Simms et al v. The United States of America et al

Filing 172

MEMORANDUM OPINION AND ORDER taking under advisement 119 MOTION by Caelan Jantuah, Misty Simms in Limine No. 1 to Exclude Evidence of Collateral Source Payments and Benefits and 120 MOTION in Limine No. 2 to Exclude Evidence of Collateral Sour ce Payments and Benefits for Future Services/"Offset" and to Exclude Evidence or Argument Concerning Reversionary Trust Mechanisms; denying without prejudice 121 MOTION by Caelan Jantuah, Misty Simms in Limine No. 4 to Exclude Expert Tes timony of Dr. Booth Concerning Standard of Care and 123 MOTION in Limine No. 6 to Exclude Expert Testimony of Dr. Richard Booth in Accordance with Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 588 (1993); denying as withdrawn 122 M OTION by Caelan Jantuah, Misty Simms in Limine No. 5 to Exclude Certain Testimony by Karen Bonham for Lack of Personal Knowledge; denying 124 MOTION by The United States of America for Partial Summary Judgment; taking under advisement 127 MOTI ON by Caelan Jantuah, Misty Simms for Partial Summary Judgment On the Issue of Set Off of Damages; granting in part 129 MOTION by Caelan Jantuah, Misty Simms for Summary Judgment on Liability. Signed by Judge Robert C. Chambers on 12/17/2014. (cc: attys; any unrepresented parties) (mkw)

IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION

MISTY SIMMS, next friend of
Caelan Jantuah, an infant, and
MISTY SIMMS, individually
Plaintiffs,
v.

CIVIL ACTION NO. 3:11-0932

THE UNITED STATES OF AMERICA,
Defendant.
MEMORANDUM OPINION AND ORDER
Pending before the Court are the following motions: Plaintiffs’ Motion in Limine No. 1
(ECF No. 119), Plaintiffs’ Motion in Limine No. 2 (ECF No. 120), Plaintiffs’ Motion in Limine
No. 4 (ECF No. 121), Plaintiffs’ Motion in Limine No. 5 (ECF NO. 122), Plaintiffs’ Motion in
Limine No. 6 (ECF No. 123), the Government’s Motion for Partial Summary Judgment (ECF No.
124), Plaintiffs’ Motion for Partial Summary Judgment on the Issue of Set Off of Damages (ECF
No.127), and Plaintiffs’ Motion for Partial Summary Judgment on Liability (ECF No. 129).
I.

Statement of Facts

Misty Simms obtained prenatal care from Richard Booth, M.D., and other employees of
Valley Health Systems, Inc. (“Valley Health”) while she was pregnant with Caelan Jantuah. See
ECF No. 129, Ex. 1. On February 25, 2008, Karen Bonham performed an ultrasound test on Ms.
Simms. ECF No. 129, Ex. 1. The ultrasound revealed certain fetal abnormalities. ECF No.
129, Ex. 1. Dr. Booth directed Ms. Bonham to refer Ms. Simms to the Perinatal Center at Cabell
Huntington Hospital. ECF No. 129, Ex. 3. Dr. Booth documented the referral but did not inform

Ms. Simms of the referral. ECF No. 129, Ex. 1, Ex. 3. According to Ms. Bonham, she called the
Perinatal Center and was told that they could not schedule an appointment until they had spoken to
Dr. Chaffin, and that they would call Ms. Simms once an appointment had been made. ECF No.
129, Ex. 4. Ms. Bonham noted on the ultrasound report that an appointment had been made.
ECF No. 129, Ex. 4. No referral appointment was scheduled and Ms. Simms did not see the
doctors at the Perinatal Center before her next appointment with Dr. Booth in May. ECF No. 129,
Ex. 3.
Ms. Simms received another ultrasound at Valley Health on May 14, 2008, at which time
she was informed of the fetal abnormalities. ECF No. 129, Ex. 7, Ex. 8. Ms. Simms was sent for
an additional ultrasound with Dr. Singh that same day; Dr. Singh confirmed the abnormalities.
ECF No. 129, Ex. 8. Dr. Singh alleges that she also discussed the options of amniocentesis and
termination of the pregnancy with Ms. Simms. ECF No. 129, Ex. 8. Ms. Simms alleges that she
was never given the option to terminate her pregnancy. ECF No. 129, Ex. 9. Ms. Simms was
then referred to a fetal care center in Cincinnati where she met with Dr. Hopkin. ECF No. 129,
Ex. 11. Dr. Hopkin testified that the option of termination “probably would have been” discussed
with Ms. Simms. ECF No. 140, Ex. 4. Ms. Simms did not terminate her pregnancy and Caelan
was born on June 18, 2008 with significant disabilities.
II.

Standard of Review

To obtain summary judgment, the moving party must show that there is no genuine issue as
to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(a). In considering a motion for summary judgment, the Court will not “weigh the
evidence and determine the truth of the matter.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
249 (1986). Instead, the Court will draw any permissible inference from the underlying facts in

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the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587-88 (1986).
Although the Court will view all underlying facts in the light most favorable to the
nonmoving party, the nonmoving party nonetheless must offer some “concrete evidence from
which a reasonable juror could return a verdict in his [or her] favor.” Anderson, 477 U.S. at 256.
Summary judgment is appropriate when the nonmoving party has the burden of proof on an
essential element of his or her case and does not make, after adequate time for discovery, a
showing sufficient to establish that element. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986). The nonmoving party must satisfy this burden of proof by offering more than a mere
“scintilla of evidence” in support of his or her position. Anderson, 477 U.S. at 252. “‘[W]here
the moving party has the burden—the plaintiff on a claim for relief or the defendant on an
affirmative defense—his showing must be sufficient for the court to hold that no reasonable trier of
fact could find other than for the moving party.’” Proctor v. Prince George’s Hosp. Ctr., 32 F.
Supp. 2d 820, 822 (D. Md. 1998) (quoting Calderone v. United States, 799 F.2d 254, 259 (6th Cir.
1986)).
III.

Motions in Limine

Plaintiffs’ Motion in Limine No. 1 (ECF No. 119) and Plaintiffs’ Motion in Limine No. 2
(ECF No. 120) have been taken under advisement. Plaintiffs’ Motion in Limine No. 5 (ECF NO.
122) is DENIED AS WITHDRAWN. Plaintiffs’ Motion in Limine No. 4 (ECF No. 121) and
Plaintiffs’ Motion in Limine No. 6 (ECF No. 123) are DENIED WITHOUT PREJUDICE. Dr.
Booth is permitted to testify as a lay witness. If and when any expert testimony is elicited from
him at trial, Plaintiffs may renew these two motions.

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IV.

Government’s Motion for Partial Summary Judgment

The Government seeks to dismiss Plaintiffs’ claims for Misty Simms’s lost earning
capacity and for emotional damages. The Government argues that permitting recovery for both
medical expenses and lost earning capacity may result in double recovery for the plaintiffs.
Furthermore, the government contends that the holding in James G. v. Caserta, 322 S.E.2d 872
(W.Va. 1985), precludes the recovery of such damages. ECF No. 125. In Caserta, the court
addressed whether parents can obtain damages in a wrongful birth action for the costs of caring for
a child after the child has reached the age of majority. Caserta, 322 S.E.2d at 881. The court
held that such damages are recoverable and explained that “in a wrongful birth action, parents may
recover the extraordinary costs necessary to treat the birth defect and any additional medical or
educational costs attributable to the birth defect.” Id. at 882. The Governments reads this
language as limiting the damages available in a wrongful birth action to only the medical and
educational costs of raising a disabled child. Nothing in Caserta, however, explicitly limits
damages to these extraordinary costs. Rather, the court explained that such extraordinary costs
are available both when the disabled child is a minor, and after the age of majority where the child
is incapable of supporting herself due to her disability. Id. at 882-83. Thus Caserta did not hold
that parents may not recover for lost earning capacity and emotional damages; it did not squarely
address the issue of these damages at all.
Among courts that have addressed this issue there is a split of authority. Several courts
have held that, for policy reasons, parents cannot recover for emotional distress caused by the birth
of a disabled child or for loss of services based on that emotional distress. See, e.g., Smith v. Cote,
513 A.2d 341, 351 (N.H. 1986); Becker v. Schwartz, 386 N.E.2d 807, 809, 813-14 (N.Y. 1978).
Other courts have reached the opposite conclusion, permitting damages beyond the extraordinary

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medical and educational costs of raising a disabled child. See, e.g., Harbeson v. Parke-Davis,
Inc., 656 P.2d 483, 494 (Wash. 1983) (en banc); Naccash v. Burger, 290 S.E.2d 825, 831 (Va.
1982). In Naccash v. Burger, for example, the Supreme Court of Virginia held that emotional
damages are recoverable because there is “an unbroken chain of causal connection directly
linking . . . the deprivation of the parents’ opportunity” to terminate the pregnancy and the
emotional distress they suffer upon the birth of their disabled child. Naccash, 290 S.E.2d at 831.
The Court finds the reasoning in Naccash to be persuasive. The injury underlying a
wrongful birth claim is the deprivation of choice. As the court in Caserta explained:
The underlying premise is that prudent medical care would have disclosed the possibility
of birth defects either prior to conception or during pregnancy. As a proximate result of
this diagnostic failure, the parents were precluded from making an informed decision to
either prevent conception or to make a subsequent informed decision to terminate the
pregnancy.
Id. at 881. This loss of choice results in the birth of a disabled child, which in turn creates
extraordinary medical and educational costs for the parents. It may also necessitate that one or
both parents stop working in order to care for the child. As a result, the parents may suffer a loss
in earning capacity. Furthermore, the inability to make an informed choice can directly cause
emotional and psychological suffering. All three categories of damages logically flow from the
original injury. See Naccash, 290 S.E.2d at 831. There is no basis for distinguishing the medical
and educational expenses from the lost earning capacity and emotional suffering that result from
the same injury.
Here, Plaintiffs maintain that Caelan’s severe disabilities require Misty Simms to be with
her child daily. Plaintiffs state that she has ceased working in order to care for Caelan instead of
continuing her plan to become a nurse. This, Plaintiffs allege, has led to a significant loss in her
earning capacity. ECF No. 157. Plaintiffs also claim that Ms. Simms has suffered “serious

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emotional distress.” ECF No. 132. As explained above, parents who are precluded from making
an informed choice regarding the birth of a disabled child may face a loss in earning capacity as
well as emotional distress. Thus, if Defendants deprived Ms. Simms of that choice, any lost
earning capacity or emotional damages she suffered as a result are recoverable. Accordingly,
Plaintiffs’ claim for Misty Simms’s lost earning capacity will not dismissed, but will be evaluated
with respect to the child’s life care plan in order to prevent double recovery. Plaintiffs’ claim for
emotional damages will not be dismissed. For these reasons, the Government’s Motion for
Partial Summary Judgment (ECF No. 124) is DENIED.
V.

Plaintiffs’ Motions for Partial Summary Judgment

Plaintiffs moved for partial summary judgment on the issue of liability, arguing that
Defendant had a duty to the plaintiffs, breached that duty, and caused the plaintiffs some resultant
harm. ECF No. 129. It is undisputed that Defendant had a duty to Misty Simms through Dr.
Booth, her treating physician at Valley Health. It is further undisputed that when an ultrasound
reveals potential fetal abnormalities, the standard of care requires the treating physician to refer the
patient for fetal care and notify the patient of the referral. See ECF No. 129, Ex. 2. On February
25, 2008, Dr. Booth reviewed the results of an ultrasound performed on Ms. Simms and saw
potential fetal abnormalities. See ECF No. 129, Ex. 1. He directed Ms. Bonham to refer the
patient to a perinatal clinic. It is clear from the record that no such referral was completed and that
Ms. Simms was not informed of the referral. Although the parties disagree over the precise steps
that Dr. Booth and Ms. Bonham took, they agree that an appointment was not scheduled at the
perinatal clinic and Ms. Simms was not notified of the referral following the February 25, 2008
ultrasound. See ECF No. 129, Ex. 3, Ex. 4, Ex. 5. Accordingly, the Court finds that Defendant

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breached the standard of care by failing to refer Misty Simms to the perinatal clinic and failing to
inform her of the referral.
Plaintiffs contend that this breach caused their damages because, as a direct result of
Defendants’ failure to refer Ms. Simms, she was not informed of the fetal abnormalities until it was
too late for her to make an informed choice regarding whether to terminate her pregnancy. ECF
No. 129. Plaintiffs claim that had Ms. Simms been properly referred and informed following the
February 25, 2008 utrasound, she would have chosen to terminate the pregnancy. ECF No. 129.
Defendant maintains, however, that Dr. Singh advised Ms. Simms in May, 2008 that she could still
terminate the pregnancy if she wished to do so and that Dr. Hopkins “probably discussed
termination of the pregnancy with Ms. Simms.” ECF No. 140. Defendant’s contentions are
supported by the record. See ECF No. 129, Ex. If Ms. Simms was given the option to terminate
her pregnancy before it was too late, then her injury was not caused by the defendant’s breach but
rather by her own choice not to terminate. The defendant has raised a genuine issue of material
fact here, precluding summary judgment on the issue of causation. For these reasons, Plaintiffs’
Motion for Partial Summary Judgment on Liability (ECF No. 129) is GRANTED IN PART.
Plaintiffs’ Motion for Partial Summary Judgment on the Issue of Set Off of Damages (ECF
No.127) has been taken under advisement.
CONCLUSION
Plaintiffs’ Motion in Limine No. 1 (ECF No. 119) and Plaintiffs’ Motion in Limine No. 2
(ECF No. 120) have been taken under advisement. Plaintiffs’ Motion in Limine No. 5 (ECF NO.
122) is DENIED AS WITHDRAWN. Plaintiffs’ Motion in Limine No. 4 (ECF No. 121) and
Plaintiffs’ Motion in Limine No. 6 (ECF No. 123) are DENIED WITHOUT PREJUDICE. The
Government’s Motion for Partial Summary Judgment (ECF No. 124) is DENIED. Plaintiffs’

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Motion for Partial Summary Judgment on the Issue of Set Off of Damages (ECF No.127) is taken
under advisement. Plaintiffs’ Motion for Partial Summary Judgment on Liability (ECF No. 129)
is GRANTED IN PART.
The Court DIRECTS the Clerk to send a copy of this written Opinion and Order to counsel
of record and any unrepresented parties.
ENTER:

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December 17, 2014