In Warnock v. Duello, the plaintiff mother is seeking injuries for, among other things, the birth and subsequent death of her son.  The plaintiff entered the defendant hospital to give birth to her premature son.  The child was born alive but only lived 2 hours after the birth.  Supreme Court, Lawrence County framed the issue as follows: "May a woman recover for her emotional injuries where the baby is injured in utero, is born alive, but dies shortly after birth?"

Although I agree with the Court that it was constrained by the New York Court of Appeals’ holding in Sheppard-Mobley v. King, the result smacks of being arbitrary given the determination concerning whether the mother could recover emotional damages here hinged on the mere fact that her son lived for two hours after the birth.  The facts in this case appear closer to Broadnax v. Gonzalez, in which the Court held that a mother can recover damages for emotional injuries where she gives birth to a stillborn child.