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CARNEY SUES COURT-TRIAL WITNESSES 2 HOSPITALS, STAFFERS NAMED.

Byline: Karen Maeshiro Staff Writer

PALMDALE - Acquitted of child molestation charges last fall, former Palmdale councilman and sheriff's Sgt. Kevin Carney is suing a physician and a nurse practitioner who testified against him in his trial.

The nurse practitioner had examined Carney's principal accuser, a 15- year-old girl for whom he said he acted as a surrogate father, and the doctor, a child-abuse expert, who reviewed the videotape and photographs of the exam.

``You can't go into court and lie. There's no immunity for that,'' said Milton Grimes, the attorney who defended Carney in the criminal trial.

Carney was sued by the girl last October. In a counterclaim filed in March as a part of that lawsuit, Carney asked for unspecified damages from Marcia Wehr, a nurse practitioner who works at High Desert Hospital, Dr. Astrid Heger and Antelope Valley Hospital.

Carney is seeking damages as well as asking to be indemnified by the three defendants for any liabilities and expenses incurred in connection with the girl's lawsuit.

The attorney defending Carney in the girl's lawsuit filed the cross-complaint, but Grimes said last week that he is considering taking over that aspect of the case.

Neither Wehr nor Heger, a pediatrician on staff at Los Angeles County/USC Medical Center, could be reached for comment. Antelope Valley Hospital officials said they had not been served with the lawsuit and could not comment.

Carney's complaint states that Heger, Wehr and the hospital are primarily liable for any damages to the girl in that they negligently and carelessly inspected and examined the victim and led authorities to arrest and charge Carney, court records said.

The ``cross-defendants ... performed the tests, examinations and evaluations in such a negligent, careless and improper manner so as to cause the prosecutor and the Sheriff's Department to believe that (Carney) herein did, in fact, rape the minor plaintiff ...,'' the complaint said.

Carney's complaint said testimony given by Heger and Wehr was ``untruthful, biased and given in an effort to convict (Carney) ... without basis in law and in fact.''

As a result, Carney was damaged by the ``cost of defending himself in the criminal action, the cost of bonds and bail, his loss of employment in order that he concentrate on his defense, and his emotional distress arising out of the conduct of cross-defendants ...,'' Carney's complaint said.

However, there is a question of whether Heger and Wehr can be sued by Carney for alleged negligence or their testimony in court.

Douglas Mirell, an attorney who has taught constitutional and media law, said court testimony is privileged - meaning it is not subject to charges of libel or slander - and that privilege is very broad.

``In California, there is a litigation privilege that exists with respect to everything that is said in a court proceeding and with respect to all documents that are ever filed in all matters. What is contained in that testimony and documents can't be a basis of litigation of any kind,'' said Mirell, who has taught at the University of Southern California and Loyola Law School.

``It's intended to prevent the kind of litigation that sounds like is being undertaken now. The reason for it is you don't want to spawn collateral litigation based on allegations that are made in a judicial proceeding.''

Mirell said speech and conduct outside the courtroom could become the subject of potential litigation.

Mirell also raised questions about Carney's claim of negligence.

``If it were the examined parties themselves who were suing for malpractice, that would be a viable claim. The question is whether a stranger, a third party, can in effect sue for malpractice that wasn't committed on that person,'' Mirell said. ``That claim may not be as clearly barred, but it also has significant and possibly insurmountable problems.''

Of those issues, Carney attorney Milton Grimes said, ``We are going to see. We are going to see what exceptions we have here.''

Carney, a former Antelope Valley Union High School District trustee, was acquitted Nov. 2 by a Los Angeles Superior Court jury of four child molestation counts pertaining to two girls. The panel deadlocked 11-1 in favor of not guilty on 12 charges involving two other girls, including the 15-year-old.

A month later, a judge dismissed the remaining charges. Prosecutors decided against a second trial, saying they did not believe a second trial would result in a conviction.

The 15-year-old girl ``was not a convincing witness,'' Deputy District Attorney Rob Dver wrote in a memo. And there is no corroborating physical evidence for the allegations of the second, younger girl, Dver said.

The only possible source of new evidence would be testimony from a child-abuse expert explaining why children delay reporting molestation: seven or eight years in the 15-year-old's case, or several months for the younger girl, Dver wrote.

But Dver noted that the 15-year-old had repeatedly told her mother, law enforcement officers and sister that Carney had not molested her before finally leveling her accusation in October 1999.

Carney was elected to the City Council on Nov. 2, 1999, four days after his arrest. He resigned his position two months later from jail.
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Publication:Daily News (Los Angeles, CA)
Date:Apr 22, 2001
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