STAR suit defendants get ruling in their favor

By Jason Ferguson


The defendants in a lawsuit stemming from the December 2013 death of a boy in state custody at the former State Treatment and Rehabilitation (STAR) Academy received a victory earlier this month when a Seventh Circuit Court judge awarded them a partial summary judgment, dismissing a pair of the claims made in the lawsuit.

A summary judgment is entered by the court for one party and against another party summarily, i.e., without a full trial. Such a judgment may be issued on the merits of an entire case or on separate issues in that case.

The STAR case involves the death of Brady Folkens and was filed by Folkens’ mother, Dawn Van Ballegooyen, personal representative of the estate of Brady Folkens, along with John Anderson, another representative of the Folkens estate.

Folkens was admitted to STAR Oct. 25, 2013. It is Van Ballegooyen’s claim that several former employees of the academy, which is now shuttered, were responsible for Folkens’ death, claiming an allergic reaction to acne medication he was given while at STAR was the cause of his death.

The amended complaint  against the defendants alleges Folkens was prescribed minocycline without having been screened to determine whether it was safe for him to use, which the complaint says was the responsibility of the STAR Academy staff, since Folkens was in the custody of the Department of Corrections.

The complaint alleges Folkens was given two to four times the recommended dose for a person of Folkens’ age and weight, and within a few days of starting the medicine, he became ill. The complaint further alleges Folkens was prescribed over-the-counter medicine by STAR staff, who believed his symptoms were caused by influenza.

Instead of responding to the over-the-counter medicine, the complaint says, Folkens’ condition worsened and Folkens was taken by STAR staff to Custer Regional Clinic the morning of Dec. 21, 2013. When staff at the hospital decided they did not have the resources to treat Folkens, he was flown to Avera-McKennan Hospital in Sioux Falls.

The complaint says Folkens’ conditions worsened during the flight, and by the time he arrived at the hospital he was in profound shock, tachycardic, mottled, wearing a nonbreather face mask, suffering severe myocardial depression and biventricular failure. “Brady was in cardiac arrest,” the complaint says.

Folkens died around two hours after arriving in Sioux Falls. Dr. Reid Sulemain, who performed Folkens’ autopsy, concluded Folkens died of fulminant myocarditis, an inflammatory process that occurs in the myocardium (the muscular tissue of the heart) and causes acute-onset heart failure. The autopsy said the myocarditis was induced by Parvovirus B19, not the acne medication.

That assertion is challenged by J.L. Aanning, MD, a retired general surgeon who reviewed the history and medical records for the plaintiffs regarding the illness and death of Folkens.

Aanning questioned the autopsy, saying test results to determine the presence of the antibody IgM, which is “a significant and necessary marker for determining the presence of an acute Parvovirus infection, were negative,” he wrote.

He noted Folkens had previously been prescribed doxycycline, which, like minocycline, is a member of the tetracycline class of drugs. He had an allergic reaction to that drug as well, indicating he is allergic to the tetracyclic class of drugs.

“Sudden death from myocarditis can also be caused by reaction to drugs and is a known side effect from the use of minocycline,” he wrote. Aanning said he felt the autopsy conclusion was wrong.

Aanning wrote that an independent autopsy found no evidence of any virus in Folkens’ tissue and three medical experts confirmed that his terminal illness was not due to Parvovirus 19.

The amended complaint alleges Folkens had a right under the Constitution of the United States to be free from excessive punishment and indifference to medical needs, as well as a right to due process and equal protection by employees of governmental entities.

The complaint further alleges all or some of the defendants named in the suit—former STAR employees Aaron Brownson, Jeff Haiar, Daniel Marti, Matthew Mieczkowski, Dena Harrod, Nancy Fleming, John Wente, Aaron Rogers, Kris Peters, Loren Mohr and Chet Herman—participated in the deprivation of Folkens’ rights by causing his death.

The suit seeks an unspecified amount, including attorney fees, medical and funeral expenses and punitive damages.

In a joint answer, the defendants denied most of the allegations made in the complaint, and their attorney, Gary Thimsen of Woods, Fuller, Schultz & Smith, P.C., of Sioux Falls, wrote the defendants, as employees of the state, were protected in their official capacities by the Doctrine of Sovereign Immunity, a judicial doctrine that prevents the government or its political subdivisions, departments and agencies from being sued.

A Section 1983 lawsuit such as the one filed provides “remedy against any person who, under color of any statute, subjects or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges or immunities secured by the Constitutions and laws.” However, Thimsen said case law under South Dakota and federal law spells out that a suit against a state official in his or her official capacity is tantamount to a claim against the officials’ office.

“In other words,” Thimsen wrote in the Defendant’s Brief in Support of Motion for Partial Summary Judgement, “a claim against an employee of the State of South Dakota is the equivalent of a suit against the State of South Dakota itself. Both state and federal courts, including the South Dakota Supreme Court and the Supreme Court of the United States, have uniformly held that a state is not a ‘person’ against whom a Section 1983 lawsuit may be brought.”

It further states the doctrine of qualified immunity bars the plaintiffs’ Section 1983 claims, shielding government officials from suit unless their conduct violated a clearly established constitutional or statutory right of which a reasonable person would have known. Thimsen wrote that case law shows qualified immunity acts not only to shield a government official from liability, but it also acts as immunity from suit.

Thimsen said three to six—including Marti, Harrod, Mieczkowski, Rogers and Mohr—of the defendants were not served with the complaint in a timely manner prescribed by state statute (within three years of the incident), meaning the statute of limitations had expired.

A court document filed by Thimsen says the defendants deny that any of them acted negligently toward the plaintiffs or Folkens or otherwise deprived or infringed on his constitutional statutory rights. There is also no evidence to support the defendants knew of, but deliberately disregarded, the serious medical needs of Folkens, Thimsen wrote.

In the Brief in Support of Motion for Partial Summary Judgment, Thimsen wrote the agreement between the public entity pool for liability and the State of South Dakota, in effect at the time of Folkens’ death, states that the risk pool “will pay damages…on behalf of the employee that the employee becomes legally obligated to pay because of an occurrence, not excluded thereunder.” The agreement excludes from coverage “fines, penalties, punitive damages or exemplary damages.”

The plaintiffs allege that by entering into the public entity pool, the defendants waived their right of sovereign immunity, citing a state law.

“STAR program waived sovereign immunity for its officers and employees when STAR program opted to purchase into a risk sharing pool and bought liability insurance,” wrote the plaintiff’s attorney, David Berry of Hilton Head Island, S.C.

Thimsen said documentation shows that only state employees are covered under the risk pool. Therefore, because the state has not purchased liability insurance or chosen to participate in a risk pool, the state has not waived sovereign immunity.

“The statutes could not be clearer—sovereign immunity is only waived to the extent of insurance coverage available,” he wrote.

Van Ballegooyen was deposed on the case and asked how each defendant was alleged to have contributed to Folkens’ death. She gave specific answers when questioned about some of the defendants, while others she said she knew nothing about other than that they were working shifts at STAR during the period of time Folkens fell ill and were “playing a parents’ role,” since they were caretakers of Folkens as STAR employees.

“You named all these people in the lawsuit, and I want to know why they got sued,” Thimsen asked Van  Ballegooyen. She responded, “Because if you look at the schedule of the people working on those crucial days, you will see their names.”

Thimsen wrote to the extent Van Ballegooyen did make specific allegations against any of the defendants, the conduct of which she complains is at most negligence, which even if proven, state and federal law clearly establish that negligence does not give rise to a Section 1983 claim.

The Brief in Support of Motion for Partial Summary judgement states, “Plaintiffs can point to no evidence that any defendant’s conduct rises to the level of deliberate indifference. Plaintiffs have speculated that Folkens was not properly supervised, but Plaintiff’s allegations at most constitute a negligence claim.”

In a Brief of Opposition of Motion for Partial Summary Judgment, Berry wrote that an examination of the record will indicate that discovery has not been completed and that significant facts of this case are necessary before a determination of the alleged qualified and sovereign immunity can be made for the defendants.

Thimsen responded by saying the South Dakota Supreme Court has emphasized the importance of “resolving immunity questions at the earliest possible stage of litigation.”

“Conducting discovery would not change the outcome on this issue, because, as a matter of law, Plaintiffs cannot assert Section 1983 claims against state employees in their official capacities,” he wrote.

He further wrote that evidence in the case raises the issue as to whether the defendants violated Folkens’ Eighth Amendment right to adequate medical care and, in that regard, are not shielded by qualified immunity or sovereign immunity.

“If a plaintiff can show evidence of deliberate indifference by a state officer in a scenario similar to Brady’s situation that causes him to suffer a violation of a constitutional right, there is no qualified immunity,” Berry wrote. “At this stage of the litigation, there is sufficient evidence to show a deliberate indifference to Brady’s health which led to his death.”

Berry wrote that Folkens’ symptoms of illness were all signs of side effects to minocycline that was administered by the defendants, and that “this fact was ignored by the defendants and they continued, without pause, to dose Brady with over-the-counter medicines, merely guessing that would alleviate the symptoms.”

Berry went on to write the over-the-counter medications exacerbated the side effects of minocycline and the defendants knew or should have known the side effects of minocycline.

“These are not allegations of a constitutional violation,” Thimsen responded. “Rather, they are allegations that defendants, none of whom are medical doctors, should have provided Folkens with medical treatment that Plaintiffs believe would have been appropriate under the circumstances.”

In her partial summary judgement writing, Pfeifle agreed there was no timely service on Marti or Harrod, so summary judgement for the two was granted, while adding sovereign immunity does indeed bar a claim for punitive damages.

The motion for partial summary judgement on behalf of each remaining defendant on the basis of qualified immunity was granted with “the court finding that viewing the record in the light most favorable to the plaintiff there is no sufficient evidence showing that the conduct of defendants, or any of them, rises to the level of deliberate indifference or otherwise constitutes a constitutional deprivation.”

The only remaining issue to be resolved, Thimsen said, is the issue of medical negligence.

The pending case is civil in nature only. No criminal charges were ever filed in the case.