Provenzano v. Integrated Genetics
| Decision Date | 30 June 1999 |
| Docket Number | No. Civ.A. 97-1460(MLC).,Civ.A. 97-1460(MLC). |
| Citation | 66 F.Supp.2d 588 |
| Parties | Karen PROVENZANO and Thomas Provenzano, individually, Plaintiffs, v. INTEGRATED GENETICS, et al., Defendants. |
| Court | U.S. District Court — District of New Jersey |
Bard L. Shober, Goldsmith, Weiss, & D'arcy, P.C., New Road Northfield, New Jersey.
Christopher J. Carey, Wilson, Elser, Moskowitz, Edelman & Dicker, LLP Newark, New Jersey.
Presently before the Court is the Defendants' motion, in a wrongful birth case, to dismiss Plaintiffs' claim for damages related to extraordinary medical expenses. The Plaintiffs oppose the motion. The Court considered all written submissions and conducted oral argument by recorded conference call on June 28, 1999. Pursuant to 28 U.S.C. § 636, the parties have consented to the jurisdiction of the United States Magistrate Judge for all purposes.
This opinion completes the discussion on the dispositive motion practice begun with the Court's decision, reported in Provenzano v. Integrated Genetics, 22 F.Supp.2d 406 (D.N.J.1998), denying Defendants' motion for summary judgment on the cause of action itself. Defendants had sought summary judgment because the Plaintiff, Mrs. Provenzano, could not testify that she would have had an abortion if the alleged negligence had not occurred.
For the following reasons, and chiefly based upon the New Jersey Supreme Court's recent decision in Canesi v. Wilson, 158 N.J. 490, 730 A.2d 805 (1999), the Court will grant the Defendants' motion and dismiss all claims for reimbursement of medical damages because Mrs. Provenzano's inability to say that she would have terminated the pregnancy precludes a jury from finding that the alleged negligence proximately caused the extraordinary medical expenses incurred as a result of Tiffani's1 birth and, regrettably, very brief life.
The facts and procedural history are more fully stated in the Court's previous opinion but the essentials are these.
Mrs. Provenzano was treated during the course of her pregnancy in 1995 by Dr. Ravitz and Dr. Hux. Mrs. Provenzano was carrying twins. During the course of this treatment, Dr. Hux conducted an amniocentesis and sent amniotic samples to the Defendant, Integrated Genetics, for testing. The test results were returned as negative for birth defects for both fetuses. After giving birth to twins, and after Tiffani had been taken to Children's Hospital in Philadelphia to be treated for serious birth defects, the tests were reexamined. The reexamination revealed that a Trisomy 14 mosaicism, a genetic disease, was overlooked when the slides were originally examined. Tiffani passed on approximately eight months after birth.
During her discovery deposition in this case, Mrs. Provenzano testified, in relevant part, as follows:
Mr. Provenzano, the Plaintiff husband and father, testified in his discovery deposition, again in relevant part, as follows:
Subsequent to his deposition, Mr. Provenzano submitted a certification in which he alleged that, had he known of the birth defect, he would have favored a termination and would have strongly advised his wife to terminate the one pregnancy. He further stated that his deposition testimony was "inaccurate" because he had not slept in approximately 21 hours.
Plaintiffs originally filed their complaint in state court on November 1, 1996, later amended their complaint, and, on March 20, 1997, the matter was removed to federal court based upon diversity of citizenship grounds. Thereafter, after full discovery had been completed and the parties consented to the jurisdiction of the United States Magistrate Judge, the Defendants filed a motion for summary judgment, essentially arguing that the Plaintiff's inability to say that she would have terminated the one twin's pregnancy was conclusive as to the cause of action itself because it would preclude a finding that the alleged negligence caused any injury. That particular motion was denied on October 13, 1998 and the Defendants sought, without opposition from the Plaintiffs, to amend the order to allow them to seek an interlocutory appeal of the decision denying the motion for summary judgment. The United States Court of Appeals for the Third Circuit denied the petition for leave to appeal on March 4, 1999 and remanded the matter. The present motion was filed May 28, 1999 and oral argument was conducted on June 28, 1999.
Summary judgment may only be granted if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In a summary judgment motion, the non-moving party receives the benefit of all reasonable doubts and any inferences drawn from the underlying facts. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). If the non-moving party bears the burden of proof at trial as to a dispositive issue, Rule 56(e) requires her to go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial. Celotex, 477 U.S. at 324, 106 S.Ct. 2548; Schoch v. First Fidelity Bancorporation, 912 F.2d 654, 657 (3d Cir.1990). Issues of material fact are genuine only "if evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
In its original opinion, this Court premised its decision on an analysis that since New Jersey case law did not specifically address proximate causation in a wrongful birth context where the mother cannot say she would have terminated the pregnancy, it was necessary to predict how the New Jersey Supreme Court would decide the issue. Provenzano, 22 F.Supp.2d at 416 (citing Polselli v. Nationwide Mutual Fire Ins. Co., 126 F.3d 524, 528 (3d Cir.1997)).
Additionally, this Court, in denying the Defendants' motion for summary judgment, forewarned the parties of a caveat on the issue of proper damages, by stating:
Further, it is for a jury to determine damages. It may well be that Mrs. Provozano's inability to testify that she would have had an abortion would operate as a limitation on damages (i.e., compensation for her emotional distress and suffering but not medical expenses for the child). However, the parties have not had a fair opportunity to present this issue to the Court. Resolution of the damages issue, though, is not necessary to decide this summary judgment motion. It is, uniquely for a jury, and not a court, to decide these issues.
In this wrongful birth action, the Plaintiffs have asserted claims for damages related to the parents' emotional distress and suffering and for extraordinary medical expenses associated with the baby's medical treatment over an eight month period.
The Defendants, acknowledging the Court's earlier decision, do not dispute the Plaintiffs' entitlement to damages related to the parents' emotional distress, if successful on the issue of liability. However, Defendants claim that the mother's inability to testify that she would have had an abortion would prevent any rational jury from finding that the alleged negligence proximately caused damages related to medical treatment of Tiffani over the course of her very brief life.
In essence, the Defendants argue that Plaintiffs, in view of the mother's sworn testimony, cannot prove that Tiffani would not have been born except for the allegedly negligent conduct. Defendants rely on the New Jersey Supreme Court's holding that: "[a]n act or an omission is not regarded as a cause of an event if the particular event would have occurred without it." Kulas v. Public Service Electric and Gas Co., 41 N.J. 311, 317, 196 A.2d 769 (1964). Defendants claim that any alleged negligence could not have proximately caused the incurring of any medical expenses because the Plaintiff cannot say she would have terminated the pregnancy.
Additionally, the Defendants distinguish wrongful life cases from wrongful birth cases in support of their argument that only emotional distress damages and not medical expense damages should go to the jury at trial. Significantly here, the complaint only alleges a claim for wrongful birth.
The New Jersey Supreme Court has recognized two separate causes of actions, "wrongful life" and "wrongful birth", that may arise when parents are deprived of the option of abortion as a result of negligent medical treatment. Procanik by Procanik v. Cillo, 97 N.J. 339, 348, 478 A.2d 755 (1984). In Procanik, the Court barred the wrongful birth claim on statute of limitations grounds but permitted a wrongful life claim where extraordinary medical damages may be awarded. 97 N.J. at 352, 478 A.2d 755. However, the court also found that the infant plaintiff could not recover for emotional distress or impairment of childhood. Id. at 342-43, 478 A.2d 755.
In Berman v. Allan, 80 N.J. 421, 404 A.2d 8 (1979), the New Jersey Supreme Court first established a wrongful birth claim, permitting an award of damages for emotional distress and anguish caused by the defendants' negligence. In Schroeder v. Perkel, 87 N.J. 53, 432 A.2d 834 (1981), the New Jersey Supreme Court liberalized the recovery available in a wrongful...
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