Statement by the Judge Presiding Over this Lawsuit
Our legal system increasingly relies on online trial surveys (such as the one you’re about to participate) to help resolve lawsuits. I therefore want to begin by thanking you for agreeing to serve as an online juror.
This lawsuit is very real, so it’s critical that you pay close attention to the facts because your verdict will have a significant impact on the outcome of the case.
For this survey you will issue a verdict in a lawsuit brought on behalf of two small children who suffered injuries while in foster care. The attorney for the children claim that a number of individuals and/or agencies were negligent while the children were in the care of the Thompson family, and therefore are liable to the children for injuries suffered at the hands of Mr. and Mrs. Thompson.
I’ll begin by listing off the people (or organizations) that the attorney representing the children believes were at fault, followed by a giving you a detailed timeline of what happened. Once I’ve finished telling you about what happened I’ll ask you to divide the fault for what happened between each of these four defendants.
The way you divide the fault is very important because the amount of money that each defendant is required to pay the children in damages will be based on the percentage of fault that you assign to that defendant.
For example, you might decide that one defendant is entirely responsible for what happened (and the others didn’t do anything wrong). Or, you might feel that all the defendants were negligent in some way.
I should mention that a different jury will be tasked with deciding how much money should be awarded.
With this as a backdrop, the children’s attorney initially filed a lawsuit against the following four (4) defendants.
• Department of Health Services (DHS) – a State agency that placed the children with the Thompson family and supervised their care. DHS is accused of being negligent for allowing the kids to remain with the Thompsons despite multiple complaints of abuse and neglect.
• Nutrition Specialists – a non-profit organization that monitored the children’s height and weight from birth. This organization is accused of being negligent for not reporting the sudden (and dangerous) weight loss of both children while under the Thompson’s care.
• Dr. Marcus Palador – a pediatrician who evaluated the children’s health one time while in the care of the Thompsons. Dr. Palador is accused of being negligent for not hospitalizing the children (or at least not reporting signs of starvation when he examined the children).
• Claudia Davis – an attorney who represented the interests of the children while they were in the care of the Thompsons. Ms. Davis is accused of negligence for not doing more to protect their interests, including her supporting the appointment of the Thompsons as the children’s guardian.
You will note that the Thompsons (the family that abused the children) are not named as defendants in this lawsuit. Although the Thompsons aren’t defendants, you will be asked to decide what percentage of fault the Thompsons share for what happened (the same way you will apportion fault between the actual defendants).
You should also know that two of the defendants originally named in the lawsuit (Department of Health Services and Attorney Claudia Davis) recently settled with the children’s attorney and agreed to pay an undisclosed amount of money as compensation to the children.
This means that DHS and attorney Davis are no longer defendants.
Here’s where it gets a little tricky, so read the following carefully. When you issue your verdict you will still be asked to determine how much fault (on a percent basis) that DHS and/or attorney Davis share with the Thompsons and the two remaining defendants who have not settled.
I realize this might be a little confusing, so here is a hint that will make it easy... When it comes time to issue your verdict, simply decide everyone’s share of fault based on their conduct without worrying whether or not they have settled, or even named as a defendant.
Once again, this means that your job will be to divide the fault between five parties so that the total for all five adds to 100%:
• The Thompsons
• DHS (Department of Health Services)
• Nutrition Services
• Dr. Marcus Palador
• Attorney Claudia Davis
With this as a backdrop I will now go over the timeline of events to help you decide the outcome.
Because of laws that protect the identify of minors we will refer to the two children as John and Jane.
The events surrounding this lawsuit occurred over a two-year period between 2012 and 2014.
• Jane is currently 9-years-old and her brother (John) is one year younger (age 8).
• When these events began in 2012 Jane was only a little over 2-years-old (and John was 18-months-old). It is therefore important to consider how young both children were in evaluating their role in communicating (or not communicating) what was happening to them.
The two children were born into a difficult situation. In 2011 (when John was an infant and Jane was just 18-months old) their mother was arrested for drugs. The father was already in jail on another drug related charge, which means the children were placed under the care of the Department of Health Services (DHS), whose first goal was to find foster parents who could take care of both children.
I’ll mention DHS a lot so it might help to understand that DHS has three branches.
• Caseworkers whose main focus is on the children (caseworkers meet with the children about once a month).
• Certifiers whose main focus is on the foster parents (making sure they are qualified and following the guidelines).
• Child Protective Services who only become involved when there is suspected abuse or neglect.
Since it costs money to care for children, foster parents are paid a stipend by the state of approximately $600 a month for each foster child in their care. Before an adult is allowed to become a certified foster parent they must be certified, which is handled by DHS’s certifiers. This process mostly involves having prospective foster parents pass a background test and home inspection.
From the time they were born, both children went to Nutrition Services (one of the defendants in this lawsuit) twice a year to track their height and weight.
Since young kids normally put on weight very quickly, Nutrition Services reports children’s weight in “percentiles,” which show how the child’s weight compares to the weight of the “typical or average” child of the same age.
For example, in 2011 Jane weighed in at the 55th percentile, which means she weighed very slightly more than the average girl her age (if she weighed at the 50th percentile she would have weighed exactly the same as the average girl her age).
In 2011 John weighed in at the 77th percentile, which means that he actually weighed more than three-fourths of the children his age. As you’ll see, the percentile weight of both children began dropping significantly while under the Thompson’s care.
Shortly after DHS took over John and Jane’s care, the Thompsons (who were already certified foster parents) inquired whether they could become John and Jane’s foster parents. Mrs. Thompson knew about John and Jane because she was a distant relative of both children by marriage.
The caseworker in charge of John and Jane asked the DHS certifier who worked with the Thompsons if she thought the Thompsons would make good foster parents for John and Jane.
This certifier (Mary Anderson) told the caseworker that although the Thompsons were certified as foster parents, she had some concerns because there had been a few issues with other children who had been placed in the Thompson’s care:
• A relative of the Thompsons accused Mrs. Thompson of rubbing a child’s face into the carpet as punishment for the child pooping on the floor.
• Three months later this same child’s caseworker noticed a bruise under the child’s eye.
• A 6-year-old who had been transferred out of foster care told someone that Mr. Thompson had hit him and would regularly lock him inside his room.
Mary (who had certified the Thompsons) told the caseworker in charge of John and Jane that the investigation into these three incidents concluded that there had not been any abuse, which meant that the Thompson’s continued to be listed as certified foster parents. However, Mary also said that she and others at DHS were at least concerned enough above the allegations that they were careful to make sure that they felt that the Thompsons were a good fit for any children placed under their care.
Since the children were young (John was only two and therefore couldn’t communicate effectively), DHS decided that the Thompson’s might not be a good fit. As a result DHS placed John and Jane with a different foster family.
The two kids remained with this foster family from July 2011 through May 2012. There were no problems reported during this period.
Nutrition Services continued to monitor John and Jane’s weight. During their time with this foster home John and Jane’s weight remained at or above the 50th percentile, which means both children basically weighed what you’d expect a child their age to weigh.
The Thompsons again expressed interest in fostering John and Jane, citing their loose family ties with the children. By this time John and Jane had a new caseworker (David) who did not share the same concerns about the Thompsons.
David set up a couple meetings where John and Jane would come over to the Thompson’s house for short visits to see how they got along. These visits went well, so in May 2012 the Thompsons became the children’s new foster parents.
When John and Jane moved in with the Thompsons, the couple was already fostering two other children who we will call Sam (age 4) and Sara (age 17).
The week after John and Jane moved in with the Thompsons DHS received an anonymous report that Sam (age 4) was being abused. The report alleged that:
• Mrs. Thompson had forced Sam to take a bath in cold water after he soiled his pants.
• Mr. Thompson allegedly hit Sam and knocked out a front tooth.
DHS had one of its investigators from Child Protective Services go out to the home to interview the Thompsons. Mr. Thompson flatly denied hitting Sam and said that Sam’s tooth had been knocked out accidently while he was playing. The Thompsons also denied making him take a cold bath, but Mrs. Thompson did explain that Sam seemed to have bedwetting problems whenever he was scheduled to visit his actual parents, and that the family visits tended to make Sam very apprehensive.
DHS accepted the Thompsons’ explanations and closed the case as “unfounded,” and therefore took no further action.
Two months later, in July 2012, DHS got another complaint against the Thompsons related to Sam and Sara. This time the complaint alleged that Sam was eating toothpaste because he was hungry and that Mr. Thompson was being verbally abusive to Sara (the 17-year-old).
When the DHS investigator opened the file he saw that their department had recently cleared the Thompsons of similar allegations just two months before.
He therefore closed the case immediately without opening up a new investigation.
Like most kids in foster care, Sam and Sara had a court appointed advocate (attorney), who in this case was very concerned about the problems that were being reported in the Thompsons’ home. This advocate was able to get Sam and Sara removed from the Thompsons’ home and placed with a different foster family.
After moving Sam and Sara to a different foster home both kids began opening up about the problems they’d experienced at the Thompsons home. They explained that the Thompsons sometimes:
• Forced Sam to wear underwear on his head.
• Would occasionally be sent to bed without dinner, and
• Were sometimes locked in their rooms as punishment.
DHS again conducted an investigation into these latest allegations against the Thompsons. When the investigator visited the home she saw that the bedroom door was constructed in a way that someone could be locked inside. When she asked the Thompsons if they had withheld food, Mrs. Thompson admitted locking their pantry, but explained that this was because Sam and Sara had been stealing food at night. DHS closed this newest complain as unfounded based on the Thompsons’ explanation.
The next month (August) DHS received a complaint from John and Jane’s biological grandmother (who was allowed to visit her grandchildren). The grandmother said that during one of these visits she saw Mrs. Thompson “yank” Jane’s arm so hard that the little girl fell and hit her head. The grandmother added that whenever John and Jane would come over they become very upset when it was time to return back to the Thompsons’ home.
The next week the grandmother again contacted DHS saying that Jane vomited three times during her last visit, and that she was concerned they were being mistreated by the Thompsons.
DHS did not take any formal actions on the grandmother’s complaints, and it didn’t receive any more complaints for the rest of 2012.
Nutrition Services continued weighing John and Jane every six months. During their December 2012 weigh-in (7 months after moving in with the Thompsons) Jane’s weight remained about average (53rd percentile), while John dropped slightly from the 80th percentile down to the 60th percentile (which means that he actually went from being somewhat heavy to just above “normal” weight).
In early 2013 the Thompsons began to inquire about changing their status from being just foster parents to John and Jane, to instead becoming their “guardian.” This change in status would mean a number of things:
• DHS would no longer provide a caseworker to oversee how the kids were doing (since legal guardians are considered to be almost the same as parents).
• As guardians the Thompsons would be paid a little more money from the state each month (compared to what they were being paid as foster parents).
DHS formed a committee to consider the Thompsons’ request to become John and Jane’s guardian. This process takes a few months and needs to be approved by a judge following a court hearing.
Before that hearing, however, DHS received another complaint in the spring of 2013 that the Thompsons were allowing a young woman (Keisha Williams), who had previously been one of the Thompson’s foster children, to stay at the house and babysit for John and Jane on a regular basis. The complaint added that they thought Keisha was not only smoking marijuana and using cocaine at the home, but was also selling pot from the house.
DHS conducted an investigation and spoke to the Thompsons who acknowledged that Keisha had been allowed to babysit once or twice. But, the Thompsons said that Keisha was not “staying” at the home, and strongly denied any knowledge that Keisha was using or selling drugs.
DHS accepted the Thompsons’ explanation and closed the case, noting that this complaint wasn’t even technically a complaint of abuse or neglect because there wasn’t anything wrong with a foster parent occasionally bringing in an outside babysitter (as long as that babysitter was qualified).
In June 2013 Nutrition Services again weighed John and Jane, but this time found that both children had gone from normal weight (just above the 50th percentile) to the point that they both weighed in at only the 15th percentile, which means that both children now weighed less than 85% of all children their age.
Everyone agrees that weighing-in at the 15th percentile is not a red flag by itself. The question becomes whether the fact that both children had dropped from above 50th percentile (average) all the way down to the 15th percentile in just six months should have been a red flag.
Nutrition Services logged John and Jane’s 15th percentile weight in their records. Nutrition services also discussed the weight drop with Mrs. Thompson who agreed to allow one of the Nutrition Services’ certified dieticians to evaluate the children to better understand (and address) the weight loss issue. However, Nutrition Services did not notify anyone at DHS about the children’s weight loss.
A couple weeks later Nutrition Services’ dietician evaluated the kids and suggested that the Thompsons have them seen by a medical doctor. The dietitian also recommended a high calorie diet.
The attorney representing John and Jane in this lawsuit named Nutrition Services as a defendant because their organization is designated as a “mandatory reporter,” which means that they are obligated to report any situation where they have reason to believe a child has been the victim or abuse to either the police or DHS. The attorney notes that although Nutrition Services got an outside doctor involved in the children’s care, it did not notify DHS or the police about the children’s weight.
Around this time John and Jane were assigned a new DHS caseworker (Michelle).
Michelle had numerous conversations with the Thompsons and the kids. During one of these conversations Mrs. Thompson volunteered that Jane had recently thrown some “temper tantrums” because she wanted to leave to see her grandmother, and that during these tantrums Jane had banged her head against a the bed to the point of giving herself a bloody nose.
Mrs. Thompson also talked with Michelle about the children’s weight. She told the new DHS caseworker that whenever the kids would visit their grandmother, she would feed them large quantities of sugary snacks to the point that they’d be sick when they got back home and wouldn’t eat for a couple days. Mrs. Thompson said that this unhealthy cycle was probably causing the weight issues, but explained that a dietitian at Nutrition Services was already addressing the problem.
This brings us to July 2013 where there was a flurry of activity at DHS regarding the Thompsons.
On July 24 DHS received a new complaint about the Thompsons, this time from Keisha Williams (the young woman who was previously the subject of a complaint for allegedly babysitting the kids and using drugs). Keisha reported to DHS that she had witnessed Mrs. Thompson yelling at the kids and making them stay in bed for extended periods of time. Keisha also said she saw Mr. Thompson throw Jane hard into her bed.
DHS didn’t open an official investigation, but it did order the caseworker to visit the home to talk with everyone and check on the “overall mood of the children and the household.”
That same day a DHS supervisor got new information regarding an older complaint against the Thompsons. Remember Sam (the 4-year-old who had been previously removed from the Thompsons foster care)? His older sister (Sara) had recently told someone that the real reason Sam lost his tooth the year before was that Mr. Thompson hit him. The DHS supervisor, however, didn’t open up a new investigation because this incident regarding Sam had already been investigated and the allegations were determined to be unfounded.
The next day Michelle (the caseworker) went to the Thompson home to talk to everyone. She asked John and Jane (who were now 3 and 4 years old) if they liked living with the Thompsons. Her report notes that she received conflicting (mixed) answers about their experience, but nothing that raised enough of a red flag to open an investigation. Michelle, however, did note that both kids kept asking her if she could give them something to eat.
Michelle discussed these requests for food with Mrs. Thompson who said that she had an appointment with the dietician at Nutrition Services scheduled the next week.
The Thompsons brought the children back to Nutrition Services on August 6, where they weighed in at less than 10th percentile; even lower than their previous weight just a couple months before. Nutrition Services recorded the weight, but again did not inform DHS.
That same day DHS held a meeting to discuss the plan to appoint the Thompsons as the guardians of John and Jane. The group agreed there were a lot of concerns over the Thompsons, but didn’t take any action because Michelle (the caseworker) was not able to attend that meeting. They agreed to meet the next week when Michelle was available. That meeting, however, was again pushed back because of scheduling problems.
Before DHS held this rescheduled meeting, there was a court hearing in front of a judge to discuss the motion to appoint the Thompsons as guardians of John and Jane. At this hearing Michelle (the DHS caseworker) and the children’s court appointed attorney (Claudia Davis) spoke, but neither one mentioned any problems (or allegations of abuse) against the Thompsons.
Recall that one of the defendants in this case is attorney Claudia Davis who was assigned to represent John and Jane’s interests. Claudia was aware of all the complaints against the Thompsons, but just like the employees of DHS, Claudia did not mention any of these complaints to the judge during the hearing. Instead, Claudia told the judge that she supported appointing the Thompson’s as the children’s legal guardian.
At the end of the hearing the judge granted the order making the Thompsons the guardians of John and Jane. As guardians (rather than just foster parents):
• DHS caseworkers would no longer oversee the children.
• DHS certifies would no longer be charged with making sure the home was safe for the children.
• The Thompsons could decide when (or if) to allow the children to visit their grandparents.
Recall that before the court hearing DHS had been trying to have a meeting to discuss their concerns about the Thompsons. The first meeting (that would have taken place before the hearing about becoming legal guardians) was postponed because the caseworker couldn’t attend. DHS finally held this meeting the day after the Thompsons were named as legal guardians.
But, DHS no longer had jurisdiction over Jane and John (since the Thompsons were now their guardians). But, DHS did have the power to decide whether the Thompsons would be allowed to foster any other children. DHS discussed all the problems with the Thompsons and decided to revoke their certification to be foster parents. However, this revocation did not change the fact that the Thompsons were now the court appointed guardians of John and Jane since guardianship, once appointed, was out of DHS’s control.
Since the dietitian at Nutrition Services was now involved, the children were now coming in monthly for weigh-ins (instead of the usual 6-month intervals). In September and October both kids weighed in around the 15th percentile.
Nutrition Services did not forward this information to the police or DHS. However, they did feel that John and Jane should be evaluated by a medical doctor and sent over all of the information they’d been tracking about the children’s height and weight since birth to Dr. Palador.
Dr. Palador examined Jane on November 5. The day before he examined Jane, he signed a form his nurse filled out for Nutrition Services that diagnosed both children with Failure to Thrive and approved Pediasure for the kids.
By the November 5, 2013 visit, her weight had dropped to around the 5th percentile. He examined John on December 10, 2013. John’s weight had also dropped to around the 5th percentile. Dr. Palador input the exact same statement into both children’s medical chart that read… “Well appearing child, appropriate for age, no acute distress.”
In another area of John’s chart Dr. Palador wrote… “I reviewed developmental milestones with the parents including growth and diet. It appears the weight loss issues are due to visits at the biological grandmother’s house.”
Dr. Palador also wrote a similar note in John’s chart.
Dr. Palador sent his report over to the dietician at Nutrition Services, but he did not notify anyone from DHS, nor did he schedule a follow up appointment or provide any other medical care.
I should mention that, just like Nutrition Services, medical doctors are mandatory reporters, which means that they have an obligation to report any situation where they have reason to suspect a child is being abused or neglected to the police or DHS.
I should also mention that the Thompsons decided that John and Jane would no longer be allowed to visit their biological grandparents; something they had the right to do now that they were guardians.
Although DHS no longer had jurisdiction to actively supervise John and Jane’s care, they still had the authority to investigate any allegations of abuse (similar to the right they had to investigate any parents who are accused of abusing their children). In March 2014 (six months after the Thompsons became guardians) DHS received two new allegations of physical abuse against the Thompsons, one of which noted that John had a black eye.
DHS asked the police to do a welfare check. The officer who responded said Mr. Thompson told him that John had accidently hit his head on a door. The officer reported this back to DHS, along with additional comments that the children seemed weak and developmentally delayed. DHS took the information and closed the case as “no evidence of abuse.”
During the first few months of 2014 the children continued to be weighed in at Nutrition Services. Unfortunately, their weight (which was already only around the 5th percentile) continued to decline to the point that they were essentially at ZERO percentile, which is basically off the growth charts. Everyone agrees this meant the kids were dangerously malnourished. Nutrition Services (and its dietitian) logged these measurements, but did not report the measurements to DHS or any other agency.
Nutrition Services, however, did fax the growth charts to Dr. Palador’s office in March 2014 for his review, noting that the children’s weight problems had gotten worse over the past few months. Dr. Palador did not act on this information.
In July 2014, one of the Thompson’s neighbors went to the local Sheriff’s office to report that they’d been over the Thompson’s house and noticed that both kids were always in their rooms, and they could see there were feces smeared on the walls. The neighbor added that at least once he saw the kids with towels over their heads.
A different officer went to the home to investigate and noticed that John and Jane looked very thin and underdeveloped. Mrs. Thompson made up a false story that their mother was a heroin addict when she gave birth, which is the reason the children were underdeveloped.
The officer saw the feces smeared on the wall, and Mrs. Thompson told him that Jane had done this in a tantrum because she wasn’t allowed to have oatmeal for breakfast. Mrs. Thompson then explained that Jane’s bruises happened recently when she and her brother had been playing together in the pool. The officer also wrote that both kids “were constantly asking for food while he was at the home.”
The Sheriff’s Department forwarded the officer’s report to DHS, which did not take any further action.
A few weeks later John and Jane’s biological mother (who’d completed a drug treatment program) filed a petition with the court to regain custody, saying that she was now clean and prepared to care for her children.
DHS spoke to the Thompsons about the mother’s request. The Thompson’s disagreed and explained that the children’s family had been doing everything possible to disparage the Thompsons, including filing unsupported claims of abuse and filing false police reports.
DHS also reached out to the dietitian at Nutrition Services for the first time to get their take on the kid’s condition. The dietitian said that in her opinion the kid’s “failure to thrive” was due to the grandparents giving the kids too much junk food, and not anything that the Thompsons had done wrong.
The next month, DHS got another report from the police, this time alleging that Mr. Thompson’s father had sexually abused Jane. This time DHS sent an investigator from its Child Protective Services division to the home. The investigator spoke only to the Thompsons (because John and Jane were sleeping). The Thompsons denied the allegation, saying that they’d never left either child alone with Mr. Thompson’s father.
The investigator returned to the home the following week to talk to the kids, who also denied that anything bad had happened. Although both the Thompsons and the kids denied any wrongdoing, the Thompson’s agreed that they wouldn’t allow Mr. Thompson’s father to have any future contact with John or Jane.
The investigator also mentioned both children’s very thin (and underdeveloped) appearance, at which the Thompson’s told a lie about the kids being born with Fetal Alcohol Syndrome that delayed their growth.
The investigator concluded that the allegation against Mr. Thompson’s father was unfounded.
The next month (November 2014) a different CPS caseworker visited the children and noted that they appeared very small in stature and looked generally “very unhealthy.” She reported this to her supervisor, but did not remove the children from the home.
The Thompsons then went to the court to ask the judge to terminate their guardianship over John and Jane, citing their frustration over the constant allegations of mistreatment levied against them.
On December 17 the Court terminated the Thompson’s guardianship and returned both John and Jane to the care of their biological aunt.
As you can expect the children were extremely hungry when they got to their aunt’s house. When she fed them, however, they both vomited. The same thing happened the next day so she took them to the hospital.
Doctors quickly determined that John and Jane were severely malnourished. They were both at ZERO percentile on the growth charts. There condition was so serious that they were at risk for Refeeding Syndrome; a potentially fatal condition where the body has been starved for so long that it never regains the ability to process nourishment.
Thankfully, after a week in the hospital the medical staff was able to stabilize the children. They lived with their aunt for a year, another foster family for a year and their father regained custody and has had his kids for the since. We are happy to report that they are eating normally and their weight is almost back to normal.
Although John and Jane have avoided the most serious medical complications, both kids will need to be monitored closely as they grow because they are still at risk of suffering from a variety of developmental disorders from the 2 ½+ years they spent being abused (and starved) by the Thompsons.
John and Jane have also begun to open up about their experiences at the Thompsons’ home, including the fact that Jane had been sexually abused by Mr. Thompson’s father and that both children had been hit on multiple occasions.
The police arrested Mr. and Mrs. Thompson and they were convicted of child abuse and sentenced to 30 months in prison. Both have finished serving their prison term and were recently released where the will be on probation for the next five years.
You’ve now read all the basic facts surrounding this lawsuit. I will now turn it over to the attorneys representing John and Jane, and then the attorneys for the remaining two defendants (Nutrition Services and Dr. Palador).
Closing Statement by the Children’s Attorney
I expect that if you’re like most people you got very angry as you read through the timeline of what these two small children went through. What happened to John and Jane is terrible, but the worst part is that it was 100% preventable.
It’s important to remember that this isn’t one of those situations where one person made an isolated mistake that led to injury. This case involves a situation where multiple people (and organizations) could have stopped the ordeal at anytime over the 2+ years that that the children were starved (and essentially tortured) by the Thompsons.
The one undeniable fact is that there is plenty of blame to go around, which is why we originally filed this lawsuit against four defendants.
As you know we did not name either Mr. or Mrs. Thompson as a defendant, but as a juror you will be asked to determine the Thompson’s share of fault along with the other four parties (DHS, Nutrition Services, etc.).
I realize that at first you might think to yourself… The Thompsons are the ones who starved the kids, therefore the Thompsons are the ones to blame.
I want you to avoid this knee-jerk reaction because this lawsuit is less about what the Thompsons did, but instead more about the failures of those people who were charged with protecting the interests of John and Jane while they were in foster care.
After all, that’s why we have court appointed attorneys and organizations such as Nutrition Services. The State recognizes there are always risks when children are placed into foster care. I therefore ask that you place little or no legal fault on the Thompsons, and instead place the blame where the real mistakes occurred.
I also expect that when you read the statements from the attorneys for the two remaining defendants (Nutrition Services & Dr. Palador) that they will try to point their finger at DHS (who settled) in an effort to reduce their own exposure to liability.
That’s okay because we fully agree that DHS must accept at least part of the blame for what happened. After all, that’s why we originally named DHS as a defendant. DHS failed these children.
Claudia Davis (the children’s court appointed attorney) also settled. She should have done more to protect the children’s interest; especially on that day in court when she told the judge that she endorsed awarding guardianship to the Thompsons.
The problem is that, unlike DHS and Ms. Davis, Nutrition Services and Dr. Palador refuse to accept responsibility for what they did. This is unfortunate because when you stop and think about it, you realize that the two remaining defendants are probably more to blame than DHS or attorney Davis.
Why? That’s easy…
• Both of the remaining defendants are licensed healthcare providers.
While it’s true that DHS had the ultimate responsibility for John and Jane’s welfare, DHS can only do its job if its staff is given all the relevant information.
Remember, DHS caseworkers and certifiers are not medical professionals. This means that DHS relies on medical professionals (such as Nutrition Services and Dr. Palador) to tell them when there is a medical concern; such as two children in the same home falling completely off the growth charts to the point they are at ZERO percentile for weight.
I’ll begin with Nutrition Services. As the judge previously told you, Nutrition Services is a MANDATORY REPORTER, which means they are required by law to report any situation where they may reasonably suspect child abuse or neglect to the police or DHS.
Nutrition Services had been monitoring the weight of both children from birth, and John and Jane both weighed in consistently above the 50th percentile until they moved in with the Thompsons.
When the weight of both children simultaneously plummeted to the 15th percentile on the June 5, 2013 weigh-in, Nutrition Services had a duty to report this.
While it’s true the Thompsons created an elaborate lie about the kids gorging on sugary snacks during their visits to their biological grandparents, which resulted in their refusal to eat healthy food when the returned to the Thompsons, Nutrition Services needed to at least suspect child abuse, thereby triggering it’s duty to report their findings.
Nutrition Services admits that they didn’t report the drop, which means they must accept a significant share of the blame for what happened.
Let’s give Nutrition Services the benefit of the doubt for a minute, and say it was reasonable to accept the Thompson’s lie in the beginning, such that it was reasonable to first begin having their dietitian evaluate the kids before reporting the suspected abuse. That benefit of the doubt quickly evaporates when their weight continues to decline, despite the dietitian seeing the children on a monthly basis.
At this point we’re no longer talking about an employee just taking measurements, but instead a professional with a Master’s degree in understanding nutrition and eating behaviors.
Think about it for a minute. Month after month this licensed dietitian just accepted without question the Thompson’s story about the kids being picky eaters. How is it possible for the dietitian to accept the Thompsons’ lies when lots of non-professionals reported that John and Jane were literally begging for food? Does this sound like a picky eater to you?
All Nutrition Services’ dietician needed to do was bring an apple into the room and watch both kids beg and salivate for a bite to know that the Thompsons’ story about being picky eaters wasn’t true!
Let’s not forget that the kid’s weight kept dropping from the 15th percentile, down to single digits, to the point that they were so starved that they literally fell off the scale completely. At this point Nutrition Services should have known they had a medical emergency on their hands.
For all these reasons I say that Nutrition Services has at least as much blame for John and Jane’s starvation as DHS, and probably even more blame when you consider their one job was to monitor the weight and growth of John and Jane.
I’ll now address the liability of Dr. Marcus Palador who saw both children on November 5, 2013.
Before I go into all the reasons why Dr. Palador must accept much of the blame, you need to remember is that just like Nutrition Services, Dr. Palador was also a mandatory reporter. This is important because the evidence is absolutely clear that both children presented with symptoms consistent with neglect (if not abuse). This is especially true since he’d been asked to evaluate the children because of their steady decline down the growth charts.
When Dr. Palador examined Jane her weight was at the 5th percentile; so low for her age that she was nearly off the charts!
So what did Dr. Palador enter into his medical report? He wrote that Jane was a “well appearing child, appropriate for age, and in no acute distress.”
Is he kidding? How could a child in the 5th percentile range appear appropriate for her age? And why did two siblings weight percentiles suddenly drop dramatically. One child, maybe there is a medical or emotional reason. Two kids from the same household? Dr. Palador and his clinic needed to look for a cause and suspect abuse.
Maybe you can cut some slack for the overburdened caseworkers at DHS who don’t have any medical training. But, there is simply no excuse for the absolute incompetence displayed by Dr. Palador!
This brings us to Dr. Palador’s examination of John, which makes his incompetence even more unbelievable. At the time of the examination John’s weighed-in at the 3rd percentile (just barely on the charts). It’s what happened next that is beyond comprehension.
Dr. Palador noted that John displayed all of the following problems:
• Diffusely dry skin.
• Delayed social skills.
• Speech development closer to a 2-year-old (John was 3 at the time).
Then, after correctly noting these medical markers that screamed malnutrition (bordering on starvation), Dr. Palador puts down the exact same entry for John that he did for his sister… “Well appearing child, appropriate for age, no acute distress.”
The fact that Dr. Palador entered the exact same finding in both charts (down to the punctuation) shows that he simply hit a key with this preprogrammed response into the record.
For Dr. Palador hitting this response key meant that the case was closed, he’d collect the fee from the state for each child’s visit, and he could go on to the next one.
We’ve consulted with a well-respected pediatrician who is ready to testify that based on what Dr. Palador saw that day; he had an absolute duty as a medical doctor to immediately send both children to a hospital for observation and treatment.
If he didn’t hospitalize the kids, he should have scheduled testing and close follow up. Monitor and check the kids. He never examined them again after his one visit with each child – and he never asked for any follow-ups.
Although he should have sent the kids to the hospital or followed them, for the purposes of this lawsuit he would have been off the hook if he had just picked up the phone and notified DHS about his findings. Remember, and I can’t stress this enough, DHS caseworkers rely on medical providers to alert them of medical problems that affect the safety of children. Without this information, you can’t blame DHS completely for not noticing a medical problem.
DHS still has some of the responsibility for what happened, but their blame is less than Nutrition Services and/or Dr. Palador.
I realize you may be thinking to yourself that DHS caseworkers had to notice how thin the kids were getting on their own, even without being notified by the defendants. First, DHS did notice they were thin. The problem is that they couldn’t realize just how thin (and dangerously malnourished) they were because the starvation was so severe that they basically stopped growing during the 2+ years they lived with the Thompsons.
This means that both their height and their weight dropped off the growth charts. To the non-medically trained eye of a DHS caseworker the kids just looked a little thin, which made it reasonable for DHS to believe the Thompsons’ story about being picky eaters. The same isn’t true for Nutrition Services that had been tracking both height and weight since birth, or a medical doctor who noticed other signs of malnutrition (slack skin, etc.).
Based on all of the above, I therefore ask you to award at least some fault to all four defendants (and former defendants), with the majority of fault going to Nutrition Services and Dr. Palador.
Closing Statement by Nutrition Services’ Attorney
In a few minutes you will be asked to apportion (divide) the fault between five parties. Two of these, including my client (Nutrition Services) are active defendants, while two have settled (and are therefore no longer active defendants), and one (the real culprit) was never named as a defendant.
The fact that DHS settled, however, does not change your job. You must still compare DHS’s conduct against the other defendants (and the Thompsons) and decide how much fault DHS has compared to everyone else. The same is true for attorney Claudia Davis.
I’ll begin with the elephant in the room… the fact that the Thompsons were never named as defendants. No matter how many mistakes all the other past and current defendants made, nothing will change the fact that if the Thompsons hadn’t abused these kids, we wouldn’t be hear today because there never would have been a lawsuit.
I therefore ask that when you issue your verdict you don’t ignore the logical conclusion that the Thompsons by far have the greatest share of fault for what happened.
Next, of course would be DHS that has a much greater share of fault than everyone else. In fact, I would suggest that when you analyze the total picture that the fault allocates along the lines of:
• Thompsons (70%)
• DHS (20%)
• Dr. Palador (5%)
• Attorney Davis (5%)
• Nutrition Services (0%)
I won’t discuss the Thompsons’ share of fault anymore because it is so obvious. I’ll therefore begin by explaining why DHS has more fault than the others.
John and Jane were under DHS’s care for two-and-a-half years (30 months). During this time DHS didn’t do anything to remove the children from the Thompsons’ home despite many (MANY) allegations of child abuse and neglect (all of which proved to be true):
• Repeatedly hitting another foster child (4-year-old Sam) the same month that DHS moved John and Jane in with the Thompsons. Don’t forget that DHS removed Sara and Sam out of the Thompsons’ home, but decided it was okay for John and Jane to stay.
• Multiple reports of withholding food for punishment, in addition to locking John and Jane in their room.
• The grandmother reporting that she saw Mrs. Thompson yank her granddaughter so hard that she fell and hit her head.
• Reports of human feces being smeared on the children’s wall (which was confirmed by a DHS caseworker who took no further action).
• Multiple reports of bruises that the Thompsons’ tried to explain away as anything from running into a door to roughhousing in a pool.
• Allegations that Mr. Thompson’s father sexually touched Jane.
• Multiple reports (by different people) that the children were forced to sit in their rooms with underwear or towels over their head.
• Allegations that the Thompsons’ were allowing a young girl to babysit the children while she was drinking, taking drugs, and even selling drugs out of the house.
These weren’t just unsupported allegations. When it came to the children’s starved appearance, DHS had witnessed for itself that the kids were constantly begging for food during visits, which should have immediately shown that the Thompsons’ were lying when they said the problem was that Jane and John were picky eaters.
You can’t blame Nutrition Services failure to notify DHS of the children’s low weight for two reasons:
First, DHS’s file clearly shows that its caseworkers were already aware that the kids were very thin (and begging for food). This is important because it shows that DHS was already aware of everything they blame Nutrition Services for not telling them.
Second, low weight was only one of the problems that should have caused DHS to remove the kids. Remember, the reports of bruising, sexual abuse, and everything else that had nothing to do with the measurements that Nutrition Services was tracking.
Third, given that DHS already knew about the weight loss, and was already ignoring the other signs of physical abuse, it’s fairly clear that DHS wouldn’t have done anything different if Nutrition Services had sent them over the growth charts. The reality is that these charts would have just been one more piece of evidence that DHS would have ignored.
Now that I’ve told you why DHS has most of the blame, let me explain why Nutrition Services did not do anything wrong.
When Nutrition Services saw the drop in weight they didn’t ignore it, but instead asked the Thompsons to let their dietitian evaluate John and Jane.
The dietitian saw the kids and asked the Thompsons to bring Jane and John in for monthly visits (instead of the normal 6-month intervals).
The dietitian then recommended menu changes designed to increase weight and even wrote a prescription for PediaSure (a product specifically designed to increase weight).
It’s important to remember that, unlike DHS, the dietitian didn’t know about all the allegations of abuse. It was therefore reasonable for the dietitian at Nutrition Services to believe the Thompsons’ stories about the eating disorders stemming from visits to the biological grandparents. It was therefore reasonable for Nutrition Services to assume they were dealing with eating disorders (and not abuse).
Nutrition Services didn’t just stop there; they referred the Thompsons to a medical doctor (Dr. Palador) to evaluate John and Jane.
It was Dr. Palador who, after seeing the other visible problems during the visit, needed to either hospitalize the children, or at least notify DHS. But, Dr. Palador didn’t do anything. In fact, when Nutrition Services went the extra mile of forwarding their records again to Dr. Palador a few months later, Dr. Palador simply ignored the problem completely.
It is for these reasons that I ask you to find no fault on Nutrition Services, and most of the fault on DHS and Dr. Palador. At least more fault on DHS compared to everyone except the Thompsons, who clearly have the greatest share of fault for what happened.
Closing Statement by Dr. Palador’s Attorney
The first thing I need to mention is that Nutrition Services attorney is of course correct when he says that most of the fault needs to be placed on Mr. and Mrs. Thompson. Having said that I’ll move on to how any remaining fault should be allocated between the other four parties.
To do this we must first begin with the fact that both DHS and Nutrition Services had been watching over both children for years (almost from birth). Dr. Palador, however, only saw them each one time.
You must take this into consideration when you consider the amount of fault, if any, that Dr. Palador shares.
I also agree with what Nutrition Services’ attorney said about how DHS ignored the allegations of abuse over and over again, and therefore has by far the most responsibility for what happened (next to the Thompsons who are the most culpable). I won’t take your time by going over everything that DHS did wrong again, so I ask that you really think about how many times DHS closed a report as “unfounded,” thereby missing the opportunity to remove John and Jane from this evil home.
DHS talks about what “good liars” the Thompsons were as they made up stories about black eyes caused by running into doors, or poop smeared on the walls from a temper tantrum about not being given oatmeal that morning. I do want to mention one thing about the poop on the walls, even if the DHS caseworker believed the temper tantrum story, wouldn’t the caseworker have been concerned that the Thompsons didn’t immediately clean up the mess?
The point I want to make is that if you are going to blame Dr. Palador for not seeing through the Thompsons’ lies during this one visit, what does that say about the DHS officials who were fooled for more than two years?
During the investigation Dr. Palador was asked why he didn’t at least suspect the possibility of child abuse. Dr. Palador explained that in his experience parents (or guardians) who are committing child abuse try to avoid bringing their children to the doctor. In this case the Thompson’s willingly brought in both John and Jane and genuinely seemed like they were looking for help with the kid’s eating disorder. Dr. Palador says that if he’d been seeing these children on an ongoing basis (like DHS and Nutrition Services) then he would have been able to see the Thompsons for what they really were.
I also want to take a minute to talk about Claudia Davis, the attorney the court appointed represent John and Jane’s interests. Her role has largely been ignored, so you need to know just how badly Ms. Davis screwed up!
Unlike Dr. Palador, Ms. Davis knew about all the allegations of abuse against the Thompsons, not only for the things they’d done to John and Jane, but also the things they did to Sam and Sara.
Despite all this knowledge of wrongdoing, during the hearing to decide whether the Thompsons would be promoted from foster parents to guardians, Ms. Davis didn’t mention any of the allegations of abuse against the Thompsons. Then, when the judge asked Ms. Davis whether she supported the motion to appoint the Thompsons as guardians, Ms. Davis did the unthinkable, she told the judge that in her opinion she thought the Thompsons would be a good choice as guardians for John and Jane.
The children’s attorney is correct when he says there is plenty of blame to go around. But, in light of Dr. Palador’s extremely limited involvement, his blame pales in comparison to DHS, Nutrition Services, and attorney Davis. I therefore ask that you do not find any fault on Dr. Palador, but instead place most of the fault on the Thompsons (the real culprits), followed by any remaining fault on Nutrition Services and Claudia Davis.
You have now read all the information about this case. When you continue we will ask you a few questions to make sure that you've read the facts closely enough to be allowed to issue a verdict (and receive credit for this survey). The questions are easy as long as you've read the facts. But, you must answer them correctly the first time in order to be allowed to continue. Therefore, you should go back and reread the facts if you've only skimmed them.