Minor v. Bethany Christian Serv.
| Decision Date | 28 May 2010 |
| Docket Number | Case No. 1:08-cv-104. |
| Citation | 714 F.Supp.2d 771 |
| Parties | William G. and Julie A. HARSHAW, Husband and Wife, individually and as Guardian of Roman A. Harshaw, a minor, Plaintiffs, v. BETHANY CHRISTIAN SERVICES, a Michigan corporation, and Bethany Christian Services Int'l, Inc., a Michigan corporation, and Bethany Christian Services-Hampton Roads, a Michigan corporation, Defendants. |
| Court | U.S. District Court — Western District of Michigan |
OPINION TEXT STARTS HERE
COPYRIGHT MATERIAL OMITTED.
Kevin A. Rynbrandt, Rynbrandt & Associates, Grand Rapids, MI, Elissa B. Heinrichs, Samuel C. Totaro, Jr., Thomas E. Mellon, III, Thomas Edward Mellon, Mellon Webster & Shelly, Doylestown, PA, for Plaintiffs.
Cameron R. Getto, Mark J. Zausmer, Zausmer Kaufman August Caldwell & Tayler, PC, Farmington Hills, MI, for Defendants.
“ Harshaw 7”
This is a diversity tort case brought by Virginia citizens William “Chip” Harshaw and Julie Harshaw (“the Harshaws”) with respect to their adoption, initiated at a Virginia office and ultimately approved by a Virginia court, of a Russian boy. Applying Michigan choice-of-law rules, all claims and issues in the case are governed by the substantive law of Virginia. The Harshaws, a married couple, adopted their son Roman from a Russian orphanage under the auspices, and with the services of, defendants Bethany Christian Services of Hampton Roads (“BCS-HR”), Bethany Christian Services (“BCS”) and Bethany Christian Services International, Inc. (“BCSI”), all of whom are Michigan corporations with principal places of business in Grand Rapids, Michigan. On their own behalf, the Harshaws assert counts 1-3, common-law claims for intentional misrepresentation, negligent misrepresentation, and negligent failure to disclose. In their capacity as Roman's parents and legal guardians, the Harshaws assert count 4, Roman's claim for negligent failure to disclose medical information both before and after the adoption.
After extensive motion practice regarding diversity citizenship, the statute of limitations, and choice of law, the parties have filed dispositive motions on the merits of the controversy. The defendants move to dismiss counts 3 and 4 on the ground that Virginia does not recognize a cause of action for negligent failure to disclose. For the reasons that follow, the court will deny the motion to dismiss on both grounds. The defendants also move for summary judgment on all four counts, and the Harshaws cross-move for summary judgment on counts 2, 3 and 4. For the reasons that follow, the court will grant summary judgment to the defendants only on count 4 (Roman's claim for negligent failure to disclose) and will otherwise deny the cross-motions for summary judgment.
In response to a BCS advertisement, the Harshaws attended an informational meeting at BCS's regional office in Virginia Beach, Virginia on June 12, 2003, and the next day they submitted a preliminary application to adopt through BCS in Russia, China or Guatemala. The application stated that they would accept a child with “very minor medical problems and would not consider a child with moderate to severe medical problems.” They submitted an Application for International Adoption to BCS on June 18, 2003 which stated that they were “interested in parenting a child that [sic] has a positive prognosis for both mental and physical development.” Plaintiffs' Complaint filed February 2008 (“Comp.”) ¶¶ 11-15 and Exs. A & B.
As part of a pre-adoption family assessment, BCS-HR interviewed the Harshaws together on July 11, 2003, then conducted individual interviews with Julie Harshaw on July 22, William Harshaw on July 25, and their six-year-old son Daniel on August 12, 2003. See P's MSJ Ex. F (final Adoptive Family Assessment, dated August 22, 2003) at Bates Number BCS-000153. During this assessment period, the Harshaws signed an International Adoption Services Agreement, see Comp. ¶¶ 17-18 & Ex. C.
Allegedly relying on BCS's claimed experience and expertise in international adoption, the Harshaws understood that if the assessment was favorable, BCS would act as intermediary and/or fiduciary on their behalf to effectuate an adoption. Id. ¶¶ 16 & 19. On August 22, 2003, BCS issued an assessment stating that the Harshaws “feel equipped to parent a child who may have a minor, correctable problem with a good prognosis for normal development.” It approved them to adopt a Russian child aged 12 to 36 months who had (at most) a “minor, correctable problem with a good prognosis for normal development.” Id. ¶¶ 20-22 & Ex. D. They paid BCS $16,000. Id. ¶ 24; see also Plaintiffs' Reply Brief in Support of Motion for Summary Judgment on Counts 2, 3 and 4 (“P's Reply”) Ex. FF (undated BCS document entitled “Fees Associated with International Adoption” and listing, inter alia, fees of $50 for preliminary application fee, $950 formal application, $800 adoptive family assessment, $750-$1500 Post-Placement Service, as well as $3,000 for “Processing of adoption through Bethany's International Program”).
BCS representative Jeannie Walton initially referred a Russian child for the Harshaws, but the child had been severely burned by his mother and suffered medical problems as a result. The Harshaws declined and emphasized to BCS that they could only accept a child with minor, correctable conditions and a prognosis for normal development. Next, BCS provided them with Roman's name, age, sex, and photograph; a two-page document said to be an English translation of Roman's medical records at his orphanage; and an untranslated videotape showing what appeared to be Roman interacting with his caregivers in Russia. See Comp. ¶¶ 25-29 and Ex. E.
Doctor Dubrovsky's Role.
Comp. ¶ 31. Dr. Dubrovsky earned his medical degree in Kiev, Ukraine, in the field of Adult Medicine, and he had no specialized knowledge or training in pediatrics, see P's MSJ E (Dubrovsky Dep.) at 87:20 to 88:24. He stated that he received $9,500 for his work in Roman's case, but he claims that he never reviewed or commented on any documents going back and forth between Russia and Bethany, never reviewed any medical information, and never translated any documents. Dr. Dubrovsky initially seemed to say that his only function in the entire adoption process was to serve as a conduit (in the words of plaintiffs' counsel) or, as he put it, a “transfer person.” See P's MSJ E (Dubrovsky Dep.) at 67:12 to 69:8. But Dr. Dubrovsky then explained that it is difficult to find people in Russia “who will work close to Western manner of job,” which means people, such as Yelena, who can bridge the gap between the “absolutely different mentality of United States people and Russian people and Russia[n] facilities,” which to him means being trustworthy, reliable, and patient with certain questions from prospective adoptive parents visiting Russia, see P's MSJ E (Dubrovsky Dep.) at 69:9 to 70:23.
Allegedly relying on Walton's assurances regarding Dr. Dubrovsky's purported favorable examination of Roman et al., the Harshaws traveled to the orphanage in Krasnoyarsk, Russia in December 2003, with BCS representatives Aleksandr “Alex” Vladimirovich and Yelena Vladimirovna acting as interpreters and guides. 1 They were permitted to see Roman for only about one hour. Noting that Roman looked thin and perhaps ill, the Harshaws asked interpreter Alex if Roman was okay; after consulting orphanage staff, Alex told the Harshaws that Roman had had bronchitis. The Harshaws asked for more information about Roman and his mother's social and medical background, but Alex said none was available. They saw Roman for an hour the next day, then returned to America and met again with BCS's Jeannie Walton. See Comp. ¶¶ 32-38.
When Walton asked how Roman looked and the Harshaws responded that he “appeared as if he might have been sick but otherwise appeared okay”, she reassured them that what they saw was common in institutionalized children, and his issues were minor and often resulted from malnutrition and crowded conditions. Walton asked if they wished to proceed, and they said yes. Id. ¶¶ 38-40.
2004: The Adoption and its Immediate Aftermath.
The next month, January 2004, the Harshaws returned to Russia to attend the final adoption hearing. When they took physical custody of Roman at the orphanage, they asked if there were any more medical records regarding Roman or his mother and were told there were none, and BCS never provided any additional medical information from then until after the adoption....
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