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Castro v. Melchor

Supreme Court of Hawaii

March 13, 2018

LEAH CASTRO, individually and as PERSONAL REPRESENTATIVE of the ESTATE OF BRIANDALYNNE CASTRO, deceased minor, Respondent/Plaintiff-Appellee,
v.
LEROY MELCHOR, in his official capacity; WANNA BHALANG, in her official capacity; TOMI BRADLEY, in her official capacity; STATE OF HAWAI'I; and HAWAI'I DEPARTMENT OF PUBLIC SAFETY, Petitioners/Defendants- Appellants, and AMY YASUNAGA, in her official capacity; ROBERTA MARKS, in her official capacity; KENNETH ZIENKIEWICZ, M.D., in his official capacity; and KEITH WAKABAYASHI, in his official capacity, Respondents/Defendants-Appellees.

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-12-0000753; CIV. NO. 08-1-0901)

          Marie Manuele Gaviganfor petitioners

          Sue V. Hansen for respondent Leah Castro

          RECKTENWALD, C.J AND WILSON, J., WITH NAKAYAMA, J., CONCURRING SEPARATELY, AND McKENNA, J., WRITING SEPARATELY, WITH WHOM POLLACK, J., JOINS

          OPINION

          RECKTENWALD, C.J.

         I. Introduction

         This case arises from a complaint filed by Respondent Leah Castro (Castro), who had a stillbirth while she was incarcerated. Castro brought suit against Leroy Melchor, Wanna Bhalang, Tomi Bradley (all in their official capacities), the State of Hawai'i, and the Hawai'i Department of Public Safety (HDPS) (together, "Petitioners") for negligence, intentional infliction of emotional distress, and negligent infliction of emotional distress. Castro asserted that Petitioners' failure to provide her with timely and adequate medical care led to the stillbirth of her child, Briandalynne.

         After a bench trial, the Circuit Court of the First Circuit ruled in Castro's favor, awarding her $250, 000 for negligent infliction of emotional distress and $100, 000 for loss of filial consortium, and awarding $250, 000 to Briandalynne's estate "for the loss of life itself and for all of the damages that [Briandalynne] would have been entitled to had she been alive, such as loss of enjoyment of life." The Intermediate Court of Appeals (ICA) affirmed the circuit court's decision. Castro v. Melchor, 137 Hawai'i 179, 366 P.3d 1058 (App. 2016).

          Petitioners' application presents a question of first impression to this court: whether the estate of a viable fetus can recover for loss of enjoyment of life, also known as "hedonic, " damages. We conclude that Briandalynne's estate could recover such damages against Petitioners, and that the record supports the amount of the damages awarded. Accordingly, we affirm the ICA's judgment on appeal.

         II. Background

         A. Factual Allegations and Circuit Court Proceedings

         Castro filed a Complaint in her own capacity, and as personal representative of the Estate of Briandalyne, in circuit court on May 6, 2008, alleging assault and battery, negligence, and intentional and negligent infliction of emotional distress against the State of Hawai'i, the HDPS, and two correctional officers at O'ahu Community Correctional Center (OCCC) in their official capacities.

         The Complaint alleged that on June 30, 2007, while Castro was an inmate at OCCC, she was forced to the ground, or "taken down, " by correctional officers Debra Pimental and Ted Choy Foo. Castro was approximately seven months pregnant at the time. After the incident, Castro was transferred to the Women's Community Correctional Center (WCCC). Castro developed problems with vaginal bleeding, which she reported to staff at both OCCC and WCCC, but "was not provided with timely or adequate medical care."

         Castro alleged that the actions of the correctional officers and the subsequent failure of medical personnel to provide her with treatment caused the stillbirth of her eight-month-old fetus, Briandalynne. Briandalynne was delivered stillborn on August 10, 2007, at the Kapi'olani Medical Center. Available medical records indicated that Briandalynne's death was caused by "significant fetal stress" and "hypoxia." Castro contended that the actions of correctional officers Pimental and Choy Foo constituted assault and battery upon her and her unborn fetus.

         Castro also contended that Pimental, Choy Foo, the State, and HDPS were negligent because they "knew or should have known" that Castro was pregnant, and that they "breached their duty of reasonable care by failing to protect [Castro] and her unborn child from harm." Castro additionally asserted that the State and HDPS were liable for "negligent hiring, training, supervision, and retention" of the correctional officers who assaulted her. Furthermore, she asserted that Officers Pimental, Choy Foo, and other "responsible medical personnel" intentionally inflicted emotional distress on her, and that the State and HDPS negligently inflicted emotional distress on her as well.

          Castro filed a First Amended Complaint on July 30, 2009, withdrawing her claims against the correctional officers. In addition to the State and HDPS, Castro added as defendants Leroy Melchor, Wanna Bhalang, Tomi Bradley, Amy Yasunaga, Roberta Marks, and Keith Wakabayashi, all of whom were nurses in the medical unit at OCCC, as well as Kenneth Zienkiewicz, a physician at the medical unit at OCCC. The individuals named in the First Amended Complaint were each sued in their official capacities. Castro raised claims of negligence against each of the defendants, and claims of intentional and negligent infliction of emotional distress against all defendants except the State and HDPS.

         The defendants filed a motion for summary judgment, arguing, inter alia, that there is no legal authority allowing Castro to make a claim on behalf of the estate of a stillborn fetus. The defendants pointed to Hawai'i Revised Statutes (HRS) § 663-3 (Supp. 2009), [1] "[d]eath by wrongful act[, ]" to argue that "there must be injury to a person in order for a tort claim to lie." Defendants argued that Briandalynne was not a person, as contemplated by the statute; therefore, Castro could not make a claim on her behalf.

         On May 13, 2011, the circuit court issued its order granting in part and denying in part the motion for summary judgment.[2] The court granted the motion "as to all claims against Defendants Yasunaga, Marks, Zienkiewicz[, ] and Wakabayashi, " as well as "to all claims brought by Plaintiff Leah Castro as Personal Representative of the Estate of Briandalynne Castro." The court denied the motion with respect to all other claims.

         However, on October 14, 2011, the court issued an amended summary judgment order sua sponte, reversing its previous grant of summary judgment "with respect to all claims of Plaintiff Leah Castro as Personal Representative of the Estate of Briandalynne Castro." The court explained that its sua sponte decision was based upon its belief that its prior analysis was in error.[3]

          A bench trial began on February 27, 2012. After the evidentiary portion of the trial was completed, Castro filed a memorandum regarding damages with the court. Castro explained that HRS § 663-3, the wrongful death statute, "governs recovery by the decedent's survivors[, ]" and that HRS § 663-7, [4] the survival statute, "governs recovery for wrongful death by the estate of a decedent." Castro asserted that because "[t]he amount of recovery for the loss of life for the Estate of Briandalynne Castro is ''determined from the standpoint of the deceased, '" according to Rohlfing v. Moses Akiona, Ltd., 45 Haw. 373, 381-83, 369 P.2d 96, 101 (1961), "the value of the life and the loss of enjoyment of life of Briandalynne Castro are of the nature and kind as of any other child born in our community[, ]" regardless of Castro's status as an incarcerated inmate. Castro stated that the Estate of Briandalynne Castro's damages claims include all the damages that Briandalynne would have been entitled to had she been alive, such as loss of enjoyment of life and pain and suffering, before death occurred. With respect to Castro's claim for negligent infliction of emotional distress, Castro asserted that there was "ample evidence that a normally constituted reasonable person would be unable to adequately cope with the mental stress engendered by Defendants' egregious conduct" and the resulting stillbirth. Castro further added that the fact that she may not have been able to raise or provide for her daughter while in prison "is irrelevant with respect to [Castro's] mental and emotional pain" caused by the stillbirth. Castro requested that the court award her $400, 000 for her survivor claims, $250, 000 for her emotional distress claims, $600, 000 for the Estate of Briandalynne Castro's wrongful death claim, and $800 in special damages for the estate's cremation expenses.

         Petitioners also submitted a post-trial memorandum regarding damages. Petitioners first argued that damages should not be awarded because Castro "has not and cannot prove a causal connection between any alleged negligence of the State Defendants and the stillbirth." Petitioners further contended that any award of damages to Castro "must be minimal" because her "conduct at all times prior to the stillbirth was not the conduct of a mother who wanted her baby." They additionally contended that Castro's incarceration meant that "[t]here is absolutely no evidence that [Castro] would have been able to raise her child or have even been able to keep her child." Petitioners concluded by arguing that "an award of $5, 000 or less would be an adequate amount to compensate [Castro] for a stillbirth which is not a significant loss to her and for which she has not suffered any emotional distress."

         The court entered its Findings of Fact and Conclusions of Law and Order on May 14, 2012, determining that the Petitioners' negligence was the legal cause of Briandalynne's death. The court made the following Findings of Fact (FOFs)[5]relevant to this appeal:

18. On July 2, 2007, Plaintiff was seen by OCCC nurse practitioner, Amy Yasunaga, for her first pre-natal visit. Ms. Yasunaga was the primary medical provider responsible for treatment and care of pregnant inmates at OCCC.
19. Ms. Yasunaga ordered pre-natal vitamins, took Plaintiff's vital signs, measured the fundus, listened to the fetus's heart tones, and ordered an OBGYN consultation and an ultrasound for Plaintiff at Kapiolani Medical Center ("KMC" or "Kapiolani"). Ms. Yasunaga noted no abnormalities or concerns with Plaintiff's pregnancy. Ms. Yasunaga noted Plaintiff's last menstrual period was January 31, 2007.
20. On that same day, July 2, 2007, OCCC physician, Kenneth Zienkiewicz, M.D., reviewed and approved Ms. Yasunaga's orders for Plaintiff's KMC OBGYN consultation and ultrasound.
22. Both the KMC OBGYN consultation and ultrasound were never done, during the relevant month-long period, from the time Ms. Yasunaga issued the orders on July 2, 2007, until Plaintiff's transfer out of OCCC on August 2, 2007.
23. Within several days of Plaintiff's July 2, 2007 pre-natal visit with Ms. Yasunaga, Plaintiff began experiencing vaginal bleeding. Plaintiff made four to five reports of her vaginal bleeding to various [Adult Corrections Officers (ACOs)], including ACO Hattie Reis, ACO Wanda Nunes, and ACO Reyetta Ofilas.
24. All three ACOs informed the OCCC medical unit of Plaintiff s vaginal bleeding and requested medical attention, but no medical care was provided. The medical unit's response, relayed through the Nurse Defendants was, that if Plaintiff's bleeding was not heavy enough to saturate a sanitary pad, and/or not accompanied by cramping, Plaintiff did not need to be sent to the medical unit.
27. Up until Plaintiff's transfer out of OCCC on August 2, 2007, Plaintiff did not receive any medical care for her four to five complaints of vaginal bleeding, and was never sent to the OCCC Medical Unit.
28. During Plaintiff's entire stay at OCCC, Plaintiff was on segregation status, from July 2 to August 2, 2007. The pertinent DPS and OCCC Policies and Procedures for medical care for segregated inmates . . . were not followed, and no medical staffer ever checked on, or communicated with Plaintiff, about her bleeding complaints. Nor was Plaintiff ever brought to the OCCC Medical Unit for evaluation of her complaints.
30. Plaintiff was transferred to WCCC on August 2, 2007. According to WCCC nurse Jennifer Simeona, who conducted Plaintiff's intake on that date, Plaintiff's Interfacility Transfer Form from OCCC, did not contain any information to let Nurse Simeona know, that the KMC OBGYN evaluation and ultrasound ordered on July 2, 2007, were still outstanding and never done. Any outstanding medical orders should have been included on the form.
34. The WCCC midwife could not detect any fetal heart tones from Plaintiffs fetus. Plaintiff "broke down" crying but tried to not lose hope. The midwife ordered that Plaintiff be immediately transported to KMC.
35. Plaintiff was taken to KMC via emergency transport, on that same date, August 10, 2007, where an ultrasound confirmed that the fetus was dead. Labor was induced, and Plaintiff's fetus, Briandalynne Castro . . . was delivered stillborn on August 11, 2007.
36. On August 14, 2007, an autopsy of [Briandalynne] was performed in the usual course by Jeffrey Killeen, M.D. ("Dr. Killeen"), KMC Director of Pathology.
37. Dr. Killeen's autopsy findings and conclusions indicated, inter alia, that the pregnancy was "term or near-term", [the stillbirth] appeared to be related to "intrauterine events occurring at the time of vaginal bleeding", and that, more likely than not, death was related to a placental abruption. A placental abruption, is a separation of the placenta from the uterus, causing a disconnect between the maternal blood supply and placental nutrition from the maternal circulation.
38. Dr. Killeen's autopsy findings also confirmed that [Briandalynne] had no congenital or developmental abnormalities.
39. On or around October 22, 2008, Dr. Killeen conducted further evaluation and testing to determine the approximate date of [Briandalynne]'s death and supplemented his autopsy report with an Addendum containing his findings.
40. As a result of this further examination of the fetus, placenta, and multiple organs, Dr. Killeen opined that "the time interval between fetal death and delivery is estimated to be greater than 96 hours, more likely 7 days or more, and less than 14 days.["] Dr. Killeen's findings, placed the date of death, within a reasonable degree of medical probability, as between July 29, 2007 and August 4, 2007. Dr. Killeen also indicated that the age of the fetus, was 35 to 37 weeks of gestation
56. The evidence established that [Briandalynne had] no congenital or development abnormalities. Despite the incarcerated status of her mother, [Briandalynne's] life and her loss of enjoyment of life, are of the nature and kind of any other infant.
57. An award of damages against Defendant State, in the amount of $250, 000.00 to the Estate of Briandalynne Castro, is fair and appropriate, for the State's share of the Estate's total damages.

          The court also made the following relevant Conclusions of Law (COLs):

74. Under Hawaii's wrongful death statute, a parent of a stillborn viable fetus, such as Plaintiff herein, is entitled to sue for the wrongful death of the fetus. Wade v. U.S., 745 F.Supp. 1573, 1579 (D. Haw. 1990) .
81. Based on all the facts and circumstances, an award of damages against Defendant State, in the amount of $350, 000.00 to Plaintiff individually ($250, 000.00 for NIED and $100, 000.00 for loss of filial consortium), is fair and appropriate, for the State's share of Plaintiff's total damages.
82. The Estate's claim, under HRS § 663-7, is the cause of action and recovery that [Briandalynne] would have been entitled to at death for the injuries caused by Defendant State's negligence. Ozaki v. Assn of Apt. Owners, 87 Hawai'i 273, 288, 954 P.2d 652, 667 (App. 1998), aff'd in part and reversed in part on other grounds, 87 Hawai'i 265, 954 P.2d 644 (1998). The Estate's damages include damages for the loss of enjoyment of life, or for the value of life itself, measured separately from the economic productive value that the deceased would have had. Montalvo v. Lapez, 77 Hawai'i 282, 284 n.2, 884 P.2d 345, 347 n.2 (1994) .
83. The Estate's damages include the value for the loss of life itself and for all of the damages that [Briandalynne] would have been entitled to had she been alive, such as loss of enjoyment of life. The evidence established that the [Briandalynne had] no congenital or development abnormalities. Despite the incarcerated status of her mother, [Briandalynne]'s life and her loss of enjoyment of life, are of the nature and kind of any other infant. An award of damages against Defendant State, in the amount of $250, 000.00 to the Estate of Briandalynne Castro, is fair and appropriate, for the State's share of the Estate's total damages.

         The court thus entered final judgment in Castro's favor and awarded her $350, 000 individually and $250, 000 as the ...


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