The medical malpractice case of two women who were switched at birth was thrown out by the 8th U.S. Circuit Court of Appeals after an oral argument in which the plaintiffs' attorney never really recovered from an early blunder.

John R. Robinson

Beverly Bowker and Rowena Madrigal were both born July 27, 1946 at a hospital on a North Dakota Indian reservation. After DNA testing showed they had been sent home with the wrong parents, the two women and Bowker's biological father, Michael Ryan, filed administrative claims against the U.S. government in January 2004.

The Federal Tort Claims Act has a two-year statute of limitations but Bowker, Madrigal and Ryan argued that they did not definitively know of their injury until they received the DNA test results in July 2002 and January 2004.

“This is the stuff of movies, not real life, and it takes an event as definitive as the DNA test before the plaintiffs are aware that they are injured,” their trial attorney said.

In dismissing the case, U.S. Magistrate Judge Karen K. Klein cited “a series of events in the 1970s which demonstrate plaintiffs had more than a hunch or suspicion that an injury had occurred” before January 2002.

“Plaintiffs, especially Beverly and Michael, were actively investigating and questioning the circumstances surrounding the births of Rowena and Beverly,” she said in her decision. “Although plaintiffs did not pursue the issue in the 1970s with formal DNA testing or blood tests, they had notice of the injury.”

The appellate briefs from both sides also focused on the events of the 1970s. “[A]ll three plaintiffs were on notice of facts giving rise to suspicions that, in the exercise of due diligence, should have prompted them to investigate their claims in the 1970s,” the government argued.

But at oral argument before the 8th Circuit, Judge Steven M. Colloton suggested that Klein had used a broader time frame than the 70s. “Don't we have to look at whether they could have come to this information in the 90s, say?” he asked plaintiffs' counsel John R. Robinson of Casper, Wyo.

Based on the record in the case, Robinson should have answered “No.” Instead, he said:

I think you're right, Your Honor. It would seem pointless to send the case back [to the trial judge] without considering that because that certainly has to be considered.

Robinson did not represent the plaintiffs at the trial court level but had won an appeal in the similar Wyoming case of Larsen v. Banner Health System, 81 P.3d 196 (2003). As the oral argument proceeded, he insisted there was nothing in the record to show they knew of the availability of DNA paternity testing in the 1990s.

“Nowhere were my clients interrogated or questioned concerning ... why did they learn of it when they did,” he said.

But the damage had been done. The 8th Circuit's opinion affirming Klein focused almost entirely on the availability of DNA testing in the 1990s, concluding that the plaintiffs' “duty to investigate their possible claims included a duty to consult with legal and medical experts.”

“If the plaintiffs had inquired of a reasonably competent physician or attorney about their claims in the 1990s,” the court added, “then they undoubtedly would have learned at that time about the use of DNA testing in paternity cases.”

In his appellate brief, Robinson stressed the emotional context of the case, noting how Bowker and Madrigal struggled with the “outrageous and unbelievable rumor” that they had been switched at birth. But he did not even touch on that powerful theme in his oral argument.