MORT et al v. LAWRENCE COUNTY CHILDREN AND YOUTH SERVICES et al

Filing 31

BRIEF in Opposition re 17 Motion to Dismiss of Jameson Health System, Inc. filed by ELIZABETH MORT, ALEX RODRIGUEZ. (Dodge, Patricia)

MORT et al v. LAWRENCE COUNTY CHILDREN AND YOUTH SERVICES et al
870487.21

Doc. 31

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ELIZABETH MORT and ALEX RODRIGUEZ,
Plaintiffs,
v.
) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Civil Action No.2: 10-cv-01438-DSC

LAWRNCE COUNTY CHILDREN AND YOUTH SERVICES; LAWRNCE COUNTY; CHRSSY MONT AGUE, Lawrence County Children and Youth Services Caseworker; and JAMSON HEALTH SYSTEM, INC.
Defendants.

BRIEF IN OPPOSITION TO MOTION TO DISMISS OF DEFENDANT JAMESON HEALTH SYSTEM. INC.
Plaintiffs Elizabeth Mort and Alex Rodriguez, by and through their undersigned counsel,

submit this Brief in Opposition to the Motion to Dismiss fied by Defendant Jameson Health
System, Inc. ("Jameson"), in which Jameson seeks dismissal of

Plaintiffs' Amended Complaint

pursuant to Fed. R. Civ. P. 12(b)(6). For the reasons that follow, this Court should deny

Jameson's Motion to Dismiss.
I. Introduction
On April 26, 2010, Plaintiff

Mort consumed an "everything" bagel from Dunkin' Donuts

containing, among other ingredients, poppy seeds. Amended Complaint, ii 34. Plaintiff Mort

was admitted to Jameson for labor and delivery two hours later, and shortly afterwards she
submitted to a urine drug screen ("UDS") pursuant to Jameson's written policy which requires
all obstetrical patients admitted to maternity care to submit to a UDS ("Jameson's Policy").

Amended Complaint, iiii 17, 35 and 36. According to Jameson's Policy, a UDS is considered

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positive for opiates if the level of opiate metabolites detected in the urine is 300 nanograms/mL

or above - which is 1700 nanograms/mL less than the "cut-off' concentration levels for drug
tests used in federal workplace drug-testing programs. Amended Complaint, iiii 19 and 22.
The results of Plaintiff

Mort's initial UDS indicated the presence of opiates in her system

at a level greater than 300 nanograms/mL. Amended Complaint, iiii 38 and 22. Pursuant to its

Policy, Jameson then performed a confirmatory test on Plaintiff Mort's original urine sample,
which indicated the presence of morphine at a level of 501 nanograms/mL, approximately 1500

nanograms/mL lower than the aforementioned federal guidelines. Amended Complaint, iiii 38

and 22. The amount of morphine in Plaintiff Mort's system was entirely consistent with the

amount of morphine expected to be found in a urine sample within hours of eating foods
containing poppy seeds. Amended Complaint, ii 42. The results of Plaintiff Mort's urine tests
routinely taken throughout her pregnancy were negative for the presence of drugs, and her
obstetrician, Nicole Carlson, M.D., did not believe her to be a drug user. Amended Complaint, ii
41.

No one at Jameson informed Plaintiff Mort that the ingestion of foods containing poppy
seeds could affect the results of the UDS or asked Plaintiff

Mort whether she had eaten any foods

containing poppy seeds. Amended Complaint, ii 37. Jameson never informed Plaintiff Mort of
the allegedly positive drug tests or questioned her about drug use or her ability to care for Baby

Rodriguez. Amended Complaint, iiii 51-52. Instead, and pursuant to its Policy, Jameson
reported the results of Plaintiff Mort's UDS to caseworkers from Defendant Lawrence County
Children and Youth Services ("CYS"), an agency which is operated, managed and supervised by

Defendant Lawrence County ("Lawrence County") (CYS and Lawrence County will sometimes
be collectively referred to as "LCCYS"). Amended Complaint, ii 25.

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Plaintiff Mort delivered a healthy baby girl, Isabella Rodriguez ("Baby Rodriguez") on

April 27, 2010. Amended Complaint, ii 31. Pursuant to the Policy, Jameson performed a drug
test on Baby Rodriguez, which was negative for all illicit substances. Amended Complaint, ii 48.
Jameson discharged Plaintiff Mort and Baby Rodriguez on April

29, 2010. Amended Complaint,

ii 53.

One day after Plaintiff Mort and Plaintiff Rodriguez, the father of Baby Rodriguez,
arrived home from the hospital with their daughter, caseworkers from LCCYS and a police
offcer arrived unannounced at Plaintiffs' door with a court order to remove Baby Rodriguez.

Amended Complaint, iiii 1 and 3. The sole basis for the removal was Jameson's report to

LCCYS that the UDS it performed on Plaintiff Mort was positive for opiates. Amended
Complaint, ii 55. LCCYS took Baby Rodriguez and held her in an undisclosed location for five
days until admitting that it had made a mistake. Amended Complaint, iiii 1, 67, 86.

Plaintiffs' Amended Complaint asserts claims for conspiracy to violate Plaintiffs' civil

rights (Count II), negligence (Count III) and invasion of privacy (Count IV) against Jameson.
On December 30, 2010, Defendant Jameson fied a Motion to Dismiss these claims. As

discussed below, Jameson's Motion must be denied.1
II. The Standard for Granting a Motion to Dismiss

When deciding a motion to dismiss pursuant to Federal Rule of Civil Procedure 1 2(b )( 6),

this Court may look only to the facts alleged in the complaint and its attachments. Jordan v.
Fox, Rothschild, O'Brzen & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994). The Court must accept

i Plaintiffs do not contest Jameson's motion to dismiss Count IV of

the Amended Complaint but

request that Count IV be dismissed without prejudice so that Plaintiffs may amend their complaint if they learn during discovery that Jameson publicized the results of Plaintiff Mort's drug test.

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as true all well-pleaded allegations of

the complaint and view them in the light most favorable to

the plaintiff. Angelastro v. Prudential-Bache Sec., Inc., 764 F.2d 939, 944 (3d Cir. 1985). "In
considering whether the complaint survives a motion to dismiss, we review whether it contain( s J

either direct or inferential allegations respecting all the material elements necessary to sustain
recovery under some viable legal theory." Montvile Twp. v. Woodmont Builders, LLC, No. 054888, 2007 US. App. LEXIS 18825, at *2 (3d Cir. August 8, 2007) (citing Bell At!. Corp. v. Twombly, 127 S. Ct. 1955, 1969 (2007)). Allegations in the complaint must be "suffciently

detailed to put Defendants on fair notice of the claims against them and to permit Defendants to

frame an adequate responsive pleading." DiNicola v. DiPaolo, 945 F.Supp. 848, 857 (W.D.Pa.
1996).

Because the Amended Complaint more than satisfies the requisite pleading requirements,
the Court must deny Jameson's Motion to Dismiss, as discussed below.
III. Argument
A. Plaintiffs' allegations that Jameson and LCCYS had a pre-arranged plan to

subject obstetrical patients to drug tests so that LCCYS could remove newborns from their parents based solely on the results of those tests state a
claim against Jameson under 42 U.S.c. § 1983.

A private party may recover under § 1983 "against any person acting under color of state
law who deprives the party of

his or her constitutional rights." Collns v. Christie, No. 06-4702,

2007 US. Dist. LEXIS 61579, *7-8 (E.D.Pa. August 22, 2007). For a private actor to be
considered to have acted under color of state law, the actor '''must be deemed to have engaged in

a conspiracy with state actors, or to have been willful participants in joint activity with them in
order to be subjected to suit under 42 US.C. § 1983.'" Sershen v. Cholish, No. 3:07-CV-101 1,

2008 US. Dist. LEXIS 15678, at *13 (W.D.Pa. February 29, 2008) (quoting Beckerman v.

Weber, No. 1:06-CV-1334, 2007 US. Dist. LEXIS 58092, at *5 (M.D.Pa. Aug. 9, 2007)

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(emphasis added) (noting that although joint activity and "conspiracy" are often both present in
the same case, the two tests for state action are distinct). Under either test, "'(t)he inquiry is fact-

specific.'" Id (quoting Groman v. Twp. of Manalapan, 47 F.3d 628, 638 (3d Cir. 1995)); see
also Crissman v. Dover Downs Entm't Inc., 289 F.3d 231, 234 (3d Cir. 2002) (en banc) (noting
that "the facts are crucial").

Here, the Amended Complaint meets either test: Plaintiffs suffciently state a claim

against Jameson for acting under color of state law under 42 US.C. § 1983 through either
conspiracy or joint action with LCCYS.
1. Plaintiffs adequately state a claim for federal conspiracy.

Jameson's sole argument with respect to Plaintiffs' conspiracy claim is that Plaintiffs fail

to allege that Jameson conspired with LCCYS to actually remove Plaintiffs' child from their
custody. Jameson's contention is short-sighted and misunderstands the nature of Plaintiffs'
conspiracy claim as well as the requirements under federal pleading standards. In order to plead

a conspiracy suffcient to establish state action, a plaintiff must plead only "enough factual
matter (taken as true) to suggest that an agreement was made," or, stated otherwise, "plausible

grounds to infer an agreement." Twombly, 550 US. at 556. The complaint must allege facts
relating to joint rather than unilateral action. See Great Western Mining & Mineral Co. v. Fox
Rothschild LLP, 615 F.3d 159, 178-179 (3d Cir. 2010); Sershen, No. 3:07-CV-1011, 2008 US.
Dist. LEXIS 15678, at *23.
Plaintiffs allege that Jameson is a state actor for the purposes of

their Section 1983 action

because Jameson willfully participated in a joint conspiracy with LCCYS to violate parents'
Fourteenth Amendment substantive due process rights. While merely furnishing evidence of a
patient's positive urine drug screen to LCCYS would not rise to the level necessary to transform

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Jameson into a state actor, the Amended Complaint includes "enough factual matter (taken as
true) to suggest that an agreement was made," or stated otherwise, "plausible grounds to infer an
agreement," between LCCYS and Jameson whereby Jameson created and carried out a policy, in
coordination with LCCYS, of drug-testing all obstetrical patients and reporting positive results to

LCCYS in order to further LCCYS' unconstitutional policy of separating newborns from
mothers who test positive for illicit substances. Twombly, 550 US. at 556. More specifically,

the Amended Complaint alleges that:

· Jameson has a policy of subjecting all obstetrical patients to urine drug
tests that is not required by any state or federal

law (iiii 17- 1 8);

· Under that policy, Jameson notifies LCCYS whenever an obstetrical
patient tests positive for an illicit substance (iiii 25-26);

· Jameson's policy of reporting all maternity patients with confirmed
positive drug-test results to LCCYS is not required under any federal or
state law or regulation (ii 27);

· Jameson has a working relationship with LCCYS through its affliation
with the Children's Advocacy Center, which is based at Jameson's South
Campus (ii 30);

· Jameson's policy of subjecting all obstetrical patients to drug tests and informing LCCYS of positive results was created and carried out in
cooperation with LCCYS (ii 28);

· The purpose of Jameson's drug-testing policy is to further the goals of
LCCYS, not provide medical care to patients (ii 4);
· Jameson was aware that it was LCCYS' policy to remove a newborn

whenever Jameson disclosed to LCCYS that a prenatal drug test of the
infant's mother was positive (ii 29); and
· The joint actions of LCCYS and Jameson in developing such Policy and

performing drug tests at cut-off concentrations outside of recognized levels and in notifying LCCYS of any positive result "resulted in the
removal of Plaintiffs' child from their custody without reasonable

suspicion that she had been abused or was in imminent danger of abuse."
(iiii 17-30, 101).

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Viewed as a whole and taken as true, the allegations of cooperation, understanding and
agreement between Jameson and LCCYS in the development and implementation of Jameson's

Policy, drug-testing procedures and notification procedures demonstrates that Plaintiffs have
pleaded "enough facts to raise a reasonable expectation that discovery will reveal evidence of
illegal agreement." Twombly, 550 US. at 553. Therefore, the Amended Complaint

appropriately pleads a conspiracy under § 1983 against LCCYS and Jameson and that by acting
pursuant to such agreement with LCCYS, Jameson acted under color of state law. See Abbott v.

Latshaw, 164 F.3d 141, 147-48 (3d Cir. 1998) ("a private party who willfully participates in a
joint conspiracy with state offcials to deprive a person of a constitutional right acts 'under color
of state law' for purposes of § 1983"); see Croft v. Westmoreland County Children & Youth

Svcs., 103 F.3d 1123, 1126 (3d Cir. 1997) (absent objectively reasonable suspicion of abuse
justifying degree of interference with parents' rights, governmental intrusions into parent-child
relationship are arbitrary abuses of

power).

In an analogous case from the Western District of Pennsylvania cited by Defendant
Jameson, DiNicola v. DiPaolo, 945 F.Supp. 848, 857 (W.D.Pa. 1996), a complaint suffciently
alleged conspiracy through "specific facts to withstand dismissal" where it contained allegations

that a private individual/hypnotist cooperated with police offcers to implant a false memory in

the mind of a potential witness to a crime for which the plaintiff was the primary suspect, in
order to use the information to bring criminal charges against the plaintiff. DiNicola, 945

F.Supp. at 853. The complaint specifically alleged, inter alia, that: (1) the police offcers
cooperated with the hypnotist and gave information and instructions to the hypnotist prior to the

hypnosis; (2) the hypnosis session was "highly suggestive and otherwise done in violation of
generally accepted standards of hypnosis of

witnesses for forensic purposes"; and, (3) as a result

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of the hypnosis, the witness adopted a new memory of the events, which was the "product of

hypnosis and the plan and agreement among the defendants to bring false criminal charges
against the plaintiff." Id at 857. Relying on these allegations, the DiNicola court held that the

complaint was "suffciently detailed to put Defendants on fair notice of the claims against them
and to permit Defendants to frame an adequate responsive pleading." Id Further, the court

noted that it would be premature to dismiss the claim at such an early stage in the proceedings
and added that further development of

the record would be beneficiaL. Id

Application of the holding in DiNicola to the present facts warrants the same result.
Similar to the complaint in DiNicola, Plaintiffs' Amended Complaint alleges that (1) LCCYS

and Jameson agreed and cooperated in developing Jameson's Policy to require the hospital to
notify LCCYS of any positive prenatal drug test result regardless of whether the hospital had a

reasonable suspicion of abuse or imminent abuse; (2) the drug test performed by Jameson was
performed for the purpose of carrying out LCCYS unconstitutional policy of removing newborn
children from their parents and not for any medical or legal reason and violated generally

accepted standards by using unreasonably low cut-off concentration levels; and (3) as a result of

Jameson's report of Plaintiff Mort's drug test results to LCCYS, LCCYS removed Plaintiffs'

child from their custody, which was the foreseeable and intended outcome of LCCYS' sand
Jameson's plan to identify babies born to mothers with positive prenatal drug tests and separate

them from their parents. As in DiNicola, these allegations are not unilateral or conclusory and
are more than suffcient to place Defendants on notice of the claims against them.

The only case relied upon by Jameson, Great Western, is inapplicable to the present
situation. In that case, as opposed to DiNicola, the complaint's allegations were solely
conclusory describing only "unilateral action on the part of certain (state actors)" with no

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allegations relating to any agreement or joint activity between the state actor and the private
party. Great Western, 615 F.3d at 179. Here, as described above in detail, there are numerous
allegations relating to an agreement and/or cooperation between Jameson and LCCYS to develop

the Policy, perform drug tests of all maternity patients, and report all positive test results to

LCCYS. Those actions resulted in the removal of Plaintiffs' child from their custody.
Therefore, Plaintiffs' allegations are not conclusory and the Amended Complaint suffciently

pleads a claim for conspiracy against Jameson and LCCYS.
2. Plaintiffs set forth facts suffcient to infer a claim of joint

participation between Jameson and LCCYS.
In addition to setting forth a suffcient claim for conspiracy, the Amended Complaint also
sets forth the elements necessary to sustain recovery under a theory of joint participation between
LCCYS and Jameson. "In considering whether the complaint survives a motion to dismiss, we

review whether it contain( s) either direct or inferential allegations respecting all the material

elements necessary to sustain recovery under some viable legal theory." Montvile Twp. v.
Woodmont Builders, LLC, No. 05-4888, 2007 US. App. LEXIS 18825, at *2 (3d Cir. August 8,
2007) (citing Twombly, 550 US. at 562).

Plaintiffs have met the requirements to allege the necessary level of joint participation
and collaboration between Jameson and LCCYS because they have alleged the existence of a

pre-arranged plan between Jameson and LCCYS to separate newborn children from their
mothers when Jameson determines that the mother has tested positive for an illicit substance.
See Cruz v. Donnelly, 727 F.2d 79, 80 (3d Cir. 1984); see also, Great Western, 615 F.3d at 178-

79 (citing Twombly, 550 US. at 556) ("plaintiff must simply plead "enough facts to raise a
reasonable evidence of illegal agreement"). "(W)hen the state creates a system permitting

private parties to substitute their judgment for that of a state offcial or body, a private actor's

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mere invocation of state power renders the party's conduct actionable under § 1983." Cruz, 727

F.2d at 81-82. "In order to establish the necessary level of joint participation and collaboration,

the plaintiff must allege: the existence of a pre-arranged plan (between the state actor and the
private party) by which the (the state actor) substituted the judgment of private parties for their

own offcial authority." Collns, No. 06-4702, 2007 US. Dist. LEXIS 61579, at *10. The
critical issue is "whether the state, through its agents or laws, has established a formal procedure
or working relationship that drapes private actors with the power of

the state." Cruz, 727 F.2d at

80.

In Cruz, the Third Circuit considered whether the operators of a retail food store and its

employees jointly participated with the police in a manner actionable under § 1983. The Cruz

complaint alleged that the private parties accused the plaintiff of shoplifting and ordered the
police to conduct a strip-search of the plaintiff, and that the police subsequently conducted the
requested strip-search "without probable cause and only because of racial discrimination." 727

F.2d at 79-80. The Third Circuit held that in order to find that the private parties acted under
color of state law, the complaint had to set forth allegations suggesting that "( 1) the (state actor
has) a pre-arranged plan with the (private party) and (2) under the plan, the (state actor) will (act)
without independently evaluating the presence of

probable cause." Id at 81.

The Amended Complaint sets forth allegations suggesting that LCCYS and Jameson had

a pre-arranged plan. Amended Complaint, iiii 3, 4, 17-30, 128, 100-09. The Amended
Complaint also sets forth allegations that, under Jameson's Policy, LCCYS would routinely
remove children from the care and custody of their parents without performing its own
independent investigation to establish the presence of

probable cause. Amended Complaint iiii 3,

44, 46, 47, 52, 54, 56-58. Therefore, the Amended Complaint has set forth allegations suffcient

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to find that Jameson jointly participated with LCCYS pursuant to a combination, agreement or
understanding to remove Plaintiffs' child from their home without reasonable suspicion of past

or imminent child abuse, in violation of Plaintiffs' fundamental right to the care and custody of
their child.

B. Jameson is not entitled to immunity for negligently reporting the results of Plaintiff Mort's drug test to LCCYS because its conduct falls outside the
scope of the Child Protective Services Law and was not made in good faith.
Defendant Jameson argues that Plaintiffs' state law claim in Count III of the Amended
Complaint should be dismissed, because Jameson is immune from liability pursuant to § 6318 of

the Child Protective Services Law ("CPSL") at 23 P.S. § 6301 et seq. Neither Jameson's
conduct relating to the creation and administration of its Policy nor its reporting the results of
Plaintiff Mort's drug test to LCCYS falls within the scope of the Child Protective Services Law,

because neither relates to the reporting of child abuse or suspected child abuse. Alternatively,
any report allegedly made pursuant to the Law was not based on a reasonable suspicion of past
or imminent child abuse, and Jameson is therefore not entitled to immunity under the Law.
Section 6318 of

the CPSL does not shield Jameson from liability for Plaintiffs' state law

claim in Count III of the Amended Complaint because Jameson lacked any basis for suspecting

that Baby Rodriguez was an abused child. There is no law that requires hospitals to subject

obstetrical patients to drug tests or to report the results of such drug tests to child welfare
agencies. Jameson made the decision to undertake a maternal drug-testing and reporting policy,

and it is liable for the injuries to its patients that result from its negligent conduct in performing
and reporting the results of those drug tests?

2 Cf Sharpe v. St. Luke's Hasp., 573 Pa. 90, 821 A.2d 1215, 1221 (2003) (hospital owed plaintiff

duty of reasonable care with regard to collection and handling of her urine specimen, which was
taken for purpose of employment-related drug testing).

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Although the CPSL provides immunity from liability for state law claims to persons who

are required to report child abuse,3 that immunity applies only when the reporter has reasonable
cause to suspect that the child is a victim of child abuse 4 or is involved in the delivery or care of

an infant who is born and identified as being affected by illegal substance abuse or is having
withdrawal symptoms resulting from prenatal drug exposure. Id at § 6311, 6318, 6386; R.A. by

and Through NA. v. First Church of Christ, 2000 Pa. Super. 58, 748 A.2d 692, 696 (2000)
(CPSL "requires reporting only where there is 'reasonable cause to suspect' abuse").

The factual allegations in the Amended Complaint demonstrate that Jameson had no
reason to suspect that Baby Rodriguez was a victim of child abuse, Amended Complaint ii 50,

and did not believe that Baby Rodriguez had been affected by illegal substance abuse or was
having withdrawal symptoms resulting from prenatal drug exposure. Id at iiii 48-49. According
to the Amended Complaint, Plaintiff Mort gave birth to a healthy baby girl at Jameson Hospital

on April 27, 2010, after receiving all necessary and appropriate prenatal care. Id at iiii 31-32.
3 The CPSL is most often cited in cases relating to reports of sexual or physical abuse that has

occurred prior to the child coming into contact with the reporter, and, often, when the reporter
fears the abuse will happen again. See ex Heinrich v. Conemaugh Valley Memorial, 436 Pa.

Super. 465, 648 A.2d 53 (1994) (granting immunity to hospital that reported suspected abuse based on swelling on and around infant's temple); Player v. Singer, 18 Pa. D. & C. 4th 505 (Ct. Comm. PI. Clearfield Cty. 1992) (granting immunity to psychologist who reported suspected
abuse based on interviews with children). 4 The CPSL defines "child abuse" as "(i) Any recent act or failure to act by a perpetrator which
causes nonaccidental serious physical injury to a child under 18 years of age; (ii) An act or

failure to act by a perpetrator which causes nonaccidental serious mental injury to or sexual
abuse or sexual exploitation to a child under 18 years of age; (iii) Any recent act, failure to act or series of such acts or failures to act by a perpetrator which creates an imminent risk of serious

physical injury to or sexual abuse or sexual exploitation of a child under 18 years of age; or (iv) Serious physical neglect by a perpetrator constituting prolonged or repeated lack of supervision or the failure to provide essentials of life." 23 Pa. Cons. Stat. § 6303. A fetus is not
considered a "child." See Commonwealth v. Kemp, 18 Pa. D. & CAth 53 (Ct. Comm. PI. Westmoreland Cty. 1992).

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The results of drug tests on Baby Rodriguez were negative, and Jameson knew at the time that it

informed LCCYS of Plaintiff Mort's positive drug-test result that Baby Rodriguez had neither
been affected by illegal substance abuse nor had any withdrawal symptoms resulting from

prenatal drug exposure. Id at iiii 48-49. Indeed, Jameson discharged Baby Rodriguez from the
hospital before reporting the results of Plaintiff

Mort's drug test to LCCYS. Id at iiii 45, 53.

Although mandatory reporters are entitled to a presumption of good faith immunity when

making reports of child abuse, that immunity is not absolute. The CPSL should not be construed

to "protect the defendants where the statements (to Child and Youth Services) were made
negligently, in reckless disregard as to their truth or falsity, or with a malicious purpose." Rauch
v. Spotts, 20 Pa. D.&C. 4th 152, 158 (Ct. Comm. Pleas Lycoming Cty. 1993) (analyzing

immunity for reporting abuse under CPSL and other statutes). The factual allegations in the

Amended Complaint demonstrate that Jameson acted negligently when it made the report
regarding Plaintiff

Mort's drug-test results to LCCYS. For instance, at no point did Jameson ask

Plaintiff Mort if she ate any foods, such as poppy seeds, that could interfere with the results of
the drug test or inform her that some foods could cause a false positive result. Amended
Complaint, ii 37. Nor did Jameson contact Mort after learning the results of

the drug test to find

out if the positive result could have been caused by any food or medicine she was taking. Id at
iiii 39, 44, 45, 51. In addition, Jameson used arbitrarily low cut-off concentration levels to

determine what constituted a positive result for opiates. Id at iiii 19-22. Finally, Jameson did
not provide any information to LCCYS about the level of opiate metabolites detected in Mort's
urine sample or tell LCCYS that foods could cause a false positive result. Id at iiii 46-47. Given

that the drug-testing of Mort was undertaken pursuant to a Policy adopted by Jameson and that
Jameson knew that Plaintiffs would suffer serious consequences - the removal of

their newborn

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child by LCCYS - as a result of reporting a positive drug test to LCCYS, Jameson should have

taken reasonable and appropriate steps to ensure that it did not make erroneous reports about
positive prenatal drug tests to LCCYS. The fact that it took no such steps is strong evidence that
it acted negligently.

Jameson has cited no cases that support its contention that it was required under the
CPSL to report the results of what is believed to be a positive prenatal drug test to LCCYS.

Instead, Jameson cites to cases in which child-abuse reporters were entitled to good-faith

immunity for making reports about clear evidence of child abuse. In Fewell v. Besner, 444 Pa.
Super. 559, 664 A.2d 557 (1995), for example, the information conveyed in the report was that

the abuser in that case had admitted to killing her son. Id at 563, 664 A.2d at 578. Similarly, in

Heinrich v. Conemaugh Valley Memorial Hasp., 436 Pa. Super. 465, 648 A.2d 53 (1994), the
hospital made a report based on physical injuries its staff had observed in the patient-child. Id at
467-73, 648 A.2d at 54-57.
Here, there is no specific evidence of either past or imminent abuse; there is only

evidence that the concentration of opiate metabolites in Plaintiff Mort's urine sample was greater
than 300 nanograms/ML and the concentration of

morphine was 501 nanograms/ML. Given the

fact that these concentration levels are approximately 1700 and 1500 nanograms/mL lower than

the cut-off concentration levels used by the federal government for federal workplace drug-

testing programs, it was not reasonable for Jameson to conclude that the drug-test results
indicated that Baby Rodriguez was a victim of child abuse or had been born affected by or
suffering from withdrawal symptoms as a result of prenatal drug exposure, especially when
Jameson knew that Baby Rodriguez was healthy and had tested negative for any trace of drugs in
her system. Amended Complaint, ii 48.

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Jameson's Policy does not serve the purpose of

the CPSL, which "is to bring about quick

and effective reporting of suspected child abuse so as to serve as a means for providing

protective services competently and to prevent further abuse of the children while providing
rehabilitative services for them and the parents." Heinrich, 436 Pa. Super at 474, 648 A.2d at 53.
Rather, Jameson's Policy serves to remove a child from her parents without reasonable suspicion

of past or imminent child abuse, based only on the results of a negligently drafted drug-testing
policy which routinely results in "false positives." See Amended Complaint, iiii 21,40. Because

Jameson's conduct in reporting the results of Plaintiff Mort's UDS to LCCYS was negligent,
recklessly disregarded the high possibility of a false report, and lacked a reasonable suspicion of

past or imminent child abuse, Jameson not entitled to the qualified immunity granted by the

Child Protective Services Law. Therefore, Plaintiffs' state law claim in Count III of the
Amended Complaint should not be dismissed.5
C. Plaintiff Mort suffciently pleaded a claim of negligence because she alleged

that she suffered harm as a result of Jameson's conduct.

In Count III of the Amended Complaint, Plaintiff Mort suffciently pleads a cause of
action based on Jameson's breach of its duty of care to Plaintiff Mort as a patient of Jameson,

and on Plaintiff Mort's resulting "harm, including, but not limited to, emotional and
psychological pain and suffering and injury to her reputation." Amended Complaint, ii 113.

While Jameson claims that Plaintiff Mort is not entitled to recover on this claim because the
Amended Complaint does not contain allegations of physical injury, Plaintiffs are not required at
this stage to set forth every component of their damage claim.

5 Jameson asserted the same argument regarding Count IV of the Amended Complaint. As
previously indicated, Plaintiffs do not contest the dismissal without prejudice of Count IV.

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In fact, the allegations in the Amended Complaint are broad enough to allege physical
injuries. The Amended Complaint states that Plaintiff Mort suffered "harm, including, but not
limited to, emotional and psychological pain and suffering...." Amended Complaint, ii 113

(emphasis added). Under Rule 9 of

the Federal Rules of

Civil Procedure, the only specificity of

pleading with respect to damages relates to "special damages," which is not applicable. Fed. R.
Civ. Pro. 9(g). Notably, all of the case law cited by Jameson regarding the specificity of

pleading required is Pennsylvania state case law, rather than the applicable federal notice

pleading standard.

In the event that this Court determines that Plaintiff Mort is required to plead her

damages in Count III with greater specificity, Plaintiff Mort requests leave to amend. Pursuant

to Rule 15(a)(2) of the Federal Rules of Civil Procedure, a "court should freely grant leave (to

amend a complaint) when justice so requires." Fed. R. Civ. Pro. 15(a)(2). If given leave,
Plaintiff Mort will amend Count III to include the following physical injuries: headaches,
repeated hysterical attacks, frequent nightmares, insomnia, stress, and anxiety. "(U)nder current

Pennsylvania case law, a plaintiff who can show such problems as long-term nausea or
headaches, repeated hysterical attacks, nightmares, depression, stress, or anxiety which require
psychological treatment has demonstrated physical injury suffcient to sustain a cause of action."
Weaver v. Univ. of Pitt. Med Center, No. 08-411,2008 US. Dist. LEXIS 57988, at *30 (W.D.
Pa. July 29, 2008). Insomnia is also a physical symptom that warrants recovery. Armstrong v.
Paoli Memorial Hasp., 430 Pa. Super. 36, 44-45, 633 A.2d 605, 609 (1993) (citing Crivellaro v.

Pennsylvania Power and Light, 341 Pa. Super. 173, 180, 491 A.2d 207, 210 (1985)). These
injuries are suffcient to constitute "physical injury" under Pennsylvania law.

- 16-

870487.2

CONCLUSION

For the reasons above, Plaintiffs Elizabeth Mort and Alex Rodriguez request that the
Court deny the Motion to Dismiss of Jameson Health System, Inc.

MEYER, UNOVIC & SCOTT LLP
By: Isl Patricia L. Dodge Patricia L. Dodge PA ID No. 35393 Quinn A. Johnson PA ID No. 91161
Antoinette Oliver PA ID No. 206148 535 Smithfield Street Suite 1300 Pittsburgh, PAl 5222-2315 [phone] pld(£muslaw.com qaj com (£muslaw. aco(£muslaw. com

By: Isl Sara J Rose
Sara 1. Rose

PAID No. 204936 Witold 1. Walczak PAID No. 62976 AMRICAN CIVIL LIBERTIES FOUNATION OF PENNSYLVANIA
3 13 Atwood Street

Pittsburgh, PAl 5213 [phone] srose(£aclupa.org vwalczak(£aclupa.org

Counsel for Plaintiffs

February 23, 2011

- 1 7-

870487.21

CERTIFICA TE OF SERVICE

The undersigned hereby certifies that a true and correct copy of the within Brief in
Opposition to Defendant Jameson Health System, Inc.'s Motion to Dismiss was served this 23rd
day of

February, 20ll, via the Court's electronic transmission facilities pursuant to Fed. R. Civ.

P. 5(b)(3) and Local Rule 5.5 upon the following:
John C. Conti, Esquire Richard 1. Kabbert, Esquire Dickie, McCamey & Chilcote Two PPG Place, Suite 400 Pittsburgh, PAl 5222 for Defendant Jameson Health System, Inc.)

(Counsel

Marie Milie Jones, Esquire Meyer, Darragh, Buckler, Bebenek & Eck, P.L.L.C. US. Steel Tower, Suite 4850 600 Grant Street
Pittsburgh, PAl 52 1 9
(Counsel

for Defendants Lawrence County Children and Youth Services, Lawrence County and Chrissy Montague)

By: Isl Patricia L. Dodge
Counsel for Plaintiffs