The opinion of the court was delivered by: JACKSON
In early November, 1994, plaintiffs Joseph and Julie Ferenc, a New Jersey couple, adopted a three-year-old Russian boy, Alexander Kiruskatski, in Tver, Russia, and brought the child to the United States. Over the ensuing months it became apparent that Alexander suffers from one or more serious and irreversible congenital neurological and visual disorders. In consequence, the Ferencs brought this action in November, 1995, for "wrongful adoption" against, inter alia, defendants World Child, Inc. ("WCI"), a District of Columbia adoption agency through which Alexander's adoption was arranged, and three of its employees who participated in making the arrangements.
Plaintiffs allege that by misrepresenting Alexander to them as essentially healthy, defendants caused them to adopt (and thus to assume parental responsibility for) a child whom they would not have adopted had they been fully informed of his true physical and mental condition. According to plaintiffs, defendants either knew of Alexander's deficits and intentionally concealed them from plaintiffs, or knew little or nothing about them and negligently concealed their ignorance. Plaintiffs also charge defendants with intentionally causing them emotional distress.
The case is presently before the Court on the motion of defendants WCI and its employees for summary judgment, the necessary discovery having been substantially completed. The co-defendant The Frank Foundation has belatedly joined in the motion immediately prior to oral argument.
The record before the Court establishes that in the spring of 1994 the Ferencs, having previously adopted a Guatemalan boy without complications, decided once again to try a foreign adoption. They became aware of WCI through a news article and inquired of its executive director of the prospects for adopting a Russian child. Told that, in general, the health of Russian adoptees was "very good," the Ferencs entered into a written contract with WCI for its services in early August, which the parties later supplemented in writing in September, 1994, after WCI had engaged the assistance of co-defendant The Frank Foundation to locate a Russian child available for adoption. (Def. Ex. 1-4.) Both Ferencs signed the contract documents, initialing them on each page, on August 5th and September 28th, respectively.
Also in September, 1994, WCI informed the Ferencs that two Russian children had been identified as available for placement
and sent them photographs and a three-page English translation of an abstract of Alexander's medical history, dated July 21, 1994, prepared by the Russian physician (an unserved co-defendant) in charge of the orphanage in Tver. Among other matters the abstract disclosed that Alexander had been born prematurely on June 11, 1991, as the third child of a poor, single mother who died in January, 1994. At birth he weighed 4.73 pounds and currently weighed just under 25 pounds. His head circumference was given as 45.5 cm. or 18.2 inches. He was said to have "convergent strabismus" and flat feet. A neuro-psychiatric entry noted "delay of mental development," and that phrase was repeated as the "diagnosis," attributable (in the doctor's opinion) to "social neglect in the family."
When queried by the Ferencs, WCI officials assured them that the conditions reported appeared to be neither unusual in adoptive children from Russia in their experience, nor uncorrectable. On their own initiative, the Ferencs consulted a general practitioner of their acquaintance in New Jersey to whom they showed both the photo of Alexander and the medical abstract. He refused to offer any opinion on the child's condition and suggested that they ask for further information. WCI informed the Ferencs that it had access to no information about Alexander other than as had been supplied by the orphanage.
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 ...