Thursday, September 25, 2008

We're working hard over here.

Poor Bean. During the night she woke up coughing and sneezing. It's so unlike her to awaken once put down, we knew something must be wrong. Sure enough, this morning, she was sneezing, coughing and snotting all over the place. "Here it comes," I thought. The start of the cold season.

The drastic change in weather in our neck of the woods makes it a challenge to adjust. The mornings are very cold, with the temperatures dipping into the 50's; but by midday, they are back into the 70's. Clearly not quite sweater and long sleeve weather just yet - particularly for Jordan, stuck in a classroom for most of the morning.

We made the best of, Bean and I. At home, we cuddled (I've come to the conclusion that Miss Mina has never met a stuffed animal she did not like), drank warm beverages, read stories, watched her new favorite movie (The Bee Movie), and baked some treats (Apple Cinnamon Squares).

Her appetite was ok during the day, and her energy level was pretty high. We'll see what tonight brings.

Jordan seems unaffected so far, although I did hear a random sneeze from him while at the table this evening. Maybe it's the cold, or it might have been some pepper in the air from the steak recipe I was preparing on the counter.

While I prepped dinner, the kids occupied themselves with their work.

Tonight's project - play dough birthday cakes, candles and toadstools (don't bother trying to understand. There is no explanation with this age group). They love this stuff. I've got to get back to making my own batches though. The stuff in the jar has such toxic smell to it. And it's so neon-y.

The best part of arts and crafts at the table is the conversation. I hesitate to use that word - conversation - since I'm talking about two and three year olds here. We're not exactly debating economic bail-outs or vice presidential qualifications. Instead, I usually get snippets of this or that. Little bits of color that make up the mental quilt of their lives.

Tonight, for instance, we all sat there happily clay-ing away. I looked up when I heard Jordan start humming the happy birthday song. The humming gave way to singing, except this was the version he shared:


Happy Birthday to You.
Happy Birthday to You.
You look like a Monkey.
And you smell like one too.

Me (shocked and horrified): Where did you learn that??!?

Jordan: Madagascar.

While I was in Pittsburgh this weekend, Monkey Sr. introduced Madagascar and The Bee Movie into our children's lives. Now, don't get me wrong. I am not anti-tv, or anti-cartoon. There's a time and a place for all of this. Like long car rides to North Carolina in a minivan crammed full of carp and a schedule to keep.

But there's something disconcerting about hearing your three year old recite a snarky, snotty little rhyming song. Some of these cartoons have these attitude heavy characters that are so not kid-like, to me. At least, they don't act like the kind of kids I want to live with. I mean, I know, one day my kids are going to be the same...but I guess I just want them to stay sweet and snark free as long as possible.

Given their parentage, I know that's asking a LOT.

Now, lest you judge poor Jeff to harshly, he's not all that bad.

Let me take this moment to congratulate him on a major work victory. Spearheading the team representing a mentally handicapped woman, Jeff won a significant victory in court on her behalf. Despite evidentiary hurdles, Jeff and counsel were able to convince a court that enough existed to go forward on constitutional claims. This is actually a much harder standard than it sounds. Her claim centers on abuse she suffered at the hands of her caregivers at psychiatric residential facility.

Here's the official write-up:

A team of New York O'Melveny lawyers led by counsel Jeff Trimarchi and associate Michael Berengarten recently achieved a significant pro bono victory on behalf of client RW, a woman with profound developmental disabilities who was neglected and abused at a state-run facility.

With the help of co-counsel New York Lawyers for the Public Interest (NYLPI), the O'Melveny team successfully defeated summary judgment in federal district court in New York, thereby affirming the constitutional rights of developmentally disabled individuals in state care. Finding that individuals who reside in a state-run facility have a constitutionally-protected liberty interest under the due process clause of the 14th Amendment to be free from physical, psychological, and emotional harm, including protection from self-injury, Judge Kenneth M. Karas of the United States District Court for the Southern District of New York denied all five defendants' motions for summary judgment. The judge also held that the Constitution requires that individuals receive adequate food, shelter, clothing, medical care, and conditions of reasonable care and safety regardless of whether they are deemed to be residing at that facility voluntarily or involuntarily.

The complaint asserts Section 1983 and constitutional claims on behalf of West against various government employees of the New York State Office of Mental Retardation and Developmental Disabilities (OMRDD). The defendants, ranging from developmental aides to the former Director and Deputy Director of the Hudson Valley Developmental Disabilities Services Office, are alleged to have abused and neglected West, or allowed her to be abused and neglected, while under their care and supervision.

In his 57-page decision, Judge Karas held that RW presented sufficient evidence for a jury to conclude that each of the defendants carried out, or were deliberately indifferent to, numerous instances of abuse and neglect which violated plaintiff's substantive due process rights. According to the court's recitation of facts, "Plaintiff listed approximately fifty-nine incidents of injuries she suffered while at the [residence]," including the "eye-opening allegations" that RW was struck by a staff member resulting in "two handprints" that were found on her body. In addition, O'Melveny submitted evidence that she was physically assaulted by another resident on at least eight occasions, and threatened with a hairbrush, twice gagged with a bib, and beaten with a hanger -- all by the same developmental aide. O'Melveny also alleged other actionable constitutional violations such as ongoing unhygienic care and inadequate and delayed medical treatment.

This case presented significant difficulties because West is non-verbal and incapable of giving testimony, and because there were no witnesses to several of the most egregious instances of abuse and neglect. In addition, O'Melveny was retained after discovery was closed and the deadline for dispositive motions was only months away. In a period of two months, Trimarchi, Berengarten, and New York associate Torello Calvani, reviewed boxes of documentary evidence and prepared a joint pretrial order, an exhibit list including over 200 exhibits, and a proposed jury charge and verdict sheet. After these submissions, all five defendants moved for summary judgment. The O'Melveny team, with support from its co-counsel NYLPI, interviewed and obtained a declaration from a key witness, researched, drafted, and filed three opposition briefs consisting of over 85 pages, and prepared an attorney declaration with over 70 exhibits, an omnibus counterstatement of facts and responses to each defendant's statement of facts. Thereafter, the team took numerous depositions of nonparty witnesses in a related case pending in the New York State Court of Claims, which testimony will be admissible in the federal action.

In July 2008, the court heard oral argument on the motions, which lasted over two and a half hours in front of an extremely active bench. Although there was no eyewitness to the most severe beating, Trimarchi successfully argued that the circumstantial evidence presented was sufficient for a jury to conclude that one of the defendants was the assailant. Trimarchi also convinced the court that the other allegations of abuse alleged against this defendant violated RW's constitutional rights.

Berengarten then successfully argued the opposition to three of the defendants' motions for summary judgment. First, he argued that a house supervisor who displayed a casual indifference to the violations could be held liable under a theory of supervisory liability. The court rejected as "entirely unpersuasive" that supervisor's argument that she could not be held responsible because plaintiff was "predisposed to suffering injuries" given her condition. The court held that such argument and "the attitude it reflects" was "potentially problematic for . . . a supervisor who was charged with providing Plaintiff with a reasonably safe and secure environment." To the contrary, the court held that "[t]he law demands more of those charged with protecting the most vulnerable in our society."

Berengarten also successfully argued that two high ranking officials without responsibility over the day-to-day affairs could be found personally involved in the underlying conduct based on their notice of, and deliberate indifference to, the ongoing deprivations to West and other residents of that facility.

"O'Melveny's commitment to pro bono work allowed us the time and resources to give this important matter the attention in deserved," said Trimarchi. "And it was extremely gratifying to see our case strategy result in a great decision from the court," he added.

"We hope that this case will not only improve the quality of life for our client, but will also affect necessary structural changes in the OMRDD regarding the detection of abuse and neglect, and thereby improve the lives of all residents within the system," said Berengarten.

Also in New York, partner Bill Sushon supervised the team, which also received valuable research assistance from 2008 summer associate Matthew Damm and 2007 summer associate Sarah Kirby, with additional support from professional paralegal Andrew Nadler, and assistant Joanne Mastropasqua.
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