A Missouri Court of Appeals has dismissed a divorced mother’s lawsuit against family court insiders whom she alleges engaged in constructive fraud when removing her two children from her custody.
In its Dec. 28, 2021 opinion, a panel of three Missouri Court of Appeal judges invoked the doctrine of quasi-judicial immunity in dismissing the claims against psychologist Dr. James D. Reid, guardian ad litem (GAL) Elaine Pudlowski, and Jennifer Webbe Van Luven, who counseled Tolu’s 14- and 13-year-old sons at the time.
“There is no reasonable basis to differentiate between guardian ad items and court-appointed independent psychological evaluators with respect to extending the common law doctrine of quasi-judicial immunity, both are appointed to provide neutral assistance in connection with the courts' judicial fact-finding function, both owe their principle allegiance to the court and the policy rationale underlying quasi-judicial immunity is served by extending absolute immunity from civil liability to both for acts within the scope of their expressly assigned judicial functions,” the opinion states.
However, Evita Tolu, a St. Louis immigration attorney who filed the lawsuit on her own behalf, argues that no neutrality existed during custody proceedings.
“There is no Missouri case law that says a court professional can lie, cheat, steal, alter evidence, destroy evidence, manipulate evidence, and withhold evidence,” Tolu told the St. Louis Record. “There are no Missouri decisions, and there are no decisions worldwide that say that experts can do any of that. Actually, the law says that they should be truthful.”
Tolu, who has filed a motion for reconsideration, said that if the Eastern District Missouri Court of Appeals denies it, she will apply to transfer the case to the Missouri Supreme Court.
“It's a sad day for Missouri parents and children,” Tolu added. “They are misinterpreting my facts to hold these experts unaccountable. This is legal abuse syndrome. That's what they are doing.”
The court’s opinion made the following determinations:
The claims asserted against Dr. Reid were appropriately dismissed based on the doctrine of quasi-judicial immunity, even though the family court did not have the authority to designate Dr. Reed as its independent mental health expert in a child custody proceeding.
“The court is basically saying that if there is a custody dispute and a psychologist or therapist is appointed to testify in the capacity of an expert, that it is not a discovery function like it would be in a personal injury case,” Tolu said. “It’s an appointment that the family court judge decides on its own. They mention it for future reference for future lawsuits.”
Pudlowski as guardian ad litem is absolutely immune from civil liability for the conduct alleged in Tolu's amended petition. Based on the common law doctrine of quasi-judicial immunity, the trial court's dismissal of count three of the amended petition on the basis of quasi-judicial immunity is affirmed.
“This sets the precedent that there is no protection of medical information and the guardian ad litem has no obligation to keep peoples' medical records protected and that is in violation of Missouri law that is in privacy statutes,” Tolu said. “Guardian ad litem standards for Missouri say that a guardian can never ever disclose anybody's medical information because of strict HIPAA rules.”
The court finds that the [Missouri Merchandising Practices Act] MMPA does not apply to Tolu’s transactions with the defendants.
“This means that no one who is ever involved in the court system in any capacity where an expert is fraudulent, negligent, deceiving, conniving, or commits illegal acts can be held liable under the Missouri Merchandising Practices Act," she said.