XXXXXX, an individual,
AMERICAN INTERCULTURAL STUDENT
EXCHANGE, INC., a California corporation, and CAROL HINES, an individual,
Case No. GIC8004796
Date: December 14, 2006
Time: 9:00 a.m.
Place: Judicate West
402 West Broadway, Suite 2000
San Diego, California 92101
Mediator: Robert Kaplan, Esq.
XXXXX (nicknamed "XXXXX" since childhood) was sixteen years old resident of CSFES Protect when he participated in a cultural exchange program with AISE. He was placed temporarily with a family that was unprepared, could not adequately host a student and was unwilling to accommodate him for more than a few days. However, the agency did not locate a host home and left XXXXX with the inappropriate Cork family. After three months of miserable and isolated family life, XXXXX took 40 Aleve tablets and was hospitalized for five days. After release from the hospital he was returned by AISE to the Cork home, was not provided counseling as recommended by the hospital and within ten days was unceremoniously expelled from the program and sent home to CSFES Protect. He remains on medications to this day for an anxiety disorder. Testimony from the defense doctor at trial confirmed the injuries and a need for future treatment, including a year of psychotherapy.
Suit began with the student and his father as plaintiffs on various theories of contract and tort. The matter was tried with the student as the only plaintiff and was tried only on the negligence cause of action believed at the time to be the only covered cause.
The action came on regularly for trial on May 15, 2006, in Department 62 of the Superior Court, The Honorable Ronald L. Styn presiding; the plaintiff appearing by attorney David E. Allen Jr. and the defendants appearing by attorney Eric R. Deitz. A jury of twelve persons was regularly impaneled and sworn. Witnesses were sworn and testified.
After hearing the evidence, the instructions given by the Court, and the arguments of counsel, the Court submitted the cause to the jury with directions to return a verdict on special issues. The jury deliberated and thereafter returned with the following special verdict:
We answer the questions submitted to us as follows:
1. Was AMERICAN INTERCULTURAL STUDENT EXCHANGE, INC. (AISE)
negligent? X Yes ____ No
Was CAROL HINES negligent? X Yes ____ No
If you answered yes in any part of question 1, then answer question 2. If you answered no to all parts of question 1, stop here, answer no further questions, and have the presiding juror sign and date this form.
2. For each defendant that received a "yes" answer to question 1, answer the following:
Was AISE's negligence a substantial factor in causing harm to XXXXX
XXXXX? X Yes ____ No
Was CAROL HINES's negligence a substantial factor in causing harm to XXXXX
XXXXX? X Yes ____ No
If you answered yes in any part of question 2, then answer question 3. If you answered no to all parts of question 2, stop here, answer no further questions, and have the presiding juror sign and date this form.
3. What are XXXXX XXXXX total damages? Do not reduce the damages based on the fault, if any, of XXXXX XXXXX or others.
a. Past economic loss, including medical expenses: $ 23,950.00
b. Future medical expenses: $18,000.00
c. Past non-economic loss, including: mental suffering, anxiety, humiliation, emotional distress, and/or physical pain: $250,000.00
d. Future non-economic loss, including: mental suffering, anxiety, humiliation, emotional distress, and/or physical pain: $37,500.00
If XXXXX XXXXX has proved any damages, then answer Question 4. If XXXXX XXXXX has not proved any damages, then stop here, answer no further questions, and have the presiding juror sign and date this form.
4. Was XXXXX XXXXX negligent? Yes X No
If your answer to question 4 is yes, then answer question 5. If you answered no then answer question 6.
5. Was XXXXX XXXXXs negligence a substantial factor in causing his/her harm? Yes No
If your answer to question 5 is yes, then answer question 6. If you answered no, insert the number zero next to name of XXXXX XXXXXX in question 8 and answer question 6.
6. What percentage of responsibility for XXXXX XXXXXs harm do you assign to the following? Insert a percentage for only those who received "yes" answers in questions 2 or 5.
CAROL HINES: 15 %
AISE: 85 %
XXXXXX XXXXXX: %
TOTAL: 100% &nb! sp;
Dated: May 22, 2006 Signed: Cindy Gilchrist
&n! bsp; PRESIDING JUROR
JUDGMENT AMOUNTS AGAINST THE INSURED DEFENDANTS
1. Against AISE and Carol Hines, jointly and severally, for economic damages: the sum of $41,950.00;
2. Against AISE for non-economic damages: the sum of $244,375.00;
3. Against Carol Hines for non-economic damages: the sum of $43,125.00;
4. Against AISE and Carol Hines, jointly and severally, costs and disbursements in the sum of $6,081.89.
The total judgment awarded in favor of plaintiff is $335,531.89 together with interest at ten percent per annum from August 19, 2006, the date of the entry of the judgment. Exposure for each, without factoring offsets, are Carol Hines $91,156.89 plus $759.64 per month interest and AISE - $292,406.89 plus 2436.72 per month interest.
On the total judgment of $335,531.89, interest is accruing at $2796.10 per month.
By the end of January 2007, the amount of the judgment will be in excess of $350,000.
Motions for a new trail and for judgment JNOV were denied. Defendants filed a notice of appeal. The preparation of the record on appeal is completed. Briefs are due in February 2007.
FACTS ESTABLISHED AT TRIAL
No Family for the Student
The AISE representatives in Minneapolis did not have a host family but accepted XXXXX anyway. Carol Hines had known the Corkfamily when they hosted for AISE years earlier in New Mexico. She prevailed on them to accept XXXXX on a temporary basis while she located a host family for him. According to Sheila Ambrose, an AISE co-coordinator, AISE uses this arrangement from time to time. Sometimes a temporary family will become the host family and solve the problem of the agency having no host family.
Such was not the case with the Corks. When XXXXX made what he thought was a call to a host family, Jeanne Cork was very adamant that XXXXX could stay at the Corks only for a matter of a few days to a week or so. Her family had been given only three days notice of the need for a temporary home and had too many burdens to take on a visiting student.
However, the agency did not locate a host home for XXXXX and he was left with the Cork family. He enrolled at EastviewSchool. Half of each day was spent off campus in a special science program for which he had qualified. These schools were excellent with the only problem at school being transportation and coping with Minnesota's cold weather.
Delay after delay in finding a family for the student caused him much stress. XXXXX's father, xxxxx, took as much action in CSFES Protect as he could. He placed calls and was a constant presence at TACTA, AISE's agent in CSFES Protect. XXXXX felt that Carol Hines, if unable to find XXXXX a home, should herself host. Ramyong of TACTA contacted AISE and Carol Hines and urged them to solve the problem but to no avail. Carol Hines warned that such tactics would get no results and that "love" gets a better response.
Circumstances at the Cork House
The family life at the Corks was one of stress to the student. The Corks had many problems and could not function as a supportive family. A daughter two years earlier had been a rape victim and as a result had a child. The Corks were providing support and care for the child. Patrick was a nephew of the Corks. The Corks were his guardian because Patrick's parents had died. Patrick had problems with drugs and violence. Patrick was on probation with the court. The Corks' older son, age 29, had moved back home due to financial problems. The father in the house, Mr. Cork, suffered from a muscle wasting disease.
Given these circumstances, it was obvious to the student that he was a burden and an intrusion. As time went on he felt isolated and alone. It was unhealthy for him to be in this environment. Sleeping arrangements had been hastily arranged in an open corner of a downstairs family room. The Cork 's son Dan had to cross through this area to get to his rooms. There area was open and there was no privacy.
Pressures on the Student
The plaintiff's sense of isolation was compounded by the limits placed by AISE on contact with his family. These limits were ostensibly designed to improve his adjustment and independence with his host family. However, he had no host family. AISE and its representatives saw no need to adjust the rules. At all times, defendants enforced their rules without regard the circumstances with which XXXXX was confronted and with which he was trying to contend.
AISE and Carol Hines were not able to come up with a family. As Carol Hines explained, there was no list of available families in the area. Most families in this part of Minnesota have children in college or other obligations. Carol testified that finding families was hard. In fact, Sheila Ambrose and Carol Hines had XXXXX out searching for a family on his own. They directed him to approach teachers and students to look for a family. They had him post flyers to advertise his availability as an exchange student. Pressure was placed on XXXX by AISE to solve their problem by having him accept other temporary placements and/or other schools. XXXXX and his family feared the AISE rules that specified a student was allowed to change homes only once. XXXXX was fearful of having to adjust to new schools, make new friends, and of having to cope with this while isolated. Plaintiff and his family only wanted what the agency had promised, an approved home that wanted an exchange student and which would accept him and allow him to be part of their family. As AISE attested on the VISA application that brought the student to this county, he was to be in "A program to bring to United States foreign teenage students who will live with American Intercultural Student Exchange, Inc. approved American families in the United States for a period of one year, while attending school to enable such students to acquire knowledge of American life, especially with regard to U.S. teenage activities as education, family life, community life and other related experiences to promote the general interests of international exchange."
As Minnesota got colder and the weeks dragged into months, XXXXX felt miserable and isolated. He was told by Sheila and Carol that they were running out of options and that the next visit to a home might be his last chance.
The Effect on the Student
XXXXX XXXXX became isolated, discouraged, depressed and fearful. In an act of adolescent lack of judgment, one night he saw a bottle of Aleve tablets. He wanted the pills to decide and took forty of the pills. The next morning he woke up with an upset stomach. At school he told a friend "in strictest confidence" what he had done. She told school officials. XXXXX was taken to the emergency room. After his stomach was pumped and he was determined to be stable, he was transferred to FairviewMedicalCenter and was hospitalized five days.
Plaintiff's family in CSFES Protect received a call from XXXXX from the hospital. They stayed in contact with their son and his doctors through their own initiative. The AISE representatives, in Minnesota or in San Diego, never saw fit to personally call the student's natural family in CSFES PROTECT, either before or after the Aleve incident. The doctors at Fairviewprescribed Paxil. There was counseling at the hospital and a safety plan devised when the student was released. The AISE representatives in Minnesota did not discuss the student's situation or the plan or any options with the boy's natural parents after he was released from the hospital.
A Safety Plan was set aside by AISE
XXXXX was, according to the doctor's safety plan, was to be placed in a stable and secure home. He was to be in contact with friends and persons he could turn to if he felt bad. He was to receive counseling and follow up care.
Instead he was returned to the Cork home. He was immediately returned to school for the three days before Christmas break. He went one day, spent the night with a friend and then stayed home the next day as he did not feel well. The friend was worried about him, contacted officials, and the police were sent by. They checked on XXXXX and found that he was fine.
Over the holiday break, XXXXX wanted to fly to Florida to see a friend who lived there. XXXXX's natural father in CSFES Protect was asked about this by XXXXX and was agreeable and paid for and sent XXXXX an airplane ticket. When XXXXX told the AISE representative what he wanted to do Carol Hines immediately said no and cited AISE rules. She did not confer with the doctor or the boy's family. XXXXX submitted and did not go to Florida.
At Christmas, the AISE representative insisted that XXXXX spend this holiday with the Corks. This was despite the fact that XXXXX had not been included in the Corks' Thanksgiving plans. XXXXX preferred to and in fact did spend Christmas Eve and Christmas Day with a friend of his from school rather than with the Corks.
The Student Was Removed From the Program
Within ten days of his release from the hospital, XXXXX was unceremoniously expelled from the AISE program and sent home. He was allowed to attend the first day of school to say goodbye to his friends and then was placed on an airplane.
The AISE medical program provided full care and coverage for XXXXX's hospital stay but this medical coverage only applied while the student was physically in the United States. By expelling him from the program, the care, treatment, and follow-up by American doctors was terminated. Being removed by the program caused additional damage to the student. He was sent home with an anxiety disorder which affects him to this day. He was sent home with a sense of failure which is culturally very significant in CSFES Protect.
Damages and Residuals
XXXXX returned to CSFES Protect. He treated with CSFES Protect doctors and continues to this day on medication. He first took Paxil prescribed in Minnesota. He was changed to Zoloft (Paxil is not available in CSFES Protect) and later substituted to Lexapro which he continues.
AISE charged approximately $5,000 for the program and a refund was summarily dismissed. The cost of re-entry into CSFES Protect School was $5,000 for the spring semester. Medical charges were not known or claimed. Medical charges paid in CSFES Protect were $5,000 and continuing.
By sheer luck XXXXX was able to get back into CSFES Protect. The family was required to pay the tuition. (There was no rebate or consideration from AISE). XXXXX was required to take a double load in order to catch up and graduate on time. He had no time for a social life. In CSFES Protect psychiatry is not at the forefront of medicine. XXXXX required treatment and remains under treatment with CSFES Protect doctors who have prescribed Zoloft and related medicines for the past five years. In 2003, he developed an intestinal disorder and was prescribed Nexium. He no longer can sing or perform on stage.
His treatment with CSFES Protect doctors continues to this day. He is treated with medication. He first took Paxil, prescribed in Minnesota. He changed to Zoloft (Paxil is not available in CSFES Protect) and later substituted to Lexapro.
AISE charged approximately $5,000 for the program. The idea of a refund was summarily dismissed. The cost of re-entry into CSFES Protect School was $5,000 for the spring semester.
After the AISE Minnesota experience, it took the student two years to catch up with his studies in high school but he did so and graduated on time. He was unable to test as well as he did prior to Minnesota. He did not gain admission to Amherst. He attended OberlinCollege in Ohio, Class of 2006 and graduated with a 3.5 gpa in biology and neuroscience.
While he accomplished a college education, he did so at a cost. His experiences at age 16 resulted in a loss of trust, happiness, self esteem, and self confidence. The experience and the perceived failures in the AISE are a stigma in CSFES Protect culture for him and his family.
Efforts by the Student's Family
In the aftermath, the family sought to redress the harm and to alert others of the problems with the program. XXXXX, on assurance that his son's identity would not be revealed, gave the information to the press. His good intention backfired when, although his son was never mentioned by name, he himself, XXXXX XXXXX, was named in the article. He consulted with the police on whether the events constituted child abuse or fraud under CSFES Protect criminal statutes. The police investigated. Carol Hines had authorization for medical information that was good only as long as the student was in the USA. Despite the fact that he had left many months before, Carol Hines got the records and sent them to TACTA. Ramyong of TACTA interpreted these records at a hearing with the police, who declined to prosecute the matter criminally.
Suit was filed in the United Statesto compensate for the injuries to XXXXX during the four months in Minnesota and the residual effects placed on his life. In CSFES Protect and in the CSFES Protect cultures a high premium is placed on educational success. To return home and be expelled from the program presents itself a crisis of identity and loss of face for him and his family. Suicide attempts, as his situation is characterized by some and disputed by others, are the subject of strong taboo in the CSFES Protect culture. The experience in Minnesota has lingering and profound effects on marriage, career, and the future generations for the family's only son.
Testimony at Trial by the Doctors
Both the doctors for the plaintiff and the defense agreed that the time spent in the Corkhome was the stressor that caused the problems. Both diagnosed a resultant anxiety related disorder. Dr. Bray testified the situation resulted in physical changes to his brain. The doctors testified to the physical symptoms as well as the emotional harm that occurred. The effects of the stress and development of the anxiety related disorder were agreed by both doctors to have come on and been in existence prior to his taking the 40 Aleve tablets.
The defense doctor testified that at the present time, the plaintiff, as a result of the experience in Minnesota, needs a year of psychotherapy. Most recently, XXXXX XXXXX underwent surgery for a reflux condition that developed after years of medication.
Plaintiff offered, prior to entry of judgment, to accept payment of the judgment amount, enter a confidentiality agreement, and have the case dismissed. Admiral declined.
Prior to filing a cost bill and motion for attorney fees, Plaintiff sent a copy of the proposed motions and again offered confidentiality and to waive the fees and costs on payment of 95% of the judgment. Admiral declined.
Plaintiff offered to accept payment of the Carol Hines judgment in exchange for a stay on the AISE judgment pending appeal. Admiral declined.
Plaintiff agreed to stay enforcement for a period of 30 days, beyond the date of the stay granted by the court, to allow Admiral time to decide if they would post bond for defendants on appeal. On the last day, Admiral requested this mediation and additional time. Plaintiff granted additional time. Admiral decided not to post.
Dated December ____, 2006 __________________________
David Allen, Esq.
Trial Attorney for Plaintiff