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Ferris v. City of Cadillac

United States District Court, W.D. Michigan, Southern Division

July 14, 2017

DAVID FERRIS, II, Plaintiff,
v.
CITY OF CADILLAC, Defendants.

          OPINION

          ROBERT J. JONKER CHIEF UNITED STATES DISTRICT JUDGE.

         Introduction

         Kalla Fisher was nineteen months old when she died in Plaintiff's home on February 16, 2013.[1] The autopsy reports that Kalla's death was homicide based on traumatic head injuries. Plaintiff David Ferris, the boyfriend of Kalla's mother at the time of Kalla's death, was charged with open murder. The prosecutor ultimately dropped the charges, however, after considering the opinions of Plaintiff's experts that the medical data did not rule out a determination that Kalla's death was an accident. Plaintiff's remaining claims[2] are against the medical professionals who reached a different conclusion. The Court concludes these Defendants are entitled to qualified immunity. Not a single professional in the criminal case, or this civil case, has ever opined that Kalla's death was accidental. Nor has any professional in either case ever identified any way in which the autopsy or other medical records were fabricated, altered, or spoiled. The case simply presents three experts (the Defendants) who believe - and continue to believe - Kalla's death was homicide; no experts who opine Kalla's death was accidental; and two experts for Plaintiff who opine that the medical record cannot rule out an accidental death. Qualified immunity protects the professional Defendants who presented their honest opinions in the course of their work, even though the prosecutor ultimately decided not to pursue a criminal case.

         Background[3]

         A.Kalla's Initial Fall

         In January of 2013, Kalla Fisher fell down basement stairs and struck her head on cement. (ECF No. 197-2. PageID.5658.)[4] Kalla was almost nineteen months old at the time. (Id.) Plaintiff David Ferris, then the boyfriend of Kalla's mother, Jesse Fisher, [5] was babysitting Kalla when the fall occurred. Jesse returned approximately twenty minutes later, and Plaintiff told Jesse about the fall. He noted that there had been some swelling on top of Kalla's head and that application of ice reduced the swelling. (Id., PageID.5658.) Plaintiff and Jesse checked on Kalla throughout the night to make sure she was okay. (Id., PageID.5664.) The next morning, Jesse noticed a small amount of swelling and some yellowish bruising before she took Kalla to daycare. (Id., PageID.5663.) Later in the day, the daycare provider contacted Jesse and told her that the bruising and swelling had worsened. (Id.) Jesse picked up Kalla and took her to the emergency room at Mercy Hospital. (Id., PageID.5658.) Medical records reflect that a CT-scan was performed and found no skeletal fractures or dislocations. (Id., PageID.5659.) The record of the scan also notes that motion had compromised the examination and that “no acute intracranial abnormality [was] identified.” (Id., PageID.5660.) As mandatory reporters, emergency room personnel reported the incident to the Grayling Police Department and CPS for investigation. (Id., PageID.5662.)

         Kalla's pediatrician, Dr. Joanna Nigrelli, conducted a follow-up examination the next day. (Id., PageID.5749.) Dr. Nigrelli examined Kalla and diagnosed her with “a head contusion and the bruising or ecchymosis related to that contusion.” (Id., PageID.5749.) Dr. Nigrelli saw no need to hospitalize Kalla and did not order an MRI. (Id.) Dr. Nigrelli reported to CPS that Dr. Nigrelli did not think child abuse caused the injury. (Id., PageID.5664.) Based on Dr. Nigrelli's report and other aspects of its investigation, CPS determined that the “injury appears to be an accident” (Id., PageID.5674). In light of the CPS findings, as well as its own investigation, the Grayling Police Department concluded the complaint of possible child abuse was unfounded. (Id., PageID.5664.)

         B. Kalla's Death

         Kalla died in Plaintiff's home the morning of February 16, 2013.[6] The night before, Jesse put Kalla to bed at around 8:30. (Id., PageID.6041.) At around 11:15, Plaintiff heard his seven year-old daughter, Tessa, and Kalla talking in the bedroom where they and Plaintiff's two other children were to sleep. (Id.) Plaintiff allowed Tessa and Kalla to join him in the room where he was watching television. (Id.) At approximately midnight, Kalla vomited. (Id.) After cleaning Kalla up, Plaintiff put Kalla and Tessa to bed, and then went to bed for the night. (Id.) The next day, at 8:15 a.m., the other three children were awake, but it appeared to Plaintiff that Kalla was still sleeping. (Id.) Jesse checked on Kalla around 9:15 a.m. and found her non-responsive. (Id.) Jesse observed vomit on Kalla's face and pillow. (Id., PageID. 5598.) Plaintiff and Jesse called 911. (Id., PageID.6041.) Plaintiff performed CPR at the direction of the 911 operator. (Id.) Emergency responders arrived, attempted resuscitation, and took Plaintiff to Mercy Hospital in Cadillac, Michigan, by ambulance. (Id.) Plaintiff was pronounced dead at approximately 10:13 a.m. (Id., PageID.5598.)

         C. Kalla's Autopsy

         The Wexford County Medical Examiner, Dr. Fred Wreford, assigned responsibility for Kalla's autopsy to Defendant Sparrow Health System (“Sparrow”). (Id., PageID.5600.) Defendant Dr. Joyce de Jong, a forensic pathologist employed by Sparrow, was tasked with performing the autopsy. (Id.) Dr. de Jong performed the autopsy on Sunday, February 17, 2013, with two autopsy assistants and Cadillac Police Department Detective Todd Golnick in attendance. (ECF 201-2, PageID.9509.) Dr. de Jong's Autopsy Report issued on April 26, 2013. (Id., PageID.9516.) (ECF No.210-2, PageID.9517-18.) The Autopsy Report includes an addendum report (the “Addendum”) that Dr. Rudolph J. Castellani, a pathologist, prepared. (Id., PageID.9518.) The Addendum summarizes the results of a neuropathology consultation Dr. Castellani conducted. (Id.)

         Dr. de Jong's findings after performing Kalla's autopsy examination include, without limitation: (1) acute head trauma, including bilateral subdural hemorrhage, acute subarachnoid hemorrhage, retinal and optic nerve sheath hemorrhages, and cerebral edema and tonsillar herniation; and (2) multiple cutaneous injuries, including multiple contusions of the face, scalp, and neck; anterior chest wall contusion; superior gluteal contusion; right forearm abrasion; left arm contusion; and multiple right forearm contusions. (Id., PageID.9509.) The Autopsy Report notes that Kalla had Duane's Syndrome, an eye movement disorder. (Id.) The Autopsy Report notes that the skull is free of fractures and that the brain appears swollen. (Id., PageID.9513.) In a section of the Autopsy Report with the heading “Opinions, ” Dr. de Jong identifies the cause of death as “Traumatic Head Injuries” and the manner of death as “Homicide.” (Id., PageID.9510.)

         The Addendum details Dr. Castellani's “final neuropathologic diagnoses” as (1) acute head trauma, with bilateral subdural hemorrhage, patchy acute subarachnoid hemorrhage, bilateral intraretinal and optic nerve sheath hemorrhages, and bilateral optic nerve sheath hemorrhage; (2) cerebral edema and tonsillar herniation secondary to acute head trauma.” (Id., PageID.9518). The Addendum concludes with Dr. Castellani's comment that “the findings indicate inflicted head trauma resulting in death.” (Id.)

         Kalla's death certificate specifies the causes of her death as cerebellar herniation occurring minutes before death; bilateral subdural hematomas and multiple blunt force traumas occurring hours before death; and child abuse occurring weeks before death. (Id., PageID.6146.) The death certificate identifies the manner of death as homicide. (Id.) That remains the conclusion on Kalla's death certificate to this day.

         D. Investigations and Medical Opinions

         Wexford County Prosecutor Anthony Badovinac learned of Kalla's death from Det. Todd Golnick, who called Mr. Badovinac to tell him that he intended to attend Kalla's autopsy and that her death might have resulted from child abuse. (ECF No.210-19, PageID.10086.) Det. Golnick was present throughout the autopsy examination. According to Det. Golnick, Dr. de Jong told him that her conclusion was that Kalla died from “a head injury caused by blunt trauma” and that “it would have been inflicted by an adult-sized person.” (ECF No. 199-14, PageID.7275.) Dr. de Jong told Det. Golnick the “injuries she observed were acute and not chronic . . . that they would have happened very recently.” (Id., PageID.7276.)

         The police, the county prosecutor's office, and CPS investigated the circumstances of Kalla's death over the course of months. While these investigations were underway, a family acquaintance, Dr. Aaron Ormsby, reviewed Kalla's medical records at the request of Kalla's grandparents. Dr. Ormsby, a board certified pathologist and the Division Head of Anatomic Pathology at Henry Ford Hospital, issued a written opinion dated February 12, 2014. (ECF No. 206-3, PageID.9067.) Dr. Ormsby's report questioned the conclusions in the Autopsy Report regarding the causes and manner of Kalla's death. Dr. Ormsby noted that he was “in complete agreement [with the autopsy findings] that there is extensive bilateral subdural hemorrhage which is clearly evident on the gross photographs . . . [and] clotted blood over the calvarium and within the sulcl [sic] of the left and right parietal region.” (Id.) But he saw other potential explanations for Kalla's death: “namely, the contribution of Kalla's strabismus, familial bleeding tendency[7] and her playful age.” (Id., PageID.9068.)

         Jennifer Helsel, then a CPS worker assigned to the Ferris file, requested that Dr. Schmidt, a forensic pathologist, review the circumstances of Kalla's death.[8] On February 12 2014, Dr. Schmidt issued his report. In preparing the report, Dr. Schmidt reviewed Kalla's autopsy report, autopsy pictures, emergency room records from February 16, 2013, and records from law enforcement agencies and CPS. (ECF No. 210-3, PageID.9535.) Dr. Schmidt's findings paralleled those of Dr. de Jong. (Id, PageID.9535-36.) He concluded that “this 19 month-old female suffered multiple blunt trauma, mainly to the head, and is the cause of death. The appearance of the injuries indicate that they happened acutely.” Dr. Schmidt opined that “[t]he clinical history, i.e., found dead in the morning without ...


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