Study Abroad and a $41.5 Million Verdict

Could finding in favor of a high school student infected by a tick-borne disease on a school trip to China have a chilling effect on other study abroad programs?

August 24, 2017
 

The Connecticut Supreme Court ruled this month to uphold a $41.5 million verdict in favor of a high school student who was stricken with tick-borne encephalitis during a school-led trip to China. Higher education groups have warned that the case could deter institutions from offering study abroad programs out of fear they could be held liable to the tune of tens of millions of dollars in the event students contract uncommon illnesses.

Higher education groups joined with K-12 school organizations in filing an amicus brief in support of the Hotchkiss School in the case against it filed by the Munn family. The Munns argued that Hotchkiss, a private boarding school in Connecticut, had been negligent by failing to warn students on a trip to China of the risk of viral encephalitis and by failing to ensure they took precautions against insect bites and insect-borne diseases.

According to court documents, Cara Munn, who was 15 at the time of the month-long Hotchkiss-organized trip in 2007, fell ill from tick-borne encephalitis after hiking on China’s Mount Panshan, which a federal court order describes as a forested mountain. The order describes what happened at the mountain and immediately thereafter.

“No warnings to wear bug spray were given. Trip leader [Jean] Yu left her bug spray on the bus. After hiking to the top of the mountain, a group of three or four students, including Munn, decided to hike down, while the others took a cable car. Yu pointed them to the path and said that she would wait for them at the bottom. Munn testified that the students decided to leave the paved path and follow narrow dirt trails instead. The students got lost and walked among trees and through brush.

“Munn testified at trial that after the trip to Mount Pan[shan] she had many insect bites and an itchy welt on her left arm. Ten days later, she awoke with a headache, a fever and wooziness. Her condition deteriorated rapidly, and she was taken to a local hospital. Munn was then transferred to a Beijing hospital and her parents came from the United States. Severely ill and partially paralyzed, Munn was soon airlifted back to New York.

“Because of her illness, Munn lost the ability to speak. At trial, she testified through a machine into which she typed her answers. She has difficulty controlling her facial muscles, causing her to drool … Munn has also lost some cognitive function, particularly in terms of reading comprehension and math. Still, Munn has managed to live a functional life. She finished high school and attended Trinity College. She can play sports, still travels and has held summer internships.”

After a jury awarded the Munn family $41.75 million in damages -- a figure that was reduced to $41.5 million -- the Hotchkiss School appealed. The case is now pending in the U.S. Court of Appeals for the Second Circuit, which asked the Connecticut Supreme Court to rule on two questions of state law before it reached its own ruling. Those two questions were: “(1) Does Connecticut public policy support imposing a duty on a school to warn about or protect against the risk of a serious insect-borne disease when it organizes a trip abroad? (2) If so, does an award of approximately $41.5 million in favor of the plaintiffs, $31.5 million of which are noneconomic damages, warrant remitter?”

The Connecticut Supreme Court, in its ruling, answered yes to the first question and no to the second. “Because it is widely recognized that schools generally are obligated to exercise reasonable care to protect students in their charge from foreseeable dangers, and there is no compelling reason to create an exception for foreseeable serious insect-borne diseases, we conclude that the imposition of such a duty is not contrary to Connecticut public policy,” Connecticut’s highest court found.

As for the size of the verdict, the Connecticut Supreme Court deferred to the jury's judgment, concluding that “there was no allegation that the jury was prejudiced, incompetent or otherwise compromised … furthermore, the district court, which was in a position to evaluate the testimony firsthand, did not improperly assess of the plaintiff’s injuries as uniquely cruel, as she had completely lost the ability to have meaningful communication and interaction with people, and, given her long life expectancy and the fact that the physical effects of her injuries will worsen as she ages, her psychological condition will deteriorate over time.”

Foreseeability

Now that the Connecticut Supreme Court has ruled, the case is expected to proceed in federal appeals court. The Hotchkiss School filed a motion asking the court to hold oral arguments on several issues, including the question of whether the court “should reconsider its decision on [the] foreseeability” of Munn’s illness. The appeals court, in its 2015 ruling, disagreed with the school’s argument that there was insufficient evidence to support the determination that Munn’s illness was foreseeable, finding “that the plaintiffs presented sufficient evidence at trial that Hotchkiss should have known of the risk of serious insect-borne diseases.”

The new filing from Hotchkiss asking the appeals court to reconsider the foreseeability question cites a concurring opinion in the case by Connecticut Supreme Court Justice Carmen E. Espinosa. Espinosa wrote that while it was not a question presented to the state’s Supreme Court, she wished “to express my hope that the Court of Appeals will revisit its legal determination that there was sufficient evidence to support the jury’s finding that the injuries suffered by the plaintiff Cara L. Munn were reasonably foreseeable.

“The plaintiff was the first known United States citizen -- and quite possibly the first foreign traveler -- ever to contract [tick-borne encephalitis] in China,” Espinosa wrote. “She caught the disease at a popular tourist destination within commuting distance of Beijing -- one that receives over 600,000 visitors each year, including more than 50,000 foreign tourists -- in a province in which no human case had ever been reported.”

Espinosa described Munn’s chances of contracting and sustaining permanent injuries from tick-borne encephalitis as being “infinitesimally low” and cited Centers for Disease Control and Prevention statistics to this effect. “On the basis of its research, the CDC -- which the parties agree is the most authoritative source on such matters -- reached the following conclusion: ‘For unvaccinated travelers to areas in which TBE is endemic, the estimated risk for TBE during … transmission season is approximately one case per 10,000 person months.’ One case per 10,000 months. In other words, if the plaintiff and 10,000 of her classmates spent the full month of July living in the semirural area around Mount Pan[shan], only one of them would likely contract TBE. The plaintiff herself could have lived on Mount Pan[shan] for more than one millennium before she would have been expected to catch the disease. She was there for just a few hours. By my calculations, she had less than a one in two million chance of contracting TBE during her brief field trip to Mount Pan[shan], lower even than her chance of being struck and killed by a meteorite. If that was foreseeable, then it is difficult to imagine any misfortune that would not be,” Espinosa wrote.

Munn’s lawyer, Antonio Ponvert, argued that the foreseeability question has already been decided on by the court -- in Munn’s favor. In finding that “the evidence presented at trial was sufficient to support the jury’s verdict that Munn’s illness was foreseeable,” the Second Court of Appeals cited a CDC advisory last modified on Aug. 1, 2007, that included a warning about the disease in forested regions in northeastern China -- where Mount Pan is located -- and in South Korea. “Although the Aug. 1, 2007, advisory was dated more than one month after Munn’s visit to Mount Pan, the school’s director of international programs, David Thompson, testified that he had seen a warning about TBE on the CDC’s China page before the trip … In addition, other travel advisories, including a CDC advisory dated in April 2007 -- before the trip -- mentioned serious insect-borne diseases, including Japanese encephalitis, and notices on travel websites and other government websites warned of tick-borne encephalitis in East Asia, and specifically in China,” the federal court order stated. The order went on to say that it would not grant Hotchkiss's request to consider a May 2007 CDC warning, which was posted before the trip and which did not mention the risk of tick-borne encephalitis, because that advisory was not introduced as evidence at the time of the trial and is not part of the record.

"Furthermore, while the Aug. 1, 2007, advisory postdates the trip, it is possible that a similar advisory was on the website before, which would explain Thompson’s testimony about seeing the advisory," the appeals court ruled. "Neither party presented evidence about what was posted on the CDC website when the trip actually occurred, and we will not disturb the jury’s assessment of the evidence and its finding of reasonable foreseeability."

“It is deeply disturbing to me that the defendant who has now been found factually to be responsible for Cara Munn’s lifelong permanent catastrophic injuries is still arguing that it didn’t know and couldn’t have known about the risk of harm,” Ponvert said. A spokeswoman for Hotchkiss declined to comment for this story, saying the school does not comment on pending litigation.

A Chilling Effect on Study Abroad?

Ponvert dismissed the notion that the ruling would interfere with schools offering educational trips. As a practical matter, schools -- including Hotchkiss -- are still offering study abroad programs, he pointed out.

“This is very similar to me to saying you can’t hold a car manufacturer liable [because] if you do that no one will make cars or drive cars anymore,” Ponvert said. “That’s just a ludicrous argument. No one’s going to stop doing these trips. No one’s going to stop offering these opportunities. They’re just going to keep doing them in a safe way.”

The Connecticut Supreme Court more or less agreed with that assessment, finding that a recognition of a school's duty to warn and protect students against the risk of serious insect-borne diseases shouldn't have a chilling effect on educational travel. "Rather, it should have the salutary effect of promoting safety by ensuring that appropriate warnings are given and appropriate protective measures are taken," the court found.

Higher education groups had argued, however, that the risk of insect-borne disease in this case "was not reasonably foreseeable" and that the $41.5 million verdict in favor of the plaintiff undercuts public policy imperatives to encourage study abroad. An amicus brief filed by 23 higher education and K-12 organizations in 2016 cited the federal appeals court's own estimation that the risk of tick-borne encephalitis was "undeniably remote" in arguing the following: "That a school could face a $41 million liability -- an amount that could threaten the existence of many schools -- for not warning of and protecting against an 'undeniably remote' risk sometimes found in such a large region is worrisome. Some educators may decide not to venture abroad. Others may offer more educationally limited experiences."

In an interview, Peter McDonough, vice president and general counsel for the American Council on Education, stressed that the case involves a K-12 school offering programs for children under age 18 -- not college students -- but said he was concerned that the “buzz” about it could have an impact on programs run by colleges and universities as well.

“The case of course is about minor children on a trip, run by a boarding school,” McDonough said. “The facts matter in cases like this and the court was very persuaded that the school had the kind of obligation that we refer to generally as in loco parentis -- it was stepping into the shoes of the parents. In most higher educational contexts, that’s far less applicable; in some it is completely foreign. But it’s going to be the messaging of this case by and to people who will never read these decisions that is a worry. There’s going to be a chilling effect, even though the case was about minor children. There is going to be a perception that the risk to higher education institutions, to faculty-led trips, to student group trips, is higher than it was before this case was decided,” McDonough said.

McDonough said that was because of “the size of the verdict and the incredible remoteness of the occurrence that in fact occurred.”

“The concern is that we don’t want the information that is provided to trip participants and parents to start looking like that long piece of paper that falls out of the box when you open up medication,” McDonough said. “That is useless. It buries real risk that we want trip participants -- and in some cases that are appropriate, their families -- to be aware of as they make decisions about whether to go and as they prepare to go. If a $40 million verdict can be sustained related to a risk that a trip participant had, which is a one in two million risk, less than her chances of being struck and killed by a meteorite, what does that say for the kind of risks that you have to list? How long is the insert in the materials that you provide, and more importantly, how do you possibly identify and prepare for the risks that are much more likely and concerning?” McDonough asked.

Bill Frederick, the founder and director of the consulting company Lodestone Safety International and a former adviser to Hotchkiss's insurance company in this case, described the case as an outlier, "a black swan," and said he thought its impact on higher education will be limited, in part because courts impose a higher duty of care on high schools than on colleges. However, he said, "in the unlikely event that this case were to set some new standard for foreseeability, it could create exceptional liability risk for any organization to conduct a program. Risk management is predicated on identifying the most likely risks based on the best information available and then dedicating finite time and resources to reduce the likelihood of safety incidents from happening and mitigating the consequences of those incidents when they inevitably sometimes do happen. If every program were to be held responsible for any undesirable outcome, no matter how unlikely or how far outside the control of the program, it skews any risk/benefit formulation to where even small risks may outweigh the significant benefit that may be gained from a study abroad experience."

Gregory F. Malveaux, the author of Look Before Leaping: Risks, Liabilities and Repair of Study Abroad in Higher Education (Rowman & Littlefield 2016), argued on the other hand that the risk of insect-borne disease was foreseeable. "This was a risk very specific to that region, and that being the case, it must be disclosed and protected from," said Malveaux, a professor of English and collegewide study abroad coordinator at Montgomery College.

Malveaux described the Hotchkiss case as "another indicator that more suits can be expected in the future concerning overseas programs."

"It's a reminder that study abroad risk and liabilities and best practices are going to be something that is going to have to be pushed at the forefront for those who design such programs and lead them," Malveaux said.

"I’m not sure about the price tag of $40 million, but I’m fine with just a little bit of shakeup in terms of people realizing the risks but also realizing the need to be accountable and to fully inform students about what are potential risks -- and in this case, this was not one of those unforeseen types."

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