Rousseau v. Coates, Case No. 2:18-cv-205

• Court: United States District Courts. 2nd Circuit. District of Vermont
• Writing for the Court: William K. Sessions III, U.S. District Court Judge
• Citation: 488 F.Supp.3d 163
• Docket Number: Case No. 2:18-cv-205
• Decision Date: 18 September 2020
• Parties: Cheryl ROUSSEAU and Peter Rousseau, Plaintiffs, v. John Boyd COATES, III, M.D., and Central Vermont Medical Center, Inc., Defendants.

488 F.Supp.3d 163

Cheryl ROUSSEAU and Peter Rousseau, Plaintiffs,
v.
John Boyd COATES, III, M.D., and Central Vermont Medical Center, Inc., Defendants.

Case No. 2:18-cv-205

United States District Court, D. Vermont.

Signed September 18, 2020

488 F.Supp.3d 164

Celeste E. Laramie, Esq., Jerome F. O'Neill, Esq., Gravel & Shea PC, Burlington, VT, for Plaintiffs.

Curtis Carpenter, L.S., Esq., Pro Hac Vice, Peter B. Joslin, Esq., Theriault & Joslin, P.C., Montpelier, VT, for Defendants.

OPINION AND ORDER

William K. Sessions III, U.S. District Court Judge

In 1977, Defendant John Boyd Coates, M.D. agreed to artificially inseminate Plaintiff Cheryl Rousseau with genetic material from an unnamed medical student. In 2018, Cheryl and her husband, Plaintiff Peter Rousseau, allegedly discovered that the biological father of their now-grown daughter is, in fact, Dr. Coates. The Complaint

488 F.Supp.3d 165

brings several causes of action, including medical malpractice, breach of contract, fraud, battery, and a claim under the Vermont Consumer Protection Act ("VCPA").¹ Dr. Coates now moves for summary judgment on the Rousseaus’ battery, breach of contract, and fraud claims. For the reasons set forth below, the motion for summary judgment is denied.

Factual Background

Peter and Cheryl Rousseau married in October 1974. Prior to their marriage, Peter obtained a vasectomy. He later explored whether the vasectomy could be reversed and learned that it could not. Consequently, Cheryl Rousseau asked her gynecologist, Dr. Coates, about artificial insemination services. Dr. Coates allegedly responded, "we do that." As a condition, however, Dr. Coates required a letter from an attorney stating that Peter Rousseau would raise any child born from the procedure as his own. Peter obtained the required letter and Cheryl delivered it to Dr. Coates.

Before the insemination procedure, Cheryl and Dr. Coates discussed the physical attributes of the donor whose genetic material would be used. Cheryl explained to Dr. Coates that she and Peter were seeking a donor who physically resembled her husband. Dr. Coates subsequently informed Cheryl that he had found a donor who met the description of Peter. In addition to resembling Peter, the donor was to be a medical student with above-average intelligence.

After informing Peter that a donor had been found, Cheryl agreed to go ahead with the procedure. She has since testified that she would not have gone forward with the procedure if she had known that Dr. Coates would be the donor. Peter has similarly attested that he would not have gone through with the procedure or agreed to pay for it if he had known that Dr. Coates would be the donor.

The Rousseaus paid $75 cash from their joint bank account to Dr. Coates for the artificial insemination. After the second attempt, Cheryl Rousseau became pregnant. She gave birth to her daughter, Barbara, on December 27, 1977.

In October 2018, the Rousseaus reportedly learned for the first time that Dr. Coates is Barbara's biological father. Cheryl Rousseau claims that as a result of this discovery she has suffered a loss of trust, lost sleep, and has stopped participating in her normal activities. Peter Rousseau has allegedly suffered from anxiety.

Discussion

I. Summary Judgment Standard

Summary judgment is appropriate when the record shows that there is "no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a) ; see also Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Disputes concerning material facts are genuine where the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In deciding whether genuine issues of material fact exist, the Court construes all facts in a light most favorable to the non-moving party and draws all reasonable inferences in the non-moving party's favor. See

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Jeffreys v. City of New York , 426 F.3d 549, 553 (2d Cir. 2005). However, the non-moving party "may not rely on conclusory allegations or unsubstantiated speculation." F.D.I.C. v. Great Am. Ins. Co. , 607 F.3d 288, 292 (2d Cir. 2010) (quotation omitted).

II. Battery

Dr. Coates argues that Cheryl Rousseau cannot assert a cause of action for battery because she consented to the insemination procedure. Cheryl counters that by using his own sperm, Dr. Coates changed the nature of the procedure such that any consent she gave was inapplicable and irrelevant. Both parties claim support from Vermont case law.

Dr. Coates cites Christman v. Davis , 2005 VT 119, 179 Vt. 99, 889 A.2d 746, which involved a periodontal procedure. The patient in Christman provided consent for a tissue graft, but once the local anesthetic was applied the periodontist decided to instead perform a flap procedure. When the flap procedure did not achieve the desired result, plaintiff sued for battery. Christman identified the "central issue" as "whether plaintiff consented to the procedure that was performed so that he cannot prove an essential element of battery." 2005 VT 119, ¶ 16, 179 Vt. 99, 889 A.2d 746.

Effective consent must be "to the particular conduct, or to substantially the same conduct." Restatement § 892A(2)(b). Consequently, "[w]here a doctor obtains consent of the patient to perform one type of treatment and subsequently performs a substantially different treatment for which consent was not obtained, there is a clear case of battery." Cobbs [v. Grant] , 8 Cal.3d 229, 104 Cal. Rptr. 505, 502 P.2d [1,] 7 [1972] ; see Perin v. Hayne , 210 N.W.2d 609, 618 (Iowa 1973) (accepting Cobbs analysis and noting that battery occurs when there is a "substantial difference" between the surgery for which plaintiff granted consent and that performed).

Id.

The undisputed facts in Christman established that a flap procedure was less invasive than the graft that had been discussed with the plaintiff, and that the steps involved in a flap procedure needed to be performed in any event in order to determine whether there was sufficient tissue for a graft. Id. , ¶ 14. Accordingly, the Vermont Supreme Court found that "this is a case in which the medical professional did a less-extensive operation than that to which the patient consented, taking steps the professional would have taken in the more extensive operation." Id. , ¶ 17. Not surprisingly, the court concluded that "defendant acted within plaintiff's consent such that plaintiff has no battery claim." Id. , ¶ 18.

Relevant to this case, the question raised by Christman is whether Cheryl alleges a procedure that was "substantially different" from the one that was disclosed. Dr. Coates represented that he would perform a specific insemination, and then proceeded to...