The opinion of the court was delivered by
SABATINO, P.J.A.D.
These four interlocutory appeals
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 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, 962 A.2d 453 (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
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 trying the remaining claims and cross-claims under the laws of multiple states.
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.
The parents of the now-deceased child, plaintiffs Tamar Ginsberg ("Tamar")
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 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, 818 A.2d 402 (App.Div.), certif. denied, 177 N.J. 223, 827 A.2d 290 (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,
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 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 defendant, Mt. Sinai Medical Center ("Mt. Sinai") for testing, pursuant to an agreement between the two entities.
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.
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.
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
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 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 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.
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."
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.
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 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.
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
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. Abigail received pediatric care from Dr. Hylton Lightman, in New York.
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-Sachs, and it was not possible for his two test results to contradict each other without there being a flaw in the original testing.
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.
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
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.
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.
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.
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, 962 A.2d 453. The judge recognized that, in a case such as this one with claims of tortious conduct, the law recognizes a presumption in favor
The judge rejected the possibility that New Jersey law could apply to claims against certain parties in this case, 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 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.
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.
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.
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.Super. 343, 350, 28 A.3d 856 (Law Div.2008), aff'd on other grounds, 422 N.J.Super. 360, 28 A.3d 1245 (App.Div. 2011), certif. denied, 211 N.J. 274, 48 A.3d 355 (2012). We apply a de novo standard of appellate review to such rulings. Bondi v. Citigroup, Inc., 423 N.J.Super. 377, 418, 32 A.3d 1158 (App.Div.2011), certif. denied, 210 N.J. 478, 45 A.3d 983 (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, 733 A.2d 1133 (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, 962 A.2d 453.
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. Allan, 80 N.J. 421, 430-32, 404 A.2d 8 (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, 730 A.2d 805 (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, 404 A.2d 8, along with the economic costs associated with their child's affliction, Schroeder v. Perkel, 87 N.J. 53, 67-71, 432 A.2d 834 (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, 46 N.Y.2d 401, 413 N.Y.S.2d 895, 386 N.E.2d 807, 813-14 (1978). Parents may not recover emotional distress damages on such claims under New York law. Foote v. Albany Med. Ctr. Hosp., 16 N.Y.3d 211, 919 N.Y.S.2d 472, 944 N.E.2d 1111, 1113 (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, 69 N.Y.2d 807, 513 N.Y.S.2d 382, 505 N.E.2d 947, 948 (1987))); accord Becker, supra, 413 N.Y.S.2d 895, 386 N.E.2d at 813-14; Howard v. Lecher, 42 N.Y.2d 109,
Apart from wrongful birth claims by parents, New Jersey separately recognizes what are known in this state as "wrongful life"
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 pursuant to our discovery rule, Lopez v. Swyer, 62 N.J. 267, 272-76, 300 A.2d 563 (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, 33 A.D.3d 518, 823 N.Y.S.2d 61, 63 (2006), aff'd, 865 N.Y.3d 901, 834 N.Y.S.2d 74, 865 N.E.2d 1240 (2007); but see Jorge v. N.Y. City Health & Hosps. Corp., 79 N.Y.2d 905, 581 N.Y.S.2d 654, 590 N.E.2d 239, 240 (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.
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, 962 A.2d 453. Under the most significant relationship test in a case involving personal injury, the analysis:
Hence, we must identify the place of injury under Restatement § 146, which states:
"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." P.V., supra, 197 N.J. at 144, 962 A.2d 453 (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 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
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 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:
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, 962 A.2d 453, "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, 962 A.2d 453. The analysis of the relevant factors is qualitative, not merely quantitative. Id. at 147, 155-56, 962 A.2d 453; Fu, supra, 160 N.J. at 125, 733 A.2d 1133. In this regard, Restatement, supra, § 145 instructs:
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 143, 962 A.2d 453; accord Cornett v. Johnson & Johnson, 211 N.J. 362, 374, 48 A.3d 1041 (2012); Erny v. Estate of Merola, 171 N.J. 86, 95, 792 A.2d 1208 (2002); Grossman v. Club Med Sales, Inc., 273 N.J.Super. 42, 50-51, 640 A.2d 1194 (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, 48 A.3d 1041 (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., 65 N.Y.2d 189, 491 N.Y.S.2d 90, 480 N.E.2d 679 (1985)). Moreover, courts in several other states have similarly permitted that approach.
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 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.
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 case to different respective defendants. See Belmont Condo. Ass'n, Inc. v. Geibel, 432 N.J.Super. 52, 97, 74 A.3d 10 (App.Div.) (expressing the oft-repeated maxim that jurors are presumed to follow the court's instructions), certif. denied, 216 N.J. 366, 80 A.3d 747 (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.
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.
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, 909 A.2d 768 (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 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.
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
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 the services were provided.
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 tortious and injurious conduct — to the extent it is actionable — took place entirely in New Jersey.
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
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).
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.
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
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, 730 A.2d 843 (1999).
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 conduct of Dr. Rubenstein, 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. at 122, 733 A.2d 1133. "The most important of those [factors] is the competing interests of the states." Erny, supra, 171 N.J. at 101, 792 A.2d 1208.
We shall combine the first and fifth factors, which are closely related, in our analysis for ease of discussion.
"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, 962 A.2d 453; Fu, supra, 160 N.J. at 122, 125, 733 A.2d 1133; 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 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.
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
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, 917 A.2d 767 (2007) (noting that the choice-of-law question is not which state has the better law; inquiry is limited to which state has greater interest in applying its law to the claims); Fu, supra, 160 N.J. at 123, 733 A.2d 1133 (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, 478 A.2d 755 (surveying law from other states and noting dissenting opinions on our own Supreme Court); Schroeder, supra, 87 N.J. at 68, 432 A.2d 834 ("[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 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.
"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
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.
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, 733 A.2d 1133. "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, 733 A.2d 1133. 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 both to deter and to compensate,
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.
The Restatement advises that the interests of judicial administration are important values in all areas of the law:
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 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, 733 A.2d 1133 (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, 733 A.2d 1133. 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 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
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 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.
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 Dr. Rubenstein) and the New York parties (i.e., Quest
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, 946 A.2d 1027 (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, 478 A.2d 1220 (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 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
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 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 "sound discretion." Lombardi v. Masso, 207 N.J. 517, 534, 25 A.3d 1080 (2011) (quoting Johnson v. Cyklop Strapping Corp., 220 N.J.Super. 250, 257, 531 A.2d 1078 (App.Div.1987), certif. denied, 110 N.J. 196, 540 A.2d 189 (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, 25 A.3d 1080.
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 "global" approach. In particular, the trial court shall apply the specific choice-of-law principles for statute
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.
