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Moriarity v. Small World Adoption Foundation of Missouri

July 11, 2008

GERALD MORIARITY AND CYNTHIA MORIARITY, PLAINTIFFS,
v.
SMALL WORLD ADOPTION FOUNDATION OF MISSOURI, INC., SMALL WORLD ADOPTION FOUNDATION, INC., VIACHESLAV PLATONOV, M.D., AND YELENA KOGAN, DEFENDANTS.



The opinion of the court was delivered by: Hon. Norman A. Mordue, Chief U.S. District Judge

MEMORANDUM-DECISION AND ORDER

Presently before the Court is defendants' motion in limine (Dkt. No. 57) requesting the following relief in this wrongful adoption case:

1. An order precluding plaintiffs from seeking recovery for any expenses incurred after their adopted son Lee Moriarity ("Lee") reaches age 21;

2. An order precluding plaintiffs from recovering anything other than out-of-pocket extraordinary medical expenses;

3. An offset for expenses paid by medical insurance, Medicaid, public programs or charity;

4. An order precluding plaintiffs from recovering past medical expenses on the ground of failure to disclose evidence thereof as required by Fed. R. Civ. P. 26;

5. An order precluding plaintiffs from testifying at trial regarding what anyone in Ukraine told them about Lee's medical condition on the ground that it would constitute inadmissible hearsay; and

6. An order precluding the testimony of plaintiffs' economist Daniel McGowan, Ph.D. on the ground of noncompliance with Fed. R. Civ. P. 26.

1. Expenses Incurred After Lee Reaches Age 21

Plaintiffs are legally responsible for Lee's medical expenses only until he attains the age of 21. See N.Y. Family Ct. Act, § 413(1); Bani-Esraili v. Lerman, 69 N.Y.2d 807, 808 (1987).

Accordingly, defendants are entitled to an order precluding plaintiffs from seeking recovery for any expenses incurred after Lee reaches age 21.

2. Expenses Other Than Out-of-pocket Extraordinary Medical Expenses

Defendants seek a pre-trial ruling limiting the damages plaintiffs may recover. The parties agree that plaintiffs "may be compensated only in the amount that represents [their] legally cognizable injury, namely the increased financial obligation arising from the extraordinary medical treatment rendered the child during minority." Bani-Esraili, 69 N.Y.2d at 808. Defendants argue in their Reply Memorandum of Law (Dkt. No. 67) that plaintiffs cannot recover for certain future expenses because plaintiffs cannot prove those expenses are "extraordinary." Expert evidence is not required to establish the extraordinary character of many of those expenses (such as, for example, expenses for wheelchairs, van modifications, and physical, occupational, and speech therapy). Thus, even if the Court were to reject the supplemental affidavit of plaintiffs' expert, Jane Mattson, Ph.D., expressly characterizing as "extraordinary" the expenses set forth in her life-care plan, defendants would not be entitled to a pretrial order limiting plaintiffs' potential recovery. The question of whether the expenses claimed are extraordinary cannot properly be resolved on this motion.

Defendants also request that plaintiffs be precluded from recovering past expenses that were not paid out-of-pocket but rather were covered by medical insurance or other sources. There is no basis for this relief, however, because plaintiffs make no claim for past expenses (see plaintiffs' Memorandum of Law, Dkt. No. ...


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