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Lawsuit will continue in case tied to baby’s death

An appeals court ruled unanimously Friday that a malicious prosecution lawsuit filed by a former Niagara Falls man can proceed.

The Appellate Division of State Supreme Court agreed with a lower court ruling that Niagara County Assistant District Attorney Claudette S. Caldwell and former Erie County Medical Examiner Dr. James J. Woytash are not entitled to immunity from being sued by virtue of their offices.

The plaintiff, Jason K. Kirchner, was indicted in 2009 on charges of manslaughter and criminally negligent homicide in connection with the May 21, 2009, death of his 7-month-old daughter, Abbigail Kirchner.

The father said the girl fell off a couch and struck her head on the edge of a TV table the day before she died, and Niagara Falls detectives decided it was an accident and closed the case.

The lawsuit accused Caldwell of reopening the case at the behest of Kirchner’s wife, who later divorced him.

Caldwell is accused of recruiting Woytash to produce tailor-made testimony about when the injury occurred, to make it appear that the infant was hurt no more than six hours before her death, at a time when she would have been home alone with her father.

Kirchner’s trial lawyer, Assistant Public Defender Michele G. Bergevin, introduced statements by a New Jersey forensic psychologist who criticized Woytash’s methods and said the baby really died of pneumonia.

Unable to find an expert to back up Woytash’s report, Caldwell’s colleagues moved to dismiss the indictment June 4, 2010, and County Judge Matthew J. Murphy III threw out the case.

The Appellate Division said that in evaluating the efforts to dismiss Kirchner’s lawsuit, judges are legally required to assume that all of his accusations against Caldwell and Woytash are true.

Taking them at face value, the Rochester-based five-judge panel ruled that Caldwell crossed the line between prosecution and investigation and thus forfeited her right to absolute prosecutorial immunity.

“Inasmuch as the case was closed at the time she spoke with Woytash, it cannot be said that Caldwell was simply evaluating the evidence.

“Rather, she was performing investigative functions, which are not protected by absolute immunity,” the court wrote in its five-page decision.

The case was returned to State Supreme Court Justice Catherine Nugent Panepinto in Niagara Falls for further proceedings.

Panepinto refused to dismiss the case in December 2011, using much the same reasoning the Appellate Division did Friday.