intending to continue with the adoption process. They were met on arrival in Moscow by a "coordinator" (presumably arranged for by WCI or The Frank Foundation, although paid directly by the Ferencs) who took them to the orphanage at Tver. There the Ferencs observed Alexander in person and spoke with the chief physician who had prepared the abstract. She told them that Alexander's strabismus was surgically correctable, and that the peculiarities they perceived in his posture and gait were due to "nutritional deficiencies." She was aware, she said, of no other medical problems. The Ferencs were reminded of their right to decline to go forward with the adoption if they chose to do so.
Again the Ferencs elected to proceed, and they returned from Tver to Moscow that night with Alexander enroute to the United States. Prior to departure, and as they understood to be required by U.S. immigration authorities, they had Alexander examined by Russian physicians at a Moscow clinic who pronounced him "generally healthy." While awaiting their flight home in Moscow, they were also told by the coordinator, whose source of information is not given, that Alexander's mother had died of "intoxication."
Since his arrival in the United States, Alexander has been diagnosed as microcephalic, and afflicted with an attention deficit/hyperactivity disorder. He also exhibits what may be fetal alcohol syndrome, and his strabismus has been determined to be inoperable.
The sole basis asserted for this Court's subject matter jurisdiction of this case is diversity of citizenship. 28 U.S.C. § 1332. Thus the Court is obliged to apply the law of the District of Columbia in deciding the case. Erie R.R. v. Tompkins, 304 U.S. 64, 82 L. Ed. 1188, 58 S. Ct. 817 (1938). It does not appear that the District of Columbia has yet formally recognized a tort of "wrongful adoption," but on analogy to the tort of "wrongful birth," which the District has recognized, see Haymon v. Wilkerson, 535 A.2d 880 (D.C. 1987), and precedents from other jurisdictions,
the Court will anticipate the District's recognition of a tort of "wrongful adoption" and assume that plaintiffs' claims are actionable under District of Columbia law.
Counts I and II, respectively, allege that defendants intentionally or negligently misrepresented the state of Alexander's health to the Ferencs, assuring them that he was essentially a healthy child whose deficits, if any, were minimal, transient, and/or amenable to correction with medical treatment routinely available in the United States. Count III charges that defendants intentionally caused plaintiffs to suffer extreme emotional distress.
To make out a prima facie case of intentional misrepresentation, plaintiffs must prove that defendants (1) made a false representation, (2) regarding a material fact, (3) with knowledge that the representation was false, (4) with intent to deceive, and (5) which induced action in reliance on the representation. See Bennett v. Kiggins, 377 A.2d 57, 59 (D.C. 1977), cert. denied, 434 U.S. 1034, 54 L. Ed. 2d 782, 98 S. Ct. 768 (1978). Similarly, the elements of negligent misrepresentation are (1) negligent communication of false information, (2) which the defendants anticipated or should have anticipated was likely to induce action or inaction by the plaintiff, (3) and on which the plaintiff did reasonably rely. See Kirkland & Ellis v. Ruiz-Mateos, 923 F. Supp. 255, 262 (D.D.C. 1996) (citing Hall v. Ford, 445 A.2d 610, 612 (D.C. 1982)).
To prevail on their claim of intentional infliction of emotional distress, the Ferencs must prove that defendants engaged in (1) extreme and outrageous conduct, (2) that intentionally or recklessly caused them to experience (3) severe emotional distress. See Waldon v. Covington, 415 A.2d 1070, 1076, (D.C. 1980).
The parties' dispute centers on whether defendants misrepresented any facts, intentionally or otherwise; whether plaintiffs relied on any such misrepresentations; whether WCI or The Frank Foundation is liable for any misrepresentations made by non-moving defendants; and, finally, whether plaintiffs are divested of any or all of the claims they now assert by the terms of their contract with WCI.
Count III, charging defendants with intentional infliction of emotional distress, is the most easily dispatched. The record contains absolutely no evidence from which a jury could find (nor any reason to expect that such evidence will be forthcoming) that any defendants who are now before the Court intended that the Ferencs experience any emotion other than the joy that should attend the adoption of a healthy son. No motive, ulterior or otherwise, is shown for these defendants to have deliberately deceived the plaintiffs as to Alexander's health, and no conduct is ascribed to them that in any respect resembles the "extreme or outrageous conduct" that has been held necessary to prove the tort under District of Columbia law. See Waldon v. Covington, 415 A.2d 1070, 1076-78 (D.C. 1980); Restatement (2d), Torts § 46.
As is the case with Count III, the allegations of intentional fraud in Count I as well are vulnerable to summary disposition on the evidentiary record. Count I presumes proof that defendants were fully informed of Alexander's multiple deficits and consciously elected to conceal the truth from plaintiffs. The WCI defendants profess to have received no medical information about Alexander other than that which they immediately imparted in its entirety to the Ferencs, and there is no evidence to the contrary. Even were the Court willing to impute to WCI and The Frank Foundation all knowledge in the possession of all co-defendants, including the unserved Russian co-defendants, the hypothesis that they or any of them knew Alexander to be more severely impaired than they made known to the Ferencs remains no more than a hypothesis on this record. For the Court to allow a jury to find otherwise would be to countenance an exercise in xenophobic speculation.
Count II, alleging negligent misrepresentation, is the most promising of plaintiff's several theories of liability. The record could support a finding that the WCI and The Frank Foundation defendants were ignorant of Alexander's true condition and made no reasonable efforts to ascertain it, while allowing plaintiffs to believe that their optimistic assurances were predicated on knowledge they did not have. The cases cited by plaintiffs from other jurisdictions hold that there is a common law duty imposed upon adoption agencies to investigate the background of prospective adoptees with reasonable care and to fully inform their client adoptive parents of the results.
The duty originates, however, in the contractual relationship between the parents and the agency, and its scope may, by agreement of the parties, be varied by the terms of the contract. See Howard Univ. v. Best, 484 A.2d 958, 966-67 (D.C. 1984).
In the instant case the contract between the Ferencs and WCI is expressed in writings that clearly diminish WCI's investigatory responsibility to an absolute minimum. It purports, in fact, to absolve WCI and The Frank Foundation of any duty at all, by expressly waiving at its inception "any and all claims" that might arise in favor of plaintiffs from the relationship. Moreover, the several documents comprising the contract are elsewhere rife with cautionary language respecting the "risk" of foreign adoptions, including the fact that WCI and The Frank Foundation would furnish "medical and social information" when it was "available," but that they could not guarantee its completeness or accuracy. By the contract the Ferencs acknowledged that their child could possibly arrive "with undiagnosed physical, emotional and/or developmental problems." With respect to Russian children in particular, the September 28th supplement contains nearly two pages of text advising of "ambiguous clinical diagnoses" by Russian physicians and the "problematic state" of Russian medical education and proficiency. At several places it states that the prospective adoptive parents are not obliged to accept a child who they believe is not healthy. (Def. Ex. 4, "Memo of Understanding," pp. 2-3.)
Whether the exculpatory effect of the waiver clause would indeed reach "any and all claims" of any description (such as those of Counts I and III) is unnecessary to decide. The waiver clause clearly served notice to plaintiffs that WCI and The Frank Foundation did not warrant the success of their efforts, and did not expect to be liable, in whatever respect they might fail or the reasons for its failure, for a less than wholly satisfactory adoption.
Exculpatory contract provisions are valid and enforceable in the District of Columbia. See Maiatico v. Hot Shoppes, Inc., 109 U.S. App. D.C. 310, 287 F.2d 349, 350 (D.C. Cir. 1961); Potomac Plaza Terraces, Inc. v. QSC Products, Inc., 868 F. Supp. 346, 353-54 (D.D.C. 1994). Plaintiffs have presented no contrary authority
nor offered reason why the waiver clause should not, in the circumstances, be given the effect it was obviously intended to have and to which plaintiffs, by their conduct as well as their signatures, signified their assent.
Plaintiffs argue that the contract is ambiguous; they were, they say, unaware of its import as relieving WCI or The Frank Foundation of any liability for the expense, not to mention the anguish, of raising a severely handicapped child. Yet at virtually every stage of the process, the Ferencs sought reassurance from independent sources that their forebodings were unfounded. They consulted an American physician in New Jersey. They personally observed Alexander, queried the Russian physician in charge of the orphanage at Tver about peculiarities they noticed in his appearance, and consulted still other doctors in Moscow immediately prior to their return to the United States. Their actions in that regard are consistent only with an understanding on their part that they alone bore the risk of Alexander's true condition.
For the foregoing reasons it is, this 19th day of September, 1997,
ORDERED, that the motions of defendants World Child, Inc., Adams, Goolsby, and Geer and of the co-defendant The Frank Foundation for summary judgment are granted, and the complaint is dismissed with prejudice as to said defendants; and it is
FURTHER ORDERED, that the complaint is dismissed without prejudice as to defendants Tatiana Kamneva and Galina Smirnova pursuant to Fed. R. Civ. P. 4(m); and it is
FURTHER ORDERED, that the Clerk enter final judgment for defendants World Child, Inc., Sherrell Goolsby, Barbara Geer, Veronica Adams, and The Frank Foundation Child Assistance International, and against plaintiffs Joseph Ferenc and Julie Ferenc, with costs.
Thomas Penfield Jackson
U.S. District Judge