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Horn v. Hendrickson3/29/2005
ion states that "The litigation cost to prove viability" is an inherent difference which justifies disparate treatment between classes of injured persons, in this case, parents. Slip op. at 25. This is a convenient characteristic which appears "to divide or identify a class." Collins, 644 N.E.2d at 78. But the additional litigation cost to prove viability is not an "inherent characteristic" of the parents of viable unborn children that distinguishes them from parents of children born alive.
Whether the viable fetus would have been born alive is an issue subject to proof at trial and not unlike or more difficult to prove than any other medical issue tried in Indiana courts on a daily basis. Indeed, the viability of an unborn fetus killed in utero may be proven by clinical autopsy evidence. A jury can determine whether the parents have established by a preponderance of the evidence that their viable fetus would have been born alive but for the intervening wrongful act. This is the same type of evidence the State must present to prove beyond a reasonable doubt that a defendant has murdered a viable fetus under Indiana Code Section 35-42-1-1(4). In the end, the fact that parents of a viable fetus may be required to expend greater effort and resources in litigating their wrongful death claim than the parents of a child born alive does not qualify as an "inherent difference in situation" for purposes of the Equal Privileges and Immunities Clause. Id.
It is true that the parents of an unborn viable fetus who is killed by the wrongful act of another may have more difficulty in proving damages for the loss of love and affection of their child. Further, the fact that the child was born alive, which allowed the parents to touch and see the child prior to its death, is a valid consideration for the jury in awarding damages. But it is not uncommon for the parents of a stillborn fetus to hold their child, and like the parents of a child born alive, parents of an unborn viable fetus have been damaged by the loss of their progeny whose love and affection they would have enjoyed, but for the intervening wrongful act.
Finally, although Horn did not raise the argument, the court's interpretation of "child" in Bolin raises an equal privileges and immunities problem for fathers of unborn viable children. As we have noted, our supreme court in Bolin, 764 N.E.2d at 207-08, emphasizes that a woman's pregnancy may be taken into account in calculating her own damages from the loss of her fetus in a negligence action. However, the same cannot be said for the father of an unborn viable child. We can discern no legitimate explanation for such disparate treatment that is reasonably related to the characteristics that distinguish fathers from mothers of unborn viable children. But that is a question left for another day. In sum, we hold that under our supreme court's interpretation of the child wrongful death statute in Bolin, as applied to these facts, the statute violates Article I, Section 23 of the
Indiana Constitution
CONCLUSION
We conclude that under Bolin, Horn may not bring a wrongful death claim under Indiana Code Section 34-23-2-1 because her viable fetus was not born alive. We also conclude that the Bolin opinion, as applied to these facts, renders the statute unconstitutional under the Equal Privileges and Immunities Clause of Article I, Section 23. The Article I, Section 23 issue was not raised or decided in Bolin. Nevertheless, because we do not hold that the statute is unconstitutional on its face but that it is unconstitutional as interpreted by our supreme court, we cannot reverse the trial court. Just as we have no authority to overrule Bolin directly, w
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