Harasz v. Katz

          OMNIBUS RULING ON DEFENDANTS' AND PLAINTIFFS' CROSS-MOTIONS FOR SUMMARY JUDGMENT

          CHARLES S. HAIGHT, JR. SENIOR UNITED STATES DISTRICT JUDGE

         By prior Ruling [Doc. 46] reported at 239 F.Supp.3d 461 (D. Conn. 2017) ("Conversion Ruling"), familiarity with which is assumed, the Court granted in part Defendants' motion to dismiss Plaintiffs' complaint, and converted that motion to dismiss in part into motions for summary judgment.

         Those conversions resulted in three motions for summary judgment, which this Ruling resolves.

         I. Procedural Background

         At the pertinent times, Plaintiffs Harasz and Wirth resided in the Town of Glastonbury, Connecticut, and took in foster children for adoption under the supervision of the Connecticut Department of Children and Families ("DCF"). In November 2011, at the initiation of DCF, Harasz and Wirth were arrested by Glastonbury police officers on several charges of misconduct with respect to certain adopted children in their care. Harasz and Wirth were charged with sexual assault, cruelty to persons, and risk of injury to a minor. A state court bench trial resulted in the acquittal of Wirth on all charges against him. The State subsequently dropped all charges against Harasz.

         Plaintiffs then filed a civil rights action in Connecticut Superior Court, which was removed to this Court on the basis of federal question jurisdiction. The defendants were Joette Katz, the DCF Commissioner; Elizabeth Ferreira, a DCF social worker; the Town of Glastonbury; and James Kennedy and William Trantalis, Glastonbury police officers. The individual defendants were involved, in one way or another, with the charging, arrests, or state proceedings against Harasz or Wirth. Plaintiffs alleged federal constitutional and state constitutional and law claims against various individual defendants. Specifically, Plaintiffs asserted claims for failure to train and supervise DCF employees; false arrest; malicious prosecution; and fabrication of evidence. The operative pleading is an Amended Complaint [Doc. 33].

         The Conversion Ruling dismissed all of Plaintiffs' claims against Katz and Trantalis. As for Ferreira, the only claims against her were for fabrication of evidence. The Court converted Defendants' motion to dismiss those claims against Ferreira into a motion for summary judgment. As for Kennedy, the only claims against him (and against Glastonbury for indemnification) were for fabrication of evidence and malicious prosecution. The Court converted Defendants' motion to dismiss those claims into a motion for summary judgment.

         Those conversions led to the summary judgment motions this Ruling resolves. Defendant Ferreira moves for summary judgment [Doc. 48] with respect to the counts in the Amended Complaint naming her as a defendant. Plaintiffs Harasz and Wirth move for partial summary judgment on liability [Doc. 51] against Defendant Kennedy. Defendants Kennedy and Town of Glastonbury move for summary judgment [Doc. 52] with respect to the counts in the Amended Complaint naming them as defendants.

         II. Factual Background

         These uncontested facts are drawn from the Parties' various statements of fact, filed in the format prescribed by Local Rule 56(a). See Docs. 48, 52-2, 59-1, 71, 73, 75-1, 76-2.

         During the pertinent times, Plaintiffs were citizens of the United States and the State of Connecticut. They resided together in the Town of Glastonbury, Connecticut.

         Defendant Elizabeth Ferreira was employed as a social worker by the Connecticut Department of Children and Families ("DCF"), assigned to its Manchester, Connecticut office.

         Defendant Town of Glastonbury, Connecticut is a municipality which operates, directs and controls the Glastonbury Police Department. Defendant James Kennedy is a Glastonbury police officer.

         All claims against named Defendants Joette Katz and William Trantalis were dismissed by prior Ruling [Doc. 46] of this Court. See 239 F.Supp.3d 461, 506-07.

         Plaintiffs advised DCF that they were willing to take in foster children for adoption, providing that none had past sex abuse issues. Over the years, DCF was responsive to Plaintiffs' offer. Prior to 2011, Harasz and Wirth adopted nine children, who were born during the years 1990 though 2006.

         The events underlying Plaintiffs' remaining claims, which survived the prior motion to dismiss and lie at the heart of the present summary judgment motions, relate to disclosures allegedly made by their youngest child, a boy born August 2006 and adopted by Plaintiffs in April 2007, identified throughout as "Doe #9." Doe #9 suffers from learning disabilities and developmental delay.

         Doe #9 and four of his siblings were in DCF's care and custody as of February 8, 2011, pursuant to an order of temporary custody. The siblings were removed from Plaintiffs' care following disclosures of abuse made by an older sibling, Doe #4.

         Defendant Ferreira was assigned to Doe #9's case as a treatment social worker on or about February 28, 2011. In early June 2011, Doe #9 began receiving therapy from Dr. Carol Kagel, a psychologist.

         On August 3, 2011, Doe #9 attended his ninth therapy session with Dr. Kagel. Dr. Kagel reported that, during the August 3 session, Doe #9 made a spontaneous disclosure of sexual abuse by Plaintiff Harasz. On or about August 9, 2011, Dr. Kagel, a mandated reporter, made a report of suspected child abuse to the DCF telephone hotline. On August 9, 2011, Defendant Kennedy received a call from DCF, alerting him to Dr. Kagel's report of Doe #9's disclosure.

         As a result of Dr. Kagel's report, Defendant Kennedy arranged for a forensic interview of Doe #9. On August 11, 2011, Doe #9 was interviewed at St. Francis Hospital and Medical Center, in Hartford, Connecticut ("the forensic interview"). The forensic interview was conducted by Ann Glaser, a diagnostic interviewer on the staff of the St. Francis Children's Center, and was video-recorded. Defendants Ferreira and Kennedy observed the forensic interview from behind a one-way mirror in an adjoining room. Glaser wore an earpiece during the interview, through which the observers could communicate with her. Ferreira and Kennedy were also equipped with devices which enabled them to hear what was being said in the interview room.

         Following the forensic interview on August 11, and according to the reports of Defendant Ferreira, on Friday, August 12, 2011, Doe #9 made a disclosure of sexual abuse to his foster parent, Lisa K. That same day, Defendant Ferreira supervised Doe #9 during a sibling visit at DCF's Manchester office. Ferreira reports that Doe #9 made a disclosure of sexual abuse to Ferreira during that sibling visit. Defendant Ferreira reported these additional disclosures to Defendant Kennedy on August 16, 2011.

         On September 1, 2011, Defendant Kennedy signed a five-page, 16-numbered-paragraph sworn affidavit captioned "Application for Arrest Warrant" and addressed to "A Judge of the Superior Court." Under the caption on the application reading "Name and Residence of Accused," the name of Plaintiff George F. Harasz and his Glastonbury address are typed in. Kennedy's affidavit supporting the arrest warrant application describes, inter alia, the content of the August 11 forensic interview, as well as Doe #9's disclosures to Kagel, Defendant Ferreira, and Lisa K. Defendant Kennedy consulted the videotape of the forensic interview in drafting his affidavit. The affidavit concluded that there was probable cause to believe that Plaintiff Harasz had violated Conn. Gen. Stat. § 53a-70 and § 53a-73 (sexual assault).

         On November 22, 2011, Judge Taylor of the Connecticut Superior Court, sitting in Manchester, signed the arrest affidavit, thereby converting that document into a warrant for Plaintiff Harasz's arrest.

         On November 30, 2011, Harasz and Wirth were arrested by the State of Connecticut authorities on charges of misconduct with respect to some of the adopted children in their care. Specifically, the Plaintiffs were charged, inter alia, with sexual assault, cruelty to persons, and risk of injury to a minor. Plaintiffs denied all charges. In September 2014, following a bench trial before a state court judge, Wirth was found not guilty of all charges against him. In October 2014, Harasz moved successfully for the dismissal of all charges against him. Plaintiffs' state court exonerations on these charges led directly to the federal constitutional and state law claims they allege in the present action.

         III. Standard for Summary Judgment

         The principles governing summary judgment motions are well established. Smith v. Champion Int'l Corp., 573 F.Supp.2d 599, 607 (D. Conn. 2008) (citing Gibbs ex rel. Estate of Gibbs v. CIGNA Corp., 440 F.3d 571, 575 (2d Cir. 2006)). A motion for summary judgment shall be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). If, after discovery, the nonmoving party "has failed to make a sufficient showing on an essential element of [his] case with respect to which [he] has the burden of proof," then summary judgment is appropriate. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party must "demonstrate the absence of any material factual issue genuinely in dispute" to be entitled to summary judgment. Am. Int'l Grp., Inc. v. London Am. Int'l Corp., 664 F.2d 348, 351 (2d Cir. 1981) (quoting Heyman v. Commerce & Indus. Ins. Co., 524 F.2d 1317, 1319-20 (2d Cir. 1975)).

         "[T]he mere existence of factual issues - where those issues are not material to the claims before the court - will not suffice to defeat a motion for summary judgment." Quarles v. Gen. Motors Corp., 758 F.2d 839, 840 (2d Cir. 1985) (per curiam). A fact is material if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "[I]f the evidence is such that a reasonable jury could return a verdict for the nonmoving party," then a dispute concerning the material fact is genuine. Id. All inferences and ambiguities must be viewed in the light most favorable to the nonmoving party. Rogoz v. City of Hartford, 796 F.3d 236, 245-46 (2d Cir. 2015). However, "mere conclusory allegations, speculation or conjecture will not avail a party resisting summary judgment." Cifarelli v. Village of Babylon, 93 F.3d 47, 51 (2d Cir. 1996) (citing Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990)). The court's function is to decide "whether, after resolving all ambiguities and drawing all inferences in favor of the nonmoving party, a rational juror could find in favor of that party." Pinto v. Allstate Ins. Co., 221 F.3d 394, 398 (2d Cir. 2000).

         These principles apply even where, as here, the Court is presented with cross-motions for summary judgment. Larsen v. Prudential Ins. Co. of Am., 151 F.Supp.2d 167, 171 (D. Conn. 2001) (citing Barhold v. Rodriguez, 863 F.2d 233, 236 (2d Cir. 1988)). "The movant's burden does not shift when cross-motions for summary judgment are before the Court. Rather, each motion must be judged on its own merits." Id. (citing Assoc. of Int'l Auto Mfrs., Inc. v. Abrams, 84 F.3d 602, 611 (2d Cir. 1996)).

         The nonmoving party "must present specific evidence demonstrating a genuine dispute." Gannon v. UPS, 529 Fed.Appx. 102, 103 (2d Cir. 2013) (citing Anderson, 477 U.S. at 248) (summary order). A genuine issue of fact exists when there is sufficient "evidence on which the jury could reasonably find for the plaintiff." Anderson, 477 U.S. at 252. The nonmoving party may not "rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment." Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir. 1986).

         IV. The Lothstein Affidavit

         Plaintiffs filed an affidavit by psychologist Leslie Lothstein, PhD, in support of their opposition to the Defendants' motions for summary judgment. Lothstein Aff., Doc. 62-8. Defendants object to certain of Dr. Lothstein's conclusions, arguing them inadmissable under the federal rules. Ferreira Reply Br. 4-5; Glastonbury Def. Reply Br. 5-6.

         Dr. Lothstein states, at paragraph 20 of his affidavit, "It is my opinion within a reasonable degree of psychological certainty that Doe #9 cannot tell the objective truth and present a valid, historical recollection." (emphasis added). Dr. Lothstein goes on to opine:

38. It is my opinion that Doe #9's lack of disclosure about Daddy Harasz during the 8/11/2011 forensic interview should have been a red flag that the prior alleged disclosure to Dr. Kagel was fundamentally flawed and thus suspect.

. . . .

40. Given the high stakes nature of this case, for Doe #9 to give an allegedly clear disclosure the very next day on 8/12/2011, when he was not able to verbalize any such disclosure during the forensic interview on 8/11/2011, raises a red flag and casts doubt on the veracity of such disclosure.

         I understand Dr. Lothstein to say, through the quoted paragraphs, that Doe #9's conduct during the forensic interview, in combination with Dr. Lothstein's professional opinion that Doe #9 "cannot" tell the truth, entirely discredits the veracity of Doe #9's disclosures to Dr. Kagel and Defendant Ferreira.^[1]

         I conclude that the quoted paragraphs of the Lothstein Affidavit are inadmissable. Affidavits submitted in support of, or opposition to, a motion for summary judgment "must . . . set out facts that would be admissible in evidence." Fed.R.Civ.P. 56(c)(4). At trial, experts may not testify as to the credibility of a fellow witness:

It is a well-recognized principle of our trial system that determining the weight and credibility of a witness's testimony belongs to the jury . . . . Thus, this court, echoed by our sister circuits, has consistently held that expert opinions that constitute evaluations of witness credibility, even when such evaluations are rooted in scientific or technical expertise, are inadmissible under Rule 702.

Nimely v. City of New York, 414 F.3d 381, 397-98 (2d Cir. 2005) (citations, alteration, and internal quotation marks omitted). See also Fed. R. Evid. 702. "[T]he rationale set forth by the Second Circuit could not be clearer: that the Federal Rules of Evidence do not allow one party to call an expert to opine about the tendencies or incentives of the other party's fact witnesses to lie or not to lie." United States v. Noze, 255 F.Supp.3d 352, 353-54 (D. Conn. 2017). See also State v. Greiner, 257 Conn. 797 (Conn. 2001) (admission of improper expert testimony vouching for the credibility of child sexual abuse victim was reversible error).

         Accordingly, Dr. Lothstein's opinions as to Doe #9's credibility, articulated in paragraphs 20, 38, and 40 of his affidavit, are inadmissable.^[2]

         Even if these assessments of Doe #9's credibility were admissible as evidence, Plaintiffs have not made a compelling case for their relevance, and admitting these paragraphs would have no ultimate effect on my resolution of the instant motions.

         At paragraph 39 of his affidavit, Dr. Lothstein opines, "This was a high stakes case and in my opinion the 8/11/2011 forensic interview was not properly used as evidence of an alleged disclosure against George Harasz by Doe #9. This should have been self-evident to anyone viewing the forensic interview." Defendants object to the admission of this paragraph, on the grounds that it draws conclusions beyond Dr. Lothstein's established expertise. Ferreira Reply Br. at 4; Glastonbury Def. Reply Br. at 6. I find that the first quoted sentence is inadmissable, as not based on any established expertise. Further, to the extent that Dr. Lothstein's conclusion "should have been self-evident to anyone viewing the forensic interview" (emphasis added), the conclusion is, by the expert's own admission, not a proper application of expert testimony, which should be limited to circumstances where "the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue."^[3] Fed.R.Evid. 702(a).

         For the foregoing reasons, I find that paragraphs 9, 38, 39, and 40 of the Lothstein Affidavit are inadmissable under the rules of evidence, and therefore may not properly be considered on a motion for summary judgment.^[4]

         V. Fabrication of Evidence

         Plaintiffs' claims for fabrication of evidence are alleged in Counts Four and Seven of the Amended Complaint. Those counts named as defendants Ferreira, Kennedy and Trantalis. The Conversion Ruling dismissed all claims against Trantalis, who accordingly disappeared from the litigation and is not involved in these summary judgment motions.

         The fabrication of evidence claims against Ferreira and Kennedy remained, and were converted into motions for summary judgment. As determined by this Court's prior ruling on Defendants' Motions to Dismiss, "Counts Four and Seven may be regarded as duplicative. They will be considered together." 239 F.Supp.3d at 488.

         The claims are brought under 42 U.S.C. § 1983, for fabrication of evidence in violation of Plaintiffs' Fourteenth Amendment right to due process of laws, and/or Fourth Amendment right to a fair trial.^[5] Amend. Compl. ¶¶ 198-202, 207-10. Plaintiffs allege that

The defendants knowingly created false and misleading evidence, twisted and blatantly misrepresented the 8/11/2011 forensic [interview] into gross perversion of the facts, fabricated new "disclosures" which were not witnessed or corroborated, colluded with each other and witnesses to create new "disclosures["] for the sole purpose of winning their case, not in the pursuit of justice.

The fabrication of evidence did not stop with the 8/11/2011 forensic but continued up through September 2014 . . . . From 2011 to 2014, the defendants colluded with each other and with witnesses, coaching them into new "disclosures" for the sole purpose of winning their case . . . .

Id. ¶ 199-200.

         In ruling on Defendants' Motions to Dismiss, this Court held that "[i]n the circumstances of this case, and on the record generated by the present motion to dismiss, it is apparent that if Plaintiffs are able to prove that the fabrication of evidence they allege actually occurred, Plaintiffs have established all the elements of a constitutional claim against some Defendant or Defendants." 239 F.Supp.3d at 492. Therefore, to defeat Defendants' motions for summary judgment on this claim, Plaintiffs need only establish a material issue of disputed fact as to whether either Defendant actually fabricated evidence.

         In the discussion that follows, the fabrication claims against Kennedy and Ferreira are considered separately. Kennedy's case has generated cross-motions: Kennedy moves for summary judgment on Plaintiffs' claim against him for fabrication of evidence; Plaintiffs cross-move for partial summary judgment on liability on that claim against Kennedy. Ferreira moves for summary judgment on Plaintiffs' claim for fabrication against her. Plaintiffs oppose that motion, but do not cross-move against Ferreira for summary disposition.

         A. As to Defendant Kennedy

         As to Defendant Kennedy, much of the Amended Complaint's claim for fabrication of evidence relies on his alleged falsification of the arrest affidavit. Specifically, Plaintiffs assert that Kennedy misstated or misrepresented statements made by Doe #9 at the August 11, 2011 forensic interview, which Kennedy observed: "Plaintiffs' claim is that the statements Kennedy made in his arrest affidavit in regard to the forensic interview were fabricated in that they were affirmative falsehoods in which he deliberately mischaracterized what Doe #9 said, combined with misleading statements and omissions." Pl. Br. in Opp. to Glastonbury Def. [Doc 62] at 19.

         The Conversion Ruling summarized the claim against Kennedy thus:

If when Kennedy drafted the arrest affidavit he knowingly and deliberately misstated or misrepresented what Doe # 9 said during the August 11, 2011, forensic interview, with the intended effect of inculpating one or both Plaintiffs in criminal offenses in order to obtain a judicial warrant, Kennedy is probably liable for fabrication of evidence.

. . . .

[T]he merit of Plaintiffs' claim against officer Kennedy for . . . fabrication of evidence will depend, at the end of the day, upon two pieces of evidence whose contents cannot reasonably be disputed. . . .The tape [of Doe # 9's forensic interview] is available. . . . Kennedy's affidavit is in the record. . . .Whether the contents of the affidavit accurately recite the substance of the interview, or materially misrepresent those contents, is a question forming the stuff of summary disposition by a trial judge or fact finding by a trial jury.

239 F.Supp.3d at 496-98.

         As explained in that Ruling, while these two key pieces of evidence were both technically available to the Court, consideration of the tape of Doe #9's forensic interview was inappropriate on a Rule 12(b)(6) motion to dismiss. The case has now reached the summary disposition stage, where the tape, as well as the affidavit, may be considered. In addition, the Court has received a certified transcription of the August 11, 2011 forensic interview, filed under seal [Doc. 50]. The transcript does not substitute for the viewing of the tape; it cannot convey the "physical setting and actions" accompanying the words of the interviewer and interviewee. See 239 F.Supp. at 497-98. Nonetheless, the transcript, whose accuracy is uncontested, is a useful common ground of understanding, from which this opinion will quote at will, considering it an accurate representation of the words, if not the complete context, of the August 11 interview.

         In their Opposition Brief to the Glastonbury Defendants' Motion for Summary Judgment [Doc. 62] and the supporting Rule 56(a)(2) Statement [Doc. 73], Plaintiffs make repeated attack upon the third-party sources upon whom Defendant Kennedy reportedly relied for portions of the arrest affidavit. See, e.g., Pl. R. 56(a)(2) Stmt. ¶ 3 ("Doe #9 was forced to attend inappropriate 'therapy' sessions with Dr. Kagel . . . Doe #9's lack of disclosure about Daddy Harasz during the 8/11/2011 forensic interview should have been a red flag that the report of the alleged disclosure to Dr. Kagel was fundamentally flawed and thus suspect." (emphasis in the original)). See also Id. ¶¶ 3, 9-11. To quote this Court's Conversion Ruling, "Kennedy may have included in his affidavit unpersuasive or valueless evidence, but he is not liable for the tort of fabrication of evidence unless he made it up." 239 F.Supp.3d at 497 (emphasis added).

         Accordingly, this opinion will limit its evaluation of the Plaintiffs' Rule 56(a)(2) Statement to those allegations of fact which pertain directly to alleged falsehood and misrepresentation by Kennedy. Factual disputes as to "actual fabrication or falsification of evidence" are material; factual disputes as to whether Defendant Kennedy merely "omitt[ed] potentially helpful information," such as "interviews with important witnesses and potentially exculpatory video evidence," are not material, because such omissions, standing alone, do not state a claim for fabrication of evidence by Kennedy. See Amory v. Katz, No. 3:15-CV-01535 (VAB), 2016 WL 7377091, at *9 (D. Conn. Dec. 19, 2016) ("Rather than accusing [detective defendants] of creating false evidence against him, Mr. Amory accuses them of omitting potentially helpful information; namely, interviews with important witnesses and potentially exculpatory video evidence," accusations insufficient in law to suggest the detectives "fabricated evidence in violation of Mr. Amory's constitutional rights" during the preparation of an arrest warrant).

         The analysis of the fabrication claim against Kennedy will therefore focus upon Plaintiffs' several assertions that the affidavit Kennedy drafted, as his application to Judge Taylor for a warrant to arrest George Harasz, contained significant material misrepresentations or distortions of what occurred during the August 11 forensic interview of the child Doe #9, as revealed by the tape and transcript of that interview.

         I will consider separately Plaintiffs' several criticisms of the rendition in the Kennedy affidavit of the contents of the forensic interview. But I preface that analysis by quoting ¶ 8 of the affidavit in its entirety. While the affidavit describes other incidents at other times and in different places, ¶ 8 is the place where Kennedy undertakes to describe the substance of what transpired during the interview. ¶ 8 states:

THAT the affiant observed the forensic interview of the victim through a one way glass mirror. The victim was asked who he lives with and he said, "Daddy" and "Dad." The victim said that "Daddy" is "Daddy Harasz." The victim identifies his penis as his "Weiner." The victim complains of a headache when he starts to talk about what "Daddy" does to him. The victim says that he gets in trouble and has to sit on the steps. The victim then pointed to his "Weiner" and he said that [name of a sibling, Doe #5, redacted] made him touch his "Weiner." The victim said that "Daddy grabbed his weiner" and the victim yelled, "stop it daddy".

         Notice should also be taken of ¶ 14 of Kennedy's affidavit, which recounts a number of incidents leading Kennedy to the conclusion that "the victim in this case remained consistent in what he discloses," and says about the forensic interview: "During the forensic interview on 08/11/11, the victim stated again, 'Daddy grabbed his weiner, then the victim yelled 'Stop it Daddy.'"

         In order to evaluate Plaintiffs' claim that Kennedy fabricated evidence against Harasz, the Court must carefully compare the video tape and typed transcript of the Doe #9's forensic interview. on the one hand, with what Kennedy said about that interview in the arrest affidavit submitted to Judge Taylor, on the other hand. That necessity arises from Plaintiffs' principal contention: the affidavit repeatedly falsely portrayed what was said or done during the interview, each time to Harasz's disadvantage.

         Plaintiffs contend on this motion that ¶ 8 of the affidavit, and its reprise in ¶ 14, contain a number of instances of fabrication of evidence by Kennedy. I consider Plaintiffs' charges separately.^[6]

         ******

         1. "Weiner"^[7]

         The arrest affidavit states at ¶ 8: "The victim identifies his penis as his 'Weiner'" Plaintiffs criticize this statement as "misleading" because "in fact, the term 'weiner' was suggested to Doe #9 by the interviewer - it does not appear to be a term that Doe #9 was even aware of." Suppl. Br. [Doc. 60] at 3.

         The interview transcript at page 8 documents the following exchange:

ADULT: Okay. Okay. Now, back to this part, this part that's circled and you didn't give me a name for it. Can you give me a name for that, what you use for that part of your body? Or do you want choices again?

CHILD: I want choices.

ADULT: Okay. Some people call that a penis, some people call that a wiener, some people call that a pee-pee.

CHILD: (Laughing) A wiener?

ADULT: Yeah. What would you like to call that part?

CHILD: A wiener.

ADULT: Wiener?

CHILD: (Laughing) That's a funny name.

         Plaintiffs seem to contend that it was the interviewer, not Doe #9, who "identified" Doe #9's penis as his "wiener," given that the interviewer suggested to the child the use of that term (among others) to signify that body part. The verb "Identify" is capable of several applications or meanings.

         The interviewer presented to Doe #9 three nouns to apply to a body part, and the child chose "weiner," a word that apparently amused the child because he prefaced his choice by laughing. That is the exchange recited by the transcript and visible on the tape.

         No fabrication of evidence by Kennedy is discernible in his description of it in his affidavit. Just as a statute (or a legal opinion) will be careful to define critical terms, Kennedy's affidavit accurately defines, for the reviewing judge, the terms Doe #9 used in the forensic interview. For the purposes of Doe #9's statements that follow, "Daddy" means Plaintiff Harasz, and "weiner" means penis. On this particular point, Defendant Kennedy has neither fabricated nor falsified any evidence.

         2. Headache

         The issue here arises out of references to headaches in the arrest affidavit written by Kennedy.

         In ¶ 8 of his affidavit, where Kennedy undertakes to describe the August 11 forensic interview, it is said: "The victim complains of a headache when he starts to talk about what 'Daddy' does to him." ¶ 13 of the affidavit says: "The victim complains of a headache just prior to disclosing things about 'Daddy.'" ¶ 14 says: "The victim consistently would complain of a headache just prior to him disclosing a new piece of information." Judging by the affidavit's phrasing, the references in ¶¶ 8 and 13 relate to utterances made during the forensic interview. The reference in ¶ 14 to headache complaints appears to relate to occasions other than the forensic interview.

         On these summary judgment motions, Plaintiffs "deny the references to headaches have to do with Daddy as they are deliberately mischaracterized and taken out of context." Pl. R. 56(a)(2) Stmt. ¶ 7. Plaintiffs' main brief [Doc. 51-1 at 4] argues that the quoted sentence from ¶ 8 of the Kennedy affidavit "is false and misleading. From the video it is clear that the 'headache' was engendered by the interviewer." Similarly, the brief criticizes the quoted sentence from ¶ 14 as "again false and misleading, as there was no observable link between headaches and Harasz from viewing the video. Again, the headaches are logically induced from the conduct of the interview." Plaintiffs' supplemental brief [Doc. 60 at 4] returns to ¶ 8 of the affidavit, and says of it: "Kennedy claimed the victim complains of a headache when he starts to talk about what 'Daddy' does to him.

         This is misleading and not accurate, as Kennedy attempted to tie headaches into sexual abuse when in fact Doe #9 referenced headaches in several contexts. Doe #9's first reference to a 'headache' is about dad's headache, not his own."

         In point of fact, there were three occasions during the forensic interview when the interviewer asked Doe #9 questions about physical abuse and/or Plaintiff Harasz and Doe #9 responded with references to headaches:

ADULT [social worker Ann Glaser]: Okay. You know what, it's probably better if you show me on the drawings what happens when you get hugs and kisses .

CHILD [Doe #9]: It gives me a bad headache.

ADULT: It gives you a bad headache? ...