Ross v. Louise Wise Services, Inc.

• Citation: 868 N.E.2d 189,8 N.Y.3d 478
• Decision Date: 03 May 2007
• Docket Number: 58.
• Parties: Arthur ROSS et al., Respondents-Appellants, v. LOUISE WISE SERVICES, INC., Appellant-Respondent.
• Court: New York Court of Appeals

868 N.E.2d 189

8 N.Y.3d 478

Arthur ROSS et al., Respondents-Appellants, v. LOUISE WISE SERVICES, INC., Appellant-Respondent.

58.

Court of Appeals of New York.

May 3, 2007.

Sedgwick, Detert, Moran & Arnold LLP, New York City (David M. Covey and Caryn M. Silverman of counsel), for appellant-respondent.

Phillips Nizer, LLP, New York City (Michael J. Silverberg and Bruce Turkle of counsel), for respondents-appellants.

OPINION OF THE COURT

KAYE, Chief Judge.

Plaintiffs, adoptive parents Arthur Ross and Barbara Ross, have asserted three causes of action against Louise Wise Services: wrongful adoption/fraud; negligence and breach of fiduciary duty; and intentional infliction of emotional distress. On defendants' motion for summary judgment, we conclude that, while plaintiffs may seek compensatory damages, punitive damages are not available for the first claim in this case, and statutes of limitations bar the second and third claims.

Facts

In 1960 plaintiffs applied to Louise Wise (the Agency) for assistance in adopting an infant.¹ They told the Agency that they preferred a "healthy infant from a healthy family," and that "it would be nice if the baby's birth family had an artistic background." Mr. Ross was nationally recognized in the advertising field, had won awards and made a good salary, and the couple were engaged in various cultural activities. According to one social worker who had interviewed them, plaintiffs were mature, seemed comfortable about adopting a child and could handle the situation "better than the average couple with whom we place a child."

In the spring of 1961 plaintiffs were offered a boy, born January 11, 1961. In response to plaintiffs' question about the health of the baby and his biological family, the social worker told plaintiffs this was "a demanding baby who likes attention." She described the physical appearance and artistic interests of the birth parents and indicated that they were healthy but the birth father was allergic to penicillin and the maternal grandfather had died of heart disease. The Agency did not, however, disclose that either of the birth parents or members of their families had suffered from emotional disturbance.

According to Agency files, the biological mother never had a "normal" home life. In 1952, her father, the baby's biological grandfather, was hospitalized for 1½ years for schizophrenia when he was in his mid-60s. The report also indicated that the birth mother was worried that her feelings of stress could affect the baby. She and the biological father married only because she was pregnant. She had seen a psychiatrist, who wrote to the Agency that the mother "presented as a girl who was failing in her major adjustments to life: late to school with the result that she failed to maintain matriculation at two colleges; few friends; hostility to most people; and demanding dependency." The biological father, according to the files, saw a psychiatrist, who, after one meeting, stated that the father was "a seriously disturbed young man, classified him as a paranoid, schizophrenic, and felt he had married purely for her [the birth mother's] money." The doctor also noted that, while the birth father could use treatment, "there was no rush."

Plaintiffs accepted the child, and on March 30, 1961, took home the baby they named Anthony. Although he was an active, difficult infant who could not sleep well, Ms. Ross attended to him and he was a happy baby. The adoption was finalized in 1962, and in 1964 plaintiffs adopted a daughter from the Agency. By the time Anthony was four, his troublesome behavior led plaintiffs to seek professional help.

Postadoption Events

In 1970, when Anthony was nine years old and the difficulties increased, plaintiffs called the Agency and were directed to Barbara Miller, head of the Post-Adoption Service. Plaintiffs told Miller that Anthony was experiencing "night terrors," cursed at the family, hit his parents and threatened people with objects. Ms. Ross suspected that he was hyperactive and might have brain dysfunction. Plaintiffs asked whether there could have been problems with the birth mother, whether she had taken drugs, whether she attempted to abort the pregnancy or whether there was birth trauma. Miller recommended that plaintiffs see a psychiatrist, Dr. Anne-Marie Weil, associated with the Agency. Miller's letter to Weil noted that Anthony's birth mother and grandfather "had histories of emotional instability"; however, Miller did not give Weil any specifics of the schizophrenia, and neither Miller nor Weil told plaintiffs of any emotional instability. Weil never saw Anthony himself, and her suggestions for behavior modification were to no avail.

While Ms. Ross wished to get treatment for Anthony, Mr. Ross disagreed and hoped that Anthony would grow out of his disruptive behavior. In 1973, after Anthony's school advised plaintiffs that Anthony needed a special school, they called Miller again to ask that she send a summary of Anthony's "birth history, background and foster home experience to Dr. Stella Chess," a well-known child psychiatrist plaintiffs had engaged. Although Miller mentioned in her report to Chess that Anthony was a tense, active baby, she did not tell the doctor of the birth parents' history of schizophrenia. In the same call to Miller, Ms. Ross indicated that she suspected more and more that Anthony's difficulties were organically based and divulged that she was forced to separate herself from her son as much as possible since his violence was getting progressively worse.

When she phoned the Agency in 1981, Ms. Ross told Miller that, fearful of her own and her daughter's physical well-being she had moved out of her home in 1978 when Anthony had finished a special high school. Plaintiffs divorced in 1979. The daughter then lived with her mother and Anthony with his father. Though Miller stated in her notes that Anthony remained disturbed and undiagnosed, she mentioned nothing to plaintiffs about his biological background.²

Anthony continued to live with his father and graduated from college. Over the years, he did see several doctors, none of whom could assist him. He had some odd jobs but could not keep any. Ms. Ross called the Agency in 1994 and told them that she thought Anthony had ADHD. The Agency again did not disclose any information, including that it had received a call in 1984 that Anthony's birth mother had committed suicide in 1973. Anthony's behavior became more erratic, and he started to see a psychiatrist again. In 1995, when Anthony was 34, Mr. Ross woke up to find his son about to hit him with a large flashlight. Anthony was taken to Bellevue, where he was diagnosed as a paranoid schizophrenic.

The Action

The New York Times Magazine on March 14, 1999, published an article, What the Jumans Didn't Know About Michael, describing a family who adopted a boy from the Agency and learned years later that the birth family's history included schizophrenia. As a result, plaintiffs sought Anthony's medical records. These were sent in April 1999, and plaintiffs filed suit on June 25, 1999. Plaintiffs testified in their depositions that much as they love Anthony, they would not have adopted him before they saw him if they had been told about the schizophrenia in his biological family, and that psychiatrists might have treated him differently had disclosure been made earlier. Further, they claimed that the stresses in their family resulted in both plaintiffs' clinical depression, the dissolution of their marriage and lost employment.

Agency Policies in the 1960s and 1970s

In the 1960s and 1970s, the belief among the social workers and psychiatrists who worked for the Agency was that, in the development of a child, nurture played a far more significant role than nature. For that reason, the policy of the Agency was not to disclose certain information about a birth family's medical history if the doctors were unsure whether the factors were hereditary. Anita Longo Sorensen, the Agency's expert witness, expressed this opinion in an affidavit and added:

"Moreover, it was the belief and general opinion of social workers and other professionals in the adoption field at those times that mental illness would not be passed on if a child were placed in a loving environment.

"It was also the general opinion and belief of social workers and other professionals in the adoption field at those times that the disclosure of certain information to prospective adoptive parents would interfere with the bonding between adoptive parent and child and prove detrimental to the child, the parents and their relationship. Therefore, it was the practice of social workers and other professionals in the adoption field in the 1960s and into the early 1980s not to disclose information that could be viewed as negative and which was not believed to be hereditary for fear that it would influence the family adversely on how they would nurture the adopted child. This practice remained in effect until changes were made in the Social Services Law and the Public Health Law in the early-mid 1980s."

Specifically, psychiatrists were unsure about the hereditary factors of mental illness and therefore would not discuss with adoptive parents mental disturbances of the biological family. Florence Kreech, Executive Director of the Agency during that period, testified that their psychiatrists "felt for many, many years we knew so little about schizophrenia and they felt very strongly about not putting labels on people." Kreech knew that studies were underway, but the Agency's psychiatrists "knew too little about hereditary factors," and had no certain information that a child of a parent or parents who had schizophrenia had a greater risk of developing it. "[T]here were children that may have come from parents—and, again, they wouldn't put labels on them—whose parents were disturbed, but it did not necessarily follow that the children...