D.C. Metro Verdicts

Plaintiff(s):

Marni Hotchkiss (Female, 30s), 

Andrew Hotchkiss (Male, 30s), 

Estate of Finley Ever Hotchkiss (Female, 21 Days)

Plaintiff Attorney(s):

Sidney Schupak;
The Law Offices of Sidney Schupak, LLC;
Washington,
DC,
for
Marni Hotchkiss, Andrew Hotchkiss, Estate of Finley Ever Hotchkiss ■ Michael H. Feldman;
Berman, Sobin, Gross, Feldman & Darby, LLP;
Gaithersburg,
MD,
for
Marni Hotchkiss, Andrew Hotchkiss, Estate of Finley Ever Hotchkiss

Plaintiff Expert(s):

Michael Cone; M.D.; Neonatology; Rockville,
MD called by:
Sidney Schupak, Michael H. Feldman ■ Richard Grazi; M.D.; Reproductive Endocrinology; Brooklyn,
NY called by:
Sidney Schupak, Michael H. Feldman

Defendant(s):

Siu T. Ng-Wagner, M.D., 

Women’s Fertility & Health Center

Defense Attorney(s):

Robert J. Farley;
Wharton, Levin, Ehrmantraut & Klein;
Annapolis,
MD,
for
Siu T. Ng-Wagner, M.D., Women’s Fertility & Health Center

Defendant Expert(s):

Lisa Kolp;
Reproductive Endocrinology;
Lutherville,
MD called by:
Robert J. Farley ■ Edward Koch;
OB-GYN;
McLean,
VA called by:
Robert J. Farley

Insurer(s):

Medical Liability Mutual Insurance Co. for Siu T. Ng-Wagner, M.D. and Women’s Fertility & Health Center

On May 17, 2012, plaintiffs’ decedent Finley Ever Hotchkiss was born prematurely via a surrogate for Andrew Hotchkiss and Marni Hotchkiss, a married couple in their 30s. Finley was placed in neonatal intensive care immediately after birth. She died as a result of sepsis and extreme prematurity 21 days later. Andrew and Marni Hotchkiss sued obstetrician Siu Ng-Wagner, M.D. and her Rockville practice, Women’s Fertility & Health Center, for medical malpractice and wrongful death. Counsel for the Hotchkisses alleged that Ng-Wagner was negligent in failing to properly screen the surrogate candidate for any potential medical concerns that could complicate the pregnancy. Beginning in 2011, the Hotchkisses consulted with Ng-Wagner, seeking Ng-Wagner’s assistance with selecting a surrogate candidate to carry and give birth to their baby. A gestational surrogate candidate was selected by the Hotchkisses and approved by Ng-Wagner. The surrogacy commenced in December 2011. During pregnancy, the surrogate developed preeclampsia. Counsel alleged that Ng-Wagner’s failure to recognize that the surrogate had a medical history of preeclampsia ultimately caused the premature death of their daughter. In testimony, the Hotchkisses claimed that Ng-Wagner did not indicate that the surrogate had any kind of conditions in her medical history that would interfere with the pregnancy. They testified that Ng-Wagner examined the medical histories of other surrogate candidates and rejected one candidate because of a history of preeclampsia. The Hotchkisses’ reproductive endocrinology expert testified that Ng-Wagner and her practice had a duty to either acquire an obstetrical report detailing the surrogate’s medical history or perform an independent verification of the surrogate’s medical records. He further argued that Ng-Wagner had a duty to inform the Hotchkisses that she did not examine the surrogate’s medical records before the Hotchkisses chose the candidate for the surrogacy. Ng-Wagner and her practice denied liability. Ng-Wagner maintained that the surrogate did not inform her of any history of preeclampsia. Counsel for the defense argued that Ng-Wagner was not required to examine the surrogate’s medical records before recommending her for surrogacy. The defense’s expert on reproductive endocrinology opined that Ng-Wagner did not depart from the standard of care by taking the surrogate at her word regarding her medical history. An OB-GYN retained by the defense testified that, even if the surrogate’s preeclampsia was known by the parties, it would not have necessarily disqualified the woman from selection as a surrogate. The surrogate, Christina Jensen, was named as a third-party defendant by defense counsel. Jensen did not respond to the summons or appear at trial.

Andrew and Marni Hotchkiss claimed severe emotional distress and mental anguish as a result of their daughter’s wrongful death. They sought unspecified compensatory wrongful death and survival damages. The Hotchkisses’ retained expert on neonatology testified that Finley Hotchkiss’ death was due to extreme prematurity. The defense disputed the extent of the Hotchkisses’ alleged damages. Counsel argued there was no evidence that the infant decedent experienced conscious pain and suffering prior to her death. Although defense counsel objected to plaintiffs’ counsel’s conscious pain and suffering claim, the objection was overruled by the court. Defense counsel did not address the issue of pain and suffering to the jury.

The jury found that Ng-Wagner and Women’s Fertility & Health Center were negligent and that this negligence was the proximate cause of Finley Hotchkiss’ death. The plaintiffs were awarded a total of $44,105,000. Due to Maryland state caps on damages for non-economic losses in medical negligence suits, the verdict was reduced to $887,500.

Estate of Finley Ever Hotchkiss: $5,000 Wrongful Death: Funeral Burial Expense; $2,100,000 Wrongful Death: Survival; $42,000,000 Wrongful Death: wrongful death

Actual Award:

$887,500

Judge:

Richard Jordan

Demand:

$750,000

Offer:

None

Trial Length:

5
 days

Trial Deliberations:

75
 minutes

Jury Vote:

Unanimous

Jury Composition:

4 female/ 2 male

Post Trial:

At the time of trial, counsel for the plaintiffs was intending to challenge the constitutionality of the damages award cap. Defense counsel’s motion for remittitur was pending at the time of trial. The defense was also intending to file a motion for new trial.

This report is based on information that was provided by plaintiffs’ and defense counsel.