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Court denies ASG motion for amendment of judgement or new trial in NIED claim

The government’s move for a new trial or amending judgment issued in a lawsuit filed in the death of a minor child back in 2008 has been denied by the Trial Division of the High Court.


The 13-page order was signed by Associate Justice Lyle L Richmond and Associate Judge Mamea Sala Jr. last month. According to the order, the government moved for an amendment of judgment or a new trial after the plaintiffs prevailed in their claim of negligent infliction of emotional distress (NIED), which the court heard on January 9, 2013.




Plaintiffs brought a wrongful death action against the government, alleging that members of the medical staff at the LBJ Tropical Medical Center negligently caused the death of an infant — Temukisa Filioali’i. The Filioali’i family, represented by Fiti Sunia, also claimed that the hospital staff caused them severe emotional distress by failing to timely notify them that the baby was brain dead.


The court denied the plaintiff’s wrongful death claim but held the government liable for the NIED claim of the minor’s parents. According to the ruling, in a previous order and opinion of the court, they recognized the NIED as a viable cause of action in the territory but noted that this is a still-evolving tort.


The court noted when they analyzed the NIED claim under the “direct victim” theory, the parents were not precluded from pursuing an NIED claim because the emotional distress they suffered derived from a breach of the duty to timely notify them that the child was brain dead and the LBJ doctors owed that to the family.


“We found that LBJ doctors breached their duty to timely promptly disclose Temukisa’s brain death. In making this determination, we stated that there was ample evidence that LBJ physicians were aware from early on that Temukisa was brain dead," they wrote.


“LBJ physicians held a grim prognosis throughout her treatment at the hospital that Temukisa would not recover. CT scans, pupil dilation tests, and tactile stimuli tests all indicated that Temukisa was brain dead, yet her parents were never informed."


“Especially significant to our analysis, Dr. I’atala performed tactile stimuli and pupil dilation tests on Temukisa which showed her to be unresponsive.


“These same tests were performed several days later when LBJ physicians actually tested for brain death and there were no meaningful changes in result,” says the order.




A motion for a new trial should be based upon manifest error of law or mistake of fact and a judgment should not be set aside except for substantial reasons. The government claims that instead of focusing on the lack of communication, the court focused on LBJ physicians failure to perform a brain death test and failure to timely inform the family of the results of the brain death test.


“ASG is mistaken in its claim; in their amended complaint plaintiffs alleged that LBJ physicians knew Temukisa was brain dead long before plaintiffs were informed and that plaintiffs unwittingly subjected Temukisa to meaningless procedures and medications. We found there was sufficient evidence to support plaintiffs NIED claim against ASG.”


The court claims that they believe that LBJ physicians knew that Temukisa was brain dead long before they performed the brain death test or informed Temukisa’s parents.


“LBJ physicians’ knowledge of Temukisa’s condition and failure to share this knowledge with Temukisa’s parents was the basis of ASG’s NIED liability. Accordingly, ASG’s claim fails.”


The government next claims that the basis of liability relied upon by the Trial Division was never actually heard at trial, however, the government claims that there was ample testimony at trial regarding communication between LBJ physicians and Temukisa’s parents regarding her condition, but the court did not make its determination based on this evidence.


The order states that was no evidence at trial concerning the standards for brain death testing and ASG argues the court alleged reliance on this constituted a violation of its due process rights. “The trial division made its decision based on the evidence adduced at trial.”


The government further argues that plaintiffs have failed to prove their NIED claim at trial because LBJ physicians were not negligent in their communication of information to plaintiffs and listed several instances where physicians spoke with the family about Temukisa’s condition, and appraised them of her grim prognosis.


The court said that, although they agreed that the physicians had spoken often to Temukisa’s family, what was missing from these communications was any mention of Temukisa being ‘brain dead’. The government then claims that the false hope that Temukisa’s parents experienced as a result of LBJ physicians negligence is sufficient to spur a finding in NIED.


The court notes that they have determined that enough groundwork in this area of tort law has been laid by other jurisdictions to allow the court to recognize NIED as a cause of action.