Day Care Owner Liable In SIDS Death

By ERIC RICH
The Hartford Courant
January 31, 2001

A jury deliberated less than two hours Tuesday before awarding $800,000 to a woman whose daughter died of sudden infant death syndrome two years ago at a day care center in Bolton.

In one of the first judgments of its kind in the state, the six-member jury found the day care owner liable in the death of Shelby LePage because she failed to take steps that might have prevented the child's death.

The attorney for Shelby's mother had argued that Barbara Horne, the owner of Barbara's Day Care, allowed the infant to sleep on her stomach on Dec. 8, 1998, even though she knew that particular sleeping position was associated with a higher risk of SIDS. Shelby was between two and 12 times more likely to die of SIDS as a result, LePage's attorney, Gerald S. Sack, said.

After the verdict in the wrongful death case was read at Rockville Superior Court, a relieved Mary LePage said the case sends an important message to day care providers, who, she said, have been slower than parents to grasp the significance of sleeping position. LePage, who took the stand during four days of testimony, said the trial was emotionally difficult but important for that message.

"If this information getting out saves the life of one child, then it was worth it," she said.

LePage, of Coventry, waited 74 days after Shelby's birth to return to her job at a printing company in Norwich. The next day, Shelby's second at the day care center, LePage got a phone call. For her, every new parent's worst fear had come true.

Police investigated, as did state child-service workers. A pathologist from the state medical examiner's office ruled that Shelby died of SIDS and classified the manner of death as natural, rejecting such options as homicide or accident.

No action was taken against Horne or her day care program -until LePage filed the wrongful death lawsuit on behalf of her daughter's estate.

After the verdict, Horne shook her head and stared into an empty corner. She walked from the courtroom red-eyed and stunned.

"It's not fair," she said as her attorney, Jay Melley, rushed to her side. "It was natural causes. It's not fair."

Melley had argued that experts have conflicting opinions about the link between sleeping position and the poorly understood syndrome that took Shelby's life.

"It's a curveball from nature," he told the jury. "It happens without explanation."

After the verdict, Melley declined comment and would not say whether he would appeal.

Although similar actions have been brought in other states, William J. Sweeney, past president of the Connecticut Trial Lawyers Association, said he knew of no such cases in this state.

"I certainly know of people who have thought of bringing one," Sweeney said, "but most people think it's a pretty tough case to win" because of the sudden nature of the syndrome.

Sweeney said one of the issues that vexes such claims, and one that he believed probably will be raised on appeal, is whether the defendant should have been able to foresee the danger of a syndrome that strikes so suddenly and, often, without warning.

The verdict came just hours after Dr. Ira Kanfer told the jury that SIDS can occur to a child in any position, even "in the arms of a mother." Kanfer, the defense's sole witness, was the medical examiner who conducted an autopsy on Shelby

"Since no one knows what causes SIDS, the fact that the infant was placed on its side and then found dead on its stomach is just irrelevant," Kanfer testified.

But the plaintiff's expert witness, Dr. Herbert Scherzer, told the jury the sleeping position contributed to the death.

"The chance of her dying on the day she died was tremendously increased because she was lying prone," he testified.

In his summation, Sack said Horne had testified that she knew of the link but simply was not considering it at the time.

"When you accept a vulnerable infant into your home," he said, "you should be thinking about SIDS."