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HEDGES v. MUSCO
January 26, 1999
DANA HEDGES AND GEORGE HEDGES, ON BEHALF OF C.D., A MINOR, PLAINTIFFS,
RALPH MUSCO, INDIVIDUALLY AND AS PRINCIPAL OF NORTHERN HIGHLANDS HIGH SCHOOL; GREG MCDONALD; CATHY KIELY; NORTHERN HIGHLANDS REGIONAL HIGH SCHOOL BOARD OF EDUCATION; ALAN GEISENHEIMER, INDIVIDUALLY AND AS PRESIDENT AND A MEMBER OF THE NORTHERN HIGHLANDS REGIONAL HIGH SCHOOL BOARD OF EDUCATION; WILLIAM BEISSWANGER, INDIVIDUALLY AND AS PRESIDENT AND A MEMBER OF THE NORTHERN HIGHLANDS REGIONAL HIGH SCHOOL BOARD OF EDUCATION; MARY LAURENT; BARCLAY BLAYMAN; HAROLD DENIEAR; LYNETTE KRUGER; PATRICIA DUBIE; LINDA KEMPEY; NORA OLIVER; TINA MALIZIA; AND AS MEMBERS OF THE NORTHERN HIGH SCHOOL BOARD OF EDUCATION; URGENT CARE-WALDWICK; HEALTH NET MEDICAL GROUP; AND BARBARA NEWMAN, DEFENDANTS.
The opinion of the court was delivered by: Greenaway, District Judge.
This matter comes before the Court on the motion for summary
judgment of Defendants Ralph Musco, Greg McDonald, Cathy Kiely,
Northern Highlands Regional High School Board of Education, Alan
Geisenheimer, William Beisswanger, Mary Laurent, Barclay Blayman,
Harold Deniear, Lynette Krueger, Patricia Dubie, Linda Kempey,
Nora Oliver, Tina Malizia and Neal Strohmeyer (the "NHRHS
Defendants"), Urgent Care-Waldwick, Health Net Medical Group and
Barbara Neumann (incorrectly named in the Complaint as Barbara
Newman) (the "Medical Defendants") (collectively "Defendants").
This Court must also resolve the cross-motion for summary
judgment on Counts I, II, III and IV of Plaintiffs Dana and
George Hedges ("Plaintiffs").*fn1
This is a civil rights action under 42 U.S.C. § 1983.
Plaintiffs allege that the NHRHS Defendants subjected their
daughter, a student at Northern Highlands Regional High School
"NHRHS"), to an intrusive search including testing of bodily
fluids, without reasonable suspicion, in violation of the Fourth
and Fourteenth Amendments' protection against unreasonable
searches and seizures. Plaintiffs further allege that Defendants
disclosed the results of the search to NHRHS students in
violation of their daughter's right to privacy under the Ninth
and Fourteenth Amendments. Plaintiffs also assert a pendent state
claim for assault and battery against the Medical Defendants. For
the reasons set forth below, the Court shall (1) grant
Defendants' motion for summary judgment; and (2) deny Plaintiffs'
cross-motion for summary judgment on Counts I, II, III and IV.
On April 8, 1996, Plaintiffs' daughter, Tara Hedges ("Tara")
was a student at NHRHS
enrolled in Defendant Greg McDonald's math class.*fn2 At
approximately 9:18 a.m. on April 18, 1996, Tara entered Mr.
McDonald's classroom for her third period math class. Mr.
McDonald noticed that Tara's face was flushed and her eyes were
glassy and red. Her pupils appeared very wide. Further, Tara
seemed very talkative and outgoing even though she was usually
During math class, Tara obtained Mr. McDonald's permission to
leave the room to go get a drink of water. The water fountain is
located within view of Mr. McDonald's classroom door. However,
Mr. McDonald observed Tara go in the opposite direction of the
water fountain and disappear around the corner of the hallway.
Mr. McDonald testified that it was not consistent with Tara's
normal behavior to ask permission to go someplace and then leave
the room to go elsewhere. McDonald Dep. at 43:3-7.
Tara was gone for approximately ten minutes*fn3 Based on
Tara's appearance (the red and glassy eyes) and her
uncharacteristic behavior, Mr. McDonald concluded that Tara might
be "high", i.e., under the influence of drugs or alcohol.
The Northern Highlands Regional High School Board of
Education's Revised Drug, Alcohol and Tobacco Policy ("NHRHS
Policy" or "Policy") provides that:
Any staff member to whom it appears that
a pupil may be under the influence of
alcoholic beverages or other drugs on
school property or at a school function
shall report the matter as soon as possible
to the Principal or his/her designee. The
substance abuse counselor and nurse shall
be notified by the Principal/designee.
NHRHS Policy at 1, ¶ 1. In accordance with this Policy, Mr.
McDonald contacted a school administrator to report his suspicion
that Tara was high.
The NHRHS Policy further provides that the student suspected of
being under the influence of drugs or alcohol "shall be escorted
to the school nurse for an examination of any dangerous vital
signs." Id. at 1, ¶ 2. At the end of the class period, a
school security guard escorted Tara from Mr. McDonald's classroom
to the nurse's office.
The school nurse, Defendant Cathy Kiely testified that her
first impression of Tara when she saw her that day was "oh, my
God, she looked so high. . . . She just looked totally out of it.
She just didn't know where she was. Her eyes were red, they were
glassy, she looked stuporous, she looked high [She had a] [b]lank
look, staring into space, looking right through me, just out of
it." Kiely Dep. at 20:17-21:3. Nurse Kiely informed Tara that she
was suspected of being under the influence of drugs or alcohol
and she would have to take her vital signs. Nurse Kiely checked
Tara's vital signs and found that her blood pressure was elevated
but her pulse and respirations were normal. Although Tara's eyes
were bloodshot, her pupils were normal.
The school principal, Defendant Ralph Musco, came by Nurse
Kiely's office and saw Tara. He noticed that Tara's eyes appeared
red and glassy. He asked Tara why her eyes were so red and she
explained that she had been crying.
The NHRHS Policy further provides that when a student is
suspected of being under the influence of drugs or alcohol,
"[t]he Principal/designee shall immediately notify a parent or
guardian and the Superintendent and arrange for an immediate
medical examination of the student." Id. at 1, ¶ 3. In
accordance with the Policy, Nurse Kiely called Tara's father,
Plaintiff George Hedges, and asked him to come to her office.
When Mr. Hedges arrived, Nurse Kiely informed him that Tara was
suspected of being under the influence of drugs or alcohol. Mr.
Musco showed Mr. Hedges the pills they found in Tara's bookbag.
Mr. Hedges took the pills stating that he would find out what
Either Nurse Kiely or Mr. Musco told Mr. Hedges that Tara would
have to be bested for drug and alcohol use before she would be
permitted to return to school. Mr. Hedges asked where he should
take Tara to be tested. G. Hedges Dep. at 12: 15-17; 14:23-15.4.
Nurse Kiely told him that the school generally used Urgent Care.
Id. at 14:23-15:4. Nurse Kiely testified that she told Mr. Hedges
that the school would pay the bill if he used Urgent Care.*fn6
Kiely Dep. at 36:24-25. However, Mr. Hedges testified that the
issue of who would pay for the tests never came up. G. Hedges
Dep. at 13:25-14:7.
The NHRHS Policy provides that "[t]he examination may be
performed by a physician selected by the parent or guardian, or
by the school doctor if s/he is immediately available(4)27 If, at
the request of the parent or guardian, the medical examination is
conducted by a physician other than the school doctor, such an
examination shall be at the expense of the parent and not the
school district," NHRHS Policy at 1, ¶¶ 3 and 4. No one
informed Mr. Hedges that he could have his own physician perform
the drug and alcohol tests at his own expense. Kiely Dep. at
37:1-14. Mr. Hedges did not ask whether he could take Tara to
another doctor or facility other than Urgent Care for testing. G.
Hedges Dep. at 13:22-24.
When Mr. Hedges and Tara arrived at Urgent Care, they checked
in with the receptionist. The receptionist handed Mr. Hedges two
forms: (1) a registration and consent forms; and (2) a release
form. Mr. Hedges filled out both forms, signed his name at the
bottom of the forms and handed them back to the
receptionist.*fn7 Printed above Mr. Hedges' signature, the
registration and consent form states: "I CONSENT TO TREATMENT
NECESSARY FOR THE CARE or THE ABOVE PATIENT. . . . I HAVE READ
AND FULLY UNDERSTAND THE ABOVE CONSENT FOR TREATMENT, RELEASE OR
MEDICAL INFORMATION, INSURANCE AUTHORIZATION AND MY FINANCIAL
RESPONSIBILITY." Sherman Cert., Ex. B (Registration and Consent
While Mr. Hedges was waiting for Tara outside of the
examination room, he saw Defendant Barbara Neumann, the
phlebotomist, walking towards the examination room with a needle.
He asked Ms. Neumann why she had a needle and she replied that
Tara had to have a blood test. After hearing this information,
Mr. Hedges left Urgent Care and walked to a nearby pharmacy by
himself*fn9 He did not withdraw his consent allowing Urgent Care
to perform Tara's blood test.
Ms. Neumann attempted to draw blood from Tara's right arm but
was unsuccessful. She then attempted to draw blood from Tara's
left arm but was also unsuccessful. According to Ms. Neumann,
after the two unsuccessful attempts, she left the room and
summoned Dr. Foley. Tara testified, however, that Ms. Neumann
stuck her arms five times unsuccessfully before asking for Dr.
Foley's help. Tars also testified that when Ms. Neumann left the
room to get Dr. Foley, she left the tourniquet on her arm. Ms.
Neumann denies doing so. Dr. Foley was able to draw blood from
Tara's arm on his first attempt. Plaintiffs allege that Tara
suffered hematoma in both arms as a result of Ms. Neumann's
actions. In support of this allegation, Plaintiffs have submitted
photographs depicting Tara's arms following the blood test.
Latimer Cert., Ex. G. Later that day, Mr. Hedges contacted his
attorney, Warren Clark. The next day, April 9, 1996, Plaintiffs,
Tara and Mr. Clark met with Mr. Musco at 7:20 a.m. Nurse Kiely
called Urgent Care at approximately 7:30 a.m. that same morning
for the results of Tara's drug and alcohol tests. The tests
results were negative for drugs and alcohol and NHRHS readmitted
Tara in time for her second period class on April 9.
When Tara returned to school that day, a student approached her
and told her he had overheard Nurse Kiely on the phone when she
was obtaining Tara's results. The student told Tara that he heard
Nurse Kiely say, "Negative? Are you sure? You are kidding. I am
shocked." T. Hedges Dep. at 79:13-17; accord Kiely Dep. at
54:24-25. By the end of the school day many students knew that
Tara had been tested for drugs and alcohol. T. Hedges Dep. at
52:7-12. Thirty to forty students asked Tara what had happened
and asked to see the bruises on her arms. Id. at 52:1-53:3. They
asked if she had been caught using drugs. Id. at 52:24-53:10.
Plaintiffs filed suit on October 30, 1996. Plaintiffs allege
that there was no reasonable suspicion for the search including
the testing of bodily fluids. Plaintiffs allege that as a result
of the NHRHS Defendants' actions, Tara has been stigmatized by
her fellow students as a drug user. Plaintiffs further allege
that Ms. Neumann committed assault and battery by attempting to
draw blood without Plaintiffs' consent. Plaintiffs also contend
that the NHRHS Board of Education failed to train its staff
properly. In particular, Plaintiffs allege, staff members did not
know or follow proper procedures when a student was suspected of
being under the influence of drugs or alcohol.
The NHRHS Defendants filed a cross-claim against the Medical
Defendants for contribution and indemnification. The Medical
Defendants filed a cross-claim for contribution against the NHRHS
Defendants. All of the defendants have moved for summary
judgment. Plaintiffs have cross-moved for summary judgment on
Counts I, II, III and IV.
STANDARD FOR SUMMARY JUDGMENT
Fed.R.Civ.P. 56(c) provides for summary judgment when the
moving party demonstrates that there is no genuine issue of
material fact and the evidence establishes the moving party's
entitlement to judgment as a matter of law. See Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91
L.Ed.2d 265 (1986); Orson, Inc. v. Miramax v Film Corp.,
79 F.3d 1358, 1366 (3d Cir. 1996). In making this determination,
the court must draw all reasonable inferences in favor of the
non-movant. See Hullett v. Towers, Perrin, Forster & ...