Peschong et al v. Children's Healthcare et al
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,
Children’s Healthcare, d/b/a
Children’s Hospitals and Clinics
of Minnesota, and Alice Swenson, M.D.,
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
This matter is before the court upon the motion for judgment
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.
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.
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.
transfer to Gillette.
Id. ¶¶ 9, 14.
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
procedures, and sleep studies.1
Id. ¶ 11.
Among other ailments,
D.P. suffered from persistent respiratory illness and obstructive
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
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
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
performance, and social skills.
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
conditions in order to obtain care that [D.P.] does not need and
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).
“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.
that may, in fact, be harmful.”
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.
Swenson further noted that although D.P. does have “documented
medical disorders,” they did not warrant his ongoing use of oxygen,
recommended that D.P. “be placed in a safe environment where
beginning with the most invasive interventions.”
On June 22, 2015, Dr. Swenson submitted the report to Hennepin
County Child Protective Services (HCCPS).
Compl. ¶ 43.
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
Id. ¶¶ 61, 63; Norrie Decl. Ex. 3, at 1.
placed D.P. at Children’s where he remained as an inpatient for
Compl. ¶ 64.
Doctors downsized D.P.’s
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.
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.
tracheostomy tube during his hospitalization.
Id. ¶ 65.
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.
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
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
Norrie Decl. Ex. 1, at 1.
and represented by counsel.
but was not present.
Ms. Peschong was present
D.P. was represented by counsel,
The court heard testimony from thirteen
witnesses, including Dr. Swenson and several medical professionals
Id. ¶ 1.0.
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.
As to Dr. Swenson, the court determined that her
testimony was credible “in all respects.”
Id. ¶ 15.0.
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.”
The court gave “significant weight” to her testimony.
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
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
or unwillingness to provide the child with only medically
necessary care. Thus, the child is in need of protection
Id. at 21 ¶¶ 1.0, 1.1; see also id. ¶¶ 27.0-39.4.
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.
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.”
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.”
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.
of E.P., 2016 WL 4163219, at *4.
Ms. Peschong filed a petition for review with the Minnesota
Norrie Decl. Ex. 6, at 3-5.
Id. Ex. 7.
D.P. was eventually returned to Ms. Peschong’s custody
The court denied review.
interventions have been appropriately addressed” and that “all
necessary components” of Ms. Peschong’s “case plan have been
Second Cody Decl. Ex. M, at 2.
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
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
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.
Plaintiffs move for
partial summary judgment on Counts I and VI and on several of
defendants’ affirmative defenses.
Motion for Judgment on the Pleadings
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
Although a complaint need not contain detailed factual
Plaintiffs filed an amended complaint on March 8, 2017.
ECF No. 4.
allegations, it must raise a right to relief above the speculative
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.
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
“necessarily embraced by the pleadings.”
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.
Defendants argue that plaintiffs are collaterally estopped
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.
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.
“[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
(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
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.
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
Indeed, the report’s veracity appears to have been the
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.
central feature of Ms. Peschong’s defense to the petition.
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
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
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.
Plaintiffs point to no differences between Dr. Swenson’s
testimony during the CHIPS proceeding and her report.
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.
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
Id. (internal quotation marks omitted) (quoting
Hentschel v. Smith, 153 N.W.2d 199, 206 (Minn. 1967)).
courts find privity to exist for “those whose interests are
represented by a party to the action.”
privity is determined on a case-by-case basis.
The question of
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
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
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.
of the limited discovery and motion practice available in the CHIPS
But plaintiffs fail to identify how such procedural
limitations affected their ability to litigate the accuracy of the
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
Minnesota Court of Appeals.
Thus, the court is satisfied that
plaintiffs had a full and fair opportunity to litigate the issue
presented here in the state court.
Courts have held the same in
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
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
As a result, plaintiffs’ claims, each of which depends on
a determination that the report is false, fail on the merits.
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.
Accordingly, based on the above, IT IS HEREBY ORDERED that:
The motion for judgment on the pleadings [ECF No. 14] is
The motion for partial summary judgment [ECF No. 20] is
denied as moot; and
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
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