United States District Court, D. Colorado
JOSHUA RUPNOW, JOHN H. RUPNOW, and DIANE M. RUPNOW, Plaintiffs,
ALEXANDER M. PANIO, JR., MARY PANIO, ADOLESCENT & FAMILY INSTITUTE OF COLORADO, INC., and EDRA WEISS, M.D., Defendants.
ORDER ON PENDING MOTIONS TO DISMISS
William J. Martínez, United States District Judge
action, Plaintiffs Joshua Rupnow, John Rupnow, and Diane
Rupnow (collectively, “Plaintiffs”) allege that
they were defrauded, abused, and otherwise harmed by
Defendants Alexander M. Panio, Jr. (“Panio” or
“Alexander Panio”), Mary Panio, the Adolescent
& Family Institute of Colorado, Inc.
(“Institute”), and Edra Weiss, M.D.
(“Weiss”). (See ECF No. 1.) Currently
before the Court are two Rule 12(b)(6) motions filed on the
same day by Alexander and Mary Panio and the Institute
(collectively, for purposes of this order,
“Defendants”). The first-filed of these motions
emphasizes that all of Plaintiffs' injuries were incurred
between 1998 and 2000, and therefore seeks dismissal based on
the statute of limitations and laches. (ECF No. 27.) The
second-filed motion attacks various of Plaintiffs' claims
on their elements. (ECF No. 28.)
requests for relief under any part of Fed.R.Civ.P. 12 must be
brought in a single motion.” WJM Revised Practice
Standard III.D.2. Defendants' second-filed motion is
therefore improper and cannot be considered without endorsing
a loophole to evade page limitations. The second-filed motion
is therefore stricken. As for the first-filed motion,
regarding the statute of limitations and laches, it is
granted solely as to Plaintiffs' cause of action for
battery, and otherwise denied.
a statute of limitations bar is an affirmative defense, it
may be resolved on a Rule 12(b)(6) motion to dismiss
‘when the dates given in the complaint make clear that
the right sued upon has been extinguished.'”
Shinn v. Melberg, 2013 WL 1855852, at *1 (D. Colo.
May 1, 2013) (quoting Aldrich v. McCulloch Props.,
Inc., 627 F.2d 1036, 1041 n.4 (10th Cir. 1980)). As with
all Rule 12(b)(6) arguments, however, the Court must
“assume the truth of the plaintiff's well-pleaded
factual allegations and view them in the light most favorable
to the plaintiff.” Ridge at Red Hawk, LLC v.
Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007).
Court accepts the following assertions as true for purposes
of Defendants' statute of limitations and laches
unspecified time in the 1980s or earlier, Panio founded the
Institute and held it out as a family-focused inpatient
center for treating substance-addicted youth. (ECF No. 1
¶¶ 7, 17-19, 166.) Panio's wife, Mary Panio,
co-owned the Institute. (Id. ¶ 3.) Weiss was
the Institute's medical director. (Id. ¶
turns out, Panio was entirely unqualified to run the
Institute. He insisted on being referred to as “Dr.
Panio” but he “was not a doctor, did not go to
medical school, did not go to psychology school, was not
licensed and had a PhD from an unaccredited diploma
mill.” (Id. ¶ 8.) Although Panio held
himself out to be a clinical psychologist, he was not
licensed as one. (Id. ¶ 12.) In fact, no one on
staff at the Institute was professionally certified or
licensed in any form of psychological or social therapy.
(Id. ¶¶ 21, 23.)
interaction with the Institute began in the late 1990s. They
were then living in Lincoln, Nebraska, when Joshua Rupnow
began experimenting with illegal drugs in his early teen
years. (Id. ¶ 151.) Hoping to give Joshua
“a fresh start, ” his parents, John and Diane
Rupnow, moved their family to Copper Mountain, Colorado, in
1998, but Joshua unfortunately continued his drug use.
(Id. ¶¶ 152-53.) In the fall of 1998, at
the age of 16, Joshua was arrested on drug charges.
(Id. ¶ 153.) He was offered a plea bargain that
required him to enroll in an inpatient drug treatment
program. (Id. ¶ 154.) He accepted the plea
bargain, and the prosecuting attorney referred Plaintiffs to
the Institute. (Id. ¶ 155.)
and Diane Rupnow researched the Institute and were told by
its employees that “Dr. Panio” was a
“nationally-known expert in the field of adolescent
drug treatment.” (Id. ¶ 156.) John and
Diane were also told that the Institute specialized in
finding the right medication and dosage for children with
psychological ailments, which was important to John and Diane
in light of the limited success they had seen so far with
certain medications given to Joshua. (Id.
¶¶ 157-59.) Based on these and other
representations, John and Diane chose to place Joshua at the
Institute. (Id. ¶ 160.) The precise date of
admission is unclear, but Joshua's drug charge came in
the “fall of 1998” and he was eventually
discharged from the Institute in December 1998 (id.
¶¶ 153, 187), so the Court presumes that his
admission took place in between those events.
with the initial intake meeting, Panio used “abusive,
” “crass, ” “vulgar, ” and
“inappropriate” language with Plaintiffs.
“John and Diane were shocked and dismayed” by
this conduct but, in light of the representations about the
Institute that had been made to them, they concluded that
Panio's “unorthodox methods must be
legitimate.” (Id. ¶¶ 163-64.) Panio
also ordered Joshua to be taken off all of his medications.
(Id. ¶ 165.) John and Diane then signed an
admission agreement that obligated them to pay the Institute
$495 per day of Joshua's inpatient treatment.
(Id. ¶ 167.)
his admission, Joshua was isolated from the outside world,
and not allowed to correspond even with his parents.
(Id. ¶ 173.) Institute staff forbade Joshua
from discussing the Institute's methods with anyone
outside the Institute. (Id. ¶¶ 174-75.) In
group therapy sessions run by Panio and attended by Joshua,
Panio would “go from patient to patient humiliating and
verbally abusing [them] to make them feel worthless, ”
then encourage other participants to do the same, and finally
he would “ridicule the patients whose abuse of the
fellow patient was not sufficiently mean.”
(Id. ¶¶ 176-79.) Panio directed vulgar and
belittling language specifically at Joshua, and likewise
accused him of ruining his parents' lives and marriage.
(Id. ¶¶ 180-81.) “As a result of
this repeated abuse, Joshua came to believe that he was
indeed a worthless human being.” (Id. ¶
therapy sessions followed a similar script. Panio would
“focus his anger and hostility on a particular parent
or set of parents, who[m] he would humiliate in front of
other patients and family members. During these family
sessions and group therapy sessions, Panio used crass,
vulgar, harsh, a[b]rasive and abusive language directed at
the parents, who[m] he blamed for the adolescents'
problems.” (Id. ¶ 183.) John and Diane
were subject to this treatment, making them feel
“uncomfortable, ” but “they continued to
believe that Defendant Panio and the program were legitimate
and well-regarded.” (Id. ¶¶ 184,
previously noted, Joshua was released from the Institute in
December 1998. (Id. ¶ 187.) However, on account
of the abuse received at the Institute, his mental health was
worse than before and he quickly returned to abusing drugs.
(Id. ¶ 188.)
unclear reasons, Joshua “was readmitted” to the
Institute in October 2000, this time for $595 per day.
(Id. ¶ 189.) All of the previously described
abusive practices repeated themselves during this second stay
at the Institute. (Id. ¶¶ 190-94.) When
Joshua was discharged later that year his “mental and
psychiatric condition hit rock bottom, ” and he spent
“most of the next fifteen years homeless and addicted
to drugs, believing he was hopeless, worthless and at fault
for his parents['] problems.” (Id. ¶
decade later-in May 2014, specifically-John Rupnow saw a
report on the CNN television network regarding the Institute.
(Id. ¶ 197.) The report describes the
Institute's abusive practices and announced that Panio
did not have a legitimate doctoral degree and was not
licensed to practice medicine or psychology. (Id.
¶¶ 198-200.) This was the first that Plaintiffs
“had seen or heard any evidence or indication that
Defendant Panio was not a doctor and/or was not a licensed
professional in any capacity.” (Id. ¶
201.) John Rupnow then began researching Panio and learned of
his “history of credentials and licensure fraud.”
(Id. ¶ 205.) “This research suggested to
Plaintiffs, for the first time, that [the Institute's]
overall program was substandard, fraudulent, abusive and
neglectful.” (Id. ¶ 206.)
filed this action on April 11, 2016, asserting seven causes