2nd Circ. Says Conn. School Must Pay $41M Injury Verdict

By Y. Peter Kang

Law360 (February 6, 2018, 9:15 PM EST) -- The Second Circuit on Tuesday ruled that a private Connecticut boarding school must pay $41 million to a former student who contracted a tick-borne disease while on a school trip to China, causing paralysis, saying the trial judge properly allowed certain expert testimony regarding study-abroad programs.

A three-judge Second Circuit panel affirmed the $41 million verdict in favor of Cara Munn, who was a 15-year-old Hotchkiss School student when she contracted tick-borne encephalitis, or TBE, causing paralysis and leaving her unable to speak or care for herself. The panel said after the Connecticut Supreme Court, at the Second Circuit’s request, determined in August that imposing a duty on a school to protect against an insect-borne disease when organizing a trip abroad does not go against state public policy, the remaining issues brought by the school on appeal were without merit.

The panel rejected the school’s argument that one of Munn’s expert witnesses, Peter Tarlow, should not have been allowed to testify as an expert because he lacked experience regarding a secondary school’s responsibilities during study-abroad programs.

"Tarlow had worked in the tourism management industry for over 20 years and had written books and scholarly articles about risk assessment for travel abroad generally," the panel said in an eight-page summary order.

Tarlow used his experiences as a risk manager for adults to extrapolate what the standard of care for secondary schools would have been, and tested his theories by conducting additional research into the practices of specific secondary schools, according to the order.

"We are satisfied that this represented the ‘level of intellectual rigor that characterizes the practice of an expert in the relevant field,’" the court said.

Hotchkiss had also argued on appeal that the trial judge erred by excluding the testimony of its own expert, William Fluharty, but the panel said the trial judge’s conclusion that Fluharty misrepresented his own lay opinion as a reliable expert opinion was supported by the record.

"Testimony revealed that Fluharty’s purported expertise came from communications with only four schools," the court said. "Additionally, his testimony about the contents of his own survey was at best confused and at worst misleading, particularly as to the key question of whether his survey included questions about preventing insect-borne diseases."

An attorney for Munn, Antonio Ponvert III of Koskoff Koskoff & Bieder, told Law360 on Tuesday that they are satisfied with the outcome.

"The [ruling establishes] once and for all that custodians of other people’s minor children owe a duty to keep the children safe from harm, and that entities who fail to do that will be held responsible," he said. "Here, the school’s negligence caused a talented and lovely young girl to suffer catastrophic injuries that she will endure for the rest of her life. … But Cara is grateful that the justice system worked, and she hopes that her case will lead to education and protections that will keep other children safe and alive."

An attorney for the school did not immediately respond to a request for comment Tuesday. U.S. Circuit Judges John M. Walker Jr., Gerard E. Lynch and Raymond J. Lohier Jr. sat on the panel for the Second Circuit.

Munn is represented by Antonio Ponvert III and Alinor C. Sterling of Koskoff Koskoff & Bieder.

The school is represented by Wesley W. Horton, Karen L. Dowd and Kenneth J. Bartschi of Horton Dowd Bartschi & Levesque PC, and Aaron S. Bayer and Jeffrey R. Babbin of Wiggin and Dana LLP.

The case is Munn et al. v. The Hotchkiss School, case number 14-2410, in the U.S. Court of Appeals for the Second Circuit.

--Editing by Aaron Pelc.