Nobody Should Believe Me - Kowalski v Johns Hopkins overturned with Ethen Shapiro

Episode Date: November 6, 2025

In this episode, Andrea sits down with Ethen Shapiro, trial counsel for Johns Hopkins All Children’s Hospital, to unpack the landmark appellate decision overturning the $200 million verdict in the Kowalski v. Johns Hopkins case. Ethen explains how the ruling reinforces the immunity given to mandatory reporters acting in good faith when reporting suspected abuse. Together, they explore how the decision challenges the “medical kidnapping” narrative and clarifies that the hospital’s actions were guided by law and necessity, not malice. The discussion also highlights what this ruling could mean for similar cases nationwide, where lawsuits against hospitals and social workers are on the rise.  *** Tickets for NSBM Live - Seattle 3.18.26 https://tickets.thetripledoor.net/eventperformances.asp?evt=2181 Order Andrea’s book The Mother Next Door: Medicine, Deception, and Munchausen by Proxy.  Click here to view our sponsors. Remember that using our codes helps advertisers know you’re listening and helps us keep making the show!   Subscribe on YouTube where we have full episodes and lots of bonus content.  Follow Andrea on Instagram: @andreadunlop Buy Andrea's books here.  For more information and resources on Munchausen by Proxy, please visit MunchausenSupport.com The American Professional Society on the Abuse of Children’s MBP Practice Guidelines can be downloaded here. Learn more about your ad choices. Visit podcastchoices.com/adchoices

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Hello, it's Andrea, and today we are interrupting our special coverage of the preventionist to bring you some highly relevant and related content. And that is our conversation with Ethan Shapiro, the lead attorney for Johns Hopkins All Children's Hospital. We are discussing the appellate opinion that was rendered last week overturning the $211 million verdict that was awarded in the civil trial two years ago. Kowalski v. Johns Hopkins All Children's was, of course, the subject of the movie Take Care of Maya and a tidal wave of media coverage, including a New York magazine piece written by Diane Neri that almost entirely obscured the extensive evidence of the abuse that Maya Kowalski had endured

up until the moment of her removal from her parents' custody. Neri's piece instead painted a picture of a rogue and overzealous child abuse pediatrician, in this case, Dr. Sally Smith. Sound familiar? The fact that this appellate decision dropped on the day before the preventionist went wide is poetic, and I'll admit, at least a little cathartic for me. During the Kowalski trial, I was, at least to my knowledge, the only person in the media who is in support of the hospital's actions,

which, after years of researching and studying this case, I believe, almost certainly saved Maya Kowalski's life. I covered this case extensively in the third season of my show, and I'm going to be revisiting that coverage in more detail soon. But as we unpack this court ruling, I want to highlight what Gregory Anderson, the lead trial attorney, who has since been fired by the Kowalskies, or on that later, said that this case was about in an interview he gave during the trial. quote, this case is about individual freedom. The freedom of parents to be able to make their own decision to what is in the best interest of their child based on their own gathering of knowledge and their own request of information. In an interview this past week following the appellate reversal, Anderson mentioned that Chapter 39, which provides immunity to mandatory reporters in the state of Florida, was a, quote, difficult statute and that he, quote, hopes the legislature does

something about that. However I feel about Gregory Anderson, I appreciate his willingness to be direct about what this trial, and the entire medical kidnapping narrative and attack on child abuse pediatricians, is actually about. It's not about bad doctors or making a more equitable and less harmful child welfare system. It's about parents' rights. I believe that children should have human rights independent of their parents. I believe parents should not have the right to abuse their children. I believe that children have an inalienable right to be safe in their homes and that members of the community should step up to protect them when their parents can't provide that. Now, since the 1970s, when CAPTA passed, this has been the law. But there are people who disagree

with this. At the core of this conversation is a deeply regressive movement that wants to undo mandatory reporting laws and the protections that we currently extend to mandated reporters. Much like so many things that people my age have taken for granted, mandatory reporting laws are under threat, and if this verdict had stood, I believe we would have lost them. There can be plenty of reasonable discussion and disagreement about how to handle the question of how to protect children, but that's not what take care of Maya or Diane Neary's reporting on the Kowalski case or on Dr. Jensen for the preventionist is. Don't let them pretend otherwise. I've been encouraging you, as knowledgeable listeners of this show, to get in touch with Serial if you share my concerns. And I

appreciate those of you who've done so, so I'm going to keep encouraging that. If you have something to say about their coverage, let them know at serial shows at nytimes.com or by leaving them a review on Apple Podcasts. We need to start asking the hard questions about whose voices are being heard right now and whose are being silenced and forgotten. It's time to make the people pushing this agenda say the quiet part out loud. Well, hello, Ethan. Thank you so much for joining us. If you could start by just introducing yourself and who you are in the context of what we're talking about. Hi, Andrea. Good afternoon. I'm Ethan Shapiro. I'm trial counsel for Johns Hopkins All Children's Hospital in the case that we defended against Maya Kowalski. So just this week, as we're recording this, a huge decision has come down from the appellate court.

that was reviewing the verdict that was entered almost two years ago now. I believe it was November 9th, 2023, for over $200 million in favor of the Kowalskis. Can you talk us through this appellate decision at the opinion the judges wrote and kind of just explain what's been overturned and what their reasoning is for overturning those pieces? Great question. So big picture. The second district court of appeals, which is the appellate court that oversets the trial court, issued a very lengthy opinion that vindicated Johns Hopkins, all children's hospitals' opinion from the start of this case, which is essentially that the activities that were alleged in this case to have been

negligent are all covered under Chapter 39 protection, statutory immunity. And the decision is obviously very important for my client in the short term with regard to this case, but this is what I would call a landmark decision supporting mandatory reporters across the country. It not just finds that my client participated in good faith in the reporting of the concerns of abuse of Maya Kowalski, but that virtually all of the activities complained about by the Kowalski's are also covered under the good faith mandatory reporting. So we look at this case as one that vindicates my client's position. Yeah. And I wanted to dig into this question about Chapter 39 immunity, and of course that's the Florida statute, but every state in the country

has some version of mandated reporting. Different people in professions are subject to that in different states. Florida is everyone, I believe. But in terms of how the immunity for the hospital, how that applies here, can you talk us through what immunity means in this context and why it's important? So, Andrea, let's take a step back so your listeners can understand what immunity is. Most people are familiar with the different standards people have to show in our court system to establish liability or criminal conduct. As we say in the civil justice system, cases are decided by a preponderance of evidence. And if you wanted to visualize that, if you're the plaintiff, you have to move the ball across the 50-yard line to win. You have to tip the scales just slightly

in your favor. In the criminal context, we describe that as being beyond a reasonable doubt. people quantify that as saying at least 95% sure because the American criminal justice system would rather see 19 guilty men go free than one innocent man go to prison. We're talking about an entirely different subset of liability and protections when we talk about immunity. The word immunity, as we've always argued it, and as the second district court of appeals has now affirmed, means you cannot be liable, period, whatsoever, you can't be sued, and the cause of action cannot go forward against mandatory reporters as long as they're operating in good faith. And what that means is it's a threshold question for the judge interpreting the facts in front

of them that if the mandatory reporter be at a hospital, teacher, police officer, and a lot of States journalists, if they're acting in good faith in either the reporting of suspected child abuse or their participation in child abuse investigations, they cannot be sued. They cannot be in front of a jury for any of those issues. Yeah. And can we talk about, you know, really, I think, what many both Netflix film watchers and trial watchers missed because of the way that the information was presented at the trial. And so I don't sort of blame. people for missing this. But is that this verdict would have put mandatory reporters in an impossible, you know, legal and ethical double bind by allowing this sort of civil litigation

to go forward. Can you talk a little bit about, you know, what the legality is and what the expectation is for mandated reporters? So when the legislature is not just in Florida, but around the country decided to write these mandatory reporting laws. The collective decision is that they wanted the zealous protection of children and vulnerable adults and the people subject to mandatory reporting. They wanted to err on the side of inclusion. The same way we just spoke about in the criminal justice system, they want to err on the side of not sending guilty people to prison. In this situation, the way the legislature wrote the laws was they wanted the zealous protection of the most vulnerable in our society. So they wrote the laws in two ways.

On the front end, they wanted as a requirement, not discretionary, but as a requirement for certain professions, health care providers, teachers, firefighters, police officers, that they are absolutely required to report suspicions, not conclusions, not I'm sure of this. if you have a reasonable suspicion that a vulnerable person, including a child, is being harmed, you have to report it to DCF. They made that so mandatory that they said, if you fail to do so, you're liable for a felony. Like, we're talking about jail time for the people that are mandatory reporters. Now, the bargain that they made with mandatory reporters, again, not just health care workers, but firefighters, teachers, police officers, were that as long as your report is being made in good faith,

you have immunity, you have complete protection from being prosecuted, from being sued, as long as you're participating in good faith, which is exactly what all children's position had been from the start. And, Andrea, I would remind you that from the very first day that we took this case, we were able to successfully prove to the trial court in this case that the call that all children's made to DCF, about Maya Kowalski was in good faith. And you may note in the opinion that when the Second District Court of Appeal on page 15 of their opinion wrote that the trial court, quote, very easily determined that Johns Hopkins All Children's Hospital had reasonable cause to report suspected child abuse to the department hotline. That was never in dispute and therefore

that was my client's position that we get immunity for not just the phone call, but for for all acts of participation done in furtherance of the child abuse investigation so long as they were done in good faith. Yeah. And I mean, I remember from watching the trial that it appeared to me, notably not a lawyer, but, you know, that Judge Carroll was taking the position that he could isolate that piece of the event and say that that was immune, but then all of the actions that followed, you know, in particular the stuff that relates to the shelter decision and, you know, these other decisions that the hospital was making in following the shelter orders from the court, that those actions were not immune and that those actions were things that they could be

sued for. And obviously, the appeals court has really strongly disagreed with him and really called out in this opinion that Judge Carroll was misinterpreting the law. terms of Chapter 39. Can you speak to that piece a little bit? Sure. So on page 17 of the opinion, the second district, the three-judge panel unanimously decided this in favor of the hospital's position. And what the appellate court said was that the trial court committed error and not considering the entirety of the section, which means not just the phone call, but everything that all children's did in conjunction with the mandatory child abuse reporting and investigation. And what I really want to highlight for your audience, Andrea, is what is what the appellate court found when

reviewing the entire record. And this was the biggest record ever submitted to this court. I'll quote from the opinion on page 17. Nothing in this record suggests that all children's hospitals participation in implementing the dependency court orders as it was required to do was not done in good faith. So the appellate court in reviewing this entire record noted what you said, that all children's hospital gets immunity for both the reporting and participating in the child abuse investigation and activities. But the appellate court went one step further and said, not only do you get immunity, but when we look back at the entire record, we don't see anything that all children's did with regard to the, for example, implementation of the dependency court orders

that was done in anything other than good faith. Yeah. You know, one of the things that we're talking about quite a bit on the show right now is a number of these. similar lawsuits around the country. There's one in Lehigh, Pennsylvania, there's one in Minnesota, there's one in Michigan, there's one in California. And these lawsuits are remarkably similar. Many of them involve much housing by proxy cases. And they're centered on similar legal claims, right? You have a lot of the false imprisonment, things having to do with hospital surveillance, intentional infliction of emotional distress, like a lot of very similar claims. that are in this lawsuit. So I wanted to ask you about, you know, obviously this is a pretty strong

rebuke on the trial court for letting this even go to trial. What do you think the impact will be on other judges who are looking at similar lawsuits? So crash course in the binding effect of opinions such as this. This opinion is now binding on all trial courts in Florida that are dealing with this issue. To the best of my knowledge, this is probably the most pervasive opinion in the state of Florida on this question of who gets immunity and where does that immunity extend. This decision is not binding, meaning trial court in Pennsylvania, for example, is not required to follow this. However, we call this persuasive authority in the law where the lawyers defending health care providers and mandatory reporters, whether they be in Pennsylvania

or California, or any state in our union can go to that trial court and show them this very well-reasoned opinion and make a persuasive argument why the courts in those states should adopt the same position that the Florida courts have now adopted in a very well-thought-out and reasoned decision. So ultimately, I think this decision is going to move the needle, perhaps dramatically, back into the corner of the mandatory reporters and afford them the protection that the statute shoots say that they get. Yeah. I mean, and this is a little bit of editorializing, but, you know, I think always worth noting that some judges are appointed, but many judges are elected, and obviously they are all, as we all are concerned about their careers. I'm assuming that judges

don't love having their decisions be overturned by higher courts. And I'm wondering, and maybe this is not a question that you can answer. But, you know, I just, I wonder about, like, just also the strength of sort of this decision in terms of, like, the judge's errors in court, which are such a highlight of this opinion. Like, what is the message? And maybe we sort of did cover this already. And I'm getting my brain in a pretzel. But in terms of, like, what it tells, yeah, other judges about how to interpret similar laws in their state. Yeah. So I think what this does, because it's a very comprehensive 48-page opinion, what this does is gives directions to the trial courts that are wrestling with this question and wrestling with it in good faith,

which is where do the good faith protections extend to? And what the Second District Court of Appeals in Florida did, looking at this huge record, and as your viewer saw, eight weeks of trial, a lot of different witnesses, what they've ultimately said is this. The good faith protections afforded by the statutes in Florida, which are very similar to the statutes everywhere, are going to cover all activities that mandatory reporters engage in as long as they're done in good faith. And it's a threshold question that if it's done in good faith, you cannot be sued. That's the reassurance that I think that the mandatory reporters were looking for. Do we have these protections? Are we worried about, you know, hair splitting where I can

make the call, but then if I show up at a dependency court, or if I'm trying to interpret what a court order says, or if I'm giving medical care that I think is in the best interest of the child, can that be second-guessed later in retrospect? Or, alternatively, as long as I'm doing that in good faith, and what I believe to be in the best interest of the child, do I still have the immunity? And I believe this court answers that resoundingly in favor of the latter proposition. Yeah, and I think, you know, I do think that there are so many difficult and sensitive issues that are wrapped up in these cases in terms of parents and their rights and their rights to make medical decisions on behalf of their children and all of those things

that should be considered, right? It's not to say that we should just be seating full authority to the hospitals, but it's also, you know, at such a difficult position, I think, for specifically doctors as mandated reporters to be in because then they can end up in a situation as they did with the Kowalski case and with many of these other cases that are being, you know, that are the subject of these civil suits where they are then the custodian by the court, by the court's order, they are then the custodian of that child. And so that child is not then being placed in a foster home or with a medical foster parent or, you know, someone else because those placements are very difficult to make, especially if you have medical complexities. And so there is just

this really, they are in such an especially tricky position. And so I wanted to speak to, you know, not everyone refers to this as a medical kidnapping case. However, Gregory Anderson, who was formerly the lead attorney for the Kualski's, is no longer, had said specifically that this was sort of a landmark medical kidnapping case. And that speaks to this subject of parents' rights, And, you know, that really, the medical kidnapping piece is that, is that false imprisonment charge, which again, analogous charges have shown up in almost every other one of these lawsuits. So I want to speak about that because the opinion did speak to that specifically. And I think many people missed that the reason that Maya Kowalski ended up at Johns Hopkins for those three months that she ended up specifically there was not because Johns Hopkins was advocating to keep her there. In fact, it was, you know, quite the opposite.

They had mentioned this, which I believe the opinion mentioned this specifically, that they had attempted to transfer her to a different hospital, Nemours, which was, you know, that was nixed by the parents. And then, you know, and then there was all this other stuff that sort of went on in the dependency court that made it so that she couldn't leave the hospital. Can you speak to what the opinion had to say on that? Yes. So I wanted to go back for a minute because you mentioned that health care providers like Johns Hopkins, All Children's Hospital, are you in this unique position where they can.

could be asked by the, or not just asked, but required by dependency courts to be the place of safe shelter. The Second District Court of Appeal also noted that it's unique, but I wanted to remind your audience that just because it's unique doesn't mean it's rare. And a lot of what you don't see, because, you know, these things are literally and figuratively sheltered from society, is that this situation is unfortunately not uncommon, whether it's a situation like we saw where there's a suspicion of medical child abuse, or it could be something less or more innocuous where you have a baby born to a drug-addicted mother, right?

And is going through withdrawal in the neonatal intensive care unit is testing positive for opiates and is not safe to go home with the mother in that situation. And again, the hospital is going to be the first safe place for that child during the weaning, the detoxing, and it needs to know that the medical care that it's going to be given. as it's given in good faith, is not going to be subject to later prosecution. To the question that you asked about false imprisonment, there's a very detailed discussion about

this, the statutes in Florida, which are very similar to the statutes across the country, give hospitals discretion in terms of ensuring that children under their protection and purview do not elope to a situation that could be in imminent danger. The second district correctly cited to the dependency court that found that Maya was in imminent and grave danger had she left the hospital and therefore found it was not at false imprisonment. In fact, well within Johns Hopkins, all children's rights and obligation to do what they needed to do to ensure that Maya was not released into a situation that could lead her to imminent harm. So therefore, the appellate court, looking at this record and correctly interpreting the law, not only found that all children's did not commit false imprisonment for the period prior to the shelter order being put in place, but found that all children's acted lawfully in their

decisions. And therefore, that is not one of those issues that can go back to trial. That issue has been decided in my client's favor. And so speaking of sort of what can be retried and what can't. So most of the decision was reversed. And then there were four counts that the appellate court said were eligible for retrial. Can you talk us through what those four counts are? Yes. So I'm going to put a big asterisk just so your viewers can listen to the asterisk too. So technically, there were the only, claims that were potentially subject to retrial, where the medical negligence claim, the battery claim, false imprisonment for a couple episodes while she was under shelter order, and the alleged intentional infliction claim only as to Maya. For example, the intentional

infliction claim as to Vyatta, the appellate court not only said, you know, we're finding in the hospital's favor, they specifically said, we don't see a shred of evidence in this record that all children did anything as to Biotto Kowalski that was, you know, inflammatory or intended to harm her at all. So, you know, that was one of the many claims that the appellate court in reviewing this record said can't go forward. The reason why I said I want you to put an asterisk beside this is because in the very same paragraph where the court said, these are the only potential claims that the trial court may consider on retrial. In the same section, they also say, quote, we do not address whether any of these claims survive on remand under a correct

application of Section 39 immunity. And they didn't want to issue an advisor opinion because what this appellate court is saying is you could plead them, but the trial court is going to need to go back and look at it and say, for example, in the medical malpractice claim, if our position will be on remand, if the hospital acted in good faith and what they believe to be necessary medical care in carrying out the Department of Children and Families directive to safely weaned Maya off dangerous levels of ketamine and dangerous levels of opioids, if we did that in good faith, our position, and I believe the correct legal position will be, we can't be held liable for medical malpractice. This is not just a simple situation where you can sue a

hospital for medical malpractice when we're operating in good faith under strict orders coming from the dependency court on what we're supposed to provide for necessary medical care for a child under shelter. So what I would tell you is, while there's a very limited amount of claims that could potentially survive, my interpretation of this is very few will actually see a court when we dissect this because our position from start to finish has been that all children's hospital and their providers at all times acted in good faith in the carrying out execution of their duty. and responsibilities as mandatory reporters under Chapter 30. So in terms of like the medical malpractice piece of this for Maya, right, which is it's only the

counts related to her survive. You know, as you said, and I just want to remind listeners that this child was receiving a very high dose ketamine infusions when she arrived at the hospital. She had just seen her doctor, Dr. Ashraf Hannah, who was giving her. large dose of ketamine and said that I won't give her anymore. You have to take her to the hospital. And then when they arrived, Biaa insisted on them giving her an amount of ketamine that is not within their standard of practice was just not something the hospital was willing to do and said that if they wouldn't do that, she would remove Maya from the hospital and put her on hospice care so that she could finally die. So that, you know, speaks to the threat to Maya's life. And obviously

we've covered, you know, now two cases in a row on the show where Munchausen by proxy victims died in hospice care exactly as, you know, this one looked to be heading. And in terms of, you know, what decisions a hospital is enabled to make on behalf of a child like this, it seems to me that you can't have a law, like you can't legally require a hospital to do something that they think is dangerous or harmful because a parent asks for it? So when we talk about normal medical negligence law, we talk about, you know, the standard of care and what a reasonably careful physician would do under same or similar circumstances, the conditions where a child is being sheltered with conditions on what she can eat, drink,

receive, visitors are not same or similar conditions to the average patient walk into the hospital. And the second district court of appeal recognized this when they said in footnote three that under Chapter 39, necessary medical treatment is defined within the statutory immunity as, quote, the care which is necessary within a reasonable degree of medical certainty to prevent the deterioration of a child's condition or to alleviate the immediate pain of a child. So that's exactly the standard that we articulate and have articulated in a case like this, we're dealing with emergency situations with the picture that your audience is very familiar with that Maya Kowalski came into the hospital for and that, you know, as you correctly noted,

Dr. Hannah had even said that ketamine's not working. There's no more I can do with you despite her receiving what we believe to be the highest doses of ketamine any child's ever experienced in America. The standard of care for which all children's is going to be judged is going to be whether we comply with the Chapter 39 requirements for the necessary medical treatment. We're very, very confident that we can meet those on a good faith basis. And as the Second Court of Appeal noted to this day, you know, at the time of trial, Maya's medications were allergy medicine. So a lot of the proof of the medical care that she received at all children's and her ability

to go back and, you know, we're thrilled that she can live a life of participation and graduate valedictorian at our high school, skate, run, and all of those things at the Second District Court of Appeals, that's certainly evidence that we gave the correct medical care, but we also gave the correct medical care as defined under Chapter 39 as well. Right. So, yeah, in terms of these other counts, and I wanted to address something that I just listened to Gregory Anderson, again, former attorney for the Kowalski's, suggest in an interview that he thought that these four counts could just be allowed to stand with the awards that the jury originally gave to the Kualski's because, by his reasoning, Judge Carroll did such a thorough job of segregating each

count in this case from one another, that they could make the decision to just let all of those original awards stand. Now, that's not how I read this opinion, but I'm not a lawyer. So, yeah, can you tell us, Is there any chance here that what's going to happen is they go, well, you get the original $20 million or whatever that you were awarded at trial and we're just not going to redo any of it? Easiest question you've given me so far. The answer is no. That was an option for the second district court of appeal. They could have said, you know, these counts are ones that they did not have the evidence to show or all children's is not legally liable for. but these counts, for example, for medical malpractice or false imprisonment, are legally cognizable and the plaintiff met the thresholds who were going to affirm the verdict on those. They did not do that.

So that's out the window. That's not a legally debatable question. And what's most important is that the second district said that in a new trial, the trial, court has to rigorously apply the evidence the jury could hear on any of these counts to ensure that the jury is not going to hear evidence of conduct that's clearly covered by Chapter 39. For example, to the extent that the plaintiff could survive motions prior to a retrial on intentional infliction of emotional distress, they are not going to be, they're clearly not going to be allowed based on what the second district has said to start talking about,

you know, the deprivation of Maya seeing her priest, the deprivation of what happened with any of the visitation orders, because I read the second district's decision to say that if it falls under chapter 39, both the reporting and the good faith participation in child abuse activities, that can't be evidence in the retrial. So not only do I disagree with Mr. Anderson's assertion that these could just stand, we're going to have to closely look at whether there's going to be competent, substantial evidence outside of the Chapter 39 process that would even allow some or any of these counts to go forward at a retrial. Yeah, and I wanted to just kind of have us give, ask you to sort of give us a picture of what a retrial would look like and how different

that would be than what we witnessed at trial the first time two years ago. And the appellate court specifically called out the closing arguments that Anderson made as inflammatory. Obviously, you know, having watched nearly every moment of that trial, the, you know, the plaintiff's attorneys told a very emotional story. There were a lot of pictures of Jack looking patriotic and lots of family photos. And they played the 911 call when Kyle, the younger child discovered Biotta's body, they really told a very emotionally wrought story. Would it be, and, you know, I was looking at Nick Whitney's, who's now currently representing the Kowalski's, you know, his comments about, you know, his comments to the press about this case that he feels

sure that they could get the same result from a jury upon retrial. And I'm not asking you to up on him that. But I just, I just wonder kind of like, given how this case has been so significantly narrowed. Is this a situation where they can just go and do take care of Maya part two and retell this whole, you know, very, very sad and very emotional story in court? No, because the evidence that you can put in front of the court has to be satisfied two things. First, it has to be relevant to a claim being brought. For example, you talk about the 9-1-1-1-1-1-7. and one calls and things of that nature. The courts already found that all children's as a matter of law and as a matter of fact is not liable for Mrs. Kowalski's very unfortunate suicide. And I want to

emphasize that this whole case is beyond unfortunate. I don't want that to get lost. But the type of evidence that would be available on a retrial is going to be severely pared down because the counts that the second district said that may be eligible to be retried, and I emphasize maybe, are vastly different than the ones that were tried the first time. Second of all, the courts said repeatedly that any evidence that would have to go in, assuming there is a retrial, has to undergo a, quote, rigorous and proper application of Chapter 39 immunity. So a lot of the evidence that people got bogged down on, whose voice is, at interrupting phone calls, you know, who said that the priest couldn't come in? You know,

what about the denial of communion that DCF did? That's not going to be part of a retrial. So, we believe that when you actually look at the evidence that of what all children's did, and it was commented on multiple times in this opinion, that there's really no evidence, there's no evidence that all children's acted in anything other than good faith in both the phone call in the execution of child abuse protection activities, the retrial to the extent any counts survive and can go forward are going to be very limited on the evidence that can be put forward. So I wanted to ask about one of the counts that was that the court seemed to have the strongest opinion on one of the judges, you know, wrote a pretty lengthy piece, which it wasn't a dissenting

argument, but it was like a letter of emphasis or I don't know what it's called legally. But one of the judges wrote about, I believe it was the intentional infliction of emotional distress on Maya claim. And I believe, and I wanted to just unpack that piece a little bit, because it seemed to me that that was kind of of the, in terms of like the claims that they thought were possibly legitimate, it seemed to be that they were saying they thought that one was the most legitimate. And I wanted to just talk through that and like which piece of this complicated series of events that referred. to? And what's your sort of take on what the appellate court is really saying about that? So this decision that vindicated my client in the Rights Under Chapter 39 was unanimous. This is not a split decision. It was a three zero decision that was signed on to by all of the justices that looked at the law and the evidence. There was a special concurrence written by one of the judges that we've read and we respect. Remember, when the judges or when the justices, the appellate court justices are writing their opinion. They're writing the opinion reciting the facts

as most favorable to the non-moving party, right? They're not there to re-weigh evidence. They're there to look at the law and see if there was. Sorry, can you tell what does non-moving party mean? Can you put that in a little bit? Yes, right. So we were the moving party. We were moving the court to overturn the verdict. That would make us the appellant. The appellee. would be the Kowalski's. They were asking the court not to disturb the verdict. When the appellate court, this is just general appellate law, when they're doing this, they're looking at the law and to see if the law was applied correctly. And then once they decide, here's what the applicable law is, they would look at the facts of the case and in the light most favorable to the Kowalskis.

So when there's a special concurrence like you're seeing here laid out, my interpretation of This is not that Judge Smith said all of this happened, right? Because a lot of this is he said, she said, or she said, she said. It's written in a way that says that if Maya is to be believed, and we have to take her credibility because we're reviewing this in the light, assuming what she says is true, that some of what she said could support a theory of emotional distress. However, at the top of page 45, Judge Teva Smith also correctly notes the law on this and says that the trial judge will have to weigh whether or not some of the facts fall within Chapter 39 immunity and whether they would be number one relevant and number two admissible on retrial as they would relate to her claims. So it's a long, legally boring way of saying that it's not the appellate court.

judge saying, we believe everything they said is true, they have to take what Maya said for the purposes of this appeal and count them as true. That's just, that's not them favoring the Kualskis. If we were the appellee and they were the appellant, they would have to take our version of events is true. The judge is just saying that, you know, we, you are going to need to weigh whether what she's saying falls under the good faith immunity, meaning if all children's and some of the Can you just review for us what this section pertains to? Because the way I read it, this piece of it, the intentional infliction of emotional distress on Maya had to do with Kathy Beatty's alleged actions. Is that right?

Or is there a piece of this that's the other people from the hospital? That would seem to be the primary focus of what Maya was focused on in terms of where she felt that, you know, she had been treated unfairly. was primarily through Ms. Beattie, who again was there assigned as the social worker liaison between the dependency court, tasked with carrying out orders, tasked with providing a child as much comfort as she could while the dependency court held that she needed to be sheltered from Mrs. Kowalski as the court determined that Maya was in imminent danger. You know, Ms. Beattie obviously has a completely different version of events that your viewers saw at trial.

there's certainly a credibility battle there that we feel Ms. Beattie acted appropriately. But with regard to all of that, clearly some of what Ms. Beattie was doing was court-mandated child abuse protection activities. So again, even in the special concurrence written by Judge Smith, who joined the opinion 3-0 in favor of the hospital, noted that we still have to weigh whether they fall within Chapter 39 immunity. And when you're saying this, that you have to look at whether those actions were done in good faith or not, because if they're done in good faith and they're done related to conduct, which is in furtherance of child abuse investigations or protection, those actions would be subject to a meeting.

Lastly, in terms of the counts that could be retried, and this, I think the false imprisonment counts were one of the hardest things to sort of suss out now and when we were going through the trial, right? Because there was these different periods of time. So obviously they have not allowed some of the false imprisonment charges to go through, or to be eligible for retrial. But one of the counts related to Maya, they are saying could possibly be retried if again, you know, it sort of survives this test of chapter 39 immunity. Because can you talk to us about like what is that having to do with and why did that not sort of like, why did that not get reversed as the other false imprisonment charges got reversed? So what the Second District Court of Appeals did was legally correct, because at the end of the opinion, they say again in one of the footnotes that we're not going to give an advisory opinion whether any of these could actually survive based on the facts and based on the anticipated argument, which will make that will show that all of these activities were done in good faith, in furtherance of either court orders or in furtherance of child abuse and protection activities, I strongly believe that when we analyze my client's actions, you know, which was always in the best interests of Maya Kowalski, against the proper application of Chapter 39, that the court that will review this will determine that my client acted in good faith and that none of these so-called false imprisonments are going to see a retrial.

Okay. So in terms of a retrial, would this go back to the same trial court? To be determined, there's obviously still some appellate processes that have to be exhausted. Courts naturally rotate venues and judges. It's extremely hard to speculate when this case could be eligible for retrial or who may be assigned. But regardless of who it is, we feel very confident that when this case is analyzed with the application of the laws, the second district has announced it looking at the facts. emphasizing as the second district did when we looked at the totality of my client's conduct that there's no evidence that all children is anything other than act in good faith and compliance

of the child abuse protection statutes. Got it. So in terms of next steps, what happens now? What happens next? So we would anticipate the plaintiff is going to do their best to exhaust their appellate avenues, which is well within the rights, just as it was well within my client's rights to ensure that we had proper appellate review. I can't give you a timeframe of when those appellate rights would be exhausted. Based on this very well-reasoned three zero decision, we are optimistic that nothing's going to change in terms of the interpretation of the law or the finding that my client acted in good faith.

In terms of when this could be returned to a trial court to undergo the rigorous application of Chapter 39 and determine what, if anything, survives for a retrial, it's hard for me to give you a timeline other than to say it won't be immediate. Yeah. I mean, you know, editorializing here, but like, obviously, given how well I know this case, given the fact that I understand the implications of the verdict, given the fact that I've seen this verdict really resonate throughout, you know, my community and, you know, of sort of survivors and family members and mandated reporters and, you know, what this could mean for all these other lawsuits

that are so similar. I obviously feel an incredible relief at this decision. But I also just, I will say just, my heart really goes out to Maya and Kyle because this has been going on for so, long. And it seems very possible that it could stretch on for at least a couple more years to come. And I just really can't imagine, yeah, like what they're what they're going through right now in terms of just the fatigue of a situation like this. And I just, yeah, I guess that's just I just wanted to say that.

I mean, I just really, I really have, you know, I really, yeah, I really have been thinking about them this week. And they're so young and this is just really dominated their entire young lives. And they've been asked to relive again and again for the media for, you know, the court in various depositions. They had to sit in the courtroom and listen to the 911 call. I mean, it's just the fatigue and trauma of that just seems it's almost incalculable in this in the situation. From the time my client got involved in this case, starting with the phone calls to DCF, everything we did was meant to be in the best interest of Maya Kowalski. No one's questioning that she suffered, our client's position that she was a victim, even unwittingly, of medical child abuse. So we share your sentiment that we hope that we can move on from litigation and that Maya and her family can find peace. Yeah. We will stay tuned. Yeah, I mean, I guess just like sort of lastly, what I hope people begin to understand about this situation, this trial, these other cases, is that it is not about hospital versus families. It is about people who are in a really challenging situation with nothing but difficult options at their disposal. I have never talked to anyone who works for a children's hospital or in child protection or anywhere else that takes the idea of separating a child from their parents lightly.

But as you said, you know, the law as it's written, which is, you know, I think a value judgment that most of us do share is that we should not take chances when there's the possibility that a child could be harmed or killed. And, yeah, I sort of hope that this situation can be reframed going forward for, you know, closer to reality than sort of what it's been painted. And I'm glad you brought that up as the last point because I don't want it to get lost. My client's participation at the front end was to report a reasonable suspicion of medical child abuse. As the second district said, the trial court, even our trial court, very easily determined that that was

made in good faith. There are due process rights from there. The state of Florida decides whether or not to investigate the call, whether or not to escalate the call, whether or not to seek either emergency or in a longer term basis restrictions on parental rights. The parents have their due process rights. They have the ability to show up at a dependency court and challenge what the state of Florida wants to do, they have the ability to accept restrictions or fight them, fight them to the very end. And so it's not a case where a doctor can make a call in medical kidnapping ensues. The doctors, the police officers, the firefighters, the journalists make the call of reasonable suspicion. And then the state of Florida decides what to do with it, respecting the due process

rights of parents as provided by the law. Yeah. And I think, you know, even I didn't appear on court TV on the day that this appellate decision came down. And, you know, they had sort of framed a question to me of, you know, this being sort of a, oh, this was a snap decision and nothing anybody said was going to convince them that abuse wasn't happening. And I really challenged them on that because that's just not what the evidence shows. The evidence doesn't show that this was a snap decision. They, obviously, there was an elevated threat and you have to make a timely decision when there's an elevated threat. But, yeah, I mean, there was a ton of back and forth in the courts, and there was no evidence that the Kowalskies were deprived of due process. And I believe that parents should have due process. My goodness. But I think we have to, yeah, I mean, I hope we can, I hope this sort of can be a moment of a tide turning a little bit. Yeah, again, back towards just reality and where the facts are that it is not so simple as a doctor makes a decision and everyone just falls in line.

and it shouldn't be right there this I think this is frequently and was in this case positioned as a and again this was another thing that sort of came up in my court TV appearance where he said well the you know the the hospital in DCF were in bed together and I don't like that and I think people are framing something that is a necessarily interdisciplinary process for being in cahoots with each other when the reality is, you know, I know from looking at many of these cases, when you have these various branches, law enforcement, the courts, the doctors, and DCF or CPS or whatever the state entity is called, those people disagree with each other all the time. And, of course, cases don't move forward, even when there's strong medical indications of abuse, even when there's

strong, you know, evidence of abuse. Those cases don't move forward all the time. That happens constantly. So you do, you want those entities working together and you can't argue simultaneously that there's no checks and balances. And then when there are checks and balances, say, well, all those people are just in a conspiracy with each other. So I'm really hoping that this will elucidate. But yeah, again, just reality. The DCF proceedings are subject to super strict confidentiality as they should be because it's obviously the most intimate and scary moments for families, children, so that's why they're not part of the public record. I think the flip side of that is the public's also deprived of seeing the rigorous due process rights, the amount of

paperwork, medical opinions, witnesses, testimony that dependency court judges see before they make the difficult determination of whether there's going to be an interference with the rights of a parent and their child. So for better or for worse, to protect. protect confidentiality, we often only see a snapshot or the end result without seeing the rigorous application that DCF in the state of Florida, the parents, their advocates go through before we get to the point of, you know, the drastic question of child separation. But again, my client is involved in the phone call and the good faith participation, but not in the decision. Those decisions are made by the state. Well, and similarly, Ethan, you know, we're also not privy to medical records. I mean,

we were to, in this case, because it was litigated in court and some of those became public record. But in a normal case that's covered in the media, you know, the family can give a narrative about how the doctors came to their decision. And that has to remain unchallenged because the doctors can't speak to the media without a hip or release. And those medical records are shared at the parents will. So I do wish and hope and will continue to advocate for my colleagues in the media doing a better job of presenting these cases in their complexities and acknowledging those difficulties in presenting a complete story to the press. And yeah, so even anything, any, any last kind of thoughts to leave us with before I, before I leave you, thank you so much for joining us today.

I really appreciate it. Thank you and thank you for your work in this arena. Thanks, Ethan. Nobody should believe Meek is produced and hosted by me, Andrea Dunlop. Our editor is Greta Stromquist, and our senior producer is Mariah Gossett, administrative support from Nola Karmouche.