## Facts

- Wisconsin residents Allan and Carol Kuehn enrolled their two-year-old son, Andrew, in an experimental neuroblastoma treatment program involving Childrens Hospital in Los Angeles and the University of Wisconsin Hospital.
- The protocol required bone marrow to be extracted in California, processed at the California hospital, and shipped to Wisconsin for reinfusion.
- The first extraction in California was successful but extremely painful.
- The hospital shipped the marrow to Wisconsin in a container alleged to be defective and oriented improperly, without available special delivery precautions.
- The shipment was delayed, the marrow arrived thawed and unusable, and Andrew underwent a second painful extraction in California.
- The second shipment was successfully delivered and the marrow was reinfused in Wisconsin.
- Andrew died about eight months later; the claims did not allege the shipping negligence or the second extraction caused or contributed to his death.
- The parents sued in federal court on diversity grounds, seeking (1) the estate’s damages for Andrew’s pain and suffering from the second extraction and (2) the parents’ damages for emotional distress.
- The informed-consent materials contained no choice-of-law provision.

## Issues

1. Under Wisconsin choice-of-law rules, whether Wisconsin or California substantive law governs the estate’s claim for Andrew’s pre-death pain and suffering, including whether that claim survives Andrew’s death.
2. Whether the parents may recover for negligent infliction of emotional distress arising from Andrew’s need to undergo a second extraction.

## Decision

- The court reversed summary judgment as to the estate’s pain-and-suffering claim, holding Wisconsin substantive law applied and allowed the claim to survive.
- The court affirmed summary judgment against the parents’ emotional-distress claim because it failed under both Wisconsin and California law.
- The case was remanded for further proceedings on the estate’s pain-and-suffering claim.

## Legal Principles

- In a diversity tort case, the federal court applies the forum state’s conflict-of-laws rules to select the governing substantive law.
- Under Wisconsin’s interest-analysis approach, forum law tends to apply absent stronger countervailing interests, especially where the plaintiff is a forum resident and the harm is primarily felt in the forum state.
- For survival of actions, a court may prefer the law of the injured party’s home state when that state has a strong compensatory interest and the competing state’s rule is principally a limiting policy.
- Absence of an express contractual choice-of-law provision can weigh against applying the law of the place of medical treatment when the defendant could have specified governing law.
- Negligent infliction of emotional distress is limited by restrictive doctrinal requirements; a claim may be dismissed where the plaintiff does not fit within the class of compensable emotional-harm plaintiffs under the applicable state doctrines.

## Conclusion

The Seventh Circuit applied Wisconsin conflicts rules to select Wisconsin substantive law for the estate’s claim and permitted recovery for Andrew’s pre-death pain and suffering despite his later death, while rejecting the parents’ independent emotional-distress claim because it was not actionable under either Wisconsin or California standards.


Kuehn v. Childrens Hosp., L.A., 119 F.3d 1296 (7th Cir. 1997)