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Hardin v. Obstetrical and Gynecological Associates P.A.

Court of Appeals of Texas, First District

June 6, 2017

LAYNE HARDIN AND KATHERINE LEBLANC, Appellants
v.
OBSTETRICAL AND GYNECOLOGICAL ASSOCIATES P.A., N/K/A OBSTETRICAL AND GYNECOLOGICAL ASSOCIATES, PLLC, TEXAS ANDROLOGY SERVICES, LLC AND TOBIE DEVALL, Appellees

         On Appeal from the 55th District Court Harris County, Texas Trial Court Case No. 2011-64922

          Panel consists of Justices Massengale, Brown, and Huddle.

          OPINION

          Harvey Brown Justice.

         This 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.

         Before 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.

         Hardin 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."

         During 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."

         Hardin 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.

         The 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).

         Both 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 birth.

         We 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.

         Background[1]

         In 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.[2] 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.

         Three 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.

         Devall 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 to her.

         Hardin 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.

         Over a 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.

         The 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.[3] 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.

         In the 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.

         Word 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."

         Hardin 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 informal visits.

         Louisiana 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.

         According 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.

         LeBlanc 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."

         When 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 episode."

         Hardin 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.

         At the 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, "[4] 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.

         The jury's verdict

         The 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.

         The jury awarded damages as follows:

1. Damages awarded against Devall
A. Intentional Infliction of emotional distress
(1) mental anguish suffered by Hardin $125, 000 [5]
(2) mental anguish suffered by LeBlanc $125, 000 [6]
B. Conversion
(1) mental anguish suffered by LeBlanc $125, 000[7]
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
B. Conversion
(1) loss of value awarded LeBlanc $1, 950

         The trial court's post-verdict order

         Both 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 ...

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