The entire Eastern District Court of Appeals has recused itself from a divorced mom’s lawsuit against court-appointed professionals whom she alleges engaged in constructive fraud in denying her custody of her children.
Evita Tolu, an immigration attorney in St. Louis, sued psychologist Dr. James D. Reid, Ph.D., guardian ad litem (GAL) Elaine Pudlowski, and Jennifer Webbe Van Luven, who counseled Tolu’s 14- and 13-year-old sons at the time.
In addition to constructive fraud, Tolu alleged they breached their standard of care or breached their fiduciary duty.
As previously reported, Tolu’s lawsuit was dismissed on June 4, in part, due to quasi-judicial immunity and judicial immunity for court-appointed professionals. She appealed.
“In Missouri, there is no quasi-judicial immunity for experts who are privately retained or who are court-appointed,” Tolu told St. Louis Record.
Immediately after filing a notice of appeal, Tolu moved the court to recuse all 14 Eastern District appellate justices because Reid is married to Lawrence Mooney, former Eastern District Court of Appeals judge, even though Mooney retired from the Eastern District Court of Appeals in September 2019.
“When Dr. Reid was evaluating me, he stated multiple times that he is married into a very powerful, legal family in the state of Missouri,” Tolu said. “He told me his spouse is an appellate judge and his brother-in-law is a prominent tax lawyer. That was delivered to me in the context of Dr. Reid insulting me, calling me a liar, a drunk, an alcoholic, and a cheater. For one thing, I don’t drink alcohol.”
On Sept. 15, acting chief judge Kelly Broniec signed an order disqualifying the court.
“While the Court does not acknowledge an actual conflict of interest, the court grants the motion based on the appearance of a conflict,” Broniec ruled.
In response to the disqualification, the Missouri Supreme Court created a three-judge panel in appointing two appellate judges from the Western District and a judge from the Southern District.
“I don't know the judges,” Tolu said. “I’ve never heard of them. I know that it's better to have any judge from any other district than the Eastern District of Missouri, considering Dr. Reid's statements to me on several occasions that I should be very mindful because he is married into a powerful, legal family in the state of Missouri.”
Reid did not immediately respond to requests for comment but he argues in his Oct. 27 brief that he had no legal duty to Tolu because no psychologist-patient privileged relationship existed.
However, Tolu alleges she never claimed Reid as her psychologist.
“This is how his lawyer is positioning it,” she said. “I am suing Reid as an expert. He was court-appointed. I would never hire him to be my or anybody's psychologist. I actually thought psychologists followed industry standards and that they would do what they need to do ethically and professionally but he did not do that.”
Tolu's reply brief is due in two weeks.