Abigail Ginsberg v. Quest Diagnostics, Inc. , 441 N.J. Super. 198 ( 2015 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1387-14T3
A-1388-14T3
A-1389-14T3
A-1390-14T3
ABIGAIL GINSBERG, an infant,1
by her mother TAMAR GINSBERG, APPROVED FOR PUBLICATION
as Guardian ad litem; TAMAR
June 18, 2015
GINSBERG, Individually; and
ARI GINSBERG, Individually, APPELLATE DIVISION
Plaintiffs-Respondents,
v.
QUEST DIAGNOSTICS, INC.,
Defendant-Appellant,
and
ANDREW RUBENSTEIN, M.D.;
HACKENSACK UNIVERSITY MEDICAL
CENTER; HACKENSACK UNIVERSITY
MEDICAL CENTER DEPARTMENT OF
PEDIATRICS GENETICS SERVICE; and
JUDITH DURCAN, MS,
Defendants-Respondents,
and
1
Abigail Ginsberg passed away in March 2011. The appendices
contain a letter from plaintiffs' counsel indicating that Tamar
Ginsberg was subsequently appointed Administrator of the child's
Estate, but we have not been furnished with a copy of a pleading
with a corresponding amended caption substituting the Estate as
a co-plaintiff.
QUEST DIAGNOSTICS, INCORPORATED,
Third-Party Plaintiff,
v.
THE MOUNT SINAI MEDICAL CENTER,
INC.,
Third-Party Defendant.
_________________________________
ABIGAIL GINSBERG, an infant,
by her mother TAMAR GINSBERG
as Guardian ad litem; TAMAR
GINSBERG, Individually; and
ARI GINSBERG, Individually,
Plaintiffs-Respondents,
v.
QUEST DIAGNOSTICS, INC., and
ANDREW RUBENSTEIN, M.D.,
Defendants-Respondents,
and
HACKENSACK UNIVERSITY MEDICAL
CENTER; HACKENSACK UNIVERSITY
MEDICAL CENTER DEPARTMENT OF
PEDIATRICS GENETICS SERVICE;
and JUDITH DURCAN, MS,
Defendants-Appellants,
and
QUEST DIAGNOSTICS, INCORPORATED,
Third-Party Plaintiff,
v.
2 A-1387-14T3
THE MOUNT SINAI MEDICAL CENTER,
INC.,
Third-Party Defendant.
_________________________________
ABIGAIL GINSBERG, an infant,
by her mother TAMAR GINSBERG,
as Guardian ad litem; TAMAR
GINSBERG, Individually; and
ARI GINSBERG, Individually,
Plaintiffs-Respondents,
v.
QUEST DIAGNOSTICS, INC.;
HACKENSACK UNIVERSITY MEDICAL
CENTER; HACKENSACK UNIVERSITY
MEDICAL CENTER DEPARTMENT OF
PEDIATRICS GENETICS SERVICES;
and JUDITH DURCAN, MS,
Defendants-Respondents,
and
ANDREW RUBENSTEIN, M.D.,
Defendant-Appellant,
and
QUEST DIAGNOSTICS, INCORPORATED,
Third-Party Plaintiff,
v.
THE MOUNT SINAI MEDICAL CENTER,
INC.,
Third-Party Defendant.
_________________________________
3 A-1387-14T3
ABIGAIL GINSBERG, an infant,
by her mother TAMAR GINSBERG,
as Guardian ad litem; TAMAR
GINSBERG, Individually; and
ARI GINSBERG, Individually,
Plaintiffs-Respondents,
v.
QUEST DIAGNOSTICS, INC.;
ANDREW RUBENSTEIN, M.D.;
HACKENSACK UNIVERSITY MEDICAL
CENTER; HACKENSACK UNIVERSITY
MEDICAL CENTER DEPARTMENT OF
PEDIATRICS GENETICS SERVICE;
and JUDITH DURCAN, MS,
Defendants-Respondents,
and
QUEST DIAGNOSTICS, INCORPORATED,
Third-Party Plaintiff-
Respondent,
v.
THE MOUNT SINAI MEDICAL CENTER,
INC.,
Third-Party Defendant-
Appellant.
_________________________________
Argued March 16, 2015 - Decided June 18, 2015
Before Judges Sabatino, Simonelli, and
Guadagno.
On appeal from an interlocutory order of the
Superior Court of New Jersey, Law Division,
Essex County, Docket No. L-1169-10.
4 A-1387-14T3
Thomas J. Cafferty argued the cause for
appellant Quest Diagnostics in 1387-14 and
as respondent in 1388-14 and 1389-14
(Gibbons P.C., attorneys; Mr. Cafferty, Mark
S. Sidoti, Nomi I. Lowy, and Lauren James-
Weir, of counsel and on the brief).
Michael R. Ricciardulli argued the cause for
appellant Andrew Rubenstein, M.D. in 1389-14
and as respondent in 1387-14, 1388-14, and
1390-14 (Ruprecht Hart Weeks & Ricciardulli,
LLP, attorneys; Mr. Ricciardulli and Daniel
B. Devinney, on the brief).
Ellen L. Casagrand argued the cause for
appellants Hackensack University Medical
Center, Hackensack University Medical Center
Department of Pediatrics Genetics Service,
and Judith Durcan, MS, in 1388-14 and as
respondents in 1387-14, 1389-14, and 1390-14
(Buckley Theroux Kline & Petraske, LLC,
attorneys; Ms. Casagrand, on the brief).
Benjamin H. Haftel argued the cause for
appellant The Mount Sinai Medical Center in
1390-14 (Vaslas Lepowsky Hauss & Danke LLP,
attorneys; Mr. Haftel, on the brief).
Victoria E. Phillips argued the cause for
respondents Ginsberg in 1387-14, 1388-14,
1389-14, and 1390-14 (Phillips & Paolicelli,
LLP, attorneys; Ms. Phillips and Daniel J.
Woodard, on the brief).
The opinion of the court was delivered by
SABATINO, P.J.A.D.
These four interlocutory appeals2 stem from a lawsuit
involving factual allegations and parties that straddle the
2
We consolidate the appeals, which were calendared back-to-back,
for purposes of this opinion.
5 A-1387-14T3
states of New York and New Jersey. The core question presented
to us is whether the laws of New York, the laws of New Jersey,
or some combination of the laws of both states, govern the
claims, third-party claims, cross-claims, and defenses asserted
in the litigation.
Plaintiffs, on behalf of themselves and their now-deceased
daughter, have asserted claims of wrongful birth, wrongful life,
medical malpractice, negligent hiring, and negligence in
connection with their daughter's birth in 2008 and her
subsequent diagnosis of Tay-Sachs disease, a genetically-
inherited and fatal condition. In essence, plaintiffs contend
that defendants each erred in the health care, genetic testing
services, or genetic counseling they provided before the couple
conceived their daughter upon a mistaken belief that the father
was not a Tay-Sachs carrier.
Plaintiffs are currently New Jersey residents who
previously resided in New York. They have sued a New Jersey
licensed physician, a New Jersey hospital and one of its
employees (collectively "the New Jersey health care
defendants"), and a medical testing company. The latter
defendant has its principal place of business in New Jersey, but
it received the father's blood specimen in New York and issued
its report on that sample in New York. The medical testing
6 A-1387-14T3
company has brought a third-party complaint against a New York
hospital that actually performed the testing. Numerous cross-
claims for indemnification and contribution have been interposed
between and among the defendants and the third-party defendant.
The trial court determined that New Jersey law, which
differs significantly from New York law on certain facets of
this case, governed all of the issues in this litigation. We
granted motions for leave to appeal by the defendants and the
third-party defendant, who all seek to overturn that threshold
determination and to have New York law instead applied to the
claims asserted against them.
Applying choice-of-law principles set forth in P.V. ex rel.
T.V. v. Camp Jaycee, 197 N.J. 132 (2008), the Restatement
(Second) of Conflicts of Laws (1971) ("the Restatement"), and
other case law, we conclude that New York law applies to the
claims respectively asserted against the testing company and the
New York hospital, whose allegedly wrongful and injurious
conduct occurred in New York. We further conclude that New
Jersey law applies to plaintiffs' claims against the New Jersey
health care defendants, whose allegedly wrongful and injurious
conduct occurred in this state.
Because of the insufficiency of the present record as to
the actual contractual arrangements for the testing of the
7 A-1387-14T3
father's blood sample by the New York hospital, we decline to
resolve which state's law governs the contractual
indemnification claims, if any, asserted against that third-
party defendant. We also decline at this juncture to resolve
which state's law governs the various cross-claims that have
been, or may be, asserted by and among the parties who have been
sued. We also do not reach the discrete choice-of-law issues
concerning the statutes of limitations, which were not
explicitly addressed in the trial court.
Based on this overall disposition, we reverse in part the
trial court's determination that the law of New Jersey must
apply to the conduct of all of the defendants and of the third-
party defendant. We specifically reject the trial court's
premise —— a premise which is advocated by the New Jersey health
care defendants who prefer in this case to have New York law
apply to them —— that the law of only one state can be applied
in this litigation.
As a final caveat, we note that, in rare and extraordinary
circumstances, a court's choice-of-law dispositions, in a case
such as this one with multi-state dimensions, can be reexamined
at the time of trial. The propriety of such a rare potential
reexamination here will depend upon which parties remain in the
case at that point, as well as the feasibility and fairness of
8 A-1387-14T3
trying the remaining claims and cross-claims under the laws of
multiple states.
I.
We derive the following pertinent facts and chronology of
events from the record, which largely consists of deposition
transcripts, interrogatory answers, and a few other documents.
We do so mindful that discovery in this case has not been
completed and that the factual allegations have yet to be
adjudicated.3
The Parties' Relationship, the Mother's Genetic Testing in
New Jersey, and the Father's Genetic Testing in New York
The parents of the now-deceased child, plaintiffs Tamar
Ginsberg ("Tamar")4 and Ari Ginsberg ("Ari"), met and began
dating in October 2004. At that time, Ari resided in Far
Rockaway, New York, and Tamar then resided in Teaneck, New
Jersey.
The couple were concerned about the possibility of any
child of theirs having a genetic condition associated with their
Ashkenazi Jewish heritage. They were particularly concerned
3
Our orders granting leave to appeal permitted factual discovery
to continue, and we were advised at oral argument that such
additional discovery has, in fact, been pursued. Hence, the
factual record is still being developed in certain respects.
4
For ease of reference, we shall use the first names of the
parents and their deceased child, intending no disrespect.
9 A-1387-14T3
about the risk of Tay-Sachs disease, because Tamar knew her
sister was a carrier for that condition.
Tay-Sachs disease is "a genetically-inherited, incurable
condition that first appears in an infant at approximately six
months of age, progressively causing mental retardation,
blindness, seizures, and death between the ages of two and four
years." Geler v. Akawie, 358 N.J. Super. 437, 445 (App. Div.),
certif. denied, 177 N.J. 223 (2003). The condition is a
"genetic disorder caused by an absence of the enzyme
hexosaminidase A and consequent accumulation of the lipid GM2
gangloside in nerve cells of the brain." 5 J.E. Schmidt, M.D.,
Attorneys' Dictionary of Medicine, T-29 (2009). Typically,
"[n]eural damage [from Tay-Sachs] begins early in fetal
development, with the first signs and symptoms becoming apparent
when the infant is about six months old." Ibid.Because of concerns about giving birth to a child with Tay-
Sachs, the couple sought genetic counseling and testing. They
claim, however, that they would have married each other
regardless of the genetic test results.
On December 28, 2004, Ari visited the office of his primary
care physician, Dr. Israel Samson, in Cedarhurst, New York, and
requested a blood test to determine if he was a carrier of Tay-
Sachs. Ari also asked Dr. Samson about a chromosomal
10 A-1387-14T3
translocation test, given that his brother has Down Syndrome,
and that his mother and sister both have a translocation. Dr.
Samson allegedly stated that he would not perform such
translocation testing.
Dr. Samson was educated and trained as a physician in New
York. He was licensed only in New York, and he practiced
medicine exclusively in that state.
Dr. Samson drew Ari's blood in New York at the time of his
December 2004 visit. Dr. Samson sent the sample to defendant
Quest Diagnostics, Inc. ("Quest") for testing, since Ari's
health insurance policy apparently required that Quest be used
for that purpose. Quest's corporate headquarters and principal
place of business are located in Madison, New Jersey, although
Quest conducts business in New York and in other states.
By his own admission, Dr. Samson did not frequently request
Tay-Sachs testing. Therefore, he directed his secretary to call
Quest regarding how to place the order for testing. Dr. Samson
testified at his deposition that during that phone call, Quest
identified the applicable code to place on the test requisition
form.
Upon picking up Ari's blood sample from Dr. Samson's
office, Quest delivered the specimen to its office in Syosset,
New York. Thereafter, Quest sent the sample to third-party
11 A-1387-14T3
defendant, Mt. Sinai Medical Center ("Mt. Sinai") for testing,
pursuant to an agreement between the two entities.5 Mt. Sinai is
located in New York, and it tested Ari's blood in New York.
Dr. Samson testified that he requested Quest to conduct
testing for whether Ari was a carrier of Tay-Sachs. However,
testing was done instead for Sandhoff disease, which can be
regarded as a specific form of Tay-Sachs.6
Mt. Sinai determined that Ari was not a carrier for
Sandhoff disease. Quest reported that information to Dr.
Samson, who explained the findings to Ari on January 10, 2005.
Ari recalled that Dr. Samson left a voicemail on his cell phone,
stating that he was not a carrier of Tay-Sachs. That
information turned out to be incorrect, however, as a test
performed four years later, after Abigail's diagnosis, revealed
that Ari is indeed a carrier for Tay-Sachs.
5
The only written agreement between Quest and Mt. Sinai
referenced in the depositions was an agreement effective April
11, 2005, a date after Ari's testing. A copy of that agreement
is not part of the appellate record. We were advised by counsel
at oral argument that apparently no written agreement was in
force between Quest and Mt. Sinai at the time Ari's specimen was
tested.
6
Specifically, Sandhoff disease involves a defect in both the
enzymes hexosaminidase A and B, whereas Tay-Sachs involves a
deficiency in only hexosaminidase A. See 5 Schmidt, Attorneys'
Dictionary of Medicine, supra, S-24 and T-29.
12 A-1387-14T3
Ari did not receive a written copy of his test results in
2005, and he never spoke with anyone at Quest or at Mt. Sinai.
Ari called Tamar at her home in New Jersey after speaking with
Dr. Samson, and he told her that he had tested negative for Tay-
Sachs.
Shortly thereafter, in February 2005, Tamar visited
defendant Andrew Rubenstein, M.D., a gynecologist, at his office
in Saddle River, New Jersey. She consulted Dr. Rubenstein in
order to be tested for genetic diseases related to her Jewish
heritage. She also sought his advice in planning her menstrual
periods in anticipation of her marriage to Ari, as is common in
the Orthodox Jewish community. Ari himself never visited Dr.
Rubenstein's office.
Tamar advised Dr. Rubenstein that Ari already had been
tested for Tay-Sachs, and that he had been found negative for
that condition. She pointed out that Ari's brother had Down
Syndrome, and that his mother was a carrier for trisomy 21,
which is another name for that condition. She also told Dr.
Rubenstein about her own family members who were carriers of
Tay-Sachs and cystic fibrosis.
Dr. Rubenstein stated in his interrogatory answers that he
discussed with Tamar the risk of Tay-Sachs if both she and Ari
13 A-1387-14T3
were carriers. Tamar, however, denied having any such
discussion with him.
It is apparently undisputed that Dr. Rubenstein asked Tamar
for a copy of Ari's Tay-Sachs test results, but Tamar did not
provide a copy to him. She did not recall at her deposition
ever speaking to Ari about Dr. Rubenstein's request. Ari
likewise had no recollection at his deposition of her asking him
for a copy of his results. According to Tamar, she did not
provide Dr. Rubenstein with Ari's test results because she had
trusted the results Ari received from Dr. Samson.
Tamar's blood was drawn at Dr. Rubenstein's office in New
Jersey. Her sample was tested, coincidentally by Quest, in New
Jersey for the range of diseases customarily associated with
Ashkenazi Jewish heritage. The test results accurately showed
that Tamar was a carrier of Tay-Sachs.
Dr. Rubenstein informed Tamar of her test results, and
mailed a copy to her. He also recommended that Ari undergo
chromosomal analysis, due to his own family history of Down
Syndrome.
Tamar advised Ari of Dr. Rubenstein's recommendation, and
Ari underwent the necessary blood work at a New York laboratory
in Cedarhurst. Testing of Ari's blood sample by Quest in New
York revealed that Ari had a balanced "Robertsonian
14 A-1387-14T3
translocation." Dr. Rubenstein discussed the test results with
a geneticist. On March 22, 2005, Dr. Rubenstein spoke with
Tamar by telephone and advised her of those results. He also
referred the couple to defendant Hackensack University Medical
Center ("HUMC") for genetic counseling.
The Genetic Counseling at HUMC in New Jersey
On May 6, 2005, Ari and Tamar met at HUMC with defendant
Judith Durcan, MS, for genetic counseling relating to Ari's
chromosome translocation. At that time, Ari considered Tay-
Sachs a "nonissue" because he believed he had tested negative
for the condition. The couple met with Durcan on just one
occasion, and no tests were performed.
By letter to Dr. Rubenstein dated May 6, 2005, on which Ari
and Tamar were copied, Durcan summarized her discussion with the
couple. Tamar received the letter at her parents' New Jersey
home in Teaneck, but Ari did not recall seeing it before this
litigation.
With respect to Tay-Sachs, Durcan noted that Tamar is a
Tay-Sachs carrier, but that Ari "stated that his screening test
results for Tay[-]Sachs (TS) [we]re negative." Durcan further
noted that she did not have Ari's results available for review
at the time of their meeting, but offered to review those
results. Durcan also indicated that she had discussed with the
15 A-1387-14T3
couple the autosomal recessive inheritance, the carrier
frequency, and the features of Tay-Sachs. She also discussed
the "different testing modalities for [Tay-Sachs] currently
available and suggested that Ari make sure that he had
biochemical (enzyme) analysis for [Tay-Sachs], as this type of
testing can rule-out most carriers of [Tay-Sachs]."
Tamar admitted discussing with Durcan the couple's Tay-
Sachs test results, and that Durcan offered to review those
results, although Ari could not recall that part of the
conversation. The couple did not provide Durcan with Ari's
results, choosing instead to rely on the information they had
previously received. The couple explained at their depositions
that they had confidence in the test results that Ari had orally
received from Dr. Samson.
The Parties' Marriage, Tamar's Move to New York, and
Abigail's Birth in New York
In June 2005, Tamar and Ari were married in New York.
After the marriage, Tamar relocated from New Jersey and the
couple resided together in Far Rockaway, New York.
A few months after the marriage, Tamar visited Dr.
Rubenstein on October 28, 2005 for a pap smear and a
prescription for birth control pills. Dr. Rubenstein also
discussed with Tamar the HUMC/Durcan genetic consultation
results. He recommended that the couple attempt to conceive
16 A-1387-14T3
through in vitro fertilization, with pre-implantation genetic
testing of the embryos, due to Ari's chromosomal translocation.
However, Tamar did not want to pursue an in vitro procedure,
since she perceived there was a low risk of Down Syndrome.
Tamar never returned to Dr. Rubenstein, as she switched her
care to a New York-based ob/gyn, Dr. Terry Rifkin. Dr.
Rubenstein did speak with Tamar again in October 2005, regarding
her genetic consultation. He also sent her a reminder card in
August 2006 for a follow-up visit that never occurred.
In June 2006, Tamar visited Dr. Rifkin in New York. At
that time, she and Ari had plans to conceive a child naturally,
with the intent of terminating the pregnancy if prenatal testing
revealed that the child had Down Syndrome. Tamar wished to
discuss with Dr. Rifkin the strict guidelines under Jewish law
for terminating a pregnancy.7 At her visit, Tamar advised Dr.
Rifkin that Ari had tested negative for Tay-Sachs, although she
had tested positive. Dr. Rifkin did not request a copy of Ari's
results, and the couple did not provide those results to him
7
Ari is a rabbi, and he testified at his deposition about his
understanding of Jewish law on abortion, as did Tamar. A New
York statute provides that abortions are permitted in the state
up to twenty-four weeks into a pregnancy, with additional time
afforded if the abortion is necessary to preserve the woman's
life. See N.Y. Penal Law § 125.05 (Consol. 2015).
17 A-1387-14T3
although Tamar believed Dr. Rifkin may have taken her blood and
ordered his own testing of her.
In June 2007, Tamar became pregnant. She asserts that she
conceived in New Jersey, and that she learned of the pregnancy
the next month while she was in New Jersey at her parents' home
in Teaneck.
Tamar received prenatal care from Dr. Rifkin in New York.
During the pregnancy, she underwent a chorionic villi sampling
("CVS") at a hospital in New York, which revealed that the fetus
was a female who had a balanced chromosomal translocation, but
did not have Down Syndrome.
Tamar and Ari were required to meet with a genetic
counselor at the hospital in connection with the CVS. Tamar
recalled that they discussed Tay-Sachs with the counselor, and
the fact that Ari had tested negative as a carrier of that
disease. Tamar did not recall the counselor asking for a copy
of Ari's test results.
Abigail was born in March 2008, at North Shore University
Hospital in New York. Immediately after their release from the
hospital, Tamar and Abigail visited with Tamar's parents in New
Jersey. Thereafter, Tamar, Ari, and Abigail resided in New
York, along with a son who was later born in November 2010.
18 A-1387-14T3
Abigail received pediatric care from Dr. Hylton Lightman, in New
York.
Abigail's Diagnosis with Tay-Sachs, her Treatment, and the
Family's Relocation to New Jersey
In October 2008, Abigail was diagnosed with Tay-Sachs by
her physicians in New York. The diagnosis was made after Tamar
had noticed problems with Abigail's eyes.
Around the time of Abigail's diagnosis, Ari went to Dr.
Samson's office to obtain a copy of his blood test results from
2005. He confronted Dr. Samson when he saw that he had been
tested for Sandhoff disease, as opposed to Tay-Sachs. Ari
initially believed Dr. Samson had ordered the wrong test. Dr.
Samson defended his choice of test, stating his belief that the
Sandhoff test results meant Ari was negative for Tay-Sachs.
Dr. Lightman subsequently ordered further testing of Ari.
Two types of Tay-Sachs testing were then performed by Labcorp.
In those results, Ari tested positive as a Tay-Sachs carrier.
Dr. Lightman did not criticize Dr. Samson, but stated that he
himself typically ordered a chromosomal mutation analysis, as
opposed to the Sandhoff tests that Dr. Samson had requested.
Ari acknowledged at his deposition that he initially was
angry with Dr. Samson. However, after consulting with a
geneticist in New York, Ari believed that his Sandhoff test
results should have also revealed if he were a carrier for Tay-
19 A-1387-14T3
Sachs, and it was not possible for his two test results to
contradict each other without there being a flaw in the original
testing.8 Therefore, Ari and Tamar maintain that they do not
believe that Dr. Samson had done anything wrong.
As to Abigail's medical care, she was treated primarily
after her Tay-Sachs diagnosis by physicians and health care
providers in New York, but also by some in New Jersey,
particularly after the family moved to this state. Tamar sought
psychological treatment in New Jersey in connection with
Abigail's illness. Ari, meanwhile, sought psychological
treatment for himself in New York.
In December 2009, plaintiffs moved to Bergenfield, New
Jersey. They claim to have done so in order to be closer to
their family. Two months later they filed this lawsuit.
Abigail died at her home in New Jersey in March 2011.
The Claims in This Litigation
Plaintiffs, who continue to be New Jersey residents, filed
their complaint in the Law Division against Quest, Dr.
Rubenstein, HUMC, and Durcan. Their complaint asserts claims of
wrongful birth, medical malpractice, and negligent hiring
against all defendants. They also assert a more generalized
8
Because discovery has not yet closed, we do not know if
plaintiffs have retained an expert to support this contention.
20 A-1387-14T3
claim of negligence only against Quest. Tamar individually
asserts a claim of "wrongful life"9 on behalf of Abigail against
all of the defendants.
Notably, plaintiffs chose not to assert any claims against
Dr. Samson. Nor did they sue any of the other health care
professionals that treated or counseled them or treated Abigail.
HUMC, Durcan, and Dr. Rubenstein each denied liability and
asserted cross-claims for contribution and indemnification.
Quest likewise denied liability, and asserted as one of its
defenses that New York law applied to all claims filed against
it. In particular, Quest asserted that New York law would
"operate to bar some or all of the claims and/or damages set
forth in the [c]omplaint." Quest also filed cross-claims for
contribution and indemnification.
In addition, Quest filed a third-party complaint against
Mt. Sinai, asserting claims for indemnity, contribution, and
breach of contract, which Mt. Sinai answered, denying
liability.10 Mt. Sinai has asserted cross-claims for common-law
indemnification and contribution from all of the defendants.
9
See, Part II(A), infra, for a discussion of the elements of
what is termed a "wrongful life" claim under New Jersey law, a
cause of action which is not recognized under New York law.
10
Plaintiffs did not move to amend their complaint to name Mt.
Sinai as direct defendant. It is not clear from the record
(continued)
21 A-1387-14T3
Shortly after the pleadings were completed, Quest, HUMC,
and Durcan moved for the application of New York law, to dismiss
plaintiffs' claims under Rule 4:6-2(e), and for summary
judgment; Dr. Rubenstein moved for the application of New York
law; Mt. Sinai moved for the application of New York law and for
summary judgment; and plaintiffs moved to compel discovery.
On August 28, 2013, the judge assigned at that time to this
case ruled that questions of fact precluded summary judgment as
to HUMC and Durcan. That judge also authorized additional
discovery on both the choice-of-law issues and as to the merits
of the case. These dispositions are not challenged in the
present appeals.
Following additional discovery, defendants and Mt. Sinai
again moved for the application of New York law. After a
different Law Division judge ("the motion judge") heard argument
on those motions, the judge issued an oral opinion and
corresponding orders on September 26, 2014. The judge denied
the motions, and held that New Jersey law applies to all issues
and parties in this case.
(continued)
supplied to us whether any of the co-defendants amended their
pleadings to assert cross-claims against Mt. Sinai.
22 A-1387-14T3
The Trial Court's Choice-of-Law Ruling
In his oral decision on the choice-of-law question, the
motion judge recognized that the factual allegations and parties
in this case straddle both the states of New York and New
Jersey. The judge also recognized that New York law and New
Jersey law differ in material respects on various aspects of
this case.11
The judge invoked the "most significant relationship"
principles expressed in Sections 6, 145, and 146 of the
Restatement as adopted by our Supreme Court in P.V., supra, 197
N.J. at 136. The judge recognized that, in a case such as this
one with claims of tortious conduct, the law recognizes a
presumption in favor of applying the law of the state where the
injury occurred. See P.V., supra, 197 N.J. at 136; Restatement,
supra, §§ 6 and 145. However, as the judge further recognized,
"[i]f another state has a more significant relationship to the
parties or issues, the presumption [of the law of the former
state] will be overcome. If not, [the presumption] will
govern." P.V., supra, 197 N.J. at 136 (emphasis added).
The judge rejected the possibility that New Jersey law
could apply to claims against certain parties in this case,
11
See discussion of some of those differences in Part II(A),
infra.
23 A-1387-14T3
while New York law could apply to claims against the other
parties. In essence, the judge perceived that his sole options
were to either apply New Jersey law or New York law to the
entire case. Given that perceived constraint, the judge found
that New Jersey, rather than New York, had the overall "most
significant relationship" to the parties and claims in this
litigation.
In the course of his analysis, the judge underscored the
fact that Dr. Rubenstein, HUMC, and Durcan are all domiciled in
New Jersey and have their principal places of business in this
State, and that Dr. Rubenstein is licensed as a physician in
this State. The judge also found that the conduct of those New
Jersey health care defendants, to the extent they may have
caused or contributed to plaintiffs' alleged injuries, occurred
in this State, which he regarded as the center of the
relationship between plaintiffs and those parties.
The judge perceived that Tamar's alleged loss of
reproductive choice occurred in New Jersey, where she had
consulted the New Jersey defendants, rather than in New York.
The judge found that the public policy of New Jersey favors
compensating innocent patients for injuries caused by licensed
health care providers in this State, and that such New Jersey
24 A-1387-14T3
providers "should reasonably expect to be subject to New Jersey
law."
The judge acknowledged that the choice-of-law analysis as
to Quest and Mt. Sinai was "[m]ore difficult" because, as to
those parties, New York was the State in which their relevant
alleged conduct occurred, and the State where the other parties'
relationships to them was centered. Even so, the judge
concluded that a "qualitative analysis" of the whole case,
considering the "entire pot" of claims involved, required the
law of New Jersey to apply, and that the Restatement's
presumption in favor of applying the forum state's law was not
overcome.
The Present Interlocutory Appeals
We thereafter granted leave to Quest, HUMC, Durcan, Dr.
Rubenstein, and Mt. Sinai to appeal the trial court's choice-of-
law ruling. All of those parties seek to have New York law,
rather than New Jersey law, apply.
Quest and Mt. Sinai differ from the other appellants,
however, in that they submit that the court may take a
defendant-by-defendant approach to choice of law, allowing the
court to apply the law of more than one state to the various
defendants. The other appellants insist that the law of only
one state can apply here and that the state is New York.
25 A-1387-14T3
Plaintiffs, meanwhile, agree that the trial court correctly
applied New Jersey law to the entire case. They stress the many
points of nexus to New Jersey within the factual chronology:
Tamar's status as a New Jersey resident when the genetic testing
was performed; the family's ultimate New Jersey domicile after
Abigail was born and suit was filed; Quest's principal place of
business in New Jersey; and this State's public policies in
regulating professionals and businesses who conduct activities
here and in assuring fair compensation to New Jersey tort
claimants.
II.
A.
One of the most important questions a court will often face
in adjudicating a case like this, involving parties and conduct
in multiple states, is to identify which state's law applies to
the parties and the various claims asserted. Inevitably, states
in our federal system will adopt laws —— whether by statute,
regulation, or case law —— that will diverge from the laws of
other states. When those state laws clash, courts must
necessarily ascertain which state's law governs the case or the
particular issues at hand.
The choice-of-law determination ideally should be made as
early in a case as possible. Bailey v. Wyeth, Inc., 422 N.J.
26 A-1387-14T3
Super. 343, 350 (Law Div. 2008), aff'd on other grounds, 422
N.J. Super. 360 (App. Div. 2011), certif. denied, 211 N.J. 274(2012). We apply a de novo standard of appellate review to such
rulings. Bondi v. Citigroup, Inc., 423 N.J. Super. 377, 418
(App. Div. 2011), certif. denied, 210 N.J. 478 (2012).
Multi-faceted choice-of-law principles, such as those
expressed in the Restatement, have been developed to assist
judges in resolving these conflicts. The choice-of-law
principles of the forum state control the analysis. Fu v. Fu,
160 N.J. 108, 117 (1999). In applying such principles, the
first thing a court must determine is whether the laws of the
particular states having a nexus to a case actually diverge.
P.V., supra, 197 N.J. at 143.
Here, such divergence between New Jersey law and New York
law is indisputably present. Although we need not exhaustively
detail all of the material points of difference, a few are worth
mentioning by illustration.
For example, New Jersey recognizes a cause of action for
what our state describes as "wrongful birth," which may be
asserted by parents who claim that they were "deprived of the
option of making a meaningful decision as to whether to abort
[a] fetus, a decision which, at least during the first trimester
of pregnancy, is not subject to state interference." Berman v.
27 A-1387-14T3
Allan, 80 N.J. 421, 430-32 (1979) (citations omitted). A
wrongful birth claim is "predicated on a woman's right to
determine for herself whether or not to continue or terminate
her pregnancy" when it is anticipated the child will be born
with birth defects. Canesi v. Wilson, 158 N.J. 490, 501 (1999).
Parents in wrongful birth actions in New Jersey may recover
damages for the emotional distress caused by the loss of the
option to abort the affected fetus, Berman, supra, 80 N.J. at
433-34, along with the economic costs associated with their
child's affliction, Schroeder v. Perkel, 87 N.J. 53, 67-71
(1981). By contrast, under New York law, the parents' damages
in such cases are limited to "the pecuniary expense . . . for
the care and treatment of their infants." Becker v. Schwartz,
386 N.E.2d 807, 813-14 (N.Y. 1978). Parents may not recover
emotional distress damages on such claims under New York law.
Foote v. Albany Med. Ctr. Hosp., 944 N.E.2d 1111, 1113 (N.Y.
2011) (noting that in such cases "the parents' 'legally
cognizable injury' is 'the increased financial obligation
arising from the extraordinary medical treatment rendered the
child during minority'" (quoting Bani-Esraili v. Lerman, 505
N.E.2d 947, 948 (N.Y. 1987))); accord Becker, supra, 386 N.E.2d
at 813-14; Howard v. Lecher, 366 N.E.2d 64, 65-66 (N.Y. 1977).
28 A-1387-14T3
Apart from wrongful birth claims by parents, New Jersey
separately recognizes what are known in this state as "wrongful
life"12 claims, which may be brought on behalf of infants born
with congenital defects. This limited cause of action allows an
infant plaintiff in our state to "recover as special damages the
extraordinary medical expenses attributable to his [or her]
affliction," but disallows recovery by the infant for "general
damages for emotional distress or for an impaired childhood."
Procanik by Procanik v. Cillo, 97 N.J. 339, 342-43, 351-56
(1984); accord Moscatello ex rel. Moscatello v. Univ. of Med. &
Dentistry of N.J., 342 N.J. Super. 351, 359-60, 363-64 (App.
Div.), certif. denied, 170 N.J. 207 (2001). By contrast, New
York law does not permit such a claim for damages by or on
behalf of an infant. Alquijay v. St. Luke's-Roosevelt Hosp.
Ctr., 473 N.E.2d 244, 245 (N.Y. 1984); Becker, supra, 386 N.E.2d
at 813-14.
The two state's applicable statutes of limitations also
have potential material differences. New Jersey's statute of
limitations for medical malpractice, N.J.S.A. 2A:14-2, is two
years, subject to equitable tolling of that two-year period
12
The terminology is somewhat confusing because what New Jersey
law describes as a "wrongful birth" cause of action is described
under New York law as a "wrongful life" claim. To prevent
confusion we shall use the New Jersey terminology.
29 A-1387-14T3
pursuant to our discovery rule, Lopez v. Swyer, 62 N.J. 267,
272-76 (1973). Conversely, New York's statute of limitations
for medical malpractice claims is two-and-a-half years. See
N.Y. C.P.L.R. 214-a (Consol. 2015) ("An action for medical . . .
malpractice must be commenced within two years and six months of
the act, omission or failure complained of or last treatment
where there is continuous treatment for the same illness, injury
or condition which gave rise to the said act, omission or
failure[.]").
Under New York law, the accrual date for a cause of action
for what is termed "wrongful life" in that state (i.e.,
"wrongful birth" in New Jersey) has been deemed to be the date
of the child's birth. Pahlad v. Brustman, 823 N.Y.S.2d 61, 63
(N.Y. App. Div. 2006), aff'd, 865 N.E.2 1240 (N.Y. 2007); but
see Jorge v. N.Y. City Health & Hosps. Corp., 590 N.E.2d 239,
240 (N.Y. 1992) (holding that the "continuous treatment"
doctrine did not toll the statute of limitations on a medical
malpractice claim premised upon alleged wrongful birth resulting
from an erroneous reading of prenatal genetic tests). Because
of these differences between New Jersey law and New York law,
plaintiffs' claims might be considered untimely, depending upon
which state's statute of limitations is applied.
30 A-1387-14T3
B.
If, as here, an actual conflict of laws is present between
the multiple states implicated in a case, the next step is to
apply the Restatement's "most significant relationship" test,
which New Jersey applies in tort cases. P.V., supra, 197 N.J.
at 135-36, 139-43. Under the most significant relationship test
in a case involving personal injury, the analysis:
begins with the [Restatement] section 146
presumption that the local law of the state
of the injury will apply. Once the
presumptively applicable law is identified,
that choice is tested against the contacts
detailed in section 145 and the general
principles outlined in section 6[13] of the
13
Restatement, supra, § 6, which is entitled "Choice-of-Law
Principles," provides as follows:
(1) A court, subject to constitutional
restrictions, will follow a statutory
directive of its own state on choice of law.
(2) When there is no such directive, the
factors relevant to the choice of the
applicable rule of law include
(a) the needs of the interstate and
international systems,
(b) the relevant policies of the
forum,
(c) the relevant policies of other
interested states and the relative
interests of those states in the
determination of the particular issue,
(continued)
31 A-1387-14T3
Second Restatement. If another state has a
more significant relationship to the parties
or issues, the presumption will be overcome.
If not, it will govern.
[P.V., supra, 197 N.J. at 136 (emphasis
added).]
Hence, we must identify the place of injury under
Restatement § 146, which states:
In an action for a personal injury, the
local law of the state where the injury
occurred determines the rights and
liabilities of the parties, unless, with
respect to the particular issue, some other
state has a more significant relationship
under the principles stated in [Restatement]
§ 6 to the occurrence and the parties, in
which event the local law of the other state
will be applied.
[(Emphasis added).]
"Section 146 [of the Restatement] recognizes the
intuitively correct principle that the state in which the injury
occurs is likely to have the predominant, if not exclusive,
relationship to the parties and issues in the litigation."
(continued)
(d) the protection of justified
expectations,
(e) the basic policies underlying the
particular field of law,
(f) certainty, predictability and
uniformity of result, and
(g) ease in the determination and
application of the law to be applied.
32 A-1387-14T3
P.V., supra, 197 N.J. at 144 (citing Restatement, supra, § 146
cmt. d). However, this factor will not be afforded great
significance where the place of injury was "fortuitous or . . .
for other reasons it bears little relation to the occurrence and
the parties with respect to the particular issue." Restatement,
supra, § 145, cmt. e.
Ignoring, for the moment, the defendant-specific aspects of
this case and considering the core facts in their totality, New
York is the primary, if not exclusive, state that is the place
of injury. New York is the state where the Ginsbergs resided at
the time of Tamar's pregnancy, and where they made their
decision to proceed with the pregnancy. It is also the state
where Tamar likely would have undergone prenatal testing of the
fetus for Tay-Sachs had the couple been correctly informed that
Ari was also a carrier for Tay-Sachs, and where the couple
likely would have chosen to terminate the pregnancy if they
learned that the child she was carrying was afflicted with Tay-
Sachs. Alternatively, if Abigail's birth itself is viewed as
the "injury" —— particularly with respect to the child's
wrongful life claim —— then New York is also the place of injury
because Abigail was born in that state.
Plaintiffs unpersuasively assert that the loss of
reproductive choice occurred completely or dominantly in New
33 A-1387-14T3
Jersey. They particularly focus in that regard on the alleged
conception of Abigail in New Jersey.
A wrongful birth claim is inextricably intertwined with a
pregnancy, and a woman's right to choose abortion rather than
proceed with the pregnancy. At the time of Tamar's pregnancy,
the couple resided in New York, and Tamar received prenatal care
from a New York physician. The loss of reproductive choice with
respect to Tamar's pregnancy with Abigail occurred exclusively,
or at least mainly, in New York.
The fact that Abigail may have been conceived in New Jersey
is immaterial to the choice-of-law analysis. For a wrongful
birth claim, the focus must be on the decision to continue the
pregnancy after the conception had occurred and the pregnancy
became known to the couple. The location of the conception,
through intercourse during a time when Tamar was ovulating, is
fortuitous and irrelevant. If, hypothetically, Abigail had been
conceived while plaintiffs were on vacation in Hawaii and there
were no other relevant contacts with that state, Hawaii law
surely would not govern plaintiffs' claims.
The trial court erred within its choice-of-law analysis by
equating the place of injury with the place where plaintiffs
experienced damage, i.e., the effects of the injury. It is
irrelevant to the place-of-injury inquiry that plaintiffs
34 A-1387-14T3
experienced emotional distress and some medical costs in New
Jersey after that injury was inflicted. In this regard, the
Third Circuit Court of Appeals in Blakesley v. Wolford, 789 F.2d
236, 241 (3d Cir. 1986), has aptly explained:
In all personal injury actions, the
effects of an injury necessarily follow a
plaintiff to his or her state of residence
or domicile. It is axiomatic that wherever
the plaintiff lives, the effects of his or
her personal injuries will be felt.
However, looking to the place where the
effects of an injury will be felt gives
improper additional weight to the factor of
the plaintiff's state of residence. In
effect, by looking to the place where the
injuries are felt, rather than the place
where they in fact occurred, the district
court gave double weight, which was
unwarranted, to [plaintiff's] state of
residence[.]
C.
Having identified New York as the place of injury, the next
step we must follow in the choice-of-law analysis is the
application of the factors set forth in Restatement, supra, §§ 6
and 145, and P.V., supra, 197 N.J. at 145-55, "to determine
whether another state has a more significant relationship to the
parties or issues[,]" in which case the presumption of
Restatement, supra, § 146 will be overcome. P.V., supra, 197
N.J. at 155. The analysis of the relevant factors is
qualitative, not merely quantitative. Id. at 147, 155-56; Fu,
35 A-1387-14T3
supra, 160 N.J. at 125. In this regard, Restatement, supra, §
145 instructs:
(1) The rights and liabilities of the
parties with respect to an issue in tort are
determined by the local law of the state
which, with respect to that issue, has the
most significant relationship to the
occurrence and the parties under the
principles stated in § 6.
(2) Contacts to be taken into account in
applying the principles of § 6 to determine
the law applicable to an issue include:
(a) the place where the injury
occurred,
(b) the place where the conduct
causing the injury occurred,
(c) the domicil[e], residence,
nationality, place of
incorporation and place of
business of the parties, and
(d) the place where the relationship,
if any, between the parties is
centered.
These contacts are to be evaluated according
to their relative importance with respect to
the particular issue.
[(Emphasis added).]
In applying these various factors here, we reject the trial
court's premise that the law of only one state can apply to all
of the issues in this lawsuit. As our Supreme Court made clear
in P.V., the "most significant relationship" test is to be
applied "on an issue-by-issue basis." P.V., supra, 197 N.J. at
36 A-1387-14T3
143; accord Cornett v. Johnson & Johnson, 211 N.J. 362, 374
(2012); Erny v. Estate of Merola, 171 N.J. 86, 95 (2002);
Grossman v. Club Med Sales, Inc., 273 N.J. Super. 42, 50-51
(App. Div. 1994). "Issue-by-issue" in this context means legal-
issue-by-legal-issue. See, e.g., Cornett, supra, 211 N.J. at
374 (noting that an issue-by-issue analysis of choice-of-law
factors "may result in the application of the law of more than
one state to the several claims in a matter").
To date, no published opinion in our State has expressly
addressed whether the issue-by-issue analysis of choice of law
may be differentiated further with a defendant-by-defendant
assessment. These appeals now require us to consider the novel
question of whether choice-of-law principles could allow New
York law to be applied to some of the named defendants or the
third-party defendant in this case, while New Jersey law could
apply to the other parties who have been sued.
We endorse the option of allowing a defendant-by-defendant
approach to choice of law in a case such as this one for several
reasons. First of all, such an approach happens to be
authorized under New York law, which itself is instructive. See
Boxer v. Gottlieb, 652 F. Supp. 1056, 1062 (S.D.N.Y. 1987)
(citing Schultz v. Boy Scouts of Am., 480 N.E.2d 679 (N.Y.
37 A-1387-14T3
1985)). Moreover, courts in several other states have similarly
permitted that approach.14
Second, a defendant-by-defendant approach may have
functional advantages. In some lawsuits, a plaintiff's legal
claims and theories against multiple defendants may be
predicated upon different facts occurring in different states at
different times. A court should at least have the option in
such multi-faceted cases to adopt a defendant-specific choice-of
-law approach, rather than an overarching "one-law-fits-all"
model. The reality is that the fact patterns, party domiciles,
and legal theories in some civil cases that straddle state lines
can have so many dimensions that it could be patently arbitrary
14
See, e.g., Jaurequi v. John Deere Co., 986 F.2d 170, 173 (7th
Cir. 1993) (reversing the district court's choice-of-law
determination because it failed to conduct "a separate conflicts
analysis for each defendant's conduct" in a product liability
action); ABB Daimler-Benz Transp. (N. Am.), Inc. v. Nat'l R.R.
Passenger Corp., 14 F. Supp. 2d 75, 88 (D.D.C. 1998) (noting
that "[t]he law of different states may be applied to different
defendants"); Kelly v. Johns-Manville Corp., 590 F. Supp. 1089,
1095 (E.D. Pa. 1984) (noting, in a "multi-defendant asbestos
case, the plaintiff's separate claims are to be treated as
discrete causes of action" with regard to choice of law); Allen
v. Great Am. Reserve Ins. Co., 766 N.E.2d 1157, 1162-70 (Ind.
2002) (applying Indiana and South Carolina law to two different
defendants for the same cause of action); but see Gregory v.
Beazer E., 892 N.E.2d 563, 580 (Ill. App. Ct. 2008) (declining
to adopt a defendant-by-defendant approach); Viking Pump, Inc.
v. Century Indem. Co., 2 A.3d 76, 89 (Del. Ch. 2009) (noting
that, in the context of insurance contracts, "Delaware courts
have applied the law of the jurisdiction that bears the most
significant relationship to the insurance coverage as a whole").
38 A-1387-14T3
or unreasonable to ordain that all of the claims of all of the
plaintiffs against all of the defendants must be adjudicated
under a single state's laws.
Allowing a defendant-by-defendant approach is also
consistent with the Supreme Court's observation in P.V., supra,
197 N.J. at 136, that "[i]f another state has a more significant
relationship to the parties or issues, the presumption [of the
law of the place of injury] will be overcome." (Emphasis
added). This quoted passage from P.V. suggests that the nexus
of each party to the case can be as relevant to the conflict
analysis as the nexus of each issue.
We are acutely mindful that there can be practical
difficulties in allowing the laws of more than one state to
apply simultaneously to the evidence adduced at a trial. It is
certainly simpler for a jury (or a judge in a bench trial) to
apply only one state's legal rules to the factual proofs.
Simplicity alone, however, is not the only value at stake.
Indeed, the Supreme Court's endorsement of an issue-by-issue
approach in P.V. signals that the mere use of more than one set
of laws in a given case is not inherently untenable.
We have confidence that when proper jury instructions and a
carefully-constructed verdict form are used, most jurors should
be able to apply the laws of more than one state in the same
39 A-1387-14T3
case to different respective defendants. See Belmont Condo.
Ass'n, Inc. v. Geibel, 432 N.J. Super. 52, 97 (App. Div.)
(expressing the oft-repeated maxim that jurors are presumed to
follow the court's instructions), certif. denied, 216 N.J. 366(2013). To simplify matters, the jurors need not be informed of
the identity of each state that supplies the particular rule of
law described in the jury charge and reflected in the queries
posed on the verdict form.
In short, since an issue-by-issue approach is tenable,
there is no reason to believe that a defendant-by-defendant
approach is inherently untenable. That said, we are cognizant
that a defendant-by-defendant approach to choice of law may be
unworkable in, say, a mammoth case involving defendants from
dozens of states.
Here, we have only two states whose laws are implicated.
The practical and analytic complexities of a defendant-by-
defendant approach do not appear to be overwhelming. In fact,
in several of the reported cases from other jurisdictions using
a defendant-by-defendant approach, the court did not find the
approach too unwieldy.15
15
See, e.g., Jaurequi, supra, 986 F.2d at 173; ABB Daimler-Benz,
supra, 14 F. Supp. 2d at 88; Great Am. Reserve, supra, 766
N.E.2d at 1162; Boxer, supra, 652 F. Supp. at 1062.
40 A-1387-14T3
For these reasons, we reject the trial court's premise, and
the arguments raised by some of the present appellants, that the
law of only one state can be applied to all of the defendants
and to the third-party defendant Mt. Sinai.
Dr. Rubenstein, HUMC, and Durcan argue that a defendant-by-
defendant approach is not appropriate here, even if that can be
an option, because the totality of factual circumstances that
led up to Abigail's birth dominantly occurred in New York. They
assume that New York has "the most significant relationship" to
the case as a whole, and therefore New York law should apply to
their own conduct in New Jersey.
The New Jersey health care defendants suggest that
plaintiffs and their counsel have strategically omitted any New
York-based defendants from their complaint, including Dr.
Samson, a New York-licensed physician, in order to maximize
their chances of having facets of New Jersey law more favorable
to plaintiffs govern this case.16 That strategic assertion is
16
This claim of strategic manipulation is somewhat analogous to
a claim that a plaintiff engaged in the "improper joinder" of
one or more additional defendants in a state court action for
the sole purpose of destroying federal diversity jurisdiction
and thereby preventing removal of the case. See, e.g., Smallwood
v. Ill. Cent. R.R. Co., 385 F.3d 568, 571 n.1 (5th Cir. 2004)
(describing such a pleadings tactic as improper joinder), cert.
denied, 544 U.S. 992, 125 S. Ct. 1825, 161 L. Ed. 2d 755(2005); Schwartz v. State Farm Mut. Auto. Ins. Co., 174 F.3d
875, 878 (7th Cir. 1999) (disapproving of the practice); AIDS
(continued)
41 A-1387-14T3
neither endorsed nor opposed by Quest and Mt. Sinai.
Plaintiffs, as we have already noted, assert they legitimately
omitted Dr. Samson as a defendant, because they ultimately
believed that he had not acted negligently.
Although the strategic claim raises concern, we need not
pass upon the bona fides of plaintiffs' decision to refrain from
suing Dr. Samson, or from naming in their complaint any other
defendants who are domiciled in New York. Unless the litigants
have omitted indispensable parties, see Rule 4:28-1 (regarding
compulsory joinder), a court must adjudicate a case based upon
the parties and claims that the litigants have chosen to include
in the pleadings, rather than some hypothetical broader or
different case that might have been brought.
No one has argued that Dr. Samson is an indispensable party
who must be added to this litigation under Rule 4:28-1. See
Bruno v. Mark MaGrann Assocs., Inc., 388 N.J. Super. 539, 547
(App. Div. 2006). In fact, none of the defendants nor Mt. Sinai
have filed any third-party or fourth-party claims against Dr.
Samson. He is not in this case. Even if he had been named,
that would not necessarily require that New York law be applied
(continued)
Counseling & Testing Ctrs. v. Group W Television, Inc., 903 F.2d
1000, 1003-04 (4th Cir. 1990) (noting how such a tactic can
affect the crafting of a complaint).
42 A-1387-14T3
to the conduct of the New Jersey health care defendants, who
provided services in this state to the parents.
Our recognition of a defendant-by-defendant option for
choice of law will serve to discourage the tactical structuring
of pleadings that attempts to tilt the nexus analysis. If a
defendant-by-defendant approach is available to the court,
plaintiffs will have less incentive to attempt to stack a
complaint with defendants from a state with laws more favorable
to plaintiffs' litigational interests. Likewise, defendants
will have less incentive to assert third-party claims against
parties from a state with laws more favorable to their own
interests, in a similar effort to have that state be deemed the
one with the "most significant relationship" to the case.
Hence, in the present context, plaintiffs' inclusion of
multiple New Jersey health care defendants in their complaint
ought not work to their tactical advantage if, as we have held,
the court is still free to allow New York law to apply to the
other parties whose conduct occurred in New York. Under the
approach we have endorsed, the court would not be constrained by
the sheer number of defendants from New Jersey in deciding
whether the claims arising in New York against the other parties
should instead be governed by the law of that state.
43 A-1387-14T3
In short, by adopting here a rule that authorizes a party-
specific approach to choice of law, we can deter and address
manipulative efforts to stack a case with parties from states
having laws that favor a pleader's interests. The approach
eliminates a pleader's expectation that the law of only one
"dominant" state will necessarily govern the case as a whole.
Consequently, there is no need to probe into the
motivations of plaintiffs in refraining from naming Dr. Samson.
If any gamesmanship has occurred here, a defendant-specific
choice-of-law approach helps assure that such conduct is not
rewarded. Moreover, as we explain more fully in Part II(D),
infra, the strong policy interests of New York and New Jersey in
having their respective laws regulate the conduct of health care
defendants and laboratories operating within their borders also
support a defendant-by-defendant approach.
D.
1.
With respect to Dr. Rubenstein, HUMC, and Durcan, it is
especially significant that each of them is a professional or
hospital located in, licensed in, and regulated by the State of
New Jersey. Professionals and their patients have a reasonable
expectation that the laws of the state of licensure will govern
the professional licensee's activities within the state where
44 A-1387-14T3
the services were provided.17 New Jersey has strong public
policies in the regulation of health care professionals who are
licensed in and who practice in this state, as well as the
regulation of hospitals that are licensed in this state.18
At the time that Dr. Rubenstein treated and counseled
Tamar, and at the time that HUMC and Durcan counseled her, she
was a resident of New Jersey. Those defendants' allegedly
17
See, e.g., N.J.S.A. 2A:53A-26 and -27 (the affidavit of merit
statute governing suits against professionals licensed in this
state); see also N.J.S.A. 45:1-1 to -21.4 (stating general
provisions related to professions and occupations regulated by
state boards of registration and examination); N.J.S.A. 45:9-1
to -58 (stating provisions related to medicine and surgery);
N.J.S.A. 26:2H-1 to -26 (documenting the various requirements of
the "Health Care Facilities Planning Act"); N.J.S.A. 45:9-37.112
(stating that "the profession of genetic counseling profoundly
affects the lives of the people of New Jersey").
18
See Hernandez v. Overlook Hosp., 149 N.J. 68, 81 (1997)
(noting New Jersey's "strong public policy of ensuring that only
qualified physicians serve the public"); see also Bloom v. Clara
Maass Med. Ctr., 295 N.J. Super. 594, 607 (App. Div. 1996)
(noting that "[a] hospital's selection of medical staff is thus
deeply embedded in public policy concerns and must be 'exercised
reasonably and for the public good.'" (quoting Desai v. St.
Barnabas Medical Ctr., 103 N.J. 79, 87 (1986))); N.J.S.A. 26:2H-
1 ("It is hereby declared to be the public policy of the State
that hospital and related health care services of the highest
quality, of demonstrated need, efficiently provided and properly
utilized at a reasonable cost are of vital concern to the public
health."); see also Cooper Univ. Hosp. v. Jacobs, 191 N.J. 125,
136 (2007).
45 A-1387-14T3
tortious and injurious conduct —— to the extent it is actionable
—— took place entirely in New Jersey. 19
Although the New Jersey health care professionals
apparently believe it is more advantageous to their litigational
interests in this particular case to have the law of another
state govern their conduct, there are very strong public
policies and real-world expectations of professionals and
patients that support applying to such professionals the law of
the state in which they are licensed and in which they provided
services to the plaintiff patient.
In this regard, we take judicial notice under N.J.R.E. 201
that patients frequently travel across state lines to be treated
by a physician who is a surgeon or specialist because of that
individual's expertise. Patients also may be drawn to a
hospital in another state for the same reasons, or may have an
emergency condition while they are in the state temporarily. In
such circumstances, there should be a strong presumption that
the laws of the state of licensure and treatment govern the
patient's care in that state, subject to concerns of feasibility
and fairness. The motion judge correctly recognized these
19
We express no views, of course, about the merits of
plaintiffs' claims, recognizing that discovery is not completed
and that the time for dispositive motions by any party has not
elapsed.
46 A-1387-14T3
principles and public policies relating to the New Jersey health
care professionals, but strayed in holding that New Jersey law
must apply to all defendants in the case.
It is likewise reasonable for a person receiving medical
services in New York, and for providers of such services in New
York, to expect that New York law would govern the provision of
those services. See Amoroso v. Burdette Tomlin Mem'l Hosp., 901
F. Supp. 900, 906 (D.N.J. 1995) (observing that medical
defendants who provided plaintiff care in a state "have the
right to expect that [the] law [of that state] will govern their
actions"); accord Blakesley, supra, 789 F.2d at 243; Capone v.
Nadig, 963 F. Supp. 409, 413-14 (D.N.J. 1997).
As we have noted, it is not unusual for people to travel
out-of-state to be treated by specialists. As the Third Circuit
Court of Appeals stated in Blakesley, supra, 789 F.2d at 243:
"[I]t is only fair that the law of the state to which the
patient has voluntarily traveled, and in which the doctor has
chosen to conduct the [medical procedure], be applied to
adjudicate the respective rights, duties, and obligations
between the parties." Accord Warriner v. Stanton, 475 F.3d 497,
502-04 (3d Cir. 2007) (applying Delaware law in a medical
malpractice case where plaintiff had traveled to Delaware for
medical care).
47 A-1387-14T3
A defendant professional's care should not be evaluated by
the laws of another state simply because there are multiple
other defendants in the case from different states. In our
mobile society, patients frequently have been treated by doctors
in a series of states when they move about the country.
Suppose, for instance, a patient is initially treated by
his primary care physician in New Jersey, and then moves to
Michigan, and then to California, where he is subsequently
treated by physicians from each of the other two states. If
that patient sues each of the doctors in the successive states
for malpractice or negligence for a failure to detect and
diagnose a cancerous tumor sooner, the New Jersey physician's
own conduct presumptively should not be governed by Michigan law
or California law. Yet, that would be the logical consequence
of adopting the "one-law-fits-all" approach advocated by HUMC,
Durcan, and Dr. Rubenstein in this case and adopted by the trial
court. We reject that approach.
Consequently, although New York may be the dominant "place
of injury" of plaintiffs in this case, as to the alleged
specific conduct of HUMC, Durcan, and Dr. Rubenstein, New Jersey
has strong linkages to plaintiffs' claims against those
particular defendants.
48 A-1387-14T3
2.
Our defendant-by-defendant analysis of the nexus reaches a
different conclusion as to defendant Quest and third-party
defendant Mt. Sinai. Quest handled and reported on Ari's blood
sample entirely in New York. Although Quest also coincidentally
tested Tamar's own blood sample in New Jersey, no claims have
been asserted about that accurate test concerning her specimen.
As a separate sovereign power, the state of New York also
has a strong interest in regulating its clinical laboratories.
See N.Y. Pub. Health Law § 570 (Consol. 2015) (stating that
"proper performance of clinical laboratory and blood banking
services is a matter of vital concern, affecting the public
health, safety and welfare"); see also Daxor Corp. v. State
Dep't of Health, 681 N.E.2d 356, 360 (N.Y. 1997), cert. denied,
523 U.S. 1074, 118 S. Ct. 1516, 140 L. Ed. 2d 669 (1998). New
York additionally has a strong interest in regulating the
conduct of its health care providers generally housed within its
borders. See N.Y. Pub. Health Law § 2800 (Consol. 2015)
(stating that "[h]ospital and related services including health-
related service of the highest quality, efficiently provided and
properly utilized at a reasonable cost, are of vital concern to
the public health"); accord State Univ. of N.Y. v. Young, 566
N.Y.S.2d 79, 80 (N.Y. App. Div. 1991) (noting New York's "strong
49 A-1387-14T3
public policy of providing high quality, efficient, and
effective hospital services").
We recognize that Quest's principal place of business
happens to be in New Jersey. However, the injury it allegedly
inflicted here dominantly occurred in New York.
Quest's third-party claims for contribution against Mt.
Sinai likewise have a strong nexus to New York. By all
indications, Mt. Sinai's activities were confined to that state,
the state where it is located and licensed as a hospital.
We do not reach Quest's contractually-based claims for
indemnification against Mt. Sinai because the record is
incomplete in that regard. That particular choice-of-law issue
is reserved for the trial court, to be guided, to the extent
that the contractual principles apply, by the principles of
Restatement, supra, §§ 186 to 188 and related case law used for
conflicts analysis in contracts matters. See N. Bergen Rex
Transp., Inc. v. Trailer Leasing Co., 158 N.J. 561, 568 (1999).
E.
We now turn to the several factors in Section 6 of the
Restatement, which are cross-referenced in the tort provisions
in Sections 145 and 146. Applying those Section 6 factors to
this case supports the application of New Jersey law to the
50 A-1387-14T3
conduct of Dr. Rubinstein, HUMC, and Durcan, and the application
of New York law to the conduct of Quest and Mt. Sinai.
The Restatement advises that the Section 6 factors are not
exclusive, and that they may be given varying weight depending
upon the circumstances presented. Restatement, supra, § 6, cmt.
c. Moreover, it is to be expected that, "in all but the
simplest case," "some factors will point in different
directions." Ibid. "[A]ny rule of choice of law, like any
other common law rule, represents an accommodation of
conflicting values." Ibid.
In areas such as tort law, where there is no precise
choice-of-law rule or series of rules, all that can be done "is
to state a general principle, such as application of the local
law 'of the state of most significant relationship,'" and "look
in each case to the underlying factors themselves in order to
arrive at a decision which will best accommodate them." Ibid.
Distilling these concepts, our Supreme Court has instructed
that, "[f]or purposes of an issue arising out of tort law, [the
Section 6] factors may be grouped into five categories of
interests: (1) the interests of interstate comity; (2) the
interests of the parties; (3) the interests underlying the field
of tort law; (4) the interests of judicial administration; and
(5) the competing interests of the states," Fu, supra, 160 N.J.
51 A-1387-14T3
at 122. "The most important of those [factors] is the competing
interests of the states." Erny, supra, 171 N.J. at 101.
We shall combine the first and fifth factors, which are
closely related, in our analysis for ease of discussion.
1. Interests of Interstate Comity and Competing Interests
of the States
"Probably the most important function of choice-of-law
rules is to make the interstate and international systems work
well. Choice-of-law rules, among other things, should seek to
further harmonious relations between states and to facilitate
commercial intercourse between them." Restatement, supra, § 6,
cmt. d. The court must consider the interests of the competing
states, and whether application of a state's law would further
that state's interests or frustrate the interests of another.
P.V., supra, 197 N.J. at 152; Fu, supra, 160 N.J. at 122, 125;
Restatement, supra, § 6, cmt. f; but see Restatement, supra, §
145, cmt. c ("This factor must not be overemphasized, however[,
because] [t]o some extent, at least, every tort rule is designed
both to deter other wrongdoers and to compensate the injured
person.").
Causes of action for wrongful birth and wrongful life in
New Jersey advance several interests. They include: (1)
promoting a woman's right to make an informed choice regarding
whether to have a eugenic abortion; (2) regulating the conduct
52 A-1387-14T3
of professionals who provide prenatal and genetic testing by
deterring them from failing to provide women with complete and
accurate information necessary to make an informed choice; and
(3) compensating parents who lost their opportunity to make an
informed choice, resulting in the unwanted birth of an afflicted
child.
The first state interest, promoting a woman's right to make
an informed choice regarding whether to have a eugenic abortion,
would not likely be promoted by the application of New Jersey
law to plaintiffs' claims. That is because plaintiffs' decision
to choose an abortion would have occurred in New York, their
state of residence at the time of the pregnancy, and not New
Jersey.
However, the second state interest, regulating the conduct
of professionals who provide prenatal and genetic testing, would
be promoted by applying New Jersey law to the New Jersey health
care defendants. As we have already noted, New Jersey has an
interest in regulating the conduct of the physicians and genetic
counselors who practice within the state's borders, such as Dr.
Rubenstein and Durcan.20
20
See N.J.S.A. 45:9-1 to -27.9 (regulating the practice of
medicine); N.J.S.A. 45:9-37.111 to -37.120 ("Genetic Counselor's
Licensing Act"); N.J.A.C. 13:35-1.1 to -14.18 (regulation of
various medical professionals, including genetic counselors).
53 A-1387-14T3
As for Quest, and the laboratory at Mt. Sinai, such
laboratories are regulated by both federal and state law. See
42 U.S.C.A. §§ 263a to 263a-7 (certification of laboratories,
including embryo laboratories); 42 C.F.R. §§ 493.1 to 493.2001
(regulation of clinical laboratories); N.J.S.A. 45:9-42.1 to
-42.25 ("Bio-analytical Laboratory and Laboratory Directors
Act"); N.J.S.A. 45:9-42.26 to -42.45 ("New Jersey Clinical
Laboratory Improvement Act"); N.J.A.C. 8:44-2.1 to -2.14
(operation of clinical laboratories); N.J.A.C. 8:45-1.1 to -1.3
(licensure of clinical laboratories); N.Y. Educ. Law §§ 8600 to
8610 (Consol. 2015) ("Clinical Laboratory Technology Practice
Act"); N.Y. Pub. Health Law §§ 570 to 581 (Consol. 2015)
(clinical laboratory and blood banking services); N.Y. Comp.
Codes R. & Regs. tit. 10, §§ 19.1 to 19.4 (2015) (clinical
laboratory directors), §§ 58-1.1 to 58-1.13 (2015) (approval of
laboratories), §§ 58-3.1 to 58-3.9 (2015) (laboratory inspection
and reference fees).
New York has an arguably stronger interest in regulating
the testing of Ari's blood because all of that relevant conduct
occurred in New York, with the actual testing performed in Mt.
Sinai's laboratory in New York. See P.V., supra, 197 N.J. at
153 (noting that New Jersey courts "have continuously deferred
to the rights of other jurisdictions to regulate conduct within
54 A-1387-14T3
their borders. That is particularly so when the conduct is
ongoing and directed towards residents and non-residents
alike").
The third state interest relating to wrongful birth claims,
i.e., compensating parents who lost their opportunity to make an
informed choice, resulting in the unwanted birth of an afflicted
child, has several dimensions here. The Ginsbergs are presently
New Jersey residents, and hence that this state has some
interest in seeing them fairly compensated for proven wrongs.
However, they became New Jersey residents several years after
they had already lost their opportunity to make an informed
choice and had suffered the unwanted birth of an afflicted
child, thus reducing this state's interest.
New York similarly has an interest in compensating its
citizens for wrongful birth. A major difference, as pointed
out, supra, in Part II(A), is that New York limits the available
damages on such claims, and prohibits wrongful life claims
asserted by the child.
New York's policies of limiting recovery for wrongful
birth, and precluding claims for wrongful life, are entitled to
considerable respect. See Rowe v. Hoffman-La Roche, Inc., 189
N.J. 615, 629 (2007) (noting that the choice-of-law question is
not which state has the better law; inquiry is limited to which
55 A-1387-14T3
state has greater interest in applying its law to the claims);
Fu, supra, 160 N.J. at 123 (observing that rules denying
liability "are entitled to equal consideration in choice-of-law
determinations as are rules imposing liability"); Restatement,
supra, § 145, cmt. c (stating that "[a] rule which exempts the
actor from liability for harmful conduct is entitled to the same
consideration in the choice-of-law process as is a rule which
imposes liability"); accord Blakesley, supra, 789 F.2d at 243(recognizing that laws that limit medical malpractice liability
may work a hardship on out-of-state patients, but they also
provide a corresponding benefit, for example, by making
available specialized procedures that may not otherwise be
available).
Indeed, our own Supreme Court has recognized that the torts
of wrongful birth and wrongful life are controversial,
notwithstanding a woman's constitutional right to choose
abortion. See, e.g., Procanik, supra, 97 N.J. at 349-50, 353-55(surveying law from other states and noting dissenting opinions
on our own Supreme Court); Schroeder, supra, 87 N.J. at 68("[T]he problems of wrongful conception and wrongful birth
involve an evaluation not only of law, but also of morals,
medicine and society. Thus, it is not surprising that the same
issue may elicit divergent judicial responses."). Given that
56 A-1387-14T3
controversy, the impetus for applying New Jersey's substantive
law to such claims, conduct, and parties in another state is
limited.
In sum, we conclude that the values of interstate comity
and commerce would not be significantly affected by the
application of New Jersey law to the New Jersey health care
defendants. Conversely, New York's policies would be
potentially frustrated by the application of New Jersey law to
Quest and Mt. Sinai, for services that they each provided in New
York.
2. Interests of the Parties
"Generally speaking, it would be unfair and improper to
hold a person liable under the local law of one state when he
had justifiably molded his conduct to conform to the
requirements of another state." Restatement, supra, § 6, cmt.
g. However, this Section 6 factor is of lesser importance in
the field of torts than, for example, contract law.
Restatement, supra, § 145 cmt. b; accord Fu, supra, 160 N.J. at
123.
This is because persons who cause injury on
non-privileged occasions, particularly when
the injury is unintentionally caused,
usually act without giving thought to the
law that may be applied to determine the
legal consequences of this conduct. Such
persons have few, if any, justified
expectations in the area of choice of law to
57 A-1387-14T3
protect, and as to them the protection of
justified expectations can play little or no
part in the decision of a choice of law
question. Likewise, the values of
certainty, predictability and uniformity of
result are of lesser importance in torts
than in areas where the parties and their
lawyers are likely to give thought to the
problem of the applicable law in planning
their transactions. Finally, a number of
policies, such as the deterrence of tortious
conduct and the provision of compensation
for the injured victim, underlie the tort
field. These policies are likely to point
in different directions in situations where
the important elements of an occurrence are
divided among two or more states.
[Restatement, supra, § 145, cmt. b.]
On the facts of this case, the interests of the parties are
consistent with applying New Jersey law to the New Jersey health
care defendants, and New York law to Quest and Mt. Sinai. As we
have already pointed out, it is reasonable for a person
receiving medical services in New Jersey (such as Tamar, who was
a New Jersey resident when she met with the New Jersey health
care defendants) and Ari (who was a New York resident when his
blood was tested in New York), and for providers of those
services to expect that the law of the state where the services
were provided would govern claims arising from those services.
See Restatement, supra, § 146, cmt. e.21
21
We ascribe little, if any, importance, to the present
residency of Tamar and Ari in New Jersey, since they moved to
(continued)
58 A-1387-14T3
3. Interests Underlying the Field of Law
This Section 6 factor requires "courts to consider the
degree to which deterrence and compensation, the fundamental
goals of tort law, would be furthered by the application of a
state's local law." Fu, supra, 160 N.J. at 123. "This factor
is of particular importance in situations where the policies of
the interested states are largely the same but where there are
nevertheless minor differences between their relevant local law
rules." Restatement, supra, § 6, cmt. h. "In such instances,
there is good reason for the court to apply the local law of
that state which will best achieve the basic policy, or
policies, underlying the particular field of law involved."
Ibid.
"When the tort rule primarily serves a deterrent purpose,
the state where the harmful conduct took place will likely have
the dominant interest with respect to that rule." Fu, supra,160 N.J. at 123. Alternatively, "when the tort rule is designed
primarily to compensate a victim for his or her injuries, the
state where the injury occurred, which is often where the
plaintiff resides, may have the greater interest in the matter."
Ibid. "Because every tort rule, to some extent, is designed
(continued)
this state only a few months before filing their complaint and
long after their claims accrued.
59 A-1387-14T3
both to deter and to compensate, it is necessary to evaluate on
a case-by-case basis the relative weight of those underlying
purposes with respect to a specific rule." Ibid.This factor does not clearly weigh in favor of either New
Jersey or New York, since both states' laws are designed to
deter the alleged negligence in this case. The laws of each
state also provide injured plaintiffs with a remedy, albeit not
the same remedy.
4. Interests of Judicial Administration
The Restatement advises that the interests of judicial
administration are important values in all areas of the law:
To the extent that they are attained in
choice of law, forum shopping will be
discouraged. These values can, however, be
purchased at too great a price. In a
rapidly developing area, such as choice of
law, it is often more important that good
rules be developed than that predictability
and uniformity of result should be assured
through continued adherence to existing
rules. Predictability and uniformity of
result are of particular importance in areas
where the parties are likely to give advance
thought to the legal consequences of their
transactions.
[Restatement, supra, § 6, cmt. i.]
However, the Restatement also recommends that the interests of
administration should not be accorded too much weight. See
Restatement, supra, § 6, cmt. j ("Ideally, choice-of-law rules
should be simple and easy to apply. This policy should not be
60 A-1387-14T3
overemphasized, since it is obviously of greater importance that
choice-of-law rules lead to desirable results. The policy does,
however, provide a goal for which to strive.") (emphasis added);
see also Fu, supra, 160 N.J. at 124 (noting that the interests
of judicial administration "are of lesser importance and must
yield to a strong state interest implicated by the remaining
factors") (emphasis added).
The trial court found that the interests of judicial
administration weigh in this case in favor of applying one
state's law to all claims against all defendants, as doing so
would simplify any trial. That is certainly a pragmatic
observation. Nevertheless, given the circumstances here,
imposing the law of either New Jersey (or New York) across the
board to all of the defendants and Mt. Sinai indiscriminately
would not be a sound or fair result. Although we recognize the
value of the ease of judicial administration, that Section 6
factor is "of lesser importance" and "must yield to the strong
state interest[s] implicated." Fu, supra, 160 N.J. at 124.
Administrative ease therefore should not be dispositive in this
particular case.
On the whole, some of the Section 6 factors weigh in favor
of applying New Jersey law to the New Jersey health care
defendants and New York law to the New York defendants, while
61 A-1387-14T3
other factors are neutral as to which state's law should apply.
Considering those factors qualitatively, and giving due regard
for the divergent bases of the claims against the various
defendants and against Mt. Sinai, and the competing interests of
the states, we reach the following conclusions, on a defendant-
by-defendant basis.
First, we hold that New York law applies to the tort-based
claims asserted against Quest and Mt. Sinai. New York is the
place of injury relating to those alleged wrongdoers. New York
is also the state with the most significant relationship to
those claims because New York is the state where Ari resided and
sought the testing services at issue; it is the state where the
alleged misconduct of those parties occurred; it is the state
where those parties' relationships are centered; and New York
has a greater interest than New Jersey in regulating Quest and
Mt. Sinai under these circumstances. Additionally, to apply New
Jersey law to those claims would substantially frustrate the
interests of New York.
Conversely, we rule that New Jersey law should apply to the
claims asserted against Dr. Rubenstein, HUMC, and Durcan. Even
though New York is the dominant and perhaps exclusive place of
plaintiffs' injury, New Jersey is the state with the most
significant relationship to these particular claims. New Jersey
62 A-1387-14T3
is where these specific defendants' alleged misconduct occurred;
it is the location where those parties' relationships were
centered; and it is reasonable to expect that New Jersey law
would apply to the provision of medical and genetic counseling
and hospital services in New Jersey. Moreover, as we have
shown, New Jersey has a strong interest in regulating the
provision of medical and genetic counseling services and
hospitals in this state. Applying New York law to the New Jersey
health care defendants would substantially frustrate that
regulatory interest.
In sum, we conclude that the Section 6 and the other
Restatement factors support the use of a defendant-specific
approach to choice of law in this case. Under that approach,
New Jersey law will apply to the claims asserted against the New
Jersey health care defendants, and New York law will apply to
Quest and Mt. Sinai.
F.
That brings us to various subsidiary questions. First, we
consider what law governs the cross-claims asserted by and among
the New Jersey health care defendants (i.e., HUMC, Durcan, and
63 A-1387-14T3
Dr. Rubenstein) and the New York parties (i.e., Quest22 and Mt.
Sinai).
As a general matter, a claim of non-contractual
indemnification is derivative of the underlying claim against
the party seeking to be indemnified. See Rutgers Cas. Ins. Co.
v. LaCroix, 194 N.J. 515, 525 (2008) (recognizing, in the
context of insurance, that contribution claims are derivative of
a party's right to assert an underlying claim); see also Tucker
v. Allstate Ins. Co., 195 N.J. Super. 230, 233-34 (App. Div.
1984) (not permitting a derivative claim for contribution by
another insurer relative to a void policy).
This derivative aspect poses a potential problem in
identifying the applicable state law of contribution, insofar as
the New York parties' cross-claims against the New Jersey
defendants conceivably would be analyzed under New York law,
while the opposing cross-claims by the New Jersey defendants
against the New York parties would be conceivably analyzed under
New Jersey law. Both state's laws, to the extent they may
differ, cannot simultaneously apply in opposite directions. For
example, it is unclear whether the New York parties, who are not
22
For ease of this contribution discussion, we refer to Quest as
a "New York" party, even though Quest's principal place of
business is New Jersey, because its allegedly harmful conduct
took place in New York.
64 A-1387-14T3
liable for wrongful life under New York law, could be liable for
cross-claims asserted against them by the New Jersey health care
defendants.
We need not enter this analytic thicket at this time. For
one thing, the identities of the parties at the ultimate time
this case is concluded, whether by settlement, dismissal, or
trial, remains to be seen. Some or all of the cross-claim
problems may be mooted, depending upon which claims and parties
are ultimately left in the case. We do not in this
interlocutory appeal have to resolve those cross-claim questions
now. Instead, we defer them to the trial court for resolution
at a later time, when it shall be guided by the "most
significant relationship" analysis. See Restatement, supra, §
173 (instructing that the "most significant relationship" test
of Section 145 should determine "whether one tort feasor has a
right to contribution or indemnity against another tort
feasor").
Second, despite the guidance we are providing in this
opinion, we do not completely foreclose the trial court from re-
examining the choice-of-law aspects of this case at the time of
trial. We appreciate that the parties and the trial court
typically have a strong need to have the governing choice-of-law
identified as early as possible in the life of a case. The
65 A-1387-14T3
parties will surely pursue discovery, including expert reports,
addressing the applicable state-specific standards of care
guided by that determination. Any dispositive motions filed
will also be guided accordingly.
Even so, we recognize that in rare and extraordinary
circumstances, there may be pragmatic or equitable reasons to
revisit choice of law at the time of trial to verify that the
court's initial assessment of the "most significant
relationship" of states to the viable issues or claims is still
valid, and that it can be feasibly implemented in jury
instructions and on the verdict form.
Although we do not at all imply that this case will prove
to be such a rare and exceptional circumstance, we reserve to
the trial court the ultimate authority to reconsider the choice-
of-law analysis at the time of trial. Such further review, if it
is conducted at all, must be guided by the principles we have
stated in this opinion. At that juncture, the trial court must
consider how cross-claims among any remaining defendants or
third-party defendants should be adjudicated, and what state's
law applies to any contractual indemnification claims that may
also remain.
A choice-of-law ruling made before trial is interlocutory
in nature, and as such, can be revisited by the court in its
66 A-1387-14T3
"sound discretion." Lombardi v. Masso, 207 N.J. 517, 534 (2011)
(quoting Johnson v. Cyklop Strapping Corp., 220 N.J. Super. 250,
257 (App. Div. 1987), certif. denied, 110 N.J. 196 (1988)).
Indeed, Quest and Mt. Sinai both acknowledge the court's
inherent authority to revisit an original choice-of-law ruling,
but urge that such authority be exercised very sparingly.
Plaintiffs likewise express concerns about reconsidering the
choice-of-law assessment after substantial resources have been
invested in a case.
We agree that an alteration of the choice-of-law ruling
should be done only in truly exceptional circumstances where it
would be simply unworkable or unjust to carry out the original
choice-of-law ruling at trial. On the other hand, we reject the
rigid positions of HUMC, Durcan, and Dr. Rubenstein that the
court's original choice-of-law rulings is an immutable "law of
the case." See Lombardi, supra, 207 N.J. at 539-40.
G.
Since they were not specifically addressed by the trial
court and were not fully briefed by all parties in these
interlocutory appeals, we decline to pass upon the discrete
choice-of-law issues concerning the applicable statutes of
limitations. We do instruct that such analysis likewise may
proceed on a defendant-by-defendant approach rather than a
67 A-1387-14T3
"global" approach. In particular, the trial court shall apply
the specific choice-of-law principles for statute of limitations
purposes expressed by the Supreme Court in Cornett, supra, 211
N.J. at 374-79. The trial court may also consider pertinent
concepts under Section 142 of the Restatement to the extent
those Restatement concepts are consistent with decisional law in
our State.
H.
For all of these reasons, the trial court's choice-of-law
decision and its corresponding orders dated September 26, 2014
respecting choice of law are reversed in part, consistent with
this opinion.
The matter is remanded to the trial court for the
completion of the case. We do not retain jurisdiction.
68 A-1387-14T3