Amended Complaint

Case 2:07-cv-00336-CW-DBP Document 288 Filed 02/01/13 Page 1 of 88
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,
PLAINTIFFS SECOND
AMENDED COMPLAINT
AND JURY DEMAND
v.
Case No. 2:07-cv-336
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,
Judge Clark Waddoups
Defendants.
Magistrate Judge Dustin B. Pead
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
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 ii
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
Page iii
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
Page iv
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.
Page 2
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.
Page 3
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
Page 4
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.
B.
Defendant Frasier is sued for damages in her individual capacity.
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
Page 5
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
Page 6
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.
Page 7
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.
E.
Defendant Beerman is sued for damages in his individual capacity.
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.
Page 8
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 childabuse 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
Page 9
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
Page 10
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-4a202.3. (3) The division [DCFS] shall make a report of its
investigation. The written report shall include a determination
Page 11
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
Page 12
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. 14010, 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
Page 13
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
Page 14
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,
Page 15
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)
Page 16
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
Page 17
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
Page 18
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
Page 19
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.
Page 20
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
89.
In addition to the two Molineux boys, an eighteen-month old child was in day
2003.
care with Abby Tiscareno on November 14, 2003.

Page 21
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
94.
Emergency personnel responded to the Tiscareno home and began to treat N.M.
911.
95.
B.
Around 10:40 a.m. on November 14, 2003, N.M. was transported to PCMC.
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].

Page 22
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.
Page 23
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
Page 24
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
Page 25
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
Page 26
number, 3528, N.M.s trauma name: ZZZ-Chi-Ce, N.M.s medical records number: 49-3245, 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.
Page 27
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,
Page 28
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.
Page 29
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
Page 30
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
Page 31
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.
Page 32
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
Page 33
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
Page 34
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).
Page 35
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.
186.
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.
188.
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.
Page 36
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.
Page 37
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
Page 38
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.
Page 39
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.
Page 40
M.
Defendant Frasier Continues To Encourage The Prosecution Of Abby Tiscareno

206.
After interrogating Abby Tiscareno on November 14-15, 2003, Detective Mike
Dorman did not take Abby Tiscareno into custody because he did not think there was probable
cause to arrest her.
207.
Detective Dorman decided that he needed to go back to PCMC and verify
Defendant Frasier's representations that N.M. could have only been injured during the time he
was in the care of Abby Tiscareno.
208.
On Monday, November 17, 2003, Detective Dorman met with Defendant Frasier
at PCMC.
209.
During the meeting, Detective Dorman again asked Defendant Frasier if it would
have been possible that N.M. was shaken before 7:30 to 7:40 a.m., and presented with signs of
the injuries two or more hours later.
210.
Defendant Frasier again told Detective Dorman that N.M. s injuries were so
severe, he would have presented with signs or symptoms immediately, creating a time line as to
when the abuse occurred and telling Detective Dorman it was impossible for the abuse to have
occurred anytime outside her timeline.
211.
Defendant Frasier understood that when she told Detective Dorman that the abuse
of N.M. could only have occurred during a certain timeframe, she was eliminating suspects.
212.
During their meeting on November 17, 2003, Defendant Frasier provided
Detective Dorman with a three page typed report stating her conclusions regarding the nature and
timing of N.M.s injury. Defendant Frasier signed the report, in part, as Medical Director,
Medical Assessment Team, Primary Childrens Medical Center.
Page 41
213.
In her 3 page report, Defendant Frasier discredited the CT head scan report of
prior bleeding in N.M.s brain which conflicted with her opinion, by stating that both she and Dr.
Walker concluded that the radiologists finding of prior bleeding was incorrect, based on the fact
that Walker observed only fresh or hyper-acute bleeding during N.M.s surgery.
214.
At the time Defendant Frasier provided her 3 page report to Detective Dorman,
she knew that the foregoing representations were materially false, misleading and fabricated,
based on her knowledge (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 for daycare on the morning of
November 14, 2003; (c) that a radiologist was more qualified to read and interpret the CT head
scan than Frasier or Dr. Walker; (d) that the CT head scan finding of prior bleeding in N.M.s
brain was contrary to Frasiers conclusion that N.M.s injury could only have occurred while in
Abby Tiscarenos care; (e) that Dr. Walker would not be able to grossly visualize prior bleeding
in N.M.s brain because the evidence was microscopic; (f) that the microscopic examination of
the hematoma in the subsequent Pathology examination would confirm or dispute the CT scan
finding of prior bleeding in N.M.s brain; and that (f) Frasier would need to review the Pathology
Report before she could reach a reliable conclusion regarding the timing of N.M.s injury.
However, Defendant Frasier deliberately did not include any of these critical facts in the three
page report she provided to Detective Dorman.
215.
Following their discussion on November 17, 2003, Defendant Frasier took
Detective Dorman to see N.M. and showed Dorman three small scratch marks on NMs right
torso close to the right nipple. Defendant Frasier photographed the scratches and gave the images
Page 42
to Detective Dorman. Defendant Frasier told Detective Dorman these marks were not made as a
result of any medical treatment N.M. received.
216.
Although Frasier portrayed the scratches on N.M.s chest as evidence of
intentional child abuse to Detective Dorman, Frasier later admitted that she did not know
whether the scratches occurred during N.M.s transportation to PCMC or during his surgery, and
testified that the scratch marks were a complete non-factor in her conclusion that N.M. was
intentionally abused.
217.
On November 17, 2003, Defendant Frasier also sent a copy of her three page
typed report regarding N.M. to DCFS attorney, Deborah Wood.

218.
Defendant Fraiser admitted that if the conclusions she stated to DCFS in her three
page report were wrong, she could be sending an abused child [N.M.] home with a child abuser.
219.
On November 17, 2003, DCFS conducted a 24 Hour Meeting of the MDT child
protection team investigating N.M.s case. The Meeting Attendance/ Confidentiality Agreement
form for the meeting states, in pertinent part: This meeting is convened pursuant to UCA 62A4-509 (1953, as amended) and is part of the investigatory process conducted by the Division of
Child and Family Services.
220.
Those attending the 24 Hour Meeting included DCFS Case Worker Dean Evans
and other DCFS personnel; DCFSs attorney, Assistant Attorney General Deborah Wood; Rick
Smith from the Guardian Ad Litem Office, Dr. Lori Frasier from PCMC (by phone) and Summit
County Sheriffs Office Detective Mike Dorman (by phone).
221.
Defendant Frasier informed the MDT team in the 24 Hour Meeting that N.M.s
subdural hematoma, retinal hemorrhages and the difficulty N.M. had breathing at the time Abby
Page 43
Tiscareno called 911, were a good indicator that he was shaken almost immediately before her
call, implying that Abby Tiscareno was the perpetrator of N.M.s injury.
222.
Defendant Frasier did not inform the MDT team in the 24 Hour Meeting: (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 for daycare on the morning of November 14, 2003; (c) that a
radiologist was more qualified to read and interpret N.M.s CT head scan than Frasier or Dr.
Walker; (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 Dr. Walker would not be able to grossly visualize prior bleeding in N.M.s brain because
the evidence was microscopic; (f) that the microscopic examination of the hematoma in the
subsequent Pathology examination would confirm or dispute the CT scan finding of prior
bleeding in N.M.s brain; and that (f) Frasier would need to review the Pathology Report before
she could reach a reliable conclusion regarding the timing of N.M.s injury. However, Defendant
Frasier deliberately did not include any of these critical facts in the three page report she
provided to Detective Dorman.
223.
Based on the false and misleading information provided by Defendant Frasier in
the 24 Hour Meeting regarding the timing of N.M.s injury, Detective Dorman told the MDT
team that there was probable cause to arrest Abby Tiscareno.
224.
DCFS case worker Dean Evans informed the team at the 24 Hour Meeting that
on November 15, 2003, the Department of Licensing was contacted and notified of the fact that
Abby Tiscarenos daycare was to be shut down during the investigation and that she had
voluntarily agreed to comply with the order.
Page 44
N.
Defendant Frasier Views Surgical Records Showing Specimen of N.M.s Hematoma

Submitted for Pathology Examination
225.
Defendant Frasier admits that she read the surgical reports concerning N.M. on or
about November 18, 2003, after the reports came into N.M.s chart.
226.
Defendant Frasier agreed that the surgical reports of N.M. clearly indicated that a
piece of the hematoma taken from N.M.s brain was preserved and sent to Pathology
O.
Defendant Frasier Fails To Obtain Pathology Report or Discuss Its Findings

227.
At the time Defendant Frasier read that a specimen of N.M.s hematoma was sent
to Pathology for examination, the official policies of the CSHF Medical Assessment Team,
provided that Any evidence collected will be preserved according to applicable statutes and
collection methods.73
228.
However, during her investigation of N.M.s case, Defendant Frasier never
collected the operative records showing a Pathology examination was ordered on the hematoma
specimen from N.M.s brain, including the Perioperative Nursing Record, the Anatomic
Pathology Requisition and the Excerpt from the Pathology Lab Log, and never obtained the
resulting Pathology Reports showing prior bleeding in N.M.s brain, or maintained these medical
records of N.M. she kept in N.M.s case file in the CSHF, as evidence in his case.
229.
Defendant Frasier agrees that if one is trying to determine whether N.M.s injury
was abusive head trauma, the Pathology Report was relevant to determining the age of the
hematoma/clot and that a proper physical examination of N.M. would have included a review of
all laboratory and radiological reports, including the Pathology Report.
Page 45
230.
Defendant Frasier admits that she cannot think of an example in medicine where
gross examination is considered more accurate, trustworthy, and reliable than a pathology
examination and that she routinely consults with pathologists in diagnosing child abuse.
231.
After reading that a specimen from N.M.s hematoma had been sent to Pathology,
Defendant Frasier did not obtain or discuss the findings contained in the Pathology Report and
the concurring report of Drs. Townsend and Yang referred to in the Pathology Report, with Dr.
Walker, Dr. Pysher, Dr. Townsend, or Dr. Yang, at any time prior to the first criminal trial of
Abby Tiscareno.
P.
DCFS Returns N.M. And His Brother To Fathers Custody Based On Frasiers
Representations That Abby Tiscareno Caused N.M.s Injury
232.
On November 18, 2003, a shelter hearing was held and N.M. and J.M. were
returned to their fathers custody with continuing supervision by DCFS. DCFS attorney, Deborah
Wood, indicated in an email to DCFS Director, Richard Anderson, on December 2, 2003 As
soon as the medical evidence made it clear that it was the day care provider, we returned
custody to the father. (Emphasis supplied)
233.
On November 19, 2003, Detective Mike Dorman filed an Affidavit to obtain a
warrant to search Abby Tiscareno's home based, in part, on Defendant Frasiers representations
that N.M.s injury could only have occurred during the time he was with Abby Tiscareno.
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.
234.
Defendant Frasier maliciously, intentionally, knowingly, recklessly and in bad
faith, influenced and encouraged Summit County Detectives and Prosecutor Brickey to prosecute
Abby Tiscareno for child abuse of N.M. by
Page 46
a.
Making repeated materially false, misleading and fabricated representations to
them that N.M.s injury could only have resulted from violent shaking during the time he was
with Abby Tiscareno because all of the bleeding in N.M.s head was fresh, and by
b.
Withholding and concealing exculpatory evidence that (1) a CT head scan had
been performed on N.M. and showed prior bleeding in N.M.s brain; (2) that this finding was
Abby Tiscareno for daycare on the morning of November 14, 2003; (3) that a radiologist was
more qualified to read and interpret N.M.s CT head scan than Frasier and Dr. Walker; (4) 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; (5) that her conclusion
and Dr. Walkers conclusion that the CT head scan finding of prior bleeding was incorrect based
on Walkers observation of only fresh blood was unsupported, because Dr. Walker would not
necessarily have been able to grossly visualize prior bleeding in N.M.s brain because the
evidence was microscopic; (6) that the subsequent microscopic Pathology examination of the
hematoma taken from N.M.s brain would confirm or dispute the CT head scan finding of prior
bleeding in N.M.s brain, and that (7) 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.
c.
Withholding and concealing the medical records of N.M. showing that a specimen
of N.M.s hematoma was sent for a Pathology examination, including the Perioperative Report,
the Anatomic Pathology Requisition; the pathology slides of N.M.s hematoma microscopically
examined by Dr. Pysher; the Pathology Report by Dr. Pysher showing prior bleeding in N.M.s
brain; the Concurring Pathology Report of Dr. Townsend, confirming Dr. Townsends and Dr.
Yangs agreement with Dr. Pyshers finding of prior bleeding in N.M.s brain, and the Excerpt
Page 47
from the Pathology Log, showing that N.M.s hematoma specimen had been received and
examined and that a copy of the Pathology Report were delivered to Dr. Walker, Dr. Reading
and the Medical Records Department.
235.
On November 19, 2003, Detective Dorman arrested Abby Tiscareno and took her
into custody.
236.
Based on Defendant Frasier's materially false and misleading representations to
Detectives Leatham and Dorman that N.M. could only have been injured while in Abby
Tiscarenos care, Summit County Chief Prosecutor Brickey charged Abby Tiscareno by
Information with Second Degree Felony Child Abuse of N.M. on November 20, 2003.
R.
DCFS Revokes Abby Tiscarenos License To Operate Day Care

237.
On November 21, 2003, DCFS issued a Notice of Agency Action, informing
Abby Tiscareno that her license to operate a daycare center was closed and revoked based on
notification from the Summit County Sheriffs Office that she had been charged with Probable
Cause Second Degree Felony Child Abuse.
S.
Detective Dorman Contacts Defendant Frasier Again To Confirm That N.M. Could
Only Have Been Injured In While In Abby Tiscarenos Care
238.
On November 26, 2003, Detective Dorman contacted Defendant Frasier regarding
N.M.'s condition.
239.
On this occasion, Defendant Frasier again told Detective Dorman that N.M.'s
injuries were the result of violent shaking that could only have occurred while N.M. was with
Abby Tiscareno.
240.
At no time during her conversation with Detective Dorman on November 26,
2003, did Defendant Frasier inform Detective Dorman that: (a) a CT head scan had been
Page 48
performed on N.M. and showed prior bleeding in N.M.s brain; (b) that this finding was
Abby Tiscareno for daycare on the morning of November 14, 2003; (c) that a radiologist was
more qualified to read and interpret N.M.s CT head scan than Frasier or Dr. Walker; (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 Frasiers
conclusion and Dr. Walkers conclusion that the CT head scan finding of prior bleeding was
incorrect based on Walkers observation of only fresh blood was unsupported, because Dr.
Walker would not necessarily have been able to grossly visualize prior bleeding in N.M.s brain
because the evidence was microscopic; (f) that a subsequent microscopic Pathology examination
of the hematoma taken from N.M.s brain would confirm or dispute the CT head scan finding of
prior bleeding in N.M.s brain, and that (g) Frasier would need to review the Pathology Report
before she could reach a reliable conclusion regarding the timing of N.M.s injury.
T.
Abby Tiscarenos Attorney Requests Discovery Documents For Her Defense And
Prosecutor Brickey Responds
241.
On November 20, 2003, Abby Tiscareno's attorney, Earl Xaiz, formally requested
Prosecutor Brickey to produce copies of the Information, police reports and any other
discovery in the case against Abby Tiscareno.
242.
Prior to defending Abby Tiscareno, Attorney Xaiz had represented other
individuals in cases and Prosecutor Brickey had always produced all of the relevant records of
the defendant in discovery. Thus, in his letter to Brickey of November 20, 2003, Attorney Xaiz
thanked Brickey for your usual kind help and cooperation.
Page 49
243.
In responding to the request of Attorney Xaiz for evidence pertaining to the
criminal case against Abby Tiscareno, Prosecutor Brickey had a legal duty under United States
Supreme Court's decision in Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L.Ed.2d 215
(1963), to obtain, disclose and provide all material evidence in the possession of the State which
tended to show that Abby Tiscareno did not commit the offense of Second Degree Felony Child
Abuse charged against her by Prosecutor Brickey.
244.
On December 1, 2003, Prosecutor Brickey sent Attorney Xaiz a letter with copies
of the Information, the No Warrant Arrest Fact Sheet, and a Search Warrant and Affidavit
concerning the case. The letter concluded The foregoing is all the discovery in our file at the
present time. However, additional discovery such as medical reports, investigative reports etc.
will be forthcoming. As soon as I receive that additional discovery, I will forward copies of the
same to you.
245.
On January 9, 2004, Prosecutor Brickey sent a letter to Attorney Xaiz enclosing
the following discovery items which were provided to our office this date." The only medical
record produced was the "Intake history for N.M. from PCMC." The letter concludes, "As
additional discovery is received in connection with this case, I will forward copies of the same to
you."
246.
On January 14, 2004, Prosecutor Brickey sent a letter to Attorney Xaiz enclosing
the incident reports of Summit County Sheriff Detective Tom James. The letter states Further, I
was advised today that the medical reports from the PCMC Emergency Room are expected in
this office within the next two weeks.
247.
On January 26, 2004, Prosecutor Brickeys legal assistant sent Attorney Xaiz a
letter, enclosing "eleven pages of medical records for N.M., which were provided to this office
Page 50
from James Molineux." The letter also stated that, "Mr. Molineux advised that additional medical
records are forthcoming. As soon as I receive those records, I will forward copies of the same to
you."
U.
Prosecutor Brickey Formally Requests Complete Records of N.M. from Defendants

IHC, Beerman And Frasier
248.
On January 29, 2004, Prosecutor Brickey faxed a letter dated January 26, 2004, to
PCMCs medical records copying company, Iron Mountain Information Systems, requesting
PCMCs medical records concerning N.M. for the period November 14, 2003, through January
24, 2004.
249.
Pursuant to U.C.A. (1953), 62A-4a-406 and HIPPA, PCMC was permitted to
provide N.M.s medical records to Prosecutor Brickey for use in the criminal prosecution of
Abby Tiscareno without authorization from N.M.s parents.
250.
The Medical Records Department at PCMC provided some of N.M.s records to
Prosecutor Brickeys office in response to his official request. During the relevant time, William
Beerman was the Director of the Medical Records Department and oversaw the general
operations of the Department, including the compilation, storage and distribution of records.
Becky McCrory was a project manager in the Department.74
251.
The medical records of N.M. maintained by the CSHF Department at PCMC were
under the control of Defendant Frasier. Defendant Frasier did not maintain any log or other
record identifying the individual medical records of N.M. she added to, or deleted from, the file,
or the date of any such additions or deletions.
252.
On February 11, 2004, Prosecutor Brickeys legal assistant sent Attorney Xaiz a
letter stating Please find enclosed the additional medical records of N.M., which records were
Page 51
received in this office today. As additional discovery is received in this case with regard to the
above case, I will forward copies of the same to you.
253.
On February 24, 2004, a Preliminary Hearing was conducted to determine
whether there was probable cause to bind Abby Tiscareno over for trial.
V.
Defendants Frasier, IHC and Beerman Violate Their Duties To Produce

Exculpatory Medical Records of N.M. To Prosecutor Brickey
254.
As the primary forensic medical investigator, expert medical witness and member
of the prosecution team for the State in the criminal prosecution of Abby Tiscareno for felony
child abuse of N.M., Defendant Frasier had legal duties under the Due Process Clause of the
Fourteenth Amendment to the United States Constitution to disclose all evidence generated in
her investigation of N.M.s case, including medical records of N.M., that were exculpatory of
Abby Tiscareno as the perpetrator of N.M.s injury, to Prosecutor David Brickey for disclosure
to Abby Tiscarenos attorney, and to disclose such exculpatory medical records in response to
Prosecutor Brickeys official requests or subpoenas for the medical records of N.M..
255.
Between November 14, 2003 and the first criminal trial of Abby Tiscareno on
October 25-26, 2004, Defendant Frasier directly or indirectly received or reviewed one or more
subpoenas and/or official requests from Prosecutor Brickey to produce medical records of N.M.
for use in the criminal prosecution of Abby Tiscareno.
256.
In violation of the foregoing duties, Defendant Frasier did not produce the
following exculpatory medical records of N.M. to Prosecutor David Brickey at any time prior to
the Preliminary Hearing on February 24, 2004, or the first trial of Abby Tiscareno on October
25, 2004:
Page 52
a.
The November 14, 2003 Perioperative Report indicating a specimen of N.M.s
hematoma was obtained during his surgery;

b.
The November 14, 2003 Anatomic Pathology Requisition requesting a Pathology
examination of N.M.s hematoma specimen;

c.
The pathology slides of the N.M.s hematoma specimen;
d.
The November 17, 2003 Pathology Report of Dr. Theodore J. Pysher concerning
N.M.s hematoma specimen;

e.
The November 17, 2003 Concurring Pathology Report from Dr. Jeanette
Townsend to Dr. Pysher stating that she and Dr. Yang concurred in Dr. Pyshers finding of prior
bleeding in N.M.s brain:
f.
The Excerpt from the Pathology Log for November 14-18, 2003, showing that the
Pathology Report on N.M.s hematoma specimen was complete and mailed to Dr. Walker, Dr.
Reading and Medical Records.
257.
In performing their delegated duties under the State Contract to assist DHS/DCFS
in the States public function and duties for the reporting, diagnosis, investigation and
prosecution of child abuse cases, including the case of N.M., Defendants IHC and Beerman had
a legal duty under the Due Process Clause of the Fourteenth Amendment to the United States
Constitution , to disclose all medical records generated in IHCs diagnosis and investigation of
N.M.s case, that were exculpatory of Abby Tiscareno as the perpetrator of N.M.s injury, to
Prosecutor David Brickey for disclosure to Abby Tiscarenos attorney.
258.
In responding to subpoenas and/or requests from Prosecutor Brickey for the
medical records concerning N.M. for use in the criminal prosecution of Abby Tiscareno,
Page 53
Defendants and IHC and Beerman had a Fourteenth Amendment duty to provide all medical
records of N.M., including medical records that were exculpatory with respect to the criminal
charge against Abby Tiscareno.
259.
Between November 14, 2003 and the first criminal trial of Abby Tiscareno on
October 25-26, 2004, Defendants IHC and Beerman directly or indirectly received or reviewed
one or more subpoenas and/or official requests from Prosecutor Brickey to IHC, doing business
as PCMC, to produce the complete medical records of N.M. for use in the criminal prosecution
of Abby Tiscareno.
260.
In violation of their foregoing duties, Defendants IHC and Beerman did not
produce the following medical records of N.M. maintained at PCMC, collectively referred to as
the exculpatory pathology evidence, to Prosecutor David Brickey at any time prior to the
Preliminary Hearing on February 24, 2004, or the first trial of Abby Tiscareno on October 25,
2004:
a.
The November 14, 2003 Perioperative Report indicating a specimen of N.M.s

b.
The November 14, 2003 Anatomic Pathology Requisition requesting a Pathology

c.
d.
The November 17, 2003 Pathology Report of Dr. Theodore J. Pysher concerning
Page 54
e.
Townsend to Dr. Pysher stating that she and Dr. Yang concurred in Dr. Pyshers finding of prior
bleeding in N.M.s brain:
f.
Reading and Medical Records.
W.
Abby Tiscareno Deprived Of Exculpatory Evidence At The Preliminary Hearing

261.
The State did not produce any eyewitnesses to N.M.s injury at the Preliminary
Hearing on February 24, 2004.

262.
The States case against Abby Tiscareno thus rested entirely on circumstantial
evidence and expert medical testimony provided by Defendant Frasier regarding the nature and
timing of N.M.s injury and by inference, the identity of the perpetrator.
263.
Defendant Frasier testified that N.M.s injury was caused by violent shaking and
that there could have been no time between the infliction of the injury and the onset of symptoms
such that Abby Tiscareno must have inflicted the injury because N.M. was in her care when he
became unconscious.
264.
Under cross-examination by Attorney Xaiz at the Preliminary Hearing, Defendant
Frasier testified that the finding in the CT head scan report of a chronic subdural hematoma
was relevant to a determination of when N.M. was injured, because If there was old blood, the
child could have been previously injured.
265.
Under cross-examination by Attorney Xaiz at the Preliminary Hearing, Defendant
Frasier discredited the CT head scan report finding of chronic subdural indicating prior bleeding
Page 55
in N.M.s brain, by testifying that she and Dr. Walker had determined this finding was
incorrect, based on Dr. Walkers observation that all of the blood he saw during surgery was
fresh. Defendant Frasier also testified that Dr. Walker, as N.M.s surgeon, had the best ability
to determine whether there was a chronic subdural [prior bleeding].
266.
Defendant Frasier knew that the foregoing sworn testimony was inaccurate,
misleading and a fabrication at the time she testified, based on her knowledge that: (1) the CT
head scan found prior bleeding in N.M.s brain; (2) this finding was consistent with the
conclusion that N.M.s injury occurred before he was left with Abby Tiscareno for daycare on
November 14, 2003; (3) that the radiologist was more qualified than to read and interpret N.M.s
CT head scan than Frasier or Dr. Walker; (4) 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; (5) that Dr. Walker would not necessarily have been able to grossly
visualize microscopic evidence of prior bleeding in N.M.s brain during surgery that would be
revealed by subsequent pathology examination of N.M.s hematoma; (6) that a microscopic
Pathology examination of the hematoma taken from N.M.s brain would confirm or dispute the
CT head scan finding of prior bleeding in N.M.s brain, and that (7) Frasier would not reach a
reliable conclusion regarding the timing of N.M.s injury without reviewing the Pathology
Report; (8) that Frasier had never obtained the Pathology Report or considered its findings in
determining the timing of N.M.s injury; and (9) that Frasier did not know whether the Pathology
Report findings supported the opinions she gave the jury that all of the bleeding in N.M.s brain
was fresh and that N.M. could only have been injured while in Abby Tiscarenos care.
267.
Because Defendants Frasier, IHC and Beerman maliciously, intentionally,
knowingly or recklessly failed to disclose to Prosecutor Brickey the exculpatory pathology

Page 56
evidence showing bleeding in N.M.s brain prior to the time he was left in Abby Tiscarenos care
at any time prior to the Preliminary Hearing, Prosecutor Brickey could not and did not disclose
the exculpatory pathology evidence to Attorney Xaiz. Thus, Attorney Xaiz did not have the
exculpatory pathology evidence to present to the Court to rebut and discredit Defendant Frasiers
and Dr. Walkers expert medical testimony that the injury to N.M. was fresh and could only
have occurred while N.M. was in the care of Abby Tiscareno. Thus, Abby Tiscareno was bound
over for trial on the charge of Second Degree Felony Child Abuse.
X.
Prosecutor Brickey Continues To Provide Discovery Documents To Attorney

Xaiz And Works With Defendant Frasier To Prosecute Abby Tiscareno
268.
On March 12, 2004, Prosecutor Brickey sent Attorney Xaiz a letter enclosing the
DCFS Child Abuse Neglect Reports generated by the State of Utah and a Memorex CD that
contains photographs taken of N.M. at Primary Childrens Hospital.
269.
On March 16, 2004, the trial of Abby Tiscareno was scheduled for August 23-24,
270.
On March 17, 2004, Prosecutor Brickey sent a memorandum to Summit County
2004.
Detective Mike Dorman, asking him to schedule a meeting at PCMC for Brickey, Dorman and
Defendant Frasier to identify and discuss the physicians from PCMC the State could use as
medical expert witnesses in the trial of Abby Tiscareno.
271.
On March 30, 2004, Prosecutor Brickey sent a letter to Attorney Xaiz informing
him Defendant Frasier would be out of town during the dates then scheduled for the trial of Abby
Tiscareno on August 22-25, 2004, and stating that he (Brickey) would have to alternative dates
for the trial from Defendant Frasier that would not conflict with her appearance as the States
principal Expert Witness. (Emphasis supplied).
Page 57
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
272.
In April, 2004, Defendant Frasier wrote an article about N.Ms case that was
published in the June 2004 medical journal, Consultant For Pediatricians, in which she
described the case of N.M. under the heading Case 2: Child Injured in Daycare.
273.
In her article concerning N.M., Defendant Frasier states that the CT scan showed
a large right sided hematoma with midline shift, but Defendant Frasier does not mention the fact
that the CT head scan on N.M. also showed an acute subdural hematoma superimposed on a
chronic subdural hemorrhage.
274.
In the same article, Defendant Frasier also does not mention that a Pathology
examination was performed on a specimen of N.M.s hematoma or the fact that she did not
obtain or review the Pathology Report before determining that the CT scan finding of a chronic
subdural hemorrhage in N.M.s brain was incorrect, or before advising Summit County
Detectives Leatham and Dorman that N.M. could only have been injured during the time he was
in Abby Tiscarenos care.
275.
At the time Defendant Frasier wrote the journal article concerning N.M., she
knew that a review of all available medical information concerning N.M. was required for
accurately diagnosing the timing of N.M.s injury and that a review of the Pathology Report was
necessary for an accurate diagnosis of the timing of his injury.
Z.
Prosecutor David Brickey Attempts To Obtain N.M.s Complete Medical Records

For Disclosure to Abby Tiscarenos Defense Attorney
276.
On April 26, 2004, Prosecutor David Brickey obtained what he believed to be the
complete medical records of N.M. to that date from the Medical Records Department at PCMC,
Page 58
based on the accompanying Certification signed by IHC employee Becky McCrory, stating that
PCMC was providing the complete records of PCMC for N.M. for the period 11-14-03 to 1-264 (sic).
277.
The medical records IHC, Beerman and Frasier provided to Prosecutor Brickey on
April 26, 2004, were not the complete medical records of N.M. for the period 11-14-03 to 126-4 (sic) and did not contain the medical records relating to the exculpatory pathology
evidence, which would have contradicted the expert opinions of Defendant Frasier, IHCs
Director of Medical Assessments, and the primary expert medical witness for the State in the
prosecution of Abby Tiscareno, that all of the bleeding in N.M.s brain was fresh and that
N.M. could only have been injured while in Abby Tiscarenos care. The exculpatory medical
evidence and records that were not produced to Prosecutor Brickey included:
a.
The November 14, 2003, Perioperative Report indicating a specimen of N.M.s

b.
The November 14, 2003, Anatomic Pathology Requisition requesting a Pathology

c.
d.
The November 17, 2003, Pathology Report of Dr. Theodore J. Pysher concerning

e.
Townsend to Dr. Pysher, expressing that both she and Dr. Yang concurred with Dr. Pyshers
conclusion the specimen showed prior bleeding in N.M.s brain; and
Page 59
f.
Reading and the Medical Records Department on the latter date.
278.
Two days later, on April 28, 2004, Prosecutor Brickey sent Attorney Xaiz a letter
enclosing 1121 pages of medical reports with regard to N.M., as well as medical records from
Intermountain Health Care [PCMC] and stating As additional discovery is received in
connection with this case, I will forward copies of the same to you.
279.
On June 2, 2004, Attorney Xaiz sent a letter to Prosecutor Brickey asking for the
x-rays taken of N.M. at PCMC and requesting Brickey to let him know if he needed to make
arrangements to see the x-rays at the hospital.
280.
On June 7, 2004, Prosecutor Brickey sent Attorney Xaiz a letter enclosing the x-
rays for N.M. from PCMC on a CD, and stated As additional discovery is received in
connection with this case, I will forward copies of the same to you.
281.
On September 2, 2004, Prosecutor Brickeys office sent Attorney Xaiz a letter
enclosing several reports from Intermountain Health Care [PCMC] reflecting all scans, x-rays,
etc., conducted on N.M. Also enclosed is a report/publication prepared by Dr. Lori D. Frasier
and Thomas Conover entitled Subdural Hematoma in Two Children. The letter also indicated
that, As additional discovery is received in connection with this case, I will forward copies of
the same to you.
282.
On September 2, 2004, Prosecutor Brickey sent Attorney Xaiz a Notice
designating Defendant Frasier as an expert witness for the State in the trial against Abby
Page 60
Tiscareno. The Notice stated "Dr. Frasier will testify in accordance with the medical analysis
and treatment provided by her to N.M."
283.
On October 15, 2004, Prosecutor Brickey sent Attorney Xaiz a letter enclosing a
CD containing CT, MRIs and X-ray images previously provided to you The letter also states
As additional discovery is received in connection with this matter, I will forward copies of the
same to you.
AA.
Frasier Fails To Disclose Exculpatory Pathology Evidence To Prosecutor Brickey

During Trial Preparation
284.
In speaking with Prosecutor Brickey to prepare to testify as the States primary
expert medical witness in the trial of Abby Tiscareno, and in speaking with Prosecutor Brickey
to assist him in selecting other expert medical witnesses for the trial, Defendant Frasier did not
disclose to Prosecutor Brickey or any other member of the prosecution team, including
Detectives Leatham and Dorman, the exculpatory evidence, that: (1) a CT head scan found prior
bleeding in N.M.s brain; (2) that this finding was consistent with the conclusion that N.M. was
injured prior to the time he was left with Abby Tiscareno on the morning of November 14, 2003;
(3) that a radiologist was more qualified to read and interpret N.M.s CT head scan than
Defendant Frasier and Dr. Walker; (4) 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; (5) that Defendant Frasiers and Dr. Walkers conclusion that the CT
head scan finding of prior bleeding was incorrect because Dr. Walker observed only fresh
blood during the surgery, was unsupported because Dr. Walker would not have been able to
grossly visualize prior bleeding in N.M.s brain during surgery because the evidence was
microscopic; (6) that the subsequent microscopic Pathology examination of the hematoma taken
Page 61
from N.M.s brain would confirm or dispute the CT head scan finding of prior bleeding in
N.M.s brain, and (7) that despite her knowledge of the Pathology Reports critical significance
in determining the timing of N.M.s injury, Defendant Frasier had never obtained the Pathology
Report and had never spoken to Dr. Walker or the radiologist who read N.M.s CT head scan
about the findings in the Pathology Report, before determining to provide sworn testimony to the
jury in the trial of Abby Tiscareno, that all of the bleeding in N.M.s head was fresh and that
N.M.s injury could only have occurred while he was in the care of Abby Tiscareno.
BB.
The First Trial of Abby Tiscareno Without Exculpatory Pathology Evidence

Results In Wrongful Conviction
285.
The trial of Abby Tiscareno commenced on October 25, 2004.
286.
As in the Preliminary Hearing, the central theory of the State's case was that the
person who had custody of N.M. at the time his injury was first observable was the perpetrator.
287.
The prosecution's case at trial was supported by testimony from Defendant Frasier
and Dr. Walker that N.M.'s injury was "fresh." According to these medical experts, N.M. would
have become symptomatic within moments of the time the injury was inflicted and N.M. would
not have appeared normal at any time following the injury.
288.
The one piece of medical evidence that was potentially inconsistent the State's
theory that Abby Tiscareno was the only one who could have injured N.M. was the report of the
CT scan taken of N.M.'s brain at PCMC shortly after his admission.
289.
According to Dr. Reid, the radiologist who read the scan, the scan involved two
densities of blood, suggesting "old" bleeding and "fresh" bleeding in N.M.s brain.
Page 62
290.
The presence of old bleeding on N.M.s CT head scan raised the possibility that
N.M. suffered a head injury with consequent internal bleeding sometime before N.M. had been
dropped off at Abby's Daycare on November 14, 2003.
291.
To counter such an inference, Defendant Frasier and Dr. Walker both testified in
the first trial of Abby Tiscareno, that N.M.'s bleeding was all "fresh" and that there was no "old
blood" present in the hematoma.
292.
Defendant Frasier testified that there was no evidence that I could determine in
consulting with all of the other physicians that there was a pre-existing chronic bleed in N.M.s
head so that it was all very acute or all very, very fresh.
293.
At no time during the trial, did Defendant Frasier tell the jury that: (1) a CT head
scan had been performed on N.M. and showed prior bleeding in N.M.s brain; (2) that this
finding was consistent with the conclusion that N.M.s injury occurred prior to the time he was
left with Abby Tiscareno for daycare on the morning of November 14, 2003; (3) that a
radiologist was more qualified to read and interpret N.M.s CT head scan than Defendant Frasier
and Dr. Walker; (4) 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;
(5) that her conclusion and Dr. Walkers conclusion that the CT head scan finding of prior
bleeding was incorrect based on Dr. Walkers observation of only fresh blood during the
surgery, were unsupported because Dr. Walker would not necessarily have been able to grossly
visualize prior bleeding in N.M.s brain during surgery because the evidence was microscopic;
(6) that the subsequent microscopic Pathology examination of the hematoma would confirm or
dispute the CT head scan finding of prior bleeding in N.M.s brain, (7) that despite her
knowledge of the critical importance of the Pathology Report in determining the timing of
Page 63
N.M.s injury, Defendant Frasier had never obtained the Pathology Report or discussed its
findings with Dr. Walker or the radiologist who read N.M.s CT head scan, before giving sworn
expert medical testimony at trial that all of the bleeding in N.M.s brain was fresh and that
N.M.s injury could only have occurred while he was in the care of Abby Tiscareno.
294.
During the trial of Abby Tiscareno, Dr. Walker testified "There was no old blood
at all that we could see. Everything we saw was fresh. It was freshly clotted blood."
295.
In response to a question by Attorney Xaiz as to whether the hematoma was
analyzed after being removed, Dr. Walker testified a portion of it is sent to the pathology for
them to have a specimen.
296.
Dr. Walker further testified under cross-examination, that his recollection was that
the pathology report showed essentially a bland clot and that there was nothing spectacular
about it. This was the first time the existence of the Pathology Report became known to
Prosecutor Brickey or Attorney Xaiz.
297.
At no time during the trial, did Dr. Walker tell the jury that: (1) a CT head scan
showed prior bleeding in N.M.s brain; (2) that this finding was consistent with the conclusion
that N.M. was injured before he was left with Abby Tiscareno on the morning of November 14,
2003; (3) that a radiologist was more qualified to read and interpret N.M.s CT head scan than
Defendant Frasier or Dr. Walker; (4) that the CT head scan finding of prior bleeding in N.M.s
brain was contrary to Frasiers and his opinion that N.M. could only have been injured while in
Abby Tiscarenos care; (5) that Frasiers and Walkers conclusion that the CT head scan finding
of prior bleeding in N.M.s brain was incorrect because Walker observed only fresh blood
during N.M.s surgery, was unsupported because Walker would not have been able to grossly
visualize microscopic evidence of prior bleeding in N.M.s brain; (6) that the subsequent
Page 64
microscopic Pathology examination of the hematoma taken from N.M.s brain would confirm or
dispute the CT head scan finding of prior bleeding in N.M.s brain; (7) that the Pathology
Report of Dr. Pysher referenced the report of Drs. Townsend and Yang concurring in Dr.
Pyshers finding of prior bleeding in N.M.s brain; that (8) Defendant Frasier never discussed the
findings of prior bleeding in the Pathology Reports with Dr. Walker or Dr. Reid during the
course of her investigation of N.M.s case.
298.
Because Defendants Frasier, IHC and Beerman never disclosed the foregoing
exculpatory pathology evidence to Prosecutor Brickey, Prosecutor Brickey could not and did not
disclose this evidence to Attorney Xaiz. Thus, Attorney Xaiz was unable to effectively counter
the materially false and misleading expert medical testimony of Defendant Frasier and Dr.
Walker that N.M.s injury was fresh such that only Abby Tiscareno could have inflicted
N.M.s injury in the first trial of Abby Tiscareno.
299.
In his closing and rebuttal arguments to the jury, Prosecutor Brickey more than
once repeated the sworn testimony of Defendant Frasier and Dr. Walker that the bleeding in
N.M.'s brain was all "fresh blood" in arguing that Abby Tiscareno was the only person who
could have caused N.M.s injury.
300.
Subsequently, the jury convicted Abby Tiscareno of child abuse, a second-degree
felony.
CC.
N.M.s Parents File Damage Action Against Abby Tiscareno And Her New
Attorneys Discover Exculpatory The Exculpatory Pathology Evidence
301.
Following the verdict, the parents of N.M. filed a civil lawsuit against Abby
Tiscareno seeking money damages for N.M.'s injuries.
Page 65
302.
Because Abby was innocent, Abby and Guillermo Tiscareno decided to hire new
attorneys to fight the conviction and to defend Abby in the civil action filed by the Molineuxs.
303.
The publicity regarding the child abuse charges against Abby devastated Abby
and Guillermos businesses.

304.
The Tiscarenos were forced to sell a home they owned in California to pay for
Abby's legal representation.

305.
The Tiscarenos incurred taxes and transaction costs on the sale of their home in
California.
306.
In addition, the Tiscarenos incurred nearly $250,000 in legal fees and costs.
307.
As part of their investigation in the civil action, Abby's new attorneys, Bradshaw
and Moffat, sent a subpoena to PCMC for the Pathology Report on the portion of the hematoma
removed from N.M.'s brain.
308.
When PCMC did not produce the Pathology Report in response to their subpoena,
Bradshaw and Moffat contacted the Pathology Department and obtained the Pathology Reports
directly from the Department.
309.
Subsequently, Bradshaw and Moffat filed motions for a new trial based on the
newly discovered exculpatory pathology evidence and improper jury instructions.

310.
The state court granted Abby Tiscareno a new trial based on improper jury
instructions and thus did not reach the issue of the newly discovered exculpatory evidence.
Page 66
DD.
The Second Trial Of Abby Tiscareno Results In Acquittal

311.
The second trial of Abby Tiscareno was conducted on May 23-26, 2005 before
the Honorable Deno Himonas, Judge of the Third Judicial District Court, in Summit County,
State of Utah.
312.
At the second trial, Defendants Frasier and Dr. Walker again testified that N.M.'s
injuries were "fresh.

313.
Under cross-examination at the second trial, Defendant Frasier testified, among
other things, that

a.
She was aware of the Pathology Report in N.M.s case and that it indicated prior
bleeding and trauma in N.M.s brain;

b.
A chronic subdural hematoma may rebleed due to minor trauma, or may rebleed
spontaneously for reasons nobody understands and become acute;

c.
In the article she wrote concerning N.M.s case, she stated that the key to
accurate diagnosis lay in thorough interviewing by child abuse and neglect specialists and by law
enforcement, that corroboration of facts can be the key, and that inconsistent statements of
witnesses could be important, and that she was talking about her herself as the child abuse
specialist in N.M.s case.
d.
She should have discussed the results of the Pathology Report in the article she
wrote about N.M.s case;

e.
She relied on the health history of N.M. given to her by James Molineux that
N.M. was fine on the morning of November 14, 2003, and had not been ill during the previous
week, as being accurate in deciding that N.M. could only have been injured while in Abby
Page 67
Tiscarenos care, without interviewing any other family members or Abby Tiscareno to confirm
that Molineuxs statements were accurate;
f.
She never reviewed the records from N.M.s pediatrician regarding his health
prior to his admission at PCMC and did not think it was important to do so;
g.
She told Detective Leatham on the night of November 14, 2003, that N.M. had
been severely shaken, that there would have been no period of normalcy, that N.M. would have
become unconscious immediately after the injury, and that these facts were consistent with the
conclusion that only Abby Tiscareno could have inflicted the injury;
h.
She told Detective Dorman on Monday, November 17, 2003, the same things she
had previously told Detective Leatham, and told Dorman it would not be possible that N.M. was
shaken before 7:40 a.m. and presented with the signs of the injury two or three hours later.
i.
She created a timeline for the officers as to when the abuse could have occurred
and told them the symptoms could not have occurred outside the timeline, and understood the
impact of her representations on the course of their investigation, namely, that she was
eliminating all suspects other than Abby Tiscareno;
j.
When she spoke with Detectives Leatham and Dorman, she knew she had a CT
scan finding prior bleeding in N.M.s brain;

k.
The article by Dr. Hymel which she described as a wonderful article
emphasizes that where neurological intervention to evacuate a subdural hematoma is required, it

is important to make sure the strained subdural, clot and surrounding tissues are collected for
biochemical and histological analysis and to review these results to ascertain the composition of
the subdural collection and to verify the presence or absence of perineal membrane. She was
Page 68
aware as a forensic matter that a pathology examination is an important piece of the puzzle in
diagnosing child abuse.
l.
She consulted with Dr. Walker regarding N.M. and didnt ask him about the
Pathology Report;
m.
She was aware that part of the sample of N.M.s hematoma was sent to Pathology
as soon as the surgical reports came into the chart, a few days after the surgery;
n.
As the Director of Safe and Healthy Families, she was aware of the importance of
getting the sample of N.M.s hematoma, preserving it and sending it to Pathology for
examination, and the neurosurgeons responsibility and duty to do so;
o.
She normally relies on other pediatric specialists, including pathologists, in
diagnosing child abuse;

p.
She narrowed the time frame and sent everyone on their way and said it can only
be in this timeframe without ever getting the Pathology Report that day, that week, that month
and that she never got the Pathology Report;
q.
The jury in the first trial of Abby Tiscareno was given inaccurate information
about whether there was a prior bleed in N.M.s brain because they were not informed of the
findings in the Pathology Report.
315.
Under cross-examination at the second trial, Dr. Walker testified, among other
things, that
a.
The conclusion of the radiologist who initially read the CT head scan of N.M.
that it showed an acute subdural hematoma superimposed on a chronic subdural hematoma [prior
bleeding] was reasonable;
Page 69
b.
He was not a radiologist and that a radiologist, pediatric neuropathologist or
forensic pathologist would be more qualified to interpret a pathological specimen than he was;
c.
He could not discount the possibility that N.M. had a chronic subdural hematoma
that re-bled and resulted in the acute signs Dr. Walker saw in surgery;
d.
If N.M. had a chronic subdural hematoma, it became acute within a few days;
e.
The trauma that would cause a chronic subdural hematoma to rebleed could be
fairly minor and that there could be a lucid interval between the trauma and the time the victim
became unconscious.
316.
During the second trial, Abby Tiscarenos expert, John Edward Leestma, a
neuropathologist, testified that based upon his review of the pathology specimen and the CT
head scan on N.M., that N.M. had a chronic subdural hematoma with an acute component and
that his conclusions were consistent with those of Drs. Pysher and Townsend.
317.
Dr. Leestma also testified that the hemosiderin revealed in the pathology
specimen of the clot indicated that the clot was at least 7 days old, and that the cellular changes
in the arachnoid demonstrated that the clot taken from N.M.s head was 10 days old or older.
318.
Dr. Leestma further testified that the fact that Dr. Walker did not visualize any
prior bleeding during the surgery on N.M. did not affect his conclusions because the pathology
specimen demonstrated prior bleeding, and Dr. Walker may not have been able to visualize the
prior bleeding during surgery because of his limited view of the clot and his inability to see prior
blood with the naked eye that was revealed by microscopic examination of the specimen.
319.
At the conclusion of the second trial on May 26, 2005, the Court found that Abby
Tiscareno was Not Guilty and dismissed the criminal charges against her.
Page 70
320.
Following Plaintiff Abby Tiscarenos acquittal in the second trial, Prosecutor
David Brickey publicly stated that the discovery of the pathology report in N.M.s case came as
a shock. Brickey stated that on two separate occasions, the Summit County Attorneys Office
had subpoenaed all documents [concerning N.M.] from Primary Childrens.
321.
Prosecutor Brickey also stated he became aware of the pathology reports only
through Abby Tiscarenos attorneys, Bradshaw and Moffat. Brickey stated, Im surprised and
Im disappointed in Primary Childrens.
322.
Prosecutor David Brickey further stated that knowing that N.M. had an earlier
brain injury would have led to a re-evaluation of the case against Tiscareno. It could also have
led to a more thorough investigation of other possible suspects. If we had had that report, I
dont know without further investigation that the [Tiscareno] trial would have gone forward.
EE.
Defendants Are Joint and Severally Liable

323.
Because the Defendants IHC, Beerman, Frasier and the Doe Defendants acted in
concert in depriving Abby of her federal constitutional and common law rights, the actions of
each Defendant may and should be attributed to the other Defendants as actions in furtherance of
their concerted action.
324.
Because the Defendants IHC, Beerman, Frasier and the Doe Defendants
concurrently violated Abby Tiscarenos civil rights, all of the Defendants should be held jointly
and severally liable for the damages, which cannot be apportioned.
Page 71
FF.
Defendants Conduct Damages Abby and Guillermo Tiscareno

325.
The conduct of the Defendants described herein directly caused Abby and
Guillermo Tiscareno and their three children foreseeable and overwhelming emotional and
economic harm.
326.
After Abby Tiscareno was wrongly convicted in the first criminal trial, Abby and
Guillermo were in a state of shock and disbelief and had to face the possibility that Abby would
be sentenced to prison for years and their family would be torn apart.
327.
Before Abby Tiscareno was even formally charged, she was suddenly thrust into
the public limelight in her small community and accused of an unthinkable crime.
328.
The three young Tiscareno children were teased and vilified at school by other
kids who taunted them that their mom was a "baby killer."
329.
Although the Tiscareno children were all good students, the harassment from
other children became so bad that they were afraid and did not want to go to school.
330.
Guillermo Tiscareno had to take substantial off work from his construction
business to console and defend Abby Tiscareno, resulting in the loss of income.
331.
DCFS shut down Abby's Daycare before Abby Tiscareno was even charged with
the criminal offense, by taking away her license, causing Abby to lose her daycare business and
suffer a permanent loss of income.
332.
Abby Tiscareno, who was shy by nature, was afraid to leave her home after being
charged with abusing N.M., for fear that people would harass her or think badly of her because
of the false charges and unrelenting press coverage.
Page 72
333.
When Abby Tiscareno became aware that she was under constant surveillance by
the Summit County Sheriff's Office as the result of the criminal charges against her, she was
frightened and drew the curtains in her home and rarely left the security of her home for several
months.
334.
During the course of the several months between being charged with abusing
N.M. and going to trial, Abby Tiscarenos blood pressure increased as the result of the
depression and stress brought on by the wrongful criminal prosecution, and she was prescribed
medication to treat this condition.
335.
As a direct result of the defendants' actions, plaintiffs have incurred injuries,
damages and losses.

336.
Plaintiffs damages include, without limitation, attorney fees, costs and expenses
in the underlying criminal cases, the defense of the civil action, and in this matter, in an amount
to be determined at trial.
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
337.
Plaintiffs hereby incorporate the prior allegations of this Complaint in their First
Cause of Action as if fully set forth herein.

338.
During the relevant time, Plaintiff Abby Tiscareno, as a criminal defendant, had a
clearly established and fundamental right under the Due Process Clause of the Fourteenth
Amendment to the United States Constitution not to be deprived of life, liberty or property
without due process of law, including a fair trial.
Page 73
339.
Under the Fourteenth Amendment, a States failure to disclose exculpatory
evidence deprives a criminal defendant of a fair trial where: (1) the undisclosed evidence is
favorable to the accused, either exculpatory or impeaching in nature; (2) the evidence is
suppressed by the State either willfully or inadvertently; and (3) there is prejudice to the
defendant, that is, a showing that the result of the trial would have been different had the
exculpatory evidence been disclosed to the Defendant. Strickler v. Greene, 527 U.S. 263, 28182, 119 S.Ct. 1936 (1999).
340.
Corporate entities and individuals that assist the State in performing its public
functions of diagnosing, investigating and prosecuting a criminal defendant in particular criminal

episodes, also have a Fourteenth Amendment duty to disclose exculpatory evidence to the
prosecutor, so the prosecutor can fulfill his or her Brady duty to disclose the exculpatory
evidence to the defendants attorney.
341.
As a corporate entity and individuals assisting the State in performing its public
functions of investigating and prosecuting child abuse cases, including the particular case of
N.M., Defendants IHC, Beerman, Frasier and the Doe Defendants violated Abby Tiscarenos
Fourteenth Amendment right to due process of law, including a fair trial, by failing to identify,
disclose and provide to Prosecutor Brickey the aforementioned exculpatory pathology evidence
and the exculpatory medical records generated in the investigation of N.M.s case, including:
a.
b.
The November 17, 2003, Pathology Report of Dr. Theodore J. Pysher concerning
N.M.s hematoma specimen, finding prior bleeding in N.M.s brain;
Page 74
c.
The November 17, 2003, report from Dr. Jeanette Townsends to Dr. Pysher
expressing that she and Dr. Yang concurred in Dr. Pyshers finding of prior bleeding in N.M.s
brain in his Pathology Report;
d.
The November 14, 2003, Perioperative Report indicating a specimen of N.M.s

e.
The November 14, 2003, Anatomic Pathology Requisition requesting a Pathology

f.
The Pathology Log for November 14-18, 2003, showing that the Pathology
Report on N.M.s hematoma specimen was complete and mailed to Dr. Walker, Dr. Reading and
the Medical Records Department at PCMC.
342.
Defendants Frasier, IHC and Beermans failure to disclose the foregoing
exculpatory pathology evidence and medical records of N.M. showing prior bleeding in N.M.s
brain was prejudicial to Abby Tiscareno in the first criminal trial because the remaining evidence
of a fresh bleed was circumstantial proof that only Abby Tiscareno could have injured N.M.
and eliminated every other individual as the potential perpetrator of N.M.s injury.
343.
The foregoing items of exculpatory pathology evidence were favorable to Abby
Tiscareno, the accused, because this evidence demonstrated N.M. had been injured prior to the
time he was left at her home for daycare on November 14, 2003, such that any number of
individuals other than Abby Tiscareno could have inflicted the injury.
344.
The exculpatory pathology evidence was also favorable to Abby Tiscareno
because it could have been used to discredit and impeach the testimony of the physicians called
as expert medical witnesses by the State, including Defendant Frasier and Dr. Walker, who gave
Page 75
false, misleading and fabricated testimony that the injury to N.M. was so "fresh" that it could
only have been inflicted during the time that N.M. was in Abby's care.
345.
Thus, as a direct result of Defendants IHC, Beerman and Frasiers non-disclosure
of the exculpatory pathology evidence and medical records described above to Prosecutor
Brickey, Abby Tiscareno did not receive a fair trial, and the jury's "guilty" verdict in the first
criminal trial was not worthy of confidence.
346.
Defendants IHC, Frasier and Beerman withheld and concealed the exculpatory
pathology evidence and medical records maliciously, knowingly, intentionally, recklessly or in

bad faith.
347.
Defendant IHC deferred to Defendants Beerman and Frasier as final hospital
policymakers in determining the course of action in performing IHCs various contractual

duties to assist DHS/DCFS in the diagnosis, investigation and prosecution of child abuse
under the State Contract in N.M.s care.
348.
Defendant IHC deferred to Defendants Frasier and Beermans decisions as
final hospital policymakers, not to disclose or provide the exculpatory evidence and
medical records to the prosecutor in N.M.s case, because IHC did not provide any
meaningful review of these decisions, and did not provide any adequate policies,
procedures, training, or supervision, to prevent, deter or correct Defendants Frasier and
Beerman from deciding to take this course of action in violation of Plaintiff Abby
Tiscarenos federal due process rights.
Page 76
349.
Defendants IHC, Frasier, Beerman and /or other Doe Defendants also violated
Abby Tiscarenos Fourteenth Amendment rights to due process of law and a fair trial by failing
to either promulgate, adopt or maintain, adequate official policies, procedures and customs to
assure that all medical records concerning victims of alleged child abuse were produced in
response to official requests and/or subpoenas from the prosecutor in order to fulfill the State's
duty to provide exculpatory evidence to criminal defendants for use in their criminal trials.
350.
Defendants IHC, Frasier Beerman and/or other Doe Defendants violated Abby
Tiscarenos rights to a fair trial and due process of law by failing to adequately train, supervise
or monitor Dr. Walker and/or other Doe Defendants to assure that these Defendants:
a.
Adequately documented all medical tests and examinations ordered or performed
on alleged victims of child abuse such that the results of such tests and examinations could be
retrieved and properly maintained in the medical records of IHC to be provided to the prosecutor
in cases of alleged child abuse for disclosure to the defendant; and
b.
Adhered to and did not fail to provide individuals suspected of child abuse with
the substantive guarantees and protections mandated by federal and state law.
351.
Defendants IHC, Beerman and Frasier violated Abby Tiscarenos rights to a fair
trial and due process of law by failing to adequately train and supervise the Defendants Beerman,
Frasier, Dr. Walker and/or other Doe Defendants to assure that these Defendants provided all
medical records concerning alleged child abuse victims, including all exculpatory evidence, to
the prosecutor in response to official requests or subpoenas for such information and records and
as otherwise required by law.
Page 77
350.
The acts and omissions of Defendants alleged herein were a cause of Plaintiffs
injuries, damages and losses.

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 PROSECUTIONPURSUANT TO 42 U.S.C.
1983
351.
Plaintiffs hereby incorporate all previous paragraphs in this Complaint as though
fully set forth herein.

352.
During the relevant time, Abby Tiscareno had a clearly established right under the
Fourth and Fourteenth Amendments to the United States Constitution to be free from
unreasonable seizure and restraint by state action.
353.
Defendant Frasier violated Abby Tiscarenos right against unreasonable seizure
and restraint by state action, by maliciously, knowingly, intentionally, recklessly and in bad faith.
providing materially false and misleading information and/or omitting to provide material
information as described above.
354.
Defendant Frasier made such misrepresentations and omissions with malice, in
bad faith and on an ongoing basis, for the purpose of facilitating and encouraging the initiation
and continuation of a criminal prosecution and conviction of Abby Tiscareno on charges of
second-degree child abuse, knowing that there was no probable cause for believing that Abby
Tiscareno had injured N.M., and knowing that that Summit County investigators, prosecutors,
the court and others would rely upon her materially false and misleading misrepresentations and
omissions in their investigation and prosecution of Abby Tiscareno.
Page 78
355.
As a direct and reasonably foreseeable result of the material misrepresentations
and omissions of Defendants Frasier, Abby Tiscareno was wrongfully subjected to physical
restraint by the State in that she was arrested, charged with second-degree child abuse, placed
under surveillance, and Abby and Guillermo Tiscareno were required to be physically present for
police interviews, preliminary hearings and trials, all without probable cause.
356.
The criminal prosecution of Abby Tiscareno terminated favorably to her in that
she was granted a new trial and was acquitted of the charge of second-degree child abuse in the
second criminal trial on May 25-26, 2005, in which the exculpatory pathology evidence
previously withheld by the Defendants was obtained and presented at trial.
357.
The acts and omissions of Defendant Frasier and/or other Doe Defendants were a
cause of Plaintiffs injuries, damages and losses.

XI.
PRAYER FOR RELIEF

WHEREFORE, Plaintiffs pray for judgment against the Defendants on each cause of
action as follows:
A.
General and special damages;
B.
Attorney fees and litigation expenses pursuant to 42 U.S.C. 1988 and as
otherwise provided by law:
XII.
C.
Costs as allowed by law;
D.
Pre-judgment and post-judgment interest as allowed by law; and
E.
Injunctive, declaratory and other equitable relief as allowed by law.
JURY DEMAND
Plaintiffs hereby request a trial by jury and have tendered the required statutory fee.
Page 79
DATED and respectfully submitted this 1st day of February, 2013.
KATHRYN COLLARD
ROBERT D. STRIEPER
MACON COWLES
Attorneys for Plaintiffs
Page 80
END NOTES
1
(10) Deposition of Lori D. Frasier, McIntire v. Tiscareno, 3/17/2005, at 79:8-16; 79:25-80:19,

Pltf. Exh. 1; See also, Contract between DHS/DCFS and Defendant IHC, Exhibit I,
Docket 140-10, at 1-45, and Attachment VI-B to Contract, at 44 (showing funding for
CSHF), Pltf. Exh. 2.
(10) Contract between DHS/DCFS and Defendant IHC (State Contract), Docket 140-10, at
50 (showing DHS Salary Schedule for CSHF personnel, including Defendant Frasier),
Pltf. Exh. 2. (NOTE: References to page numbers in the State Contract are the Courts
page numbers supplied in the Courts docket)
(11) Frasier Deposition at 78:12-79:7 (CSHF patient records of N.M. sequestered away from
patient records in Medical Records Department), Pltf. Exh. 1.
(19) IHC/Beerman Response to Plaintiffs Third Set of Discovery, Interrogatory 10, at 8, Pltf.
Exh. 3.
(20) Frasier Deposition at 79:8-16, Pltf. Exh. 1.
(24) IHC/Beerman Response to Plaintiffs Third Set of Discovery, Interrogatory 14, at 9, Pltf.
Exh. 3.
(25) IHC/Beerman Response To Plaintiffs First Set of Discovery, Interrogatories Nos. 1 and
2, at 2, Pltf. Exh. 4.
(26) IHC/Beerman Response To Plaintiffs First Set of Discovery, Interrogatories Nos. 1 and
2, at 2, Pltf. Exh. 4.
(27) Child Abuse Reporting and Release of Medical Records, Section 3a, Exh. E to
IHC/Beermans Responses to Plaintiffs Second Set of Discovery, Pltf. Exh. 5.
10
(34) Brief of Amici States [including Utah] in Camreta v. Green, and Alford v. Green, 131
S.Ct. 2020, 179 L.Ed.2d 1118, Nos. 09-1454 and 09-1478 (U.S. Sup. Ct., 2011) at 1, 21,
Pltf. Exh. 6.
11
(35) Id. at 21-22, Pltf. Exh. 6.
12
(36) Id., Pltf. Exh. 6.
13
(37) Id. at 23, Pltf. Exh. 6.
14
(38) Id. at 23-24, Pltf. Exh. 6.
15
(39) Id., Pltf. Exh. 6.
16
(40) Utah Child Abuse Reporting Act, 62A-4-501 to 62A-4-514, U.C.A. 1953, as amended
1988, Pltf. Exh. 7; 62A-4-101 to 62A-4-605(renumbered sections of Utah Child Abuse
Reporting Act) U.C.A. 1953, as amended 1994, Pltf. Exh. 8; Utah Child Abuse
Reporting Act, 62-4a-401 through 62A-4a-412, U.C.A. 1953, as amended 2003,Pltf.
Exh. 9.
17
(41) Id.
Page 81
18
(43) Utah Child Abuse Reporting Act, 62A-4-501 to 62A-4-514, U.C.A. 1953, as amended
1988, Pltf. Exh. 7.
19
(45) Utah Child Abuse Reporting Act, 62-4a-401 through 62A-4a-412, U.C.A. 1953, as
amended 2003, Pltf. Exh. 9.
20
(46) Investigation by Division, 62A-4a-409, U.C.A. 1953, as amended 2003, Pltf. Exh. 9.
21
(47) Child Abuse and Neglect Protocol Manual, 2006, at 3, 16-20, 38, Pltf. Exh. 10.
22
(48) Id. at 16, Pltf. Exh. 10.
23
(49) Id. at 17, Pltf. Exh. 10.
24
(50) Id. at 33-34, Pltf. Exh. 10.
25
(51) Id. at 33, Pltf. Exh. 10; See also, IHC/Beerman Response to Plaintiffs Third Set of
Discovery, Interrogatory 21, at 11, Pltf. Exh. 3.
26
(52) State Contract, Contracting Parties, at 1, and Part I, Section A: 1, 2, Doc. 140-10, at 3,
Pltf. Exh. 2; See also, State Contract, DHS/DCFS Authority To Execute This Contract,
Part IX, Section 4, Doc. 140-10, at 61, Pltf. Exh. 2.
27
(53) State Contract, Part I, Section A.1-2, Doc. 140-10, at 3; See also, State Contract, Part II,
Section C, Doc. 140-10, at 26-28, Pltf. Exh. 2.
28
(54) State Contract, Part II Section C.6, Doc. 140-10, at 27, Pltf. Exh. 2.
29
(55) State Contract, Part I, Section D.4, Doc. 140-10, at 19, Pltf. Exh. 2.
30
31
(57) State Contract, Part I, Section E.1, Doc. 140-10, at 22-23, Pltf. Exh. 2.
32
(58) State Contract, Part I, Section A.3, Doc. 140-10, at 3, Pltf. Exh. 2.
33
34
(60) State Contract, Part I, Section B.1, Doc. 140-10, at 5, Pltf. Exh. 2.
35
(61) State Contract, Part I, Section C.1, Doc. 140-10, at 10, Pltf. Exh. 2; See also, State
Contract, Part I, Section D.4, Doc. 140-10, at 19, Pltf. Exh. 2.
36
(62) State Contract, Part I, Section C.1, Doc. 140-10, at 10, Pltf. Exh. 2.
37
(63) State Contract, Part II, Section C.7, Doc. 140-10, at 28, Pltf. Exh. 2.
38
(64) State Contract, Part I, C.8, Doc. 140-10, at 11-12, Pltf. Exh. 2.
39
(65) DHS/DCFS Provider Code of Conduct, at 2, Pltf. Exh. 11.
40
(66) DHS/DCFS Provider Code of Conduct, Section IV, at 6, Pltf. Exh. 11.
41
(67) Provider Code of Conduct, Section VII (2)a. and (2)b., at 7, Pltf. Exh. 11.
42
(68) DCFS Child Protective Services Practice Guidelines, Pltf. Exh. 12; See also, State
Contract, Part I, Section C.1, Doc. 140-10, at 10, Pltf. Exh. 2.
43
(69) Defendant Andersons Responses to Plaintiffs First Set of Discovery, Response to

Interrogatory No. 1, at 3-6, Pltf. Exh. 13.
Page 82
44
(70) IHC/Beerman Response to Plaintiffs Third Set of Discovery, Interrogatory 34, at 15-16,
Pltf. Exh. 3.
45
46
(72) State Contract, Part I, Section A.5, Doc. 140-10 at 4, Pltf. Exh. 2; See also, DHS Budget
Statement Form-Attachment VI-B, showing revenue sources for Defendant IHCs Center
for Safe and Healthy Families, Doc. 140-10 at 44, Pltf. Exh. 2.
47
48
(74) State Contract, Part II, Section C.5, Doc. 140-10, at 27, Pltf. Exh. 2.
49
(75) State Contract, Part I, Section D.6.c., Doc. 140-10, at 20-21, Pltf. Exh. 2.
50
(76) State Contract, Part I, Section D.8, Doc. 140-10, at 21-22, Pltf. Exh. 2.
51
(77) Id.
52
(78) Id.
53
(79) Id.
54
(80) State Contract, Part I, Section B(2)(e)(4), Doc. 140-10, at 9, Pltf. Exh. 2.
55
(107) IHC/Beerman Response to Plaintiffs Third Set of Discovery, Interrogatory No. 1 at 2,

Pltf. Exh. 3, and Surgical Services Procedure For Specimen Procurement, Exhibit A
thereto, Pltf Exh. 14.
56
(108) IHC/Beerman Response to Plaintiffs Third Set of Discovery, Interrogatory Nos. 2 and
3, at 2-5, Pltfs. Exh. 3, and Perioperative Nursing Record, Exhibit B thereto, Pltf. Exh.
15.
57
(109) Anatomic Pathology Requisition, Pltf. Exh. 16, from Exhibit A-1 to IHC/Beerman
Supplement to Response To Plaintiffs Third Set of Discovery.
58
(110) Id.
59
(111) IHC/Beerman Response to Plaintiffs Third Set of Discovery, Interrogatories No. 2 and
3, at 2-5, Pltf. Exh. 3.
60
(112) Anatomic Pathology Requisition form, Pltf. Exh. 16.
61
(113) IHC/Beerman Response to Plaintiffs Third Set of Discovery, Interrogatory No. 3, at 45, Pltf. Exh. 3, and Excerpt from PCMC Surgery Pathology Log Book, Exhibit B thereto,
page following bates stamped page 000288, Pltf. Exh. 17.
62
(114) Pathology Report, Pltf. Exh. 18, Provided as Exhibit E to IHC/Beerman Response to
Plaintiffs First Set of Discovery, Interrogatory 22A, at 19-20, Pltf. Exh. 4.
63
(115) Id., Pltf. Exh. 18.
64
(116) Id., Pltf. Exh. 18.
65
(117) Id., Pltf. Exh. 18.
Page 83
66
(118) See, Letter to Dr. Pysher from Dr. Townsend, Pltf. Exh. 19. This document was
produced in Frasiers Second Supplemental Disclosure, Walker Clinic File.
67
(119) Id.
68
(120) Id.
69
(121) Id.
70
(122) Pathology Report, Pltf. Exh. 18.
71
(123) PCMC Surgery Pathology Log Book Excerpt, Pltf. Exh. 17.
72
(124) IHC/Beerman Response to Plaintiffs Third Set of Discovery, Interrogatory No. 1, at 34, Pltf. Exh. 3.
73
(227) CSHF Policy: Child Abuse Reporting and Release of Medical Records, Pltf.
Exh. 5, and CSHF Policy: Child Abuse-Reporting Suspected Child Abuse and the
Role of the Center for Safe and Healthy Families Medical Assessment Team, at 6,
Pltf. Exh. 20. Both policies comprised Exhibit E to IHC/Beermans Response to
Plaintiffs Second Set of Discovery.
74
(226) IHC/Beermans Response To Plaintiffs First Set of Interrogatories, Int. Nos.1-2, at 2,

Pltf. Exh. 4.
Page 84

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

KATHRYN COLLARD, #0697

Facsimile: (801) 277-2557

ABBY TISCARENO and GUILLERMO

Case No. 2:07-cv-336

LORI FRASIER, in her individual capacity;;

Judge Clark Waddoups

Magistrate Judge Dustin B. Pead

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

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

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

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

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

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

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

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

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

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

The States Exercised Their Compelling Parens Patriae Interest in

Utah Adopts A Multidisciplinary Team Approach Encouraging The

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

Case 2:07-cv-00336-CW-DBP Document 288 Filed 02/01/13 Page 3 of 88

DHS/DCFS Allows Defendant IHC To Subcontract Performance Of

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

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

The State Contract Imposed Special Record Keeping Requirements on

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

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

Defendants IHC, Frasier and Beerman Performed Public Functions Under

Defendants Federal Constitutional Duty to Disclose Exculpatory

GENERAL ALLEGATIONS REGARDING DEFENDANTS

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

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

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

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

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

DCFS, IHC and Summit County Detectives Conduct Multi-Disciplinary

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

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

Case 2:07-cv-00336-CW-DBP Document 288 Filed 02/01/13 Page 4 of 88

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

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

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

Based on Defendant Frasiers Representations Regarding the Timing of

Defendant Frasier Continues To Encourage The Prosecution Of Abby

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

Defendant Frasier Fails To Obtain Pathology Report or Discuss Its

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

Based On Defendant Frasiers Time Line Eliminating All Other Suspects,

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

Detective Dorman Contacts Defendant Frasier Again To Confirm That

Abby Tiscarenos Attorney Requests Discovery Documents For Her

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

Defendants Frasier, IHC and Beerman Violate Their Duties To Produce

Abby Tiscareno Deprived Of Exculpatory Evidence At The Preliminary