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Rupnow v. Panio

United States District Court, D. Colorado

March 2, 2017



          William J. Martínez, United States District Judge

         In this 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.)

         “All 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.


         “Although 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).


         The Court accepts the following assertions as true for purposes of Defendants' statute of limitations and laches arguments.

         At some 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. ¶ 4.)

         As it 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.)

         Plaintiffs' 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.)

         John 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.

         Beginning 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.)

         Following 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. ¶ 182.)

         Family 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, 186.)

         As 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.)

         For 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. ¶ 195.)

         Over a decade later-in May 2014, specifically-John Rupnow saw a report on the CNN television network regarding the Institute. (Id. ¶ 197.)[1] 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.)

         Plaintiffs filed this action on April 11, 2016, asserting seven causes of ...

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