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Jamel Billups, et al v. Penn State Milton S. Hershey Medical Center

April 23, 2012


The opinion of the court was delivered by: Chief Judge Kane


Presently pending before the Court are three separate motions to dismiss filed by the Franklin County Defendants (Doc. No. 25), the Chambersburg Borough Defendants (Doc. No. 32), and the Penn State Milton S. Hershey Medical Center Defendants (Doc. No. 39). The motions have been fully briefed and are ripe for disposition. For the reasons stated more fully herein, the Court will grant the Chambersburg Borough Defendants' and the Penn State Milton S. Hershey Medical Center Defendants' motions and will grant in part and deny in part the Franklin County Defendants' motion.


A. Parties and Procedural Background

Plaintiffs Jamel Billups and Jacqueline Rosario, and their daughters, L.B. and T.R., both minors, filed a nine-count complaint in this matter on September 27, 2011. (Doc. No. 1.) The complaint arises from the circumstances surrounding the temporary removal of L.B. and T.R. from Mr. Billups and Ms. Rosario's custody and alleges that fifteen Defendants violated Plaintiffs' constitutional rights. Plaintiffs seek compensatory and punitive damages as well as injunctive relief.

Plaintiffs' complaint targets three groups of Defendants, and each group has moved to dismiss the complaint. The first group of Defendants is comprised of Franklin County, Franklin County District Attorney Matthew Fogel, Franklin County Assistant District Attorney Lauren Sulcove, Franklin County Office of Children, Youth, and Families ("CYF"), and four CYF employees -- Tammie Lay, Dawn M. Watson, Kari Coccagna, and Minnie Tuner. In essence, Plaintiffs allege that these Defendants (collectively, the "Franklin County Defendants") are responsible for pursuing dependency proceedings, implementing an unconstitutional voluntary safety plan, and investigating and prosecuting Mr. Billups in relation to charges of aggravated assault and endangering the welfare of children. The Franklin County Defendants filed a motion to dismiss Plaintiffs' complaint on November 16, 2011. (Doc. No. 25.) Plaintiffs filed a brief in opposition on December 13, 2011 (Doc. No. 41), and the Franklin County Defendants filed a reply brief on January 9, 2012 (Doc. No. 52).

The second group of Defendants is comprised of Chambersburg Borough and one of its employees, Detective William C. Frisby, Jr (collectively, the "Chambersburg Borough Defendants"). Plaintiffs allege that Chambersburg Borough has an unconstitutional policy of relying on the medical opinions of the Penn State Milton S. Hershey Medical Center's Child Safety Team or, alternatively, that Detective Frisby failed to conduct an independent medical investigation regarding the cause of L.B.'s injuries. The Chambersburg Borough Defendants filed a motion to dismiss Plaintiffs' complaint on November 28, 2011. (Doc. No. 32.) Plaintiffs filed a brief in opposition on December 23, 2011 (Doc. No. 46), and the Chambersburg Borough Defendants filed a reply brief on January 6, 2012 (Doc. No. 51).

The final group of Defendants is comprised of the Penn State Milton S. Hershey Medical Center*fn1 ("Medical Center") and four Medical Center employees -- Mark S. Dias, M.D., who is a neurosurgeon and co-director of the Medical Center's Child Safety Team ("CST"); Kathryn R. Crowell, M.D., who is a co-director of the CST; Arabinda K. Choudhary, M.D., who is the director of the pediatric neuroradiology department and a member of the CST; and Kathleen D. Eggli, M.D., who is the chair of the radiology department. These Defendants (collectively, the "Medical Center Defendants") allegedly examined L.B.'s injuries, concluded that they were due to abuse, and provided testimony regarding their conclusions at the dependency and criminal proceedings. On December 9, 2011, the Medical Center Defendants filed a motion to dismiss the complaint. (Doc. No. 39.) Plaintiffs filed a brief in opposition on January 5, 2012 (Doc. No. 49), and the Medical Center Defendants filed a reply brief on January 18, 2012 (Doc. No. 53).

B. Factual Background*fn2

This case arises out of a child abuse investigation that resulted in Mr. Billups and Ms. Rosario temporarily losing custody of their daughters, T.R. and L.B, and also resulted in Mr. Billups being prosecuted on criminal charges in state court. At the time of the events giving rise to Plaintiffs' claims, T.R. was approximately two years old and L.B. was approximately four months old. (Doc. No. 1 ¶ 19.)

On October 19, 2009, while Ms. Rosario was at work, Mr. Billups watched over T.R. and L.B. in the apartment he shared with Ms. Rosario. (Id. ¶ 19.) After hearing L.B. cry, Mr. Billups checked on her and noticed that she was arching her back and "tens[ing] up." (Id. ¶¶ 19-20.) He proceeded to carry her to the living room, where he noticed that she was stretching her arms out rigidly and having difficulty breathing. (Id. ¶ 21.) He then called Ms. Rosario, who was already en route to the apartment. (Id.) After Ms. Rosario arrived home, she and Mr. Billups called 911 to seek medical attention for L.B. (Id.) After doing so, however, they decided to take L.B. to the Chambersburg Hospital themselves, so that L.B. could receive medical attention faster. (Id.)

After L.B. was admitted to the Chambersburg Hospital, a computed tomography ("CT") scan of L.B. was performed. (Id. ¶ 22.) The CT scan revealed that L.B. had a "small amount of subdural and subarachnoid hemorrhage and edema." (Id.)The examination did not reveal a skull fracture or any bruising. (Id.)

A. L.B.'s Examinations at the Medical Center

L.B. was transferred to the Medical Center on October 20, 2009. (Id. ¶ 23.) On that date, magnetic resonance imaging ("MRI") and magnetic resonance venography ("MRV") examinations of L.B. were performed. (Id.)These examinations revealed that L.B. had thrombosis, a condition, otherwise known as a childhood stroke, in which "one or more veins that drain blood from . . . [the] brain [are] clotted." (Id.) The examination also revealed that one of L.B.'s veins was dilated and that there was a non-specific signal in L.B.'s neck, both of which represented an increase in blood flow "as a result of L.B.'s brain finding alternative pathways to compensate for the clotted veins in her brain." (Id.) No evidence of injury to L.B.'s spine or of disruption to her spinal ligaments was detected. (Id.)

Dr. Choudhary, the director of pediatric neuroradiology at the Medical Center and a member of its CST, evaluated the results of this examination and recorded his conclusions in a report. (Id. ¶¶ 10, 24.) The CST, co-directed by Drs. Dias and Crowell, evaluates patients whose injuries indicate that they may be victims of child abuse. (Id. ¶¶ 7-9.) In his report, Dr. Choudhary stated that the "'superficial cortical vessels on the left side [of L.B.'s brain] are not visualized' and that thrombosis was a possible explanation." (Id. ¶ 24.) He concluded that L.B.'s injuries were due to abuse that she suffered on October 19, 2009. (Id. ¶ 30.)

In addition, an abdominal CT scan and skeletal surveys of L.B. were performed at the Medical Center. (Id. ¶ 26.) The CT scan and skeletal surveys revealed that L.B. had sixteen bilateral rib fractures in the anterior region of her ribs, none of which were acute and all of which were approximately four-to-eight weeks old. (Id.) Neither the CT scan nor the skeletal surveys revealed that L.B. had suffered any internal injuries associated with the rib fractures. (Id.)

On October 22, 2009, a Medical Center radiologist reported that L.B.'s rib fractures "were 'at the anterior anxillary line' and the 'lateral aspect and anterior anxillary line.'"*fn3 Unlike anterior rib fractures, posterior rib fractures are considered to be "pathognomonic, or having a virtual 100% predictive diagnostic value, of the diagnosis of abuse." (Id. ¶ 38.)

On October 28, 2009, Dr. Crowell wrote a medical report, using Medical Center letterhead, wherein she concluded that L.B.'s injuries were caused by abuse. (Id. ¶ 32.) Specifically, she concluded that L.B.'s sixteen rib fractures were likely the result of an incident of inflicted trauma that occurred a short time before L.B. experienced difficulty breathing. (Id.)

Neither Dr. Crowell nor any other doctor at the Medical Center, however, performed tests to exclude non-traumatic explanations for L.B.'s injuries, such as "a thrombophilia workup." (Id. ¶¶ 25, 27-28.) Further, no doctor at the Medical Center asked Ms. Rosario whether she suffered from a Vitamin D deficiency or conducted tests to determine whether either Ms. Rosario or L.B. suffered from such a deficiency. (Id. ¶ 28.) Plaintiffs allege that a Vitamin D deficiency is a cause of congenital rickets in infants, which can lead to "weak bones that fracture with birth and/or normal infant handling." (Id. ¶ 27.)

B. Arrest of Mr. Billups

On October 29, 2009, Detective Frisby created an affidavit of probable cause based entirely on the conclusions of Dr. Crowell recorded in her October 28, 2009 report regarding L.B.'s injuries. (Id. ¶¶ 33-34.) The affidavit charged Mr. Billups with aggravated assault, in violation of 18 Pa. C.S. § 2702, and endangering the welfare of children, in violation of 18 Pa. C.S. § 4304. (Id. ¶ 34.) Later that day, Mr. Billups reported to the Chambersburg Borough police station and was taken into custody. (Id. ¶ 35.) Bail was set at $200,000. (Id.) Mr. Billups remained in jail until December 17, 2010, when he was acquitted of all charges. (Id.)

C. Dependency Proceedings

On October 20, 2009, the date on which L.B. was admitted to the Medical Center and Dr. Choudhary determined that L.B.'s injuries were due to abuse, CYF obtained an ex parte order, granting CYF temporary custody of T.R. and L.B.*fn4 (Id. ¶ 29.) On that date, CYF also filed a dependency petition with respect to both T.R. and L.B. (Id.) In the petition, CYF exclusively relied on Dr. Choudhary's conclusions. (Id. ¶ 30.)

The Franklin County Court of Common Pleas held a dependency hearing on December 18, 2009. (Id. ¶ 36; Doc. No. 25-1 at 2.) At the hearing, Dr. Crowell, who was qualified as an expert witness in the area of child abuse, testified that "an extensive screening" of L.B. was performed to determine whether she had coagulation problems, bleeding disorders, or an abnormal "metabolic workup." (Doc. No. 1 ¶ 36.) With respect to L.B.'s rib fractures, Dr. Crowell testified that a radiologist indicated that the fractures were posterior, not anterior. (Id. ¶ 37.) Plaintiffs, however, allege that no Medical Center radiologist ever made such a finding. (Id.) Dr. Crowell was also questioned about an October 22, 2009 report, which stated that L.B.'s rib fractures were at the anterior anxillary line.*fn5 Dr. Crowell, however, explained that the reference to the anterior anxillary line in that report indicated the location from which the fractures were viewed, not that the fractures were anterior. (Id.)

At the conclusion of the hearing, the court, having determined that the abuse allegations had been sustained, adjudicated both L.B. and T.R. dependent. (Id. ¶ 44; Doc. No. 25-1 at 2.) The court noted that Mr. Billups and Ms. Rosario had failed to offer a plausible alternative explanation for L.B.'s injuries and stated that, in light of the examinations performed on L.B. at the Medical Center, "it is highly unlikely that any credible expert could have come to a different conclusion at all different than that at which Dr. Crowell arrived." (Doc. No. 1 ¶ 44.) The court also stated that "testimony from a retained expert would not have had a high degree of likelihood of changing the result in this case, since the evidence in favor of dependency came from a treating physician and was so credible and overwhelming." (Id.) Plaintiffs assert, however, that Dr. Crowell was never L.B.'s treating physician. (Id. ¶ 45.)

D. Criminal Proceedings

Following the dependency hearing, the Franklin County District Attorney's Office decided to pursue the criminal charges against Mr. Billups. (Id. ¶ 40.) The District Attorney's Office's investigation, however, began as early as October 21, 2009, when Assistant District Attorney Sulcove contacted Dr. Dias at the Medical Center to inform him that she was the prosecutor who would be handling a case against Mr. Billups. (Id. ¶ 31.)

A preliminary criminal hearing was held on December 28, 2009. (Id. ¶¶ 40-41.) At the hearing, Dr. Crowell was qualified as an expert witness in the area of child abuse and testified that an extensive screening for coagulation problems and bleeding disorders, as well as a MRI examination, were performed on L.B., and that no evidence of a bleeding problem or an arterial venous malformation was detected.*fn6

E. Contrary Expert Reports Regarding L.B.'s Injuries

In January 2010, Ms. Rosario retained Dr. Julie Mack, an assistant professor of radiology at the Medical Center, and Dr. Barnes, the director of the Pediatric MRI & CT Center at the Stanford University Medical Center's Lucile Packard Children's Hospital and a member of its CST, to evaluate the opinions of Drs. Crowell, Dias, and Choudhary regarding L.B.'s injuries. (Id. ¶¶ 46-48.) At this time or shortly thereafter, Dr. Eggli, the chair of the Medical Center's radiology department, implemented a department policy authorizing her to either approve or not approve the reports and testimony of Medical Center doctors in legal proceedings, deny liability insurance to those doctors whose reports and testimony were not approved, and prohibit those doctors whose reports and testimony were not approved from revealing their position at the Medical Center or using the Medical Center logo and letterhead when creating reports. (Id. ¶ 11.) Dr. Eggli enforced this policy against Dr. Mack after she rendered an opinion regarding L.B.'s injuries contrary to the opinions of Drs. Dias, Crowell, and Choudhary.*fn7 (Id.)

Dr. Mack created a report in which she agreed with the conclusions of Dr. Barnes, who determined that L.B.'s rib fractures were anterior, that thrombosis and congenital rickets were possible causes of L.B.'s injuries, and that a more thorough "hematology/coagulopathy and vascular workup" should be performed on L.B. (Id. ¶ 53.) Dr. Barnes further determined that "a bone fragility disorder (e.g. maternal-fetal vitamin D deficiency with congenital rickets) should be considered and evaluated" and that there was evidence of congenital rickets of congenital rickets on L.B.'s skeletal x-rays. (Id. ¶¶ 53, 58.) Dr. Barnes forwarded his report to CYF. (Id.)

After Dr. Mack and Dr. Barnes created their reports, Dr. Mack contacted Drs. Crowell and Choudhary as well as Dr. Mark Iantasco, L.B.'s attending physician, to explain why she believed that L.B.'s injuries were not due to abuse. (Id.) Although Dr. Mack's request to discuss the case was allegedly not well received, Dr. Crowell did invite Dr. Mack to present her findings to the CST at the Medical Center. (Id. ¶¶ 55-56.)

F. Transfer of Custody and Further Reports Regarding L.B.'s Injuries

On February 15, 2010, physical custody of L.B. and T.R. was returned to Ms. Rosario. (Id. ¶ 54.) Legal custody of the children, however, remained with CYF. (Id.) About two weeks later, Ms. Rosario, upon the request of Dr. Mack, was tested for vitamins D2 and D3 deficiency. (Id. ¶ 57.) Results of these tests revealed that Ms. Rosario's vitamin D2 level was nearly nonexistent and that her vitamin D3 level was severely deficient, indicating that the risk of L.B. suffering from congenital rickets was high. (Id.) One week later, further blood tests were performed on L.B., revealing that she had a low protein S level, a risk factor for abnormal blood clotting and thrombosis. (Id. ¶ 58.)

On March 10, 2010, Mr. Billups's counsel sent Dr. Crowell a letter, informing her that she had falsely testified regarding the location of L.B.'s rib fractures and the number of tests that had been performed on L.B. to determine if her injuries were due to factors other than abuse. (Id. ¶ 59.) In the letter, which counsel also sent to CYF, counsel urged Dr. Crowell to inform the Franklin County Court of Common Pleas of her false testimony. (Id.) After receiving this letter, Dr. Crowell withdrew her invitation to Dr. Mack to present her findings to the CST, citing "risk management" as the reason for the revocation. (Id. ¶¶ 61-62.)

On April 5, 2010, the Franklin County Court of Common Pleas terminated its order of dependency, and legal custody of L.B. and T.R. was returned to Ms. Rosario. (Id. ¶ 63.) On April 29, 2010, the court ordered that Assistant District Attorney Sulcove provide Mr. Billups's counsel with an expert report from Dr. Dias. (Id. ¶ 64.) On June 15, 2010, Dr. Dias sent a report, created on Medical Center letterhead and including the Medical Center logo, to Assistant District Attorney Sulcove.*fn8 (Id. ¶ 67.) In his report, Dr. Dias did not address L.B.'s low protein S level or Ms. Rosario's vitamin D deficiencies. (Id. ¶ 68.) After receiving the report, Assistant District Attorney Sulcove informed the court that she would call Dr. Dias as an expert witness at Mr. Billups's trial. (Id.)

On July 2, 2010, Dr. Mack created a report in which she concluded that thrombosis caused L.B.'s intracranial bleeding, that L.B.'s vitamin D levels could not have been higher than Ms. Rosario's at birth, and that the presence of a large number of asymptomatic rib fractures is indicative of an underlying bony mineralization disorder. (Id. ¶ 69.)

Mr. Billups's counsel apparently obtained additional medical reports regarding L.B.'s injuries. On May 1, 2010, Dr. Joseph Scheller issued a report in which he concluded that L.B.'s intracranial hemorrhage was caused by a blood clot in her head and that there was no evidence of trauma. (Id. ¶ 65.) In July 2010, Dr. David Ayoub issued a report in which he concluded that L.B.'s rib fractures were not due to abuse. (Id. ¶ 70.) Finally, Dr. Holmes Morton, who serves as the director of the Clinic for Special Children in Lancaster, Pennsylvania, issued a report, concluding that Dr. Mack's findings regarding L.B.'s injuries were likely correct. (Id. ¶ 71.)

G. Mr. Billups's Criminal Trial

Mr. Billups's criminal trial began on or around December 12, 2010.*fn9 (Id. ¶ 72.) During the trial, Dr. Crowell testified that she had misrepresented the location of L.B.'s rib fractures when she testified at the December 18, 2009 dependency hearing and at the December 28, 2009 preliminary criminal hearing. (Id.) She also testified that upon learning of her error, she met with an attorney for the Medical Center, who told her that he would send a letter to the Franklin County Court of Common Pleas as well as counsel for Mr. Billups to inform them of the error. (Id.) Thereafter, Mr. Billups's counsel requested a copy of this letter. (Id. ¶ 74.) In response, counsel for the Medical Center stated that a letter had been prepared on behalf of Dr. Crowell but had not been mailed due to an oversight not attributable to Dr. Crowell. (Id. ¶ 75.)

On December 17, 2010, a jury found Mr. Billups not guilty of the criminal charges brought against him, and Mr. Billups was released from jail. (Id. ¶¶ 77-78.)

H. CYF's Voluntary Safety Plan

On December 20, 2010, CYF employees Ms. Coccagna and Ms. Tuner met with Mr. Billups and Ms. Rosario and threatened to remove L.B. and T.R. from their custody unless they agreed to the terms of a voluntary safety plan. (Id. ¶ 79; Doc. No. 25-5.) The terms of the plan -- otherwise known as "safety actions" -- were that Mr. Billups was neither to be alone with L.B. and T.R. nor to physically discipline them. (Doc. No. 25-5 at 1.) As a result of Ms. Coccagna and Ms. Tuner's threats, Mr. Billups and Ms. Rosario reluctantly signed the voluntary safety plan, which stated that the safety actions would be monitored through "announced and unannounced home visits" by CYF employees. (Doc. No. 1 ¶ 80; Doc. No. 25-5 at 1.) The plan remained in effect until June 18, 2011. (Id. ¶ 81.)


A motion to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency of the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). In reviewing a motion to dismiss, a court may "consider only the allegations in the complaint, exhibits attached to the complaint, matters of public record, and documents that form the basis of a claim." Lum, 361 F.3d at 221 n.3. The motion will only be properly granted when, taking all factual allegations and inferences drawn therefrom as true, the moving party is entitled to judgment as a matter of law. Markowitz v. Ne. Land Co., 906 F.2d 100, 103 (3d Cir. 1990). The burden is on the moving party to show that no claim has been stated. Johnsrud v. Carter, 620 F.2d 29, 33 (3d Cir. 1980). Thus, the moving party must show that Plaintiff has failed to "set forth sufficient information to outline the elements of his claim or to permit inferences to be drawn that those elements exist." Kost, 1 F.3d at 183 (citations omitted). A court, however, "need not credit a complaint's 'bald assertions' or 'legal conclusions' when deciding a motion to dismiss." Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). Indeed, the United States Supreme Court has held that while the 12(b)(6) standard does not require "detailed factual allegations," there must be a "'showing,' rather than a blanket assertion of an entitlement to relief . . . . [F]actual allegations must be enough to raise a right to relief above the speculative level.'" Phillips, 515 F.3d at 231-32 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Put otherwise, a civil complaint must "set out 'sufficient factual matter' to show that the claim is facially plausible." Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662 (2009)).


Three groups of Defendants have filed motions to dismiss Plaintiffs' complaint: the Franklin County Defendants, the Chambersburg Borough Defendants, and the Medical Center Defendants. First, the Court will address the Medical Center Defendants' motion to dismiss. The Court will then address the Franklin County Defendants' and the Chambersburg Borough Defendants' motions jointly.

A. The Medical Center Defendants' Motion to Dismiss

The Medical Center Defendants are comprised of five individual Defendants: the Medical Center and Drs. Dias, Crowell, Choudhary, and Eggli. The Medical Center Defendants urge the Court to dismiss the claims raised ...

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