Harnicher v. University of Utah Medical Center

962 P.2d 67, 349 Utah Adv. Rep. 3, 1998 Utah LEXIS 57, 1998 WL 430334

• Court: Utah Supreme Court
• Decided: July 31, 1998
• Docket: 960204
• Status: Published

Opinions

HOWE, Chief Justice:

Plaintiffs David and Stephanie Harnieher, parents of triplets born after in vitro fertilization using donor sperm, brought this action for medical malpractice alleging negligent infliction of emotional distress against defendant University of Utah Medical Center for using sperm from a donor other than the one that the couple had allegedly selected. The trial court found no evidence of physical injury or illness to support an action for negligent infliction of emotional distress and granted summary judgment in favor of the Medical Center. The Harnichers appeal.

FACTS

David and Stephanie Harnieher sought treatment for infertility at the University of Utah Medical Center Fertility Clinic. Artificial insemination using David’s sperm yielded no results. The Harnichers then contacted Dr. Ronald L. Urry of the Fertility Clinic regarding the possibility of in vitro fertilization. Dr. Urry suggested a procedure known as “micromanipulation” wherein holes are drilled in the mother’s harvested ova to facilitate fertilization. The ova are then placed in a petri dish with harvested sperm and the fertilized ova are subsequently implanted in the uterine wall, enabling the mother to bear her own child. Dr. Urry recommended using a mixture of the husband’s sperm and donor sperm.

The Harnichers agreed. The micromani-pulation method increased the chances that Stephanie would bear David’s biological child. Additionally, the “mixed sperm” procedure potentially allowed the couple to believe and represent that any child born would be David’s because if the donor closely matched David in physical characteristics and blood type, the parents would never be sure which sperm actually fertilized the ovum. Therefore the Harnichers evaluated the donor information provided by the Medical Center on that basis. The Medical Center maintains that the couple narrowed the selection to four donors and signed consent forms acknowledging that their doctor would make the final selection. The Harnichers assert, however, that they specifically and exclusively selected donor # 183. Stephanie testified that when clinic employee Doug Carroll informed her that only frozen sperm, which has a lower success rate than fresh, was available from donor # 183 and asked her if she still wanted to do the donor backup, she replied, “Only if you can get 183.... I’ll take my lower chances. Let’s just go with 183.”

The procedure was performed, and Stephanie gave birth to triplets, two girls and one boy. Shortly after their birth, one of the babies became ill, requiring blood tests. Two of the children’s blood type revealed that they could not possibly have been the children of either David or donor # 183. A DNA test on one of the children established that the father was actually donor # 83, another donor on the Harnichers’ list.

Donor # 183, like David, had curly dark hair and brown eyes. Donor #83 had straight auburn hair and green eyes. One of the triplets has red hair. The Harnichers maintain that the Medical Center’s mistaken use of the wrong donor thwarted their intention of believing and representing that David is the children’s biological father. They brought this action against the Medical Center alleging that they have “suffered severe anxiety, depression, grief, and other mental and emotional suffering and distress which has adversely affected their relationship with the children and with each other.” However, both David and Stephanie testified in their depositions that they had not experienced any bodily harm as a result of the mistake.

After the Medical Center moved for summary judgment, the Harnichers consulted a psychologist, Jeff Kocherhans, Ph.D., who administered various psychological tests and concluded that David suffered from a variety of symptoms of depression and anxiety, in-eluding sleep disturbance, fatigue, impaired concentration, and diminished work productivity. Kocherhans diagnosed Stephanie with “major Depressive Disorder, recurrent, severe, Panic Disorder and Generalized Anxiety Disorder,” manifested by low mood, fatigue, crying spells, decreased appetite and weight loss, difficulty concentrating, pounding heart, shaking, cold flashes, shortness of breath, choking sensation, teeth grinding, muscle tension, and fingernail biting. Prior to seeking treatment at the Medical Center, Stephanie had counseled with a psychologist for some of the same symptoms and had also received stress medication from a medical doctor. Kocherhans’ diagnoses appeared in an affidavit which the Harnichers filed more than a month after the Medical Center moved for summary judgment.

The trial court concluded that “there has been no physical harm or injury sustained by the plaintiffs that would enable them to maintain an action for negligent infliction of emotional distress” and that the plaintiffs’ alleged physical symptoms “are transitory, temporary, and not the kind of physical manifestations of a mental illness that provide the basis for a claim of negligent infliction of emotional distress.” The Harnichers contend that their disappointment in the results of the donor mixup has resulted in mental illness accompanied by physical symptoms. They ask this court to hold that a diagnosed mental illness in and of itself is sufficient to support a cause of action for negligent infliction of emotional distress.

ANALYSIS

In order to properly grant summary judgment, the court must view the facts in the light most favorable to the non-moving party, see Clover v. Snowbird Ski Resort, 808 P.2d 1037 (Utah 1991), and find that there are no disputed issues of material fact and that the moving party is entitled to judgment as a matter of law. See Utah R. Civ. P. 56(e); DOIT, Inc. v. Touche, Ross & Co., 926 P.2d 835 (Utah 1996). We review the trial court’s conclusions of law for correctness, granting them no deference. See Higgins v. Salt Lake County, 855 P.2d 231, 233 (Utah 1993).

I. BACKGROUND

In Johnson v. Rogers, 763 P.2d 771 (Utah 1988), we first recognized negligent infliction of emotional distress as a cause of action in Utah. In that case, a father and his eight-year-old son were waiting to cross the street at an intersection when a truck jumped the curb and struck them, killing the child and injuring the father. Justice Durham, in the lead opinion, reviewed the history and theoretical foundations of the action for negligent infliction of emotional distress and determined that such an action exists in Utah. Id. at 782. A majority of the court recognized the need to establish a clear standard. Id. at 785 (Zimmerman, J., concurring in part). The majority selected language mirroring the rule proffered in section 313 of the Restatement (Second) of Torts. This standard provides:

“(1) If the actor unintentionally causes emotional distress to another, he is subject to liability to the other for resulting illness or bodily harm if the actor

(a) should have realized that his conduct involved an unreasonable risk of causing the distress, otherwise than by knowledge of the harm or peril of a third person, and

(b) from facts known to him, should have realized that the distress, if it were caused, might result in illness or bodily harm.

(2) The rule stated in Subsection (1) has no application to illness or bodily harm of another which is caused by emotional distress arising solely from harm or peril to a third person, unless the negligence of the actor has otherwise created an unreasonable risk of bodily harm to the other.”

Id. at 780 (emphasis omitted) (quoting Restatement (Second) of Torts § 313 (1965)). Subsection (2) constitutes the zone of danger test.¹ “Simply stated, the zone of danger rule ‘allows one who is himself or herself threatened with bodily harm in consequence of the defendant’s negligence to recover for emotional distress resulting from viewing the death or serious physical injury of a member of his or her immediate family.’ ” Clohessy v. Bachelor, 237 Conn. 31, 675 A.2d 852, 857 (1996) (quoting Bovsun v. Sanperi, 61 N.Y.2d 219, 473 N.Y.S.2d 357, 461 N.E.2d 843 (1984)).²

Because the instant case does not involve injury to a third party, we address only the application of subsection (1). We addressed similar circumstances in Hansen v. Mountain Fuel Supply Co., 858 P.2d 970 (Utah 1993). In that ease, construction workers who had unknowingly inhaled asbestos sought to recover damages for negligent infliction of emotional distress due to fear of cancer. We observed that “[i]n Johnson, we were primarily concerned with application of the rule outlined in [section 313] subsection (2). In the instant case, plaintiffs are not seeking recovery for trauma inflicted on them because of harm or peril to one nearby; plaintiffs allege that they themselves inhaled asbestos.” Id. at 974. We applied the section 313(1) requirement for “illness or bodily harm” and found that the plaintiffs had neither offered evidence of symptoms so severe as to constitute mental illness, nor shown that they had suffered physical symptoms as a result of their distress. Id. at 975. We emphasized that “the emotional distress suffered must be severe; it must be such that ⅛ reasonable [person,] normally constituted, would be unable to adequately cope with the mental stress engendered by the circumstances of the case.’” Id. (quoting Rodri-gues v. State, 52 Haw. 156, 472 P.2d 509, 520 (1970)). Consequently, we held that “[plaintiffs’ mere unsubstantiated opinions that they have suffered severe anxiety as a result of their exposure do not create a triable issue of fact that would withstand summary judgment.” Id. Justice Zimmerman, joined by the majority, explicitly declined to postulate whether “mental illness, in the absence of physical manifestation, is sufficient to support a claim.” Id. at 982 (Zimmerman, J., concurring in part and concurring in the result).

The comments to section 313 restrict the scope of a claim for negligent infliction of emotional distress. Comment “a” declares that the “rule stated in this Section does not give protection to mental and emotional tranquillity in itself.” Restatement (Second) of Torts § 313 cmt. a (1965). Comment “c” articulates a form of “reasonable person” test by noting that in contrast to the section 312 rule for intentional creation of emotional distress, “one who unintentionally but negligently subjects another to such emotional distress does not take the risk of any exceptional physical sensitiveness to emotion which the other may have unless the circumstances known to the actor should apprise him of it.” Restatement (Second) of Torts § 313 cmt. c (1965). These comments recognize the fact that “[w]e cannot permit every claim for negligent infliction of emotional distress to go to a jury under such varying standards as each trial judge may choose.” Johnson, 763 P.2d at 785 (Zimmerman, J., concurring in part).

II. BODILY HARM

In opposing the Medical Center’s motion for summary judgment, the Harnichers’ filed the affidavit of Jeff Koeherans, wherein he listed various conditions allegedly suffered by the Harnichers as a result of their emotional distress. He averred that David Har-nicher suffered from sleep disturbance, fatigue, impaired concentration, and diminished work productivity. He further stated that Stephanie suffered from low mood, fatigue, crying spells, decreased appetite and weight loss, difficulty concentrating, pounding heart, shaking, cold flashes, shortness of breath, choking sensation, teeth grinding, muscle tension, and fingernail biting.

In contrast to this affidavit, the Harnich-ers’ both denied having suffered any bodily harm as a result of the alleged donor sperm mix-up in their sworn depositions, which were taken well before Kocherans’ affidavit was filed. When David was asked, “[i]s there any other kind of damage [other than mental and emotional stress] that you claim you have suffered,” he replied, “[n]o, I can’t think we’ve claimed anything other than that at the moment.” Moreover, in response to a question asking Stephanie to describe what bodily harm she claimed she had experienced as a result of the donor sperm mix-up, she responded, “[a]s a result of the mix-up, I have not claimed any bodily harm.”

Because of the variance between the Harnichers’ sworn deposition and Kocherans’ subsequent affidavit, we do not comment on whether the symptoms listed in Kocherans’ affidavit qualify as “bodily harm” under section 313(1) of the Restatement (Second) of Torts. The general rule is that in a summary judgment proceeding, “when a party takes a clear position in a deposition, that is not modified on cross-examination, he may not thereafter raise an issue of fact by his own affidavit which contradicts his deposition, unless he can provide an explanation of the discrepancy.” Webster v. Sill, 675 P.2d 1170, 1172-73 (Utah 1983).

As stated above, the Harnichers did not consult Kocherans until after the Medical Center moved for summary judgment, presumably for the purpose of obtaining an affidavit to oppose summary judgment. The only explanations that they offer for the discrepancy between their deposition testimony and Kocherans’ affidavit is that they are “not the type of people who would easily seek medical treatment” and that the questions asked at their depositions were not sufficiently specific to allow them to properly respond. We reject each of these explanations.

First, the Harnichers’ reluctance to seek medical treatment fails to explain why they denied any physical harm at the deposition but asserted such harm during their consultation with Kocherans, which occurred after the Medical Center had filed its motion for summary judgment. These types of harm are not of the type that would require diagnosis or discovery by a medical doctor or psychologist. In fact, unless Kocherans observed the Harnichers while they ate, worked, and slept, the Harnichers must have described these conditions to him. Thus it is difficult to understand how the Harnichers were able to describe these conditions so accurately to Kocherans when they were not able to do so during their sworn depositions.

Second, although the deposition questions at issue might not have been as direct and clear as they might have been, the Harnich-ers’ counsel should have understood these questions and clarified his clients’ responses thereto on crossexamination, if necessary. As discussed above, in Mountain Fuel, we required bodily harm for a cause of action. 858 P.2d at 975. Harnichers’ counsel therefore should have known that the Medical Center’s questions were directed at evidence of bodily harm. The Harnichers’ alleged confusion regarding these questions is not a reasonable explanation for the discrepancy between their deposition testimony and Ko-cherans’ affidavit.

For the reasons stated above, we conclude that the trial court did not err in finding that the Harnichers had not suffered any bodily harm or physical injury that would support an action for negligent infliction of emotional distress.

III. MENTAL ILLNESS

The Harnichers contend that their disappointment in their children has caused them severe emotional distress to the point of mental illness. They ask us to hold that “diagnosed mental illness,” standing alone, is sufficient to support a claim for negligent infliction of emotional distress. As in Hansen v. Mountain Fuel, it is unnecessary for us to decide that question here. We recognize that severe emotional distress can cause mental illness and that genuine mental illness constitutes real harm. Nonetheless, practicality demands that the standard of proof in such cases be more than merely subjective. See Molien v. Kaiser Found. Hosps., 27 Cal.3d 916, 167 Cal.Rptr. 831, 616 P.2d 813, 818 (1980). As previously stated, in Mountain Fuel we emphasized that the “emotional distress suffered must be severe; it must be such that ‘a reasonable [person,] normally constituted, would be unable to adequately cope with the mental stress engendered by the circumstances of the case.’ ” 858 P.2d at 975. Such a threshold test is particularly necessary because the existence of and cause of a mental illness often is not obvious in a manner comparable to a physical injury or illness.

As a result of their fertility treatment, the Harnichers became the parents of three normal, healthy children whom the couple suggest do not look as much like David as different children might have and whose blood type could not be descended from his. This result thwarted the couple’s intention to believe and represent that the triplets are David’s biological children. Exposure to the truth about one’s own situation cannot be considered an injury and has never been a tort. Therefore, destruction of a fiction cannot be grounds for either malpractice or negligent infliction of emotional distress.

The Harnichers’ assertion that David did not want children unless they were biologically his own is belied by the couple’s knowing consent to the use of donor sperm. Stephanie testified that she could say “with probability,” without ever having seen either donor, that the children of donor # 183 would have been better looking than her triplets and that in her mind, she was damaged by that fact. During her deposition, she was asked and testified as follows:

Q. Do you claim that you have been damaged any by the difference in personality or traits and characteristics inherited by your children versus what you think they would have inherited from 183?

A. Definitely.

Q. How have you been damaged?

A. Feeling-wise, it hurts. I mean, it just — it saddens me.

Realistically, however, it is impossible to know whether the children of donor # 183 would have been superior in any way to the triplets o4 indeed, whether the same number of babies or none at all would have resulted from the use of the less effective frozen sperm. The supposition that the road not taken would have led to a better result is a common human fallacy; it cannot support an action for negligent infliction of emotional distress. The Harnichers do not allege that the triplets are unhealthy, deformed, or deficient in any way. Nor do they claim any racial or ethnic mismatch between the triplets and their parents. In fact, the couple has presented no evidence at all that the physiological characteristics of three normal healthy children, which could not have been reliably predicted in any event, present circumstances with which “ ‘a reasonable [person,] normally constituted, would be unable to adequately cope.’ ” Mountain Fuel, 858 P.2d at 975.

CONCLUSION

As noted above, the section 313(1) rule does not give protection to mental and emotional tranquility per se. Consequently, much of the ‘“emotional distress’ which we endure ... is not compensable.” Thing v. La Chusa, 48 Cal.3d 644, 257 Cal.Rptr. 865, 771 P.2d 814, 829 (1989) (denying recovery for negligent infliction of emotional distress where mother of injured child arrived at the scene after accident had already occurred). The Harnichers have failed to raise a triable issue of fact that they have suffered bodily harm. Furthermore, they have not shown that the Medical Center’s alleged negligence is of the type that is likely to cause severe and unmanageable mental distress in a reasonable person normally constituted. See Mountain Fuel, 858 P.2d at 975. Therefore, we hold that the Harnichers have failed to “state a claim for negligent infliction of emotional distress, as this claim is defined in Utah.” Boucher, 850 P.2d at 1182.

Affirmed.

ZIMMERMAN, J., concurs in Chief Justice HOWE’s opinion. RUSSON, J., concurs in the result.

1 . Intentional infliction of emotional distress, in contrast, does not require that plaintiff actually be at risk of bodily harm. See Restatement (Second) of Torts § 312.

2 . See also Lawson v. Salt Lake Trappers, 901 P.2d 1013 (Utah 1995) (parents of a child struck by a baseball while watching a game lacked the requisite "fear of injuiy or peril”); Boucher v. Dixie Med. Ctr., 850 P.2d 1179, 1182 (Utah 1992) (parents of a young adult rendered brain damaged and paraplegic by alleged medical malpractice "did not allege that they were in zone of danger; therefore they did not state a claim for negligent infliction of emotional distress, as this claim is defined in Utah”); Hansen v. Sea Ray Boats, 830 P.2d 236, 242 (Utah 1992) (plaintiff in boat saw family members in the water receive severe electrical shocks and feared for her own safety but was outside the zone of danger).