Appeal from the United States District Court for the Western District of Wisconsin. No. 95 C 797 John C. Shabaz, Chief Judge.
Before POSNER, Chief Judge, and CUMMINGS and EVANS, Circuit Judges.
The parents of Andrew Kuehn brought this diversity suit in a federal district court in Wisconsin both on his behalf and on their own behalf against a Los Angeles hospital and its liability insurer, Wisconsin being a direct-action state. Wis. Stat. sec. 803.04(2). (The insurance company's liability is purely derivative, so we can ignore it.) The district judge granted summary judgment for the defendants on the ground that under Wisconsin's conflict of law rules, which are applicable to this diversity suit because Wisconsin is the state in which the suit was brought, the law governing the plaintiffs' tort claims is California law, under which the plaintiffs have no right to relief. So he dismissed the suit, and the plaintiffs appeal, arguing that Wisconsin's conflict of law rules make Wisconsin law, not California law, applicable to the substantive issues in the suit.
The facts are gruesome. In 1994, Andrew, aged 2, was diagnosed as having neuroblastoma, an often fatal children's cancer. His parents enrolled him in an experimental treatment program offered by Childrens Hospital of Los Angeles in cooperation with the hospital of the University of Wisconsin. The treatment required Andrew to go to Childrens Hospital to have bone marrow removed from him, the marrow to be cleansed of cancer cells by the hospital and shipped back in a vacuum-sealed container to the University of Wisconsin hospital, where the marrow would be reinserted in him. His parents flew with him to Los Angeles and the bone marrow was removed without incident at Childrens Hospital. The removal of bone marrow is a painful process that requires drilling many holes in the patient's hips. After removal the marrow was duly treated and then sent back to the University of Wisconsin hospital via Federal Express. The container in which Childrens Hospital shipped the boy's marrow was defective, however; and in addition Childrens Hospital turned the container wrong side up, which made it more likely to tip over in transit, and also took no special measures, as it could easily have done, to ensure prompt delivery. Delivery was in fact delayed; and the delay, in combination with the container's having been shipped upside down, caused the marrow to arrive in a "thawed" state in which it was unusable. The parents were told they would have to take their son back to Childrens Hospital for more of his bone marrow to be removed. They flew him back and he underwent the painful procedure a second time. Andrew's father carried the newly "harvested" marrow back to Wisconsin personally, and it was reinserted into Andrew there.
The treatment was unsuccessful and Andrew died eight months later, but no evidence has been presented that the botch of the first marrow treatment and resulting delay in the reinsertion of the cleansed marrow hastened his death. As the case comes to us, shorn of some of its original claims, it is not for wrongful death or for the expenses of the treatment but only for the pain and suffering that Andrew underwent in the second extraction of marrow, which would have been unnecessary had Childrens Hospital not been negligent, and for the emotional distress that its negligence caused his parents. There is not even a claim that the hospital's negligence, while it cannot be shown to have hastened Andrew's death, deprived him of a chance of a longer life, viewed as a legally protected interest separate from life itself. See, e.g., Doll v. Brown, 75 F.3d 1200, 1205-06 (7th Cir. 1996); Perez v. Las Vegas Medical Center, 805 P.2d 589, 592 (Nev. 1991). Although California does not recognize the loss of a chance doctrine, Dumas v. Cooney, 1 Cal. Rptr. 2d 584 (App. 1991), Wisconsin recognizes a variant of it. See Ehlinger v. Sipes, 454 N.W.2d 754, 762-63 (Wis. 1990).
We do not think that there is any conflict between California and Wisconsin law with respect to the second claim, for negligent infliction of emotional distress. The Kuehns concede that it is barred under California law. Under that law, the plaintiff must either have a very close pre-existing relationship with the defendant, which in this case would require that one of the plaintiffs have been a patient of Childrens Hospital, Burgess v. Superior Court, 831 P.2d 1197, 1201, 1203-04 (Cal. 1992); Huggins v. Longs Drug Stores California, Inc., 862 P.2d 148 (Cal. 1993); Klein v. Children's Hospital Medical Center, 54 Cal. Rptr. 2d 34 (App. 1996); Mercado v. Leong, 50 Cal. Rptr. 2d 569, 574 n. 1 (App. 1996), or be "present at the scene of the injury[-]producing event at the time it occurs and [be] then aware that it is causing injury to the victim." Thing v. La Chusa, 771 P.2d 814, 829 (Cal. 1989) (footnote omitted). We don't think this means that the plaintiff must have observed the act of negligence that produced the accident, which in a products-liability case might require his presence at the design or manufacture of the product, but rather that he must witness the accident and not merely the injured condition of the accident victim, Ochoa v. Superior Court, 703 P.2d 1, 8 (Cal. 1985); Golstein v. Superior Court, 273 Cal. Rptr. 270, 278 (App. 1990); In re Air Crash Disaster, 967 F.2d 1421, 1425 (9th Cir. 1992) (applying California law), and our plaintiffs witnessed only the second. Otherwise a plaintiff could recover damages although he had merely heard about the accident and had then visited the victim in the hospital. But we need not pursue the issue, given the plaintiffs' concession.
The claim of negligent infliction of emotional distress is barred under Wisconsin law as well. Wisconsin like other states has been concerned about the expansionary potential of this tort. A serious injury often has a ripple effect. A child is killed; his mother is deeply shocked by the news; if he was killed as a result of someone's negligence, the mother's shock is a consequence of that someone's negligence; why shouldn't he be liable for it? It is this sort of thinking that gave rise to the tort in the first place. See, e.g., Thing v. La Chusa, supra, 771 P.2d at 829; Purcell v. St. Paul City Ry., 50 N.W. 1034 (Minn. 1892); W. Page Keeton et al., Prosser and Keeton on the Law of Torts sec. 54, pp. 360 (5th ed. 1984). The problem, which delayed the recognition of the tort and has circumscribed its scope, is the lack of a logical stopping point. Tens of millions of Americans were shocked by the assassination of President Kennedy; should they have been allowed to join in a class action against the FBI, the CIA, and the Secret Service for negligence in failing to anticipate and neutralize the threat that Lee Harvey Oswald posed to the President? Should every case of wrongful death give rise to a claim by the victim's immediate relatives? It is difficult to believe that the expense of determining damages in such cases and of screening out the inevitable phony cases would be justified by the incremental contribution to the deterrence of wrongful conduct; and these hypothetical cases that we have put are not ones in which an award of damages is necessary to restore the plaintiff to the standard of living he enjoyed before the tort.
But rather than say that only the direct victim may sue, modern judges, either more sentimental than their predecessors or more confident of their ability to screen out phony cases, have drawn lines--arbitrary ones, but serviceable. Wisconsin's lines are slightly different from California's. Wisconsin has drawn the line around the case in which the plaintiff is a close relative of the immediate victim (also a requirement under California law), the injury to the victim is fatal or very severe, and the plaintiff either witnessed the accident or arrived at the scene of the accident immediately afterward so that in either case he was witnessing an "extraordinary event, namely the incident and injury or the scene soon after the incident with the injured victim at the scene." Bowen v. Lumbermens Mutual Casualty Co., 517 N.W.2d 432, 435 (Wis. 1994). These criteria, it is true, are not designed for, and do not appear to be applicable to, cases in which the plaintiff is not a bystander but instead someone at whom, as in La Fleur v. Mosher, 325 N.W.2d 314 (Wis. 1982), the defendant's tortious conduct was directed. See Kleinke v. Farmers Coop. Supply & Shipping, 549 N.W.2d 714, 716-17 (Wis. 1996). And the plaintiffs argue that they are direct victims, not bystanders (or not just bystanders), because they had a contract with the defendant. We cannot find any Wisconsin cases on this question, though California would clearly reject the argument. Huggins v. Longs Drug Stores California, Inc., supra, 862 P.2d at 153-54. To accept it would vitiate the limitations that both states have sought to place on the tort, by using the happenstance of a contractual relation to circumvent them. The parental relation between the plaintiffs and the victim in this case is far more significant than the contractual relationship with the defendant; and as a close family relationship is a sine qua non of a bystander claim, this case is in fact a classic bystander suit, so that to dispense with the limitations on such a suit because of the adventitious presence of a contract would be to fail to take seriously the desire of these states to impose such limitations.
So this is a bystander case; and the first condition imposed by the Wisconsin courts in such a case, that the plaintiff be a close relative of the immediate victim of the defendant's negligence, is satisfied here, but neither of the others is. If Andrew had been killed or crippled in an auto accident caused by someone's negligence, and Andrew's parents had witnessed the accident or been called to the scene before Andrew had been removed from it, they would have had a good claim against the injurer. Bowen v. Lumbermens Mutual Casualty Co., supra, 517 N.W.2d. at 435. The present case is remote from this example. The injury to Andrew from being forced to undergo the marrow extraction a second time was not severe. Once the possible effect on his longevity is set aside as unduly speculative, one is left with a procedure that is unpleasant and leaves the patient in some pain, but is not (so far as appears) dangerous, and certainly not crippling. Andrew recovered into the state in which he had been before the procedure within a week and a half of undergoing it. Of course, if one locates the source of the emotional distress to the parents not in the procedure but in the entire "surround," which includes the parents' horror of the thawing marrow, indignation at the carelessness of Childrens Hospital, and the anguish of witnessing the distress of their small child at the prospect of having to repeat the medical procedure, it becomes entirely credible that the parents' emotional distress was severe. But that is not the test. The test is whether they witnessed "either an incident causing death or serious injury or the gruesome aftermath of such an event." Id. at 444-45. They witnessed neither.
Although the claim of emotional distress thus must fail regardless of which state's law applies, there is an undeniable conflict between California and Wisconsin law with regard to the plaintiffs' other claim, the claim for damages for the pain and suffering that the second extraction inflicted on Andrew. In California, a claim for such damages does not survive the death of the victim. Cal. Civ. Proc. Code sec. 377.34; Sullivan v. Delta Air Lines, Inc., 935 P.2d 781, 783 (Cal. 1997). In Wisconsin it does. Wis. Stat. sec. 895.01(1); Wangen v. Ford Motor Co., 294 N.W.2d 437, 463 (Wis. 1980). So we must decide whether if this case had been brought in a Wisconsin state court rather than in a federal district court in the state, the state court would have applied the California or the Wisconsin rule on the survivability of claims for damages for pain and suffering. Answering this question is complicated by the fact that Wisconsin uses a laundry-list approach to conflicts questions. The list has five items: predictability of results, maintenance of interstate order (that is, not applying the law of a state that lacks a significant interest in how the case is decided), simplification of the court's task, advancement of the forum state's interests, and which state's law is better. Heath v. Zellmer, 151 N.W.2d 664, 672 (Wis. 1967); Lichter v. Fritsch, 252 N.W.2d 360, 363-64 (Wis. 1977); Employers Ins. of Wausau v. Certain Underwriters at Lloyd's, 552 N.W.2d 420, 427 (Wis. App. 1996). The items are not weighted, but the presumption is in favor of the forum state's, that is, Wisconsin's, law.
In choosing California law, the district judge emphasized the first and the last two items on Wisconsin's list. He thought that since the negligent act and injury had occurred (or at least had occurred mainly) in California, the parties would have expected California law to apply. And he thought that since Wisconsin's residents have a big stake in cancer research, and imposing tort liability on Childrens Hospital would retard such research, California's nonsurvival rule was both the better law and the one that actually served Wisconsin's interests better. The defendant adds that subjecting Childrens Hospital to the different tort rules of all 50 states (for the hospital draws its patients from all over the country) would make the hospital's legal obligations highly uncertain and therefore costly, and that California's rule on the nonsurvival of claims for pain and suffering is the better rule because it denies Andrew's parents a windfall, since it was his pain and suffering and he is dead.
Which state's law applies under the applicable conflict of law rules is a pure question of law. Gramercy Mills, Inc. v. Wolens, 63 F.3d 569, 572 (7th Cir. 1995); NL Industries, Inc. v. Commercial Union Ins. Co., 65 F.3d 314, 319 (3d Cir. 1995); Putnam Resources v. Pateman, 958 F.2d 448, 466 (1st Cir. 1992). We therefore cannot give any deference to the answer given by the district judge; the Supreme Court has held that a federal court of appeals is not to give weight to a determination of state law by a district judge even if he is sitting in that state and so is presumed to be especially familiar with its laws. Salve Regina College v. Russell, 499 U.S. 225 (1991); see also Stratmeyer v. United States, 67 F.3d 1340, 1345 (7th Cir. 1995); Control Data Corp. v. S.C.S.C. Corp., 53 F.3d 930, 939 (8th Cir. 1995). We must give our independent view and it is that Wisconsin's method of resolving conflicts points to Wisconsin, not California, law to govern this case. Because both states have substantial interests at stake--Wisconsin because it is the home of the tort victim, California because it is both the home of the defendant and the place where the defendant's careless acts occurred-- the "interstate order" criterion drops out. Heath v. Zellmer, supra, 151 N.W.2d at 674. As for simplifying the judicial task, all that comes to mind is that of course if California law applies, barring the plaintiffs' only remaining claim and thus requiring the ...