Student's Brain Swelling Injury Verdict Up in Air

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By Nicholas Datlowe

Aug. 4 — A student who contracted a potentially life threatening illness on a school trip to China will have to wait a little longer to see if a $41.5 million damages verdict will stand, after the U.S. Court of Appeals for the Second Circuit Aug. 3 certified two questions to the Connecticut Supreme Court.

Cara Munn contracted tick-borne encephalitis, which causes inflammation of the brain, while on a school-sponsored trip to China. She is now mute, has difficulty controlling her facial muscles and lost some cognitive function, but manages to live a functional life, according to the court.

She and her parents sued sponsor of the trip Hotchkiss School alleging a failure to warn Munn of, and a failure to protect Munn against, the dangers of TBE. A jury found for the Munns and awarded about $10 million in economic damages, and another $31.5 million in noneconomic damages.

Foreseeable Injury

The court here held that the injury was foreseeable within the meaning of Connecticut law, but couldn't determine if the public policy of the state would favor imposition of the duties asserted by the Munns against the school. Both parties “present colorable arguments on either side,” it said.

The Second Circuit therefore certified the question to the state's high court.

“Connecticut case law provides limited guidance on this issue,” the scope of the negligence duty is traditionally a state issue and “this case is likely to have repercussions beyond this particular fact pattern,” affecting the extent to which schools would be able to offer extracurricular activities, the court said.

The court also certified the question whether lowering the jury's damages award would be appropriate. The court said it was “difficult to determine how the damages related to the evidence at trial,” especially given the relative size of the noneconomic award.

It also noted that the size of the award was “intertwined with the broader public policy issues relating to educational trips,” which favored resolution of the issue by the state court rather than the federal court.

Horton, Shields & Knox, P.C. and Wiggin and Dana LLP represented the defendant. Koskoff Koskoff & Bieder represented the plaintiff.

To contact the reporter on this story: Nicholas Datlowe in Washington at ndatlowe@bna.com

To contact the editor responsible for this story: Jeffrey D. Koelemay at jkoelemay@bna.com

Full text at http://www.bloomberglaw.com/public/document/Munn_v_Hotchkiss_Sch_No_142410cv_2015_BL_247399_2d_Cir_Aug_03_201.