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Munn v. Hotchkiss School

United States Court of Appeals, Second Circuit

August 3, 2015

ORSON D. MUNN, III, AS PARENT & NEXT FRIEND OF C.M. & IND., CHRISTINE MUNN, AS PARENT & NEXT FRIEND OF C.M. & IND., CARA L. MUNN, Plaintiffs-Appellees,
v.
THE HOTCHKISS SCHOOL, Defendant-Appellant

Argued: May 4, 2015.

Appeal from the United States District Court for the District of Connecticut. No. 09-cv-919 . Stefan R. Underhill, Judge.

For Defendant-Appellant: WESLEY W. HORTON, Horton, Shields & Knox, P.C., Hartford, CT (Karen L. Dowd, Kenneth J. Bartschi, Horton, Shields & Knox, P.C., Hartford, CT, Aaron S. Bayer, Jeffrey R. Babbin, Wiggin and Dana LLP, New Haven, CT, on the brief.

For Plaintiffs-Appellees: ANTONIO PONVERT III, Koskoff Koskoff & Bieder, Bridgeport, CT (Alinor C. Sterling, Koskoff Koskoff & Bieder, Bridgeport, CT, on the brief.

Before: WALKER, LYNCH, and LOHIER, Circuit Judges. JOHN M. WALKER, JR., Circuit Judge.

OPINION

JOHN M. WALKER, JR., Circuit Judge.

Cara Munn and her parents brought suit against the Hotchkiss School after Munn contracted tick-borne encephalitis on a school-organized trip to China. At trial, a jury found Hotchkiss negligent and awarded the Munns $41.5 million in damages, $31.5 of which were non-economic damages. On appeal, the school argues that it did not have a legal duty to warn about or protect against tick-borne encephalitis and that the jury award is excessive. Although we agree with the plaintiffs that there was sufficient evidence for a jury to find Munn's illness foreseeable, we are unable to determine whether public policy supports imposing a legal duty on Hotchkiss. This case implicates important and unresolved issues of Connecticut state law and public policy. It is likely to have repercussions on future negligence cases in Connecticut, and existing case law provides insufficient guidance on some of the issues raised. Accordingly, we certify two questions to the Connecticut Supreme Court: (1) Does Connecticut public policy support imposing 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?

Cara Munn and her parents brought suit against the Hotchkiss School after Munn contracted tick-borne encephalitis on a school? organized trip to China. At trial, a jury found Hotchkiss negligent and awarded the Munns $41.5 million in damages, $31.5 of which were non-economic damages. On appeal, the school argues that it did not have a legal duty to warn about or protect against tick-borne encephalitis and that the jury award is excessive. Although we agree with the plaintiffs that there was sufficient evidence for a jury to find Munn's illness foreseeable, we are unable to determine whether public policy supports imposing a legal duty on Hotchkiss. This case implicates important and unresolved issues of Connecticut state law and public policy. It is likely to have repercussions on future negligence cases in Connecticut, and existing case law provides insufficient guidance on some of the issues raised. Accordingly, we certify two questions to the Connecticut Supreme Court: (1) Does Connecticut public policy support imposing 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?

BACKGROUND

We recite the facts in the light most favorable to the plaintiffs in light of the jury verdict in their favor. See Jacques v. DiMarzio, Inc., 386 F.3d 192, 195 (2d Cir. 2004).

A. The Trip to China

During her freshman year, Cara Munn (" Munn" ), then a fifteen-year-old student at the Hotchkiss School (" Hotchkiss" ), a private boarding school, decided to participate in a summer program in Tianjin, China, organized by Hotchkiss. The month-long program immersed students in Chinese language classes and included weekend trips to cultural landmarks.

Jean Yu, the school's Chinese Language and Culture Program Director, served as the trip leader. In preparation for the trip, in March 2007, she sent parents a packet outlining activities and a set of legal forms for the participants and parents to waive legal claims against the school. The packet mentioned a visit to Mount Panshan, referred to by the parties as " Mt. Pan." The school also sent medical advice for the trip, including a link to a Centers for Disease Control and Prevention (" CDC" ) webpage and a note that the school's infirmary could " serve as a travel clinic." Special App'x 16. The webpage linked to the CDC's Central America site instead of its China site, however, and the infirmary was unable to provide independent medical advice. Finally, the school sent an itinerary, packing list, and a handbook on international travel. The packing list mentioned bug spray in its " miscellaneous" category, but included no warning about insect-borne diseases in the section where other health risks were mentioned.

On June 23, 2007, while on the trip, the students went for a weekend excursion to the Great Wall and to Mt. Pan. Mt. Pan is a forested mountain. Again, no warnings to wear bug spray were given. Trip leader Yu left her bug spray on the bus. After hiking to the top of the mountain, a group of three or four students, including Munn, decided to hike down, while the others took a cable car. Yu pointed them to the path and said that she would wait for them at the bottom. Munn testified that the students decided to leave the paved path and follow narrow dirt trails instead. The students got lost and walked among trees and through brush.

Munn testified at trial that after the trip to Mt. Pan she had many insect bites and an itchy welt on her left arm. Ten days later, she awoke with a headache, a fever, and wooziness. Her condition deteriorated rapidly and she was taken to a local hospital. Munn was then transferred to a Beijing hospital and her parents came from the United States. Severely ill and partially paralyzed, Munn was soon airlifted back to New York. Munn was diagnosed with tick-borne encephalitis (" TBE" ), a viral infectious disease which affects the central nervous system.

Because of her illness, Munn lost the ability to speak. At trial, she testified through a machine into which she typed her answers. She has difficulty controlling her facial muscles, causing her to drool. Her mother testified about Munn's frustration with her inability to speak and stated that Munn experiences " a lot of rejection." Joint App'x 1191-92. Munn has also lost some cognitive function, particularly in terms of reading comprehension and math. Still, Munn has managed to live a functional life. She finished high school and attended Trinity College. She can play sports, still travels, and has held summer internships.

B. Procedural History

On June 11, 2009, Munn and her parents filed this diversity action against Hotchkiss alleging that the school's negligent planning and careless supervision of the trip caused her illness.

In their lawsuit, the Munns alleged that Hotchkiss was negligent in 1) failing to warn the Munns about the risks of viral encephalitis; 2) failing to provide for proper protective clothing, insect repellent, or vaccinations; 3) failing to provide medical personnel on the trip; 4) failing to establish procedures for addressing medical emergencies; and 5) failing to advise the Munns on the availability of vaccines against viral encephalitis for children traveling to rural areas of China. At trial, the Munns proceeded only on the first and second theories of liability--failure to warn and failure to protect.

Hotchkiss asserted a number of affirmative defenses, including that the Munns assumed the risk by signing the school's " Agreement, Waiver, and Release of Liability." However, the district court (Stefan R. Underhill, J. ) excluded the waiver, finding both that its language was ambiguous and that it was against public policy under Connecticut law.

At trial, the plaintiffs offered two experts, Stuart Rose, an expert on travel medicine, and Peter Tarlow, an expert on tourism-risk management who testified about standards of care. Hotchkiss also offered two experts, David Freedman, a travel-medicine expert, and William Fluharty, proffered as an expert on standards of care followed by similarly-situated schools. The district court, however, excluded Fluharty's testimony after it was given, finding that he had fabricated and misrepresented support for his testimony.

At the conclusion of the plaintiffs' case, Hotchkiss sought a directed verdict under Rule 50(a) of the Federal Rules of Civil Procedure, arguing that Munn contributed to her own injuries and that the risk of contracting ...


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