As 'Take Care of Maya' trial nears conclusion, attorneys weigh in on complicated trial

As the civil trial of a Venice family suing Johns Hopkins All Children’s Hospital winds down, it will soon be in the jury’s hands to decide the outcome.

The Kowalski family sued the St. Petersburg-based hospital in 2018 for $220 million for complaints such as battery, intentional infliction of emotional distress, false imprisonment, and fraudulent billing, among others.

The family claims it was the hospital’s actions that led to Beata Kowalski taking her life after allegations of child abuse were reported to the abuse hotline and an investigation by the Florida Department of Children and Families led to a court order separating Maya from her family.

Kowalski family attorney: Trial is about parents' rights to child's medical treatment

Keep reading: Dr. Sally Smith testifies, as hospital cites 'chilling effect'

In October 2016, the family took then-10-year-old Maya Kowalski to All Children’s Hospital due to severe stomach pain, which they believed was a relapse of her Complex Regional Pain Syndrome, a disorder that impairs the central nervous system and heightens pain sensations. Maya had been diagnosed with CRPS in 2015.

While at the hospital, staff began to suspect possible child abuse, stating that Maya displayed inconsistencies in her behavior and symptoms.

The jury has spent the last more than five weeks hearing from dozens of witnesses and seeing a plethora of pages of documents, photographs, and videos.

The hospital’s attorneys believe the case is about standing up for mandatory reporters, while the family’s attorney argues this case is about parents’ rights to decide on the best medical treatment for their children.

Attorney discusses standard of care when reporting child abuse

Benjamin J. Fenton, a partner at Fenton Law Group LLP in Los Angeles, noted the case is timely.

“Those statutes need to be read very carefully, very narrowly, and these mandatory reporters need to be very well trained," Fenton said. "There needs to be levels within hospitals, where there's supervisory levels where they really understand the purposes of these statutes in terms of reporting abuse and taking rights away from parents.”

The hospital is not on trial for the reports made to the abuse hotline, as it is protected by Chapter 39 immunity, meaning that the two calls placed were made in good faith as further decided by a dependency court.

While mandatory reporters should be able to report suspicions of child abuse freely, Fenton said, it is also on the hospital to ensure a thorough enough investigation was conducted before reporting since there are such huge implications and liability if the report is wrong, like ruining a family’s life.

Read the latest: Former hospital social worker denies claims made against her

More trial coverage: Kowalskis testify about personal, economic impact for damages

He added that reporting abuse shouldn’t be used in situations where a doctor simply disagrees with the parents' approach to treatment.

Expert weighs in on conflicting info

During the course of the trial, the jury has heard contradicting evidence and testimony on more than one occasion.

Some of the biggest contradictions so far have included several All Children’s Hospital nurses and doctors who said they heard Maya Kowalski swear at staff at various times, while Maya asserted in her testimony that that never happened; and a DCF case worker testifying to the jury that it was her voice you could hear redirecting Beata Kowalski multiple times on a phone call with Maya, while Maya and her appointed guardian ad litem from the court said it was social worker Catherine Bedy.

Alyson Battaglia, a local attorney with Legler, Murphy and Battaglia LLP, who has represented the rights of the injured in medical malpractice cases, said it's not unusual for evidence and testimony to contradict each other in a trial. Each side is attempting to present the evidence that best supports their claims.

Ultimately, “witness credibility determinations are made by the jury,” Battaglia said, adding that if the evidence presented by one side is more convincing than the other, or if the jury believes that one witness is more credible than another, then the jury is entitled to “discount one witness’ testimony over another’s.”

'Take Care of Maya' trial: Maya Kowalski testifies about hospital experience

In case you missed it: Defense witnesses continue to question Maya's CRPS diagnosis

Attorneys on both sides have also had to navigate a minefield of motions and legal barriers while presenting their cases. There are certain topics the attorneys have had to avoid bringing up or have had missteps that have led to at least six mistrial motions and plenty of conversations with the judge outside the presence of the jury, often bringing frustrations to a boil.

These obstacles are in part due to motions in limine, a pretrial motion that excludes specific evidence or arguments that can be admitted. The motions limit the arguments by either side in the jury's presence.

Battaglia said motions in limine can be a helpful tool to exclude evidence or certain testimony from being presented that could be highly prejudicial to either side or to keep information that’s not relevant from clouding the jury’s decisions. She added it's not unusual for numerous motions in limine to be filed in a case such as this with voluminous evidence and multiple witnesses.

Battaglia explained it's not uncommon for there to be numerous objections and motions for mistrial in a trial that has gone on this long. In fact, if lawyers fail to object and move for a mistrial in a timely manner, they may not have preserved their client’s right to an appeal. Therefore, having objections and motions for mistrial on the record is crucial to the right of either party to appeal, Battaglia said.

Dependency court orders timeline and explanation

• Oct. 14, 2016 — The first dependency court order prohibited Beata Kowalski from any contact with her daughter but allowed Jack Kowalski to have supervised visits with his daughter with an appointed DCF supervisor. Kyle Kowalski could visit Maya without a DCF supervisor at any time. The first order also didn't prevent JHACH from setting up their own limits as far as other visitors.

• Nov. 10, 2016 — The second dependency court order allowed Beata Kowalski to have supervised phone calls by the guardian ad litem or a DCF case manager and allowed Beata to send letters and magazines to her daughter, with all materials reviewed to determine if they were appropriate prior to Maya receiving them. Jack and Kyle Kowalski were allowed unsupervised phone calls and supervised visits. The Kowalskis were able to also select two of Maya's friends and two family members to be vetted for supervised visits with Maya. The order also stated the hospital had to accommodate meetings with Maya and her attorney, Michael Kelly. Maya was also allowed to have her religious artifacts and be visited by a Catholic priest.

• Dec. 9, 2016 — This third order was a special order addressing Maya's birthday, allowing both Jack and Maya's uncle to visit Maya on her birthday on Dec. 11.

• Dec. 16, 2016 — The fourth order allowed Beata to have video conversations with her daughter that would be supervised by hospital staff, who could decide if the calls needed to be suspended as they saw fit. This order did not change the previous order about Jack and Kyle Kowalski's contact with Maya. This order said that Maya could have secure and private communications with her new attorney, Mark Zimmerman, from whom the jury heard from earlier in the trial.

• Dec. 27, 2016 — The last order allowed Beata Kowalski to have daily video calls with her daughter without being supervised by staff as long as Beata made no negative comments. Staff were still allowed to suspend the communications if they began to negatively affect Maya. The last order also allowed Jack, Kyle, Scott, and Wendy Kowalski from unlimited, unsupervised visits as long as there was a two-hour notice and did not make any disparaging remarks that would negatively affect Maya, at which point the hospital could suspend the visits.

• Jan. 13, 2017 — The Court entered an order discharging Maya from the hospital to her father and brother.

Gabriela Szymanowska covers the legal system for the Herald-Tribune in partnership with Report for America. You can support her work with a tax-deductible donation to Report for America. Contact Gabriela Szymanowska at gszymanowska@gannett.com, or on Twitter.

This article originally appeared on Sarasota Herald-Tribune: Attorneys weigh in on evidence in 'Take Care of Maya' trial