Ronald Mc Donald 1303 Courthouse Rd. Ste.

103 Stafford, VA 22554 Attorney for the Defendant

UNITED STATES DISTRICT COURT FOR THE NORTH WESTERN DISTRICT OF OZ

REBECCA AND SCOTT BELL-WESLEY, Plaintiff, vs. DR O'TOOLE , Defendant

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Case No.: 33093 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM FOR WHICH RELIEF CAN BE GRANTED Hearing Date: May 21, 2010 Time: 9:30 am Courtroom 3 Honorable Judge J. Martin Bass

INTRODUCTION The plaintiffs, sought damages for the birth of a healthy normal child because they had failed to produce a normal healthy child three times prior to this. Shortly after the death of the third child the father of the children had a vasectomy performed which initially though lab tests proved him sterile. However the plaintiffs wound up giving birth to a healthy normal child for which they are claiming a tort against the defendant who performed the vasectomy. Public policy prohibits a healthy normal birth to be an injury for which one can recover damages. A healthy normal birth is defined as a blessing. A surprise pregnancy and normal birth is benevolent, benign occurrence. This tort case lacks merit, is a trifle. It is reasonable to dismiss this trifling action with prejudice.

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STATEMENT OF ISSUES TO BE DECIDED A legally recognizable injury is an indispensable element of a negligence claim. W. Prosser, Law of Torts, sec.30 (4th ed. 1981). beneficial? Is the normal healthy birth of a normal child a

Does public policy prohibit a suit for damages in the normal birth of a normal child? It would be against public policy to hold a doctor who commits negligence in the course of a sterilization operation liable for the cost of raising a child. The child raising costs so much dwarf the cost of a vasectomy that holding doctors liable would discourage them from providing needed family planning and sterilization services at a reasonable cost, Rieck v. Medical Protective Co., 64 Wis. 2d 514, 219 N.W.2d 242 (1974). Did plaintiffs fail to mitigate perceived damages? Accord Public Health Trust v. Brown, 388 So. 2d 1084 (Fla. App. 1980). The failure of parents to place an unplanned child for adoption indicates that they were benefited and not hurt by the childs birth. Plaintiffs in a negligence case may not recover damages for injuries which they could have avoided through their own reasonable efforts. Failure to mitigate damages bars recovery. Restatement (Second) of Torts section 918. (1982) , Law of Torts, sec.30 (4th ed. 1981)

STATEMENT OF FACTS Dr. Stephen O Toole has practiced reproductive medicine and surgery for the past 27 years. He is renowned for his full disclosure, accuracy and meticulous work. In his practice he has every patient sign a full disclosure document that gives patient statistical data and information regarding the procedures and any alternative treatments. He has never had any suits or complaints against him until now. His reputation precedes him. Plaintiffs, Rebecca and Scott Bell-Wesley a ambitious power couple were referred to Dr. OToole by another satisfied client who frequents the same Country club as the Bell-Wesleys

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because they were having difficulty conceiving a child. The Bell-Wesleys were intent on starting a family air to their fortune. During the course of the Bell-Wesleys medical treatments Mrs. Bell-Wesley conceived and gave birth three times. Unfortunately as medicine is more often an art than science each of the children born to the Bell-Wesley family died. It was at that point that the Bell-Wes leys agreed to some genetic testing. They received medical information regarding why the babies had died and the probability of future babies suffering the same fate. Within a few weeks of their third child dying and in their grief Mr. Bell-Wesley approached Dr. OToole to request a vasectomy to avoid anymore babies with this rare congenital defect that shortened the babies lives. Their stated purpose was to avoid the birth of yet another fatally ill child. The sterilization operation in their case was admittedly could be one of those rare occasions where nature overrides mans interference with its plans or the result of another incident. Mr. Bell-Wes leys on follow up exam he had no viable sperm However Dr OToole disclosed prior to the surgery that rarely in point one percent of cases a persons tissue healed it self in a manner not quite understood, almost miraculous enabling viable sperm to form, for which both of the Bells-Wesleys signed waiver and acknowledgement. The couple has received exactly what they have always desired a healthy baby to complete their family: The child was neither unwanted nor was there an injury. If it were otherwise, they easily could have mitigated the problem. Both the Bells-Wesleys admitted they refused genetic testing and amniocentesis. The Bells- Wesleys admitted that it was discovered that Plaintiffs had another child on the way as early as six weeks for which an abortion could have legally and safely been performed to mitigate their alleged problem. Even if the Plaintiffs wanted to lead a childless marriage and they objected to testing or abortion, adoption is another option to mitigate the alleged tort. In all areas there was a failure to mitigate the alleged wrong. The birth of a normal healthy child is beneficial to the plaintiffs. Benefits far outweigh, negate any expenses or investments of time in raising the child to adulthood. It is against public policy for the birth of a normal healthy child to be an injury. A tort must be a legally recognizable injury. The plaintiffs have trifled the court with a baseless claim. The Plaintiffs allegation of tort is without merit, is trifling, that case merits dismissal with prejudice. SUMMARY OF ARGUMENT The birth of a normal healthy child is a blessing. The plaintiffs case is without merit and fails to fall within the framework of a tort claim. It is against public policy to distort the happy event of a normal birth into a tort claim. This case should be dismissed with prejudice. ARGUMENT I. THE COURT SHOULD DISMISS THIS CASE BECAUSE IT FAILS THE ELEMENTS TEST OF A TORT ACTION.

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A normal healthy birth of a normal healthy child is considered a welcome event, where many would adopt a newborn. A tort has to meet an element of injury. A legally recognizable injury is an indispensable element of a negligence claim. W. Prosser, Law of Torts, sec.30 (4th ed. 1981). This normal healthy birth does not meet the element of damage in a tort claim. In, O'Toole v Greenberg, 98 AD2d 814. NY (1985) ; Resolution of this question requires first a determination as to whether plaintiffs have suffered a legally cognizable harm by the birth of a healthy child. It is a fundamental principle of Anglo-American tort law that an act contrary to law, which does not result in legal harm -- injuria absque damnum -- is not actionable and does not give rise to any claim or cause. ( Deobold v Oppermann, 111 NY 531, 541-542; Speiser, Krause, Gans, The American Law of Torts 1:11, at 36, n 22, citing, inter alia, Becker v Schwartz, 46 NY2d 401, 411, supra.) Liability for negligent conduct exists only when it proximately causes legal harm to a fully protected interest of another. (Seavey, Principles of Torts, 56 Harv L Rev 72, 89; Pollock on Torts, at 23 [Am ed [*432] 1894].)
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The plaintiffs admitted their hearts desire was to have a normal healthy child. The Plaintiffs admitted that they had tried for ten years to have a normal healthy baby and failed. After giving birth three times to fatally ill children that died shortly after birth grief stricken plaintiffs pursued a vasectomy operation to prevent any more fatally ill damaged children from being born. This child was what the plaintiffs have professed to have always wanted it is baffling as to how they can allege a tort claim. The value of a human life outweighs any damage that might be said to result from the fact of birth: even an unplanned birth. Thus, the birth of a healthy child is never an injury. Coleman v. Garrison, 349 A.2d 9,13 (Del. 1975), The Court of Appeals affirmed the order of the Appellate Division, and answered the question certified in the affirmative, holding, in an opinion by Judge Jasen, that a medical malpractice action brought by a husband and wife seeking recovery of the ordinary cost of raising a healthy, normal child, born after an unsuccessful birth control operation, does not state a legally cognizable claim. O'Toole v Greenberg, 98 AD2d 814. NY (1985 II. THE PLANTIFFS FAILED TO MITIGATE ANY ALLEGED PERCIEVED DAMAGE CLAIMS

The plaintiffs failed to mitigate any alleged damages that they may perceive to have had. They could have given the child up for adoption, had an abortion and had diagnostic tests in failing to do any of the aforementioned they failed to mitigate the unwanted costs associated with the rearing of their child. Plaintiffs in a negligence case may not recover damages for injuries which they could have avoided through their own reasonable efforts. Failure to mitigate damages bars recovery. Restatement (Second) of Torts section 918. (1982) In, Accord Public Health Trust v. Brown, 388 So. 2d 1084 (Fla. App. 1980) The failure of parents to place an unplanned child for adoption indicates that they were benefited and not hurt by the childs birth. Compare this to our present plaintiffs unwarranted claim for damages.

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The value of a human life outweighs any damage that might be said to result from the fact of birth: even an unplanned birth. Thus, the birth of a healthy child is never an injury. Coleman v. Garrison, 349 A.2d 9,13 (Del. 1975) Even so parents may perceive a suit for damages of an unwanted child this as a right. To recover for wrongful conception, parents would have to demonstrate not only that they did not want their child, but also that the child remains an uncherished and unwanted burden. Id., 95 Ill. 2d at 202, 447 N.E.2d at 390. Compare to, O'Toole v Greenberg, 98 AD2d 814. NY (1985) as follows: Appellants' primary contention before this court presents the question whether plaintiff's failure to have an abortion or to have the child adopted is a failure to mitigate that precluded recovery. The question was answered in the affirmative by Supreme Court, Queens County, below in dismissing that portion of plaintiffs' complaint which sought to recover the expenses involved in rearing and caring for a healthy but unwanted child. While this view may be incongruous with settled public policy (Robertson, Toward Rational Boundaries of Tort Liability For Injury To The Unborn: Prenatal Injuries, Preconception Injuries and Wrongful Life, 1978 Duke L Rev 1401, 1448-49; Note, Wrongful Conception: Who Pays For Bringing Up Baby?, 47 Ford L Rev 418, 432, n 106), we need not reach the question inasmuch as there was no cognizable harm suffered by plaintiffs upon the birth of a healthy child that need be mitigated. In that vein because the birth of a normal healthy child is not a claim then it does not need to be mitigated. Yet in so far as the plaintiff contends that it is a tort then they must meet the element of mitigating the circumstances if mitigation is possible. We have mentioned a few ways that are obvious that this could have been mitigated through adoption, abortion and testing. III. IT IS AGAINST PUBLIC POLICY TO CLAIM DAMAGES IN A HEALTY NORMAL BIRTH

In a similar case, Justice Jansens opinion: This court has recognized the "very nearly uniform high value" which the law and mankind have placed upon human life. ( Becker v Schwartz , 46 NY2d 401, 411, supra.) In view of our society's acknowledgment of the sanctity of life, it cannot be said, as a matter of public policy, that the birth of a healthy child constitutes a harm cognizable at law. (See, Weintraub v Brown, 98 AD2d 339, 348-349; Clegg v Chase, 89 Misc 2d 510, 513; Public Health Trust v Brown, 388 So 2d 1084 [Fla Dist Ct App]; Cockrum v Baumgartner, 95 Ill 2d 193, 447 NE2d 385, cert denied sub nom. Raja v Michael Reese Hosp. & Med. Center, U.S. , 104 S Ct 149; Coleman v Garrison, 327 A2d 757 [Del Super], affd 349 A2d 8, 13-14.) The moral, social and emotional advantages arising from the birth of a healthy child are to be preferred to the protection of purely economic interests. (See, Cardozo, The Paradoxes of Legal Science, at 57 [1927].) To hold that the birth of a healthy child represents a legal harm would be to engage this court in the jurisprudentially improper task of recasting the immutable, intrinsic value of human life according to the financial burden thus imposed upon the parents. Accordingly, we hold that the birth of a healthy child, as but one consequence of defendant's tortious conduct, does not constitute a harm cognizable at law. 6; O'Toole v Greenberg, 98 AD2d 814. NY (1985) Likewise a relevant case concurs and follows: It would be against public policy to hold a doctor who commits negligence in the course of a sterilization operation liable for the cost of raising a child. The child raising costs so much dwarf the cost of a vasectomy that holding

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doctors liable would discourage them from providing needed family planning and sterilization services at a reasonable cost Rieck v. Medical Protective Co., 64 Wis. 2d 514, 219 N.W.2d 242 (1974). CONCLUSION This case should be dismissed because it lacks merit, it is trifling, and it is against public policy. The plaintiffs failed to mitigate their perception of a tort claim. Defendant prays the court dismiss this case with prejudice.

Dated this 26th day of April, 2010 By: Ronald Mc Donald 1303 Courthouse Rd. Ste. 103 Stafford, VA 22554

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