Kidder v. Newell CV-96-254-M 11/10/97 C

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Christine A. Kidder, As Administratrix of the Estate of Raymond J. Kidder, and individually, and Fred A. Kidder, Individually

v. Civil No. 96-254-M

Kathleen Newell, M.D., New England Pathology Services and Alice Peck Day Memorial Hospital

REPORT AND RECOMMENDATION

Plaintiffs, Christine A. Kidder, individually and as

Administratrix of the Estate of Raymond J. Kidder, and Fred A.

Kidder, individually, sue Kathleen Newell, M.D., New England

Pathology Services, and Alice Peck Day Memorial Hospital, for the

death of their infant son, Raymond Kidder. Plaintiffs' theories

of recovery include six counts of negligent infliction of

emotional distress: Complaint of May 1, 1996 (hereinafter

"Complaint I") - Counts III and IV against Newell and VII and

VIII against New England Pathology; Complaint of July 18, 1996

(hereinafter "Complaint II") - Counts III and IV against Alice

Peck Day Memorial Hospital. Defendant Alice Peck Day Memorial Hospital moved for partial summary judgment asserting that there

are no disputed issues of material fact and that defendants are

entitled to judgment as a matter of law on the six counts of

emotional distress. Defendant Newell has joined in the motion.

For the reasons stated below, I recommend that the defendants'

motion for partial summary judgment be granted.

DISCUSSION 1. Standard of Review

Summary judgment is appropriate when the record reveals

"that there is no genuine issue as to any material fact and that

the moving party is entitled to a judgment as a matter of law."

Fed. R. Civ. P. 56(c). The moving party has the burden of

showing the absence of a genuine issue of material fact for

trial. See Anderson v. Liberty Lobby,

(1986) .

If the moving party carries its burden, the non-moving party must

set forth specific facts showing that there remains a genuine

issue of material fact for trial, demonstrating "some factual

disagreement sufficient to deflect brevis disposition." Mesnick

v. General Elec. Co.,

(1st Cir. 1991), cert.

denied,

(1992). In the context of summary judgment,

" 'genuine' means that the evidence about the fact is such that a

reasonable jury could resolve the point in favor of the non­

moving party, [and] 'material' means that the fact is one that

'might affect the outcome of the suit under the governing law.'" United States v. One Parcel of Real Property with Bldqs.,

, 204 (1st Cir. 1992) (citing Anderson,

.

The court construes the record in the light most favorable

to the non-moving party, the plaintiffs in this case, and draws

all reasonable inferences and resolves factual disputes in their

favor. See Saenger Orq. Inc. v. Nationwide Ins. Licensing

Assoc.,

(1st Cir. 1997). When the moving party

provides properly supported and undisputed facts that lead to

only one plausible legal conclusion, summary judgment is

appropriate. See Griggs-Rvan v. Smith,

(1st

Cir. 1990) .

2. Facts.1

Plaintiff, Christine Kidder, began her prenatal treatment

with Dr. Newell on October 17, 1994. On that date. Dr. Newell

ordered blood work for prenatal screening. The blood was drawn

at Alice Peck Day Memorial Hospital (hereinafter "Alice Peck")

which sent it to New England Pathology Services, Inc.

(hereinafter N.E. Pathology) for analysis. N.E. Pathology, among

other analyses, tested for the presence of Anti-Kell antibodies

1The facts are drawn from the portions of depositions submitted, Mrs. Kidder's affidavit. Dr. Stanley's affidavit. Dr. Drukteinis' reports and the pleadings.

3 in Mrs. Kidder's blood.2 N.E. Pathology's test revealed the

presence of the antibodies but it did not report the results to

either co-defendant and from October 17, 1994 to at least May 5,

1995 neither co-defendant requested the results or monitored N.E.

Pathology for results.

On May 4, 1995, Mrs. Kidder noticed less fetal movement.

The next day, after movement totally stopped, her husband took

Mrs. Kidder to the hospital. When Dr. Newell examined Mrs.

Kidder, she told Mrs. Kidder that the baby was very sick, that

the baby might not survive and that Mrs. Kidder needed to be

transferred to Dartmouth-Hitchcock immediately.

At Dartmouth-Hitchcock Mrs. Kidder was anethesized and a C-

section was performed while her husband watched through a glass

partition. The infant was rushed to intensive care after

delivery. The resuscitation efforts in ICU, watched by Mr.

Kidder, were terminated after approximately thirty minutes. He

broke the news to their families and, when she awakened, to his

wife.

The following day Dr. Sty explained what happened with

respect to the antibodies destroying red blood cells. Plaintiffs

2The antibody in the mother's blood attacks the fetus' cells eventually destroying them to the point that the red blood cells are unable to carry oxygen and the fetus dies. If detected, an intrauterine exchange transfusion can rid the fetus of the antibody.

4 were not told of the N.E. Pathology test results and the

reporting and follow-up failures until six weeks later.

Mrs. Kidder, from the moment her baby stopped moving, felt

scared, guilty, confused and sad. The feelings woke her up at

night and made her feel nauseous and tense. This, Sheila

Stanley, Ed.D. opines, is severe emotional distress. Mr. Kidder

felt (and feels) terrified, sad and depressed. His heart beats

faster, his muscles tighten, he awakens in the middle of the

night and feels sick to his stomach. Again Dr. Stanley, although

she has not seen Mr. Kidder, is of the opinion that Mr. Kidder

experiences extreme emotional distress. Defendant's expert. Dr.

Drukteinis, opines that the Kidders do experience "emotional

symptoms of grief, mild-to-moderate anxiety, sadness and some

depression" which he attributes to the death of Raymond and

describes as bereavement.

3. Analysis

This is a diversity case to which (as the parties

appropriately agree) the substantive law of New Hampshire

applies. Erie R.R. Co. v. Tompkins,

(1937).

Under New Hampshire law, a bystander need not be in the "zone of

danger" to recover for negligent infliction of emotional

distress. Corso v. Merrill,

(1979). Since

Corso, New Hampshire has permitted recovery for negligent

5 infliction of emotional distress where there is (i) a close

relationship between bystander and victim, (ii) geographic

proximity to the accident, (iii) a close connection in time

between the accident and the resulting emotional distress, and

(iv) emotional distress accompanied by objective physical injury.

See

. Defendants first maintain that they are

entitled to partial summary judgment because plaintiffs had no

"contemporaneous perception of the accident and immediate

observance of the accident victim . . . "

. Secondly,

defendants maintain that the emotional distress is not

accompanied by causally related physical injury. See id.; see

also Thorpe v. State,

(1990).

a. physical injury

Defendant Alice Peck initially seeks to support the alleged

lack of resultant physical injury on brief extracts from each

plaintiff's deposition in which each plaintiff denies physical

health problems as a result of the stillbirth delivery of Baby

Raymond (document no. 13, memorandum, p.9). The testimony relied

upon was in response to guestions about physical injury and

implicitly connected emotional distress related to the

stillbirth. The testimony relied upon is responsive to only one

part of the events observed by the parents of the victim, i.e.

the stillbirth.

6 Plaintiff has produced specific facts to demonstrate genuine

material facts from which a reasonable jury could conclude that

each plaintiff suffered physical injury related to and

accompanying their emotional distress. Nauseousness, tenseness,

sleeplessness, increased heartbeat, weight gain and muscle

tenseness are all physical symptoms of the emotional shock.

Neither reply brief addresses the issue of physical symptoms or

injury being related to the emotional distress. If supported by

appropriate expert testimony the physical manifestations set

forth in the depositions and affidavits meet the reguirement of

physical injury related to emotional distress. See Thorpe v.

Dept, of Corrections,

(1990) (stomach problems).

The evidence is to be viewed "in the light most favorable to

the non-movant, with all reasonable inferences indulged in that

party's favor." Pacamor Bearings, Inc. v. Minebea Co., Ltd.,

(D.N.H. 1996). On the Corso prong reguiring

that physical injury accompany the emotional distress, defendants

have failed to meet their burden and I would recommend denial of

the Motion for Summary Judgment on this basis.

b. Plaintiffs' emotional distress and its relationship to their contemporaneous sensory perception of the accident

This is the principal issue upon which the partial summary

judgment battle is joined. The key facts are not in dispute.

7 The anti-kell test was ordered and the blood drawn and forwarded

to the laboratory for testing. The analysis results showing the

antibodies were not forwarded by N.E. Pathology prior to the

stillbirth and neither Dr. Newell or Alice Peck monitored for, or

reguested, the results. If the test results had been known, a

blood exchange transfusion would have been done and Baby Raymond

would not have died. On the day following the stillbirth the

parents were aware that the death was caused by the mother's

antibodies but they were unaware of defendants' negligence or its

relationship to the death until six weeks after the stillbirth.

New Hampshire law reguires that "the emotional injury must

be directly attributable to the emotional impact of the

plaintiff's observation or contemporaneous sensory perception of

the accident and immediate viewing of the accident victim."

Corso,

. As a matter of law was there a

"contemporaneous sensory perception of the accident"?

Alice Peck, in its motion, maintains that in a medical

malpractice case a sensory perception of an accident reguires a

sensory perception of a definable perceivable event, namely

defendant's conduct (document no. 13, Memorandum, pp. 7-8).

Defendants do not claim that the stillbirth was "the accident".3

3By definition a stillbirth is the birth of a dead child and is thus not even a view of the ultimate injury - the death of the victim. In fact, Alice Peck states that "there is no definable,

perceivable event . . . " (document no. 13, p.8). Defendants say

there was no "accident". Instead, as plaintiffs allege in their

complaints, the negligence was a continuing failure to send or

reguest the antibody test results which is not a "perceivable

event." Complaint I, 5518, 25, 30 and 35; Complaint II, 5519,

26, 31, 36, 42, 49, 54, 59. Defendant Newell's "Joinder" goes

one step further, asserting that the necessary sensory perception

of the accident is synonymous with "an awareness at the time of

the injury of the defendant's conduct, or lack thereof, and its

causal relationship to the loved one's injury." (Document no.

14, p.2). Plaintiff, relying principally upon two unpublished

decisions of the Superior Court,4 maintains that the "accident"

test is met if the observation is of the injury resulting from

the defendant's conduct. In reply, defendants acknowledge that

Corso does not reguire that plaintiffs understand defendants'

conduct to be negligent but maintain that, at a minimum, there

must be a temporal appreciation or perception of the negligent

4Hilber v. Horslev, No. 93-C-790, Order on Motion for Summary Judgment (Hillsborough Superior Court, Southern District, May 2, 1995) (the "accident" is the resulting premature death); Aldrich v. Witkin, No. C-94-074 (Belknap County Superior Court, February 15, 1995) (the "accident" is resulting heart attack); but see Bravel v. White, No. 96-C-0238 (Strafford County Superior Court, May 27, 1997) (the "accident" criteria is not met by observation of a slow deterioration from misdiagnosed cancer). conduct in relation to a definable moment - the accident.

Plaintiffs in their reply assert that this court has clearly

recognized that Corso does not require appreciation of the

conduct.5

The arguments of the parties demonstrate the difficulty of

applying the Corso standard to many medical malpractice fact

patterns. It is not difficult to find a contemporaneous sensory

perception of the accident and viewing of the victim where a

mother holds a child while a doctor mistakenly injects an unsafe

dose of glucose and dye into the child followed shortly by

convulsions and a comatose state. See Mobaldi v. Regents of

University of California, 55 Cal. Ap p . 3d 573 (1976). It is far

more difficult to apply the Corso factors where the emotional

distress was caused by an awareness of the distress of the child

in the womb, a resultant stillbirth and an unsuccessful

resuscitation; where no overt act of negligence is observed and

no specific event as a consequence of the negligence is observed;

but simply an unperceived failure to obtain test results in time

to perform an intrauterine exchange which would have prevented

5See Pond v. Maiercik, No. CV-94-225-M (D.N.H. February 21, 1996) (plaintiff observed parachutist's husband's body descending limply on reserve chute but did not witness the impact with chase plane); Patterson v. Star Island Corp., No. CV-92-400-B (D.N.H. February 19, 1993) (father heard crowd reaction to son being hit on head by baseball bat).

10 the inevitable natural death from the mother's antibodies. Does

New Hampshire require an "accident" and, if so, what is an

"accident" in this context?

Prior to its decision in Corso, New Hampshire denied

recovery to parental bystanders who were not in the "zone of

danger" but who suffered emotional distress from their

observation of an accident and injury to or death of their child.

See Jellev v. LaFlame,

,

(1968). The

refusal to grant relief was premised upon a balancing of social

interests and a concern that such a cause of action had no

sensible, rational stopping point. In his dissent

in Corso Justice Grimes wrote:

Although this case professes to be limited to situations where the parent is near enough to hear the accident and then see the child, how long will it be before the law will be extended . . . [0]nce the court enters on this course there is no sensible point at which to stop . . . .

Corso,

.

The Corso majority set out what it believed were criteria

which established the sensible point to stop:

The emotional injury must be directly attributable to the emotional impact of the plaintiff's observation or contemporaneous sensory perception of the accident and immediate viewing of the

11 accident victim. Therefore, recovery will not be permitted for emotional distress . . . for grief that may follow from the death of the related accident victim.

((citations omitted)(emphasis added)). The New

Hampshire Supreme Court since Corso has shown its determination

not to expand the doctrine. See Nutter v. Frisbee Memorial

Hospital,

(1984) (a parent who views a child

one-half hour after death caused by medical malpractice is not

close enough to experience the accident first hand); Wilder v.

City of Keene,

(1989) (denying recovery to

parents who viewed a child in extremis after an accident but who

did not see or hear the accident, because the facts did not meet

the Corso reguirement of a "contemporaneous sensory perception of

the accident, and not, as the plaintiff argues, a perception of

the injury standard"); but see Wald v. Ford Motor Co.,

(1984) (permitting Corso to apply retroactively to permit the

emotional distress claim of a wife who came upon the fatal

accident scene of her husband shortly after the accident). In

short, the Corso "perimeters have been vigilantly policed."

Kassel v. Gannett Co., Inc.,

(1st Cir. 1989).

As is apparent from Corso itself. New Hampshire does not

reguire that the parent see the accident but the parent must be

close enough to experience it at first hand. See Nutter, 124

12 N.H. at 795. While plaintiff is correct that Corso does not

require a sensory perception of the "impact" portion of an

accident, C f . Pond v. Maierick, supra, it is clear that the New

Hampshire Supreme Court requires that the focus must be "on

whether the plaintiffs observed or perceived the accident when it

occurred, not on whether they observed or perceived the injuries

their child sustained." Wilder,

. The

requirement that there be an "accident" which causes an "injury"

both of which must be observed or perceived, cannot be met by

defininq "accident" as synonymous with "injury". Otherwise the

Corso requirements become not only arbitrary but meaninqless as

well. "Accident," as used in Corso, must mean the event or

events which produce the injury.

The natural process of the mother's antibodies upon the red

blood cells of the child is the injury producinq event or events.

The neqliqence of defendants was the failure to interrupt that

series of naturally occurrinq, injury producinq, events. There

simply was no accident for plaintiffs to observe. Plaintiffs did

not observe defendants' neqliqence; did not observe any injury

producinq event or events; and certainly did not perceive any

connection between the neqliqence or injury producinq events and

the injury.

To the extent that Hilber, supra and Aldrich, supra

13 represent lower court decisions which equate "injury" with

"accident" I view them as inconsistent with the New Hampshire

Supreme Court's expressed view that it is the "accident" not the

"injury" that must be perceived. See Wilder,

.

" [L]itigants who reject a state forum in order to bring suits in

federal court under diversity jurisdiction cannot expect that new

trails will be blazed." Ryan v. Royal Ins. Co. of America,

(1st Cir. 1990). I conclude that New Hampshire

will reject the journey of the California courts6, and will apply

Corso strictly.

The court fully acknowledges plaintiffs' terrible loss has

produced emotional distress. However, grief resulting from the

injury or death itself does not permit recovery under the Corso

cause of action. See Corso,

. Plaintiffs can only

6After twenty years of relaxation of Dillon "guidelines" the California Supreme Court returned to the guidelines, tightening them into a rule: [A] plaintiff may recover damages for emotional distress . . . only if . . . plaintiff: (1) is closely related to the injury victim; (2) is present at the scene of the injury producing event at the time it occurs and is then aware that it is causing injury to the victim; and (3) as a result suffers serious emotional distress.

Thing v. LaChusa, 48 Cal. 3d. 644,

(1989). California came full circle to tighten the requirements.

14 recover for that emotional distress directly caused by a

contemporaneous sensory (i.e., conscious perception) of both an

accident and the injury to the child. See

Construing the

record most favorably to plaintiffs, the facts lead to only one

legal conclusion under Corso that summary judgment is

appropriate. I recommend that the summary judgment be entered as

to counts III, IV of the May 1, 1996 complaint and as to counts

III and IV of the July 18, 1996 complaint.

Any objections to this report and recommendation must be

filed within ten days of receipt of this notice. Failure to file

objections within the specified time waives the right to appeal

the district court's order. See Unauthorized Practice of Law

Committee v. Gordon,

(1st Cir. 1992); United

States v. Valencia-Copete,

(1st Cir. 1986) .

James R. Muirhead United States Magistrate Judge

Date: November 10, 1997

cc: Mark A. Abramson, Esg. Michael P. Lehman, Esg. William L. Chapman, Esg. Michael A. Pignatelli, Esg.

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