Halper v. Jewish Fam. & Children's Service, No. 2 EAP 2007.

Decision Date19 February 2009
Docket NumberNo. 2 EAP 2007.,No. 3 EAP 2007.
Citation963 A.2d 1282
PartiesJack HALPER and Marlene Halper, h/w, and David Halper, Appellants v. JEWISH FAMILY & CHILDREN'S SERVICE OF GREATER PHILADELPHIA, Appellees (Two Cases).
CourtPennsylvania Supreme Court

Edward H. Rubenstone, Lamm Rubenstone, LLC, Trevose; Samuel C. Tataro, Mellon, Webster & Shelly, P.C., Doylestown, for Jack Halper and Marlene Halper, h/w, and David Halper, appellants.

Naomi A.P. O'Neill, for Jewish Family & Children's Service of Greater Philadelphia, appellees.

BEFORE: CAPPY, C.J., CASTILLE, SAYLOR, EAKIN, BAER, BALDWIN and FITZGERALD, JJ.

OPINION

Justice EAKIN.

Jack and Marlene Halper adopted their son, David, in 1964 through Jewish Family and Children's Service of Greater Philadelphia. David's life has been riddled with mental health problems, treatment, suicide attempts, continuous drug abuse, and poor social relationships. In 1979, David was hospitalized for depression, drug dependence, and adolescent adjustment reaction following a suicide attempt. From 1980 through 1999, the Halpers and David sought his birth mother's medical records to facilitate treatment and insight into David's problems.

The Agency had a file on David's birth mother, which included a psychiatrist's letter indicating she suffered from undifferentiated schizophrenia. That letter was not in David's file; apparently it had been placed in the file of David's younger sibling, who was also placed for adoption through the Agency. It was not produced for the plaintiffs until 1999.

The Halpers1 brought an action against the Agency alleging two theories of negligence. First, the Halpers alleged "wrongful adoption," i.e., the Agency improperly failed to notify them of David's birth mother's mental history. Second, the Halpers asserted the Agency negligently misfiled the birth mother's medical information, so that when they later sought such information, it was not available; as a result, David did not receive the psychiatric care he might have otherwise received. David brought his own action, which mirrored the claims in the Halpers' second "failure to disclose" theory.

The jury returned a general verdict finding the Agency negligent; the jury was not asked to differentiate between the "wrongful adoption" and "failure to disclose" theories. The jury awarded the Halpers $225,000 and David $75,000. The Halpers and the Agency appealed.

On appeal, the Superior Court found the verdict "too muddled to be legally supported." Halper v. Jewish Family and Children's Service of Greater Philadelphia, No. 2476 EDA 2004, 2005 WL 3417271 and No. 2517 EDA 2004, unpublished memorandum at 4, 2005 WL 3417273 (Pa.Super. filed September 6, 2005). It found the Halpers presented conflicting expert testimony regarding whether David was properly diagnosed as schizophrenic, or major depressive with psychotic features. Id., at 5-6. However, relying on Brannan v. Lankenau Hospital, 490 Pa. 588, 417 A.2d 196 (1980), the Superior Court embraced the Agency's argument that at the time of the adoption, schizophrenia was believed to be a reactive disorder of the mind, not as an inherited or foreseeable condition; thus, it would not have been negligent to have kept that information from the Halpers. Id., at 6-7 (citing Gibbs v. Ernst, 538 Pa. 193, 647 A.2d 882, 891 (1994)). As the verdict sheet did not differentiate between the two theories of negligence offered, the verdict was problematic because David was only able to recover under the second theory of liability, negligent failure to disclose, as opposed to negligent misrepresentation. Therefore, the Superior Court reversed the judgment and remanded for a new trial concerning David's claim, limited to the issue of negligent failure to disclose, i.e., the misfiling of David's birth mother's medical information and the resulting damages. Id., at 8. The court noted all other claims raised were relevant to the issue of wrongful adoption and were rendered moot. Id., at 10. For reasons unstated, the remand was limited to David's claim alone.

Justice Montemuro dissented, finding the expert testimony was not so contradictory that the jury was left with no guidance regarding the nature of David's mental illness. Halper v. Jewish Family and Children's Service of Greater Philadelphia, No. 2476 EDA 2004, 2005 WL 3417271 and No. 2517 EDA 2004, unpublished memorandum at 2, 2005 WL 3417273 (Pa.Super. filed September 6, 2005) (Montemuro, J., dissenting). The dissent stated the testimony can be reconciled as there are two complimentary explanations for the variant diagnoses. First, the ingestion of medication could affect diagnoses, and second, David was difficult to diagnose because many major psychiatric disorders are "co-morbid," disorders that occur together. Id., at 2-3. Furthermore, Justice Montemuro opined that under Gibbs, failure to disclose applies in the adoption context; thus, the Halpers were under no obligation to show it was foreseeable that David's birth mother's mental health problems might negatively impact David in order to establish the Agency had a duty to disclose information regarding her mental illness. Id., at 3-4. The Halpers and David appealed.

We granted allowance of appeal to determine:

1. Whether the Superior Court erred in its interpretation and application of Gibbs v. Ernst, 538 Pa. 193, 647 A.2d 882 (1994) in this appeal.

2. Whether the Superior Court erred in its interpretation and application of Brannan v. Lankenau Hospital, 490 Pa. 588, 417 A.2d 196 (1980) in this appeal.

3. Whether the Superior Court erred in failing to remand Jack and Marlene Halper's claim for failure to timely produce the medical history of the adoptee's birthmother for a new trial.

4. Whether the Superior Court erred in concluding that there was an absence of evidence to establish that Jack and Marlene Halper would not have adopted David Halper had they known of the birthmother's mental health.

Halper v. Jewish Family and Children's Service of Greater Philadelphia, 591 Pa. 399, 919 A.2d 184 (2007). "Although all new trial orders are subject to appellate review, it is well-established law that, absent a clear abuse of discretion by the trial court, appellate courts must not interfere with the trial court's authority to grant or deny a new trial." Harman ex rel. Harman v. Borah, 562 Pa. 455, 756 A.2d 1116, 1121-22 (2000) (citations omitted). We are faced with questions of law, which are subject to de novo review, and our scope of review is plenary. In re Milton Hershey School, 590 Pa. 35, 911 A.2d 1258, 1261 (2006).

The Halpers first argue they were under no obligation to show the foreseeability of David's birth mother's mental illness in order to establish the Agency had a duty to disclose the information concerning her condition. They also assert the Superior Court majority erred in its interpretation and application of this Court's decision in Gibbs in holding the duty of adoption agencies with regard to negligent misrepresentation is only applicable where the condition of the child was foreseeable at the time of placement. The Halpers agree with the dissent, which discussed the Agency's duty to fully disclose all non-identifying information about a child without attaching a foreseeability element.

The Agency counters the Superior Court correctly interpreted Gibbs in determining the foreseeability element is required in the context of both negligent misrepresentation and negligent failure to disclose. Additionally, the Agency argues Gibbs only required disclosure of relevant information, and in 1964, David's birth mother's mental health condition was considered a product of her environment and not genetic thus, such information was irrelevant and was not required to be disclosed.

The issue in Gibbs was whether the Commonwealth recognized causes of action such as wrongful adoption and negligent placement of adoptive child. Gibbs, at 884. Gibbs likened wrongful adoption to the common law tort of negligent misrepresentation, which contains the following elements:

(1) a misrepresentation of a material fact; (2) the representor must either know of the misrepresentation, must make the misrepresentation without knowledge as to its truth or falsity or must make the representation under circumstances in which he ought to have known of its falsity; (3) the representor must intend the representation to induce another to act on it; and (4) injury must result to the party acting in justifiable reliance on the misrepresentation.

Id., at 890 (citing W. Page Keaton, Prosser and Keaton on the Law of Torts § 107, at 745-58 (5th ed. 1984)). Gibbs held negligent misrepresentation was applicable in the adoption context, and requires agencies to make reasonable efforts to make true representations to prospective parents. Id., at 890-91. Gibbs specifically noted negligent misrepresentation is aptly restricted by "the common law notion of foreseeability as found in the concepts of duty and proximate cause to prevent it from becoming in any way a guarantee or warranty of a child's future health." Id., at 891. "Accordingly, under the traditional principles of negligence, the duty of adoption agencies for the purposes of negligent misrepresentation will only apply where the condition of the child was foreseeable at the time of placement so that the agency is blameworthy in making a misrepresentation." Id., at 892 (citation omitted).

Gibbs also noted negligent failure to disclose relevant information is equally applicable in the adoption context; however, in this regard Gibbs held "an adoption agency has a duty to disclose fully and accurately to the adopting parents all relevant non-identifying information in its possession concerning the adoptee." Id. Gibbs noted the Adoption Act specifically provided confidential or privileged information must be released after identifying information concerning the biological parents has been...

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