Bitten – Questions Certified to Supreme Court on Huge Jury Verdict for Student Stricken by Illness on School Tour (CT)

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Munn v. Hotchkiss (Connecticut)

A fifteen-year-old freshman at a private boarding school participated in a month-long summer program in China organized by the school.  Prior to participating in the program, the school sent the student and her parents a packet outlining the activities and a set of legal forms requesting that the parents waive legal claims against the school.  The school also sent medical advice regarding the trip, including a link to the Centers for Disease Control and Prevention (“CDC”) webpage and a note that the school’s infirmary could “serve as a travel clinic.”  However, the CDC website reference was incorrect and the infirmary was unable to provide independent medical advice.  The school also later sent an itinerary, a packing list (including a general reference to “bug spray”), and a handbook on international travel.  However, there were no specific warnings about insect-borne diseases where health risks were mentioned in the materials.

During the program, the students went on a weekend excursion without any bug sprays warnings being given.  After walking through trees and brush, the student had numerous bug bites and an itchy welt on her left arm.  Ten days later, the student awoke with a headache, fever, and wooziness.  Her condition deteriorated and she was taken to the hospital.  Eventually, the student’s parents traveled to China from the United States to be with her in the hospital.  She was severely ill and partially paralyzed, and was airlifted back to New York.  The student was diagnosed with tick-borne encephalitis (“TBE”), a viral infectious disease that affects the central nervous system.  She lost the ability to speak and lost cognitive function, although she managed to live a functional life, finishing high school and attending college.

The student and her parents filed a diversity action in federal court against the school, alleging that the school was negligent in the planning and supervision of the trip.  Plaintiffs claimed that the school failed to warn them about the risks of viral encephalitis and failed to provide her with protective clothing, bug spray, or vaccinations.  They also alleged that the school failed to provide medical personnel on the trip and failed to establish procedures for medical emergencies.  The defendant school argued that the “Agreement Waiver, and Release of Liability” form that was signed by the student’s parents prior to the program precluded liability, but the District Court excluded the document, finding that its language was ambiguous and that it was contrary to public policy under Connecticut law.

During trial, plaintiffs and defendants presented expert testimony regarding travel medicine and tourism risk-management.  At the conclusion of plaintiffs’ case, the defendant sought a directed verdict, arguing that the student had contributed to her own injuries and that the risk of contracting TBE was not foreseeable.  The District Court rejected the motion.  After a seven-day trial, the jury found that the school was negligent in failing to warn the student of the risk of serious insect-borne illnesses and failing to ensure that she took protective measures.  The jury also found no contributory negligence on the part of the student.  Plaintiffs were award $10.25 million in past and future economic damages, as well as $31.5 million in non-economix damages.  The school renewed its motion for a directed verdict and and filed a motion for a new trial.  The District Court denied both motions.  The parties agreed to reduce the monetary award by the amounts plaintiffs received from collateral sources, bringing the total award to approximately $41.5 million.  The school then appealed.

On appeal, the school argued that it did not have a legal duty to warn about, or protect against, TBE, and it argued that the jury award was excessive.  The school asserted that the jury verdict was not supported by sufficient evidence and that it contradicted Connecticut public policy to impose a duty to warn about, or protect against, a disease as remote as TBE.  The United States Court of Appeal for the Second Circuit found that the evidence presented at trial was sufficient to support the jury’s verdict that the student’s illness was foreseeable (there were CDC advisories warning of TBE in forested regions of northern China).  However, the Court also found as follows:

“Because this case implicates complex and unresolved issues of state law and public policy, we certify two questions of law to the Connecticut Supreme Court: (1) Does Connecticut public policy support the imposition of a duty on a school to warn about or protect against the risk of a serious insect borne disease when it organizes a trip abroad? (2) If so, does an award of approximately $41.5 million in favor of the plaintiffs, $31.5 million of which are non-economic damages, warrant remittitur?”

In explaining the first question, the Court stated that “Connecticut precedent [did] not offer sufficient guidance on whether public policy support[ed] imposing a duty on [defendant], and the parties present[ed] compelling arguments on both sides.”  As such, the Court explained that “rather than attempting to discern Connecticut public policy [itself], . . . it [was] preferable to certify the question to the Connecticut Supreme Court.”  On the second question, the Court noted that “[t]his case [was] also unusual because of the large award granted to the plaintiffs.”  In light of the significant award and the “public policy implications,” the Court was led “to certify the issue of remittitur to the Supreme Court of Connecticut.”

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