Amended Complaint

KATHRYN COLLARD, #0697

THE LAW FIRM OF KATHRYN COLLARD, L.C.

4265 South 1400 East, Suite A

Salt Lake City, UT 84124

Tel: (801) 277-2277

Facsimile: (801) 277-2557

ROBERT D. STRIEPER, #10145

STRIEPER LAW FIRM

2366 Logan Way

Salt Lake City, UT 84108-2737

Tel: (801) 631-64211

MACON COWLES, #6790 (Colorado)

EASON RHODE, LLC.

1129 Cherokee

Denver, CO 80204

Tel: (303) 381-3406

Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

ABBY TISCARENO and GUILLERMO

TISCARENO,

Plaintiffs,

v.

LORI FRASIER, in her individual capacity;;

IHC HEALTH SERVICES, INC., in its

individual capacity; WILLIAM BEERMAN, in

his individual capacity; JOHN and JANE DOES

1-20, in their individual capacities,

Defendants.

PLAINTIFFS SECOND

AMENDED COMPLAINT

AND JURY DEMAND

Case No. 2:07-cv-336

Judge Clark Waddoups

Magistrate Judge Dustin B. Pead

Case 2:07-cv-00336-CW-DBP Document 288 Filed 02/01/13 Page 1 of 88

TABLE OF CONTENTS

TABLE OF CONTENTS ................................................................................................................. i

I. JURISDICTION AND VENUE ..............................................................................2

II. COMPLAINT TO BE READ AS AN INTEGRATED DOCUMENT ...................2

III. THE RELEVANT TIME PERIOD .........................................................................2

IV. PLAINTIFFS ...........................................................................................................2

V. DEFENDANTS .......................................................................................................3

A. Defendant Lori Frasier .............................................................................................3

B. Defendant Intermountain Health Care .....................................................................5

C. Defendant William Beerman ...................................................................................6

E. Defendants John And Jane Does 1-20 .....................................................................8

VI. INTENT OF DEFENDANTS ..................................................................................8

VII. DEFENDANTS ACTED UNDER COLOR OF STATE LAW ..............................9

A. The States Exercised Their Compelling Parens Patriae Interest in

Protecting Children By Adopting A Multidisciplinary Approach To The

Reporting, Investigation and Prosecution of Child Abuse.......................................9

B. The State of Utah Assumed Duties For The Reporting, Investigation and

Prosecution of Child Abuse and Delegated These Duties To State

Agencies DHS/DCFS and State Law Enforcement Agencies Under State

Statutes And Regulations .......................................................................................10

C. Utah Adopts A Multidisciplinary Team Approach Encouraging The

Cooperation of State Social Services and Law Enforcement Agencies In

The Reporting, Investigation and Prosecution of Child Abuse .............................11

D. The State of Utah Contracts with Defendant IHC to Assist the State in Its

Public Functions Of Reporting, Investigating And Prosecuting Child

Abuse Cases Using An MDT Approach ................................................................13

E. DHS/DCFS Require IHC To Provide Staff Training And Reserve The

Right to Monitor IHCs Performance And Provide Training to Improve

IHCs Performance of Contract Services ...............................................................14


Tiscareno v. Frasier, et al., Second Amended Complaint Page ii

F. DHS/DCFS Allows Defendant IHC To Subcontract Performance Of

Services Under The State Contract ........................................................................15

G. DHS/DCFS Exempts Defendant IHC, As A Sole Provider, From State

Bidding Process .....................................................................................................15

H. DHS/DCFS Requires IHC to Comply With All Applicable Federal and

State Laws, Including DHS/DCFS Provider Code of Conduct, In

Providing Contract Services In The Reporting, Investigation And

Prosecution of Child Abuse Cases .........................................................................15

I. DHS/DCFS Pays State Funds To IHC For Contract Services And Passes

Federal Funds Through to CSHF ...........................................................................18

J. The State Contract Imposed Special Record Keeping Requirements on

IHC Regarding Records of Minors Such as N.M. .................................................18

K. DHS and DCFS Have A Non-Exclusive Ownership Interest And Ready

Access To Records Relating To Contract Services Provided By IHC And

Its Staff, Including Defendants Frasier And Beerman ...........................................18

L. Defendant IHC Has The Duty To Inform DHS/DCFS Of The Request For

N.M.s Records From Any Entity Other Than DHS or DCFS ..............................19

M. DHS/DCFS Has The Right To Participate In Any Suit Against Defendant

IHC .........................................................................................................................19

N. Defendants IHC, Frasier and Beerman Performed Public Functions Under

The State Contract..................................................................................................20

O. Defendants Federal Constitutional Duty to Disclose Exculpatory

Evidence .................................................................................................................20

VIII. GENERAL ALLEGATIONS REGARDING DEFENDANTS

CONDUCT IN THE CASE OF N.M. ...................................................................21

A. Abby Tiscareno Finds N.M. In Distress ................................................................21

B. N.M. Is Admitted To PCMC .................................................................................22

C. Dr. Walker Sends Specimen of N.M.s Hematoma for Pathology

Examination ...........................................................................................................23

D. Dr. Pysher Performs Pathology Examination of N.M.s Hematoma .....................25

E. Pathology Report w/ Concurring Report of Dr. Townsend Sent to Dr.

Walker, Dr. Reading and Medical Records Department .......................................26

F. DCFS, IHC and Summit County Detectives Conduct Multi-Disciplinary

Team Investigation of Suspected Abuse of N.M. ..................................................27

G. Defendant Frasier Enters The Case........................................................................29


Tiscareno v. Frasier, et al., Second Amended Complaint Page iii

H. Defendant Frasier Interviews James Molineux......................................................32

I. Defendant Frasier Forms A Conclusion ...............................................................33

J. Defendant Frasier Discusses N.M.s Case with Dr. Walker ..................................35

K. Defendant Frasier Informs Detectives N.M. Could Only Have Only Been

Injured While in Abby Tiscarenos Care, While Withholding And

Concealing Exculpatory Pathology Evidence ........................................................37

L. Based on Defendant Frasiers Representations Regarding the Timing of

N.M.s Injury, Detectives Focused Their Investigation On Abby Tiscareno ........38

M. Defendant Frasier Continues To Encourage The Prosecution Of Abby

Tiscareno ................................................................................................................41

N. Defendant Frasier Views Surgical Records Showing Specimen of N.M.s

Hematoma Submitted for Pathology Examination ................................................45

O. Defendant Frasier Fails To Obtain Pathology Report or Discuss Its

Findings..................................................................................................................45

P. DCFS Returns N.M. And His Brother To Fathers Custody Based On

Frasiers Representations That Abby Tiscareno Caused N.M.s Injury ................46

Q. Based On Defendant Frasiers Time Line Eliminating All Other Suspects,

Summit County Arrests And Charges Abby Tiscareno with Felony Child

Abuse of N.M.........................................................................................................46

R. DCFS Revokes Abby Tiscarenos License To Operate Day Care ........................48

S. Detective Dorman Contacts Defendant Frasier Again To Confirm That

N.M. Could Only Have Been Injured In While In Abby Tiscarenos Care...........48

T. Abby Tiscarenos Attorney Requests Discovery Documents For Her

Defense And Prosecutor Brickey Responds ..........................................................49

U. Prosecutor Brickey Formally Requests Complete Records of N.M. from

Defendants IHC, Beerman And Frasier .................................................................51

V. Defendants Frasier, IHC and Beerman Violate Their Duties To Produce

Exculpatory Medical Records of N.M. To Prosecutor Brickey .............................52

W. Abby Tiscareno Deprived Of Exculpatory Evidence At The Preliminary

Hearing ...................................................................................................................55

X. Prosecutor Brickey Continues To Provide Discovery Documents To

Attorney Xaiz And Works With Defendant Frasier To Prosecute Abby

Tiscareno ................................................................................................................57


Tiscareno v. Frasier, et al., Second Amended Complaint Page iv

Y. Defendant Frasier Writes Journal Article About N.M. Omitting Evidence

Contrary To Her Conclusions Regarding The Timing And Perpetrator Of

N.M.s Injuries .......................................................................................................58

Z. Prosecutor David Brickey Attempts To Obtain N.M.s Complete

Medical Records For Disclosure to Abby Tiscarenos Defense Attorney .............58

AA. Frasier Fails To Disclose Exculpatory Pathology Evidence To Prosecutor

Brickey During Trial Preparation ..........................................................................61

BB. The First Trial of Abby Tiscareno Without Exculpatory Pathology

Evidence Results In Wrongful Conviction ............................................................62

CC. N.M.s Parents File Damage Action Against Abby Tiscareno And Her

New Attorneys Discover Exculpatory The Exculpatory Pathology

Evidence .................................................................................................................65

DD. The Second Trial Of Abby Tiscareno Results In Acquittal ...................................67

IX. FIRST CAUSE OF ACTION AGAINST DEFENDANTS FRASIER,

IHC AND BEERMAN FOR DEPRIVING ABBY TISCARENO OF HER

RIGHT NOT TO BE DEPRIVED OF LIBERTY WITHOUT DUE

PROCESS OF LAW ..............................................................................................73

X. SECOND CAUSE OF ACTIONAGAINST DEFENDANT FRASIER

FOR DEPRIVING ABBY TISCARENO OF HER RIGHT AGAINST AN

UNREASONABLE SEIZURE UNDER THE FOURTH AND

FOURTEENTH AMENDMENT BY A MALICIOUS PROSECUTION

PURSUANT TO 42 U.S.C. 1983 ........................................................................78

XI. PRAYER FOR RELIEF ........................................................................................79

XII. JURY DEMAND ..................................................................................................79

END NOTES .................................................................................................................................81


Tiscareno v. Frasier, et al., Second Amended Complaint Page 2

I. JURISDICTION AND VENUE

1. This action arises under 42 U.S.C. 1983 and 1988 and the Fourth and

Fourteenth Amendments to the United States Constitution.

2. Jurisdiction of the Court to hear and determine the Plaintiffs claims is invoked

pursuant to 42 U.S.C. 1983; 28 U.S.C., 1331, 1343(a) (3), 2201, 2202, 1367 and the

aforementioned federal and state constitutional provisions.

3. Venue in this Court is proper under 28 U.S.C. 1391 because the Defendants

reside in this judicial district and the asserted claims for relief arose in this judicial district.

II. COMPLAINT TO BE READ AS AN INTEGRATED DOCUMENT

4. This Complaint is to be read as an integrated document with the allegations

contained in each portion thereof to be incorporated by reference into all other portions of the

Complaint to the extent they are relevant.

III. THE RELEVANT TIME PERIOD

5. The time period relevant to Plaintiffs claims against Defendants is November 14,

2003, through May 26, 2005 (the relevant time). The conduct of the parties and the events

described in this Complaint occurred during the relevant time unless otherwise indicated.

IV. PLAINTIFFS

6. Plaintiff Abigail (Abby) Tiscareno was and is a resident of Summit County,

State of Utah, and the wife of Plaintiff Guillermo Tiscareno.

7. Plaintiff Guillermo Tiscareno was and is a resident of Summit County, State of

Utah, and the husband of Plaintiff Abby Tiscareno.



V. DEFENDANTS

A. Defendant Lori Frasier

8. Defendant Lori Frasier, M.D. ("Defendant Frasier") was and is a resident of Salt

Lake County, State of Utah.

9. Defendant Frasier was employed as the Director of the Medical Assessment Team

of the Center for Safe and Healthy Families (CSHF), a Department within Primary Childrens

Medical Center (PCMC), and conducted child abuse assessments within the scope of her

employment at PCMC.

10. CSHF interfaced with the Utah Department of Human Services (DHS) and the

Utah Division of Child and Family Services (DCFS) and state law enforcement agencies in the

reporting, investigation and prosecution of child abuse cases. CSHF received substantial state

and federal funds directly or indirectly through Defendant IHC, doing business as PCMC,1

including funds from DHS/DCFS to pay part of Defendant Frasiers salary. 2

11. As the Director of the Medical Assessments Team, Defendant Frasier had the

authority and duty to respond to requests for medical records of N.M. maintained in the CSHF.

Pursuant to the longstanding policy and practice of IHC, CSHF records concerning N.M. were

sequestered away from the medical records of N.M. housed in Medical Records Department at

PCMC.3

12. Defendant Frasier acted as the chief forensic investigator, complaining witness,

expert medical consultant, expert medical witness and member of the prosecution team in the

criminal case of State of Utah v. Maria Abigail Tiscareno, Summit County District Court Case

No. 031500228.



13. Defendant Frasier exercised final policymaking authority for IHC in determining

the course of action in:

a. Diagnosing and investigating the nature, mechanism and timing of N.M.s injury;

b. Providing copies of her reports regarding her diagnosis and investigation in

N.M.s case to DHS/DCFS, Summit County Detectives and Summit County Prosecutor David

Brickey (Prosecutor Brickey);

c. Consulting with and directing Summit County Detectives in the investigation of

N.M.s case based on her diagnosis;

d. Assisting Prosecutor Brickey in the prosecution of Abby Tiscareno in N.M.s case

by providing him with her opinions regarding potential medical expert witnesses for the

prosecution;

e. Assisting Prosecutor Brickey in the prosecution of Abby Tiscareno in N.M.s

case by providing him with information to disqualify and/or cross-examine Abby Tiscarenos

expert medical witness;

f. Collecting and maintaining the evidence and medical records relating to her

diagnosis and investigation in N.M. case in the CSHF;

g. Providing the medical records relating her investigation of N.M.s case to the

Medical Records Department at PCMC, for use in responding to official subpoenas and/or

requests of Prosecutor Brickey for N.M.s medical records for use in the criminal prosecution of

Abby Tiscareno; and



h. Providing exculpatory evidence obtained in her investigation of the suspected

child abuse of N.M. to Prosecutor Brickey for disclosure to Abby Tiscarenos attorney

(Attorney Xaiz) in the prosecution of N.M.s case.

14. As a policymaking official and staff member of IHC, Defendant Frasier acted

under color of the statutory laws, rules, regulations, policies, procedures and customs of the State

of Utah, including those referenced in the State Contract between DHS/DCFS and Defendant

IHC described herein.

15. Defendant Frasier is sued for damages in her individual capacity.

B. Defendant Intermountain Health Care

16. Defendant IHC Health Services, Inc. ("IHC" or Defendant IHC) was and is a

private corporation organized and existing under the laws of the State of Utah, doing business as

Primary Childrens Medical Center (PCMC) in Salt Lake City, State of Utah, and operating the

Center for Safe and Healthy Families (CSFH) as a Department within PCMC.4

17. The CSHF receives substantial public funding, including public funding under the

State Contract between DHS/DCFS and IHC (the State Contract) described below, a copy of

which is attached and incorporated by reference herein. 5

18. Defendant IHC acted under color of the statutory laws, rules, regulations, policies,

procedures and customs of the United States and the State of Utah, including those referenced in

the State Contract described herein.

19. In performing its duties under the State Contract to assist DHS/DCFS in the

diagnosis of child abuse and providing supporting written reports to DHS/DCFS regarding the

results of these evaluations and to provide consultation for professionals utilizing medical



assessments to make legal decisions regarding the care of [IHC] clients who have been allegedly

abused, Defendant IHC deferred to Defendant Frasier as the final policymaker for IHC in

determining the course of action regarding these matters in the case of N.M. and provided no

meaningful review of her decisions.

20. In performing its duties under the State Contract: (1) to collect and maintain the

medical records relating to the suspected child abuse of N.M. housed in the CSHF and the

Medical Records Department at PCMC, including medical records exculpatory of Abby

Tiscareno, for disclosure to Prosecutor Brickey for use in the criminal prosecution of Abby

Tiscareno; and (2) to disclose these records to Prosecutor Brickey for use in the criminal

prosecution of Abby Tiscareno in response to his official subpoenas and/or requests, Defendant

IHC deferred to Defendant Beerman as the final policymaker for IHC in determining the course

of action regarding these matters in the case of N.M. and provided no meaningful review of his

decisions.

21. Defendant IHC is sued for damages in its individual capacity and no claims are

asserted against IHC in this action based upon respondeat superior.

C. Defendant William Beerman

22. Defendant William Beerman ("Defendant Beerman") was and is a resident of Salt

Lake County, State of Utah.

23. Defendant IHC employed Defendant Beerman as the Director of Patient

Administration at PCMC.6

24. As Director of the Medical Records Department (also known as the Health

Information Services Department) at PCMC, Defendant Beerman oversaw the general operations



of the Medical Records Department including the compilation, storage and distribution of

medical records.7

25. As the Director Patient Administration at PCMC, Defendant Beerman had the

duty to manage and supervise the production of medical records of suspected victims of child

abuse, including N.M., requested from PCMC Medical Records Department and/or the CSHF,

by state prosecutors in connection with the prosecution of criminal child abuse cases, including

the case of N.M.8

26. The policies of CSHF provided, in part, that Referral to Medical Records

Department. All subpoenas or other requests for medical records, including but not limited to

child abuse records, shall be immediately referred to the PCMC Health Information Services

(HIS Department)[also known as the Medical Records Department], regardless of where the

actual records are kept.9

27. Defendant Beerman exercised final policymaking authority for IHC in

determining the course of action in:

a. Collecting, maintaining and providing the exculpatory Pathology evidence and

medical records relating to IHCs investigation of the suspected child abuse of N.M. to

Prosecutor Brickey for use in the criminal prosecution of Abby Tiscareno; and in

b. Collecting, maintaining and providing the exculpatory Pathology evidence and

medical records relating to IHCs investigation of the suspected child abuse of N.M. to

Prosecutor Brickey for use in the criminal prosecution against Abby Tiscareno in response to his

official subpoenas and/or requests.



28. As a policymaking official and staff member of IHC, Defendant Beerman acted

under color of the statutory laws, rules, regulations, policies, procedures and customs of the

United States and the State of Utah, including those referenced in the State Contract between

DHS/DCFS and Defendant IHC described herein.

29. Defendant Beerman is sued for damages in his individual capacity.

E. Defendants John And Jane Does 1-20

30. Defendants John and Jane Does 1-20 are individuals whose names are unknown

to Plaintiffs at this time, who caused or contributed to the unlawful actions of the other named

Defendants herein, or who independently violated the federal constitutional rights of Plaintiff

Abby Tiscareno.

31. Defendants John and Jane Does 1-20 acted under color of the statutory laws,

rules, regulations, policies, procedures and customs of the State of Utah, including those set forth

in the State Contract between DHS/DCFS and Defendant IHC described herein.

32. Defendants John and Jane Does 1-20 are sued for damages in their individual

capacities.

VI. INTENT OF DEFENDANTS

33. By doing or failing to do the acts alleged herein, Defendants IHC, Beerman,

Frasier and John and Jane Does, and each of them, acted maliciously, knowingly, intentionally,

recklessly and/or in bad faith, in depriving Abby Tiscareno of the federal constitutional rights

described herein.



VII. DEFENDANTS ACTED UNDER COLOR OF STATE LAW

A. The States Exercised Their Compelling Parens Patriae Interest in Protecting

Children By Adopting A Multidisciplinary Approach To The Reporting,

Investigation and Prosecution of Child Abuse

34. States have a compelling parens patriae interest in protecting children. Santosky v.

Kramer, 455 U.S. 645, 766 (1982) All 50 states have laws criminalizing child abuse.10

35. In furtherance of their compelling interest in protecting children, many States,

including Utah, have enacted statutes or adopted policies designed to encourage state child

welfare agencies and state law enforcement agencies to cooperate in investigating and

prosecuting child abuse.11

36. Most States, including Utah, have recognized that the best way to achieve safety

for children and to minimize trauma to child victims is to require the state agencies and law

enforcement agencies charged with investigating and prosecuting child abuse to cooperate. Child

abuse investigations necessarily implicate law enforcement issues.12

37. Beginning with the passage of the Child Abuse Prevention and Treatment Act

(CAPTA) in 1974, Pub. L. No. 93-247, 88 Stat. 4 (Jan. 31, 1974) (codified as amended at 42

U.S.C. 5101 to 5119c), the federal government demonstrated an interest in improving child-

abuse prevention efforts, specifically by creating and improving the use of multidisciplinary

teams [MDTs] and interagency protocols to enhance investigations. 42 U.S.C. 5106a

(a)(2)(A).13

38. Under 42 U.S.C. 5106a(b)(2)(A)(xi) of CAPTA, States eligible for federal grants

to support the development of these multidisciplinary investigation teams (MDTs), may lose

those funds if they do not submit a plan that assures that a state law or program relating to child



abuse and neglect includes the cooperation of State law enforcement officials, courts of

competent jurisdiction, and appropriate State agencies providing human services in the

investigation, assessment, prosecution and treatment of child abuse and neglect.14

39. Following CAPTAs enactment, the States quickly adopted joint investigation

protocols for state social service and law enforcement agencies, using the MDT approach.15

B. The State of Utah Assumed Duties For The Reporting, Investigation and

Prosecution of Child Abuse and Delegated These Duties To State Agencies

DHS/DCFS and State Law Enforcement Agencies Under State Statutes And

Regulations

40. Traditionally and during the relevant time, the State of Utah assumed, as its

exclusive prerogative and public functions of reporting, investigating and prosecuting child

abuse cases in Utah.16

41. The State of Utah voluntarily undertook responsibility for the reporting,

investigation and prosecution of child abuse cases in Utah by enacting official state statutes,

rules, regulations, policies and procedures, requiring the reporting, investigation and prosecution

of suspected cases of child abuse.17

42. The State of Utah also voluntarily undertook responsibility for the reporting,

investigation and prosecution of child abuse cases in Utah by creating and delegating duties for

the reporting, investigation and prosecution of child abuse cases to state agencies including DHS,

DCFS and state law enforcement agencies under the aegis of the Utah Attorney Generals Office.

43. In 1988, the Utah Legislature enacted the Utah Child Abuse Reporting Act to

govern the reporting, investigation and prosecution of child abuse, declaring the legislative

purpose of the Act to protect the best interests of children, offer protective services to prevent



harm to children, stabilize the home environment, preserve family life whenever possible, and

encourage cooperation among the states in dealing with the problem of child abuse.18

C. Utah Adopts A Multidisciplinary Team Approach Encouraging The Cooperation of

State Social Services and Law Enforcement Agencies In The Reporting,

Investigation and Prosecution of Child Abuse

44. In the Child Abuse Reporting Act, the Utah Legislature adopted a

multidisciplinary approach (MDT), encouraging state child welfare agencies such as DHS and

DCFS and state law enforcement agencies and prosecutors, to work together in the reporting,

investigation and prosecution of reported child abuse.

45. Thus, 62A-4a-403 of the 2003 version of the Utah Child Abuse Reporting Act

provided, in pertinent part, that:

When any person including persons licensed under Title 67, Utah

Medical Practice Act has reason to believe that a child has subjected to physical abuse., he shall immediately notify the appropriate local law enforcement agency. On receipt of this

notice, the peace officer of law enforcement agency shall

immediately notify the nearest office of the division [DCFS]. If an

initial report of child abuse is made to the division, the division shall immediately notify the appropriate local law enforcement

agency. The division shall, in addition to its own investigation,

comply with and lend support to investigations by law enforcement

undertaken pursuant to this section. 19

46. Additionally, 62A-4a-409 of the 2003 Utah Child Abuse Reporting Act further

encouraged the cooperation of state social service agencies and law enforcement agencies in

providing that:

(1) the division [DCFS] shall make a thorough pre-removal

investigation upon receiving an oral or written report of alleged

child abuse.The primary purpose of that investigation shall be the protection of the child. (2) The pre-removal investigation shall

include the same investigative requirements described in 62A-4a-

202.3. (3) The division [DCFS] shall make a report of its

investigation. The written report shall include a determination



regarding whether the alleged abuse was substantiated, unsubstantiated, or without merit (4) (a) The division shall use an interdisciplinary approach whenever possible in dealing with

reports made under this part. (b) For this purpose, the division

shall convene appropriate interdisciplinary child protection teams to assist in its protective, diagnostic, assessment, treatment, and coordination services. (c) A representative of the

division shall serve as the teams coordinator and chair. Members of the team shall serve at the coordinators invitation, and whenever possible, the team shall include representatives of

health, mental health, education, law enforcement agencies, and

other appropriate agencies or individuals. (11) With regard to

cases in which law enforcement has or is conducting an

investigation of alleged abuse of a child: (a) the division shall coordinate with law enforcement to ensure that there is an

adequate safety plan to protect the child from further abuse or

neglect; and (b) the division is not required to duplicate an aspect

of the investigation that, in the divisions determination, has been satisfactorily completed by law enforcement.

20

(Emphasis supplied.)

47. Beginning in 1991, DCFS contracted with Prevent Child Abuse Utah (PCA), a

private, non-profit agency, to update and create a manual of the statewide protocol for the

reporting and handling of child abuse cases using the MDT approach in the investigation of child

abuse by DCFS Child Protection Service (CPS), the investigative arm of DCFS, and state law

enforcement agencies required by Utah statutes (the State Protocol).21

48. The State Protocol provides that CPS personnel and law enforcement officers are

required to make a thorough investigation up receiving a report of alleged abuse or neglect. The

primary purpose of the investigation is the protection of the child. In order to protect the child,

prosecution of the abuser is sometimes necessary.22

49. The State Protocol also provides that CPS and law enforcement investigators

may conduct a joint interview with victims of abuse. Law enforcement officers will be



involved on any serious physical abuse casewhere a crime may have been committed. CPS

and law enforcement work as a team to serve the best interest of the child and uphold the law.23

50. To implement Utah statutes governing the MDT approach to the reporting,

investigation and prosecution of child abuse cases by DHS/DCFS and state law enforcement

agencies, the State of Utah also provided a CPS telephone hotline for the reporting of child

abuse, created Childrens Justice Centers throughout the state which are overseen by the Utah

Attorney Generals Office, established Domestic Violence Shelters, Family Support Centers, an

Office of Child Protection Ombudsman, the State of Utah Office of Crime Victim Reparations,

and the Utah Attorney Generals Office Child Protection Division.24

D. The State of Utah Contracts with Defendant IHC to Assist the State in Its Public

Functions Of Reporting, Investigating And Prosecuting Child Abuse Cases Using

An MDT Approach

51. Defendants IHC and Beerman admit that from at least 1986 through the present

year, the State of Utah, through DHS /DCFS, has contracted with Defendant IHC to assist

DHS/DCFS in the performance of the States public functions and duties in regard to the

reporting, investigation and prosecution of child abuse.25

A copy of the State Contract, Doc. 140-

10, is attached as Pltf. Exhibit 1 hereto, and incorporated by reference herein.

52. On April 3, 2003, pursuant to authority granted under state and federal laws,

DHS/DCFS entered into such a contract (the State Contract) with Defendant IHC for the

period July 1, 2003 through June 2004, and every subsequent year, in which Defendant IHC is

referred to as the Contractor.26

53. The State Contract provides that Defendant IHC will assist DHS/DCFS in the

investigation and prosecution of child abuse cases by: 27



a. Providing medical examinations for children who have allegedly been abused or

neglected;

b. Assisting DHS/DCFS in the diagnosis of child abuse and neglect and submitting

written reports to DHS/DCFS regarding the results of these evaluations;

c. Providing training and/or consultation for professionals utilizing medical

assessments to make social and legal decisions regarding the care of clients who have been

allegedly abused or neglected; and

d. Providing training to professionals in the child welfare community in the

identification of child abuse and neglect, particularly in rural areas of the State.

54. The State Contract provides that Defendant IHC will provide office space and

furnishings to the DHS/DCFS Child Protection Team Coordinators.28

E. DHS/DCFS Require IHC To Provide Staff Training And Reserve The Right to

Monitor IHCs Performance And Provide Training to Improve IHCs Performance

of Contract Services

55. The State Contract provides that Defendant IHC is required to conduct all

necessary training to ensure that its staff carries out IHCs responsibilities under the State

Contract and is familiar with the requirements imposed by the State Contract and applicable

laws.29

56. The State Contract provides that DHS/DCFS has the right to monitor IHCs

performance of all services purchased under the Contract and to provide consultation, technical

assistance and training to Defendant IHC to improve its performance under the Contract.30



F. DHS/DCFS Allows Defendant IHC To Subcontract Performance Of Services

Under The State Contract

57. The State Contract provides that Defendant IHC has the authority to subcontract

any of the services it performs under the State Contract to other entities or individuals upon

notice and approval by DHS/DCFS, and that IHCs subcontractors are required to comply with

the Contractors duties under the State Contract. Thus, under the State Contract, Defendant IHC

itself serves the governmental function of regulating other private parties conduct and

controlling how public funds are disbursed.31

58. The State Contract provides that Defendant IHC is a service provider, which is

defined as a private or governmental entity that receives funds from DHS/DCFS for services

provided to clients of DHS/DCFS under a program developed by DHS/DCFS.32

G. DHS/DCFS Exempts Defendant IHC, As A Sole Provider, From State Bidding

Process

59. The State Contract provides that Defendant IHC is exempt from the state bidding

process because IHC is the sole provider for the services under the State Contract.33

60. The State Contract provides that Defendant IHC is an independent contractor

and that persons employed or volunteering for IHC are authorized to act as agents for

DHS/DCFS only as expressly provided in the State Contract.34

H. DHS/DCFS Requires IHC to Comply With All Applicable Federal and State

Laws, Including DHS/DCFS Provider Code of Conduct, In Providing Contract

Services In The Reporting, Investigation And Prosecution of Child Abuse Cases

61. The State Contract provides that Defendant IHC is required to comply with all

applicable federal and state laws in the performance of its duties under the State Contract,



including state statutes and regulations, and DHS policies that apply to the contractors

activities.35

62. The State Contract provides that Defendant IHC is responsible to obtain

appropriate advice regarding the federal and state laws applicable to its activities under the State

Contract.36

63. The State Contract specifically provides that Defendant IHC is required to comply

with the Utah Child Abuse Reporting Act.37

64. The State Contract provides that Defendant IHC shall follow and enforce the

DHS Provider Code of Conduct, and shall require any employee or volunteer, including a board

member, officer, or person who is substantially involved in Contractors decision making

processes, or is a person who has unsupervised contact with DHS/DCFS clients, to sign and date

a certification that he or she has read and understands the DHS Provider Code of Conduct and

will comply with it, before allowing any employee or volunteer to work with clients under the

State Contract. See, e.g., Title 62A, Chapter 3 of the Utah Code (definition of adult abuse) and

Title 78A, Chapter 6 (definition of child abuse) and Title 76, Chapter 5 (definition of child and

adult abuse) of the Utah Code. 38

65. The DHS/DCFS Provider Code of Conduct, Section II, 1, B, 4, defines child

abuse to include Physical injury, such as a contusion of the skin, laceration, malnutrition, burn,

fracture of any bone, subdural hematoma, injury to any internal organ, any injury causing

bleeding, or any physical condition which imperils a clients health or welfare.39 (Emphasis

supplied)



66. The DHS/DCFS Provider Code of Conduct, Section IV, provides that If a state

statute, rule or policy defines abuseas including conduct that is not expressly included in this

Code of Conduct, such conduct shall also constitute a violation of this Code of Conduct. See,

e.g., Title 62A, Chapter 3 of the Utah Code (definition of adult abuse) and Title 78A, Chapter 6

(definition of child abuse) and Title 76, Chapter 5 (definition of child and adult abuse) of the

Utah Code. 40

67. The DHS/DCFS Provider Code of Conduct, provides, in pertinent parts, that:

Providers shall document and report any abuseas outlined in this Code of Conduct, and they

shall cooperate fully in any investigation conducted by DHS, law enforcement or other

regulatory or monitoring agencies The Provider shall make all reports and documentation

about abuseavailable to appropriate DHS personnel and law enforcement upon request.41

68. DHS/DCFS regulations and guidelines detail and govern the manner in which

IHC is to function with DHS/DCFS and state law enforcement agencies in the MDT

investigation and prosecution in cases of suspected child abuse under the State Contract.42

69. DCFS also provides a computer data system called SAFE in which the activities

of DCFS personnel, IHC staff and state law enforcement agencies engaged in the MDT

reporting, investigation and prosecution of child abuse, are reported and monitored by DCFS for

various purposes.43

70. Defendants IHC and Beerman admit that they were bound by the applicable

federal and Utah laws and DHS/DCFS policies, rules and regulations referred to in the State

Contract.44



I. DHS/DCFS Pays State Funds To IHC For Contract Services And Passes Federal

Funds Through to CSHF

71. The State Contract provides DHS/DCFS will pay Defendant IHC/CSHF a

maximum of $200,000 annually for its performance of contract services.45

72. Defendant IHC received and passed through to CSHF, substantial public funds

from the federal government and from state agencies other than DHS/DCFS, including the Utah

Attorney Generals Office, for other services IHC/CSHF performs for the State in the reporting,

investigation and prosecution of child abuse cases.46

J. The State Contract Imposed Special Record Keeping Requirements on IHC

Regarding Records of Minors Such as N.M.

73. The State Contract provides that Defendant IHC is required to maintain and

supervise the maintenance of all records necessary for the proper and efficient operation of the

programs covered by the Contract, including records relating to the provision of [contract]

services.47

74. The State Contract imposes special record keeping requirements on Defendant

IHC in regard to the documentation of: (a) medical assessments of children; (b) training for

identification of child abuse and neglect, and (c) the number of persons attending all trainings in

the professions of law enforcement, social work, medical professionals and others.48

K. DHS and DCFS Have A Non-Exclusive Ownership Interest And Ready Access To

Records Relating To Contract Services Provided By IHC And Its Staff, Including

Defendants Frasier And Beerman

75. The State Contract requires Defendant IHC to acknowledge that DHS/DCFS has a

non-exclusive ownership interest in the records relating to the Contract and that IHC has a duty



not to destroy or relocate any records relating to the Contract, or the services provided under the

Contract, for a six year period without notice to DHS/DCFS.49

76. The State Contract provides that Defendant IHC has a duty to provide DHS/DCFS

with ready access to any records produced or received by IHC in connection with the services or

programs performed under the State Contract.50

L. Defendant IHC Has The Duty To Inform DHS/DCFS Of The Request For N.M.s

Records From Any Entity Other Than DHS or DCFS

77. The State Contract provides that Defendant IHC is required to inform DHS/DCFS

upon receiving a request for patient records or information from any individual or entity other

than DHS or DCFS, or a request from or authorized by the patient or a person or entity

authorized to receive the records by the patient in writing.51

78. The State Contract provides that because Defendant IHC is not a governmental

entity, Defendant IHC has the duty to consult with DHS/DCFS to determine the appropriate

response under the State Contract and federal and state laws, including GRAMA, to requests for

patient records.52

79. The State Contract provides that if requested patient records come within the

scope of GRAMA and if DHS/DCFS so requests, Defendant IHC has the duty to deliver the

requested records to DHS/DCFS and allow DHS/DCFS to respond directly to the records

request.53

M. DHS/DCFS Has The Right To Participate In Any Suit Against Defendant IHC

80. The State Contract provides that DHS/DCFS has the option to participate in the

defense of any suit brought against Defendant IHC.54



N. Defendants IHC, Frasier and Beerman Performed Public Functions Under The

State Contract

81. By allowing and authorizing DHS/DCFS to enter into the State Contract with the

Defendant IHC, the State of Utah allowed IHC and its staff, including Defendants Frasier and

Beerman, to exercise, and they did exercise, public functions and powers traditionally and

exclusively reserved to the State of Utah, in the reporting, investigation and prosecution of child

abuse cases, including the case of N.M., subject of this action.

82. By allowing DHS/DCFS to enter into the State Contract with the Defendant IHC

and its staff, including Defendants Frasier and Beerman, and by allowing DHS/DCFS to interact

with these Defendants under the terms of the State Contract for many years prior to and

including the relevant time, the State of Utah insinuated itself into a position of long term

interdependence with these Defendants in the performance of the States voluntarily assumed

duties regarding the reporting, investigation and prosecution of reported child abuse, including in

the underlying criminal case involving N.M., under the management and control of DHS/DCFS.

O. Defendants Federal Constitutional Duty to Disclose Exculpatory Evidence

83. In performing delegated public functions of the State of Utah in the reporting,

investigation and prosecution of child abuse in particular cases under the State Contract,

including N.M.s case, Defendant IHC and its staff, including Defendants Frasier and Beerman,

had a legal duty under the Due Process Clause of the Fourteenth Amendment to the Constitution

of the United States, as established in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963) and

its progeny, to voluntarily disclose all exculpatory evidence, including medical records,

generated in such investigations, to the prosecutor for disclosure to the defendants attorney.



84. In performing delegated State public functions related to the reporting,

investigation and prosecution of child abuse in particular cases under the State Contract,

including N.M.s case, Defendant IHC and its staff, including Defendants Frasier and Beerman,

had a duty under the Due Process Clause of the Fourteenth Amendment to the Constitution of the

United States, to produce all medical records pertinent to their investigations, including medical

records exculpatory of an alleged perpetrator, in response to a prosecutors official subpoenas or

requests, for use in the criminal prosecution of the alleged defendant.

85. Thus, in violating the federal and state constitutional due process rights of

Plaintiff Abby Tiscareno by their conduct in N.M.s case as alleged herein, Defendants IHC,

Frasier and Beerman engaged in conduct that was fairly attributable to the State of Utah and

under color of the state laws, rules and regulations described in this Complaint.

VIII. GENERAL ALLEGATIONS REGARDING DEFENDANTS CONDUCT IN THE CASE

OF N.M.

A. Abby Tiscareno Finds N.M. In Distress

86. On the morning of November 14, 2003, Plaintiff Abby Tiscareno was preparing

for children to arrive at the state licensed daycare center she operated in her home in Summit

County, State of Utah.

87. At approximately 7:40 a.m. that morning, James Molineux dropped off his sons,

N.M., age 1, and J.M., age 2, at Abby Tiscarenos home for daycare.

88. The Molineux children had been in daycare with Abby Tiscareno since September

2003.

89. In addition to the two Molineux boys, an eighteen-month old child was in day

care with Abby Tiscareno on November 14, 2003.



90. On this particular morning, when Abby took N.M. from his father, N.M.s head

fell against her shoulder and he appeared to be sleepy, so Abby placed him in a crib.

91. Later that morning, Abby tried to give N.M. a bottle, but the milk spilled out of

his mouth, his eyes rolled back in his head and he appeared to lose consciousness and experience

severe difficulty in breathing.

92. Abby appropriately shook or jostled N.M. to try and revive him.

93. When N.M. did not respond and continued to have trouble breathing, Abby called

911.

94. Emergency personnel responded to the Tiscareno home and began to treat N.M.

95. Around 10:40 a.m. on November 14, 2003, N.M. was transported to PCMC.

B. N.M. Is Admitted To PCMC

96. N.M. was admitted to PCMC at 11:01 a.m. At that time, a CT scan of N.M.'s head

was performed by the Attending Radiologist, Dr. Barbara P. Reid.

97. IHC policies required that all patient medical records at PCMC, including lab

tests and reports, list several forms of patient identification for use in tracking a patients medical

records, including the patients name, medical record number and billing number.

98. The CT head scan of N.M. included his name, address, date of birth, ordering

physician, medical records number: 49-32-45; UR number: 547545061, and log number:

11/14/2003.0141. Dr. Reids report of the CT head scan was generated and date stamped at 2:16

p.m. on November 14, 2003.

99. Dr. Reids report of CT head scan of N.M. concluded: Impression: probable

acute subdural hemorrhage superimposed on chronic subdural hemorrhage [prior bleeding].



There is a significant mass-effect with shift of the ventricles from the right to- left side. No

parenchymal hemorrhage is identified.

100. N.M. was immediately taken to surgery to relieve the pressure on his brain. The

surgery was performed by Dr. Marion Walker.

C. Dr. Walker Sends Specimen of N.M.s Hematoma for Pathology Examination

101. Prior to conducting the surgery on N.M., Dr. Walker reviewed the CT head scan

of N.M.

102. During the operation, Dr. Walker removed a subdural hematoma or clot from

N.M.'s head.

103. Once removed, the hematoma had no relevance to the surgery Dr. Walker

performed on N.M.

104. Dr. Walker routinely sent a specimen of the N.M.s hematoma to the Pathology

Department (Pathology) for examination because theres always questions about clots and the

age of clots in cases of suspected trauma.

105. According to Dr. Walker, the purpose for a pathology examination of a subdural

hematoma is that It gives us some idea as to the age of the clot. If we have questions about the

age of the clot, sometimes that can be helpful. Its very difficult sometimes to distinguish how

fresh a clot is in the sense of, you know, a few hours or a day, but older clots begin to go through

certain changing processes that you can see.

106. Defendant Frasier knew that Dr. Walker had an obligation and responsibility to

obtain and preserve a sample of N.M.s hematoma and send it to Pathology Department for

examination to preserve such evidence relative to child abuse cases investigated at PCMC.



107. The PCMC Surgical Services Procedure for Specimen Procurement requires, with

certain exceptions inapplicable in this case, that specimens of all tissue removed from patients be

submitted to the Pathology Department for examination. Specimens are to be identified at the

time they are removed from the patient and information concerning specimens conveyed to the

circulating nurse, so that the specimen is properly labeled. 55

108. The Perioperative Nursing Record form for N.M.s surgery dated November 14,

2003, is signed by Nurse Kathy Nasworthy. Under the heading Specimen?, it states: subdural

hematoma. The Patient Information section of the form contains N.M.s trauma name: ZZZ,

CHI-CE; his age-15 months; his date of birth-August 1, 2002; his sex-male; his patient account

number - 58150822; his medical records number- 49-32-45, his surgeon-Walker; and procedure

date: 11/14/03.56

109. At 12:25 p.m. on November 14, 2003, an individual named Sean in Operating

Room No./Clinic 5, signed an Anatomic Pathology Requisition form ordering a pathology test of

the subdural hematoma specimen taken from N.M.s head. The Requisition lists Dr. Walker as

the submitting and/or attending physician.57

110. In the Operating Room, N.M.s hematoma specimen was assigned a pathology

accession number (PS#) 352q that was hand written on the Anatomic Pathology Requisition

form.58

111. The Anatomic Pathology Requisition form for the pathology examination of

N.M.s hematoma specimen was logged into the Laboratory Information System and a bar code

label PCS-03-03528 was affixed to the Requisition for tracking purposes.59



112. The Patient Information section on the Anatomic Pathology Requisition form

also lists N.M.s trauma patient identification: ZZZ CHI-CE; his patient account number:

58150822; his treating physician: Dr. Teresa Reading; his date of birth: August 1, 2002; his age

in months: 15; an unidentified number: U547545061; his medical records number: 49-32-45,

and the date of his admission: November 14, 2003.60

113. An excerpt from the PCMC Surgery Pathology Log Book shows the stamp for

patient ZZZ, CHI-CE, which is N.M., and the entry to the left side of the stamp shows that the

surgical specimen of the hematoma taken from N.M.s head was dropped off at the surgery main

desk at 12:35 p.m. on November 14, 2003 by N.D., a surgical department technician, and

picked up from the same desk at 12:36 by DS, another technician, and taken to the Pathology

Lab.61

D. Dr. Pysher Performs Pathology Examination of N.M.s Hematoma

114. On November 14, 2003, Dr. Theodore J. Pysher, Director of the Pathology

Department at PCMC, conducted a pathology examination of N.M.s hematoma specimen and

listed his findings in Pathology Report dated November 17, 2003.62

115. The Pathology Report authored by Dr. Pysher lists N.M.s medical records

number: 49-32-45; his date of birth: August 1, 2002; his date of surgery: November 14, 2003;

his pathology accession number: 3528-30; his patient account number: 58150822; and an

unidentified handwritten number: U547545061.63

116. The Pathology Report on N.M.s hematoma specimen, dictated by Dr. Pysher on

November 17, 2003, indicated, in part: "hemosiderin deposition and reactive meningeal cells

suggesting elements of previous [bleeding] as well as acute hemorrhage."64



117. The Pathology Report on N.M.s hematoma specimen also stated that, "This case

was reviewed by Dr. Jeannette Townsend, who concurs in the diagnosis. A copy of her report is

attached."65

118. In her report to Dr. Pysher regarding his Pathology Report on N.M.s hematoma

specimen, (Concurring Pathology Report), Dr. Jeannette Townsend stated that, "Dr. Yang

informed me that there was iron in the tissue on special stains confirming a prior bleed. I would

agree that these nodules represent meningeal reactive changes most likely secondary to a prior

bleed."66

(Emphasis supplied)

119. Thus, Dr. Pysher, Dr. Townsend and Dr. Yang all agreed that the pathology

specimen of N.M.s hematoma showed evidence of a prior bleed.67

120. At the time Dr. Jeanette Townsend wrote and signed the Concurring Pathology

Report, she was employed by the University of Utah as a Professor of Anatomic Pathology and

Director of Neuropathology at the University of Utah School of Medicine.68

121. Although Dr. Townsends Concurring Pathology Report is dated August 22,

2003, reference to the letter shows it was delivered by facsimile to Dr. Pysher at 3:23 p.m. on

Monday, November 17, 2003, and is simply misdated.69

E. Pathology Report w/ Concurring Report of Dr. Townsend Sent to Dr. Walker, Dr.

Reading and Medical Records Department

122. The Pathology Report on N.M.s hematoma specimen lists Dr. Walker as the

attending physician and indicates that a copy of the Pathology Report was also sent to Teresa

Reading, M.D.70

123. On November 14, 2003, the Pathology Report on N.M.s hematoma specimen

was logged in the PCMC Surgery Pathology Log Book with its identifying Pathology Specimen



number, 3528, N.M.s trauma name: ZZZ-Chi-Ce, N.M.s medical records number: 49-32-

45, and listed Dr. Walker as N.M.s surgeon.71

124. The fact the Pathology Report on N.M.s hematoma specimen was logged in the

PCMC Surgery Pathology Log Book, indicates that the pathology examination was complete and

copies of the report were placed in envelopes in the Outgoing Mail, for delivery to Medical

Records, Dr. Walker, and Dr. Reading on November 18, 2003.72

125. On or about November 18, 2003, Dr. Walker received a copy of the Pathology

Report which he thereafter maintained in his office file on N.M.s case.

F. DCFS, IHC and Summit County Detectives Conduct Multi-Disciplinary Team

Investigation of Suspected Abuse of N.M.

126. At approximately1:30 p.m. on November 14, 2003, Eden Krehbiel, case intake

worker at the DCFS office in Heber, Utah, received a report from IHC staff that N.M. had been

admitted to PCMC and that child abuse was suspected.

127. The DCFS New Case Worksheet indicates the billing number assigned N.M.s

case is 2544-1779, that the Assistant Utah Attorney General assigned to N.M.s case is

Deborah and lists the type of abuse case as Physical.

128. At approximately 2:00 p.m. on November 14, 2003, Dean Evans was assigned as

the DCFS case worker on N.M.s case, case number 1184776.

129. Dean Evans reported on the SAFE system that, at this time, he went to PCMC to

coordinate [the investigation of N.M.s case] with Summit County Detectives Andrew Leatham

and Tom James, while other DCFS staff coordinated with the Utah Attorney Generals Office to

obtain a warrant placing N.M. and his brother, J.M., in DCFS custody.



130. On arriving at PCMC, Dean Evans learned that N.M.s father, James Molineux,

and other relatives had already been interviewed by Summit County Detectives and reported on

the SAFE system that the records and information from these interviews would be obtained by

DCFS and placed in N.M.s file.

131. DCFS caseworker Dean Evans and Summit County Detectives Leatham and

James next interviewed Dr. Mel Wright at PCMC who indicated N.M. had a subdural hematoma,

retinal hemorrhages and an abrasion on his left flank.

132. Dean Evans and Detectives Leatham and James next went to physically observe

N.M. in the PICU. Detective Leatham noticed blood smears on NMs right side and arm, as well

as an abrasion just below N.M.s right nipple and down further on his side, and took photographs

of N.M., who had just come out of surgery.

133. After leaving PCMC on November 14, 2003, Dean Evans staffed the

information he and Detectives Leatham and James had obtained about N.M.s case with DCFSs

attorney, Deborah Wood, the Assistant Utah Attorney General assigned to N.M.s case.

134. At approximately 1:30 p.m. on November 14, 2003, while Dean Evans went to

PCMC to coordinate the investigation with Detectives Leatham and James, Summit County

Detective Mike Dorman was assigned to go to Abby Tiscarenos home to conduct a fact-finding

interview to find out what had happened with N.M. earlier that morning.

135. After conducting a 35-40 minute interview with Abby Tiscareno on November

14, 2003, Detective Dorman did not conclude that she was a target or suspect in the case.

136. Detective Dorman initially suspected the person who caused N.M.'s injury

resided, or was otherwise present, in the apartment where N.M. had been staying with his father,



James Molineux, his fathers brother, his fathers sister, N.M.s two-year old brother, his

grandmother, his grandmothers boyfriend and other relatives. Detective Dorman considered

James Molineux as a significant suspect in the case.

137. Based on this suspicion, at 6:25 p.m. on November 14, 2003, Detective Dorman

obtained a search warrant James Molineuxs vehicle and his mothers apartment where N.M. had

been residing. Detective Dorman immediately executed the warrant and seized numerous items

of property from the apartment and James Molineuxs vehicle.

138. Later in the evening on November 14, 2003, DCFS caseworker, Dean Evans, and

Summit County Detectives Leatham and James, jointly conducted a second interview of James

Molineux at PCMC.

139. At approximately 8:10 p.m. on November 14, 2003, DCFS, through its legal

counsel, Assistant Attorney General Julie Nelson, sought and obtained a warrant from the Third

District Juvenile Court of Salt Lake County, State of Utah, to take N.M. and his brother, J.M.,

into DCFS protective custody.

140. The application for the custody warrant was supported by the Affidavit of DCFS

caseworker, Leland Robinson, and stated, in pertinent part, that 5. The parents should not be

notified prior to removal because the mother is incarcerated and the father is a suspected

perpetrator of the shaken baby which demonstrates an anger problem. (Emphasis supplied)

G. Defendant Frasier Enters The Case

141. Defendant Frasier did not receive training in the medical evaluation of child abuse

cases in medical school and there was no board certification in this specialty during the

relevant time.



142. Defendant Frasier was employed to do child abuse and neglect assessments at

PCMC.

143. In the three years prior to her investigation of N.M.s case, Defendant Frasier was

only involved in the treatment of children, as opposed to their medical assessment for child

abuse, on two occasions.

144. Regardless, Defendant Frasier considered herself to be a specialist in child abuse.

145. In addition to her employment as the Director of Medical Assessments at PCMC,

Defendant Frasier advertised for employment as an expert medical witness in state and federal

court cases involving issues of child abuse cases.

146. Prior to evaluating N.M.s case, Defendant Frasier had testified as a paid expert

witness in hundreds of child abuse cases and had derived substantial income from such

employment.

147. Prior to evaluating N.M.s case, Defendant Frasier had testified in court cases

hundreds of times that, based on her analysis, a child had been physically abused, but had not

testified in any case that the child in question was not physically abused. In one prior case,

Defendant Frasier was impeached by her deposition testimony at trial. See, Taleia Larson v.

Chris E. Nelson, M.D. and Tammy Nelson, 110 Wash. App. 1002 (Washington Court of

Appeals) (January 18, 2002) (unpublished opinion), at *4, and footnotes 13-17.

148. On November 14, 2003, at approximately 3:30 p.m., the Medical Assessment

Team was contacted for consultation on N.M.s case. Defendant Frasier arrived at the Pediatric

Intensive Care Unit (PICU) at PCMC. Her job was to conduct an active and thorough medical



investigation to determine whether N.M.s injury was intentionally inflicted child abuse, the

mechanism of injury and the identity of the perpetrator.

149. When Defendant Frasier arrived at the PICU, N.M. an ophthalmologist was

examining N.M.

150. The ophthalmologist informed Defendant Frasier that N.M. had retinal

hemorrhaging but was not able to state when this condition occurred.

151. Defendant Frasier took pictures of the ophthalmologists examination of N.M. for

a book she was writing on child abuse.

152. Before she arrived at the PICU or shortly thereafter, Defendant Frasier looked at

the pre-operative head CT head and body scans of N.M., which showed no evidence of skull

fracture or fracture of any other part of N.M.s body.

153. Dr. Reids report of N.M.s CT head scan revealing prior bleeding in N.M.s

brain, was generated and date stamped at 2:16 p.m. on November 14, 2003.

154. In reviewing the CT head scan of N.M., Defendant Frasier saw a hematoma that

was consistent with the radiologists description of the hematoma as a multi-density subdural

hematoma.

155. Defendant Frasier read the report of the CT head scan of N.M., which concluded,

in part: "Impression: Probable acute subdural hemorrhage superimposed on chronic subdural

hemorrhage [prior bleeding].

156. Defendant Frasier knew that if there was prior bleeding in N.M.s brain as

indicated in the CT head scan report, N.M. could have been injured prior to the time he was left



with Abby Tiscareno on November 14, 2003, by any number of individuals other than Abby

Tiscareno.

157. Defendant Frasier thought the CT head scan of N.M. was not inconclusive and

was concerning for old and new hemorrhages.

158. Based on the CT finding of prior bleeding in N.M.s brain, Defendant Frasier

knew that an injury to N.M. that occurred prior to the time he was left with Abby Tiscareno for

day care on November 14, 2003, presented as a differential diagnosis regarding the timing of

N.M.s injury.

159. Defendant Frasier agreed that a radiologist is more qualified to read a CT scan

than she is.

160. Defendant Frasier conducted a physical examination of N.M. and found a small

scratch on the right side of his chest but no sign of broken bones, fractures or bruises anywhere

on N.M.s head or body.

H. Defendant Frasier Interviews James Molineux

161. After arriving at the PICU, Defendant Frasier conducted an interview regarding

N.M.'s health history with his father, James Molineux ("Molineux").

162. Molineux told Defendant Frasier that N.M. was a healthy child that had no

medical problems that morning,that N.M. had eaten a pop-tart that morning, and that N.M. was

starting to walk.

163. Molineux also told Defendant Frasier that N.M. had not been ill during the week

prior to November 14, 2003.



164. Molineux did not tell Defendant Frasier, as he later told police, that on the night

of Wednesday, November 12, 2003, N.M. had had the flu for a couple of days, projectile

vomited, had a fever of 102 and that Molineux had called a medical facility regarding treatment

for N.M. that night.

165. Molineux told Defendant Frasier that N.M screamed in the morning the past few

weeks when Molineux took him out of the car to deliver him to daycare, but did not tell Frasier,

as he later told police, that there was nothing unusual about N.M. crying for a few minutes when

Molineux left N.M. with Abby Tiscareno for daycare.

166. Molineux told Defendant Frasier that he had seen unexplained bruises on N.M. in

prior weeks and that he "didn't think anything about it because N.M. falls with some frequency

as he is getting around and learning to walk."

167. Molineux told Defendant Frasier that N.M.'s mother was in prison for identity

theft and hadn't lived with N.M. since he was about three months old.

168. Molineux told Defendant Frasier that N.M.'s bother, J.M., and Molineux's mother

and others resided in the home.

169. In fact, at least six people resided in the two-bedroom apartment where N.M.

lived on November 14, 2007.

170. Defendant Frasier concluded the interview with Molineux at about 3:45 p.m. on

November 14, 2003.

I. Defendant Frasier Forms A Conclusion

171. Following her interview of James Molineux, Defendant Frasier made a

handwritten note indicating her diagnosis that N.M.'s injury was highly suspicious for abusive



head injury (mechanism shaken) and Very likely extremely short interval between injury and

symptoms, and that Frasier planned to contact DCFS and law enforcement.

172. Defendant Frasiers handwritten note did not indicate that she had spoken with

Dr. Walker, N.M.s surgeon, or Dr. Barbara Reid, the radiologist who interpreted the CT head

scan of N.M, prior to concluding that N.M.s injury was highly suspicious for abusive head

injury and Frasier does not think she spoke with Dr. Walker prior to making her handwritten note

stating her conclusions regarding N.M. on November 14, 2003.

173. An article by Defendant Frasier and a coauthor stated that Clear history should

be obtained from all possible witnesses to the event. Corroboration of facts can be key to making

the correct diagnosis.

174. Defendant Frasier also agreed that inconsistent statements by family members and

other persons at or near the time of a childs injury, may be relevant in determining whether child

abuse has occurred.

175. Defendant Frasier admitted that in diagnosing N.M.s injury as physical child

abuse, and in determining the time of his injury, she relied on the history of N.M.s health given

by James Molineux, as being accurate, and that she did not interview any other members of the

Molineux family who resided with N.M. in his grandmothers apartment at the time of his injury.

176. Defendant Frasier stated that in an article she wrote on N.M.s case that the police

had told her that Abby Tiscareno had given inconsistent statements.

177. Defendant Frasier admitted she did not interview Abby Tiscareno, did not review

the tapes of Summit County Detectives interviews with Abby Tiscareno, did not know what

Abby Tiscareno said in the five hours she was interrogated concerning N.M.s injury, and did not



find out whether Abby Tiscarenos statements were consistent with the statements given to her

and Summit County Detectives by James Molineux and other family members, prior to

concluding that N.M. could only have been injured while in Abby Tiscarenos care.

178. Defendant Frasier did not review the medical records from N.M.s pediatrician

before making the diagnosis that N.M. was the victim of shaking and would have been

immediately unconscious, and stated she did not think it was important to review N.M.s

pediatric records prior to reaching her conclusion regarding the timing of N.M.s injury.

179. Although the pediatric records of N.M. were available at PCMC, Defendant

Frasier did not review these records to determine whether they were consistent with James

Molineux's representations to her regarding N.M. health prior to concluding that N.M.s injuries

could only have occurred while he was in the care of Abby Tiscareno.

J. Defendant Frasier Discusses N.M.s Case with Dr. Walker

180. During the late afternoon or evening of November 14, 2003, Defendant Frasier

spoke with Dr. Walker about N.M. in a hallway at PCMC.

181. According to Dr. Walker, Defendant Frasier is on the Child Protection Team and

was basically asking for my input about the case.

182. Defendant Frasier asked Dr. Walker about the presence of old versus new blood

in N.M.s head because the CT head scan report had conclusively indicated a mixed density of

old blood and new blood in N.M.s brain.

183. Dr. Walker told Defendant Frasier there was a lot of acute blood on N.M.'s brain

during surgery and that he did not see any chronic subdural (prior bleeding).



184. When Defendant Frasier spoke with Dr. Walker on November 14, 2003, she knew

Dr. Walker would not necessarily be able to grossly observe a chronic subdural hematoma (prior

bleeding) in N.M.s brain during surgery because the evidence could be microscopic, and that a

microscopic examination of the hematoma specimen by the Pathology Department at PCMC

would routinely be obtained to confirm or deny the existence of prior bleeding in N.M.s brain.

185. At the time Defendant Frasier spoke with Dr. Walker on November 14, 2003, she

knew it was Dr. Walker's obligation and responsibility to send a sample of the hematoma he

removed from N.M.'s brain to the Pathology Department for examination.


that a pathology examination of N.M.s hematoma specimen could: (a) confirm or deny the

existence of prior bleeding in N.M.s brain reported on the CT head scan; (b) provide

information as to when the injury to N.M.'s brain occurred; and (c) provide information about the

identity of the person or persons who inflicted the injury based on the timing of the injury.

187. At the time Defendant Frasier spoke with Dr. Walker about N.M.s case on

November 14, 2003, she understood the importance of having a sample of the hematoma sent to

Pathology for examination for forensic purposes and that the Pathology Report was an

important piece of the puzzle in determining when N.M.s injury occurred.


that if the CT head scan report of prior bleeding in N.M.s brain was confirmed by the Pathology

Report, her expert opinion and conclusion that N.M. could only have been injured while in Abby

Tiscarenos care, was incorrect and would be discredited.



189. Despite her knowledge of the critical importance of reviewing the Pathology

Report in determining the timing of N.M.s injury and by inference, the identity of the

perpetrator of N.M.s injury, Defendant Frasier did not obtain the Pathology Reports on N.M.s

hematoma specimen or discuss the findings of the Pathology Reports with Dr. Walker, or with

Drs. Pysher, Townsend or Yang, at any time prior to the first trial of Abby Tiscareno.

K. Defendant Frasier Informs Detectives N.M. Could Only Have Only Been Injured

While in Abby Tiscarenos Care, While Withholding And Concealing Exculpatory

Pathology Evidence

190. Between 8:00 and 8:30 p.m. on November 14, 2003, while Detective Leatham

was on his way back to the Summit County Sheriffs Office from PCMC, he spoke with

Defendant Frasier by phone.

191. Defendant Frasier told Detective Leatham she had been working on N.M.s case

and had information for him pertaining to N.M.s injuries. Defendant Frasier told Detective

Leatham that N.M. had sustained a massive brain injury caused by severe shaking and that blunt

force trauma had not been ruled out but there were no outward signs. She also stated that N.M.

would not have acted normally at any time after his injury and would have become unconscious

immediately after the injury.

192. Detective Leatham then told Defendant Frasier what Abby Tiscareno stated had

happened during the morning, and Defendant Frasier responded she did not believe it was

possible for several hours to pass before N.M. started to show signs of injury.

193. Defendant Frasier knew that law enforcement officials would rely on the timeline

for N.M.s injury she created by her conclusion that N.M. would have become immediately

symptomatic at the time of injury.



194. Defendant Frasier knew that her representations to Detective Leatham regarding

the timing of N.M.s injury led to the conclusion that the only person who could have injured

N.M. was Abby Tiscareno.

195. In her conversation with Detective Leatham on the evening of November 14,

2003, Defendant Frasier did not inform Detective Leatham: (a) that a CT head scan had been

performed on N.M. and showed prior bleeding in N.M.s brain; (b) that this finding was

consistent with the conclusion that N.M.s injury occurred prior to the time he was left with

Abby Tiscareno on the morning of November 14, 2003; (c) that a radiologist was more qualified

than her to read and interpret the CT head scan; (d) that the CT head scan finding of prior

bleeding in N.M.s brain was contrary to Frasiers opinion that N.M.s injury could only have

occurred while in Abby Tiscarenos care; (e) that a Pathology examination would confirm or

dispute the CT head scan finding of prior bleeding in N.M.s brain, and that (f) Frasier would

need to wait to review the Pathology Report before she could reach a reliable conclusion

regarding the timing of N.M.s injury.

196. In deciding not to inform Detective Leatham of the foregoing facts, Defendant

Frasier maliciously, intentionally, knowingly or recklessly withheld and concealed exculpatory

evidence and deliberately misled Detective Leatham to believe that Abby Tiscareno was the only

person who could have injured N.M.

L. Based on Defendant Frasiers Representations Regarding the Timing of N.M.s

Injury, Detectives Focused Their Investigation On Abby Tiscareno

197. At approximately 9:00 p.m. on November 14, 2003, the Summit County

Detectives assigned to N.M.s case, including Detectives Leatham and Dorman, met at the

Summit County Sheriffs Office to share information gathered in their investigation. Based on



Defendant Frasiers representations to Detective Leatham regarding the timing of N.M.s injury,

the Detectives focused their investigation on Abby Tiscareno and away from N.M.s father,

James Molineux.

198. Immediately following this meeting, Detective Dorman telephoned Abby

Tiscareno and asked her to come to the Sheriffs Office for a few minutes to answer a few

questions, which she voluntarily agreed to do. Detective Dorman did not tell Abby Tiscareno

she was going to be interrogated for several hours.

199. From approximately 9:30 p.m. on November 14, 2003, until 2:30 a.m. the

following morning, November 15, 2003, DCFS caseworker Dean Evans and Summit County

Detectives Dorman, Leatham and James jointly interrogated Abby Tiscareno at the Summit

County Sheriffs Office according to a prearranged plan.

200. During the interrogation, which was videotaped, Abby Tiscareno told the

Detectives that N.M. had not been eating for about two weeks, that she would often spend two

hours trying to get him to eat, that she would put food in his mouth but he would not swallow it,

and that N.M. appeared to be losing weight and that when N.M. first came to day care, he had a

good appetite and would always want more.

201. During the interrogation, Abby Tiscareno stated that on November 14, 2003,

N.M. arrived at the daycare at 7:40 a.m., he was crying, but not as he normally cried. She also

stated that James Molineux told her that N.M. had eaten, that N.M. appeared tired that morning,

and that when Molineux handed N.M. over to her that the child kind of sat in her arms and his

head went into her shoulder, and that she took him right to bed and he went right to sleep,

whereas he would normally cry vigorously for about an hour.



202. During the interrogation, Abby Tiscareno stated that sometime later, she heard

N.M. make a cry, prepared a bottle and picked N.M. up out of the crib, that she took N.M. from

the bedroom out to the front room to feed him, sat down with N.M. on her lap, put the bottle to

his mouth, and that the milk came back out of N.M.s mouth; that N.M. appeared pale, that his

eyes were rolled back in his head, and that he was having extreme difficulty breathing and was

gasping for air, and that she abruptly stood up, called N.M. by name, moved the childs body in

an effort to revive him, took N.M. out on the porch and called 911.

203. During the interrogation, Summit County Detectives repeatedly confronted Abby

Tiscareno about the fact that she had injured N.M. in her home. Abby Tiscareno repeatedly

denied that she had injured N.M. and was consistent in her statements about what happened

while N.M. was in her care.

204. After Summit County Detectives focused their investigation on Abby Tiscareno

based on Defendant Frasiers representations regarding the timing of N.M.s injury, they

canceled the polygraph examination they had scheduled for James Molineux, and never

interrogated James Molineux, his mother, Kathy Galvan, or any of Galvans children or

grandchildren who were residing or otherwise present in the apartment where N.M. resided prior

to his admission to PCMC.

205. After Summit County Detectives focused their investigation on Abby Tiscareno

based on Defendant Frasiers representations concerning the timing of N.M.s injury, they never

issued investigative subpoenas for N.M.s pediatric records, or submitted the stains found on the

bedding in N.M.s apartment for forensic examination.



M. Defendant Frasier Continues To Encourage The Pr

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