Neomi Escobar, as legal guardian for infant Jadiel Velesquez v. Newark Beth Israel Medical Center; Stephen Amaefuna, M.D.; Fidel Garcia-Fernandez, M.D.; Francis Viejo, M.D.; Jeffrey Lautin, M.D.; Suzanne Aquino, M.D.; Nighthawk Radiology Holdings Inc.; Nighthawk Radiology Services LLC; Newark Diagnostic Radiologists P.A.; State of New Jersey, Department of Children and Families, Division of Youth and Services; Nussette Perez; and Felix Umetitii / Newark Beth Israel Medical Center, Stephen Amaefuna, Fidel Garcia-Fernandez and Francis Viejo v. Joshua Velesquez and Vanessa Merchan / Jeffrey Lautin M.D. v. Vanessa Merchan, Joshua Velesquez, Overlook Medical Center, Herschel Kupper M.D., Thomas Mankiewicz, Gina Ocasio R.N., Glena Valdez R.N. and Emergency Medical Associates / Emergency Medical Associates v. Thomas Mankiewicz M.D., Herschel Kupfer, Joshua Velesquez and Vanessa Marchan
Type of Injury
CEREBRAL PALSY, SEIZURE DISORDER, BRAIN DAMAGE
Essex County, New Jersey
The jury found that the DYFS defendants had acted in a negligent manner with respect to their actions/inactions in handling Jadiel’s case, and that their negligence was a factual cause of Jadiel’s injuries.
According to the jurors, the DYFS defendants did not prove that any of their negligent actions or omissions were objectively reasonable, or that they acted with subjective good faith in all of their negligent actions or inactions.
The jurors determined that the DYFS defendants acted in a negligent manner in not removing Jadiel from the home, and that the failure to remove Jadiel was a proximate cause of Jadiel’s injuries.
The DYFS defendants did not prove that leaving Jadiel in the home was not palpably unreasonable, nor did they prove that Vanessa Merchan acted in a negligent manner, according to the jurors, who also found that the defendants did not prove that Luz and Ufredo Merchan acted in a negligent manner on July 16, 2009.
The jury determined that Jadiel’s damages totaled nearly $166 million.
On May 28, 2009, plaintiff Noemi Escobar reportedly contacted the New Jersey Department of Children and Family Services’ Division of Youth and Family Services (DYFS) to report suspected child abuse of her nearly three-month-old grandson, Jadiel Velesquez, because she observed that the boy had bruising on his face and blood in his eyes.
Escobar later stated that she reported that her daughter, Vanessa Merchan (Jadiel’s mother), was not taking good care of Jadiel, that he was not eating or sleeping well, and that Joshua Velesquez (Jadiel’s father) was an unmedicated sufferer of bipolar disease, a drug user, and had a history of domestic violence. According to Escobar, she reported that when she confronted Merchan about Jadiel’s injuries, Merchan started crying and admitted that Velesquez was abusing the child, and that she thought he had shaken Jadiel, which caused the boy to have blood in his eyes.
The DYFS hotline worker determined that this report required an immediate response, according to subsequently filed court papers. Nussette Perez, a DYFS supervisor, assigned the investigation to DYFS caseworker Felix Umetiti. Umetiti went to Escobar’s home and brought Jadiel, along with Escobar and Merchan, to Newark Beth Israel Medical Center, so that Jadiel could be examined for suspected child abuse. A physician diagnosed Jadiel with bilateral subconjunctival hemorrhages and mild ecchymosis on both cheeks. The physician reportedly told Umetiti that his impression was “suspected child abuse,” given the baby’s injuries and no plausible explanation for them. Umetiti interviewed Escobar and Merchan at the hospital, where they confirmed that Velesquez was an unmedicated sufferer of bipolar disorder with a history of domestic violence involving a former girlfriend. Umetiti observed bruises on Merchan’s arms, and she stated that they were due to rough sexual relations with Velesquez. Jadiel was treated and released to Escobar’s care.
On June 2, Umetiti interviewed Velesquez, who confirmed that he had been diagnosed with bipolar disorder and that he was not being medicated for his condition at that time. He also admitted to a prior psychiatric hospitalization and that he was on Social Security disability.
On June 3, Escobar called Umetiti to report that she had found a drug-paraphernalia pipe in the baby’s diaper bag. Umetiti responded and took pictures of the paraphernalia, which was determined to be a crack pipe. Umetiti and Perez reportedly then ordered drug testing of Velesquez as a number-one priority, as they determined that drug use in the home posed as an imminent risk to Jadiel. Merchan and Velesquez claimed that they did not know how the pipe got into the bag, and indicated that it likely belonged to Velesquez’s uncle. (Umetiti never spoke with this relative, Escobar later claimed.)
On June 9, Umetiti interviewed Velesquez’s ex-girlfriend, who reportedly stated that Velesquez physically abused her and that the reason they broke up was due to domestic violence. Also on June 9, Umetiti called Velesquez’s mother, who confirmed that Velesquez was bipolar and unmedicated for that condition. (Escobar later claimed that Umetiti failed to otherwise ask Velesquez’s mother about his mental-health history, including his prior psychiatric hospitalizations.)
Umetiti requested a police background check on Velesquez, which came back negative for New Jersey, but indicated that Velesquez had lived in Florida. (Escobar alleged that Umetiti failed to run the background check as to Velesquez’s time in Florida, and that if Umetiti had done so, his search would have revealed more than 18 arrests, including for violent offenses such as assault and battery, violation of domestic violence restraining orders, and firearms, theft, and parole violations.
On June 12, Umetiti prepared a case plan providing that Velesquez could not be left alone with Jadiel and unsupervised at any time, and that if DYFS discovered that the baby was left alone and unsupervised with Velesquez, the agency would have to file in court to remove Jadiel from Velesquez and Merchan’s custody.
On June 16, Escobar presented to a local police station to file a report of child abuse. She relayed her concerns that Jadiel was being left alone with Velesquez. DYFS received the police report generated following Escobar’s visit, and forwarded it to Umetiti and Perez.
On June 18, Jadiel’s parents took him to the emergency room at Overlook Medical Center, where he was diagnosed with a lacerated frenulum (the tissue connecting the tongue to the mouth). Merchan and Velesquez reportedly stated that the injury occurred during an attempt to feed Jadiel a bottle while in the car. (Escobar later alleged that the emergency-room physician did not check hospital records to determine if Jadiel had been seen there before. If the doctor had, she claimed, he would have seen that Jadiel was previously brought in on May 15, for pneumonia, and on May 23, for blood in his eyes. Escobar also alleged that the physician, who seemingly was satisfied with the parents’ explanation for the oral injury, should have suspected abuse and reported it to DYFS, as should have the nurses who saw the family on that date.)
On June 22, Escobar made a report with the Union County Prosecutor’s Office’s Child Abuse Unit. On June 24, the sergeant who followed up on Escobar’s report closed out the office’s file, concluding “[a]s a result of an investigation conducted by Felix Umetiti of the Division of Youth Family Services, allegations of abuse unfounded.” (Escobar claimed that at this point, the DYFS investigation was not done and no final determination as to abuse had been made.)
On June 26, Umetiti and a pediatric nurse met with the Velesquez/Merchan family. According to the nurse, Velesquez remained in bed for the entire visit, and she was unable to engage him in conversation. Jadiel was reportedly smiling and could track people and objects with his eyes. The nurse warned the parents about the dangers of allowing their pet ferret around young children. The ferret was subsequently observed out of its cage and walking around, while Jadiel was with his mother sitting on a mattress on the floor. The nurse reportedly told Umetiti to bring Jadiel to the Regional Diagnostic and Treatment Center (RDTC), a specialized child-abuse-evaluation facility under contract with DYFS. (Escobar later would argue that Umetiti was required to refer Jadiel to the RDTC center on a high-priority basis within a day after he started his investigation on May 28, but failed to do so.)
On July 16, 2009, Jadiel was taken to an emergency room after apparently having been assaulted by Velesquez. The boy had stopped breathing, and was treated for serious head injuries, both old and new in origin. On Aug. 20, 2009, DYFS officially determined that the allegations against Velesquez and Merchan had been unfounded. Velesquez eventually pleaded guilty to child abuse and aggravated assault of Jadiel, admitting that he had done so prior to May 28, 2009. Jadiel was adopted by Escobar and her husband, and Merchan and Velesquez’s parental rights were terminated.
Escobar filed suit on Jadiel’s behalf against DYFS, Umetiti, Perez, Newark Beth Israel Medical Center, Overlook Medical Center, and a number of other treatment providers believed to have been involved in examining Jadiel during the time period at issue. Escobar’s action sounded in negligence. (A number of the parties’ names, including Escobar’s first name, were spelled incorrectly in certain early-filed court records. The caption as listed in this report reflects those apparent spelling errors; all other sections of this report reflect what are believed to be the correct spellings of those party names.)
Merchan and Velesquez were brought in as third-party defendants by certain treatment-provider defendants. The two were unrepresented, did not answer any court pleadings, and did not appear at trial, court records indicate; court records also indicate that certain of the case’s treatment-provider defendants were brought into the action as third-party-defendants.
Prior to trial, Escobar reached settlements totaling approximately $7.5 million in resolution of claims against healthcare defendants. Plaintiffs’ counsel relates that moneys were contributed on behalf of Newark Beth Israel, Overlook Medical Center, and treatment-provider defendants listed as having been represented by counsel during the litigation, with Newark Beth Israel funding the majority of the aggregate settlement amount.
The suit then proceeded to trial as to the claims against DYFS and its employees.
Escobar’s suit alleged that after the nursing exam on June 26 took place, no further action was taken by DYFS with respect to Jadiel’s case — specifically, no further steps were taken to determine whether there had been abuse or neglect of Jadiel, and no one from DYFS checked in on the child, or attempted to ascertain if Velesquez was being left alone with him. According to Escobar’s suit, the only further entry made in the case records during this time period by Umetiti was for July 15, 2009, and stated that on that day he received the medical report regarding Jadiel’s May 28 visit to Newark Beth Israel.
Umetiti stated that he was on vacation from June 29 to July 20, 2009, during which time his supervisor, Perez, was responsible for Jadiel’s case. Perez, it was argued, made statements indicating that she did not devote any attention to Jadiel’s case during that time. However, counsel for Escobar and Jadiel argued, Umetiti’s timesheets showed that he was not on vacation during the June 29 to July 20 period, and was available to work on Jadiel’s case.
Escobar’s expert in child-protective services opined that the supervision at DYFS with respect to Jadiel’s case had been inadequate, incomplete, and in direct contravention of DYFS policies and procedures. There were multiple breaches at the supervisory level by Perez, according to the expert, with the result that the breaches of care at the caseworker level, by Umetiti, went unnoticed and/or uncorrected. The expert further argued that Perez had left her caseworker supervisor, Deborah Powell (whose name ultimately was referenced on the verdict slip), uninformed. The expert maintained that a reasonable caseworker supervisor, who was aware of a report of an abused or neglected infant, as had been Powell with respect to Jadiel’s case, had an obligation to read the child-abuse report provided to her and to know the details of the case. At the outset and throughout the investigation of the case prior to July 16, it was argued, Powell knew of Jadiel’s case but did not read the child-abuse report or ask any questions of underlings. The expert concluded that this, too, amounted to a violation of standard practices for a supervisor of a supervisor/investigator team, and that the supervisory failures were predictable and should have led someone at DYFS to foresee the July 16 attack on Jadiel. At least 17 violations of DYFS policy, governing law, and supervisor directives had occurred with respect to Jadiel’s case, estimated the expert.
The expert opined that Umetiti was fully aware that Jadiel’s observable injuries — facial bruising and blood in the eyes — were consistent with child abuse. Specifically, Umetiti seemingly recognized that Jadiel could not have injured himself, and that there was no valid or plausible explanation for the facial bruises. According to the expert, Umetiti and Perez should have deemed Jadiel’s unexplained facial bruises and blood in his eyes “red flag” injuries consistent with child abuse, and should have proceeded to complete their investigation utilizing that conclusion as their premise.
According to the expert, DYFS, through its own policy, was required to notify the prosecutor’s office when DYFS received the initial complaint on May 28; however, DYFS had failed to do so. Moreover, it was argued, the agency misled the prosecutor’s office when it advised that it was closing the case and that it deemed the report of child abuse unfounded. According to Escobar’s counsel, on May 28, Merchan, at her mother’s urging, showed Umetiti bruising on her arm (which Merchan blamed on “rough sex” with Velesquez). The expert faulted Umetiti for failing to appreciate the likelihood that Velesquez had abused Jadiel, given the bruises he clearly had inflicted upon Merchan and his history of domestic violence with his ex-girlfriend. Additionally, Perez allegedly instructed Umetiti to have Velesquez sent for a psychiatric evaluation at the outset of the investigation; however, that evaluation was never ordered, and Perez was aware of this fact, said the expert.
Based on the statements of Powell and Perez alone, DYFS should have removed Jadiel in early June, it was argued. However, contrary to DYFS policy and procedure, Jadiel’s case was improperly supervised and mismanaged, with the caseworker and supervisors failing to recognize the injuries he exhibited as red flags and that his was a high-risk case. By not removing Jadiel from Velesquez and Merchan’s custody, the DYFS staff had deviated from the relevant standard of care, concluded the expert.
The defense maintained that DYFS had properly and adequately handled Jadiel’s case, and that any fault to be found should be attributed to Velesquez and Merchan.
According to the defense, after the case plan was prepared and DYFS staff identified Escobar as the individual who should watch Jadiel while Merchan was working, Merchan and Velesquez moved next to her father and stepmother, Ufredo and Luz Merchan. On July 16, 2009, Merchan reportedly contacted her stepmother to tell her she was running late in returning home from work. The stepmother told Merchan that she wanted to wash her car, and Merchan, who was only going to be another 20 minutes, told her to have Velesquez watch Jadiel. It was after Merchan’s stepmother dropped off Jadiel with his father that Velesquez physically assaulted the boy, according to the defense.
Merchan’s father and stepmother testified they were unaware of the case plan prepared by DYFS. The defense cited Merchan’s testimony, in which she seemed to admit that she had deliberately lied to DYFS out of fear of losing her child, and that she knowingly allowed her stepmother to return Jadiel to Velesquez when doing so was in direct violation of the case plan.
The state did not call to the stand at trial a previously retained expert in child-protective services.