Mascarella v. Brown, 91 Civ. 6596 (SS).

• Decision Date: 05 February 1993
• Docket Number: No. 91 Civ. 6596 (SS).,91 Civ. 6596 (SS).
• Citation: 813 F. Supp. 1015
• Parties: Justine MASCARELLA, Individually and as Administratrix of the Estate of Neala Mascarella, Deceased, Plaintiff, v. Annette M. BROWN, M.D., Defendant. Annette M. BROWN, M.D., Third-Party Plaintiff, v. E.R. SQUIBB & SONS, INC. and Elissa Santoro, M.D., Third-Party Defendants.
• Court: U.S. District Court — Southern District of New York

813 F. Supp. 1015

Justine MASCARELLA, Individually and as Administratrix of the Estate of Neala Mascarella, Deceased, Plaintiff, v. Annette M. BROWN, M.D., Defendant.

Annette M. BROWN, M.D., Third-Party Plaintiff, v. E.R. SQUIBB & SONS, INC. and Elissa Santoro, M.D., Third-Party Defendants.

No. 91 Civ. 6596 (SS).

United States District Court, S.D. New York.

February 5, 1993.

Garruto, Galex and Cantor P.C. by Todd Brandon Eder, East Brunswick, NJ, for plaintiff.

Gordon & Silber, P.C. by Michael Yoeli, New York City, for defendant/third-party plaintiff Annette M. Brown, M.D.

Sills Cummis Zuckerman Radin Tischman Epstein & Gross by Scott N. Rubin, New York City, for third-party defendant E.R. Squibb & Sons, Inc.

Connell, Foley & Geiser by George J. Kenny, Roseland, NJ, for third-party defendant Elissa Santoro, M.D.

MEMORANDUM OPINION AND ORDER

SOTOMAYOR, District Judge.

Third-Party Defendant E.R. Squibb & Sons, Inc. comes before the Court on a motion for summary judgment to dismiss the Third-Party Complaint against it. In addition, Defendant/Third-Party Plaintiff Annette M. Brown, M.D., moves to dismiss the second count of Plaintiff's First Amended Complaint to the extent that it is premised on the wrongful death law of North Carolina. For the reasons stated below, the motion of E.R. Squibb & Sons, Inc. is DENIED and Dr. Brown's motion is GRANTED.

I. Background

The undisputed facts material to these motions are simple. During much of 1989, Neala Mascarella lived in New Jersey and worked for E.R. Squibb & Sons, Inc. ("E.R. Squibb") at its offices in New Brunswick, New Jersey. E.R. Squibb offered its employees a free mammography screening program and Ms. Mascarella participated in it. With the assistance of his staff, Dr. Clayton Leopold performed the mammography at E.R. Squibb's New Brunswick facility, where he is Associate Medical Director.

During the screening examination, Ms. Mascarella advised Dr. Leopold that her sister had recently died of breast cancer, and Dr. Leopold noted that fact in his medical records. Dr. Leopold's office then forwarded Ms. Mascarella's mammogram films to Dr. Annette Brown, an independent contractor radiologist in New York, for reading.

In October 1989, after reading and interpreting the mammogram films, Dr. Brown issued a report, which Ms. Mascarella subsequently received. The report stated that she had found "no radiographic evidence of malignancy." One year later, Ms. Mascarella was diagnosed with adenocarcinoma of the left breast. In July 1991, she filed a state court action in New Jersey against E.R. Squibb and Dr. Leopold, claiming that Dr. Leopold's treatment of her was negligent. She later voluntarily dismissed her state court action after learning from E.R. Squibb's counsel that they intended to file a motion to dismiss her claims as barred by New Jersey workers' compensation laws.

Several months after Ms. Mascarella had filed her state suit, she commenced this federal action against Dr. Brown for failure to diagnose her breast cancer. In June of 1992, Dr. Brown filed a Third-Party Complaint seeking indemnity and contribution from E.R. Squibb, claiming that it had negligently failed to inform her about the history of breast cancer in Ms. Mascarella's family. It is not clear whether Dr. Brown had been informed about Ms. Mascarella's family history of breast cancer, whether such notification would have made any difference in her recommendations to Ms. Mascarella, or whether such recommendations would have altered Ms. Mascarella's self-monitoring behavior.

At some time after Ms. Mascarella left E.R. Squibb's employment at the end of 1989, she moved to North Carolina. She died there on September 27, 1992, approximately one year after this action was filed. The Court subsequently permitted the filing of a First Amended Complaint substituting Ms. Mascarella's daughter as Administratrix and adding a wrongful death cause of action as a second count. The second count states that the Administratrix "commences this action for all losses suffered as a result of death by wrongful act pursuant to North Carolina's Statutes 28A-18-2, including but not limited to" various damages listed in the statute. Dr. Brown has moved to dismiss that portion of the First Amended Complaint which relies on North Carolina's wrongful death statute.

II. Discussion

A. E.R. Squibb's Motion for Summary Judgment

Under Fed.R.Civ.P. 56(c), summary judgment is appropriate if the evidence demonstrates that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). "The judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Id. Thus, the Court must perform "the threshold inquiry of determining whether there is the need for a trial—whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Id. In determining whether there is a genuine issue of material fact, a court must resolve all ambiguities, and draw all reasonable inferences, against the moving party. See United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962) (per curiam); Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 57 (2d Cir.1987).

E.R. Squibb argues that New Jersey law governs the third-party action against it, and that it is entitled to judgment as a matter of law because New Jersey's worker compensation laws preclude third-party claims for contribution and indemnification against a plaintiff's employer. See Ramos v. Browning Ferris Industries, 103 N.J. 177, 510 A.2d 1152, 1155 (1986) (contribution); Stephenson v. R.A. Jones & Co., Inc., 103 N.J. 194, 510 A.2d 1161, 1163 (1986) (indemnification). Not surprisingly, Dr. Brown argues that her third-party claim is governed by New York law, which recognizes third-party claims against a plaintiff's employer. See, e.g., Iannielli v. Serota, 169 A.D.2d 704, 564 N.Y.S.2d 189 (2d Dept.), appeal denied, 77 N.Y.2d 809, 571 N.Y.S.2d 912, 575 N.E.2d 398 (1991); 1974 Judicial Conference Report to 1974 Amendments of N.Y.CPLR 1401. Thus, E.R. Squibb's motion presents a choice of law question.

A federal district court must apply the choice of law rules of the state in which it resides. Klaxon Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941); AroChem International, Inc. v. Buirkle, 968 F.2d 266, 269 (2d Cir.1992). Therefore, New York's choice of law rules must be used to determine which law governs this third-party action.

"Interest analysis is the relevant analytical approach to choice of law in tort actions in New York." Schultz v. Boy Scouts of America, 65 N.Y.2d 189, 197, 491 N.Y.S.2d 90, 95, 480 N.E.2d 679, 684. Under this framework, the "law of the jurisdiction having the greatest interest in the litigation will be applied and ... the only facts or contacts which obtain significance in defining State interests are those which relate to the purpose of the particular law in conflict." Id. (citations omitted). Moreover, "the significant contacts are, almost exclusively, the parties' domiciles and the locus of the tort." Id.

Thus, under New York law, the first step in resolving the choice of law question is to determine the domiciles of the parties. There is no dispute that Dr. Brown is domiciled in New York. There is some question, however, as to E.R. Squibb's domicile for purposes of this action.

At the time of Ms. Mascarella's mammogram in 1989, her employer was E.R. Squibb, a Delaware corporation with its principal place of business in New Jersey. Its parent, Squibb Corporation, merged with Bristol-Myers Company in October of 1989 but retained its status as a separate corporate entity. As a result of the merger, Bristol-Myers Company changed its name to Bristol Myers-Squibb Company. The merger, however, did not affect the status of E.R. Squibb, which remained an independent subsidiary of Squibb Corporation, with its principal place of business in New Jersey.

Dr. Brown argues that there is evidence that the Medical Department of E.R. Squibb, for whose purported negligence Dr. Brown seeks contribution and indemnification, is more properly considered to be a part of the larger Bristol Myers-Squibb Company, which is domiciled in New York. Nonetheless, the named third-party defendant is E.R. Squibb, and it is the domicile of E.R. Squibb that is significant. In sum, Dr. Brown has not come forward with sufficient evidence to support a finding that E.R. Squibb is domiciled anywhere other than New Jersey.

The second factor that must be considered in resolving the choice of law question is the locus of the tort. E.R. Squibb contends that its alleged negligence occurred in New Jersey, where it may have failed to question Ms. Mascarella about her family history of breast cancer, to record her answer, or properly to assemble the information for transmission to Dr. Brown. Dr. Brown, on the other hand, claims that the negligence occurred in New York because the mammograms and other materials supplied by the Medical Department were taken from New Jersey and delivered to her at E.R. Squibb's medical facility in New York. Thus, in her view, the locus of the negligence was New York, where incomplete materials were delivered to her.

The Court finds, at least at this stage, that Dr. Brown has proffered sufficient evidence to support a finding that the locus of the tort was New York, rather than New Jersey. Therefore, for purposes of determining E.R. Squibb's instant motion, the Court draws all reasonable inferences against the moving party and analyzes the choice of law question by using New York as the locus of the tort, as Dr. Brown...