Scanlon v. Cnty. of L.A.

92 F.4th 781

Rachel SCANLON; Steven Sawyer, individually and as Guardian Ad Litem for K.X. and G.X.; K. X., a minor; G. X., a minor, Plaintiffs-Appellants, v. COUNTY OF LOS ANGELES; Lourdes Olarte; Marisol Gonzalez; Angela Hashizume, Defendants-Appellees.

No. 21-55999

United States Court of Appeals, Ninth Circuit

Argued and Submitted June 15, 2023 Pasadena, California

Filed February 2, 2024

Appeal from the United States District Court for the Central District of California, Consuelo B. Marshall, District Judge, Presiding, D.C. No. 2:18-cv-07759-CBM-AS

Joseph S. Klapach (argued), Klapach & Klapach PC, Sherman Oaks, California, for Plaintiffs-Appellants.

Avi Burkwitz (argued) and Gil Burkwitz, Peterson Bradford Burkwitz LLP, California, for Defendants-Appellees.

Before: Jay S. Bybee and Morgan Christen, Circuit Judges, and Eric N. Vitaliano,^* District Judge.

OPINION

BYBEE, Circuit Judge:

Plaintiffs Rachel Scanlon and Steven Sawyer (together, the "Parents") have two young children, one of whom has severe autism. After consultation with medical professionals, the Parents received a recommendation for their autistic daughter to begin medical marijuana therapy. Following an anonymous report, social workers from the Department of Child and Family Services of the County of Los Angeles ("DCFS" or the "Department") investigated the report, obtained a judicial order authorizing them to remove both children, and placed them in foster care. Alleging numerous deficiencies in DCFS's investigative and removal processes, the Parents, on their own and as guardians ad litem for their minor children, brought suit against DCFS and individual social workers under 42 U.S.C. § 1983.

The district court granted summary judgment for the defendants on the majority of the Parents' claims. Scanlon v. County of Los Angeles, No. 18-CV-7759, 2021 WL 2420164 (C.D. Cal. May 21, 2021); Scanlon v. County of Los Angeles, 495 F. Supp. 3d 894 (C.D. Cal. 2020). The remaining claims went to trial, where a jury returned a verdict for the defendants. The Parents have appealed the district court's summary judgment rulings and bring one claim of trial error. We affirm in part and reverse in part.

I. FACTS AND PROCEEDINGS

A. Facts

The facts of this case are lengthy and sharply contested. The Parents have two minor children who, in the interest of anonymity, were referred to throughout the proceedings below as K.X. and G.X. At the time of the events in question, K.X. was nine years old; G.X. was five.¹ K.X. was diagnosed with autism when she was two-and-a-half years old. Because of her special needs, K.X. has received behavioral treatment at home, school, and in outpatient centers.

Around age five, K.X. began showing signs of aggression, such as hitting, scratching, biting, and kicking others. By age seven, these behaviors had turned on herself: K.X. would often bang her head against the wall and bite herself. These episodes grew worse and more frequent with time. By 2017, when K.X. was nine, she would suffer multiple bouts of aggression and self-harm every hour. Because of her violent behavior, K.X. struggled to participate in class, her private school canceled her after-school activities, and she was eventually asked to leave.

The Parents engaged professionals to help K.X. cope with her behavioral issues. Scanlon initially met with K.X.'s pediatrician, Dr. Elaine Gutierrez. Upon learning of K.X.'s aggression, Dr. Gutierrez prescribed Vayarin, a medication used to treat Attention-Deficit/Hyperactivity Disorder ("ADHD"). Dr. Gutierrez also referred K.X. to a psychiatrist, but K.X. was unable to take the psychiatrist's written, spoken, and typed tests, and the referral proved ineffective. Scanlon asked Dr. Gutierrez about trying other ADHD medications, but Dr. Gutierrez advised against them.

In the course of her conversations with Dr. Gutierrez, Scanlon inquired about medical marijuana as a possible treatment for K.X. Dr. Gutierrez replied that she did not have any experience with this approach. In February or March 2017, Scanlon attempted to schedule an appointment with Dr. Bonni Goldstein, a leading expert on pediatric medical marijuana who had treated more than a thousand autistic and epileptic children. At that time, Dr. Goldstein had a year-long waiting list, which meant she would not be able to offer any immediate solutions to K.X.'s behavioral problems.

In the meantime, Scanlon got in touch with CannaKids, an organization that provides guidance on medical cannabis for patients of all ages, to learn more about possible marijuana treatments. CannaKids referred Scanlon to Dr. Peter Mendelsohn, a board-certified anesthesiologist and pain management specialist in Los Angeles, who had some experience treating autistic children with medical marijuana.

On July 28, 2017, Scanlon consulted Dr. Mendelsohn. He gave K.X. a physical evaluation and concluded that she was a good candidate for treatment. Dr. Mendelsohn gave a recommendation for K.X. to begin using medical marijuana, which was valid for one month and required a follow-up visit to obtain any additional recommendations. Dr. Mendelsohn advised patients like K.X. to start marijuana treatment at the lowest possible dose and to watch for side effects. He observed that CannaKids shared this philosophy. He did not recommend or prescribe any particular dosage.

After obtaining Dr. Mendelsohn's recommendation, Scanlon ordered THC² oil from CannaKids. For dosing, she worked with Janie Maedler, a dosing specialist at CannaKids. Maedler, who lived outside California and was not a licensed medical provider, was the mother of an autistic child and had advised other parents with autistic children. Maedler recommended giving K.X. 0.2 milliliters of THC oil for a week and then noting her response. According to Scanlon, the difference in K.X.'s behavior "was like night and day." Her tantrums and aggression decreased, and she was more compliant and better behaved in school. After a week, Maedler suggested that Scanlon slightly increase the dosage to see if the improvements in K.X.'s behavior would continue. Scanlon did so and thought that K.X.'s progress was "even better."

On August 28, 2017, K.X. had a follow-up phone call with Dr. Mendelsohn. He recommended that she continue the regimen and issued a second recommendation for medical marijuana, which was valid until the following July.

K.X.'s new treatment did not go unnoticed at school. Alida Turner, K.X.'s teacher, knew from conversations with Scanlon that K.X. was on a new medication, although she did not initially know she was taking medical marijuana. Turner thought K.X. was better behaved and "more talkative, compliant, .... [and] calm." During this period, Turner texted with Scanlon and told her, "[I]t's working. I can see. I can work with her better." She reported to Scanlon that the new medicine was "doing good" and that when K.X. was not taking the medicine, she was "more aggressive." At some point, Turner learned that K.X.'s new medication was marijuana-based.

In September, the DCFS child welfare hotline received two separate anonymous referrals. These reported that K.X. had arrived at school lethargic, with glazed eyes, and apparently under the influence of marijuana. On September 15, social worker Lourdes Olarte was assigned to investigate the referrals. That same day, Olarte went to K.X.'s school and spoke with Turner. Many details of this visit are disputed. Olarte reported that Turner told her that "school staff"—never identified—had smelled marijuana on K.X., although Turner herself had not. Olarte further claimed Turner told her that K.X. "appeared to be under the influence, .... giggly one moment and overly calm the next"; that K.X.'s eyes were "droopy," and she showed "delayed response"; that K.X. was more "mellow" and "s[at] out during recess"; and that K.X. was "so affected by [her] medication" that she had trouble keeping her balance and was "unable to write her name or keep her pencil straight." Turner contradicted these observations in her deposition. She claimed that she never observed K.X. behaving in an intoxicated manner and that, if she had, she would have called someone to report it. Turner also testified that, although she told Olarte that K.X. was "mellow" and "giggly one moment and overly calm the next," she never claimed that K.X. was "under the influence," stumbling, that her eyes were "droopy," or that she was unable to write her name or keep her pencil straight.

Later that same day, Olarte spoke to Scanlon at home. The parties also disagree about what happened during this encounter. Scanlon claims that Olarte told her there had been a report of K.X. "having some difficulty with [her] balance and ... [that] someone had smelled something on her breath." Olarte asked directly about K.X.'s medications, so Scanlon assumed that Olarte had learned of K.X.'s medical marijuana treatment from her school. She recalls showing Olarte the THC bottle and letting her handle it and read the label. Scanlon says that she told Olarte that K.X. was receiving medical marijuana therapy under the supervision of Dr. Mendelsohn, a trained physician; that she offered to send her a copy of Dr. Mendelsohn's recommendation via email; and that she told Olarte about CannaKids and said Olarte could contact Maedler through the organization's website. Scanlon also asserts that when Olarte expressed concerns about THC storage and safety, the Parents purchased a lockbox that same day or the very next. Three days after Olarte's initial house visit, Scanlon sent her a message in which she provided the email address of the CEO of CannaKids and indicated that someone there would be willing to speak with her.

Olarte paints a very different picture of her meeting with Scanlon. She contends that Scanlon was uncooperative and refused to divulge information about the doctor supervising K.X.'s treatment, the dosage of the THC oil, or K.X.'s sister, G.X., whose details were...