America's most innovative pro-life organization

Litigation Plan

Introduction

By deceptively marketing tort reform as the solution to everything from “runaway juries” to the “rising cost of liability insurance,” well-financed special interest groups have seen to it that caps on damages are now a permanent fact of life. In this environment, the formula for building a successful personal injury practice is to:

• IDENTIFY a large and underserved client pool
• FOCUS on defendants with the ability to pay damages
• SIMPLIFY the management of cases
• MINIMIZE the need for expensive experts
• CLOSE cases faster
• REDUCE cost-to-return ratios

As the documentation contained in this website makes clear, America’s high rate of teen pregnancy is being driven by an epidemic of illicit sexual contact between underage girls and adult males. We have also shown that this tragedy is being abetted by family planning service providers affiliated with organizations like Planned Parenthood and the National Abortion Federation. What you are about to see is that representing the children and parents victimized by these groups fits the business model outlined above. It is what Forbes Magazine once described as “The Next Wave of Litigation.”

The Law

In all 50 states, sexual activity with underage children is illegal. Every state also has mandatory reporting statutes that compel the reporting of reasonable suspicions of child sexual abuse to a designated law enforcement or child protective services agency. That entity is then responsible to investigate in order to determine whether a sexual offense has occurred. Those who are classified as mandatory reporters vary from state to state, but in every jurisdiction healthcare workers are included. Although the language in mandatory reporting statutes is not the same in every state, they tend to be structured around a few generic principles.

[1] The responsibility for determining that an underage girl has, or has not, been a victim of sexual abuse lies solely with the state. Healthcare workers have no obligation and no authority to investigate suspicions of child sexual abuse or make decisions about whether a crime has been committed. Whatever conclusions they might draw relative to these situations are unrelated to their mandatory reporting duties.

[2] Because underage girls are not legally capable of giving consent for sexual activity, anything that indicates sexual activity by an underage girl is evidence of sexual abuse. Such indicators include: abortion, pregnancy test, birth control (condoms, pills, etc.) or treatment for sexually transmitted diseases.

[3] Since mandatory reporting is made to the state and not to parents, a minor’s legal right to obtain an abortion, pregnancy test, birth control or STD treatment without parental knowledge is irrelevant. It should also be noted that a healthcare worker’s report to the state does not prevent, interfere with or even delay the child’s access to these services since the report can be made after the service has been rendered.

[4] The duty to report exists even when a minor’s parents are aware that their child is seeking these services, made arrangements for them or are present when they are rendered. This is required so that authorities can identify situations in which it is the parent who is either abusing the child or protecting the abuser.

[5] Investigations into criminal activity always override patient confidentiality, patient privacy and doctor-patient privilege. Thus, these issues do not create an exemption from mandatory reporting. Further, physicians are immune from civil or criminal penalties when, in good faith, they report suspicions of child sexual abuse.

[6] Because child sexual assault victims are often intimidated or coerced into giving false information, and because many of them will lie to protect their abusers, statements made to a healthcare worker by a minor girl regarding the nature of her sexual activity are irrelevant. This also applies to statements made by those who may be accompanying her including parents, guardians, relatives, boyfriends, etc. Reports are required under these circumstances because it is not uncommon for one of these people to provide false information in order to shield the perpetrator.

[7] Many states have passed “Romeo and Juliet” statutes that prohibit charges from being brought against a male for having sexual contact with an underage girl if he is also a minor. Under many of these statutes, even adult men cannot be charged unless they are more than a specified number of years older than the underage girl. However, the question of whether these exemptions to prosecution – or any others – apply in a particular case is not up to the healthcare worker to decide. Again, the authority to make that determination belongs to the state and the healthcare providers only legitimate response is to file a report.

This situation is analogous to one in which a man is brought to an emergency room with a gunshot wound. It could be that he accidentally shot himself while cleaning his gun; it could also be that he was shot while robbing a convenience store. But, regardless of anything the medical staff is told, and regardless of any personal conclusions they might reach about whether an illegal act has or has not occurred, their legal duty is to report.

Perhaps an even closer analogy would be one in which a 12-year-old girl is taken to a physician who discovers that she has a sexually transmitted disease. Any ethical practitioner in that situation is going to alert the appropriate authorities.

The point is, when a girl who cannot legally consent to sexual activity seeks services that indicate she has been sexually active, those from whom she seeks these services are in the same position as an emergency room staff treating a gunshot victim or a doctor treating a minor girl with gonorrhea. This is a standard, however, that we now prove is not being followed at abortion clinics associated with Planned Parenthood and the National Abortion Federation.

In the Forbes Magazine article mentioned earlier, Massachusetts trial attorney, Roderick MacLeish, Jr., stated that, “There is an absolute explosion of sexual abuse litigation, and there will continue to be. This is going to be a huge business.” Patrick Schlitz, Associate Dean of the University of St. Thomas Law School, added that the scale of the issue “boggles the mind” and that it is going to have an impact in the tens of billions of dollars.

Despite these pronouncements, the focus of this article was limited to the pedophile priest scandal in the Catholic Church and it failed to see the much larger picture. As horrific and indefensible as the pedophile priest situation is, in sheer numbers it pales when compared to what’s happening within America’s family planning establishment. Every day, these organizations have contact with thousands of sexually active minor girls – the majority of whom are victims of illegal sexual abuse.

We also know that this scandal allows the abuse to continue with physical and emotional consequences that can be devastating for the victims. Studies show that, when compared to girls who are sexually active with boys near their own age, girls who are sexually involved with adult males are more likely to:

• have multiple sex partners
• engage in dangerous sexual behaviors
• become pregnant
• drop out of school
• run away from home
• abuse drugs or alcohol
• end up on welfare
• become estranged from friends and family
• be in physically abusive relationships
• have a divorce later in life
• become involved in prostitution

Other data shows that among sexually active girls between 11 and 13, those having sexual relationships with men more than five years older than themselves are more likely to attempt suicide. Also, underage girls who are sexually victimized by adult men suffer from sexually transmitted diseases at a higher rate than girls who have sex within their age-peer group. In fact, the highest rate of sexually transmitted diseases in America is now found among females aged 15 to 19, with the vast majority of these girls being infected by adult males.

Theories of Litigation

In addition to the various criminal charges that could be brought against someone who violates the mandatory reporting statutes, civil causes of action exist for, or on behalf of, any child who suffers physical or psychological injuries after being denied the protection of these statutes. The plaintiff in these cases could be the minor child, her parents, or both. Possible civil remedies include:

Tortious Interference with Parental Rights: The documentation contained in this website proves that it is common for family planning service providers to assist, or even encourage, minor children to conceal their sexual activity from their parents. Even in states that allow children to receive family planning services without the knowledge of their parents, providers of these services are still required to comply with mandatory reporting statutes. The agency that investigates the report could determine that an interview with the child’s parents is warranted. Therefore, anyone who violates the mandatory reporting statutes may be interfering with the parent-child relationship by denying the parents an opportunity to act in the best interests of their child.

Kidnapping or False Imprisonment: Taking a child without the authority of the child’s parents or guardian is kidnapping. Holding or confining a child without lawful authority is false imprisonment. This applies to any school district or state agency that takes a child for family planning services without her parent’s knowledge. Further, when a child is brought to a family planning service provider by anyone other than her parent or guardian, and the provider “keeps” her in the facility for the benefit of another (such as an adult who is having sexual relations with her) the facility becomes party to the tortious conduct. The cause of action is not related to the provision of services, but the circumstance under which the services are provided.

Civil Rights Violations: Whenever a reporting statute is violated, the girl involved is denied the protection of a law that was specifically intended to protect her. When that violation is by a state agency, a family planning services provider, or under color of law, a civil rights cause of action may exist. Statutory violations become civil rights issues when it can be demonstrated that the victim class is disproportionately made up of minorities.

In this case, it is well established that family planning service providers target minority communities, apply for government funds on that basis, and locate a disproportionate number of their facilities in or near those communities. The result is that African-American females now have abortions at a rate more than three times that of white females. Therefore, an underage girl may be less likely to have her sexual abuse investigated if she is black than if she is white.

FACE Violations: The Freedom of Access to Clinic Entrances Act (FACE) was intended to stop anti-abortion protesters from blocking the entrances to abortion clinics. However, the language of the act also makes it a crime to interfere with egress from such a facility by using force or threat of force.

It is well established that a significant percentage of abortion patients say they were pressured into the decision by someone else. We also know that a sexual relationship between an adult male and an underage girl is more likely to include force, coercion and intimidation than are other heterosexual relationships, and that the girl will feel less powerful to resist this pressure because it comes from an adult rather than someone near her own age.

This problem is exacerbated when, as is virtually universal, the abuser has isolated the girl from the influence of her parents. At that point, if the circumstances which led her to seek reproductive healthcare services also causes her to feel that she cannot withdraw her consent and leave the facility—and that reproductive healthcare service is then performed—a FACE violation has occurred with the complicity of the clinic.

However, family planning service providers realize that ignoring the mandatory reporting statutes greatly reduces their possibility of being caught in a FACE violation. In effect, by their criminal activity, the provider works in concert with the abuser to further isolate the victim, not only from her parents but from the state agencies who are responsible for protecting her.

Negligent Referral by Schools and Other State Agencies: When an apparently sexually active underage girl is referred to a family planning service provider without involving either her parents or the authorities, she is subjected to the possibility of continued abuse. This makes the referral source potentially liable for damages to the child and/or her parents.

In every jurisdiction where school employees and employees of state agencies are mandatory reporters, they are not absolved of this duty by simply passing the victim off to another mandatory reporter or to an entity that is not defined as a mandatory reporter. Additionally, sovereign immunity is not generally accepted as a defense for intentional criminal conduct.

Failure to Provide Informed Consent: Several factors that impact the provision of informed consent are generally ignored by family planning service providers. First, it is obvious that an underage girl cannot give informed consent for a medical procedure unless she was provided all the relevant information at a level that matches her ability to understand. However, in these facilities, the same documents regarding abortion and its risks are given to 12-year-old children that are given to college educated 35-year-old professional women.

Second, the risks associated with abortion can vary greatly from one patient to the next. For example, a 15-year-old diabetic who is obese and has a history of gynecological problems, is considerably more likely to suffer complications than is a 30-year-old woman who is perfectly healthy. Despite that, in almost every abortion clinic, the same informed consent documents will be given to both patients.

Third, serious complications occur far more often during second and third trimester abortions than during first trimester procedures. But again, it is not uncommon for abortion providers to use “generic” informed consent documents that relate to all abortions and not to the specific abortion the patient is having.

At Life Dynamics, our experience has been that, when all of these variables are taken into account, it is highly improbable that any minor girl is ever provided with the information she needs to give informed consent for an abortion.

Products Liability: Family planning service providers routinely distribute a variety of products to their clients, including contraceptive devices, birth control pills, abortifacient drugs, emergency contraceptives, condoms, medications for sexually transmitted diseases, educational materials, etc.

There is a cause of action against the provider if harm to a client results from a defect in the product, a failure to fully inform the patient about the proper use of the product, a failure by the provider to exercise due diligence in evaluating the design or safety of the product or a failure by the provider to establish that the product was appropriate for the particular patient who was harmed.

Distribution of a product or information to a child creates additional risks. What did the provider do to insure that the child [1] fully understood what she was being told, [2] was competent to use the product as directed and [3] would recognize any indications that she may be suffering complications from the use of the product?

The product liability area with, perhaps, the most litigation potential involves the abortion pill, RU486 (Mifeprex). During the government’s approval process, the American distributor issued a strict protocol for its use. However, once the drug was approved for sale, providers discovered that adherence to the distributor’s safety protocol made the drug financially unprofitable. Their solution was to ignore several major parts of the protocol in order to cut costs.

In just one of many examples of this, the agreement signed between distributor and provider calls for the drug to be given in 600mg dosages. But due to the high cost of RU486, providers are cutting the dosage and, today, this drug is routinely given in 200mg amounts. This can lead to incomplete procedures and cause fetal tissue to remain in the uterus. That tissue can then become necrotic and trigger a fatal septic infection. At least one of the deaths we have already seen from RU486—an 18-year-old California resident—occurred following a Planned Parenthood procedure and appears to have been a direct result of this exact scenario.

Consumer Fraud: In most states, consumer protection statutes can be prosecuted by the attorney general’s office or through private counsel. When misrepresentations of material facts to consumers induce them to purchase products or services, that can result in civil litigation for fraud, deceptive trade practices or similar causes of action. Such misrepresentations can relate to the quality of a product or service, or the consequences from the use of a product or service. Misrepresentations can also be related to a healthcare facility’s failure to comply with either health and safety regulations or statutes such as mandatory reporting. When the victim of consumer fraud is a child, proving the objective element is less difficult.

Medicaid Fraud: When a family planning service provider has engaged in practices that keep parents, law enforcement or child protective personnel from knowing about the illegal sexual exploitation of an underage child, it could be reasonably argued that it did so in order to engage in fraudulent billing practices without the scrutiny of an adult. The ability to demonstrate that fraud was committed by a defendant can ratchet up a client’s recovery potential. In litigation against family planning service providers, we have identified several areas where fraudulent Medicaid billing regularly occurs. Among them are:

[1] “unbundling” services that are rendered to the patient as a package so they can be billed to Medicaid by component, thus dramatically increasing the billing amount; unbundling also allows abortions to be billed to Medicaid which would otherwise not be covered

[2] purposely miscoding medical records in order to receive payment for procedures that are not covered by Medicaid

[3] having Medicaid patients sign blank claim forms and then billing for services that were never performed

[4] allowing someone who is not eligible for Medicaid to have services billed to the Medicaid card of another person

[5] circumventing prohibitions against taxpayer funding of abortion by either faking or artificially inducing a miscarriage, and then performing “an emergency D&C” that can then be billed to Medicaid

False Claims Act: Because the vast majority of family planning service providers receive state and/or federal funding, they are subject to causes of action under provisions of the Federal False Claims Act. In some jurisdictions there are also similar state statutes in place.

Causes of action under these statutes are available when a relator has identified fraud, theft or instances where the recipients of government funds fail to provide the product or services for which the government contracted. When such a suit is successful, the government, the relator and the relator’s counsel all recover. Mandatory reporting is relevant because family planning service providers apply for government funds claiming that such funding will be used for the benefit of children. Additionally, like every recipient of public funding, these organizations are required to use this money in accordance with all state and federal statutes. When funds accepted under those conditions are then used to circumvent child abuse reporting statutes, fraud has occurred.

Class Actions: Our research shows that among family planning service providers, violations of mandatory reporting statutes are seldom, if ever, isolated events. Depending on the location of the facility and the demographic makeup of the clientele, we know that the non-reporting rate generally exceeds 90 percent. In fact, during one of our undercover calls, the counselor volunteered to our caller that the facility she worked for had “never reported anyone.”

Clearly, this behavior opens the door for class action suits. The rules for bringing this type of litigation vary among state and federal courts and the qualification of the client as a representative member of a class will be determined by these factors.

Advantages of Child Predator Litigation

Since failing to report suspected child sexual abuse is negligence, medical malpractice damage caps and limits on punitive awards should not apply. However, the strength in this area of practice is not in its ability to generate breathtaking awards, but in its ability to generate a large and stable volume of cases. A good analogy is workman’s compensation litigation. Even in its heyday, such cases were not known for producing seven figure awards that ended up in the national news. Instead, their value was in mid-level awards by the thousands.

The same is true here. Also, in the appeal process, there is an inverse relationship between the size of an award and its ability to survive intact, suggesting that these cases are less likely to be reduced or remanded. Another issue is that punitive awards for injury to a child are more easily maintained at the appellate level than are similar awards for harm to an adult.

The final question is whether this type of litigation meets the criteria for creating a successful law practice that was detailed in the Introduction of this report.

Identify a Large Underserved Client Pool: For several years a firestorm has been swirling around the Catholic Church regarding the issue of pedophile priests. Already, dioceses have either settled or lost lawsuits totaling hundreds of millions of dollars, and some have been forced to close schools and sell property to pay off these awards. There are estimates that litigation over this issue could cost the Catholic Church several billion dollars before it’s over and that some dioceses might even be forced into bankruptcy. Interestingly, most of these dioceses are not being sued because their priests molested children, but because they allegedly knew about the abuse and either failed to report it or actively covered it up. These suits rightly contend that protecting pedophiles and concealing their behavior is not only illegal, but it guarantees that there will be more victims in the future.

A good barometer for the public’s attitude about this issue is the fact that dioceses have either settled or lost lawsuits, even in cases where the allegations are for conduct that occurred many years ago and are supported by little or no evidence. Additionally, even though most people realize that the problems in the Catholic Church actually involve only a small percentage of priests and dioceses, they are still outraged.

In contrast, the evidence needed to pursue litigation against family planning service providers is both current and readily available. There are also exponentially more victims. Data put out by Planned Parenthood and the National Abortion Federation proves that they have had contact with hundreds of thousands of sexually active underage girls every year for more than three decades, and government documentation confirms those figures. The data also shows that in only a tiny fraction of these instances were reports of suspected abuse made.

Since we began releasing the details of our investigation, neither of these organizations has altered their practices regarding this issue. The result is that the flaunting of mandatory reporting laws that we originally documented continues unabated. Given that they provide services to several thousand sexually active underage girls every day, it is clear that the number of potential plaintiffs is enormous and growing daily. Additionally, this client pool remains accessible for a longer than normal period of time since the statute of limitations doesn’t begin until these children reach the age of majority.

Another consideration is that the sheer volume of potential clients allows attorneys to be selective and pass on cases that might be marginal. The criteria for acceptance should be cases in which (a) a female beneath the state’s age of consent was in a sexual relationship with an adult male, (b) the victim was taken to a facility for a service or product that indicates sexual activity, (c) no mandatory report was filed by the provider of the service or product, and (d) the sexual abuse of the child resumed after the failure to report occurred.

Focus on Defendants with the Ability to Pay Damages: As the nation’s highest volume provider of family planning services, Planned Parenthood will be the most common defendant. Planned Parenthood affiliates make attractive defendants because they are generally well funded, insured and asset rich. Additionally, at Life Dynamics we have evidence that can help connect these local affiliates with the national organization, Planned Parenthood Federation of America, whose assets currently exceed $700 million dollars.

In many cases, it will be possible to include additional defendants who were part of the chain of events which led to the failure to report. These could include medical professionals, hospitals, clinics, school officials, health departments or other government entities. Whether it is through liability insurance policies, errors and omissions policies, cash or attachable assets, it is highly unlikely that any of these will not have the means to pay damages.

In some states that require parental involvement in a minor’s abortion decision, another defendant could be the attorney (and paralegal or other staff) who represented an underage girl in a judicial bypass proceeding without making a report of suspected abuse.

There is also the possibility for another class of defendants. The approval of Plan B (the “morning after” pill) for over-the-counter sales has been a bonanza for pedophiles who prey on young girls. The question is, in states where retailers (drug stores, grocery stores, pharmacies, convenience stores, etc.) are statutory reporters, what policies and practices have they initiated? Every time they sell this drug to a girl who is not old enough to consent to sexual activity, they acquire evidence of possible child sexual abuse. Should they fail to respond properly, they could become the deep pockets.

Although the bread and butter of this area of litigation is to file claims against the entity(s) which failed to comply with mandatory reporting statutes, the actual perpetrators of the abuse should not be ignored. Even if he has either fled or is incarcerated, he may have assets or be covered by an insurance policy that would pay such a claim.

Simplify Case Management: The management of this type of case will be streamlined mainly because liability issues are tied to a statutory requirement that has usually been on the books for decades. This has a significant advantage over a medical malpractice action in which the claimant is required to prove a violation in the standard of care. Whereas standards of care are debatable and generally result in a battle of dueling experts, violations of statutory requirements are relatively cut and dried.

Given the potential for criminal sanctions against those who violate mandatory reporting statutes, non-reporting parties and/or their employees are likely to exercise their rights against self-incrimination. In most states, taking that action permits the response to be considered an admission for the purpose of the civil trial.

Another problem faced by a defendant who has failed to report is the absence of a paper trail. In states with a negligence per se rule, if the defendant is unable to prove compliance with the reporting statute, an opportunity is created for a successful summary judgment motion early in the discovery process. In states without negligence per se, discovery may take a bit longer but the defendant’s inability to prove compliance becomes an admission that is well suited to summary judgment.

Once liability is established, there is a large and easily accessible body of research to prove the harm done to children who are sexually victimized by adults. Damages can then be established for the child’s psychological rehabilitation, lost earning capacity and future earnings expectations. Additionally, the alliance commonly found between co-defendants is unlikely to occur in these cases, since most people do not want to be associated with someone who is accused of abusing a child nor do they want to be perceived as someone who would conceal such behavior.

Finally, in this type of case, insurance underwriters are likely to enter a defense under a reservation of rights. That will compel defendants to view their economic exposure more realistically, thereby making a good settlement more likely.

Minimize the Need for Expensive Experts: In medical malpractice cases it is often difficult to find a physician who is willing to testify against another physician. And even when found, they are often expensive to retain.

However, this type of case is based on the violation of a statutory requirement meaning that experts are more readily available and considerably cheaper. As a practical matter, anyone who is classified by the state as a mandatory reporter is qualified to provide expert testimony about the duty to report. It may even be possible to use subpoenas to acquire liability experts from the ranks of law enforcement, state agencies and public officials. These people are only being asked to testify that a statutory duty to report existed when the reasonable suspicion of abuse was present, and that no report was made in this particular incident. Once that is accomplished, it becomes a relatively straightforward damages case.

Given that a great deal has been written in the academic community about the adverse impact of sexual abuse on children, the scholars and professionals available to testify are abundant. Our experience has shown that these people can be surprisingly reasonable in the compensation they require for providing expert testimony.

Another source of experts is social workers and other professionals employed by state health departments, licensing boards, child protective services, etc. These people are often fully qualified to testify in this area and they will generally be relatively inexpensive.

Also, the large body of academic material published on the harm caused by adult/child sexual relationships is readily available and often can be introduced into the trial through a single expert who relies on them in forming his or her opinion. In effect, this material can be turned into expert testimony for the price of making copies.

On the other side of the table, it will be very problematic for the defense to find an expert to tell the jury that by allowing the abuse to continue there was no harm to the child. As for mitigating damages, in litigation involving injury to a child, it is risky for the defense to do anything that makes it appear they are trying to avoid their financial responsibility to the child.

Close Cases Faster: Several factors discussed in previous sections of this report increase the velocity of these cases, including:

• simplified issues of liability shorten the discovery period
• motions on summary judgment issues of liability occur early in the case
• brevity of the issues make these cases easier to fit the court’s calendar
• defendants being compelled to stipulate to damages in a bench trial
• easier recruitment of experts
• cases being less likely to get hung up at the appellate level or remanded

Reduce Cost-to-Return Ratios: Everything mentioned to this point suggests that these cases will be relatively inexpensive to fund, require fewer dedicated hours and offer a high winning percentage with a minimum expectation of problems on appeal.

Another advantage is that plaintiff attorneys litigating these cases have access to the free litigation support services of Life Dynamics. For over 20 years we have been offering America’s best and most comprehensive litigation support for abortion injury cases, and now we are bringing that same level of commitment to this new area of practice.

EPILOGUE

The conduct we have described in this website is no different than gun dealers openly ignoring statutes that prohibit them from selling handguns to minors, or convenience store employees coaching underage children how to circumvent laws that keep them from buying alcohol and cigarettes.

This is a tragedy for our country and one that demands a remedy from the court system. If you want to have a practice that is not only financially successful but performs a much-needed public service, you need to become a leader in this field of litigation.

Life Dynamics is a donor-supported organization. Our litigation support services are offered free of charge and we do not financially participate in any awards or settlements that might arise from the cases we support.

For additional information, contact:

Mark Crutcher, President
or Renee Hobbs, Vice-President

Life Dynamics Incorporated
Post Office Box 2226
Denton, Texas 76202

Voice: (940) 380-8800

Fax: (940) 380-8700

E-mail: [email protected]
or [email protected]