A Rooks County jury of 12 people will decide whether a baby in the womb felt conscious pain and suffering during a failed vacuum suction delivery.

Chief Judge Glenn Braun for the 23rd Judicial District in Hays made the ruling Wednesday during a hearing for pretrial matters. Attorneys for the hospital and the delivering physician argued vigorously against a jury deciding.

A jury decision later at trial, apparently the first of its kind in U.S. case law, could ultimately go up on appeal to a higher court, Braun acknowledged.

But for now it means the parents of the baby, Derek and Mireya Stiles, Hays, can go ahead with their $10 million wrongful death lawsuit against Rooks County Health Center in Plainville, and family medicine physician Beth Oller, of Stockton. The trial has been delayed indefinitely by the coronavirus pandemic.

“As you know,” Braun told the Stileses, the attorneys and a handful of observers in his second-floor courtroom at the Ellis County Courthouse, “the court is really struggling with this issue.”

“At 3 o’clock in the morning as I was thinking about this case, I kept wondering, why, why is there not case law on this issue?” Braun said.

In Kansas’ wrongful death statutes, the Legislature includes an unborn child but doesn’t specifically say a person in the womb can bring a claim for pain and suffering, Braun explained.

“The courts added the word ‘conscious,’ and then the courts never gave a definition of what consciousness is,” he said.

Attorneys for both sides told Braun they had found no case law that specifically addresses a child in the womb experiencing conscious pain and suffering.

John T. Bird and Todd Powell of Glassman Bird Powell LLP, of Hays, filed the lawsuit in Rooks County District Court and represent the Stileses.

David Wooding and Matthew Spahn of Martin Pringle Oliver Wallace & Bauer LLP, of Wichita, and Dustin Denning, of Salina, represent the hospital and Oller.

The Stileses brought the suit in October 2018 after their full-term baby, Eli, died from a number of failed attempts at a vacuum suction delivery on Aug. 20, 2016, at Rooks County Health Center. The suit says Eli Stiles was born after 16 hours of labor, then died 13 hours later at Wesley Medical Center in Wichita.

In his review of the case law, Braun said he found two cases, one in Hawaii and one in Pennsylvania, but they came down on opposite sides.

“It seems to me that it is a factual determination for the jury,” Braun said. “It is a question of fact for the jury as to whether Eli experienced conscious pain and suffering.”

From there, “if it goes up on appeal,” he said, “the courts may give us a definitive answer.”

The trial, scheduled for two weeks, was originally set to start Monday in the Rooks County Courthouse in Stockton.

The coronavirus has now delayed that indefinitely, as the Kansas Supreme Court ordered state courts into emergency operations. Only trials already underway can proceed.

Braun didn’t set a new trial date, noting, “We don’t know how long this is going to last.”

Leave it to experts

In his arguments, Wooding strongly objected to a jury deciding the consciousness question, saying it requires a medical expert’s opinion, saying the Stileses’ medical expert on vacuum suction delivery didn’t venture an opinion.

“How then can we expect 12 lay people to come to the proper decision?” Wooding said. “I just don’t understand how you can leave that to 12 lay people.”

Bird pointed out that every wrongful death case in Kansas is decided that way.

“They’re really saying, in this case, the baby could not have had pain because he has not completed the birth process,” Bird argued.

When Eli responded to the fetal heart monitor, argued Wooding, it was automatic and instinctive, not an indication of consciousness.

Bird argued there was evidence that Eli responded to pressure on Mireya Stiles’ abdomen, and said Eli would have felt the shearing of nerves, and shearing of his scalp from his cranium.

“The issue is still one for a jury,” Bird said. “Who knows what a 9-month-old person is thinking inside his mother?”

Issue of a fair trial

On another issue, Braun ruled that Mireya Stiles’ psychologist is an expert witness. As such, the psychologist’s testimony can support Stiles’ claim seeking damage money for future psychological counseling.

Wooding argued against that, saying that under Kansas’ rules of evidence, the psychologist shouldn’t give an expert opinion on the question. The Stileses’ attorneys, he said, hadn’t designated the psychologist an expert witness in their filings. Instead, he said, she was only a fact witness.

“We all play by the rules and we all know what the rules are,” Wooding said. “The plaintiffs are saying, ’Give us a pass.’ If it weren’t for the coronavirus, we would be trying this case in less than a week, and they wouldn’t have an expert.”

Braun replied, however, that everyone was aware of the psychologist as a fact witness.

“Yes,” Wooding agreed.

“They got all the records,” Bird confirmed.

“So there’s no surprise, no ambush,” Braun said. “The plaintiffs are saying, ‘It was an oversight on our part.’ So no surprise, no ambush. The rules are all set up with one goal in mind — a fair trial.”

Wooding argued there wasn’t time for him to prepare for the psychologist as an expert witness.

Braun indicated that would be true if the trial were starting Monday.

“But we haven’t even set a trial date,” he said. “We can give you all the time you need.”

Zoom to the rescue

Pursuing depositions for the defense, said the defense’s Denning, could take months to acquire, with busy attorney schedules and the virus situation.

Wooding also said that “things have ground to a halt with getting depositions and meeting with medical personnel.”

Bird suggested using the popular Zoom video-conferencing technology to hold meetings.

“I think we have a duty as a system to be very nimble on this,” he said, as well as protecting witnesses from exposure to the virus.

Braun said the 23rd Judicial District had already used Zoom during the week and told Denning to get the deposition by May 15.

Braun and the attorneys discussed the possible challenges of getting an adequate jury pool.

“This is much more long-term than we might want to believe,” Braun said.

The average age of Rooks County jurors is 51, Bird said.

“There are a lot of 70- and 80-year-old folks, and that’s pretty typical of northwest Kansas,” Braun said.

“I’m hopeful that everything will have blown over by this summer in terms of coronavirus,” Denning said.

“I’ve been hearing three to six to nine months until we can resume some period of normalcy,” said Braun.

He didn’t set a date for the trial.

“We don’t know how long this is going to last or what other issues we’re going to run into,” he said.

Braun said it was important to handle and wrap up as many details as possible before starting the trial and taking up the time of a jury.

For some citizens, serving on a jury is their only experience with the court system, he said, and he never wants to waste their time while lawyers argue in chambers.

“I think the jurors of Rooks County deserve that we present this in an orderly fashion,” Braun said, saying he wants to make sure that “when we finally do get to trial and the public health scare is gone, we’re ready.”