Ginsberg v. Quest Diagnostics, Inc.

• Citation: 117 A.3d 200,441 N.J.Super. 198
• Decision Date: 18 June 2015
• Docket Number: DOCKET NO. A-1387-14T3, A-1388-14T3, A-1389-14T3, A-1390-14T3
• Parties: 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., 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 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. 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. 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.
• Court: New Jersey Superior Court – Appellate Division

441 N.J.Super. 198

117 A.3d 200

Abigail GINSBERG, an infant¹ by her mother Tamar GINSBERG, as Guardian ad litem;

Tamar Ginsberg, Individually; and Ari Ginsberg, Individually, Plaintiffs–Respondentsv.QUEST DIAGNOSTICS, INC., Defendant–AppellantandAndrew 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

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–Respondentsv.Quest Diagnostics, Inc., and Andrew Rubenstein, M.D., Defendants–RespondentsandHackensack 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.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–Respondentsv.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.

Abigail Ginsberg, an infant, by her mother Tamar Ginsberg, as Guardian ad litem;

Tamar Ginsberg, Individually; and Ari Ginsberg, Individually, Plaintiffs–Respondentsv.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.

DOCKET NO. A-1387-14T3, A-1388-14T3, A-1389-14T3, A-1390-14T3

Superior Court of New Jersey, Appellate Division.

Argued March 16, 2015.

Decided June 18, 2015.

Thomas J. Cafferty, Newark, 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, Newark, 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, Princeton, 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).

Before Judges SABATINO, SIMONELLI, and GUADAGNO.

Opinion

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 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 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 arrangements for the testing of the 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 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 was 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, 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 translocation

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