Harshaw v. Bethany Christian Services (714 F. Supp. 2d 771, 2010)

OPINION and ORDER

“Harshaw 7”

Denying Motion to Dismiss for Failure to State a Claim on Which Relief Can Be Granted

Denying Defendants’ Motion for SJ on Count 1, Parents’ Intentional Misrepresentation Claim

Denying Cross-Motions for SJ on Count 2, Parents’ Negligent Misrepresentation Claim

Denying Cross-Motions for SJ on Count 3, Parents’ Negligent Failure-to-Disclose Claim

Granting Summary Judgment to Defendants on Count 4, Minor’s Negligent Failure-to-Disclose Claim; Ending Roman Harshaw’s Participation as a Party Plaintiff in this Action

PAUL L. MALONEY, Chief Judge.

INTRODUCTION

This is a diversity tort case brought by Virginia citizens William “Chip” Harshaw and Julie Harshaw (“the Harshaws”) with respect to their adoption, initiated at a Virginia office and ultimately approved by a Virginia court, of a Russian boy. Applying Michigan choice-of-law rules, all claims and issues in the case are governed by the substantive law of Virginia. The Harshaws, a married couple, adopted their son Roman from a Russian orphanage under the auspices, and with the services of, defendants Bethany Christian Services of Hampton Roads (“BCS-HR”), Bethany Christian Services (“BCS”) and Bethany Christian Services International, Inc. (“BCSI”), all of whom are Michigan corporations with principal places of business in Grand Rapids, Michigan. On their own behalf, the Harshaws assert counts 1-3, common-law claims for intentional misrepresentation, negligent misrepresentation, and negligent failure to disclose. In their capacity as Roman’s parents and legal guardians, the Harshaws assert count 4, Roman’s claim for negligent failure to disclose medical information both before and after the adoption.

After extensive motion practice regarding diversity citizenship, the statute of limitations, and choice of law, the parties have filed dispositive motions on the merits of the controversy. The defendants move to dismiss counts 3 and 4 on the ground that Virginia does not recognize a cause of action for negligent failure to disclose. For the reasons that follow, the court will deny the motion to dismiss on both grounds. The defendants also move for summary judgment on all four counts, and the Harshaws cross-move for summary judgment on counts 2, 3 and 4. For the reasons that follow, the court will grant summary judgment to the defendants only on count 4 (Roman’s claim for negligent failure to disclose) and will otherwise deny the cross-motions for summary judgment.

BACKGROUND

In response to a BCS advertisement, the Harshaws attended an informational meeting at BCS’s regional office in Virginia Beach, Virginia on June 12, 2003, and the next day they submitted a preliminary application to adopt through BCS in Russia, China or Guatemala. The application stated that they would accept a child with “very minor medical problems and would not consider a child with moderate to severe medical problems.” They submitted an Application for International Adoption to BCS on June 18, 2003 which stated that they were “interested in parenting a child that [sic] has a positive prognosis for both mental and physical development.” Plaintiffs’ Complaint filed February 2008 (“Comp.”) ¶¶ 11-15 and Exs. A & B.

As part of a pre-adoption family assessment, BCS-HR interviewed the Harshaws together on July 11, 2003, then conducted individual interviews with Julie Harshaw on July 22, William Harshaw on July 25, and their six-year-old son Daniel on August 12, 2003. See P’s MSJ Ex. F (final Adoptive Family Assessment, dated August 22, 2003) at Bates Number BCS-000153. During this assessment period, the Harshaws signed an International Adoption Services Agreement, see Comp. ¶¶ 17-18 & Ex. C.

Allegedly relying on BCS’s claimed experience and expertise in international adoption, the Harshaws understood that if the assessment was favorable, BCS would act as intermediary and/or fiduciary on their behalf to effectuate an adoption. Id. ¶¶ 16 & 19. On August 22, 2003, BCS issued an assessment stating that the Harshaws “feel equipped to parent a child who may have a minor, correctable problem with a good prognosis for normal development.” It approved them to adopt a Russian child aged 12 to 36 months who had (at most) a “minor, correctable problem with a good prognosis for normal development.” Id. ¶¶ 20-22 & Ex. D. They paid BCS $16,000. Id. ¶ 24; see also Plaintiffs’ Reply Brief in Support of Motion for Summary Judgment on Counts 2, 3 and 4 (“P’s Reply”) Ex. FF (undated BCS document entitled “Fees Associated with International Adoption” and listing, inter alia, fees of $50 for preliminary application fee, $950 formal application, $800 adoptive family assessment, $750-$1500 Post-Placement Service, as well as $3,000 for “Processing of adoption through Bethany’s International Program”).

BCS representative Jeannie Walton initially referred a Russian child for the Harshaws, but the child had been severely burned by his mother and suffered medical problems as a result. The Harshaws declined and emphasized to BCS that they could only accept a child with minor, correctable conditions and a prognosis for normal development. Next, BCS provided them with Roman’s name, age, sex, and photograph; a two-page document said to be an English translation of Roman’s medical records at his orphanage; and an untranslated videotape showing what appeared to be Roman interacting with his caregivers in Russia. See Comp. ¶¶ 25-29 and Ex. E.

Doctor Dubrovsky’s Role.

Relying on the video and the purported summary of Roman’s medical records, the Harshaws told BCS they were willing to adopt Roman so long as BCS first provided any additional medical information about the boy. See Comp. ¶ 30. At Walton’s invitation, the Harshaws visited a BCS office to discuss the adoption. When they asked Walton whether Roman and the other Russian children they were considering were medically healthy, Walton responded that they were healthy,

and explained that a medical doctor associated with Bethany, referred to as “Dr. D,” had specific expertise in the evaluation of Russian children for the purposes of adoption and that Dr. D regularly examined the children in Russia on trips from his home in New York. Ms. Walton stated that Dr. D had examined Roman and that Roman was O.K. The Harshaws learned that the individual referred to as “Dr. D”, is Dr. Michael Dubrovsky.

Comp. ¶ 31. Dr. Dubrovsky earned his medical degree in Kiev, Ukraine, in the field of Adult Medicine, and he had no specialized knowledge or training in pediatrics, see P’s MSJ E (Dubrovsky Dep.) at 87:20 to 88:24. He stated that he received $9,500 for his work in Roman’s case, but he claims that he never reviewed or commented on any documents going back and forth between Russia and Bethany, never reviewed any medical information, and never translated any documents. Dr. Dubrovsky initially seemed to say that his only function in the entire adoption process was to serve as a conduit (in the words of plaintiffs’ counsel) or, as he put it, a “transfer person.” See P’s MSJ E (Dubrovsky Dep.) at 67:12 to 69:8. But Dr. Dubrovsky then explained that it is difficult to find people in Russia “who will work close to Western manner of job,” which means people, such as Yelena, who can bridge the gap between the “absolutely different mentality of United States people and Russian people and Russia[n] facilities,” which to him means being trustworthy, reliable, and patient with certain questions from prospective adoptive parents visiting Russia, see P’s MSJ E (Dubrovsky Dep.) at 69:9 to 70:23.

Allegedly relying on Walton’s assurances regarding Dr. Dubrovsky’s purported favorable examination of Roman et al., the Harshaws traveled to the orphanage in Krasnoyarsk, Russia in December 2003, with BCS representatives Aleksandr “Alex” Vladimirovich and Yelena Vladimirovna acting as interpreters and guides. They were permitted to see Roman for only about one hour. Noting that Roman looked thin and perhaps ill, the Harshaws asked interpreter Alex if Roman was okay; after consulting orphanage staff, Alex told the Harshaws that Roman had had bronchitis. The Harshaws asked for more information about Roman and his mother’s social and medical background, but Alex said none was available. They saw Roman for an hour the next day, then returned to America and met again with BCS’s Jeannie Walton. See Comp. ¶¶ 32-38.

When Walton asked how Roman looked and the Harshaws responded that he “appeared as if he might have been sick but otherwise appeared okay”, she reassured them that what they saw was common in institutionalized children, and his issues were minor and often resulted from malnutrition and crowded conditions. Walton asked if they wished to proceed, and they said yes. Id. ¶¶ 38-40.

2004: The Adoption and its Immediate Aftermath.

The next month, January 2004, the Harshaws returned to Russia to attend the final adoption hearing. When they took physical custody of Roman at the orphanage, they asked if there were any more medical records regarding Roman or his mother and were told there were none, and BCS never provided any additional medical information from then until after the adoption. See Comp. ¶¶ 41-44.

After the Krasnoyarsk Regional Court entered an Order of Adoption on January 27, 2004, the Harshaws took Roman home to America, where they soon noticed that he was not developing and acting normally for his age and reported health.

Dr. Dubrovsky recalled that sometime in 2004, at the request of an unspecified doctor, Bethany’s Judy Dalrymple asked him to check whether Roman had ever sustained a head injury; Dubrovsky conveyed the question to “a representative in Krasnoyarsk”, who checked with the orphanage, which sent an official letter stating that Roman had never sustained a brain injury. See P’s MSJ E (Dubrovsky Dep.) at 24:11-24.

December 2005: Two-Year Post-Placement Report

In a notarized Two-Year Post-Placement Adoption Report issued on December 5, 2005, Bethany adoption caseworker Jeanne Walton, MSW, and Hampton Roads Branch Director Karen Elseroad, LCSW, stated as follows:

A. CHILD’S ADJUSTMENT TO PARENTS, SIBLINGS AND CULTURE:

This worker observed Roman at the Bethany office with his parents and siblings, Daniel and Grace. Roman has formed a healthy bond with his family, and appears very comfortable in their presence. He is affectionate with his family and interacts freely with them. He has adjusted well to his family and environment. Roman attends a private preschool center five days a week and has adjusted nicely to this program. He has made new friends at his preschool. Recently, Roman has started hitting others and being defiant. His parents and preschool staff are using a reward system to encourage more positive behaviors and use a time-out for the misbehavior; these methods appear to be working. Roman goes to his parents for comfort, and they are responsive to his needs.

B. FAMILY’S ADJUSTMENT TO CHILD AND INCREASED RESPONSIBILITY; PARENTING SKILLS:

William and Julie are affectionate, approachable parents and they love their three children. Their daughter, Grace, was born December 10, 2004. William and Julie are employed, and work well together as partners to meet the needs of their family. They have two active boys and know that it is important for the boys to run and play. They like their new home, which has a fenced-in backyard and a playfort in the back. Roman loves sharing a bedroom with his older brother, Daniel. The boys like to play chase; they have learned to share their parents’ time and attention with Grace and enjoy giving their baby sister good-night kisses.

William and Julie are aware that children of Roman’s age want to be more independent. They add that Roman is a smart boy who tests the limits of acceptable actions. They talk with Roman about acceptable behaviors. They suspect that Roman’s behavioral issues may be connected to William being gone on brief trips for work.

C. CHILD’S DEVELOPMENT AND HEALTH:

Roman is a healthy, 3$ — year old boy who weighs 30 pounds and is 37$ inches tall. Roman can be described as hyperactive, smart, happy, and fearless. Roman is current on his immunizations. This past summer, Roman had tubes put in his ears to reduce the number of ear infections; this procedure also improved his hearing and speech. Roman understands what is said to him and he can speak in eight-word sentences; however, many times it is difficult to understand what Roman is saying. Roman sucks his thumb for comfort and out of habit, and it could be causing a problem with his teeth and formation of his words. Roman did fine on his developmental assessment and will be evaluated for speech therapy on December 22 [presumably 2005].

Along with being defiant/hitting, Roman has started waking up in the middle of the night; his parents comfort him and put him back to bed. Roman enjoys healthy foods — his favorites are salads, raisins, and pineapples. Roman is potty-trained. He has excellent gross motor skills and is very athletic. Roman is a busy boy who enjoys soccer, playing outdoors on the swingset, and playing in the water.

D.RECOMMENDATION:

This worker provided the family with two local resources that can assist in addressing Roman’s behavioral issues. Continued supervision.

P’s MSJ Ex. M (some paragraph breaks added)

January 2006: Neurodevelopmental Pediatrician Aiello Examines Roman.

In all, the Harshaws spent about a year and a half taking Roman to physicians and mental-health professionals to figure out what might be wrong, leading to a January 2006 examination by neurodevelopmental pediatrician Dr. Frank Aiello III, M.D., who suggested Roman might be suffering from fetal alcohol syndrome and ordered more testing. See Comp. ¶¶ 45-49.

June 2006: Neuropsychologist Federici Examines Roman.

Following three days of examination and tests in June 2006, Dr. Ronald S. Federici, Psy.D., clinical director of a “neuropsychological and family therapy” clinic in Virginia, diagnosed Roman with an alcohol/drug-related birth defect, identified as a fetal alcohol spectrum disorder causing neurocognitive and psychiatric abnormalities. See Comp. ¶¶ 50-51.

The Harshaws allege that throughout the 24 months following the January 2004 adoption, they expressed concerns to BCS’s social worker, during post-placement visits, about Roman’s medical, emotional and psychological condition and behavior. The BCS social worker responded that Roman’s problems were frequently associated with being institutionalized and that children adopted from such settings could “grow out of’ the problems with a loving family. See Comp. ¶ 59.

At an unspecified time in or after June 2006 (when Dr. Federici examined Roman), the Harshaws informed BCS of Federici’s diagnosis and asked for more medical information, which BCS stated would be difficult to retrieve. See Comp. ¶¶ 52-53.

September 2006: The Harshaws’ Communication with BCS’s Dalrymple

In September 2006, the Harshaws had an e-mail exchange with BCS in an attempt to learn more about Roman’s medical and family history. William Harshaw initiated the exchange on September 9, 2006, writing as follows:

I am following up on the attempt to gain the remaining medical/family history files on Roman’s behalf through Dr. Dubrovsky. Roman has begun preschool and is already showing signs of being well behind other children.

I also have to ask this question. Why are they only given an extract of his history, when the complete file could end up being very helpful for a boy like Roman, or even for a couple during the initial decision making process of an adoption? I ask this because the extract that we have was obviously only a portion of a document because, at the top of the first page we received begins with the a[sic] continued sentence from a previous page that was not included. I understand the previous pages may not have key info, but maybe they do, at least for a physician.

We are worried about Roman’s very excitable behavior and how far behind he is with his communication skills. As a result of this, [m]y wife and I have been doing a lot of research to help him. The more we research via the internet, the more we now understand that many many children out of the Russian orphanages have significant issues that are in many cases not correctable. These issues although very common, may not initially be obvious to persons like my wife and myself who have never been through [the] adoption process before. On the other hand, these issues should be obvious to an experienced physician if he or she takes time with a child. I say this because I clearly recall Jefajnnie [Walton] conveying to my wife and I that Dr. Dubrovsk[i]y had visited Roman[]s orphanage and indicated that he had met with Roman and felt Roman was healthy.

Do you knoiv if Dr. Dubrovsk[i]y actually sits down with the kids and speaks to them or spends any time with them? I ask this because we are getting the feeling that Roman[]s issues are a bit more than expected.

Again, my wife and I are committed to doing everything possible to get this information to Roman[’]s Dr. and he has again expressed his desire to review Roman[’]s history. He explained that some treatments may or may not be appropriate for a young boy like Roman depending on his history.

Because Dr. Dubrovsk[i]y works through Bethany and screens these children, I have to assume I must assume [sic] Bethany has some influence on him to insist on obtaining all of the records? Thank you again, and I look forward to hearing from you.

P’s MSJ Ex. I at Bates Number BCS-000441 (italics added for emphasis, some ¶ breaks added). Four days later, on September 13, 2006, BCS’s Judy Dalrymple responded as follows:

I was finally able to follow through with a contact with Michael Yurovich, Dr. Dubrovsk[i]y and another family who also adopted from the same orphanage. I have not been very successful in getting a possible course of action for you. Michael Yurovich (coordinator in Moscow) sees all the medicals [sic] that the children have from all regions as they come through Moscow and go to the clinic for their visa exam. His response was that the Embassy panel physicians require very little information and are satisfied with the short extract as long as it contains the information necessary for their purposes — tests that would make a child eligible or ineligible for a visa. Many children have the same short medical information [sic] that Roman had.

I contacted another family who adopted from this orphanage. She looked back at her information and it was the same as you had.

What the above two contacts tell me is that the amount of information you were given is considered “normal” or at least not unusual for a Russian adoption. I’m not saying it’s the way it should be or what would be most helpful to the parents and child but only that it’s not out of the ordinary. We do know from experience that prenatal records and hospital records are not transmitted to the orphanage in detail at the time a child is transferred to the orphanage. The same is true with family history. The information is most often simply not available at the orphanage. This is the best explanation that I have for why you were only given an extract of the medical file.

You asked about Dr. Dubrovsk[i]y’s role prior to Roman’s adoption. He is a coordinator of many of our Russian regions as well as Ukraine, Kazakhstan, and Uzbekistan. He is not an employee of Bethany but works with us to facilitate the adoption process. He supervises the staff there and does review all the available medical records before we present children to the families. The advantage is his understanding of Russian medical terminology and culture. When we first began to work in Russia, it did happen more often that he would see the children.

For the last two years, it has been prohibited for representatives to see the children. He didn’t personally examine the children as a physician even though he may have visited the orphanage and talked with the director. As I look back on the pictures we received of Roman and the information available, there was no indication either to him or to us of more significant medical issues other than the normal risk with international adoption and the possibility of unknown or incorrect social/medical history on all children placed.

My conversation with Dr. Dubrovsk[i]y regarding your current situation did explain a bit more. He said [that] immediately after the adoption all the orphanage records and court records are sent to an archive and sealed. The court will not re-open this. It is considered impossible for this to be accessed. We (Krasnoyarsk staff) will try on our own to [contact] orphanage staff to see if anyone remembers Roman or any more information about him. Perhaps there is a copy of the original extract in Krasnoyarsk which would contain what appears to be a missing page. Dr. D will talk with- Yelena (the coordinator who assisted you in Krasnoyarsk) about this. If this is not successful, we will review with the Krasnoyarsk people any other possible options.

We are truly sorry for the challenges you are facing with Roman and pray that there will be some answers for you from the specialists. I know that you love him and it is out of this concern that you pursue these questions.

Allow me to express another thought. As you consider a holistic approach to meeting Roman’s needs, it may be beneficial to consider having Roman evaluated by a counselor/therapist (someone knowledgeable about adoption issues of grief and loss) and by a team approach (occupational therapist, speech therapist, and the like, if you haven’t recently had this done). There may be an emotional piece of the picture that could be addressed and a therapist could help shed light on this area. Roman experienced significant changes in his life at a time when he didn’t have the verbal skills to express what he was feeling. These emotions can be manifested through behaviors, habits, and delays; special attention and assistance may be needed to address these issues. Please feel free to contact either [BCS-HR Adoption Caseworker] Jeanne [Walton] or myself. Jeanne would be a better source for recommendations in your area.

P’s MSJ Ex. I at Bates Number BCS-000440 (italics added for emphasis, some ¶ breaks added).

October 2006: BCS Provides Additional Medical Information.

After the Harshaws persisted in requesting more medical information, in October 2006 BCS provided two items which they had not previously provided: a ten-page Russian-language extract of Roman’s medical records and history, and a six-page English translation. See Comp. ¶¶ 54-55 and Ex. F. The Harshaws allege that BCS either had these two documents in its possession all along (i.e., before the adoption was completed) or could and should have obtained them for review, translation and delivery to the Harshaws before they made their decision whether to adopt Roman. Id. ¶¶ 56-57. The Harshaws allege that they relied on BCS to provide all information reasonably available to it and if BCS had done so, they would not have pursued Roman’s adoption. Id. ¶¶ 58 and 64-66. They also state that if BCS had provided complete, accurate medical information and appropriate post-placement assistance, they could have diagnosed Roman’s condition earlier and started providing more-appropriate treatment earlier. Id. ¶ 67.

June 2009 EEG and Neurologist White’s Report Thereon.

On June 1, 2009, Roman underwent a 19-channel electroencephalogram (“EEG”) at Children’s Hospital of The King’s Daughters in Norfolk, Virginia. The EEG yielded the following report by

Dr. L. Matthew Frank, M.D., and Larry E. White, M.D.:

DESCRIPTION: * * * The awake state is characterized by an 8-9 Hz occipital rhythm which is moderate in amplitude, bilaterally symmetric, and reactive to eye opening. Photic stimulation elicits symmetric driving. Hyperventilation for three minutes produces high amplitude slowing.

During light sleep, spindles and vertex activity are seen as well as moderate-to-high amplitude right central-temporal biphasic spike-and-wave activity which is not associated with any clinical changes. Occasionally, there is spread to the left hemisphere, but no independent epileptiform activity is seen in the left hemisphere. No clinical spells are witnessed. INTERPRETATION: This EEG is compatible with central-temporal epilepsy. It is not uncommon initially to see epileptiform discharges in only one hemisphere. Spikes of this type can be seen in the absence of clinical seizures, depending on the family situation. There is no slowing associated with the discharges, so it is unlikely that they are due to occult white matter injury, such as one might see in syndromes, former prematurus, or some other encephalopathy [any degenerative disease of the brain, DoRLAnd’s IllustRated Medical DictionaRY 610 (30th ed. 2003) ].

Defs’ Reply Ex. A. Child neurologist Dr. White wrote this explanation of the June 2009 EEG on October 22, 2009:

His EEG showed centrotemporal spikes. Subsequent MRI -brain was normal. To my knowledge, he has never had a clinical seizure.

My opinion is still that the abnormal EEG does not constitute a diagnosis of epilepsy, which is a clinical diagnosis based on clinical seizure events, which this child has not had. I am not aware of any direct association between his EEG abnormality and fetal alcohol syndrome as an entity. I would consider the EEG abnormality and fetal alcohol syndrome two separate problems.

Defs’ Reply Ex. B. The record does not reflect whether Roman has undergone any additional EEGs since June 2009.

Neuropsychologist Burns’s September 2009 Report After Review of Medical Record.

More broadly, neuropsychologist Thomas Burns, Psy.D., ABPP/ABCN, reviewed an extensive medical file for Roman, depositions of the Harshaws and Dr. Holland, and photos and video of Roman. In September 2009, Dr. Burns provided a useful overview of Roman’s medical records, examinations, testing, apparent condition, treatment, and the like over the course of his life in America, including the abnormal June 2009 EEG:

Following a detailed review of the records in this case, R did not appear to have dysmorphic characteristics in his initial video that was taken in the orphanage. It is also surprising that R was functioning within the low average range of ability and then proceeded to experienced marked behavioral and cognitive deficits almost one year after his adoption. While R meets many of the criteria for FAS and this appears to be evidence for this diagnosis, there are other possible etiologies to consider as well.

The medical records provide no information with regard to maternal alcohol use during the pregnancy. Medical records indicate that R[’s] biological mother was incarcerated for theft. However, there is no information regarding whether she was incarcerated during or after the pregnancy. It is unlikely that she would have access to consuming alcohol if she was incarcerated during her pregnancy. Despite the absence of background information regarding R[’]s mother, a diagnosis of FASD can still be considered given the fact that the other criteria are met. In review of the pediatric records by Dr. Deborah Holland, MD there is evidence for low weight (< 5th percentile) shortly after R was adopted at 2 years of age. His motor skills appeared well developed but there was evidence for speech delay that was noted following what was expected from inadequate stimulation in the orphanage. At R 3 year visit to the pediatrician, he was noted -to be “in constant motion” with speech dysfluency and his height placed him at the 20th percentile and 10th percentile for weight. R also had myringotomy tubes inserted in his ears three times which may have exacerbated the hearing and speech issues that were identified.

By 4 years of age, R height was consistent but his weight had dropped < 5th percentile. It is notable that he was prescribed stimulant medication (Meta-date & Dexadrine) by Frank Aiello, III, MD at that time. Stimulant medications are commonly associated with a side-effect of decreased appetite and weight loss. Dr. Aiello provided a consultation to R in January of 2006, when he was almost four years of age and there was concern raised over the possibility of fetal alcohol effects as he noted mild facial dysmorphia, microcephaly, AD/HD and symptoms of oppositionality based on his mother’s self-report of R behavior. He reported no problems with motor function, as he reported a normal motor exam on his initial evaluation. Subsequent genetic testing was negative for Fragile X and FISH analysis.

Dr. Aiello yielded the following diagnoses: (1) Manic Depressive Syndrome, (2) AD/HD Combined Type, (3) Fetal Alcohol Syndrome, (4) Speech Disorder, and (5) Microcephaly.

In a recent progress note (2008) by Eric Madren, MD, family practice doctor, R was followed for his behavioral and cognitive changes. There is reference to “Heavy Metal Toxicity as indicated by abnormal results on urine testing”. There was also a reference to 6 metallic crowns on R teeth as well but no clarification for how these results were correlated. There was no mention of this differential consideration in any other notes, including reports from R other providers. It is unclear if there was ongoing concern regarding heavy metal toxicity again in the medical records. Since 2006, R has been prescribed the following medications: (1) Metadate (Attention), (2) Risperdal (Behavior), (3) Depakote (Behavior/Mood), (4) Trileptal (Behavior/Mood), (5) Concerta (Attention), (6) Focalin (Attention), (7) Ability (Agitation), (8) Zoloft (Mood Changes), (9) Melatonin (Sleep), and most recently there is consideration of (10) Lithium being utilized to this list of medications being prescribed for Roman.

Recently (06/01/09), there is a record of an abnormal EEG that was described in the Medical Records at Children’s Hospital of the King’s Daughters. The EEG was “compatible with central-temporal epilepsy.” The epileptologist stated in the report: “It is unlikely that they [seizures] are due to occult white matter injury, such as one might see in syndromes, former prematuras, or some other encephalopathy.”

This statement is in marked contrast to a recent note by Dr. [Ronald] Federici [Psy.D.] claiming that R suffered from “static encephalopathy.” There is question as to whether there is more than one etiology affecting R[’]s current condition. The exact etiology of his seizures is unclear. The National Institutes of Neurological Disorders and Stroke (2009) define a seizure disorders [sic] in the following way:

“The developing brain is susceptible to many kinds of injury. Maternal infections, poor nutrition, and oxygen deficiencies are just some of the conditions that may take a toll on the brain of a developing baby. These conditions may lead to cerebral palsy, which often is associated with epilepsy, or they may cause epilepsy that is unrelated to any other disorders. About 20 percent of seizures in children are due to cerebral palsy or other neurological abnormalities. Abnormalities in genes that control development may also contribute to epilepsy. Advanced brain imaging has revealed that some cases of epilepsy that occur with no obvious cause may be associated with areas of dysplasia in the brain that probably develop before birth.”

There appear to be a number of diagnostic considerations across the many providers that have treated R. This has included mention of cerebral palsy as well as significant behavioral dysregulation. While [sic, should be “given that”] growth delays, language difficulties, and overall developmental delay is [sic, should be “are”] not uncommon to a child who lived in an orphanage and was exposed to another language in infancy, it is not surprising that some of these issues are present.

However, the fact that there has been dramatic decline in R ability across intellectual, cognitive, and emotional measures raises concern. While many of the cognitive symptoms and behavioral issues may be consistent with the reported ARND [alcohol-related neurological disorder?], it is not clear that all differential diagnostic considerations have been pursued. This could include neuroimaging studies (i.e., MRI of the brain), further genetic testing (i.e., mieroar[r]ay), neurological consultation and efforts to better understand R’s inconsistent performance in school and at home.

Baseline Psychological Assessment:

There was a psychological assessment that was completed by the Virginia Beach Public School System when R was 38 months of age. R performed within the low average range of intellectual functioning (WPPSI-III) and he was not found eligible for special education services in preschool. His personal-social domain score was also low average on the Batelle Developmental Inventory-II. Adaptive and motor skill were average for age.

He did, however, display signs of inattention on the Behavior Assessment System for Children which was completed by his mother. No other cognitive areas were in the abnormal range. In fact, his articulation was normal for [his] age. Low average auditory comprehension was also consistent with intellectual testing. Borderline scores were found on measures of expressive communication which enabled R to be eligible for speech and language services at school. A follow-up assessment was completed in May of 2006 after obtaining a diagnosis of FAS [Fetal Alcohol Syndrome] and AD/HD [Attention Deficit/Hyperactivity Disorder]. R performance dropped into the impaired range on tests of intellectual ability (DAS), as he performed consistently below the 1st percentile. Retesting with the WPPSIIII only days later yielded borderline-low average intellectual scores (which were consistent with initial baseline testing).

The school psychologist, Karen Jackson, NCSP noted variable performance from R based on his behavioral presentation. Further review of the records revealed that R teacher at his school were concerned over his attention, atypical behaviors, and anxiety. However, she noted average performance across the other behavioral scales.

In contrast, his parents reported clinically significant problems across most all [sic] of the behavioral rating scales. During this same time period, his speech pathologist at school stated; “It is unclear if R medication had any adverse effect on the results of his speech and language evaluation”, as he was undergoing medication changes during this period of testing.

Ongoing Assessments of Ability

R was first evaluated with a neuropsychological evaluation in June of 2006 by Ronald Federici, Psy.D. He provided the following diagnoses regarding R: (1) Cognitive Disorder, (2) Severe Mixed Receptive-Expressive Language Disorder, (3) Phonological Disorder, (4) Learning disorder NOS [not otherwise specified], (5) Developmental Motor Coordination Disorder, (6) Attention Deficit / Hyperactivity Disorder, (7) Pervasive Developmental Disorder. He also diagnosed (8) Static Encephalopathy [“a non-progressing ‘degenerative disease of the brain’ in which the degeneration at issue has slowed or ceased” ].

Despite a very detailed report of scores, there is insufficient raw data to support the summary of scores that is provided in the report. For example, most of the self-report data that was completed in the assessment is available (Achenbach Behavior Checklist, Autism Behavior Checklist, Sensory Profile, the AD/HD Test); however, many of the cognitive tests were not made available to this reviewer. These test[s] included the following:

Stanford Binet Intelligence Test-IV— no supporting data produced

Preschool Language Scale-4— no supporting data px'oduced

Test of Language Development-3— no suppoi'ting data px'oduced

Peabody Picture Vocabulary Test-Ill— no suppoi'ting data produced

Token Test-no supporting data produced

Wide Range Assessment of Visual Motor Abilities no suppoi'ting data px'oduced

Test of Auditory perceptual Skills— no supporting data px'oduced

NEPSY Developmental Assessment— no supporting data produced

Developmental Tasks for Kindergarten Readiness no suppoi'ting data px'oduced

In sum, of the 21 tests that were scored and reported in the 2006 report, only 58% of the supporting data was present. This makes it extremely difficult to support the seven diagnostic categories described above. In forensic eases, it is not atypical to review the data from other neuropsychologists. While there appear to be obvious developmental concerns related to R, the absence of this data make[s] it difficult to interpret and understand how those diagnoses are supported.

In August of 2007, R was assessed by an occupational therapist and was noted to have sensorimotor delays. Despite previous assessments by his doctors that claim he had normal sensory and motor function, there appeared to be considerable decline in his ability.

R was reassessed by Dr. Federici again in 2008 and reportedly demonstrates continued cognitive decline. Despite parental concerns regarding global developmental delays, R was apparently not responsive to Metadate, Concerta, Adderall, or Zoloft. R was prescribed Risperdal and Depakote while he was examined and “was out of control much of the time,” according to Dr. Ferderici [sic].

The following diagnoses were added to the list from 2006 in Dr. Federici’s 2008 report:

(1) Dementia due to Encephalopathy related to Alcohol-Related Neurodevelopmental Disorder, and (2) Organic Mood Disorder, Bipolar type.

Many of the neurocognitive tests were not available from this [2008] testing as well. This included the following measures:

Test of Language Development-3 four subtests are missing from the data

Test of Auditoi'y Pei'eeptual Skills-Revised no suppoi'ting data px'oduced

NEPSY Developmental Assessment no supporting data px'oduced

Developmental Tasks for Kindei'gai'ten Readiness no suppoi'ting data produced

Again, it is difficult to support the scores in the [2008] report with raw data that is not able to be reviewed. In a packet that was sent to R teachers, there is a note from R mother which states:

“Dr. Federici — There are many ratings the teacher gave R that I do not agree with at all. For example, speaking clearly and connected she said ‘almost always.’ This couldn’t be further [from] the truth!”

This discrepancy between the teacher and parent report was not addressed in this assessment. The teacher provided the following comments:

“R can verbally state our classroom rules and can tell you the consequences of not following class rules. He will go to our ‘thinking chair’ to think about the choices he makes when he does not follow class rules. He does not want to go to the thinking chair, so with a verbal reminder about our rules, he will adjust his behavior. R is like a sponge. He is able to absorb information and retains information.”

R teacher goes on to explain that his behavior often gets in the way of his success and noted that her goal was to mainstream R with the general education students but this was not possible due to his behavioral acting-out. His diagnosis at school was Developmentally Delayed at that time. While there is [sic] inconsistent behavior and reports documented, it does not take away the fact that R is suffering from issues related to his cognitive decline and difficulty with behavioral control.

R was assessed most recently in 2009 by Dr. Federici. The protocols for the brief assessment were included and reviewed, with the exception of the NEP-SY. Testing from the intellectual measures denotes impaired levels of functioning across the entire assessment. In a letter dated August 3rd, 3009, Dr. Federici explains to Mr. Totaro that he “saw no professional need to use a full scoring sheet, when there were no scores to report.” [Federici] also highlights that “ALL actual raw data is included on the ‘face scoring sheet[’] and in the body of the report.” However, even in the most recent assessment in 2009, there were 14 separate subtests administered with over 40 questions administered with no record of the response from R. Again, this has made it difficult to comment on the credibility of these measures. Since the data cannot be reviewed in this case, there is a need to pursue a neuropsychological assessment that can document the test findings which are in concert with the interpretations.

Defs’ Reply Ex. D (Report of Dr. Thomas Burns, Psy.D., dated Sept. 10, 2009) at 5-8. Neuropsychologist Burns’s September 2009 report summarized Roman’s apparent condition and prognosis as follows:

[I]t remains in question as to whether R H meets the necessary criteria to be diagnosed with Fetal Alcohol Syndrome. He seems to have many features of a central nervous system disorder, whether genetic and/or substance induced. Despite the neurological, genetic, and environmental factors that may be influencing his progressive decline in ability, there is considerable evidence that he has significant cognitive and emotional decline.

As discussed above, a direct link of developmental delays and behavioral difficulties can not be assumed based upon observation without other medical factors being ruled out. While there appears to be information that would support a diagnosis of ARND [alcohol-related neurological disorder?], R deserves the chance to rule out any other etiology or contributing factor. Regardless of etiology, it appears that R has developmental challenges that would not be atypical based upon his early exposure to a R[ussian] orphanage and the associated developmental issues that co-occur with this transition. However, from 2006 to the present, there has been evidence of significant cognitive and behavioral limitations that may not be entirely consistent with ARND.

It is important to note [that] the language issues are expected and often a challenge in the early years of the adoption process. At this point in time, more differential diagnostic work needs to be completed.

Defs’ Reply Ex. D (Report of Dr. Thomas Burns, Psy.D., dated Sept. 10, 2009) at 9-10. Neuropsychologist Bums’s September 2009 report concluded ivith these recommendations:

1. R would benefit from a consultation with a pediatric neurologist/epileptologist who can provide expertise regarding his seizure disorder and [its] link to his behavior and cognitive function. This individual needs to have expertise within the area of epilepsy so that recommendations for pharmacotherapy [prescription of yet more drugs] can be provided.

2. An MRI of the brain is needed. This can provide the structural data that may help to explain the progressive loss in R’s cognitive capability.

3. R would benefit from a microarray genetic test to rule out a genetic etiology to his current condition.

4. A psychiatric consultation would be helpful in managing R’s current medication regimen.

5. A Neuropsychological evaluation is recommended. Careful consideration of test-retest effect will have to be considered. Given the inability to review the raw data from the past neuropsychological reports by Dr. Federici, I would recommend that I complete a comprehensive neuropsychological assessment of R.

Defs’ Reply Ex. D (Report of Dr. Thomas Burns, Psy.D., dated Sept. 10, 2009) at 11.

PROCEDURAL HISTORY: Harshaw 1 through Harshaw 6

In the January 2008 complaint, the Harshaws assert three claims on their own behalf:

Count 1 Fraud/intentional misrepresentation (Comp. ¶¶ 68-83)

Count 2 Negligent misrepresentation (Comp. ¶¶ 84-94)

Count 3 Negligent failure to disclose (Comp. ¶¶ 95-99)

They assert one claim on behalf of Roman, who is still a minor: count four, negligent failure to disclose (Comp. ¶¶ 100-104). They allege that after Roman’s adoption, BCS admitted it had “misinformed” the Harshaws by providing “unclear” medical information during the adoption process, and that Dr. Dubrovsky never examined Roman as it had represented. Id. ¶¶ 60-61. On each count, the Harshaws seek $75,000 in compensatory damages plus punitive damages, interest, and attorneys’ fees, and demand a jury trial. Id. at 15-19 (prayers for relief). The defendants answered in April 2008 (Docs. 6 & 8).

From October 2008 through June 2009, the parties conducted discovery and the Magistrate Judge resolved discovery disputes, see Docs. 17-78. In September 2009, the Harshaws filed a motion to compel production of documents requested in their second and third sets of requests for production, BCS filed an opposition brief, and pursuant to 28 U.S.C. § 636(b)(1)(A) the matter was referred to the Magistrate, who held a hearing and granted in part the Harshaws’ motion to compel, see Docs. 112, 113, 125 & 128. In October 2009, the Harshaws served the reports of experts Julian Davies M.D., and Andró Zangaladze, M.D., Ph.D., see Docs. 135-136.

In December 2009, the Harshaws moved to compel the deposition of Dr. Holland, BCS’s John Wynbeek, BCS’s Judy Dalrymple, and a BCS Executive Committee designee (Docs. 172-175); after entertaining the defendants’ opposition brief (Doc. 177) and hearing oral argument (Doc. 181), the Magistrate Judge granted the Harshaws’ motion, and in January and February 2010 they noticed the deposition of those four individuals (Docs. 187, 192, 196, 197, 213 and 214).

In September 2009, BCS filed a motion to dismiss or for summary judgment on counts one, two and three — the parents’ common-law claims for fraud/intentional misrepresentation, negligent misrepresentation, and negligent failure to disclose— on the ground that they are barred by the statute of limitations in Michigan and Virginia. This court denied BCS’s unjustifiably late request for leave to amend their answer to assert the defense that counts 1-3 are barred by statutes of limitation, determining that BCS did not show good cause for failing to move for leave to amend before the deadline which the CMSO imposed. See Harshaw v. Bethany Christian Servs., Inc., No. 1:08-cv-104 Doc. 179, 2009 WL 5149925 (W.D.Mich. Dec. 15, 2009) (Maloney, C.J.) (‘Harshaw 2”). In January 2010, this court denied the defendants’ motion for reconsideration because it was both untimely and merit-less. See Harshaw v. Bethany Christian Servs., Inc., No. 1:08-cv-104 Doc. 205, 2010 WL 331708 (W.D.Mich. Jan. 22, 2010) (“Harshaw S ”).

On October 1, 2009, BCS moved to dismiss for failure to state a claim and/or for summary judgment on the merits of all four claims, urging application of Virginia substantive law; the Harshaws filed an opposition, and BCS replied. See Docs. 130-31 and 138 & 166. The Harshaws cross-moved for summary judgment on the merits of claims 2-4, urging application of Michigan substantive law; BCS filed an opposition, and the Harshaws replied. See Docs. 132-133, 139 and 166. Those are the motions dealt with today, below.

Separately, in January 2010, the defendants moved for an order declaring that Virginia substantive law governs all the Harshaws’ claims (Doc. 207); as ordered by the court (Doc. 210), the Harshaws filed an opposition (Docs. 215-216). In February 2010, this court granted the defendants’ motion and held that Michigan choice-of-law precedents call for application of Virginia substantive law to the Harshaws’ claims. See Harshaw v. Bethany Christian Services, Inc., No. 1:2008-cv-104 Doc. 229, 714 F.Supp.2d 751, 2010 WL 774321 (W-D.Mich. Feb. 25, 2010) (Maloney, C.J.) (“Harshaw 5 ”). The Harshaws filed a motion for reconsideration (Docs. 235-236); after receiving an opposition brief (Doc. 244), the court denied reconsideration in April 2010, adhering to the determination that Virginia substantive law applies. See Harshaw v. Bethany Christian Services, Inc., No. 1:2008-cv-104 Doc. 249,- F.Supp.2d -, 2010 WL 1692833 (W.D.Mich. Apr. 26, 2010) (Maloney, C.J.) (“Harshaw 6 ”).

Finally, that same April 2010 opinion (“Harshaw 6 ”) resolved a dispute over the citizenship, for diversity purposes, of defendant BCS-HR. In 2009, the Harshaws had moved to voluntarily dismiss BCS-HR without prejudice, on the ground that its presence as a seemingly non-diverse, non-indispensable party would defeat this court’s jurisdiction. This court granted the Harshaws’ motion, but conditioned the dismissal of BCS-Hampton Roads on the Harshaws reimbursing the defense for the legal fees and costs incurred due to their erroneous inclusion of that party in this lawsuit. See Harshaw v. Bethany Christian Services, No. 1:2008-cv-104 Doc. 85, 2009 WL 2232740, *3-9 (W.D.Mich. July 22, 2009) (Maloney, C.J.) (“Harshaw 1 ”). However, in February 2010, the United States Supreme Court held that for purposes of diversity jurisdiction, a corporation’s principal place of business (“PPB”) is its “nerve center.” See Hertz Corp. v. Friend, — U.S.-, 130 S.Ct. 1181, — L.Ed.2d - (2010). The Court expressly overruled our circuit’s “total business activities” test. Applying the nerve-center test as described in Hertz, the court found that BCS-HR’s principal place of business is Michigan, not Virginia as it appeared under the former total-activities test and the evidence presented to the court the previous year:

Against [substantial] documentary and testimonial evidence that the Grand Rapids office in fact directed, controlled and coordinated BCS-HR’s activities in significant ways, and that BCS-HR and BCS themselves treated BCS-HR more like a branch office than a truly independent subsidiary or affiliate, the defendants offer insufficient counterweight. Accordingly, pursuant to Fed.R.Civ.P. 21, the court will grant the Harshaws’ motion to reinstate Bethany Christian Services of Hampton Roads, Inc., as a party defendant.

Harshaw 6, — F.Supp.2d at -, 2010 WL 1692833 at *27 (footnotes 8 and 9 omitted). The court stressed that when it spoke of BCS-HR’s relative lack of corporate independence from BCS and BCSI, it did so

only in terms of Hertz’s “control, direction and coordination” test for PPB for purposes of corporate citizenship under 28 U.S.C. § 1332(c). The court intimates no opinion as to whether BCS-HR is an alter ego of BCS and/or BCSI, as the two standards are not necessarily the same. Hertz is federal precedent and will be applied and interpreted by federal courts determining federal diversity jurisdiction. In contrast, alter ego status is typically determined by state law. In developing its State’s common law governing alter ego determinations, state courts would not be bound to consider Hertz or federal decisions interpreting it.

Harshaw 6, — F.Supp.2d at - n. 8, 2010 WL 1692833 at *27 n. 8. Finally, the court required the defendants to reimburse the Harshaws — with interest at the rate specified in Va.Code Ann. § 6.1-330.54, for the amount which the Harshaws previously paid the defendants as a prerequisite to the voluntary dismissal without prejudice of BCS-HR. Id. at -, at *27

Motion to Dismiss the Entire Complaint for Failure to State a Claim

The defendants have moved to dismiss the entire complaint for failure to state a claim, or in the alternative for summary judgment on all four counts; the Harshaws have cross-moved for summary judgment as to counts 2, 3 and 4 only. For the reasons that follow, the court will deny BCS’s motion to dismiss, but will grant summary judgment to the defendants on count 4 (Roman’s claim for negligent failure to disclose).

Preliminarily, when the defendants filed this motion, there were only two defendants in the case, BCS and BCSI. The Harshaws, who are Virginia citizens, had voluntarily dismissed BCS-Hampton Roads without prejudice because it appeared that BCS-HR (a Michigan corporation) had its principal place of business in Virginia, destroying diversity. BCS and BCSI sought to dismiss the entire complaint on the premise that it contained no allegations of specific wrongdoing by them, only by BCS-HR personnel, and BCS-HR was no longer in the case. Subsequently, the Harshaws obtained additional information in discovery relevant to the determination of BCS-HR’s PPB, and the Supreme Court in Hertz (Feb. 2010) overruled our Circuit’s PPB standard. Applying the new legal standard and taking into account the new information, this court recently reconsidered and determined that BCS-HR’s PPB is Michigan, making it diverse from the Harshaws. Accordingly, the court granted the Harshaws’ motion to reinstate BCS-HR as a party defendant, negating the aforementioned argument for dismissal of the entire complaint.

MTD Counts 3 and 4 for Lack of Cause of Action under Virginia Law

The defendants then moved to dismiss counts 3 and 4 (the parents’ claim for negligent failure to disclose, and minor Roman’s claim for negligenee/negligent failure to disclose) for failure to state a claim, on the premise that Virginia does not recognize such a cause of action. A review of Virginia state case law defeats this argument. The court will hold that Virginia does recognize a cause of action for negligent failure to disclose in other contexts, and that the Virginia Supreme Court would most likely recognize a legal duty to disclose which runs from the adoption agency to the adopted child, i.e., it is judicially redressable by and for the adopted child in his own right.

Precedential Value of Virginia Decisions.

Before investigating Virginia’s substantive law, the court must discern its rules on the precedential value of decisions, because a federal court must accord the same precedential value to a state-court decision as it would be accorded by that state’s courts. See Mutuelle Generale Francaise Vie v. Life Ass. Co. of Pa., 688 F.Supp. 386, 397 n. 15 (N.D.Ill.1988) (“[0]ne Supreme Court decision (Fidelity Union Trust Co. v. Field, 311 U.S. 169, 61 S.Ct. 176, 85 L.Ed. 109 (1940)) ... required a federal court to ascribe the same precedential force to a New Jersey trial court decision that such a decision would receive in that state’s court system under the peculiarities of New Jersey law.”); King v. Order of United Commercial Travelers of America, 333 U.S. 153, 161, 68 S.Ct. 488, 92 L.Ed. 608 (1948) (“a federal court adjudicating a matter of state law in a diversity suit is, in effect, only another court of the State; it would be incongruous indeed to hold the federal court bound by a decision which would not be binding on any state court.” (citation omitted)).

In Virginia, unpublished Court of Appeals decisions generally lack precedential value. See Sheets v. Castle, 559 S.E.2d 616, 263 Va. 407 (Va.2002) (citing Va Code Ann. § 17.1-413A, which provides in pertinent part, “Opinions designated by the court of appeals as having precedential value or otherwise having significance for the law or legal system shall be expeditiously reported in separate Court of Appeals reports in the same manner as the decisions and opinions of the Supreme Court.”). In certain circumstances, however, an unpublished Court of Appeals decision can acquire precedential value when the Virginia Supreme Court denies the losing party’s petition for review. The Virginia Supreme Court has explained its reasoning in this area as follows:

With the exception of cases with procedural defects and the limited number of cases for which appellate review by the Supreme Comb of Virginia is dependent upon a substantial constitutional question as a determinative issue or matters of significant precedential value (Code § 17.1-410 and -411), the refusal of a petition for appeal constitutes a decision on the merits. See ... Dodson v. Director, 233 Va. 303, 355 S.E.2d 573, 576 n. 5 (1987) (“[i]n Virginia, aside from appeals from a capital murder conviction, criminal appeals to both the Court of Appeals and to this Court are discretionary, and ‘a decision to grant or refuse a petition [for appeal] is based upon one equally-applied criterion — the merits of the case.’ ”).

While a decision “on the merits”, including a denial of a petition for appeal, may have precedential value, discerning the grounds that formed the basis for denial is indispensable in assessing its potential applicability in future cases. Most often the refusal of a petition for appeal merely recites:

Upon review of the record in this case and consideration of the argument submitted in support of and in opposition to granting an appeal, the Court is of [the] opinion [that] there is no reversible error in the judgment complained of. Accordingly, the Court refuses the petition for appeal.

From such an order, the grounds upon which the Court relied as a basis for denial cannot be determined. While it may be that there is simply no error found, there are several other possibilities. To name but a few of the several possible grounds, the trial may have been in error, but the error was harmless. The trial court may have been in error, but the court reached the correct result ... for the wrong reason. The trial court may have [been] in error, but that there exists an independent basis for the trial court’s judgment that has not been argued as error. * * *

We restate that, with the exceptions previously mentioned, the refusal of a petition for appeal is based upon the merits of the case. However, unless the grounds upon which the refusal is based is discernible from the four comers of the Court’s order, the denial carries no precedential value.

To hold otherwise would result in bench and bar sifting through the records of cases buried in the office of the Clerk of the Supreme Court of Virginia or the clerk of the circuit court to affirm or contradict speculative assertions of the reason for the Court’s denial of petitions for appeal. Such unreliability and lack of clarity is not countenanced in our jurisprudence.

Sheets, 559 S.E.2d at 619-20, 263 Va. at 412 (emphasis added) (internal citations and quotation marks omitted). Thus, like Virginia trial courts, this court in interpreting Virginia law will be bound by (1) the decisions of its Supreme Court, (2) the published decisions of its Court of Appeals, and (3) any unpublished Court of Appeals decisions where the Virginia Supreme Court denied a petition for appeal, and it is possible from the face of its order to discern that the basis for the denial was endorsement of some or all the lower court’s reasoning. The court will consult other unpublished Virginia Court of Appeals decisions, as well as Virginia circuit court and trial-court decisions, particularly if there is a dearth of published precedent on point, but will not be bound by them. Less still will the court be bound by any federal court’s interpretation of Virginia law.

Substance of Virginia Law on Cause of Action for Negligent Failure to Disclose.

BCS contends that Virginia does not recognize a cause of action for merely-negligent failure to disclose. This court disagrees and holds that the Virginia Supreme Court would likely recognize such a cause of action. The recognition would be premised on recognizing an adoption agency’s common-law duty to disclose medical and family records which the agency possesses or has reasonable ability to obtain or request. This duty would manifest itself differently as time passed and events occurred in the life of the adopted child. First, the agency would have a duty to disclose such information to prospective adoptive parents, at the latest, before they legally finalize an adoption. Second, after the adoption, the agency would still have a duty to “disclose”, i.e. furnish, any records which have come into its possession in the time since its latest disclosure of information to the adoptive parents. As suggested by U.S. District Judge Lawson in the Dresser decision, a State Supreme Court lacking precedent governing the matter would, for tort policy reasons, run the duty to the adopted child himself. In other words, it appears more likely that Virginia’s Supreme Court would allow children such as Roman to assert the same equal claim to recovery for negligent breach of that duty as would their adoptive parents.

On the other hand, BCS contends broadly that “Virginia does not recognize a claim for negligent failure to disclose.” MTD at 9. BCS argues as