Wuth v. Lab. Corp. of Am.

• Court: Washington Court of Appeals
• Writing for the Court: SPEARMAN, C.J.
• Citation: Wuth v. Lab. Corp. of Am., 189 Wash.App. 660, 359 P.3d 841 (Wash. App. 2015)
• Decision Date: 24 August 2015
• Docket Number: Nos. 71497–0–I,71553–4–I.,71498–8–I
• Parties: Oliver L. WUTH, a minor, by and Through his Guardian ad litem Keith L. KESSLER ; and Brock M. Wuth and Rhea K. Wuth, husband and wife, Cross–Appellants, v. LABORATORY CORPORATION OF AMERICA, a foreign corporation; Dynacare Laboratories, Inc., a foreign corporation; Dynacare Northwest, Inc., a domestic Corporation, Inc., d/b/a Dynacare Laboratories, Inc., King County Public Hospital District No. 1, d/b/a Valley Medical Center; et al., Cross–Respondents, and James A. Harding, M.D.; and Obstetrix Medical Group of Washington, Inc., P.S., a domestic corporation, Respondents.

189 Wash.App. 660

359 P.3d 841

Oliver L. WUTH, a minor, by and Through his Guardian ad litem Keith L. KESSLER ; and Brock M. Wuth and Rhea K. Wuth, husband and wife, Cross–Appellants

v. LABORATORY CORPORATION OF AMERICA, a foreign corporation; Dynacare Laboratories, Inc., a foreign corporation; Dynacare Northwest, Inc., a domestic Corporation, Inc., d/b/a Dynacare Laboratories, Inc., King County Public Hospital District No. 1, d/b/a Valley Medical Center; et al., Cross–RespondentsandJames A. Harding, M.D.; and Obstetrix Medical Group of Washington, Inc., P.S., a domestic corporation, Respondents.

Nos. 71497–0–I

71498–8–I

71553–4–I.

Court of Appeals of Washington, Division 1.

Aug. 24, 2015.

Anthony Todaro, Melissa O'loughlin White, Megan Kathleen Kirk, Corr Cronin LLP, Kevin Anthony Michael, Attorney at Law, Sherry Hemming Rogers, Melinda Drogseth, Lee Smart, Craig Lawrence McIvor Lee Smart PS Inc., Steven P. Caplow, Davis Wright Tremaine LLP, Seattle, WA, for Appellants.

Mary K. McIntyre, Amy K. Robles, McIntyre & Barns PLLC, Mary H. Spillane, Fain Anderson, et al., Seattle, WA, for Defendants.

Todd Whitney Gardner, Attorney at Law, Peter Erik Meyers, Swanson Gardner, Renton, WA, Howard Mark Goodfriend, Catherine Wright Smith, Smith Goodfriend PS, Seattle, WA, for Respondents.

Barbara Allan Shickich, Brett S. Durbin, Riddell Williams PS, Seattle, WA, Amicus Curiae on behalf of Washington State Hospital Association.

Opinion

SPEARMAN, C.J.

¶ 1 After their son, Oliver, was born with severe birth defects, respondents Brock and Rhea Wuth brought suit against Dr. James Harding and his employer, Obstetrix (Dr. Harding), Valley Medical Center (Valley) and Laboratory Corporation of America (LabCorp), in their own capacity and on behalf of their son, for claims of wrongful birth and wrongful life. The jury found Valley and LabCorp equally at fault and awarded the Wuths $25 million on each claim. The jury found Dr. Harding not liable. LabCorp appeals, asking this court to review: (1) the trial court's refusal to grant summary judgment for LabCorp on Brock and Rhea's wrongful birth claim; (2) several of the trial court's evidentiary rulings; (3) the trial court's conduct during voir dire; (4) the trial court's comments throughout trial regarding the Wuths' culpability; and (5) the jury verdict on both claims.¹ Finding any error to be harmless, we affirm.

FACTS

¶ 2 Oliver Wuth was born with severe birth defects. His parents, Brock and Rhea, testified that at birth he looked “vacant” and “broken.”² Report of Proceedings (RP) 1442, 1479, 2784–85.³ He was not physically proportional—his feet and toes were tiny; his fingers were long, but his hands were very small. He had inverted nipples and a buried penis. His head was bent and turned. The muscles and tendons in his legs were so tight that his legs would not straighten. When the Wuths brought Oliver home from the hospital, he did not feed normally and rapidly lost weight. He also missed many of the milestones for early childhood, including developing language skills and toilet training.

¶ 3 At the time of trial, physical therapy and other interventions had alleviated some of Oliver's defects. His head and neck had been reformed and his leg muscles loosened and straightened. But he could not walk up stairs or run. His vision, judgment, and fine motor skills remained in the impaired or severely impaired range. His brain was underdeveloped and small. And, although he was working with a speech therapist and special education teachers to learn to use a computerized “talker,” his own speech was limited to a few dozen words understandable only to his immediate family.

¶ 4 Oliver's parents, Brock and Rhea Wuth, met in 1995 when Brock was 15 and Rhea was 17. They married five years later and had their first son, Ian, in May 2002. Although Ian was healthy, Brock's family had a history of birth defects. Brock's maternal aunt, Patsy, had been institutionalized and died before Brock was born. In addition, Brock's cousin Jackie, the daughter of Brock's maternal uncle, had profound disabilities including terrible seizures, anti-social behavior, and obesity that confined her to a wheelchair. Until Jackie was 15, no one in Brock's family knew the cause of Jackie's disability.

¶ 5 In 2003, shortly after the technology to do so was developed, Jackie underwent genetic testing at Seattle Children's Hospital (Children's) to determine the cause of her disabilities. The tests revealed a chromosomal anomaly that explained her condition. Normally, each person has 46 chromosomes in 23 pairs. The testing at Children's revealed that, in one of Jackie's ancestors, genetic material at the ends of chromosomes 2 and 9 had changed places. This exchange of genetic material between two chromosomes is known as a “translocation.” RP at 944. When a person inherits two derivative chromosomes that, between them, have a full set of genetic material, known as a “balanced translocation,” the condition is asymptomatic. RP at 945–46. Jackie inherited a derivative chromosome 2 that has some deleted material and an extra copy of part of chromosome 9.

But she did not inherit a derivative chromosome 9 with the missing material from chromosome 2; consequently, she is missing genetic material from chromosome 2. Her “unbalanced translocation” is the cause of her birth defects. RP at 1766.

¶ 6 In light of Jackie's test results, a genetic counselor at Children's recommended that members of her extended family undergo genetic testing to determine if they also carried the translocation. This testing revealed that several family members, including Brock, had asymptomatic, balanced translocations. Ian Wuth was too young to be tested but, given his lack of symptoms, it was apparent that he either did not inherit the translocation or has a balanced translocation like Brock.

¶ 7 Because Brock and Rhea planned to have more children, they consulted with a genetic counselor at Children's after receiving Brock's test results. The counselor advised the couple that there was a 50 percent chance that any baby they conceived would have either an unbalanced 2;9 translocation like Jackie or an unbalanced 9;2 translocation, which was also likely to result in “physical differences and some degree of learning disability or mental retardation.” Clerk's Papers (CP) at 1860. The counselor also informed them that pregnancies with chromosome imbalances are frequently miscarried. The counselor explained that any chromosomal translocation could be detected in a fetus through the use of either chorionic villus sampling (CVS) or amniocentesis to extract fetal genetic samples and laboratory testing, specifically a process called fluorescent in situ hybridization (FISH) testing.⁴ Children's provided the Wuths with a detailed written report, which explained the 2;9 translocation and identified the specific “breakpoints” in Brock's chromosomes. RP at 984; Ex. 11.

¶ 8 Although Brock and Rhea wanted to have more children, they had no desire to bring a child with Jackie's disabilities into the world. Accordingly, they carefully followed the recommendations they had received from the Children's genetic counselor, including exploring in vitro fertilization. When they managed to conceive again, they brought the Children's report on Brock's genetic condition to each pregnancy-related medical appointment. Despite their care, Brock and Rhea miscarried six times between 2003 and 2008.

¶ 9 In November 2007, Rhea was pregnant again. This pregnancy had progressed well into the first trimester without incident and the Wuths were hopeful that Rhea would not miscarry, as she had before. Their hopes were further bolstered when Rhea had normal ultrasounds before and after an appointment with her obstetrician on December 6, 2007.

¶ 10 But the couple remained anxious about the pregnancy. They told Rhea's obstetrician about Brock's translocation and showed her the report from Children's. They also told the doctor about Brock's cousin, Jackie, explaining that they would not bring a fetus with an unbalanced translocation to term. Given the couple's concerns, Rhea's obstetrician scheduled an appointment for her to undergo a CVS procedure at the maternal-fetal medical clinic at Valley to obtain genetic material from the fetus to test for the 2;9 translocation. The doctor also scheduled Rhea for additional genetic counseling at Valley and faxed a copy of the Children's report to Valley.

¶ 11 Even though Rhea's obstetrician had ordered genetic counseling in conjunction with the CVS procedure, Valley's staff scheduled Rhea's appointment for New Year's Eve 2007—a day no genetic counselor was working at the clinic. Rescheduling the appointment presented difficulties, however, because the CVS procedure must be performed prior to the end of thirteenth week of pregnancy and Rhea was twelve weeks and one day into her pregnancy. In addition, staffing and scheduling constraints at both Valley and Swedish Hospital Maternal Fetal Medicine Clinic, which also performedCVS, made it unlikely that Rhea could be rescheduled within the next week. RP 805, 4302–04, 4560. Thus, Rhea's New Year's Eve appointment was likely her last opportunity to receive the CVS procedure.

¶ 12 When Brock and Rhea arrived at Valley for the appointment, Dr. James Harding, a perinatologist/obstetrician, informed the couple that no genetic counselor was available. But, after talking to them at length about the family history of translocation, Rhea's options fortesting, and other risks, Dr. Harding determined that Brock and Rhea were well-informed about the translocation and the risks associated with CVS. The Wuths also wanted to know about any genetic abnormality as soon as possible so, if necessary, they could terminate the pregnancy before it began to show. They knew that after thirteen weeks, amniocentesis was the only test capable of detecting a translocation, but it could not be performed until the beginning of the sixteenth week of pregnancy....