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Lodato v. Kappy

August 2, 2002

RYAN BENNETT LODATO, AN INFANT BY HIS GUARDIAN AD LITEM, DEBORAH L. LODATO AND DEBORAH L. LODATO AND ANTHONY C. LODATO, INDIVIDUALLY, PLAINTIFFS-APPELLANTS,
v.
KENNETH KAPPY, M.D., DEFENDANT-RESPONDENT, AND LENNART A. CARLSON, M.D., WILLIAM AINSLIE, JR., M.D., WAYNE E. STEINBECK, M.D., JOHN F. KENNEDY MEDICAL CENTER, AND OB/GYN GROUP OF METUCHEN, P.A., DEFENDANTS.



On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-1535-95.

Before Judges Skillman, Wallace, Jr. and Carchman.

The opinion of the court was delivered by: Carchman, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 15, 2002

This is a wrongful birth case resulting in a finding of no cause for action against defendant Kenneth Kappy, M.D. Because we conclude that the trial judge, among other trial errors, erred in instructing the jury on the issue of medical judgment, we reverse and remand for a new trial. However, since a new trial is required on all issues including damages, the primary issue that we address is whether a defendant in a wrongful birth case is entitled to an offset of any jury award for emotional damage by the joy and benefit a parent receives from the child. We answer this question in the negative and hold that the trial judge erred in instructing the jury that a defendant is entitled to consideration of the joy/benefit rule described in Restatement (Second) of Torts § 920 (1977).

Plaintiffs Ryan Bennett Lodato, through his mother and guardian, Deborah L. Lodato, and his parents, Deborah and Anthony C. Lodato, individually (collectively "plaintiffs"), appeal from that portion of a jury verdict that found that Kappy was not negligent in his reading of an ultrasound examination and failure to detect spina bifida. Plaintiffs also claimed that defendant wrongfully failed to offer Deborah the option of taking a blood test, an alpha-feto-protein (AFP) screening test, despite defendant's opinion that Deborah was within the window of opportunity to take such test.

Ryan was born with severe birth defects, including spina bifida, neural tube defects, meningomyelocele and Arnold-Chiari II malformation of the cerebellum and hydrocephalus. Although defendant Kappy is the only defendant responding to this appeal, plaintiffs' original action was brought against her treating obstetricians, defendants Lennart A. Carlson, William Ainslie, Jr. and Wayne E. Steinbeck, their medical practice, OB/GYN of Metuchen (OGGM) and the John F. Kennedy Medical Center in Metuchen (JFK). The essential allegations of plaintiffs' complaint were that defendant doctors: 1) failed to properly read and interpret an ultrasound; 2) failed to advise Deborah to have various diagnostic tests to detect defects in the fetus; 3) failed to advise her regarding the proper timing of those tests; and 4) advised her not to undergo an amniocentesis test. Deborah and Anthony alleged that they would have terminated the pregnancy if they had been properly advised of the positive results of such testing. The jury returned a verdict in favor of the individual doctors including Kappy but held OGGM liable. It concluded that Deborah was also negligent and assigned fifty percent to her comparative negligence.

Over plaintiffs' objection, the judge charged the jury as follows:

[I]f you should decide that the defendants or any of them are liable to the plaintiffs for any emotional distress they have suffered as a result of the birth of their son Ryan there is an additional consideration which must enter into your deliberations before you award damages for their emotional distress. If you find that in spite of Ryan's spina bifida he's a source of pride, joy and love to his parents and his family and that his existence has benefitted the parents C the plaintiff parents you must offset the plaintiff's [sic] recovery for their emotional distress by the benefit they have received and will continue to receive from their son.

The verdict sheet asked the jury to determine: "What is the percentage of mental and emotional anguish and distress experienced by Deborah [or Anthony] Lodato attributable to Ryan's disability and condition as compared to the percentage of joy experienced by Deborah [or Anthony] Lodato in having/rearing Ryan?" With respect to Deborah, the jury found sixty-five percent attributable to emotional distress and thirty-five percent to joy; and with respect to Anthony, seventy-five percent emotional distress and twenty-five percent joy. The jury returned a verdict of $500,000 in favor of Deborah and a verdict of $350,000 in favor of Anthony for their past and future mental and emotional anguish and distress. The impact of the findings of comparative negligence and the "joy percentage" was substantial as both verdicts were reduced by both the fifty percent comparative negligence and the respective "joy" percentages as to Deborah and Anthony. The molded verdicts ultimately entered were $162,500 in favor of Deborah and $131,250 in favor of Anthony. *fn1

Following a series of post-trial motions, plaintiffs and defendant OGGM settled their claim, and plaintiffs proceeded on this appeal as against defendant Kappy.

[At the direction of the court, the facts relevant to liability issues and the discussion of other issues raised on appeal have been deleted from the published opinion.]

We now address the issue of the application of the joy/benefit rule. Plaintiffs and amicus argue that the trial judge erred when it granted defendants' motion in limine and applied the provisions of the Restatement (Second) of Torts § 920 (Section 920), instructing the jury to offset any amount awarded plaintiffs for emotional distress by the joy and benefit they received from their child.

Defendant moved in limine for the right to cross-examine plaintiffs on the benefit the family received from Ryan's life, and for the jury to receive an ...


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