Kanuszewski v. Mich. Dep't of Health & Human Servs.
| Decision Date | 24 January 2019 |
| Docket Number | Case No. 18-cv-10472 |
| Parties | ADAM KANUSZEWSKI, et al., Plaintiff, v. MICHIGAN DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al. Defendant. |
| Court | U.S. District Court — Eastern District of Michigan |
Honorable Thomas L. Ludington
On February 8, 2018, Plaintiffs Adam and Ashley Kanuszewski, Shannon Laporte, and Lynette Wiegand filed a complaint pursuant to 42 U.S.C. § 1983 as parent-guardians and next friend to their minor children (collectively, "Plaintiffs"). ECF No. 1. They alleged that the State of Michigan operates an unconstitutional Newborn Screening Program which involves sampling, testing, and storing infant blood without parental consent. The complaint named Defendants Michigan Department of Health and Human Services (MDHHS) and its director Nick Lyon, MDHHS Bureau of Laboratories director Dr. Sandip Shah, state epidemiologist and Michigan BioTrust manager Dr. Sarah Lyon-Callo, MDHHS Newborn Screening managers Harry Hawkins1 and Mary Kleyn, Michigan Neonatal Biobank (the "Biobank") (also known as the Michigan Neonatal Biorepository) and its director Dr. Antonio Yancey. The named individuals were sued in their official and individual capacities. Plaintiff filed an amended complaint (which they titled as a "corrected complaint")) to address a deficiency in the original complaint (no summons requested), which was stricken. ECF No. 3.
Defendants filed motions to dismiss. ECF Nos. 15, 21. In response, Plaintiffs filed a second amended complaint as of right, and the motions to dismiss were terminated as moot. See ECF Nos. 26. Defendants then filed motions to dismiss the amended complaint pursuant to Federal Rule of Civil procedure 12(b)(1) and 12(b)(6). ECF No. 32, 33, 34.
On August 8, 2018, the Court entered an order granting the motions to dismiss, dismissed the complaint, and entered judgment in favor of Defendants. ECF Nos. 50-51. Plaintiffs appealed that same day. ECF No. 52. In the order granting the motions to dismiss, the Court addressed four potential classes of claims: 1) blood testing in violation of the fourteenth amendment; 2) blood retention and use in violation of the fourteenth amendment; 3) blood testing in violation of the fourth amendment; and 4) blood retention and use in violation of the fourth amendment. The Court found that none of the claims were cognizable. On September 5, 2018, Defendants moved for attorney fees as a prevailing party under 42 U.S.C. § 1988. The State Defendants filed their own motion, as did Defendant Biobank and Antonio Yancey. ECF Nos. 54-55.
In any action or proceeding to enforce a provision of sections 42 USCS §§ 1981-1983 the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs. Prevailing defendants are entitled to attorney's fees upon a finding that the plaintiff's action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith. Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 54 L. Ed. 2d 648, 98 S. Ct. 694 (1978). "[A]n award under section 1988 may only be charged against the losing party, not the party's attorney." Smith v. Detroit Fed'n of Teachers Local 231, Am. Fed'n of Teachers, AFL-CIO, 829 F.2d 1370, 1374 n. 1 (6th Cir. 1987) To determine whether a suit is frivolous, courts consider "whether the issue is one of first impression requiring judicial resolution, whether the controversy is sufficiently based upon a real threat of injury to the plaintiff, whether the trial court has made a finding that the suit was frivolous under the Christiansburg guidelines, and whether the record would support such a finding." Garner v. Cuyahoga Cty. Juvenile Court, 554 F.3d 624, 636 (6th Cir. 2009) (citing Tarter v. Raybuck, 742 F.2d 977, 986 (6th Cir. 1984)). A claim may be unreasonable where no reasonable person could think that he would succeed on the claim. See Dabbs v. Bolin, 21 F.3d 427 (6th Cir. 1994). A claim is without foundation where it is meritless or groundless. Hughes, 449 U.S. at 14. That plaintiff lost his case does not mean the action was frivolous, unreasonable, or without foundation. Christiansburg Garment Co. v. Equal Employment Opportunity Comm'n, 434 U.S. 412, 421. Moreover, an award of fees to a prevailing plaintiff is much more common than an award of fees to a prevailing defendant. Id. at 417-418.
In the order granting the motion to dismiss, the Court considered four potential classes of claims: 1) blood testing in violation of the fourteenth amendment; 2) blood retention and use in violation of the fourteenth amendment; 3) blood testing in violation of the fourth amendment; and 4) blood retention and use in violation of the fourth amendment.
The Court dismissed Plaintiffs' claim that the blood testing (i.e. the extraction itself, as distinct from the retention and use) violated their fundamental rights under the fourteenth amendment. Plaintiffs relied primarily on Cruzan for the notion that they had a fourteenth amendment right to refuse unwanted medical procedures. Cruzan by Cruzan v. Dir., Missouri Dep't of Health, 497 U.S. 261, 278 (1990). Defendants take issue with Plaintiffs' reliance onCruzan. In rejecting Cruzan, this Court noted the importance of distinguishing between the constitutional liberty interests at issue:
First, the parties refer to the right of a child to have its parent make medical decisions on its behalf. Second, the parties refer to the right of a competent person to refuse unwanted medical procedures. Third, the parties refer to a parent's right to make decisions concerning the care, custody, and control of their children.
Order at 5. The Court concluded that there was no legal authority to support the existence of "a child's right to have its parent make medical decisions on its behalf." The Court also concluded that Cruzan did not address a parent's right to make decisions regarding their children. Rather, Cruzan addressed the right of competent individuals to refuse medical care. The Court distinguished Cruzan, noting that infants are not competent individuals.
The Court also found that the right of parents to control their children did not grant parents the right to refuse medically necessary treatment for their children:
The Supreme Court has also recognized "the fundamental right of parents to make decisions concerning the care, custody, and control of their children." Troxel v. Granville, 530 U.S. 57, 66 (2000). It is equally true that "a state is not without constitutional control over parental discretion in dealing with children when their physical or mental health is jeopardized." Parham v. J.R., 442 U.S. 584, 603 (1979) (). Indeed, Supreme Court precedent recognizes "two competing values of equal worth: the right of parents to parent and the right of children to safety." Spiering v. Heineman, 448 F. Supp. 2d 1129, 1140 (D. Neb. 2006)
Applying rational basis review, the Court concluded as follows:
[t]he State of Michigan has a legitimate interest in early detection of diseases in infants and that the blood testing is connected to that objective. Given the State's interest in safeguarding infant health, and the minimally invasive nature of the procedure (a heel stick drawing 5-6 drops of blood), the blood test does not violate the parents' right to make decisions concerning the care, custody, and control of their children
It is no easy task to draw a line beyond which the parent's interest in parenting must yield to the state's interest in protecting lives. Based on this Court's reading of the pertinent case law, the Court disagreed with the Plaintiffs as to where that line should be drawn. Moreover, the law of substantive due process is amorphous, and the three rights discussed above are interrelated, albeit legally distinct. Plaintiffs' failure to appreciate the subtlety of the distinction articulated above is far from vexatious conduct. Plaintiffs' position was hardly an unreasonable one and was well within the bounds of reasonable advocacy.
The Court also dismissed Plaintiffs claim that the blood testing violated their fourth amendment rights to be free from unreasonable search and seizure. Defendants relied on Attson to support the proposition that a blood test for strictly medical purposes is not a search under the fourth amendment. United States v. Attson, 900 F.2d 1427, 1433 (9th Cir. 1990)). Plaintiffs relied heavily on Dubbs to support the opposite conclusion. In Dubbs, the 10th Circuit held that medical evaluations of school children by nurses without parental consent constituted searches under the fourth amendment. Dubbs v. Head Start, Inc., 336 F.3d 1194, 1205 (10th Cir. 2003). The Dubbs court rejected the notion that "non-criminal" and "non-investigatory" searches fell outside the scope of fourth amendment protections. Id. The Dubbs court noted that fourth amendment protections extend to administrative searches as well. Id. (citing Attson, 900 F.2d at 1433). The Dubbs court distinguished Attson, in which "the medical procedure was consensual; the real issue was the legality of providing the results to police." Dubbs v. Head Start, Inc., 336 F.3d 1194, 1205 (10th Cir. 2003).
After reviewing the most pertinent authority, this Court concluded that the blood extraction was indeed a search. Ultimately, however, this Court concluded that the search was areasonable one, noting that 1) the exercise of government authority was entirely distinct from that of law enforcement; 2) there was no individualized suspicion of wrongdoing (the blood extraction was performed on...
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