the prior adjudication; and (4) the
estopped party was given a full and fair opportunity to
be heard on the adjudicated issue.
Ill. Farmers Ins. Co. v. Reed, 662 N.W.2d 529, 531 (Minn. 2003).
Plaintiffs contest whether the first, third, and fourth elements
are met.
1.

Identity of Issues

Plaintiffs first argue that the accuracy of Dr. Swenson’s
report, which the parties agree is the gravamen of the instant
complaint,8 was not at issue in the CHIPS proceeding.

The court

disagrees.
As set forth above, the documents from the CHIPS proceeding
establish that Ms. Peschong attacked the report and corresponding
petition repeatedly throughout those proceedings, including on
appeal.

Indeed, the report’s veracity appears to have been the

8

All of the claims asserted rely on the premise that Dr.
Swenson’s report was false. See Am. Compl. ¶¶ 75-79, 83-85, 89-92,
96-97, 101-03, 109-12, 120-23, 127-30, 132-36, 138-41.
11

central feature of Ms. Peschong’s defense to the petition.

The

fact that the juvenile court, in ruling against Ms. Peschong, did
not expressly state that the report was accurate is of no moment.
Indeed, the court found Dr. Swenson’s testimony to be credible “in
all respects” and in doing so, also implicitly found the report to
be credible.9

Moreover, the court’s ultimate finding - that D.P.

was the victim of medical child abuse - corresponds to the findings
in the report. As a result, the material issue in both proceedings
is identical.
2.

Privity

Plaintiffs next argue that E.C.P. and E.P.P. were not parties
to the CHIPS proceeding or in privity with Ms. Peschong or D.P.,
and therefore cannot be estopped from pursuing their claims here.10
The court again disagrees.
Privity “expresses the idea that as to certain matters and in
certain circumstances persons who are not parties to an action but
who are connected with it in their interests are affected by the
judgment with reference to interests involved in the action, as if
they were parties.”

Rucker v. Schmidt, 794 N.W.2d 114, 118 (Minn.

9

Plaintiffs point to no differences between Dr. Swenson’s
testimony during the CHIPS proceeding and her report.
10

E.C.P. and E.P.P. have alleged a violation of the right to
family integrity under § 1983, intrusion upon seclusion, and
intentional infliction of emotional distress. Both are minors and
their claims are brought by and through Ms. Peschong as their
parent and natural guardian.
12

2011) (internal quotation marks omitted) (quoting Margo–Kraft
Distribs., Inc. v. Minneapolis Gas Co., 200 N.W.2d 45, 47 (Minn.
1972)). “Privies to a judgment are those who are so connected with
the parties in estate or in blood or in law as to be identified
with them in interest, and consequently to be affected with them by
the litigation.”

Id. (internal quotation marks omitted) (quoting

Hentschel v. Smith, 153 N.W.2d 199, 206 (Minn. 1967)).

Minnesota

courts find privity to exist for “those whose interests are
represented by a party to the action.”

Id.

privity is determined on a case-by-case basis.

The question of
Id.

Here, Ms. Peschong and her children have a mutual legal
interest in keeping their family together.

That interest was

squarely at issue - and vigorously defended by Ms. Peschong - in
the CHIPS proceeding. Plaintiffs do not offer an explanation as to
how their interests diverge for present purposes, nor do they
adequately explain how E.C.P. and E.P.P. were prejudiced by not
being parties to the CHIPS proceeding.

As a result, the court

finds that E.C.P. and E.P.P. are in privity with Ms. Peschong for
purposes of collateral estoppel.11
3.

Full and Fair Opportunity to Litigate

Plaintiffs lastly argue that they did not have a full and fair
opportunity to litigate the issue of the report’s accuracy because

11

The court need not decide whether E.C.P. and E.P.P. are in
privity with D.P. given their privity with Ms. Peschong.
13

of the limited discovery and motion practice available in the CHIPS
proceedings.

But plaintiffs fail to identify how such procedural

limitations affected their ability to litigate the accuracy of the
report.

Indeed, based on the record before the court, it appear

that plaintiffs were able to comprehensively explore the report’s
accuracy in the underlying case.

Ms. Peschong filed pre-trial

motions challenging the contents of the report; participated in a
three-day trial, during which her lawyer called witnesses and
cross-examined adverse witnesses, including Dr. Swenson; filed
post-trial

papers;

and

appealed

Minnesota Court of Appeals.

the

court’s

findings

to

the

Thus, the court is satisfied that

plaintiffs had a full and fair opportunity to litigate the issue
presented here in the state court.
cases

involving

underlying

Courts have held the same in

matters

with

similar

procedural

limitations. See Erickson v. Horing, No. 99-1468, 2001 WL 1640142,
at *10 (D. Minn. Sept. 21, 2001) (“Plaintiffs’ allegation that they
did not have a full and fair opportunity to litigate the fraud
issue in the state court because they were not permitted any
discovery does not preclude the Court from finding that an issue
was ‘litigated’ for collateral estoppel purposes.”); see also Coley
v. Landrum, No.

1:14-00956, 2016 WL 4919985, at *5 (S.D. Ind.

Sept. 15, 2016), aff’d sub nom. Coley v. Abell, No. 16-3635, 2017
WL 1166874 (7th Cir. Mar. 29, 2017) (“[T]he juvenile court found
probable

cause

existed

to

support

14

the

removal

and

continued

detention of Coley’s children.

Because a determination that

probable cause did not exist is required for Coley to prevail on
her claims in this case, Coley is barred by the doctrine of issue
preclusion from raising those claims here.”); Chalmers v. Ozaukee
Cty., No. 13-686, 2015 WL 1219594, at *3 (E.D. Wis. Mar. 17, 2015)
(concluding that the state court’s finding of probable cause was
dispositive of the federal claim that removal of the children
violated the plaintiff’s due process right to familial integrity).
Because the elements of collateral estoppel have been met,
plaintiffs are barred from re-litigating the accuracy of the
report.

As a result, plaintiffs’ claims, each of which depends on

a determination that the report is false, fail on the merits.
II.

Partial Summary Judgment Motion
Because plaintiffs are collaterally estopped from bringing

their claims, the court will deny their motion for partial summary
judgment as moot.

CONCLUSION
Accordingly, based on the above, IT IS HEREBY ORDERED that:
1.

The motion for judgment on the pleadings [ECF No. 14] is

granted;
2.

The motion for partial summary judgment [ECF No. 20] is

denied as moot; and

15

3.

The case is dismissed with prejudice.

LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: July 14, 2017
s/David S. Doty
David S. Doty, Judge
United States District Court

16