*1
I
Although agree
majority
Department
is
deference,
longstand-
to be accorded a fair amount of
and the
relevant,
ing tenure of the
is
such
Department’s regulations
factors are not
legislative
insurmountable
face of a clear
See,
scheme.
e.g., Insurance Federation
Pa. v. Common-
Ins.,
(2005) (invali-
Dep’t
wealth
Finally, it is worth that repeating Department has identified no health or safety concerns pertaining childcare services provided by Appеllee. reasons,
For the above I believe the Commonwealth Court reached the correct result and would affirm its order. joins
Justice McCAFFERY this dissenting opinion. Halper, h/w, Jack HALPER and Marlene Halper, Appellants JEWISH FAMILY & CHILDREN’S OF SERVICE GREATER (Two Cases).
PHILADELPHIA, Appellees Supreme Pennsylvania. Court of
Argued Oct. 2007.
Decided Feb. *3 LLC, Trevose; Rubenstone, Rubenstone, Lamm H. Edward P.C., Mellon, Tataro, Shelly, Doyles- Webster & C. Samuel h/w, and David town, Halper, and Marlene for Jack Halper, appellants. O’Neill, Family A.P. for & Children’s Service
Naomi Jewish Philadelphia, appellees. of Greater CASTILLE, SAYLOR, EAKIN, CAPPY, C.J., BEFORE: FITZGERALD, BAER, JJ. BALDWIN
OPINION EAKIN. Justice son, David, Marlene their in 1964 Halper adopted
Jack and through Family Jewish Children’s Service Greater David’s life has been riddled with mental health Philadelphia. treatment, abuse, drug suicide continuous problems, attempts, hospitalized social In David was poor relationships. adjustment depression, drug dependence, for and adolescent reaction From 1980 following attempt. through suicide 1999, Halpers sought his birth mother’s medical insight prob- records to facilitate treatment and into David’s lems. mother, had a file on David’s birth which
includеd a letter she suffered from psychiatrist’s indicating *4 undifferentiated That letter was not in David’s schizophrenia. file; it had been in the file apparently placed of David’s who was also for the younger sibling, placed adoption through It was not for the until 1999. Agency. produced plaintiffs brought Agency alleging The an action the Halpers1 against First, negligence. Halpers alleged two theories of the e., i. the failed to “wrongful adoption,” Agency improperly Second, notify history. them of David’s birth mother’s mеntal prior 1. Jack died to trial.
149 the Halpers Agency negligently asserted misfiled the birth information, mother’s medical so that when later they sought information, available; result, such it was not as a David did receive psychiatric not care he have might otherwise action, received. brought his own which mirrored the claims second “failure to disclose” Halpers’ theory. The jury general returned a verdict finding Agency jury was not negligent; asked to differentiate between the “wrongful adoption” and “failure tо disclose” The theories. $225,000 $75,000. awarded the Halpers Halpers appealed. appeal,
On the Superior Court found the verdict “too mud- dled legally to be supported.” Halper v. Family Jewish Children’s Service Philadelphia, Greater No. 2476 EDA 2004, 2005 WL 3417271 and No. 2517 EDA unpublished memorandum at 2005 WL (Pa.Super. filed Septem- 6, 2005). ber It found presented conflicting expert testimony regarding whether David was properly diag- nosed as schizophrenic, major depressive psychotic Id., However, features. at 5-6. relying on Brannan v. Lank- enau Hospital, (1980), the Superior Court embraced the Agency’s argument that at the time of the adoption, schizophrenia was believed to be a reactive disorder mind, of the not as an condition; inherited or thus, foreseeable it would not have been negligent to have kept that information Id., from the Halpers. Ernst, at 6-7 (citing Gibbs v. (1994)). As the verdict sheet did not differentiate between the offered, two theories of negligence the verdict was problematic because David wаs able to recover under the second theory liability, negligent failure disclose, to as opposed negligent misrepresentation. There- fore, the Superior Court reversed the judgment and remanded for a new trial claim, concerning David’s limited to the issue of disclose, ie., negligent failure to misfiling David’s birth mother’s medical information and the resulting damages. at 8. The court noted all other claims raised were relevant to the issue of wrongful adoption and were rendered moot. *5 unstated, limited to the remand was reasons
at 10. For David’s claim alone. dissented, testimony expert finding Montemuro
Justice
left with no
that
was
contradictory
not so
mental illness. Hal
nature of David’s
guidance regarding
and Children’s Service
Greater
Family
v. Jewish
per
of
2004,
3417271 and No.
No. 2476 EDA
2005 WL
Philadelphia,
2,
2005 WL
memorandum
unpublished
2517 EDA
2005) (Montemuro, J.,
September
filed
(Pa.Super.
be recon
testimony
stated the
can
The dissent
dissenting).
for the
complimentary explanations
as there are two
ciled
First,
of medication could
ingestion
variant diagnoses.
second,
diagnose
David was difficult to
affect
and
diagnoses,
“co-morbid,”
are
major
disorders
many
psychiatric
because
Furthermore,
2-3.
that occur
together.
disorders
Gibbs, failure to disclose
Montemuro
that under
opined
Justice
context; thus, the
were under
Halpers
applies
adoption
that David’s birth
no
to show it was foreseeable
obligation
negatively impact
problems might
mother’s mental health
duty
to establish the
had a
to disclose
David
order
Id., at 3-4. The
her mental illness.
regarding
information
appealed.
of
to determine:
granted
appeal
We
allowance
interpretation
erred in its
Superior
1. Whether the
Court
Ernst,
538 Pa.
2. Whether the
Court erred
its
Superior
Hospital,
of Braman
Lankenau
application
(1980)
in this appeal.
4. Whether to establish that there was an absence of evidence Jack had adopted Halper Marlene would not have Halper the birthmother’s mental health. they known of Service Family v. Jewish Children’s Greater (2007). all “Although Philadelphia, *6 review, subject to it is well- appellate new trial orders are that, by absent a clear abuse of discretion established law court, trial courts must not interfere with the appellate trial a new trial.” Harman ex authority grant deny court’s to Borah, 756 A.2d 1121-22 rel. Harman v. omitted). (citations law, (2000) of questions We аre faced with review, to and our of review is subject scope which are de novo School, re plenary. Hershey In Milton (2006). 1258, 1261 were under no to argue they obligation
The first of David’s birth mother’s mental ill- foreseeability show duty ness in order to establish the had a to disclose Agency They the information her condition. also assert concerning in and majority interpretation erred its in in holding duty of this Court’s decision application Gibbs regard negligent misrepresenta- of with to adoption agencies оf the child was only applicable tion is where the condition placement. Halpers agree foreseeable at the time of The dissent, Agency’s duty fully which discussed the to disclose all information about a child without non-identifying attaching foreseeability a element. correctly counters the inter- Agency Superior Court in is
preted determining foreseeability element Gibbs both required negligent misrepresentation the context of to negligent Additionally, and failure disclose. relevant, infоrmation,
argues only required disclosure Gibbs and David’s birth mother’s mental health condition her product genetic; was considered a environment and not thus, required such information was irrelevant and was not to be disclosed. recog-
The issue in was whether the Commonwealth Gibbs negligent nized causes of action such as wrongful adoption Gibbs, likened placement adoptive child. 884. Gibbs misrep- to the common law tort of wrongful adoption negligent resentation, contains the elements: following which (2) fact;
(1) the repre- of a material misrepresentation must misrepresentation, know of the sentor must either as to its knowledge make the without misrepresentation make the under falsity representation truth or or must falsity; known of its in which he to have ought circumstances (3) to induce representation must intend the representor (4) it; party must result to the injury another to act on justifiable misrepresentation. reliance on the acting Keaton, Keaton on the at 890 W. Prosser and (citing Page 1984)). (5th held § Torts аt 745-58 ed. Gibbs Law of applicable adoption negligent misrepresentation context, to to make reasonable efforts requires agencies representations prospective parents. make true negligent misrepresentation 890-91. noted specifically by foreseeability is restricted “the common law notion of aptly *7 duty proximate of cause to concepts as found becoming any way guarantee warranty it from in a prevent a child’s future health.” at 891. under “Aсcordingly, of duty the traditional of of principles negligence, adoption for the will agencies purposes negligent misrepresentation where the condition of the child was foreseeable at apply in placement agency blameworthy the time of so that the is (citation omitted). a at 892 making misrepresentation.” failure to negligent also noted disclose relevant infor- Gibbs context; however, equally applicable adoption mation is in this held “an has a to regard adoption agency duty Gibbs fully disclose to the all rele- accurately adopting parents non-identifying vant information in its possession concerning Id. noted the Act adoptee.” Adoption specifically Gibbs provided privileged confidential or information must be re- identifying leased after information concerning biological Id.; parents § has been removed. see also 23 Pa.C.S. Here, was correct in Superior interpre Court its with regard negligent misrepresentation, tation of to noted, claim. As the court “when this wrongful adoption place, schizophrenia took was considered to be a adoption environment, not an actual disorder of the mind.” product at 6. there was some research in the Halper, Although early 1960s concerning genetic component affiliation with schizophrenia, it was the held belief in the medical commonly community that such a disorder was the of environ- product ment. See N.T. Trial, 2/24/04, at 178-81. Because of this belief, the court agreed there was no foreseeable harm at the time of the to adoption relating David’s birth mother’s condi- tion; therefore, if even the information should have been released to the Halpers, failing provide such information tempered by was the lack of foreseeable harm. Halper, at 6- 7. Because negligent misrepresentation requires a foresee- Gibbs, element, ability as held in the Superior analysis Court’s was correct. next assert the Superior majority
erred thеir holding medical were so experts contradictory they rather, left the guidance; contend, no they each expert’s testimony easily was reconciled with the others and consistent, should be deemed under the circumstances. The Agency counters interpretation Court’s Brannan correct; it suggests Halpers’ experts bla tantly disagreed on whether David suffers from schizophrenia, the fundamental issue in the case.
Brannan was a medical malpractice case an ex- involving witness, pert Dr. Dr. Thompson. Thompson testified at trial that both of plaintiffs treating physicians acted negligent- ly in their failure to timely administer certain drugs. Bran- nan, re-direct, at 200. On Dr. Thompson indicated he could not answer whether the treating physicians’ conduct fell below *8 the applicable care; standard of when asked the ques- same later, tion he reaffirmed the conduct of the physicians was below the applicable standard. Id. Brannan held this was a minor divergence and allowеd the issue to Id. togo jury. noted, The Court plaintiffs case “[A] will fail when the testi- mony of his expert two witnesses is so contradictory jury is left with no guidance on the issue.” Id. (citing Muda- Co., no v. Philadelphia Rapid Transit 51, 104, 289 Pa. 137 A. (1927) 108 (plaintiffs experts must vitally “so disagree on points essential as to neutralize each other’s opinion evi- ”)). dence ....
154 relevant evidence juries allowed to hear
This Court has Morrissey witnesses. See among expert conflicts and resolve 71, 269 A.2d Commonwealth, Highways, Dept. v. Transp. (1970); Suburban 866, Philadelphia Abrams 868 (1970). 702, Co., 115, Only expert 704 Pa. 264 A.2d 438 on fundamental issues absоlute conflicts testimony containing otherwise, fatal; legally evidence will be will be deemed jury. to the Menarde v. and fit for submission See competent (1954). Co., 497, 681, 103 A.2d 685 Philadelphia Trasp. Here, analysis real of this issue Court’s the facts of this case from Simmons distinguishing was its (1974). There, Mullen, one Pa.Super. a medical so the pinpoint problem, was unable to expert expert with another who made testimony supplemented at 5. The and Halper, the exact See diagnosis. Gur, three testimony experts, Raquеl David provided Rockwell, M.D., Ph.D., and Dennis neurologist; a psychiatrist Yacona, M.D., a Ph.D., Anthony psychia- a and psychologist; and Dr. began treating trist. Dr. Rockwell David Dr. Rockwell’s referral began treating upon Yacona Trial, 2/25/04, 106, N.T. at 20.00. David, him spoke
Dr. never treated but examined Gur N.T. July preparation to Mrs. on for trial. Trial, 2/24/04, the one meeting at 107-08. Based on with with Halper, speaking phone David and Mrs. over doctors, David’s two Dr. Gur testified David suffers treating features substance major depression psychotic from with Id., аbuse. at 124. Dr. Gur also testified it is often difficult to disorder, major psychi- a where pinpoint particular especially they are concerned because are often co- atric disorders co-exists Many morbid. at 122. times substance abuse co-morbid nature of schizophrenia, and the depression and obscure a process these disorders can affect disease testified the fact clinical at 122-23. She also picture. medications, three an one for antipsychоtic, David was on id., mood, could have affected her anxiety, and one for id., 120; however, she did not want to take David diagnosis, *9 off the medications to examine him because he was suicide Id., at risk. 121. ill, severely mentally
Dr. Rockwell testified David is Trial, 2/25/04, believes David suffers from N.T. schizophrenia. at 135-36. Dr. Rockwell testified David suffers Although from he also he has with schizophrenia, depression testified psychotic ultimately features and David with schizo- diagnosed Id., phrenia constantly diminishing because of his condition. at 150-51. Dr. Rockwell also testified the fact David was on various at the time Dr. him drugs likely Gur examined Id., explained the difference in their Dr. diagnoses. Yacona ill testified based on how David is and his psychopa- thology, he suffers from chronic schizophre- undifferentiated nia. at 173. Dr. Regarding testimony, Gur’s Dr. Yacona condition, admitted a difference in understanding David’s but stated not in psychiatrists agree, general, do and different of human understanding beings ways includes different them. psychiatrically describing at 200-01.
Thus, two of the expеrts, treating physicians, David’s testi- Gur, fied David suffers from while Dr. schizophrenia, who met medicated, on one occasion while he was diagnosed major him with depression with features and sub- psychotic stance In viewing testimony, abuse. their the ex- complete behaviors, perts agreement regarding past were David’s abuse, attempts, suicide substance and overall scheme of mental illness. Those similarities suggest the difference diagnosis was not fatal and was fit jury for submission. In fact, it is similar to the difference noted in Braman. Even different, though the ultimate were those diagnoses differ- ences did not sufficiently compromise expert testimony to consideration, remove the issue from the jury’s and we believe Superior Court erred its interpretation application of Braman. The trial court was correct in finding this to be decide, a matter for the testimony because sufficient determination, was taken to allow such a and the evidence Trial, 3/2/04, See contrary not so as to be fatal. N.T. 60-61. *10 in failing erred Halpers Superior assert the medical timely produce their claim for failure to to address mother when it remanded for a new history of David’s birth on solely Relying Connelly trial on David’s identical claim. Railroad, Containers, 222 Pennsylvania Pa.Super. Inc. v. The 7, (1972), no verdict special assert thus, the verdict should stand because requested; form was negligence one of the two theories of was undermined. Brief, 532-33; 21. This case had two see Appellants’ child; had two theories of plaintiffs, pаrents parents As sharing theory only. with the child second negligence, David, perceived concerns remand was ordered because of reject prob with the witnesses. We those problems expert lems, agree any discrepancy with Justice Montemuro— given jury. was minor and the matter was to the As properly such, entirely proper the verdict as to David is is no —there reason to remand. however,
As to the we have found their first parents, theory untenable for the reasons abovе. As with negligence claim, theory by David’s their second was supported evidence, why and it is unclear Court failed to said, also remand as to their second That theory liability. theories, the verdict did not differentiate between the two slip and no verdict we cannot tell if the special slip requested; theory award to the was based on their first or their parents solely theory, second. If the award was based on the first it If solely theory, cannot stand. based on the second it is proper. “general-verdict
Some of our sister states have adopted jury rule.”2 This rule states “when the returns a general 1271, (9th Cir.1989); generally Maguire, 2. See McCord v. 873 F.2d 1274 Co., 1105, (6th Cir.1971); Adkins v. Ford Motor 446 F.2d 1108 Auto. Powell, 596, 593, Corp. Ala.App. Acceptance v. 45 234 So.2d 600 643, 477, (Ct.Civ.App.1970); Ala.App. White v. Jackson 36 62 So.2d Cradit, 233, 467, (1953); Ariz.App. 477-78 Reese v. 12 469 P.2d 472 Lawrence, 378, (1970); Dairy Equip. Cal.App.3d Cont’l Co. v. 17 94 Inc., 887, (1971); Assocs., Finley Cal.Rptr. Dowling 890 v. 248 Conn. 1245, (1999); Washington v. 727 A.2d 1249 Robinson Internal Med. Assocs., P.C., (D.C. 1994); Cappadona, 647 A.2d 1145 Nimetz Khubani, (D.C. 1991); Barth v. 748 So.2d 261 verdict involving two or more issues and its verdict is sup- issue, as to at least one ported the verdict will not be reversed appeal.” on See at 810 Dropkin, (citing Todd South Car- Co., olina Farm Bureau Mut. Ins. 287 S.C. 336 S.E.2d (1985)). 472, 473-74 defendant who fails to request “[A] special verdict form a civil case -willbe barred on appeal from complaining have relied on a may factual theory by the evidence when there unsupported was sufficient evidence to another support theory properly jury.” before the Nimetz, at 608.
Here, $225,000 the jury awarded the Halpers $75,000. trial, At neither the nor the Halpers request- ed a verdict special slip interrogatories to determine on *11 what issues the jury damages. awarded there Clearly is a awarded; however, discrepancy amount of damages because a verdict general was returned and the evidence theories, supported one of the the Halpers’ verdict must stand. Therefore, we and adopt apply “general-verdict rule” here because we will not shift the burden to the Halpers due to the Agency’s failure to rеquest special verdict and the slip, clearly evidence was sufficient to support at least one of the two Halpers’ liability. theories of Finally, the Halpers argue Superior Court erred there concluding was insufficient evidence presented they that would not have adopted they David had known of birth his (Fla.1999); Assocs., P.C., Strino v. Ill.App.3d Premier Healthcare 365 895, 784, 221, (2006); 302 Ill. Dec. 850 N.E.2d 229-30 Estate Lawler of Weston, 739, (Miss.1984); Burlington 451 So.2d 743 Lahm v. North Co., 182, 126, (1997); Neb.App. ern R. 6 571 N.W.2d 131-32 Skender v. Co., LLC, 1430, 710, Brunsonbuilt Const. and Dev. 122 Nev. 148 P.3d (2006); Labs., 457, 162, Wagner 717 v. Roche Ohio 85 St.3d 709 N.E.2d (1999); Storеs, Inc., 164, 928, Shoup 165 v. Wal-Mart 335 Or. 61 P.3d (2003); Heroux, 79, 265, (1937); 931-32 Heroux v. 58 R.I. 191 A. 267 Assoc., Inc., 360,
Dropkin v. Beachwalk Villas Condo. 373 S.C. 644 808, (Ct.App.2007); S.E.2d 810-11 Engelmann, Martinmaas v. 612 600, (S.D.2000); By Through N.W.2d 615 Barson Barson v. E.R. Sons, Inc., 832, (Utah 1984); Crowder, Squibb & 682 P.2d 835 Orr v. 335, 593, (1983). 173 W.Va. 315 S.E.2d 607 But Cavallero v. cf. Conn., 417, 370, Hartford, Travelers Ins. Co. 197 Minn. 267 N.W. 373 (1936); Co., Realty Welch v. Gonic Trust 128 N.H. 517 A.2d (1986); N.I., NJ.Super. 810 State v. 349 (App.Div.2002). held, More the court specifically, “[w]e mother’s condition. statement that testimony any Halper’s] cannot find [Mrs. the birth the child had she known adopted would not have she Thus, supporting there no evidence this condition. is mother’s is to the applicablе at 7 n. 5. This issue Halper, claim.” wrongful adoption, theory negligence, first Halpers’ matter, on that ruling the Superior because we affirm Court’s our review.3 this issue does not warrant The verdict reverse the decision of Court. We relin- and David is reinstated. Jurisdiction as to quished. and former BALD-
Former Chief Justice CAPPY Justices participate did not the decision WIN FITZGERALD this case. join BAER and Justice
Chief Justice CASTILLE opinion. files a concurring opinion.
Justice SAYLOR SAYLOR, concurring. Justice join majority opinion, subject following I observa- tions. Ernst, (1994),
In
this
validity
negligent
of a cause of action for
recognized
failure to
information on the
of an
pertinent
part
disclose
*12
in
agency,
adoption.1
the context of the initial
adoption
extends the
of that cause of action to
present holding
scope
timeframe,
post-adoptive
include the
at least under the facts of
occurred,
view,
my
adoption
this case.
In
after an
has
the
Although
point,
this
there is such
3.
we affirm the
Court on
testimony
in the record. Mrs.
testified sevеral times she would
adopted
had
received
never have
she
David’s birth mother's
Trial, 2/23/04, at 140-41.
medical information at the time. N.T.
Although
argues
interpreted
adoption
Appellee
1.
that Gibbs
a later
act
recogni-
present adoption,
in
the
the
than the one
effect
the time of
statute;
duty
solely
tion
the
to disclose was not based
on the
it was
relationship
of the
between the
predicated on the inherent nature
214-15,
agency
adoptive parents.
See id. at
Under the I am comfortable with present First, the outcome for sеveral reasons. the agency negligent- ly failed to locate information about the birth mother’s medical history that it had in its possession specific requests when for such information were made timeframe.2 post-adoptive Second, made, the time such by requests were the genetic basis for the mother’s mental recognized illness was medical community, any thus that undermining contention foreseeability requirement Finally, Gibbs’ was not met.3 it (at me) that, seems evident least to any time a whose parent adopted experiencing child is mental difficulties contacts the adoption agency seeking information about the birth mother’s history illness, of mental failure to disclose relevant data that is on file at agency may result in harm. appears It pleas to have been assumed at the common level that the Agency continuing duty had indefinitely a to maintain records of the type misplaced. that supposition it As this by is not contradicted Court; thus, Agency, the issue is not before the I do not undеrstand today’s holding proposition duty necessarily to reflect the that a such adoption agency exists relative to all children whose has facilitated. post-adoptive request
3. The first for information was made in that, time, Agency effectively even by genetic concedes that predisposition widely recognized. relative to the disorder was For witnesses, example, plaintiff's expert on cross-examination of one of the major study suggesting counsel for the elicited that a such a genetic component published years had been thirteen before 177-78; request the first for information. See N.T. Feb. 2004 at Court, Additionally, Agency only RR. at 104a. in its brief to this prevailing contends by view that such were illnesses caused persisted throughout environmental factors the 1960s and into the 1970s, Appellee Brief see for at 5 n. but not the See 1980s. also N.T. 184; that, (eliciting by Feb. 2004 at RR. at 105a 1980 at least nine major psychiatric substantially greater studies had shown a risk for schizophrenia persons in the schizophrenia close relatives of than population large).