IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
RAVI THEJA KAMBHAMPATI, individually, and MEGHANA No. 87805-1-I SEETHAMRAJU, individually, and as guardian ad litem for ACHYUTH DIVISION ONE KAMBHAMPATI, a minor, UNPUBLISHED OPINION
Appellants,
v.
INVITAE CORPORATION, a foreign corporation,
Respondent,
HAZELRIGG, C.J. — Ravi Kambhampati and Meghana Seethamraju appeal from the trial court’s summary judgment order that dismissed their suit against Invitae Corporation after it concluded that they had failed to present sufficient evidence to support the elements of their claim for negligence. The trial court erred when it so concluded, and we reverse and remand.
FACTS
Ravi Kambhampati and Meghana Seethamraju (collectively Kambhampati)
filed a complaint for medical negligence against Invitae Corporation on February 1, 2023 individually and, as to Seethamraju, in her capacity as guardian ad litem for their minor son, A. Their complaint alleged that Invitae negligently omitted certain genetic variant results from their prenatal genetic carrier screening that the
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laboratory conducted for Seethamraju. Their complaint alleged that both they and A suffered general and special damages as a result of Invitae’s medical negligence.
One and a half years earlier, in June 2021, testing of Kambhampati’s newborn son, A, established that he had been born with a rare genetic condition known as X-ALD, X-linked adrenoleukodystrophy, that has a high likelihood of manifesting in a variety of significant symptoms at different ages. According to Invitae’s genetic carrier screening results,
X-linked adrenoleukodystrophy (X-ALD) is a condition that causes progressive deterioration of the nervous system and the adrenal glands (small glands located on top of each kidney). In affected individuals, the ability of the nerves to relay information to the brain is reduced because the myelin, which is the fatty covering that insulates nerves in the central nervous system, is prone to deterioration (demyelination). Additionally, damage to the outer layer of the adrenal glands (adrenal cortex) and the subsequent shortage of various adrenal hormones (adrenocortical insufficiency, or Addison’s disease)
causes symptoms such as weakness, weight loss, vomiting, and coma. The cerebral form of X-ALD (cerebral adrenoleukodystrophy)
usually presents in childhood. Symptoms typically include progressive learning disabilities and behavior problems, as well as vision and hearing problems. Most individuals also have impaired adrenocortical function. The adrenomyeloneuropathy form of X-ALD typically presents in early to middle adulthood. Symptoms often include progressive stiffness, weakness, or paralysis of the lower limbs (paraparesis), urinary tract disorders, and impaired adrenocortical function. Other affected individuals have Addison’s disease only, although many develop symptoms of the adrenomyeloneuropathy form by middle age. Symptoms and severity can vary, even between family members with the same genetic change. Life expectancy is dependent on the severity of symptoms.
X-ALD primarily affects males. . . . Females typically present at a later age than males and only rarely develop adrenocortical insufficiency or cerebral adrenoleukodystrophy. Follow-up depends on each affected individual’s specific situation, and discussion with a healthcare provider should be considered, and typically includes
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corticosteroid replacement therapy for individuals with adrenal insufficiency.
(Emphasis added.)
This was notable because a prenatal screening report that the couple received from Invitae six months earlier, in December 2020, did not note the presence of the genetic variant associated with X-ALD. Invitae contended that this omission was due to its prior determination that the genetic variant detected by the screening was a “Variant of Uncertain Significance” (VUS). This determination, Invitae explained, was based on the Standards and Guidelines for the Interpretation of Sequence Variants: a Joint Consensus Recommendation of the American College of Medical Genetics and Genomics and the Association for Molecular Pathology (ACMG/AMP 2015 guidelines), which provides that “[g]enetic variants are classified as either benign, likely benign, pathogenic, likely pathogenic, or VUS.” Kambhampati’s complaint alleged that the variant should have been reported as “likely pathogenic” and Invitae’s failure to report it as such in its prenatal screening report, rather than in its newborn screening report, constituted negligence.
Shortly after Kambhampati’s complaint was filed in February 2023, Invitae filed for Chapter 11 bankruptcy, and this case was stayed on that basis. The trial court orally granted a motion to lift the stay a year and a half later, in August 2024, and subsequently entered an amended case scheduling order. 1 Roughly six months after that, in January 2025, Invitae moved for summary judgment dismissal
1 The case scheduling order is not included in the record on appeal but is referenced by
the trial court in its order on summary judgment, and neither party disputes this characterization of the procedural history of the case.
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on the bases that it had not breached any duty owed and Kambhampati had no recoverable damages for either of their proffered theories of reproductive medical negligence. Though not transmitted to this court, the record reflects that Kambhampati filed a response in opposition to the motion for summary judgment, along with supporting declarations, including that of an expert witness. 2 Shortly after Invitae filed its reply in support of summary judgment, it separately moved to exclude portions of Kambhampati’s expert opinion testimony, and both parties submitted supplemental briefing.
The trial court denied Invitae’s motion to exclude Kambhampati’s expert after specifically concluding that their expert was qualified to opine on standard of care and breach but nevertheless granted Invitae’s motion for summary judgment and dismissed the matter with prejudice. Notably, in describing the bases on which the court determined that Kambhampati failed to establish a prima facie case in support of their negligence claims, the court’s written order indicated only that “there is no dispute of material fact that [Kambhampati] cannot meet their burden to establish elements of their claims, and Invitae is entitled to judgment as a matter of law.”
Kambhampati and Seethamraju timely appealed.
ANALYSIS
Kambhampati present two assignments of error: that the trial court erred when it dismissed their action on summary judgment and when it did not
2 While the response was not transmitted, the declarations and evidence that Kambhampati submitted with their response are present in the record before us.
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“completely strik[e] the untimely factual ‘Supplemental Declaration’ [of geneticist Dr. Heidi Rehm] and in considering it for any purpose.” As to their assignment of error to summary judgment dismissal, we agree.
I. Scope of Appeal As a preliminary matter, the record plainly establishes that the trial court did not consider for any purpose the supplemental Rehm declaration referenced in Kambhampati’s second assignment of error by the trial court. The express language of the order on summary judgment states,
Submitting additional facts and new arguments after oral argument is not timely. The [c]ourt will consider the cases cited by the parties in the supplemental materials, as the [c]ourt considers legal authority relevant to the motion submitted to the [c]ourt. The [c]ourt will not consider the supplemental declaration . . . or any new facts in arguments submitted by the parties in their supplemental materials.
(Emphasis added.) Further, Kambhampati do not cite any authority in support of their assertion that simply disregarding information not properly before the court is not a sufficient remedy or that the trial court was required to “unambiguously” strike the untimely declaration. Accordingly, we decline to consider this issue further.
As to the core issue on appeal, the trial court’s summary judgment order indicated that it had considered, among other documents submitted by the parties, “Plaintiffs’ Response to Motion for Summary Judgment (Sub. No. 52).” Significantly, however, Kambhampati’s counsel, who was also their trial counsel, did not designate for our review his briefing filed in response to Invitae’s motion for summary judgment. Rather, Kambhampati’s counsel designated, in pertinent part, two declarations submitted in support of that response along with his supplemental
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brief in opposition to Invitae’s motion for summary judgment. In addition, Kambhampati’s counsel did not designate a verbatim report of proceedings of the summary judgment hearing in this matter. Finally, Kambhampati’s counsel did not file a supplemental designation prior to filing their reply brief in this matter and has not filed a motion with this court seeking permission to do so thereafter. 3 Given the unusual presentation of this appeal from a summary judgment order, and our goal set out in RAP 1.2(a) that the rules of appellate procedure “be liberally interpreted to promote justice and facilitate the decision of cases on the merits,” we look to other manifestations by Kambhampati to the trial court in order to understand that which they called to the court’s attention at summary judgment. With those limitations in mind, we turn to the merits.
II. Summary Judgment Kambhampati assert that the trial court erred when it granted Invitae’s motion for summary judgment dismissal of their reproductive medical negligence claims against that corporation because they made a prima facie showing as to each element of those claims. We agree.
We review decisions on summary judgment de novo. Haley v. Amazon.com Sers., LLC, 25 Wn. App. 2d 207, 216, 522 P.3d 80 (2022). “Summary judgment is properly granted when ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as
3 Kambhampati, as the party seeking review, has the burden of providing us with an adequate record on appeal, RAP 9.6, and assigning error to those portions of the trial court’s order for which they seek review. RAP 10.3(a)(4).
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a matter of law.” Id. (quoting CR 56(c)). If the party moving for summary judgment is, as here, the defendant in a case, they may satisfy their burden to show the absence of genuine issue of material fact by identifying for the court the absence of evidence to support the elements of the nonmoving plaintiff’s case. Young v. Key Pharms., Inc., 112 Wn.2d 216, 225, 225 n.1, 770 P.2d 182 (1989). In this procedural posture, the burden then shifts to the nonmoving plaintiff to make a prima facie showing as to each element of their claim(s). Id. (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). The party claiming damages bears the burden to prove them. See Womack v. Von Rardon, 133 Wn. App. 254, 262, 135 P.3d 542 (2006).
“On summary judgment, the trial court may not weigh the evidence, assess credibility, consider the likelihood that the evidence will prove true, or otherwise resolve issues of material fact.” Haley, 25 Wn. App. 2d at 217. However, only admissible evidence will be considered. Id. at 216-17. If the CR 56 standard is not met, “the matter must proceed to trial.” Id. 217. The reviewing court construes “all evidence and the reasonable inferences therefrom in favor of the nonmoving party.” Id.
A. Reproductive Medical Negligence Theories Kambhampati pursued an action in negligence against Invitae that presented two distinct theories premised on reproductive medical negligence. Our Supreme Court addressed both in Harbeson v. Parke-Davis, Inc. and referred to them as “‘wrongful birth’” and “‘wrongful life.’” 98 Wn.2d 460, 462, 656 P.2d 483 (1983). However, before considering the controlling authority, we note that in
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Pacheco v. United States, our Supreme Court addressed the offensive language used in this case law and stated,
Our precedent in this area, like the precedent of many other jurisdictions, describes children as being either “normal” or “defective.” McKernan [v. Aasheim], 102 Wn.2d [411,] 412-17, 419[, 687 P.2d 850 (1984)]; Harbeson, 98 Wn.2d at 466-67, 471-73, 475-
76, 478; Ball[ v. Mudge], 64 Wn.2d [247,] 248, 250[, 391 P.2d 201 (1964)]. We take this opportunity to disavow such terminology because it is both incorrect and harmful to refer to any person as “defective” or to suggest that a child with congenital defects is not “normal.”
200 Wn.2d 171, 184 n.4, 515 P.3d 510 (2022). We agree and endeavor to avoid such phrasing to the extent possible in light of our competing need to quote this controlling authority.
1. Parents’ Cause of Action for Reproductive Medical Negligence In Harbeson, our state Supreme Court recognized, for the first time, a reproductive medical negligence claim that it referred to as one for “wrongful birth” and explained that it is one brought by parents “based on an alleged breach of a duty of a health care provider to impart information or perform medical procedures with due care, where the breach is a proximate cause of the birth of a . . . child [with a birth defect].” 98 Wn.2d at 467. It specifically concluded that medical technology that provides for the “ability to predict the occurrence and recurrence of defects attributable to genetic disorders has improved significantly” and, in recognizing the benefits of such advancement, held that
parents have a right to prevent the birth of a . . . child [with a congenital defect] and health care providers a duty correlative to that right. This duty requires health care providers to impart to their patients material information as to the likelihood of future children’s
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being born [with a congenital defect], to enable the potential parents to decide whether to avoid the conception or birth of such children.
Id. at 472. The court then directed that “[b]reach will be measured by failure to conform to the appropriate standard of skill, care, or learning.” Id. at 473. Directly on point here, the Supreme Court then addressed the element of injury and related matter of damages and stated,
[I]t is an inevitable consequence of recognizing the parents’ right to avoid the birth of a . . . child [with a congenital defect] that we recognize that the birth of such a child is an actionable injury. The real question as to injury, therefore, is not the existence of an injury, but the extent of that injury. In other words, having recognized that the birth of the child represents an injury, how do we measure damages?
Id. (emphasis added). After considering the approach to this question in other jurisdictions, and the distinctions between a claim for damages premised on wrongful birth and one for injury to a child, our Supreme Court explicitly held that
recovery may include the medical, hospital, and medication expenses attributable to the child’s birth and to its [birth defect], and in addition damages for the parents’ emotional injury caused by the birth of the . . . child [with a congenital defect]. In considering damages for emotional injury, the jury should be entitled to consider the countervailing emotional benefits attributable to the birth of the child.
98 Wn.2d at 475 (emphasis added). It concluded that the medical provider’s “failure to inform” the parents therein was a proximate cause of the births of their children and, on that basis, the parents were “entitled to damages for pecuniary and emotional injuries attributable to those births.” Id. at 478
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2. Child’s Cause of Action for Reproductive Medical Negligence The Harbeson opinion also recognized for the first time in our state a cause of action that may be pursued by the child based on “wrongful life” and defined such a claim as one in which
“[t]he child does not allege that the [medical provider]’s negligence caused the child’s [congenital defect]. Rather, the claim is that the [medical provider]’s negligence—[their] failure to adequately inform the parents of the risk—has caused the birth of the . . . child [with a congenital defect]. The child argues that but for the inadequate advice, it would not have been born to experience the pain and suffering attributable to the [congenital defect].”
Id. (some alteration in original) (quoting Thomas K. Foutz, Comment, “Wrongful Life”: The Right Not To Be Born, 54 TUL. L. REV. 480, 485 (1980)). The court continued and added, “Wrongful life is the child’s equivalent of the parents’ wrongful birth action.” Id.
The court established that the duty owed in such a claim could extend to those not yet conceived but noted in that context a “provider of health care, or anyone else, will be liable only to those persons foreseeably endangered by [their] conduct. In most wrongful life cases, it should not be difficult to establish foreseeability.” Id. It further explained that imposing a duty on health care providers as to the child, akin to the duty to parents in a “wrongful birth” cause of action set out supra, “foster[s] the societal objectives of genetic counseling and prenatal testing[] and will discourage malpractice” and held that such “duty will be breached by failure to observe the appropriate standard of care.” Id. at 481-82.
Harbeson expressly recognized, in a child’s reproductive medical negligence claim, that the “most controversial element of the analysis in other
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jurisdictions has been injury and the extent of damages.” Id. at 482. However, the court concluded that because “measuring the value of an impaired life as compared to nonexistence is a task that is beyond mortals, whether judges or jurors,” general damages in a wrongful life action are “incapable of satisfying the requirement of Washington law that damages be established with ‘reasonable certainty.’” Id. (quoting Dyal v. Fire Cos. Adjustment Bureau, Inc., 23 Wn.2d 515, 521, 161 P.2d 321 (1945)). Notably, the court nevertheless held that “special damages can be proved” in such a claim because expenses for things like “medical care and special training” are capable of being calculated. Id.
Having identified the particular legal framework of the causes of action at issue here, we turn to the trial court’s summary judgment determination.
B. Evidence of Breach Again, as the plaintiffs in this case, Kambhampati had the burden to make a prima facie showing as to each element of this cause of action in order to survive summary judgment. See Young, 112 Wn.2d at 225. Based on the limited record before us, and its framing of the issues in its response brief on appeal, Invitae did not dispute that it owed a duty to Kambhampati or A but, rather, asserted that it did not breach that duty when it previously classified the X-ALD variant identified in Seethamraju’s test as a VUS and excluded it from the December 2020 genetic testing report on that basis. Kambhampati responds that the declaration of their expert witness established a genuine issue of material fact as to breach. We agree with Kambhampati.
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As a preliminary matter, we note that in the trial court, Invitae moved to exclude portions of the declaration of plaintiffs’ expert, Dr. William Rhead, on the bases that he was not qualified to opine on the relevant standard of care and whether Invitae had breached it and, even if he was qualified to so opine, his opinions were “based on improper methodology and would not assist the jury.” (Boldface omitted.) The order on summary judgment expressly notes that the trial court considered those questions under both ER 702, the rule governing expert testimony, and Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), a cornerstone case that established the test for the admissibility of an expert’s methodology. Significantly, the trial court then concluded that Rhead was qualified to opine on those issues and denied Invitae’s motion to exclude in its entirety.
The court then “evaluate[d] whether Dr. Rhead’s testimony [wa]s legally sufficient to create a disputed issue of material fact.” However, its order is silent as to the basis on which the court ultimately granted Invitae’s motion for summary judgment dismissal: the element of breach that relied on Rhead’s testimony or that of damages. 4 As such, the outcome of the trial court’s evaluation of whether Rhead’s testimony was “legally sufficient to create a disputed issue of material fact” as to breach is unclear from this record, and we consider this question under our de novo standard of review, beginning with the issue of breach.
Kambhampati established a genuine issue of material fact regarding breach. Both of the parties’ experts’ declarations stated, as a general matter, that
4 We do not address proof of injury here, in light of our Supreme Court’s instruction in
Harberson, discussed supra, that “[i]t is an inevitable consequence of recognizing the parents’ right to avoid the birth of a . . . child [with a congenital defect] that we recognize that the birth of such a child is an actionable injury.” 98 Wn.2d at 473
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the standard classification system for genetic variants is as follows: benign, likely benign, VUS, likely pathogenic, or pathogenic. Invitae provided a declaration from Dr. Heidi Rehm, which included her expert opinion on the relevant standard of care and the question of breach. Rehm cited the ACMG/AMP 2015 guidelines as the “current professional practice standards for classifying genetic variants” and opined that Invitae followed the guidelines as to the classification of the genetic variant it identified in Seethamraju’s test and its analysis “did not fall below the standard of care.” In Rehm’s expert opinion “it was not a breach of the standard of care to not report VUSes.”
Significantly, however, plaintiffs Kambhampati’s expert Rhead declared that the genetic variant Invitae identified in Seethamraju’s test that it deemed a VUS “had been reported as pathogenic as early as 2015.” (Boldface omitted.) He further explained that the methodology used by testing labs to categorize variants involves, “simply, analysis of available information on such variants.” On the basis of the 2015 report of the ABCD1 variant as pathogenic, Rhead opined, Invitae should have reported it at least as “likely pathogenic” on Seethamraju’s December 2020 report. Given the disagreement between the parties’ medical experts as to how the genetic variant here should have been categorized during the time in question, the record in this matter contains a genuine issue of material fact with regard to the issue of breach.
Invitae nevertheless spent much of its appellate briefing on this issue seeking to relitigate both Rhead’s qualifications and methodology, despite the fact that it did not cross-appeal or otherwise assign error to the trial court’s ruling on
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those matters. Invitae misses the mark. The trial court plainly concluded that “Rhead establishe[d] qualifications to testify as to gene variant classification and breach of a standard of care,” and it logically follows from this that the court accepted not only Rhead’s methodology underlying his opinion but also his qualifications to testify on these issues. Further, to the extent that Invitae seeks to undermine Rhead’s credibility on the question of breach, credibility determinations are not proper on summary judgment. See Haley, 25 Wn. App. 2d at 217. Accordingly, viewing the experts’ opinions in the light most favorable to Kambhampati as the nonmoving parties, they have established a genuine issue of material fact as to breach and granting summary judgment dismissal on this basis was improper. 5
C. Damages Next, Invitae argued in both its summary judgment motion and response brief in this appeal that Kambhampati could not establish damages under either of their theories of reproductive medical negligence as a matter of law. Regarding the damages element of Kambhampati’s “wrongful life” cause of action, Invitae claimed in its motion for summary judgment that Kambhampati “waived economic damages.” This is so, it contended, because A’s “entire $100 million in alleged damages are general damages [that are] ‘certainly beyond computation.’” 6 Invitae further asserts that the $25 million damages sought by each parent under their
5 In its response brief, Invitae asserts that “fail[ure] to brief the issue of the sufficiency of
Dr. Rhead’s opinions to support their claims” results in waiver of the issue on appeal. (Boldface omitted.) This argument misunderstands our de novo review of summary judgment determinations on appeal. The issue is not waived.
6 Quoting Harbeson, 98 Wn.2d at 482.
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“wrongful birth” theory of negligence “are unrecoverable” because “it is entirely speculative whether [Kambhampati] will sustain a net emotional loss from [A’s] existence” and “they have admitted to experiencing a net emotional benefit from [A’s] existence.” We consider each argument through the summary judgment framework, in relation to the respective claims and types of damages sought.
1. Recoverable Damages in Parents’ Reproductive Medical Negligence Claim
Our Supreme Court in Harbeson allowed for the recovery of damages by parents in a reproductive medical negligence case premised on
the medical, hospital, and medication expenses attributable to the child’s birth and to its [birth defect], and in addition damages for the parents’ emotional injury caused by the birth of the . . . child [with a congenital defect]. In considering damages for emotional injury, the jury should be entitled to consider the countervailing emotional benefits attributable to the birth of the child.
98 Wn.2d at 475. It further held that where the breach by the defendant medical provider caused the birth of the child in question, parents would be “entitled to damages for pecuniary and emotional injuries attributable to those births.” Id. at 478.
Here, as an exhibit in support of its motion for summary judgment, Invitae filed Kambhampati’s response to Invitae’s request for statement of damages that they served on January 25, 2024. Significantly, Kambhampati expressly waived Seethamraju’s past medical expenses and disclaimed any future medical expenses as to her. Their only claimed damages under their “wrongful birth” cause of action were for general damages in the amount of $25 million each. Under the
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plain language of Harbeson, general damages are recoverable in such an action. See id. at 475, 478.
However, Invitae argues that, under McKernan, they cannot make the requisite showing for their claimed general damages because A is currently asymptomatic, he is a “‘healthy, normal child.’” 102 Wn.2d at 419-20. Invitae’s argument is unavailing for several reasons.
First, McKernan was a case that considered a claim that Invitae termed in its motion for summary judgment as one for “wrongful pregnancy”; “[w]here a healthy . . . child [wa]s born [without congenital defects] after an unsuccessful sterilization operation.” Id. at 412. The court in McKernan affirmed the trial court’s summary judgment dismissal of the damages portion of the action but explained that it did not agree with other jurisdictions that “the benefits of parenthood always outweigh the costs of rearing a child.” Id. at 418. The court further reasoned that recovery may not be precluded simply to “avoid placing an ‘unreasonable’ burden upon health care providers” and “the possibility that some parents might bring fraudulent claims is not a sufficient basis for denying recovery.” Id. (quoting Rieck v. Med. Protective Co., 64 Wis. 2d 514, 518, 219 N.W.2d 242 (1974)).
The court held, “Uncertainty as to the fact of damage is a ground for denying liability. We believe that it is impossible to establish reasonable certainty whether the birth of a particular healthy, normal child damaged its parents.” Id. at 419 (emphasis added) (footnote and citation omitted). Significantly however, in footnote 2, contained in that same portion of McKernan, the court expressly recognized that, “[b]y contrast, once the fact of damage is established, recovery
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will not be denied merely because the amount of damage cannot be ascertained with mathematical precision, provided the evidence is sufficient to afford a reasonable basis for estimating loss.” Id. at 419 n.2. Hence, when the parents in McKernan requested damages for the “cost of rearing and educating a normal, healthy child” without providing sufficient evidence of the fact of damage, the court ruled that such a request “goes too far.” Id. at 413, 419.
In contrast, when taken in the light most favorable to them as the nonmoving party, Kambhampati produced evidence sufficient to establish a genuine issue of material fact as to whether A is properly considered a “healthy, normal child” for purposes of their claim for general damages. The parties do not dispute A’s newborn genetic screening was positive for X-ALD. Furthermore, one of A’s treating providers testified in a deposition as follows:
Q. . . . You used the term presymptomatic in this deposition today. Can you tell us exactly what that means?
A. It’s because the likelihood that a patient with [X-]ALD will develop symptoms, especially if they are an outpatient, it’s very high, but even in women the guidelines now recommend that we use that terminology as well, because women can develop [adrenomyeloneuropathy (AMN)] as well. So rather than calling somebody asymptomatic, unless we have a crystal ball, we use the term presymptomatic.
Q. Do you have opinion as to the likelihood that this child will not ever develop symptoms?
A. That would be extremely rare.
Q. All right. Do you have an opinion as to the child’s probable course, based on reasonable medical certainty?
A. We typically will the share that the vast majority will of [sic] develop AMN. So that’s, that’s unfortunately anticipated, but roughly a third may develop primarily adrenal insufficiency, and roughly more than half will develop cerebral form of the disease.
(Emphasis added.)
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Rhead’s declaration stated that the “age of onset of X-ALD varies; the prognosis depends upon age on onset and severity of the disease.” This is consistent with Invitae’s own newborn screening report, set forth supra, which stated that X-ALD manifests itself in wide-ranging symptoms depending on the forms of X-ALD and those symptoms could manifest during childhood, early to middle adulthood, middle age, or some combination thereof, and a person’s “[l]ife expectancy is dependent on the severity of symptoms” arising therefrom.
Rhead stated in his declaration that X-ALD’s “course varies patient to patient; its ‘mild’ form may involve neurological issues including relatively mild physical and cognitive issues, while its severe form involves catastrophic issues including spastic paraparesis, blindness, sphincter dysfunction, sexual dysfunction, and adrenal insufficiency.” Similarly, Invitae’s screening report identified, based on the form of X-ALD, that the symptoms could include progressive learning disabilities, behavioral, vision, and hearing problems, progressive stiffness, weakness, or paralysis of the lower limbs, urinary tract disorders, weight loss, vomiting, and coma. The record also contains documentation by A’s medical providers, aware of his newborn screening positive for X-ALD, that recommended he receive ongoing monitoring for signs of symptoms, including that he undergo brain MRIs ranging from every six months to every year, receive adrenal insufficiency screenings, establish care and follow up with medical providers in the fields of neurology, biochemical genetics, endocrinology, and optometry, among others. Rhead’s February 2025 declaration stated that A “is being diligently monitor [sic] and has been since his birth.” Thus,
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taking the foregoing in the light most favorable to Kambhampati, A is not a “healthy, normal child” as contemplated by the court in McKernan, and Invitae’s reliance on such decisional authority to show an absence of the fact of damages is unavailing.
Second, in Wuth ex rel. Kessler v. Laboratory Corp. of America, this court rejected an argument identical to Invitae’s argument here that McKernan overruled the holding of Harbeson that allowed for recovery of general damages in claims by parents for reproductive medical negligence. 189 Wn. App. 660, 683, 359 P.2d 841 (2015). Consistent with the analysis supra, we held in Wuth that “McKernan did not so much as mention Harbeson,” nor did it “preclude an award for general damages on a wrongful birth claim.” Id. We further noted,
[T]he McKernan court expressly held that the parents could recover general damages based on pain and suffering related to the negligently performed sterilization procedure, pregnancy[,] and childbirth. These amounts are analogous to the general emotional distress and mental anguish damage award at issue in Harbeson and in this case.
Id. at 683-84.
Because damages for “pecuniary and emotional injuries” are permitted under Haberman, which includes Kambhampati’s claimed damages for emotional distress for a negligently performed prenatal genetic test, and there exists a genuine issue of material fact as to whether A is a “normal, healthy child” in light of both his X-ALD diagnosis and resultant medical monitoring and his presymptomatic status at the time his parents filed suit, summary judgment on this basis is not proper.
Third, Invitae argues in the alternative that even if Kambhampati are barred from recovering general damages in their cause of action for reproductive medical
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negligence by the holding in McKernan, though they are not, they have “foreclosed the possibility of a net emotional loss from [A’s] existence in this case through their unequivocal testimony” regarding affection for their son and acknowledging the joy he brings to their lives. Invitae relies on Wuth to support this contention, but that reliance is misplaced. In Wuth, the laboratory made the same argument now presented by Invitae; we rejected it and affirmed the trial court’s denial of summary judgment on that basis. Id. at 686. In so holding, we stated,
[W]hether [the parents] had or would experience a net emotional loss as a result of [the child’s] birth was the central factual dispute in their wrongful birth claim. Although the relevant evidence on the issue was undisputed, it established only that [the child’s] birth brought both joy and significant anguish to the . . . family. On this evidence, the jury could have concluded either that [the child’s] birth brought a ‘net increase’ or a ‘net loss’ to his parents, depending on the weight is accorded to the various portions of the [parents’] testimony.
Because different inferences could be drawn from the evidence, summary judgment was not appropriate. . . . The trial court did not err by allowing the claim to proceed to the jury.
Id. (citation omitted). For the same reasons set out in Wuth, summary judgment on this basis is similarly improper here.
2. Recoverable Damages for Child’s Reproductive Medical Negligence Claim
Finally, Invitae argued in the trial court that Kambhampati “have no recoverable damages for their wrongful life claim.” (Formatting omitted.) This is so, the corporation avers, because Kambhampati waived economic damages on this cause of action and their claimed general damages are impermissible under Harbeson. Invitae is correct as to the latter contention, but not as to the former.
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Harbeson expressly held that general damages are not recoverable in an action for reproductive medical negligence brought on behalf of the child because “measuring the value of an impaired life as compared to nonexistence is a task that is beyond mortals, whether judges or jurors,” the result being that such claims are “incapable of satisfying the requirement of Washington law that damages be established with ‘reasonable certainty.’” 98 Wn.2d at 482 (quoting Dyal, 23 Wn.2d at 521). In their response to Invitae’s request for statement of damages, Kambhampati sought $100 million in general damages on behalf of A in his claim for reproductive medical negligence. Under Harbeson, such damages are plainly not permitted.
However, Harbeson further held that “special damages can be proved”
because, unlike general damages, expenses for things like “medical care and special training” are calculable. Id. In support of its assertion that Kambhampati waived any special damages in A’s medical negligence claim, Invitae cites to their answer to the damages inquiry regarding A’s medical bills. Kambhampati’s statement of damages does expressly waive recovery of A’s past medical bills, but as to his future medical expenses, they answered, “Undetermined ([m]onitoring and future treatment).” Fatal to Invitae’s contention that Kambhampati waived any special damages related to A’s reproductive medical negligence action is the fact that subsequent to their January 2024 responses to Invitae’s request for statement of damages, and prior to the filing of Invitae’s motion for summary judgment, Kambhampati disclosed their primary witnesses. The retained expert witnesses included vocational rehabilitation counselor and case manager Cloie Johnson, M.Ed, CCM, ABVE-D, who prepared a report that calculated A’s future special damages based on a variety of medical outcomes related
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to his diagnosis, and economist Christina Tapia, Ph.D., who was prepared to “calculate the present values of the [l]ife [c]are [p]lan developed by Ms. Johnson.” In his declaration that accompanied the various exhibits appended to Kambhampati’s response to Invitae’s motion, their attorney asserted that Johnson had “recently [been] deposed by defense counsel.” Finally, Kambhampati appended excerpts of their responses to Invitae’s first interrogatories and requests for production to their response to its motion for summary judgment to counter its assertion that they had waived A’s special damages in his medical negligence claim. 7 Taking this special damages evidence in the light most favorable to them as the nonmoving party, Kambhampati carried their burden as to the element of damages regarding A’s claim for reproductive medical negligence, despite the fact that they also claimed otherwise unrecoverable general damages. As such, summary judgment dismissal as to this cause of action was also improper.
Because Kambhampati produced sufficient proof as to each element of their claims, the trial court erred when it granted summary judgment in favor of Invitae and dismissed Kambhampati’s reproductive medical negligence claims. Accordingly, we reverse and remand.
WE CONCUR:
7 While the date of these responses is not clear from the limited record available, Invitae
does not dispute the fact of the responses or assert that they were submitted after its motion for summary judgment was filed or heard.