Third Circuit Decides Wrongful Life Case

A federal appeals court has upheld a district court decision denying the product liability claims of a plaintiff against a tissue bank which allegedly sold defective sperm with a genetic mutation that allegedly caused her child's developmental disabilities. D.D. v. Idant Laboratories, 2010 WL 1257705  (3d Cir. 4/1/10). The case presents some of the interesting issues when traditional products doctrine confronts 21st century medical technology.

Plaintiff sought to be artificially inseminated with semen provided by defendant Idant. She selected the semen of a specific donor, and was told the specimen had been tested in conformity with New York Health Regulations. Following successful insemination, the child was born, but according to plaintiff, was soon displaying abnormalities such as “trouble sleeping, tantrums, and anxiety as well as developmental delays.”  Plaintiff found an expert who opined that there was a connection between the purchase from defendant and the child's developmental problems.

The district court dismissed the child's claims, under NY law, for strict products liability, third party beneficiary breach of express warranty, third party beneficiary breach of implied warranty of merchantability, and third party beneficiary breach of contract, as claims based on an impermissible "wrongful life theory."

Guided by the principle that, whether it is better never to have been born at all than to have been born with even gross deficiencies, is a mystery more properly to be left to philosophers and theologians, see Becker v. Schwartz, 46 N.Y.2d 401, 411, 413 N.Y.S.2d 895, 386 N.E.2d 807 (1978), New York courts have held that a cause of action may not be maintained on behalf of an infant plaintiff based on a claim of wrongful life. Sheppard-Mobley v. King, 4 N.Y.3d 627, 797 N.Y.S.2d 403, 830 N.E.2d 301, 305 (N.Y.2005).  Wrongful life cases pose particularly thorny problems of injury and in the damages context: “Simply put, a cause of action brought on behalf of an infant seeking recovery for wrongful life demands a calculation of damages dependent upon a comparison between the Hobson's choice of life in an impaired state and nonexistence. This comparison, the law is not equipped to make.” Becker, 46 N.Y.2d at 412, 413 N.Y.S.2d 895, 386 N.E.2d 807.

The Third Circuit agreed that regardless of whether a particular cause of action is denominated as one of contract, products liability, or something else, all of the claims on behalf of the child here suffered from the same legal defect: the lack of a cognizable injury. In arguing that the defective semen left the child impaired and in need of costly treatment, plaintiff was essentially saying that the genetic makeup was the injury. But New York law, which controlled here, states that she, like any other child, does not have a protected right to be born free of genetic defects. To find the contrary would invite litigation for any number of claimed injuries and, even more problematic, would require courts to identify certain traits below some arbitrarily established marker of perfection as “injuries.”  Accordingly, the court of appeals concluded that, applying New York law, the causes of action asserted failed to identify damages different from those for wrongful life.

If readers are interested in wrongful life issues, see also Daniels v. Delaware, 120 F. Supp. 2d 411 (D. Del. 2000); Reed v. Campagnolo, 810 F. Supp. 167 (D. Md. 1993), certifying questions to 630 A.2d 1145 (Md. 1993); Gildiner v. Thomas Jefferson Univ. Hosp., 451 F. Supp. 692 (E.D. Pa. 1978) (interpreting Pennsylvania law); Phillips v. United States, 575 F. Supp. 1309 (D.S.C. 1983) (interpreting South Carolina law); DiNatale v. Lieberman, 409 So. 2d 512 (Fla. Dist. Ct. App. 1982); Atlanta Obstetrics & Gynecology Group v. Abelson, 398 S.E.2d 557 (Ga. 1990); Blake v. Cruz, 698 P.2d 315 (Idaho 1984); Goldberg v. Ruskin, 499 N.E.2d 406 (Ill. 1986); Cowe v. Forum Group, Inc., 575 N.E.2d 630 (Ind. 1991); Bruggeman v. Schimke, 718 P.2d 635 (Kan. 1986); Taylor v. Kurapati, 600 N.W.2d 670 (Mich. Ct. App. 1999); Wilson v. Kuenzi, 751 S.W.2d 741 (Mo. 1988); Greco v. United States, 893 P.2d 345 (Nev. 1995); Smith v. Cote, 513 A.2d 341 (N.H. 1986); Karlsons v. Guerinot, 57 A.D.2d 73 (N.Y. App. Div. 1977); Azzolino v. Dingfelder, 337 S.E.2d 528 (N.C. 1985); Ellis v. Sherman, 515 A.2d 1327 (Pa. 1986); Nelson v. Krusen, 678 S.W.2d 918 (Tex. 1984); James G. v. Caserta, 332 S.E.2d 872 (W. Va. 1985).