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Star-Telegram Staff Writer November 19, 1999
The court, voting 6-0, said Texas' wrongful-death statute illegally discriminates against parents who lose a viable fetus through the negligence of others. According to a line of Texas Supreme Court rulings, only parents whose fetus is born alive can sue for wrongful death. A mother has been allowed to collect damages for mental anguish, but only based on her own injuries, not on injuries to her unborn child. The appellate ruling was a key court victory for John and Dori Anna Dean of Keller, whose unborn child, Cheri, was stillborn at 7 pounds, 3 ounces the day after a 1996 car wreck. "I'm extremely happy about it," Dori Dean said yesterday. "It's a relief to know that Cheri is now considered a person." In a ruling written by Justice Dixon Holman, the court said that parents whose viable, unborn fetus dies from someone else's negligence should not be "turned away by Texas law's figurative shrug of the shoulders." The court said that, under the facts of the Deans' case, the wrongful-death statute violates parents' equal protection guarantees under the U.S. and state constitutions. The court called it "unconscionable" that a defendant "may escape liability by killing an unborn baby, while at the same time being subject to liability if he only injures an unborn baby later born alive." That inconsistency "should be shunned as shocking to the universal sense of justice," Holman wrote. The justices also said that the law resulted in gender discrimination against John Dean because he could not sue for mental anguish damages. Fort Worth attorney Geno Borchardt, who represents the Deans, said the appeals court ruling "is an extreme departure from the previous law, but it is a change that is long overdue." Thirty-seven states allow parents to sue for the death of a viable fetus, though most of those claims are based on specific statutes, not court interpretations. Dallas attorney Robert T. Walls Jr., who represents the defendant in the case, said that appeals court "appears to differ with the decisions previously handed down by the Supreme Court. The Supreme Court has ruled specifically on these issues." During arguments in October, he told the appeals court that legislators have not changed the law, so they apparently agree with Texas Supreme Court interpretations. Walls said he wasn't sure whether his client would want to appeal to the Supreme Court. The appeals court did not say a viable fetus is considered a person for all purposes. However, the court noted that Texas law treats a fetus as a person in some other contexts. For example, a fetus can, through a representative, petition a court to end its parent-child relationship. A fetus can also inherit property from a deceased parent. If Cheri Dean had survived the wreck, but Dori Dean had died, the child would have been able to sue the other driver for wrongful death of her mother. The case was argued before a three-judge panel but, in an unusual move, was decided by the full court. Justice David Richards did not participate because the Deans' appellate attorney, Sue Walker, is challenging his bid for re-election next year. The appeals court was careful to say that the decision was based on the facts of the case. Dori Dean was 36 weeks pregnant when she and another driver, Richard Parvin, collided at Keller Hicks and Alta Vista roads in northern Tarrant County the morning of Sept. 16, 1996. Dean says she felt her baby kick after the wreck. But when she went to the hospital, she and her husband discovered the baby had died. The Deans settled with Parvin on their claims for Dori Dean's injuries, with him accepting liability for the accident. Fort Worth and Tarrant County also agreed to pay the couple more than $300,000 combined on claims that overgrown weeds and grass obscured vision at the intersection. Neither the city nor the county admitted liability. In the appeal, the parties agreed the Deans' child was viable, or able to live outside the womb. The U.S. Supreme Court has recognized that viability generally occurs at about 24 to 28 weeks. A pregnancy is considered full-term at about 40 weeks. Yesterday's ruling upheld a March decision by state District Judge Bonnie Sudderth. She had ruled for the Deans but did not specify reasons for the decision.
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