Kuehn v. Childrens Hospital, Los Angeles

Allan and Carol Kuehn (plaintiffs), Wisconsin residents, were parents to Andrew, a two-year-old boy. Andrew had cancer, and the Kuehns enrolled Andrew in an experimental program at the Childrens Hospital of Los Angeles (Childrens) (defendant) in conjunction with the University of Wisconsin hospital. Before participating in the program, the Kuehns signed an informed-consent document that did not contain a choice-of-law provision. The program involved Andrew flying to Childrens, where his bone marrow was removed via a painful procedure and then cleaned and shipped back to the University of Wisconsin, where the marrow was to be reinserted in Andrew. However, Childrens failed to properly ship Andrew’s bone marrow to the University of Wisconsin, making it unusable. The Kuehns had to take Andrew back to Childrens to have his bone marrow removed a second time, and it was later successfully reinserted in Andrew. However, Andrew died eight months later. The Kuehns filed a diversity action in Wisconsin federal district court against Childrens, alleging Childrens was negligent in shipping the bone marrow back and seeking damages for Andrew’s pain and suffering in having to do the procedure a second time. Under California law, pain-and-suffering claims did not survive the death of the victim, but such claims did survive under Wisconsin law. California’s law was an older rule, and more states were trending toward Wisconsin’s approach. The trial court granted Childrens’s motion for summary judgment, holding that California law applied and the Kuehns’ claims were barred. The Kuehns appealed.