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LIST OF OTHER PARTIES AND THEIR COUNSEL

Appellee:

Dr. Michael Pfeiffer, Phd, formerly with Georgetown University/Medstar, now with the

Veterans Administration Hospital in Washington, DC. His attorney is Sean W. O’Connell

of Arlington, Virgina

2
TABLE OF CONTENTS

STATEMENT OF THE ISSUES PRESENTED FOR REVIEW ............................. 1

BRIEF STATEMENT OF THE CASE................................................................... 2

STATEMENT OF FACTS ..................................................................................... 3

The August 5, 2009 Hearing ................................................................................................................................ 18

The Lower Court’s Rulings ................................................................................................................................. 19

ARGUMENT....................................................................................................... 23

I. THE COURT WAS UNFAIRLY PREJUDICED AND ACTED ERRONEOUSLY BY


ALLOWING THE FATHER TO SEQUESTER THE MOTHER’S COUNSEL, BY ALLOWING
QUESTIONING OF MATTERS THAT ONLY SEQUESTERED COUNSEL WAS FAMILIAR, BY
ALLOWING VIOLATIONS OF THE MOTHER’S CONSTITUTIONAL RIGHTS, AND BY
ALLOWING AN EX PARTE IN CHAMBERS MEETING WITH BY JAMES P. TOSCANO, ESQ.
.................................................................................................................................................................................... 24
The Father Violated The Legal Standard For Calling Opposing Counsel As A Witness and Achieved It
By Violation of the DC Rules of Professional Conduct ............................................................................................28

II. THE COURT ABUSED ITS DISCRETION WHEN IT REFUSED -- SOLELY ON THE BASIS
THAT THE COURT DID NOT CONSIDER COUNSEL MORRIS “LEAD COUNSEL” -- TO
CONSIDER MOTIONS, SUPOENAS AND OTHER ACTIONS FILED OR TAKEN BY
MOTHER’S COUNSEL MORRIS, DENYING HER RIGHTS TO DISCOVERY AND A FAIR
HEARING AND CAUSING LACK OF CONSIDERATION OF ALL OF THE EVIDENCE
AVAILABLE TO THE COURT ........................................................................................................................ 29

III. THE COURT’S REFUSAL TO ALLOW ALL OF MOTHER’S EXPERT WITNSSES TO


TESTIFY WAS AN ABUSE OF DISCRETION -- INCLUDING WHERE THE COURT ADMITS
THAT ONE OF THOSE EXPERTS WAS A QUALIFIED HEMATOLOGIST/ONCOLOGIST..... 31

CONCLUSION.................................................................................................... 33

APPENDIX

3
TABLE OF AUTHORIES

Cases
Glorious Food, v. Georgetown Prospect Place Associates, 648 A.2d 946, 1994 DC 186
(1994))........................................................................................................................... 33
IN RE M.D. L.D., 758 A.2d 27 (DC 2000) ........................................................... 3, 23, 33
McCarthy v. Arndstein, 266 U.S. 34, 40 (1924),.............................................................. 27
Otis Elevator Co. v. Tuerr, 616 A.2d 1254, 1256 (D.C. 1992)......................................... 33
VENABLE v. STATE OF MARYLAND, 672 A.2d 123, 108 Md.App. 395 (1996) ...... 28
Statutes
D.C. Code §16-2301 (24).................................................................................................... 9
DC Code §16-4603 ............................................................................................................. 6
Other Authorities
Rule 3.4 of the DC Rules of Professional Conduct .......................................................... 29
Rules
SCR Dom.Rel. §26(c) ................................................................................................. 16, 17
SCR-DOM 101(a)............................................................................................................. 30
SCR-DOM 101(b)............................................................................................................. 30

4
STATEMENT OF THE ISSUES PRESENTED FOR REVIEW

In this case, the Mother sought equitable relief from the Court to require -- per In
Re M.D. L.D., 758 A.2d 27 (DC 2000) -- proper independent diagnosis and treatment
of life threatening severe chronic neutropenia condition (low immunity) of her now
six-year old child, who remains in the Father’s custody.

1) Did the court abuse its discretion and cause unfair prejudice by:
a. allowing the Father to exclude the Mother’s long time Counsel Morris
from the court room and then allowing questioning of the Mother on
matters that only Counsel Morris was familiar, in violation of the
Mother’s fifth amendment rights, and
b. obtaining unsworn testimony in an Ex Parte meeting in chambers with
James P. Toscano, Esq. of CFSA, where CFSA was neither a party to the
proceeding, subject to a court order or subpoena, or allowed to be subject
to discovery.

2) Did the Court Abuse Its Discretion or Commit Clear Error When It Refused to
Consider Motions, Supoenas and Other Actions Filed or Taken By Mother’s Counsel
Morris, Denying Her Rights to Discovery and a Fair Hearing - solely on the basis that
the Court Did Not Consider Counsel Morris “Primary Counsel.”

3) Did the Court Abuse Its Discretion or Commit Clear Error When The Court
Refused to Allow All of Mother’s Expert Witnesses to Testify -- Including Where
the Court Admits that One of the Experts was a Qualified Hematologist/oncologist
expert?

1
BRIEF STATEMENT OF THE CASE

The case below was marred by improprieties of blatant ex parte contacts and by

Court inaction that denied Appellant, Dr. Ariel King, PhD (the “Mother”)1 the most

rudimentary discovery. In particular, the Court arbitrarily refused to consider any filings,

motions, evidence etc. filed by Counsel for the Mother well after counsel entered his

appearance, refused to allow any expert testimony for the Mother, denied the Mother her

right to her criminal counsel in violation of the Fifth Amendment, and allowed the false

calling of the Mother’s counsel as a witness -- without any foundation in the evidence --

for the sole purpose of denying the Mother access to her full time civil and criminal

Counsel. The Court below abused its discretion, and made clear error, and abdicated its

role “parens patriae.”

In the case below, the Mother sought equitable relief in the form of proper

emergency medical evaluation and treatment of her then five-year-old daughter

(“A.L.M.K-P”). To this date her daughter continues to suffer from severe chronic

neutropenia, a very rare blood disorder (2 per million). The condition arose soon after the

Father -- a widely published medical neurology researcher with regards to drugs and

their effects on humans -- received physical custody of the child. Because of the Court’s

failure to take action within its power, the child’s life remains in danger at the hands of

the child’s father, Dr. Pfeiffer, PhD (hereinafter, “Father”) who refuses to press for

1
The Mother and Father remain married. A divorce and derivative custody proceeding
is pending in Bayreuth, Germany where the entire family (mother, father and child) is
registered. The Father is a German citizen, the Mother a US Citizen living in Germany,
and the child has dual German and US citizenship.

2
proper diagnosis and treatment.2 Among other things, severe chronic neutropenia can be

caused by various drugs, including psychotropic drugs that are readily available to the

father (who does research in neurology, and who applied but failed to obtain a medical

license in the District of Columbia). Unexplainably unconcerned, for over a year, the

record shows Father took actions that placed the child in unnecessary danger -- including

dictating to a Georgetown Physician medical directions for the child’s school which

intentionally left out precautions that should be observed in the care of the child. To

this day, the condition’s cause remains undiagnosed and an independent evaluation of

the child’s condition remains lacking. The Superior Court below denied the Mother’s

request in an Order issued on December 2, 2009 (See, APP-33), which applied the wrong

standard.

The Court below clearly abused its discretion and made clear error. The Court’s

“parens patriae” responsibility required it to ensure that it has enough evidence before it

to make an informed decision. As in IN RE M.D. L.D., 758 A.2d 27 at ¶38 (DC 2000),

the Mother respectfully requests that this honorable Court reverse and remand the case

for a fair hearing, after the opportunity for an independent medical examination, and

proper discovery to assure there is enough evidence for an informed decision to be made

by the Court below.

STATEMENT OF FACTS
The Mother brought in equity DC Superior Court Case 09 DRB 1167 on April 21,

2
Severe neutropenia refers to the lowest white blood count, and making the person
unable to fight normal infections. See, Affidavit of Dr. Robert Sklaroff, to Original
Complaint, APP-20 (All references to the Appendix prepared by Appellant are “APP-
___”) Also, See, Graph of Severe Neutropenia, APP-44. Special precautions must be
followed to protect a neutropenic patient from developing what could become a fatal
infection.

3
2009. The Mother sought Court only emergency intervention to secure proper

emergency medical evaluation treatment for her now six-year-old daughter (“A.L.M.K-

P”), who has suffered for almost two years from life-threatening severe chronic

neutropenia of an undiagnosed cause.

The child was healthy and showed no symptoms of life-threatening illnesses until

she started to regularly live in the one bedroom apartment of the Father and began

making disclosures about suspected sexual and physical abuse. However, in a routine

medical exam in May 2008, the child’s blood showed Absolute Neutrophil Count (or

“ANC”) readings in her blood of well below 500 (a child’s normal ANC count is closer

to 3800) , a level that typically requires hospitalization for severe neutropenia. On the

child’s return to school on June 2, 2008 after spending the weekend of May 30, 2008 with

the Father (which is the weekend after the neutropenia was discovered), the child broke

down in school, had accidents in front of others, and begged, in the mother’s presence,

that she did not want to go back to be with her Father.

On advice of the Montgomery County Abused Persons Program counselor, on

June 2, 2008, the Mother, representing herself pro se, with her child was granted a

Temporary Protective Order (TPO). The TPO covered the child for “Statutory Abuse of

a child (Physical, Sexual)(Forward to DSS for Investigation)” and the Mother. The TPO

was issued by Judge Boynton of Montgomery County Maryland (where Mother lived and

the child lived part time and went to school) after she presented evidence of abuse and the

need for protection from the Father for both the child and Mother. The TPO called a full

investigation by CPS of Montgomery County and a Full Protective Hearing on June 9,

2008 -- strongly advising that both parties obtain legal counsel for the hearing. It is

4
important to note that Judge Boynton has been the only Judge who has ever met the child

before making any rulings regarding her safety and welfare.

The Mother then sought medical diagnosis and care for her daughter at one of the

leading children’s hospitals in the US, Montefiore Children’s Hospital in the Bronx, New

York City. The Father, fearful of allowing the process, including investigations (child

sexual abuse and medical harm) had the TPO overturned in an unscheduled ex parte

hearing on June 5, 2008, and, a day later on June 6, 2008, went to a court in Virginia

(where none of the parties lived), in a 20 minute ex parte hearing claiming that the

mother had kidnapped the child and thus he needed to be awarded full physical and legal

custody, and the mother given “no contact,” so that she could me put on the NCIC data

base.

With this unlawful and arbitrary ex parte order in hand, the Father then reported

the child as being kidnapped to the Montgomery County police, and the Mother was

arrested at the child’s bedside at Montefiore Childen’s Hospital, while getting an

evaluation for the Severe Chronic Neutropenia (where ANC had dropped to as low as

120). The Father’s lawyers working with the Montgomery County detective caused a

misstatement of charges in the arrest warrant, claiming a non-parental kidnapping (which

carries a maximum 20 year sentence). Because of the mischarging, the Mother was held

without bail at Rikkers Island prison for almost a month. The maximum penalty for

“parental kidnapping” of less than 30 days is 30 days. After eight months of the case

pending trial, on the day before the trial, the criminal court in Montgomery County

denied the Mother any defenses and use of her expert witnesses. Without any defenses,

the Mother was forced to plead guilty in exchange for no probation or sentence, and

5
avoiding the expense and uncertainty of a trial with no defenses or expert witnesses.

The child was delayed released on June 17, 2008 to the Father on the condition

that the Father take the child to a pediatric hematologist/oncologist to complete the

investigation of the, as yet undetermined, underlying cause of her severe neutropenia.

See, Graph of ANC Readings of the Child, APP-44. The Father was also directed to

take the child for regular psychological care to address her stress disorder and

dissociation.

Months went by, and the Father -- who had legal responsibility for taking care of

the child’s health and medical needs after having received custody of the child3 -- failed

to comply with the Montefore Children’s Hospital directives and, thus, purposely failed

to make any progress in determining the underlying cause of the severe neutropenia.4

During that period the child’s ANC levels remained low at critically severe Neutropenia

3 The origins of the Virginia June 6, 2008 custody order that the Father claims to
have granted him custody is complex and brings its own set of legal improprieties by a
small family court in Arlington Virginia where no party was residing. It is undisputed
that: the Virginia order that the Court below identifies in its order was granted on an ex
parte basis and at a time the Mother was without legal representation to defend herself,
seek reconsideration or secure an appeal, and when no party was living in Virginia --
thus, it was entered without subject matter jurisdiction. In addition, since the August 5,
2009 hearing, another Virginia custody order -- which has a different ordering clause --
has been surfaced by the Father’s counsel in another proceeding which the Father did not
bring to the court’s attention below. Thus, even though the order in the record below was
marked “final,” due to the Father’s new finding of another order, it would not be a final
order because it was modified -- thus cannot be recognized and registered in the District
of Columbia for enforcement. DC Code §16-4603. However, because custody is not the
issue in the defects in the Virginia case and the non-enforceability of the Virginia Order,
details of that discussion will be omitted here.
4 It is generally known that possible underlying causes of Severe Chronic

Neutropenia include cancer drug treatment, toxins or toxic drugs administered to the
child, a genetic disorder, an autoimmune disease (e.g., Lupus), or a virus (like HIV). The
child’s tests have excluded most possible causes of the very rare blood disorder but not
neutropenia cause by toxins. See, Opinion Letter of Dr. Karl Welte, one the world’s
leading expert on pediatric neutropenia. APP-140-143.

6
levels almost the entire time.5 This left the child extremely vulnerable to infection by a

severely compromised immune system (only 15% of its normal capacity).

It was not until October 2008, when the Mother obtained the child’s medical

records to determine whether the Father had followed the medical directives of

Montefiore Children’s Hospital, that she learned what he had failed to do. The Mother

presented a complete medical history of the child (including five years of medical

records) to a Dr. Robert Sklaroff, a 35-year nationally recognized hematologist/

oncologist expert. Upon reviewing all those records, Dr. Sklaroff -- as a mandated

reporter -- filed a verbal and written formal complaint for severe medical neglect with

District of Columbia Child and Family Services Agency (CFSA) in October 2008.

As the direct result of Dr. Sklaroff’s complaint, CFSA intervened and required the

Father to take the child to a hematologist/oncologist. The Father took the child to Dr.

Scott Myers, at Georgetown University Medical Center (GUMC) on October 10, 2008.

Of note, the Father, while employed at GUMC, practiced unlicensed from July 1, 2007 to

June 30, 2008 in the District of Columbia.6 In June 2008, after one year of practicing

without a medical license, he was terminated from the staff of GUMC.

In April 2009, the Mother again obtained updated medical records from the

GUMC. From updated records, the Mother learned that, instead of getting better, the

Severe Chronic Neutropenia had become worse since Fall 2008, (See, Neutropenia

5 The two times the child showed a briefly raised ANC of 1100 was when the
Father had time to prep the child’s system in advance of the tests -- first when the Father
had delayed the child’s ANC being taken for the DC CFSA in October 2008, and the
second in June 2009 at a visit scheduled by the Father where tests were being made for
later presentation to the court below.
6
The Father failed to receive a regular medical license in Washington DC
because he could not provide to the Medical Board of DC proof that he completed
medical school by providing foreign medical school transcripts

7
Graph, at APP-44), and the child had been presented to GUMC with sores on her swollen

lip and in her mouth, as well as lesions on both sides of her groin, prompting another

GUH physician to order a culture taken to test for “infection suspicious onset of

suspected herpes,” a sexually transmitted disease. (See, Affidavit of Dr. Sklaroff at ¶22,

APP-25)

After reviewing the updated medical records that were acquired since the Fall of

2008, Dr. Robert Skarloff, MD -- as a mandated reporter -- filed a second complaint with

CFSA on April 21, 2009 for the continued need for the proper medical evaluation

(specifically bone marrow aspiration) and GCSF medicine treatment for the child. In

his affidavit (See, Affidavit of Dr. Sklaroff (APP-20), attached to Original Complaint,

APP-17), Dr. Sklaroff concluded:

a) It shocks the conscience that these problems and uncertainties persist.

b) It is critical to determine the cause of neutropenia in cases (such as this)

which persist for at least several months:

i. Neutropenia developed between 2006 and May 2008,

ii. Neutropenia continues to persist (per the most recent CBC),

iii. Since June 18, 2008, there has been unnecessary delay in
acquiring a full hematological work-up for this child by a
trained hematologist to determine the cause of the
Neutropenia,

iv. This work-up often includes examination of the bane marrow,


although to-date this procedure has not been performed.

v. Since at least as early as last May, the child has been at-risk to
develop (suddenly) a major infection, but consideration has not
been given to imposing any prophylactic measures, and

vi. Giving the child a full panel of vaccines when her ANC was
known to be below 1500 risked both compromise of her ability

8
to be immunized (as intended) and development of infections.

See, Affidavit of Dr. Robert Sklaroff, Attached to Original


Complaint, at APP-23-24).

In addition, Dr. Joy Silberg, PhD -- another mandated reporter who had reviewed

the medical records and other evidence -- filed a separate complaint with CFSA for

physical neglect and sexual abuse. (See, APP-74; a copy of that affidavit if found in the

record attached to Plaintiff’s Motion to Strike and In Limine, and Expedite Emergency

Hearing, and Request to Call Dr. Joy Silberg, filed June 10, 2009 (“Plaintiff’s Motion to

Strike, etc”) (APP-80)

Justice for Children is a national organization that advocates for children whose

best interest are lost between the failures of child protection systems. The regional

Director, Eileen King, filed a letter and complaint to CFSA on behalf of A.L.M.K-P (a

copy of Ms. Eileen King’s Letter (APP-78) to CFSA is found in the record at Exhibits III

of Plaintiff’s Motion to Strike, filed June 10, 2009).

On April 21, 2009, the Mother, through counsel, filed three pleadings with the

DC Superior Court in the case below (Case No. 09 DRB 1167) that sought emergency

medical attention for A.L.M.K-P:

a. Motion for a Preliminary Injunction ,


b. An Emergency Motion for Temporary Restraining Order, and
c. A Complaint for Negligent Treatment and Injunctive Relief, pursuant to
D.C. Code §16-2301 (24) (“Original Complaint”)

APP-8 – 20.

The Original Complaint and proposed order requested only proper medical
diagnosis and treatment:

Wherefore, the premises considered, the Plaintiff request the Court to


enter an order directing the Defendant to forthwith, make arrangements for
the Child to be taken to: Children's National Hospital, in Washington,

9
D.C., by someone other than the Plaintiff, for that hospital to perform a
complete medical examination, on the Child, and for them to diagnosis
and suggest a treatment plan for the Child's Neutropenia and any other
medical malady that they deem requires medical treatment; and issue an
order directing the Defendant to refrain from interfering, in any manner,
during the Child's medical examination.

- (emphasis added) See, Original Complaint at APP-18

No such independent medical examination for the severe chronic neutropenia has

yet to take place or has been ordered.7

On April 22, 2009 and April 23, 2009, the Court below held a preliminary

hearing. At the first hearing on April 22, 2009, the Mother’s Counsel Morris entered a

praecipe for his appearance. See, April 22, 2009 Docket Entry, APP-1. The Mother’s

only other counsel, Mr. Robinson/Mr. Long firm, were newly hired a couple of days

before to prepare and file the Original Complaint, and associated motions.

The Mother had arranged for Dr. Robert Sklaroff (who is located in Pennsylvania)

to come to testify at the April 22 hearing, but Mr. Robinson was advised by the Judge’s

chambers that Dr. Sklaroff need not appear in person, the affidavit was sufficient, and, if

necessary, he could testify by phone.

At the first hearing on April 22, 2009 and again on April 23, 2009, Mr. James P.

Toscano, the General Counsel for DC Child and Family Services Agency (CFSA),

7
By its published policy, CFSA takes all child abuse cases to CNMC. However, CFSA
did not do so in this case. Although the child was taken by CFSA to CNMC on April 24,
2009, the CNMC staff was told to limit the physical examination to only sexual abuse,
and not neutropenia. The were also told not to interview the child for sexual abuse. They
were told the neutropenia was being addressed at Georgetown University Hospital where
the father was a former staff member and where the father chose to take the child for the
inadequate diagnosis that led to the filing of the case below. See, Plaintiff’s Motion to
Strike and Limini, filed June 10, 2009 at 8-9 (APP-87-88).

10
appeared in the court -- apparently at the demand of the Father’s counsel.8 CFSA was

not a party to the case, and Mr. Toscano did not appear in response to either a subpoena

or court order.

At the commencement of the hearing on April 23, 2009, the Father’s counsel

claimed he had intended to call the Mother’s long time primary attorney, Counsel Roy

Morris, Esq. as a witness. The Father’s counsel then asked that Counsel Morris be

sequestered. Counsel Morris objected. See, Transcript at 19-21, APP-48-51. The

Father’s counsel did not make any showing that could justify the calling of opposing

counsel as a witness, let alone having him sequestered. The Court denied Counsel

Morris’ objections, and directed Counsel Morris to leave the courtroom -- from which he

was excluded for the remainder of the day -- and yet was never called as a witness by the

Father’s counsel.

The Mother’s Counsel Morris had been at every court proceeding since 2007,

thus he was the only regular, most experienced and knowledgeable counsel for her in the

courtroom that day. His exclusion from the courtroom was damaging. Father’s counsel

used Counsel Morris’ absence as an opportunity to make unchallenged slanderous false

statements about the Mother, and engage in unchallenged questioning of the Mother on

irrelevant non-medical neglect matters, in particular, unrelated criminal and civil matters

of which only Counsel Morris was familiar and in a position to defend the Mother. With

no access to her only long time counsel Morris, the Mother lost her ability to effectively

exercise her Fifth Amendment rights, and raise other knowledgeable objections. The

8
Prior to his addressing the Court, Mr. Toscano limited himself to speaking several times
privately with the Father’s counsel, in what sometimes appeared to be a heated
discussion.

11
remaining counsel Robinson/Long -- who were hired only days before -- had no

knowledge of the subject of those matters. The Mother was also forced to disclose

attorney-client privileged communications with Counsel Morris.

After sitting in the courtroom for two days listening to the testimony, Mr. James

P. Toscano on the second day requested, an ex parte meeting with the Judge in her

chambers over the Mother’s counsel’s protests. Counsel Morris -- who was still excluded

from the courtroom -- was the only counsel for the Mother who had directly

communicated with Mr. Toscano, Esq. and had familiarity with the matters relating to

both CFSA and Mr. Toscano. Without Counsel Morris in the courtroom, the Court

granted Mr. Toscano’s request, without the knowledge or input of the Mother’s primary

and most knowledgeable counsel, Counsel Morris. Counsel Robinson clearly stated he

did not know what Mr. Toscano could be possibly speaking to the Judge about and

expressed objections, while the Father’s gave permission without any reservation thereby

suggesting that there had been prior conversations and the Father’s Counsel knew what

Mr. Toscano intended to say to the Court in private:

THE COURT: All right.


MR. O'CONNELL: But here's the --
THE COURT: I'm looking at the person from Child and Family Services. What
are you going to do?
UNIDENTIFIED SPEAKER (Mr. James P. Toscano): Your Honor, I can stay as
long as you need me to or come back tomorrow --
THE COURT: I'm going to try to stay as long as I
can depending on what's happening.
UNIDENTIFIED SPEAKER (Mr. James P. Toscano): Would I have to -- would I
present the Court with the ex parte of this party -- confidentiality?
MR. O'CONNELL: I would do that, Your Honor.
UNIDENTIFIED SPEAKER (Mr. James P. Toscano): I can stay here as long as
you want to.
THE COURT: I mean for purposes of your representations to me, is there any
reason why you couldn't make them now so you could go?
UNIDENTIFIED SPEAKER (Mr. James P. Toscano): I could certainly make

12
them if the parties agreed to waive their confidentiality so I can make it as ex
parte to the Court.
MR. ROBINSON: Well, I don't agree to anything ex parte to the Court. I mean
my understanding he was going to make it open to the Court; is that correct: He
said, "Ex parte," Your Honor.
THE COURT: I think it's -- I took it that there was some kind of pending
investigation, and so that would not be something that would be disclosed in open
court.
UNIDENTIFIED SPEAKER (Mr. James P. Toscano): That is correct, Your
Honor.
THE COURT: But it would be disclosed to me based upon a waiver of
confidentiality by the parties.
MR. O'CONNELL: We have no problem with that, Your Honor.
MR. ROBINSON: I do, Your Honor. I don't know what the nature of it is, and I
wouldn't know how to cross-examine if Dr. Pfeiffer took the stand or how to
redirect if I'm given the opportunity. I just don't want to do that, Your Honor.
THE COURT: This would be made to me. It will be made to me and nobody
would be cross-examining me and --
MR. ROBINSON: That's fine, Your Honor. I understand. I do waive. Indulgence,
Your Honor?
THE COURT: And, since I have not the foggiest clue
what it is --
MR. ROBINSON: We waive, Your Honor.
THE COURT: -- it just doesn't make sense for him to sit here. He's been here for
two days.
MR. ROBINSON: I agree, Your Honor, and we waive.
THE COURT: Okay. Come on.
(EX PARTE CONFERENCE)
(Thereupon, the proceedings were reconvened.)

-- Transcript Aril 23, 2009 at 30-33 (APP-51-53)

After the private meeting with Mr. Toscano, the Court stated that Mr. Toscano

said in private that, among other things, that the CFSA investigation would be the

following Monday, April 27, 2009.

THE COURT: That's the way it is. I do what that to be clear though. The only
other information that I will receive is I will receive the final evaluation from Child
Protective Services as a result of their investigation, which is supposed to be closed and
results known by Monday.
MR. ROBINSON: Your Honor, are those results going to be made available to us
or just to the Court?
THE COURT: Well, what the counsel said to me is that if it is not founded, there
is no written report and they aren't required to do a written report by law.

13
MR. ROBINSON: I understand.
THE COURT: And, so it really just depends on what the results are, and I don't
know what the results will be.
MR. ROBINSON: Your Honor, could I just -- and I'm not going to elongate it. I
just want to make it clear. I am not requesting any particular procedure at all, and my
client has not requested any particular procedure. All we've requested is, is that the
Children's Hospital get the records and do whatever.

See, Excerpts of April 23, 2009 Hearing Transcript at 56, See, APP-59.)

The Court then refused to consider Dr. Sklaroff’s affidavit without his testimony

which could have been taken that day by phone -- since he had not traveled for the

hearing from Pennsylvania because the Mother’s counsel had been told by the Court

previously he did not have to appear.9 The Court insisted that he travel to Washington

DC to appear at a future hearing in person. The Court also stated that the Father could

call his “expert” witness from Georgetown University Medical Center (Dr. Scott Myers)

at that future hearing. The Court set the next hearing date for May 22, 2009. (See,

Excerpt of April 23, 2009 Hearing Transcript, APP-58-66).

The Father’s Counsel voiced his opposition to Dr. Sklaroff’s advocacy of the

standard test of a “bone marrow aspiration” (BMA) as “reckless” and to “drill a hole in

the child’s pelvis” (Transcript of Aril 23, 2009 Hearing at 53-54, APP-56-57). The

Father’s Counsel further proclaimed that he wanted to depose Dr. Sklaroff before the next

hearing. The Court responded that:

If you want to depose him, I'm not going to stand in your


way from doing it.

See, Transcript of April 23, 2009 at 53-54,


APP-56-57

9
DC Code §16-4601.10; Taking testimony by telephone in another State being explicitly
permitted.

14
After notices were sent out for the May 22, 2009 emergency hearing, the Mother

flew back from Germany to the USA to attend that hearing. Within days the court clerk

called to say that a vacation day was scheduled for May 22, 2009 and that it had been that

way since the beginning of the year. The Judge’s clerk requested that the next

“emergency” hearing be postponed another three months to August 5, 2009.10

On May 13, 2009, the Father filed a Motion file late file his counterclaims, one

day after the May 12, 2009 deadline for filing a response to the complaint. According to

the Docket, the Father’s Answer to the Complaint was also late filed on May 13, 2009,

but the Father did not file a motion to file his answer late.

On May 22, 2009, Appellant’s Counsel Morris filed his second notice of

appearance with the Court. (See, Praecipe: Entry of Appearance, filed May 22, 2009,

APP-67)

On May 27, 2009, the Mother’s other counsel, Wendell Robinson and Leonard

Long (who work together) filed a Motion to Withdraw and a Motion for Extension of

Time because “the services of Counsel (Robinson and Long) are no longer needed..” and

that Counsel Morris would remain and handle the case alone from that point onward.

(See, Motion to Withdraw and Motion for Extension of Time, attached hereto at APP-69

and 72.)

On June 10, 2009, on the Mother’s behalf, the Mother’s Counsel Morris filed a

Motion to Strike and In Limine and Expedite Emergency Hearing and Request to Call

Dr. Joy Silberg As An Expert Witness. The Motion sought to strike all references in the

10
Days before the hearing, Plaintiff’s Counsel Morris received a call from the Judge’s
Chambers informing him that there was a vacation day previously scheduled for May 22,
2009 so the hearing would be rescheduled for August 5, 2009. The docket mistakenly
lists postponement as being by counsel’s agreement.

15
proceeding to the CFSA investigation and bar their further introduction because, as

demonstrated through documentation provided by CFSA and the Children’s National

Medical Center, the CFSA investigation referred to by James Toscano in his ex parte

meeting was irrelevant to issue of medical neglect, it failed to comply with CFSA

policies, and only involved a deeply flawed, investigation of sexual abuse --- not medical

neglect. (See, June 10, 2009 Motion to Strike and In Limine and Expedite Emergency

Hearing and Request to Call Dr. Joy Silberg As An Expert Witness, at APP-80)

On June 16 and 17, 2009, the Mother served subpoenas for depositions duces

tecum on the Father, and the four Georgetown University Medical Center (GUMC)

Physicians, including Dr. Scott Myers, who were involved in the treatment of the child.

See, Appellant’s Notice of Discovery filed July 2, 2009, APP-97.

On June 23, 2009, the Father’s Counsel filed Motions to Quash the subpoenas of

the Father and the physicians at GUH, including Dr. Scott Myers. The Mother filed

oppositions to those motions on July 2, and July 14, 2009, respectively pointing out that

the Court specifically gave the approval for deposition discovery prior to the upcoming

hearing. The Court did not rule on the Father’s Motions to Quash prior to the August 5,

2009 hearing, effectively granting them and denying the Mother any discovery.11

On June 26, 2009, after a separate complaint was filed with the Washington DC

Board of Medicine for failing to comply with medical standards of practice and with the

child’s condition worsening (her ANC dropped to 470), Dr. Scott Myers notes finally

came to agree with Dr. Sklarloff’s recommendation, and the Mother’s initial request to

the court (April 2009) to have the child given the standard investigation of a bone

11
The filing of a Motion to Quash automatically stays the discovery under the Court’s
rules. SCR Dom.Rel. §26(c).

16
marrow aspiration test (BMA)12. See, GUH Medical Report of June 26, 2009, APP-93.

On July 2, 2009, Child and Family Services Agency (CFSA) attempted to file

under seal, a Motion opposing the Mother’s intent to depose and request document

discovery on CFSA. In that Motion, CFSA made many false factual allegations against

the Mother that CFSA had apparently obtained from the Father and his counsel. CFSA

intentionally did not serve the Mother’s counsel a copy of that Motion, nor did CFSA file

a separate Motion to file under seal. The Mother’s Counsel learned about the illicit

filing by chance when he made a routine check with the court clerk, and, then, the

Mother’s Counsel filed a timely opposition to the CFSA Motion. The Court did not rule

on CFSA’s Motion to Quash prior to the August 5, 2009 hearing, effectively granting

them and denying the Mother discovery. SCR Dom.Rel. §26(c)).

On July 2, 2009, the Mother served a subpoena for a deposition duces tecum of

the person at CFSA who it designated as the most knowledgeable of the investigations

relating to the child. CFSA filed a Motion to Quash that subpoena as well, and the

Mother filed a timely Opposition to said motion. The Court did not rule on CFSA’s

Motions to Quash prior to the August 5, 2009 hearing, effectively granting CFSA’s

Motion and denying the Mother her right to discovery. SCR Dom.Rel. §26(c)). Also, see,

August 5, 2009 Hearing Transcript at 13-16, (where the Court summarily granted the

CFSA Motion to Quash, APP-112-114))

On July 1, 2009, the Mother served a document discovery request on Father and

requested a meeting to discuss any concerns Father’s counsel might have regarding that

12
The BMA is a standard test for unexplainable Neutropenia, and had been
recommended to Appellee by the first pediatric hematologist/oncologist one year before
(June 2008) but the records fail to indicate he disclosed this information to the GUH
physician’s attention.

17
request. The Father did not timely respond. On August 4, 2009, the Mother filed a

Motion to Compel responses to those discovery requests. The Court did not rule on the

Mother’s Motion to Compel prior to the August 5, 2009 hearing, and thus effectively

denied the Mother’s right to discovery. SCR Dom.Rel. §26(c)).

In a July 24, 2009 letter to the Court, the Mother’s Counsel reminded the Court of

the need for a timely ruling on these outstanding discovery matters prior to the August 5,

2009 hearing. See, Letter of Roy Morris, Esq. to Court, July 24, 2009, APP-97.

The August 5, 2009 Hearing


At the August 5, 2009 hearing, the Mother once again traveled from Germany to

attend the hearing to seek medical relief for her daughter.

At the beginning of the hearing the Court stated in open court that it would

disregard any filings made on the Mother’s behalf by the Mothers only counsel, Counsel

Morris, prior to August 5, 2009 hearing because, the Court did not yet recognized him as

“primary counsel.” The Court refused to acknowledge the praecipes for Entry of

Appearance Counsel Morris, filed on April 22, 2009, and again on May 22, 2009, all of

which were listed in the Docket and contained in the court file:

“as (far as) I'm concerned, you've not had any authority to do anything
until right this minute when I accept your praecipe.”

See, August 5, 2009 Transcript at 11-12, APP-110-112.

Also at the hearing, the Court granted the CFSA Motion to Quash Appellant’s

subpoena without allowing any discussion, See August 5, 2009 Transcript at 13-16,

APP-112-114. The Court denied all discovery requests because of her refusal to

recognize anything filed by Counsel Morris. See, August 5, 2009 Transcript at 11-12,

APP-110-112.

18
Also at that hearing, the Court refused to allow Dr. Sklaroff to testify as an expert

on hematology/oncology, despite his extensive experience of over 35 years, and the

presentation of his credentials both orally and through his resume. The Court did not

dispute his expertise in hematology/oncology, however, the Court claimed he had not

demonstrated an expertise in the particular age group of six year olds. The Court drew

this conclusion even though Dr. Sklaroff testified that based on his own experience and

knowledge of the medical literature there was no material difference between the

diagnosis and treatment of severe chronic neutropenia for a six year old and an adult.

The Court admitting it independently knew nothing about the topic to enable it to know if

there were a difference. See, August 5, 2009 Hearing Transcript at 38-43 (APP-121-126)

At the beginning of the hearing on August 5, 2009, the Mother’s Counsel Morris

informed the Court that, in addition to Dr. Sklaroff, two other expert witnesses were

present to testify, Dr. Joy Silberg (a psychologist) and Don Lehew (a handwriting expert).

In preparation for their testimony, the Court sequestered them, yet the Court later refused

to allow the Mother to call those expert witnesses to the stand. See, August 5, 2009

Transcript at 19-20, APP-118-119.

The Lower Court’s Rulings


After several months, the Court issued a written order on December 2, 2009, in

which the Court attempted to justify refusing to provide relief, as requested by Mother.

The Court Order oddly reads and is formatted more as an advocacy piece written by and

for the Father -- rather than the child -- containing gratuitous dicta and irrelevant findings

that had little to do with the question before the court.

Although the Court cites as the source for its standard of analysis In Re MD, in

19
fact, it ignores the actual holding of that case -- namely that the Court has a “parens

patriae” responsibility to ensure that it has enough evidence before it to make an informed

decision. This is illustrated by the Court’s admission:

“[i]ndeed, the Court Record is filled with attachments and exhibits, that were
Submitted by the Plaintiff that have not been considered by the Court, since they
are not part of the evidentiary record as produced and received by the Court
during the evidentiary hearings in April and August 2009.”

- Court Order at note 11 (APP-42-43)

Such an approach of disregarding evidence without valid reason is antithetical to

the Court’s “parens patriae” responsibility.

At some points the Court’s order is simply incoherent and nonsensical. For

example, it described the Mother as having filed a “Petition for Custody” to the

Montgomery County Court that was “dismissed” at a “scheduled” hearing on June 5,

2008, and described this event as “subsequent” to a June 6, 2008 order of the Virginia

Court. As a threshold matter, June 5, 2008 occurs before June 6, 2008. In addition, as

described above, the Mother had only sought and received a TPO on June 2, 2009, and

not a “Petition for Custody” from that Court. Moreover, the TPO had not been

“dismissed” on the merits, but instead quashed by another Judge at an unscheduled

hearing called by the Father’s counsel days before the scheduled hearing on the merits on

June 9, 2009. None of the Court’s observations are supported by the cited “Defendant’s

Exhibit 3.”13 It should also be noted that the Mother and child appeared before Judge

Boynton on June 2, 2008, where he determined that there was clear and convincing

evidence of sexual abuse, physical abuse and neglect neglect by the Father and stalking

13
It should be noted that the June 5, 2008 Order of Judge Craven -- upon which the Court
relies -- is currently under appellate review before the Court of Special Appeals of
Maryland. King v. Pfeiffer, Case No. 1007, September Term, 2009.

20
of the Mother, and it was his findings that caused the issuance of the TPO, with the only

scheduled hearing to be held on June 9, 2008 -- after a full child abuse and medical

neglect / harm investigation by the Montgomery County “DSS” (their CPS). That

investigation and hearing was blocked by the Father’s Counsel’s unilaterally causing an

unscheduled ex parte hearing on June 5, 2008 before Judge Craven, before the June 9,

2008 scheduled hearing, and without the Mother or her yet-to-be appointed legal counsel

from the abused persons’ House of Ruth, or her witnesses who were not prepared to

appear until June 9, 2008. Finally, the quashing of that order in Maryland is subject to a

pending appeal -- a fact also not noted in the Court’s Order.

Other illustrations include the Court Order’s erroneous claim that the CFSA

investigations were “initiated by the Plaintiff.” In fact, they were all initiated in writing

by the very experts that the Court refused to allow testify -- Dr. Joy Silberg and Dr.

Robert Sklaroff. Nothing in the record supports the Court’s observations.

Furthermore, the Court order did not address her denial of all discovery by the

Mother, including discovery of CFSA and the child’s physician. The Court Order did

not explain why it denied Mother’s Motion to Quash Evidence Relating to the CFSA

Investigation.

Finally, the Court gave no reasons in its written order why it refused to allow the

Mother’s remaining two experts, Dr. Joy Silberg (Shephard Pratt Hospital) and Don

Lehew (hand writing expert) to testify. It also failed to explain why it would not let Dr.

Sklaroff testify as to a hematologist/oncology expert for at least the narrow issue of

explaining the nature of neutropenia. The Court’s order is filled with medical facts and

claims that are not supported by any expert testimony and the Court cites to no authorities

21
for its medical knowledge.14

The Court concluded that Washington DC is the child’s home state -- but this is

irrelevant to the issue of obtaining medical help for the child and not in any way

developed by any sworn testimony as it was not an issue in the proceeding. The Order

also claims that child has been asymptomatic, however, there is no evidence in the record

to support that other than the Father’s claims as no discovery was allowed.15

14
The Father presented no expert witnesses. Certainly, Mr. Toscano, Esq. who had an ex
parte meeting, has not expertise in the field either. The Father, a neurology researcher,
has no demonstrated expertise in the field. The only witness that could have enlightened
the Court as an expert was Dr. Skarloff, and the Court -- which admitted it knew nothing
about the matter -- refused to allow him to testify.
15
The asymptomatic claims in the medical reports of the GUH doctor are always based
on the “Father reports that.” In addition, in a number of medical reports the child was
indicated with sores, lesions, fevers, and regularly afflicted with mucosis. Dr. Sklaroff
noted much of this in his affidavit, making the need for his testimony for a properly
informed court more important.

22
ARGUMENT

The Court of Appeals of Washington DC has found that in medical neglect cases,

the court sits in a unique position with an affirmative obligation to “require presentation

of medical evidence which would have helped it resolve whether [the child] was a

neglected child.” IN RE M.D. L.D., 758 A.2d 27 at para. 38 (DC 2000). This Court

stated:

It follows from these principles that the trial court in a neglect proceeding ought
not to be passive in the face of what it recognizes is a deficient presentation of
evidence.....the court was empowered by statute to order, on its own motion, a
physical examination of M.D. and to utilize the results of that examination in the
fact-finding hearing. See D.C. Code § 16-2315.

- IN RE M.D. L.D., 758 A.2d 27 at para. 37 (DC 2000)

In this case the lower court abdicated its “parens patriae” responsibility to ensure

it made an informed decision. Instead of enabling the presentation of all of the evidence

available, the Court did the opposite: closing the door to all experts testimony, refusing

to allow discovery, allowing an unauthorized ex parte meeting by James P. Toscano, and

refusing to consider pleadings, motions and actions -- which contained additional

evidence -- based on erroneous reasoning that they were not filed by the Mother’s “lead

counsel.” The Court even admitted it did not consider -- nor apparently care to consider

the many “attachments and exhibits, that were submitted by the Plaintiff.” See, Court

Order at note 11 (APP-42-43).

23
I. THE COURT WAS UNFAIRLY PREJUDICED AND ACTED ERRONEOUSLY BY
ALLOWING THE FATHER TO SEQUESTER THE MOTHER’S COUNSEL, BY
ALLOWING QUESTIONING OF MATTERS THAT ONLY SEQUESTERED
COUNSEL WAS FAMILIAR, BY ALLOWING VIOLATIONS OF THE MOTHER’S
CONSTITUTIONAL RIGHTS, AND BY ALLOWING AN EX PARTE IN
CHAMBERS MEETING WITH BY JAMES P. TOSCANO, ESQ.

Mother’s Counsel Morris was involved extensively in pretrial preparation and all

discussions with her counsel team, in both this case and all prior civil and criminal cases

of the Mother since June 2007. Mother’s Counsel Morris had represented the Mother in

most of those proceedings and also before the Washington DC CFSA, as well. Counsel

for the Father was aware of this fact, as he had been opposing counsel in all of those

proceedings for the same period.

Mother’s Counsel Morris entered an appearance through praecipe at the beginning

of the first day of the hearings below on April 22, 2009. See, Docket Entry, APP-1 At

no time during the first day of hearing did the Father’s Counsel state he intended to call

Mother’s Counsel Morris as a witness.

At the commencement of the second hearing on April 23, 2009, the Father’s

Counsel O’Connell stated for the first time that he intended to call the Mother’s Counsel

Morris as a witness on a matter for which he established no foundation as being relevant

to whether the Father had engaged in medical neglect/ harm or sexual abuse of the child.

The Father’s counsel then proceeded to ask questions about the Maryland Temporary

Protective Order (TPO) order against the father for the child (physical, sexual abuse and

medical neglect) and the mother (stalking) against the father. He also asked questions

about the ex parte hearing arranged by the Father’s lawyer to quash and overturn both the

child and mother’s TPO (June 2, 2008 – June 9, 2008):

Q. Were you aware that there was a motion set for a hearing before Judge Craven

24
on June 5, 2008?
A. No.
Q. Did you file an opposition to that motion on that day Pro se, delivered by Roy
Morris?
A. Opposition on that day --
MR. O'CONNELL: Your Honor, I'd like to invoke the witness rule at this time.
Mr. Morris is the one that delivered that.
THE COURT: All right. All persons who are theoretically witnesses in this matter
for either side should leave the courtroom until such time as their testimony is
required.
MR. LONG: Your Honor, has Counsel indicated that he's going to call Mr. Morris
as a witness?
THE COURT: That's what I took him to say?
MR. LONG: Counsel, you want to call Morris as a witness?
MR. O'CONNELL: I want -- Yes, regarding this matter at least.
THE COURT: Okay.
UNIDENTIFIED SPEAKER (Counsel Morris): I would like to assert --
UNIDENTIFIED SPEAKER (Not Counsel Morris): No, no, just step outside.
THE COURT: And, I don't think that there's anything that he could that would
implicate a privilege. It's either you filed something or you didn't. All right.
BY MR. O'CONNELL:
Q. Did Mister file something like that on your behalf that day?
A. Excuse me?
Q. Did Mr. Morris file something like that on your behalf that day?
A. I believe that he went to the court with it. That's all I know. I don't know if it
was actually filed.
Q. Okay. Isn't it true that you and he were in communication while he was in the
courtroom that day when he represented to the judge that you would be coming to
court later on after a break?
A. Yes, I was at the Madagascar Embassy where she told the Malagasy (phonetic)
Embassy that her father does bad touch, that she was scared of him. That he does
naughty touch and she screamed in her sleep begging and pleading not to go back.
THE COURT: All right. You know what --
THE WITNESS: I'm sorry I can't --
THE COURT: Yes, you can.
THE WITNESS: All right.
THE COURT: Yes, you can. You will answer the question that has been posed
and you will allow your question -- counsel, who I believe are these two
gentlemen who are sitting in front of you --
THE WITNESS: Yes, ma'am.
THE COURT: -- to ask you appropriate questions on redirect.
THE WITNESS: Yes, ma'am.
THE COURT: All right.
THE WITNESS: Thank you.
BY MR. O'CONNELL:
Q. So even though Mr. Morris told you that that hearing was going on, you didn't

25
go to that hearing, correct?
A. Not correct.
Q. You did go to the hearing?
A. I believe you said to me, "Even though Mr. Morris told you, you didn't go; is
that correct?" And, I said that statement is not correct.
Q. You didn't communicate with Mr. Morris about the hearing that day; is that
correct?
A. No, that's not correct.
Q. Mr. Morris told you that a hearing was going on; is that correct?
A. No.

Transcript April 23, 2009, at 19-22 , APP-48-50


.

Even though timely objection was raised by Counsel Morris (listed in the

transcript as the first “Unidentified Speaker”), the Court did not challenge the Father’s

attorney, nor make any inquiry why it was so critical to allow the Father to allow the

denial the Mother access to her most knowlegable and experienced counsel (in all cases

since 2007). As noted above, Counsel Long and Robinson had only been hired days

before the hearing, while Counsel Morris had been representing the Mother since June

2007 in cases in all jurisdiction (Virginia, Maryland and the District of Columbia), in

both criminal and civil matters. These new local counsel did not have the institutional

knowledge to properly defend the Mother while on the stand.

Furthermore, because Counsel Robinson/Long had not been involved with Mr.

Toscano or any of the CFSA matters, they were ill equipped to provide strong objection

to Mr. Toscano’s unorthodox request to have an ex parte discussion / testimony with the

Judge in the middle of the hearing. That ex parte meeting between the Judge and Mr.

Toscano severely prejudiced the Mother in the case below because the Mother’s Counsel

was unable to cross examine Mr. Toscano about what was later learned to be a defective

26
and personally influenced investigation by CFSA.16

In addition to the attorney - client privilege of the Mother with her Counsel

Morris being violated by the questioning of the Mother about communications with her

counsel, she was forced to testify against herself with regard to facts that remains subject

of an active criminal case in Maryland -- namely the June 2, 2008 TPO, its June 5, 2008

quashing, and what happened between then and her arrest at Montefiore Hospital on June

16, 2008. 17 Thus her fifth amendment rights were violated. Without Counsel Morris’

knowledge, Counsel Robinson/Long were ill equipped to provide knowledgeable

objections. The Supreme Court has squarely held in McCarthy v. Arndstein, 266 U.S.

34, 40 (1924),

"the [Fifth Amendment] privilege is not ordinarily dependent upon the nature of
the proceeding in which the testimony is sought or is to be used. It applies alike to
civil and criminal proceedings, wherever the answer might tend to subject to
criminal responsibility him who gives it. The privilege protects a mere witness as
fully as it does one who is also a party defendant."

The Mother was also prejudiced, and the Court denied critical information, because

16
As it is well known and often described in the Washington press, the DC CFSA has
been deemed so unable to protect children against abuse, neglect, harm and adequate
foster care services that a Federal Monitor has been required since 1989 when a class
action suit was brought for, among other things, failing to properly investigate abuse.
This is agreed by many of the Judges of the DC Superior Court, including Judge Zora
Michell-Rankin. In separate interviews with GAO investigators in 2000, Superior Court
Judges Zinora Mitchell-Rankin and Kaye K. Christian called the agency's performance
"as poor now as it was a decade ago," blaming "lack of staff knowledge," limited
resources and high turnover of social workers. See, “Protected Children Died as
Government Did Little,” Washington Post, September 9, 2001. Although the District of
Columbia has sought on numerous occasions to have the Federal Monitor removed,
Federal Judge Hogan has continued the Monitor’s oversight.
17
The Criminal Case, brought after the TPO was overturned in an exparted court
proceeding, advocated for by the father, and of which the Father’s Counsel questioned
the Mother, is “reopened,” subject to reconsideration, and, in turn, the complete removal
of her plea of guilty at a future time on motion and hearing. Maryland v. King, Case No.
111512C and 111333C, Montgomery County Circuit Court.

27
Counsel Morris was the only counsel who had the extensive background knowledge to

cross examine the Father, who the Father’s attorney opportunely put on the witness stand

when Counsel Morris was sequestered based on a the Father’s counsel false claim that he

was to be called as a witness.

The Father Violated The Legal Standard For Calling Opposing Counsel As A
Witness and Achieved It By Violation of the DC Rules of Professional Conduct

This appears to be a case of first impression in the District of Columbia.

However, in the neighboring state of Maryland the leading case law on the subject of

calling an opposing counsel is VENABLE v. STATE OF MARYLAND, 672 A.2d 123, 108

Md.App. 395 (1996) gives some guidance:

...

We hold that, whenever the prosecutor calls defense counsel to the stand,
the trial judge must (1) require that the prosecutor make a detailed and complete
proffer of what he or she expects defense counsel's testimony will be; (2) afford
defense counsel an opportunity to respond; and (3) consider alternate methods of
presenting any evidence that the prosecutor is entitled to introduce through
defense counsel's testimony.

VENABLE, 108 Md.App. 395 (1996) (citations omitted)

Even though Venable involved a criminal case, the basic principles are the same,

particularly in light of the Supreme Court’s holding in McCarthy (that the Fifth

Amendment applies even when testifying in another case outside the criminal case). and

that a criminal case remained pending.

The Father’s counsel also violated Rule 3.4 of the DC Rules of Professional

28
Conduct,18 by calling Counsel Morris as a witness based solely on the Father’s Counsel’s

alluding to an alleged privileged conversation and other interactions between the Mother

and her counsel surrounding an unscheduled June 5, 2008 hearing in Maryland. Such

conversations and interaction would be inadmissible because of both privilege and

relevancy. Thus, having Counsel Morris sequestered based on that inadmissible evidence

was clearly improper. There was never a showing that whatever the Father’s Counsel

might have argued was relevant and not privileged in fact, could not have been obtained

through alternative methods short of calling Counsel Morris as a witness.

The case should be reversed and remanded, where Counsel Morris is allowed to

fully participate and represent his client, including during the cross-examination of the

Mother, and the direct examination of the Father.19

II. THE COURT ABUSED ITS DISCRETION WHEN IT REFUSED -- SOLELY


ON THE BASIS THAT THE COURT DID NOT CONSIDER COUNSEL MORRIS
“LEAD COUNSEL” -- TO CONSIDER MOTIONS, SUPOENAS AND OTHER
ACTIONS FILED OR TAKEN BY MOTHER’S COUNSEL MORRIS, DENYING
HER RIGHTS TO DISCOVERY AND A FAIR HEARING AND CAUSING
LACK OF CONSIDERATION OF ALL OF THE EVIDENCE AVAILABLE TO
THE COURT

The Court refused to recognize any actions taken by Mother’s Counsel Morris

prior to August 5, 2009. Prior to that date Mother’s Counsel has filed Subpoenas for

Deposition Duces Tecum Discovery of the physicians who treated the child and also the

18
3.4: A lawyer shall not:....(e) In trial, allude to any matter that the lawyer does not
reasonably believe is relevant or that will not be supported by admissible evidence, assert
personal knowledge of facts in issue except when testifying as a witness, or state a
personal opinion as to the justness of a cause, the credibility of a witness, the culpability
of a civil litigant, or the guilt or innocence of an accused;
19
Because the Court below had heard the improperly obtained information, this court
might consider ordering the remanded hearing before a different Court.

29
Father, Oppositions to Motions to Quash Those Subpoenas for Discovery, a Motion to

Compel Responses to Document Discovery on the Father, and Opposition to Defendant’s

Motion For Leave to File Late Counterclaim (6/1/2009), Contingent Response to

Counterclaim (6/1/2009), and a Motion to Strike and In Limine and Expedite Emergency

Hearing and Request to Call Dr. Joy Silberg As An Expert Witness (6/10/09). Many of

these documents were supported with critical evidence and information that the Court

needed to consider -- which it admits in footnote 11 of its Order, it did not.

All of these documents were filed by Mother’s Counsel Morris, after he had filed

a second praecipe to enter appearance (5/22/2009). In addition, the Mother’s other

Counsel (Long/Robinson) had already filed motions to withdraw (5/27/2009) and for an

extension of time (5/27/2009) specifically for the purpose to allow Counsel Morris to

respond to the Father’s Motions pending motions.

The DC Superior Court Rules of Civil Procedure clearly state that any member in

good standing of the District of Columbia Bar may enter an appearance, file pleadings

and practice in this Court. SCR-DOM 101(a). The rules go on to state that entry of

appearance after the first pleading is filed only requires that such an attorney to file a

preacipe. SCR-DOM 101(b). Counsel Morris did this twice before signing or filing any

of these pleadings. There is no dispute that Counsel Morris was a member in good

standing of the District of Columbia Bar.

It was clear error for the Court to refuse to acknowledge Counsel Morris’

representation of the Mother as of April 22, 2008, and it was highly prejudicial for the

Court not to consider the many filings Counsel Morris made on the Mother’s behalf prior

to August 5, 2009.

30
The case should be reverse and remand the case for consideration of the filings

made by Mother’s Counsel Morris, including in particular the Motion In Strike and In

Limine regarding consideration of the CFSA investigation. In that Motion, with

supporting undisputed evidence, it was shown in that the CFSA investigation referred to

by Mr. Toscano was both irrelevant and highly flawed. In addition, the lower Court on

remand should be required to grant the Subpoenas for Depositions Duces Tecum of the

Father’s intended expert, Dr. Scott Myers, and of CFSA James Toscano (who had ex

parte communications during the court proceedings with the Judge and who made

unsubstantiated claims that were prejudicial to the Mother’s case).

Only through allowing such discovery, and allowing all of the evidence to be

considered, will the lower Court be able to fulfill its “parens patriae” responsibility.

III. THE COURT’S REFUSAL TO ALLOW ALL OF MOTHER’S EXPERT


WITNSSES TO TESTIFY WAS AN ABUSE OF DISCRETION -- INCLUDING
WHERE THE COURT ADMITS THAT ONE OF THOSE EXPERTS WAS A
QUALIFIED HEMATOLOGIST/ONCOLOGIST

The Mother with prior court approval had presented three experts to testify on

August 5, 2009.

1. Dr. Robert Sklaroff, who had filed a medical neglect complaint with
CFSA, who the court acknowledged was an expert in
hematology/oncology, but challenged only as whether he specialized
in pediatric hematology/oncology.

2. Dr. Joy Silberg, with Shephard Pratt Hospital (Baltimore, MD), who
had filed a sexual abuse, medical neglect, and physical neglect
complaint with CFSA, and

3. Don Lehew, a handwriting expert who was to show that Dr. Pfeiffer’s
handwriting was found on certain medical documents alleged to have
been written by Dr. Scott Myers.

31
The Judge sequestered Dr. Joy Silberg and Don Lehew in preparation for their

being called as witnesses, but the Court never allowed them to be called. Similarly,

although Dr. Sklaroff was presented as a hematology/oncology expert, he was not

allowed to testify about the complaint he submitted to CFSA or his affidavit, that was

attached to the original complaint filed on April 22, 2009. The Court was clearly

familiar with Dr. Sklaroff’s qualifications from his affidavit, as it fully anticipated

allowing him to testify when it addressed the issue on April 23, 2009 (when the next

hearing was scheduled for him to travel from Pennsylvania to testify). Then, when he

makes the trip at great expense to the Mother, the Court refused to allow him to testify

despite acknowledging that Dr. Sklaroff is an expert hematologist/oncologist. Dr.

Skarloff was the only expert witness who had the expertise to testify about severe chronic

neutropenia.

Refusing to draw on the acknowledged expertise of Dr. Sklaroff, the Court issued

an order that contained information not supported in testimony or documents, and

misinformation whose origins exist in the many proffers of the Father’s Counsel.

The Court’s conclusion that Dr. Sklaroff not be allowed to testify is undermined

by the Court’s own order, which fails to identify any factor or difference in the proper

approach to a six year old with severe chronic neutropenia and that of an adult with the

same disorder.

Furthermore, by refusing to hear Dr. Sklarloff, the Court failed to learn that the

results of the Bone Marrow Aspiration (BMA) -- that was ultimately done by Dr. Myers

in response to the District of Columbia Medical Board Complaint -- called for more

testing to be done. That testing would be to determine whether the condition is being

32
caused by other causes, including being “induced by toxins”/drugs (see Prof. Dr. Welte

Letter, APP-140-143)

There is no basis in the record for any of the court’s findings with regard to

neutropenia and whether there was sufficiency in the treatments given; no expert testified

regarding those facts. More importantly the investigative tests (June 2009) showed that

that drugs are a likely cause of the condition. This situation calls out for a toxicology test

to determine what if any drugs are present in the child’s system. With the Father

claiming that the child is not receiving any drugs, it is reasonable to consider the father as

the source of those drugs (as he has access to them).

Thus, the Court abused its discretion by not allowing the Mother’s Experts to

Testify and by coming to conclusions based on misinformation and facts that were not

found anywhere in the presented documents or testimony of any experts.20 (see Otis

Elevator Co. v. Tuerr, 616 A.2d 1254, 1256 (D.C. 1992); Glorious Food, v. Georgetown

Prospect Place Associates, 648 A.2d 946, 1994 DC 186 (1994)).

CONCLUSION
Considering that was sought was an independent medical examination of the

child, that remedy should have been done without question by the court below, per In Re

DM.

Rather than do the obvious and necessary per In re M.D.L.D., the Court went to

great lengths not to know the facts, as illustrated by its refusal to consider any of the

20
The Court cannot rely on the testimony of the Father any more than she can the Mother
with regard to these matters -- as he has no demonstrated qualifications greater on this
technical subject than the Mother. Dr. Myer’s testified as an adversarial fact witness for
the Mother and his testimony does not support the Order’s conclusions either. In
addition, Dr. Myer’s is very inexperienced compared to Dr. Sklaroff, where the former
had only practices for a few years, and the latter for over thirty years.

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pleadings filed by Counsel Morris, the Court’s exclusion of Counsel Morris from the

Courtroom on bogus claims he was to be called as a witness, allowing the Court to be

prejudiced by James Toscano’s ex parte private meeting/testimony in chambers, its

refusal to allow any of Mother’s experts to testify, and the Court’s effective denial of any

discovery to allow development of the facts and the systematic presentation of the

evidence.

The Court should vacate the Order, remand for further proceedings, order an

independent medical evaluation, require that discovery be allowed, and provide a fair

hearing.

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