Appeal from the 55th District Court Harris County, Texas
Trial Court Case No. 2011-64922
consists of Justices Massengale, Brown, and Huddle.
appeal concerns whether there can be recovery of
mental-anguish damages after sperm is stolen from a
cryopreservation lab and used to produce a healthy child,
when the evidence of mental anguish includes not only
distress over the birth and life of the child but also
distress over the mother's separate bad acts directed at
the father during the pregnancy.
undergoing a vasectomy, Layne Hardin contracted to have his
sperm frozen and stored at a cryopreservation lab later
operated by Obstetrical and Gynecological Associates PLLC
(OGA). The storage contract was between the lab, Hardin, and
Hardin's then-domestic partner, Katherine LeBlanc. The
contract, signed in 2002, provided that LeBlanc was given
dispositional authority over the sperm in the event the
relationship between Hardin and LeBlanc ended.
and LeBlanc ended their relationship a couple years later
when Hardin began dating Tobie Devall. During the course of
their relationship, Hardin told Devall that his sperm was
stored in a Houston lab, and they went to OGA for
consultation regarding Devall's ability to conceive.
After their relationship ended, Devall initiated fertility
treatment, removed Hardin's frozen sperm from the
cryopreservation lab without his consent, had herself
inseminated, became pregnant, and gave birth to a healthy boy
(pseudonymously referred to as Mack). Hardin described these
events as devastating, placing him in a "nightmare"
that will last "forever."
the pregnancy, Devall engaged in additional conduct that
Hardin has asserted caused him additional distress and
feelings of isolation. He testified that Devall intentionally
misrepresented the substance and significance of a medical
form she showed people throughout their small Louisiana
community in an effort, he believed, to turn the community
against him. He alleged that she showed community members a
"screenshot" of Hardin's signature witnessing a
HIPPA disclosure and intentionally misrepresented that it was
his written authorization for her to be inseminated with his
sperm. Hardin testified that Devall's active
misrepresentation led to neighbors confronting him and
"running me through the mud, calling me names, saying
all evil things about me and my family."
sued Devall for intentional infliction of emotional distress
(IIED), citing all of these acts by Devall. He also sued OGA
for breach of contract. LeBlanc sued Devall for IIED and
conversion and sued OGA for breach of contract and
conversion. The jury found for Hardin and LeBlanc on all
claims and awarded them damages for past mental anguish. The
trial court granted a judgment n.o.v. that let stand the
jury's findings on liability, but set aside the
jury's award of mental-anguish damages, holding that
mental anguish relating to the birth of a child is not a
compensable injury as a matter of law.
issue in this case is whether Texas law prohibits Hardin and
LeBlanc from recovering mental-anguish damages on their
claims for IIED, conversion, and breach of contract. Our
analysis is guided by two conflicting rules of law. The first
is that "victims of conduct that is determined to be
utterly intolerable in a civilized community" should
have a "reasonable opportunity for redress" of
their injuries. Twyman v. Twyman, 855 S.W.2d 619,
622-26 (Tex. 1993) (holding that wife could bring IIED claim
against her husband and could do so within divorce proceeding
subject to limitations preventing double recovery); cf.
Pat. H. Foley & Co. v. Wyatt, 442 S.W.2d 904, 907
(Tex. Civ. App.-Houston [14th Dist.] 1969, writ ref'd
n.r.e.) (permitting mother of deceased son to recover
mental-anguish damages on her breach-of-contract claim
against entity that improperly prepared son's body for
burial); Wornick Co. v. Casas, 856 S.W.2d 732,
734-35 (Tex. 1993) (setting forth elements of IIED claim and
holding that defendant's conduct was not outrageous as
matter of law because defendant may assert its legal rights
in permissible way, even if assertion causes mental anguish).
The second is that mental anguish stemming from the birth and
rearing of a healthy child is not a compensable injury.
See Pressil v. Gibson, 477 S.W.3d 402, 410-11 (Tex.
App.- Houston [14th Dist.] 2015, pet. denied) (holding that
plaintiff could not recover mental-anguish damages "in
connection with the birth of healthy" children); cf.
Delgado v. Methodist Hosp., 936 S.W.2d 479, 484 (Tex.
App.-Houston [14th Dist.] 1996, no writ) (stating another
limitation on recovery of mental-anguish damages in context
of breach-of-contract claim).
rules have developed from sound public policy. But because
they cannot be applied harmoniously here, we must consider
the policies underlying these rules to determine which must
yield to the other and to what extent. Based on the intrinsic
value of human life, the importance of promoting stable
families, and the inherent difficulties in predicting and
proving mental anguish under these circumstances, the public
policy prohibiting recovery of mental-anguish damages
relating to the birth and rearing of a child is, in our view,
the more compelling line of reasoning and controls to the
extent these two policies clash. Hardin's mental-anguish
evidence, though, was not solely tied to his emotional
response to Mack's birth and life; some of it was
directly tied to separate acts by Devall when she
intentionally disparaged him in the community and caused him
further mental anguish that was unrelated to Mack's
affirm the trial court's determination that mental
anguish stemming from the birth of or relating to the rearing
of a healthy child is not a compensable injury under these
facts. But because there was mental-anguish evidence
submitted to the jury by Hardin that was based on separate
acts by Devall that go beyond the basis for the
public-policy-based limitation, we remand Hardin's IIED
claim against Devall for a new trial or other proceedings
consistent with this opinion. On remand, Hardin may seek to
recover damages arising from Devall's conduct during and
after the pregnancy that relates to her misrepresentations
about whether Hardin consented to release of the sperm and
any of her other intentional efforts to stoke community
outrage and alienation arising from those misrepresentations,
subject to any defenses raised by Devall. Hardin may not,
however, seek mental-anguish damages premised upon Mack's
conception, birth, life, or rearing. We affirm the trial
court's determination that LeBlanc's alleged mental
anguish is not a compensable injury under these facts. We
affirm the remainder of the trial court's judgment.
2002, Layne Hardin and Katherine LeBlanc were in an ongoing
intimate relationship and raising their three-year-old child.
Hardin, who had two other children from other relationships,
decided to have a vasectomy. He and LeBlanc, both in their
mid-30s, wanted to retain the option to have additional
children and provide their son a younger biological sibling.
To allow the possibility of more children in the future, they
had eight vials of Hardin's sperm frozen and stored at a
cryopreservation lab in Houston. The agreement prepared by
the storage lab and signed by both Hardin and LeBlanc stated
that on "dissolution of the couple or divorce, "
LeBlanc would have dispositional authority over the use and
storage of Hardin's cryopreserved sperm. The contract did
not have a liquidated damages provision.
years later, Hardin began an intimate relationship with Tobie
Devall, a 19-year-old woman who lived in the same small
Louisiana community as Hardin and LeBlanc. The infidelity
ended Hardin's relationship with LeBlanc. Thereafter,
Hardin and Devall discussed having children together and that
he had frozen sperm stored in a lab in Houston.
and LeBlanc both testified that, in a 2007 phone conversation
between the two that occurred while Devall and Hardin were
dating, Devall disclosed to LeBlanc that Devall and Hardin
were discussing having children. LeBlanc testified that she
responded that the stored sperm belonged to her, not Hardin.
Devall denied that LeBlanc told her that the sperm belonged
testified, and Devall agreed, that they both believed Devall
had physical impediments to conceiving a child regardless of
the source of sperm or method of insemination. Because they
had concerns that Devall might not be able to conceive, they
sought a medical opinion on the issue. The two traveled to
Houston to visit OGA physician Dr. Schenk in March 2008.
According to Hardin, those visits were merely to evaluate
Devall's ability to conceive. He testified that he never
gave Devall or OGA permission to release his sperm to Devall
for insemination. LeBlanc likewise testified that she never
authorized the release of the sperm. No written
authorizations were admitted as evidence.
year later, in the summer of 2009, when Hardin and Devall
were no longer in a relationship, Devall began fertility
treatment with Dr. Schenk. Hardin and Devall had a brief
reconciliation in late September of that year. But even
during the brief reconciliation, according to Hardin, Devall
said nothing about the fertility treatments. After they broke
up again, for the final time, Devall went to the OGA lab in
October 2009, left the lab with two vials of Hardin's
sperm, and used his sperm to be successfully inseminated.
next month, Devall told Hardin that she was pregnant, but
Hardin did not believe her. He thought his earlier vasectomy
would have prevented unassisted fertilization. And he did not
yet know that Devall had undergone fertility treatments at
OGA during the preceding months or that she had convinced OGA
to give her the sperm it contracted to store. Weeks later, to
relieve his nagging concerns over Devall's statement,
Hardin called the OGA lab and received confirmation that it
had released the sperm to her. Hardin testified about his
shock over these events and the effect they had on his life.
He testified that when he found out what Devall had done, he
immediately called Devall to confront her. He recorded the
conversation, and the recording was played for the jury. In
it, Hardin can be heard trying to elicit an admission by
Devall that she took the sperm without his knowledge or
consent. Devall responded by denying that she went to the OGA
lab or that Hardin was Mack's father. The confusion
made Hardin feel as though he was "going stir crazy
trying to put all of the pieces together." He felt
betrayed and violated.
beginning of the pregnancy, Devall told Hardin that he would
be able to see the child once born, but later she said she
would not allow him any contact and that Hardin would need a
court order to have access to the child. This added to
Hardin's confusion and distress.
spread quickly in their small Louisiana town that Devall was
pregnant and, eventually, that Hardin was the father through
artificial insemination. There was evidence that Devall and
her sister actively spread information in their community
that Hardin was lying about his level of consent to the
endeavor, even showing various community members a
"screenshot" of a HIPPA consent form and falsely
asserting that it was Hardin's signature authorizing the
use of his sperm. This led to multiple people in the
community making negative statements about Hardin, including
accusing him of dishonesty. Hardin testified that
Devall's deceit has led to people in the community saying
"evil" things about him and confronting him.
According to Hardin, the community is still talking about
whether those forms show he consented. He described the
situation as a "painful" "nightmare." He
missed some work because he "didn't feel like
getting out of bed." He testified, "This ripple
effect continues to go on and on and on and there is no
stopping. This is forever."
also testified that Devall did not allow him to be at the
child's delivery, which left him "devastated."
He was confused and distraught by Devall's actions and,
as a result of her adamant statement that he could not see
the child without a court order and in light of her new
relationship with another man, he did not further engage
Devall. He maintained his distance even after Mack was born
and did not seek a legal right to visitation. Nor did he seek
law permits the adoption of a child who is the biological
child of another and places the burden on the biological
parent to oppose the adoption with evidence that the
biological parent has manifested a substantial commitment to
his parental responsibilities and is a fit parent of the
child. See La. Child. Code arts. 1138, 1243, 1245.
When Mack was two years old, Devall's new husband, C.
Brown, petitioned to adopt Mack and have Hardin's
parental rights terminated. Hardin challenged the action,
arguing that he had attempted to visit and support Mack, but
his efforts were thwarted by Devall. The trial court rejected
Hardin's argument, finding no evidence of any effort by
Hardin to support Mack and evidence of only one or two
attempts to visit him during the first two years of his life.
In the decree, which was introduced into evidence, the trial
court found, "It appears it was in Layne [Hardin]'s
best interest to maintain the status quo by not pursuing his
parental rights and seeking to stay the adoption proceedings
until his Texas litigation was completed." The trial
court held that Hardin failed to establish that he manifested
a substantial commitment to his parental responsibility,
terminated Hardin's parental rights, and approved
Mack's adoption by Brown.
to Hardin, he now plans his outings to avoid seeing Devall
and Mack in their small community. He intentionally skips
weddings and funerals to avoid "running into" Mack.
also testified that she experienced extreme emotional
distress over having the sperm that had been assigned to her
stolen. According to LeBlanc, she was in
"disbelief" over what Devall had done; it was
"devastating" and "life altering." When
discussing that Devall and her sister had misrepresented that
a HIPPA release proved that Hardin was lying about his
consent to the insemination, LeBlanc explained that it was
"violating" to have people she did not know well
discussing the "private" matter. LeBlanc testified
that she did not want what had occurred to "get
out" and she tried "to not be confronted" in
the community about it, but there was "no escape"
because she was constantly asked about it at her son's
events, the grocery store, and at work. It impacted her
relationship with her son. LeBlanc described the "worry
and anxiety" she felt as Mack's birth approached,
stating that, after his birth, there would be a child out
there that her son would be "tied to forever"
which, in her words, "affects me as a mother."
pressed that she had no documentation of medical visits to
support her mental-anguish claim, LeBlanc, who had worked in
law enforcement for 19 years in the community, testified,
"[T]his topic is very embarrassing. It's very
private. At times it's been humiliating. And [in] my line
of work, I just can't go around saying that I'm
involved in what people have called a Jerry Springer
and LeBlanc sued Devall and OGA. Specifically, they claimed
that OGA breached its sperm-storage contract, Devall and OGA
converted the sperm, and Devall engaged in outrageous conduct
and intentionally or recklessly caused severe mental anguish
to both Hardin and LeBlanc. Although Hardin repeatedly
testified that Devall made false statements that damaged his
reputation and caused him mental anguish, he did not assert a
defamation claim. Through a counterclaim, Devall and OGA
asserted that Hardin had fraudulently misrepresented his
legal authority to authorize the use of his sperm and had
consented to the sperm's release and use.
conclusion of the plaintiffs' evidence, Devall, joined by
OGA, moved for a directed verdict on all claims, arguing, in
part, that Hardin's and LeBlanc's claims were rooted
in assertions of "wrongful pregnancy,
" that Texas law does not recognize a remedy
for "wrongful pregnancy" for public policy reasons,
and, as a result, mental-anguish damages are not recoverable
under the theories Hardin and LeBlanc asserted. The trial
court denied the motion.
jury found that (1) OGA breached the sperm-storage contract,
(2) both OGA and Devall converted the sperm that the contract
stated LeBlanc had the right to control, and (3) Devall
engaged in outrageous conduct and, with the requisite intent,
inflicted severe emotional distress on Hardin and LeBlanc.
The jury rejected Devall's and OGA's fraud claims.
jury awarded damages as follows:
1. Damages awarded against Devall
A. Intentional Infliction of emotional distress
(1) mental anguish suffered by Hardin $125, 000
(2) mental anguish suffered by LeBlanc $125, 000
(1) mental anguish suffered by LeBlanc $125,
2. Damages awarded against OGA
A. Breach of contract
(1) mental anguish suffered by Hardin $250, 000
(2) mental anguish suffered by LeBlanc $250, 000
(1) loss of value awarded LeBlanc $1, 950
trial court's post-verdict order
defendants filed motions seeking judgment notwithstanding the
verdict. The trial court held that the amounts awarded by the
jury were supported by the evidence but that "mental
anguish damages, whether under contract or tort, are simply
not available" under the legal reasoning expressed in
Pressil-an opinion issued after the conclusion of
trial-because they were awarded to compensate "wrongful
pregnancy" claims. See 477 S.W.3d 408-10. The
court rejected Hardin and LeBlanc's position that theirs
was not a "wrongful pregnancy" suit and that they
sought mental anguish only for the taking of the sperm and
not for the birth of the child:
[T]he Court suspects that had Devall taken the sperm and
thrown it in the trash, or stored it somewhere else, this
case would not have been filed. The taking of the sperm was
for the purpose of the pregnancy, and resulted in the
intended pregnancy. The Court rejects Plaintiff[s']
argument that the mental ...