Abigail Ginsberg v. Quest Diagnostics, Inc.

117 A.3d 200, 441 N.J. Super. 198

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1387-14T3 A-1388-14T3 A-1389-14T3 A-1390-14T3

ABIGAIL GINSBERG, an infant,1 by her mother TAMAR GINSBERG, APPROVED FOR PUBLICATION as Guardian ad litem; TAMAR June 18, 2015 GINSBERG, Individually; and ARI GINSBERG, Individually, APPELLATE DIVISION

Plaintiffs-Respondents,

v.

QUEST DIAGNOSTICS, INC.,

Defendant-Appellant,

and

ANDREW RUBENSTEIN, M.D.; HACKENSACK UNIVERSITY MEDICAL CENTER; HACKENSACK UNIVERSITY MEDICAL CENTER DEPARTMENT OF PEDIATRICS GENETICS SERVICE; and JUDITH DURCAN, MS,

Defendants-Respondents,

and

1 Abigail Ginsberg passed away in March 2011. The appendices contain a letter from plaintiffs' counsel indicating that Tamar Ginsberg was subsequently appointed Administrator of the child's Estate, but we have not been furnished with a copy of a pleading with a corresponding amended caption substituting the Estate as a co-plaintiff. QUEST DIAGNOSTICS, INCORPORATED,

Third-Party Plaintiff,

v.

THE MOUNT SINAI MEDICAL CENTER, INC.,

Third-Party Defendant. _________________________________

ABIGAIL GINSBERG, an infant, by her mother TAMAR GINSBERG as Guardian ad litem; TAMAR GINSBERG, Individually; and ARI GINSBERG, Individually,

Plaintiffs-Respondents,

v.

QUEST DIAGNOSTICS, INC., and ANDREW RUBENSTEIN, M.D.,

Defendants-Respondents,

and

HACKENSACK UNIVERSITY MEDICAL CENTER; HACKENSACK UNIVERSITY MEDICAL CENTER DEPARTMENT OF PEDIATRICS GENETICS SERVICE; and JUDITH DURCAN, MS,

Defendants-Appellants,

and

QUEST DIAGNOSTICS, INCORPORATED,

Third-Party Plaintiff,

v.

2 A-1387-14T3 THE MOUNT SINAI MEDICAL CENTER, INC.,

Third-Party Defendant. _________________________________

ABIGAIL GINSBERG, an infant, by her mother TAMAR GINSBERG, as Guardian ad litem; TAMAR GINSBERG, Individually; and ARI GINSBERG, Individually,

Plaintiffs-Respondents,

v.

QUEST DIAGNOSTICS, INC.; HACKENSACK UNIVERSITY MEDICAL CENTER; HACKENSACK UNIVERSITY MEDICAL CENTER DEPARTMENT OF PEDIATRICS GENETICS SERVICES; and JUDITH DURCAN, MS,

Defendants-Respondents,

and

ANDREW RUBENSTEIN, M.D.,

Defendant-Appellant,

and

QUEST DIAGNOSTICS, INCORPORATED,

Third-Party Plaintiff,

v.

THE MOUNT SINAI MEDICAL CENTER, INC.,

Third-Party Defendant. _________________________________

3 A-1387-14T3 ABIGAIL GINSBERG, an infant, by her mother TAMAR GINSBERG, as Guardian ad litem; TAMAR GINSBERG, Individually; and ARI GINSBERG, Individually,

Plaintiffs-Respondents,

v.

QUEST DIAGNOSTICS, INC.; ANDREW RUBENSTEIN, M.D.; HACKENSACK UNIVERSITY MEDICAL CENTER; HACKENSACK UNIVERSITY MEDICAL CENTER DEPARTMENT OF PEDIATRICS GENETICS SERVICE; and JUDITH DURCAN, MS,

Defendants-Respondents,

and

QUEST DIAGNOSTICS, INCORPORATED,

Third-Party Plaintiff- Respondent,

v.

THE MOUNT SINAI MEDICAL CENTER, INC.,

Third-Party Defendant- Appellant. _________________________________

Argued March 16, 2015 - Decided June 18, 2015

Before Judges Sabatino, Simonelli, and Guadagno.

On appeal from an interlocutory order of the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-1169-10.

4 A-1387-14T3 Thomas J. Cafferty argued the cause for appellant Quest Diagnostics in 1387-14 and as respondent in 1388-14 and 1389-14 (Gibbons P.C., attorneys; Mr. Cafferty, Mark S. Sidoti, Nomi I. Lowy, and Lauren James- Weir, of counsel and on the brief).

Michael R. Ricciardulli argued the cause for appellant Andrew Rubenstein, M.D. in 1389-14 and as respondent in 1387-14, 1388-14, and 1390-14 (Ruprecht Hart Weeks & Ricciardulli, LLP, attorneys; Mr. Ricciardulli and Daniel B. Devinney, on the brief).

Ellen L. Casagrand argued the cause for appellants Hackensack University Medical Center, Hackensack University Medical Center Department of Pediatrics Genetics Service, and Judith Durcan, MS, in 1388-14 and as respondents in 1387-14, 1389-14, and 1390-14 (Buckley Theroux Kline & Petraske, LLC, attorneys; Ms. Casagrand, on the brief).

Benjamin H. Haftel argued the cause for appellant The Mount Sinai Medical Center in 1390-14 (Vaslas Lepowsky Hauss & Danke LLP, attorneys; Mr. Haftel, on the brief).

Victoria E. Phillips argued the cause for respondents Ginsberg in 1387-14, 1388-14, 1389-14, and 1390-14 (Phillips & Paolicelli, LLP, attorneys; Ms. Phillips and Daniel J. Woodard, on the brief).

The opinion of the court was delivered by

SABATINO, P.J.A.D.

These four interlocutory appeals2 stem from a lawsuit

involving factual allegations and parties that straddle the

2 We consolidate the appeals, which were calendared back-to-back, for purposes of this opinion.

5 A-1387-14T3 states of New York and New Jersey. The core question presented

to us is whether the laws of New York, the laws of New Jersey,

or some combination of the laws of both states, govern the

claims, third-party claims, cross-claims, and defenses asserted

in the litigation.

Plaintiffs, on behalf of themselves and their now-deceased

daughter, have asserted claims of wrongful birth, wrongful life,

medical malpractice, negligent hiring, and negligence in

connection with their daughter's birth in 2008 and her

subsequent diagnosis of Tay-Sachs disease, a genetically-

inherited and fatal condition. In essence, plaintiffs contend

that defendants each erred in the health care, genetic testing

services, or genetic counseling they provided before the couple

conceived their daughter upon a mistaken belief that the father

was not a Tay-Sachs carrier.

Plaintiffs are currently New Jersey residents who

previously resided in New York. They have sued a New Jersey

licensed physician, a New Jersey hospital and one of its

employees (collectively "the New Jersey health care

defendants"), and a medical testing company. The latter

defendant has its principal place of business in New Jersey, but

it received the father's blood specimen in New York and issued

its report on that sample in New York. The medical testing

6 A-1387-14T3 company has brought a third-party complaint against a New York

hospital that actually performed the testing. Numerous cross-

claims for indemnification and contribution have been interposed

between and among the defendants and the third-party defendant.

The trial court determined that New Jersey law, which

differs significantly from New York law on certain facets of

this case, governed all of the issues in this litigation. We

granted motions for leave to appeal by the defendants and the

third-party defendant, who all seek to overturn that threshold

determination and to have New York law instead applied to the

claims asserted against them.

Applying choice-of-law principles set forth in P.V. ex rel.

T.V. v. Camp Jaycee, 197 N.J. 132 (2008), the Restatement

(Second) of Conflicts of Laws (1971) ("the Restatement"), and

other case law, we conclude that New York law applies to the

claims respectively asserted against the testing company and the

New York hospital, whose allegedly wrongful and injurious

conduct occurred in New York. We further conclude that New

Jersey law applies to plaintiffs' claims against the New Jersey

health care defendants, whose allegedly wrongful and injurious

conduct occurred in this state.

Because of the insufficiency of the present record as to

the actual contractual arrangements for the testing of the

7 A-1387-14T3 father's blood sample by the New York hospital, we decline to

resolve which state's law governs the contractual

indemnification claims, if any, asserted against that third-

party defendant. We also decline at this juncture to resolve

which state's law governs the various cross-claims that have

been, or may be, asserted by and among the parties who have been

sued. We also do not reach the discrete choice-of-law issues

concerning the statutes of limitations, which were not

explicitly addressed in the trial court.

Based on this overall disposition, we reverse in part the

trial court's determination that the law of New Jersey must

apply to the conduct of all of the defendants and of the third-

party defendant. We specifically reject the trial court's

premise —— a premise which is advocated by the New Jersey health

care defendants who prefer in this case to have New York law

apply to them —— that the law of only one state can be applied

in this litigation.

As a final caveat, we note that, in rare and extraordinary

circumstances, a court's choice-of-law dispositions, in a case

such as this one with multi-state dimensions, can be reexamined

at the time of trial. The propriety of such a rare potential

reexamination here will depend upon which parties remain in the

case at that point, as well as the feasibility and fairness of

8 A-1387-14T3 trying the remaining claims and cross-claims under the laws of

multiple states.

I.

We derive the following pertinent facts and chronology of

events from the record, which largely consists of deposition

transcripts, interrogatory answers, and a few other documents.

We do so mindful that discovery in this case has not been

completed and that the factual allegations have yet to be

adjudicated.3

The Parties' Relationship, the Mother's Genetic Testing in New Jersey, and the Father's Genetic Testing in New York

The parents of the now-deceased child, plaintiffs Tamar

Ginsberg ("Tamar")4 and Ari Ginsberg ("Ari"), met and began

dating in October 2004. At that time, Ari resided in Far

Rockaway, New York, and Tamar then resided in Teaneck, New

Jersey.

The couple were concerned about the possibility of any

child of theirs having a genetic condition associated with their

Ashkenazi Jewish heritage. They were particularly concerned

3 Our orders granting leave to appeal permitted factual discovery to continue, and we were advised at oral argument that such additional discovery has, in fact, been pursued. Hence, the factual record is still being developed in certain respects. 4 For ease of reference, we shall use the first names of the parents and their deceased child, intending no disrespect.

9 A-1387-14T3 about the risk of Tay-Sachs disease, because Tamar knew her

sister was a carrier for that condition.

Tay-Sachs disease is "a genetically-inherited, incurable

condition that first appears in an infant at approximately six

months of age, progressively causing mental retardation,

blindness, seizures, and death between the ages of two and four

years." Geler v. Akawie, 358 N.J. Super. 437, 445 (App. Div.),

certif. denied, 177 N.J. 223 (2003). The condition is a

"genetic disorder caused by an absence of the enzyme

hexosaminidase A and consequent accumulation of the lipid GM2

gangloside in nerve cells of the brain." 5 J.E. Schmidt, M.D.,

Attorneys' Dictionary of Medicine, T-29 (2009). Typically,

"[n]eural damage [from Tay-Sachs] begins early in fetal

development, with the first signs and symptoms becoming apparent

when the infant is about six months old." Ibid.

Because of concerns about giving birth to a child with Tay-

Sachs, the couple sought genetic counseling and testing. They

claim, however, that they would have married each other

regardless of the genetic test results.

On December 28, 2004, Ari visited the office of his primary

care physician, Dr. Israel Samson, in Cedarhurst, New York, and

requested a blood test to determine if he was a carrier of Tay-

Sachs. Ari also asked Dr. Samson about a chromosomal

10 A-1387-14T3 translocation test, given that his brother has Down Syndrome,

and that his mother and sister both have a translocation. Dr.

Samson allegedly stated that he would not perform such

translocation testing.

Dr. Samson was educated and trained as a physician in New

York. He was licensed only in New York, and he practiced

medicine exclusively in that state.

Dr. Samson drew Ari's blood in New York at the time of his

December 2004 visit. Dr. Samson sent the sample to defendant

Quest Diagnostics, Inc. ("Quest") for testing, since Ari's

health insurance policy apparently required that Quest be used

for that purpose. Quest's corporate headquarters and principal

place of business are located in Madison, New Jersey, although

Quest conducts business in New York and in other states.

By his own admission, Dr. Samson did not frequently request

Tay-Sachs testing. Therefore, he directed his secretary to call

Quest regarding how to place the order for testing. Dr. Samson

testified at his deposition that during that phone call, Quest

identified the applicable code to place on the test requisition

form.

Upon picking up Ari's blood sample from Dr. Samson's

office, Quest delivered the specimen to its office in Syosset,

New York. Thereafter, Quest sent the sample to third-party

11 A-1387-14T3 defendant, Mt. Sinai Medical Center ("Mt. Sinai") for testing,

pursuant to an agreement between the two entities.5 Mt. Sinai is

located in New York, and it tested Ari's blood in New York.

Dr. Samson testified that he requested Quest to conduct

testing for whether Ari was a carrier of Tay-Sachs. However,

testing was done instead for Sandhoff disease, which can be

regarded as a specific form of Tay-Sachs.6

Mt. Sinai determined that Ari was not a carrier for

Sandhoff disease. Quest reported that information to Dr.

Samson, who explained the findings to Ari on January 10, 2005.

Ari recalled that Dr. Samson left a voicemail on his cell phone,

stating that he was not a carrier of Tay-Sachs. That

information turned out to be incorrect, however, as a test

performed four years later, after Abigail's diagnosis, revealed

that Ari is indeed a carrier for Tay-Sachs.

5 The only written agreement between Quest and Mt. Sinai referenced in the depositions was an agreement effective April 11, 2005, a date after Ari's testing. A copy of that agreement is not part of the appellate record. We were advised by counsel at oral argument that apparently no written agreement was in force between Quest and Mt. Sinai at the time Ari's specimen was tested. 6 Specifically, Sandhoff disease involves a defect in both the enzymes hexosaminidase A and B, whereas Tay-Sachs involves a deficiency in only hexosaminidase A. See 5 Schmidt, Attorneys' Dictionary of Medicine, supra, S-24 and T-29.

12 A-1387-14T3 Ari did not receive a written copy of his test results in

2005, and he never spoke with anyone at Quest or at Mt. Sinai.

Ari called Tamar at her home in New Jersey after speaking with

Dr. Samson, and he told her that he had tested negative for Tay-

Sachs.

Shortly thereafter, in February 2005, Tamar visited

defendant Andrew Rubenstein, M.D., a gynecologist, at his office

in Saddle River, New Jersey. She consulted Dr. Rubenstein in

order to be tested for genetic diseases related to her Jewish

heritage. She also sought his advice in planning her menstrual

periods in anticipation of her marriage to Ari, as is common in

the Orthodox Jewish community. Ari himself never visited Dr.

Rubenstein's office.

Tamar advised Dr. Rubenstein that Ari already had been

tested for Tay-Sachs, and that he had been found negative for

that condition. She pointed out that Ari's brother had Down

Syndrome, and that his mother was a carrier for trisomy 21,

which is another name for that condition. She also told Dr.

Rubenstein about her own family members who were carriers of

Tay-Sachs and cystic fibrosis.

Dr. Rubenstein stated in his interrogatory answers that he

discussed with Tamar the risk of Tay-Sachs if both she and Ari

13 A-1387-14T3 were carriers. Tamar, however, denied having any such

discussion with him.

It is apparently undisputed that Dr. Rubenstein asked Tamar

for a copy of Ari's Tay-Sachs test results, but Tamar did not

provide a copy to him. She did not recall at her deposition

ever speaking to Ari about Dr. Rubenstein's request. Ari

likewise had no recollection at his deposition of her asking him

for a copy of his results. According to Tamar, she did not

provide Dr. Rubenstein with Ari's test results because she had

trusted the results Ari received from Dr. Samson.

Tamar's blood was drawn at Dr. Rubenstein's office in New

Jersey. Her sample was tested, coincidentally by Quest, in New

Jersey for the range of diseases customarily associated with

Ashkenazi Jewish heritage. The test results accurately showed

that Tamar was a carrier of Tay-Sachs.

Dr. Rubenstein informed Tamar of her test results, and

mailed a copy to her. He also recommended that Ari undergo

chromosomal analysis, due to his own family history of Down

Syndrome.

Tamar advised Ari of Dr. Rubenstein's recommendation, and

Ari underwent the necessary blood work at a New York laboratory

in Cedarhurst. Testing of Ari's blood sample by Quest in New

York revealed that Ari had a balanced "Robertsonian

14 A-1387-14T3 translocation." Dr. Rubenstein discussed the test results with

a geneticist. On March 22, 2005, Dr. Rubenstein spoke with

Tamar by telephone and advised her of those results. He also

referred the couple to defendant Hackensack University Medical

Center ("HUMC") for genetic counseling.

The Genetic Counseling at HUMC in New Jersey

On May 6, 2005, Ari and Tamar met at HUMC with defendant

Judith Durcan, MS, for genetic counseling relating to Ari's

chromosome translocation. At that time, Ari considered Tay-

Sachs a "nonissue" because he believed he had tested negative

for the condition. The couple met with Durcan on just one

occasion, and no tests were performed.

By letter to Dr. Rubenstein dated May 6, 2005, on which Ari

and Tamar were copied, Durcan summarized her discussion with the

couple. Tamar received the letter at her parents' New Jersey

home in Teaneck, but Ari did not recall seeing it before this

litigation.

With respect to Tay-Sachs, Durcan noted that Tamar is a

Tay-Sachs carrier, but that Ari "stated that his screening test

results for Tay[-]Sachs (TS) [we]re negative." Durcan further

noted that she did not have Ari's results available for review

at the time of their meeting, but offered to review those

results. Durcan also indicated that she had discussed with the

15 A-1387-14T3 couple the autosomal recessive inheritance, the carrier

frequency, and the features of Tay-Sachs. She also discussed

the "different testing modalities for [Tay-Sachs] currently

available and suggested that Ari make sure that he had

biochemical (enzyme) analysis for [Tay-Sachs], as this type of

testing can rule-out most carriers of [Tay-Sachs]."

Tamar admitted discussing with Durcan the couple's Tay-

Sachs test results, and that Durcan offered to review those

results, although Ari could not recall that part of the

conversation. The couple did not provide Durcan with Ari's

results, choosing instead to rely on the information they had

previously received. The couple explained at their depositions

that they had confidence in the test results that Ari had orally

received from Dr. Samson.

The Parties' Marriage, Tamar's Move to New York, and Abigail's Birth in New York

In June 2005, Tamar and Ari were married in New York.

After the marriage, Tamar relocated from New Jersey and the

couple resided together in Far Rockaway, New York.

A few months after the marriage, Tamar visited Dr.

Rubenstein on October 28, 2005 for a pap smear and a

prescription for birth control pills. Dr. Rubenstein also

discussed with Tamar the HUMC/Durcan genetic consultation

results. He recommended that the couple attempt to conceive

16 A-1387-14T3 through in vitro fertilization, with pre-implantation genetic

testing of the embryos, due to Ari's chromosomal translocation.

However, Tamar did not want to pursue an in vitro procedure,

since she perceived there was a low risk of Down Syndrome.

Tamar never returned to Dr. Rubenstein, as she switched her

care to a New York-based ob/gyn, Dr. Terry Rifkin. Dr.

Rubenstein did speak with Tamar again in October 2005, regarding

her genetic consultation. He also sent her a reminder card in

August 2006 for a follow-up visit that never occurred.

In June 2006, Tamar visited Dr. Rifkin in New York. At

that time, she and Ari had plans to conceive a child naturally,

with the intent of terminating the pregnancy if prenatal testing

revealed that the child had Down Syndrome. Tamar wished to

discuss with Dr. Rifkin the strict guidelines under Jewish law

for terminating a pregnancy.7 At her visit, Tamar advised Dr.

Rifkin that Ari had tested negative for Tay-Sachs, although she

had tested positive. Dr. Rifkin did not request a copy of Ari's

results, and the couple did not provide those results to him

7 Ari is a rabbi, and he testified at his deposition about his understanding of Jewish law on abortion, as did Tamar. A New York statute provides that abortions are permitted in the state up to twenty-four weeks into a pregnancy, with additional time afforded if the abortion is necessary to preserve the woman's life. See N.Y. Penal Law § 125.05 (Consol. 2015).

17 A-1387-14T3 although Tamar believed Dr. Rifkin may have taken her blood and

ordered his own testing of her.

In June 2007, Tamar became pregnant. She asserts that she

conceived in New Jersey, and that she learned of the pregnancy

the next month while she was in New Jersey at her parents' home

in Teaneck.

Tamar received prenatal care from Dr. Rifkin in New York.

During the pregnancy, she underwent a chorionic villi sampling

("CVS") at a hospital in New York, which revealed that the fetus

was a female who had a balanced chromosomal translocation, but

did not have Down Syndrome.

Tamar and Ari were required to meet with a genetic

counselor at the hospital in connection with the CVS. Tamar

recalled that they discussed Tay-Sachs with the counselor, and

the fact that Ari had tested negative as a carrier of that

disease. Tamar did not recall the counselor asking for a copy

of Ari's test results.

Abigail was born in March 2008, at North Shore University

Hospital in New York. Immediately after their release from the

hospital, Tamar and Abigail visited with Tamar's parents in New

Jersey. Thereafter, Tamar, Ari, and Abigail resided in New

York, along with a son who was later born in November 2010.

18 A-1387-14T3 Abigail received pediatric care from Dr. Hylton Lightman, in New

York.

Abigail's Diagnosis with Tay-Sachs, her Treatment, and the Family's Relocation to New Jersey

In October 2008, Abigail was diagnosed with Tay-Sachs by

her physicians in New York. The diagnosis was made after Tamar

had noticed problems with Abigail's eyes.

Around the time of Abigail's diagnosis, Ari went to Dr.

Samson's office to obtain a copy of his blood test results from

2005. He confronted Dr. Samson when he saw that he had been

tested for Sandhoff disease, as opposed to Tay-Sachs. Ari

initially believed Dr. Samson had ordered the wrong test. Dr.

Samson defended his choice of test, stating his belief that the

Sandhoff test results meant Ari was negative for Tay-Sachs.

Dr. Lightman subsequently ordered further testing of Ari.

Two types of Tay-Sachs testing were then performed by Labcorp.

In those results, Ari tested positive as a Tay-Sachs carrier.

Dr. Lightman did not criticize Dr. Samson, but stated that he

himself typically ordered a chromosomal mutation analysis, as

opposed to the Sandhoff tests that Dr. Samson had requested.

Ari acknowledged at his deposition that he initially was

angry with Dr. Samson. However, after consulting with a

geneticist in New York, Ari believed that his Sandhoff test

results should have also revealed if he were a carrier for Tay-

19 A-1387-14T3 Sachs, and it was not possible for his two test results to

contradict each other without there being a flaw in the original

testing.8 Therefore, Ari and Tamar maintain that they do not

believe that Dr. Samson had done anything wrong.

As to Abigail's medical care, she was treated primarily

after her Tay-Sachs diagnosis by physicians and health care

providers in New York, but also by some in New Jersey,

particularly after the family moved to this state. Tamar sought

psychological treatment in New Jersey in connection with

Abigail's illness. Ari, meanwhile, sought psychological

treatment for himself in New York.

In December 2009, plaintiffs moved to Bergenfield, New

Jersey. They claim to have done so in order to be closer to

their family. Two months later they filed this lawsuit.

Abigail died at her home in New Jersey in March 2011.

The Claims in This Litigation

Plaintiffs, who continue to be New Jersey residents, filed

their complaint in the Law Division against Quest, Dr.

Rubenstein, HUMC, and Durcan. Their complaint asserts claims of

wrongful birth, medical malpractice, and negligent hiring

against all defendants. They also assert a more generalized

8 Because discovery has not yet closed, we do not know if plaintiffs have retained an expert to support this contention.

20 A-1387-14T3 claim of negligence only against Quest. Tamar individually

asserts a claim of "wrongful life"9 on behalf of Abigail against

all of the defendants.

Notably, plaintiffs chose not to assert any claims against

Dr. Samson. Nor did they sue any of the other health care

professionals that treated or counseled them or treated Abigail.

HUMC, Durcan, and Dr. Rubenstein each denied liability and

asserted cross-claims for contribution and indemnification.

Quest likewise denied liability, and asserted as one of its

defenses that New York law applied to all claims filed against

it. In particular, Quest asserted that New York law would

"operate to bar some or all of the claims and/or damages set

forth in the [c]omplaint." Quest also filed cross-claims for

contribution and indemnification.

In addition, Quest filed a third-party complaint against

Mt. Sinai, asserting claims for indemnity, contribution, and

breach of contract, which Mt. Sinai answered, denying

liability.10 Mt. Sinai has asserted cross-claims for common-law

indemnification and contribution from all of the defendants.

9 See, Part II(A), infra, for a discussion of the elements of what is termed a "wrongful life" claim under New Jersey law, a cause of action which is not recognized under New York law. 10 Plaintiffs did not move to amend their complaint to name Mt. Sinai as direct defendant. It is not clear from the record (continued)

21 A-1387-14T3 Shortly after the pleadings were completed, Quest, HUMC,

and Durcan moved for the application of New York law, to dismiss

plaintiffs' claims under Rule 4:6-2(e), and for summary

judgment; Dr. Rubenstein moved for the application of New York

law; Mt. Sinai moved for the application of New York law and for

summary judgment; and plaintiffs moved to compel discovery.

On August 28, 2013, the judge assigned at that time to this

case ruled that questions of fact precluded summary judgment as

to HUMC and Durcan. That judge also authorized additional

discovery on both the choice-of-law issues and as to the merits

of the case. These dispositions are not challenged in the

present appeals.

Following additional discovery, defendants and Mt. Sinai

again moved for the application of New York law. After a

different Law Division judge ("the motion judge") heard argument

on those motions, the judge issued an oral opinion and

corresponding orders on September 26, 2014. The judge denied

the motions, and held that New Jersey law applies to all issues

and parties in this case.

(continued) supplied to us whether any of the co-defendants amended their pleadings to assert cross-claims against Mt. Sinai.

22 A-1387-14T3 The Trial Court's Choice-of-Law Ruling

In his oral decision on the choice-of-law question, the

motion judge recognized that the factual allegations and parties

in this case straddle both the states of New York and New

Jersey. The judge also recognized that New York law and New

Jersey law differ in material respects on various aspects of

this case.11

The judge invoked the "most significant relationship"

principles expressed in Sections 6, 145, and 146 of the

Restatement as adopted by our Supreme Court in P.V., supra, 197

N.J. at 136. The judge recognized that, in a case such as this

one with claims of tortious conduct, the law recognizes a

presumption in favor of applying the law of the state where the

injury occurred. See P.V., supra, 197 N.J. at 136; Restatement,

supra, §§ 6 and 145. However, as the judge further recognized,

"[i]f another state has a more significant relationship to the

parties or issues, the presumption [of the law of the former

state] will be overcome. If not, [the presumption] will

govern." P.V., supra, 197 N.J. at 136 (emphasis added).

The judge rejected the possibility that New Jersey law

could apply to claims against certain parties in this case,

11 See discussion of some of those differences in Part II(A), infra.

23 A-1387-14T3 while New York law could apply to claims against the other

parties. In essence, the judge perceived that his sole options

were to either apply New Jersey law or New York law to the

entire case. Given that perceived constraint, the judge found

that New Jersey, rather than New York, had the overall "most

significant relationship" to the parties and claims in this

litigation.

In the course of his analysis, the judge underscored the

fact that Dr. Rubenstein, HUMC, and Durcan are all domiciled in

New Jersey and have their principal places of business in this

State, and that Dr. Rubenstein is licensed as a physician in

this State. The judge also found that the conduct of those New

Jersey health care defendants, to the extent they may have

caused or contributed to plaintiffs' alleged injuries, occurred

in this State, which he regarded as the center of the

relationship between plaintiffs and those parties.

The judge perceived that Tamar's alleged loss of

reproductive choice occurred in New Jersey, where she had

consulted the New Jersey defendants, rather than in New York.

The judge found that the public policy of New Jersey favors

compensating innocent patients for injuries caused by licensed

health care providers in this State, and that such New Jersey

24 A-1387-14T3 providers "should reasonably expect to be subject to New Jersey

law."

The judge acknowledged that the choice-of-law analysis as

to Quest and Mt. Sinai was "[m]ore difficult" because, as to

those parties, New York was the State in which their relevant

alleged conduct occurred, and the State where the other parties'

relationships to them was centered. Even so, the judge

concluded that a "qualitative analysis" of the whole case,

considering the "entire pot" of claims involved, required the

law of New Jersey to apply, and that the Restatement's

presumption in favor of applying the forum state's law was not

overcome.

The Present Interlocutory Appeals

We thereafter granted leave to Quest, HUMC, Durcan, Dr.

Rubenstein, and Mt. Sinai to appeal the trial court's choice-of-

law ruling. All of those parties seek to have New York law,

rather than New Jersey law, apply.

Quest and Mt. Sinai differ from the other appellants,

however, in that they submit that the court may take a

defendant-by-defendant approach to choice of law, allowing the

court to apply the law of more than one state to the various

defendants. The other appellants insist that the law of only

one state can apply here and that the state is New York.

25 A-1387-14T3 Plaintiffs, meanwhile, agree that the trial court correctly

applied New Jersey law to the entire case. They stress the many

points of nexus to New Jersey within the factual chronology:

Tamar's status as a New Jersey resident when the genetic testing

was performed; the family's ultimate New Jersey domicile after

Abigail was born and suit was filed; Quest's principal place of

business in New Jersey; and this State's public policies in

regulating professionals and businesses who conduct activities

here and in assuring fair compensation to New Jersey tort

claimants.

II.

A.

One of the most important questions a court will often face

in adjudicating a case like this, involving parties and conduct

in multiple states, is to identify which state's law applies to

the parties and the various claims asserted. Inevitably, states

in our federal system will adopt laws —— whether by statute,

regulation, or case law —— that will diverge from the laws of

other states. When those state laws clash, courts must

necessarily ascertain which state's law governs the case or the

particular issues at hand.

The choice-of-law determination ideally should be made as

early in a case as possible. Bailey v. Wyeth, Inc., 422 N.J.

26 A-1387-14T3 Super. 343, 350 (Law Div. 2008), aff'd on other grounds, 422

N.J. Super. 360 (App. Div. 2011), certif. denied, 211 N.J. 274

(2012). We apply a de novo standard of appellate review to such

rulings. Bondi v. Citigroup, Inc., 423 N.J. Super. 377, 418

(App. Div. 2011), certif. denied, 210 N.J. 478 (2012).

Multi-faceted choice-of-law principles, such as those

expressed in the Restatement, have been developed to assist

judges in resolving these conflicts. The choice-of-law

principles of the forum state control the analysis. Fu v. Fu,

160 N.J. 108, 117 (1999). In applying such principles, the

first thing a court must determine is whether the laws of the

particular states having a nexus to a case actually diverge.

P.V., supra, 197 N.J. at 143.

Here, such divergence between New Jersey law and New York

law is indisputably present. Although we need not exhaustively

detail all of the material points of difference, a few are worth

mentioning by illustration.

For example, New Jersey recognizes a cause of action for

what our state describes as "wrongful birth," which may be

asserted by parents who claim that they were "deprived of the

option of making a meaningful decision as to whether to abort

[a] fetus, a decision which, at least during the first trimester

of pregnancy, is not subject to state interference." Berman v.

27 A-1387-14T3 Allan, 80 N.J. 421, 430-32 (1979) (citations omitted). A

wrongful birth claim is "predicated on a woman's right to

determine for herself whether or not to continue or terminate

her pregnancy" when it is anticipated the child will be born

with birth defects. Canesi v. Wilson, 158 N.J. 490, 501 (1999).

Parents in wrongful birth actions in New Jersey may recover

damages for the emotional distress caused by the loss of the

option to abort the affected fetus, Berman, supra, 80 N.J. at

433-34, along with the economic costs associated with their

child's affliction, Schroeder v. Perkel, 87 N.J. 53, 67-71

(1981). By contrast, under New York law, the parents' damages

in such cases are limited to "the pecuniary expense . . . for

the care and treatment of their infants." Becker v. Schwartz,

386 N.E.2d 807, 813-14 (N.Y. 1978). Parents may not recover

emotional distress damages on such claims under New York law.

Foote v. Albany Med. Ctr. Hosp., 944 N.E.2d 1111, 1113 (N.Y.

2011) (noting that in such cases "the parents' 'legally

cognizable injury' is 'the increased financial obligation

arising from the extraordinary medical treatment rendered the

child during minority'" (quoting Bani-Esraili v. Lerman, 505

N.E.2d 947, 948 (N.Y. 1987))); accord Becker, supra, 386 N.E.2d

at 813-14; Howard v. Lecher, 366 N.E.2d 64, 65-66 (N.Y. 1977).

28 A-1387-14T3 Apart from wrongful birth claims by parents, New Jersey

separately recognizes what are known in this state as "wrongful

life"12 claims, which may be brought on behalf of infants born

with congenital defects. This limited cause of action allows an

infant plaintiff in our state to "recover as special damages the

extraordinary medical expenses attributable to his [or her]

affliction," but disallows recovery by the infant for "general

damages for emotional distress or for an impaired childhood."

Procanik by Procanik v. Cillo, 97 N.J. 339, 342-43, 351-56

(1984); accord Moscatello ex rel. Moscatello v. Univ. of Med. &

Dentistry of N.J., 342 N.J. Super. 351, 359-60, 363-64 (App.

Div.), certif. denied, 170 N.J. 207 (2001). By contrast, New

York law does not permit such a claim for damages by or on

behalf of an infant. Alquijay v. St. Luke's-Roosevelt Hosp.

Ctr., 473 N.E.2d 244, 245 (N.Y. 1984); Becker, supra, 386 N.E.2d

at 813-14.

The two state's applicable statutes of limitations also

have potential material differences. New Jersey's statute of

limitations for medical malpractice, N.J.S.A. 2A:14-2, is two

years, subject to equitable tolling of that two-year period

12 The terminology is somewhat confusing because what New Jersey law describes as a "wrongful birth" cause of action is described under New York law as a "wrongful life" claim. To prevent confusion we shall use the New Jersey terminology.

29 A-1387-14T3 pursuant to our discovery rule, Lopez v. Swyer, 62 N.J. 267,

272-76 (1973). Conversely, New York's statute of limitations

for medical malpractice claims is two-and-a-half years. See

N.Y. C.P.L.R. 214-a (Consol. 2015) ("An action for medical . . .

malpractice must be commenced within two years and six months of

the act, omission or failure complained of or last treatment

where there is continuous treatment for the same illness, injury

or condition which gave rise to the said act, omission or

failure[.]").

Under New York law, the accrual date for a cause of action

for what is termed "wrongful life" in that state (i.e.,

"wrongful birth" in New Jersey) has been deemed to be the date

of the child's birth. Pahlad v. Brustman, 823 N.Y.S.2d 61, 63

(N.Y. App. Div. 2006), aff'd, 865 N.E.2 1240 (N.Y. 2007); but

see Jorge v. N.Y. City Health & Hosps. Corp., 590 N.E.2d 239,

240 (N.Y. 1992) (holding that the "continuous treatment"

doctrine did not toll the statute of limitations on a medical

malpractice claim premised upon alleged wrongful birth resulting

from an erroneous reading of prenatal genetic tests). Because

of these differences between New Jersey law and New York law,

plaintiffs' claims might be considered untimely, depending upon

which state's statute of limitations is applied.

30 A-1387-14T3 B.

If, as here, an actual conflict of laws is present between

the multiple states implicated in a case, the next step is to

apply the Restatement's "most significant relationship" test,

which New Jersey applies in tort cases. P.V., supra, 197 N.J.

at 135-36, 139-43. Under the most significant relationship test

in a case involving personal injury, the analysis:

begins with the [Restatement] section 146 presumption that the local law of the state of the injury will apply. Once the presumptively applicable law is identified, that choice is tested against the contacts detailed in section 145 and the general principles outlined in section 6[13] of the

13 Restatement, supra, § 6, which is entitled "Choice-of-Law Principles," provides as follows:

(1) A court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law.

(2) When there is no such directive, the factors relevant to the choice of the applicable rule of law include

(a) the needs of the interstate and international systems,

(b) the relevant policies of the forum,

(c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue,

(continued)

31 A-1387-14T3 Second Restatement. If another state has a more significant relationship to the parties or issues, the presumption will be overcome. If not, it will govern.

[P.V., supra, 197 N.J. at 136 (emphasis added).]

Hence, we must identify the place of injury under

Restatement § 146, which states:

In an action for a personal injury, the local law of the state where the injury occurred determines the rights and liabilities of the parties, unless, with respect to the particular issue, some other state has a more significant relationship under the principles stated in [Restatement] § 6 to the occurrence and the parties, in which event the local law of the other state will be applied.

[(Emphasis added).]

"Section 146 [of the Restatement] recognizes the

intuitively correct principle that the state in which the injury

occurs is likely to have the predominant, if not exclusive,

relationship to the parties and issues in the litigation."

(continued) (d) the protection of justified expectations,

(e) the basic policies underlying the particular field of law,

(f) certainty, predictability and uniformity of result, and

(g) ease in the determination and application of the law to be applied.

32 A-1387-14T3 P.V., supra, 197 N.J. at 144 (citing Restatement, supra, § 146

cmt. d). However, this factor will not be afforded great

significance where the place of injury was "fortuitous or . . .

for other reasons it bears little relation to the occurrence and

the parties with respect to the particular issue." Restatement,

supra, § 145, cmt. e.

Ignoring, for the moment, the defendant-specific aspects of

this case and considering the core facts in their totality, New

York is the primary, if not exclusive, state that is the place

of injury. New York is the state where the Ginsbergs resided at

the time of Tamar's pregnancy, and where they made their

decision to proceed with the pregnancy. It is also the state

where Tamar likely would have undergone prenatal testing of the

fetus for Tay-Sachs had the couple been correctly informed that

Ari was also a carrier for Tay-Sachs, and where the couple

likely would have chosen to terminate the pregnancy if they

learned that the child she was carrying was afflicted with Tay-

Sachs. Alternatively, if Abigail's birth itself is viewed as

the "injury" —— particularly with respect to the child's

wrongful life claim —— then New York is also the place of injury

because Abigail was born in that state.

Plaintiffs unpersuasively assert that the loss of

reproductive choice occurred completely or dominantly in New

33 A-1387-14T3 Jersey. They particularly focus in that regard on the alleged

conception of Abigail in New Jersey.

A wrongful birth claim is inextricably intertwined with a

pregnancy, and a woman's right to choose abortion rather than

proceed with the pregnancy. At the time of Tamar's pregnancy,

the couple resided in New York, and Tamar received prenatal care

from a New York physician. The loss of reproductive choice with

respect to Tamar's pregnancy with Abigail occurred exclusively,

or at least mainly, in New York.

The fact that Abigail may have been conceived in New Jersey

is immaterial to the choice-of-law analysis. For a wrongful

birth claim, the focus must be on the decision to continue the

pregnancy after the conception had occurred and the pregnancy

became known to the couple. The location of the conception,

through intercourse during a time when Tamar was ovulating, is

fortuitous and irrelevant. If, hypothetically, Abigail had been

conceived while plaintiffs were on vacation in Hawaii and there

were no other relevant contacts with that state, Hawaii law

surely would not govern plaintiffs' claims.

The trial court erred within its choice-of-law analysis by

equating the place of injury with the place where plaintiffs

experienced damage, i.e., the effects of the injury. It is

irrelevant to the place-of-injury inquiry that plaintiffs

34 A-1387-14T3 experienced emotional distress and some medical costs in New

Jersey after that injury was inflicted. In this regard, the

Third Circuit Court of Appeals in Blakesley v. Wolford, 789 F.2d

236, 241 (3d Cir. 1986), has aptly explained:

In all personal injury actions, the effects of an injury necessarily follow a plaintiff to his or her state of residence or domicile. It is axiomatic that wherever the plaintiff lives, the effects of his or her personal injuries will be felt. However, looking to the place where the effects of an injury will be felt gives improper additional weight to the factor of the plaintiff's state of residence. In effect, by looking to the place where the injuries are felt, rather than the place where they in fact occurred, the district court gave double weight, which was unwarranted, to [plaintiff's] state of residence[.]

C.

Having identified New York as the place of injury, the next

step we must follow in the choice-of-law analysis is the

application of the factors set forth in Restatement, supra, §§ 6

and 145, and P.V., supra, 197 N.J. at 145-55, "to determine

whether another state has a more significant relationship to the

parties or issues[,]" in which case the presumption of

Restatement, supra, § 146 will be overcome. P.V., supra, 197

N.J. at 155. The analysis of the relevant factors is

qualitative, not merely quantitative. Id. at 147, 155-56; Fu,

35 A-1387-14T3 supra, 160 N.J. at 125. In this regard, Restatement, supra, §

145 instructs:

(1) The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in § 6.

(2) Contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include:

(a) the place where the injury occurred,

(b) the place where the conduct causing the injury occurred,

(c) the domicil[e], residence, nationality, place of incorporation and place of business of the parties, and

(d) the place where the relationship, if any, between the parties is centered.

These contacts are to be evaluated according to their relative importance with respect to the particular issue.

[(Emphasis added).]

In applying these various factors here, we reject the trial

court's premise that the law of only one state can apply to all

of the issues in this lawsuit. As our Supreme Court made clear

in P.V., the "most significant relationship" test is to be

applied "on an issue-by-issue basis." P.V., supra, 197 N.J. at

36 A-1387-14T3 143; accord Cornett v. Johnson & Johnson, 211 N.J. 362, 374

(2012); Erny v. Estate of Merola, 171 N.J. 86, 95 (2002);

Grossman v. Club Med Sales, Inc., 273 N.J. Super. 42, 50-51

(App. Div. 1994). "Issue-by-issue" in this context means legal-

issue-by-legal-issue. See, e.g., Cornett, supra, 211 N.J. at

374 (noting that an issue-by-issue analysis of choice-of-law

factors "may result in the application of the law of more than

one state to the several claims in a matter").

To date, no published opinion in our State has expressly

addressed whether the issue-by-issue analysis of choice of law

may be differentiated further with a defendant-by-defendant

assessment. These appeals now require us to consider the novel

question of whether choice-of-law principles could allow New

York law to be applied to some of the named defendants or the

third-party defendant in this case, while New Jersey law could

apply to the other parties who have been sued.

We endorse the option of allowing a defendant-by-defendant

approach to choice of law in a case such as this one for several

reasons. First of all, such an approach happens to be

authorized under New York law, which itself is instructive. See

Boxer v. Gottlieb, 652 F. Supp. 1056, 1062 (S.D.N.Y. 1987)

(citing Schultz v. Boy Scouts of Am., 480 N.E.2d 679 (N.Y.

37 A-1387-14T3 1985)). Moreover, courts in several other states have similarly

permitted that approach.14

Second, a defendant-by-defendant approach may have

functional advantages. In some lawsuits, a plaintiff's legal

claims and theories against multiple defendants may be

predicated upon different facts occurring in different states at

different times. A court should at least have the option in

such multi-faceted cases to adopt a defendant-specific choice-of

-law approach, rather than an overarching "one-law-fits-all"

model. The reality is that the fact patterns, party domiciles,

and legal theories in some civil cases that straddle state lines

can have so many dimensions that it could be patently arbitrary

14 See, e.g., Jaurequi v. John Deere Co., 986 F.2d 170, 173 (7th Cir. 1993) (reversing the district court's choice-of-law determination because it failed to conduct "a separate conflicts analysis for each defendant's conduct" in a product liability action); ABB Daimler-Benz Transp. (N. Am.), Inc. v. Nat'l R.R. Passenger Corp., 14 F. Supp. 2d 75, 88 (D.D.C. 1998) (noting that "[t]he law of different states may be applied to different defendants"); Kelly v. Johns-Manville Corp., 590 F. Supp. 1089, 1095 (E.D. Pa. 1984) (noting, in a "multi-defendant asbestos case, the plaintiff's separate claims are to be treated as discrete causes of action" with regard to choice of law); Allen v. Great Am. Reserve Ins. Co., 766 N.E.2d 1157, 1162-70 (Ind. 2002) (applying Indiana and South Carolina law to two different defendants for the same cause of action); but see Gregory v. Beazer E., 892 N.E.2d 563, 580 (Ill. App. Ct. 2008) (declining to adopt a defendant-by-defendant approach); Viking Pump, Inc. v. Century Indem. Co., 2 A.3d 76, 89 (Del. Ch. 2009) (noting that, in the context of insurance contracts, "Delaware courts have applied the law of the jurisdiction that bears the most significant relationship to the insurance coverage as a whole").

38 A-1387-14T3 or unreasonable to ordain that all of the claims of all of the

plaintiffs against all of the defendants must be adjudicated

under a single state's laws.

Allowing a defendant-by-defendant approach is also

consistent with the Supreme Court's observation in P.V., supra,

197 N.J. at 136, that "[i]f another state has a more significant

relationship to the parties or issues, the presumption [of the

law of the place of injury] will be overcome." (Emphasis

added). This quoted passage from P.V. suggests that the nexus

of each party to the case can be as relevant to the conflict

analysis as the nexus of each issue.

We are acutely mindful that there can be practical

difficulties in allowing the laws of more than one state to

apply simultaneously to the evidence adduced at a trial. It is

certainly simpler for a jury (or a judge in a bench trial) to

apply only one state's legal rules to the factual proofs.

Simplicity alone, however, is not the only value at stake.

Indeed, the Supreme Court's endorsement of an issue-by-issue

approach in P.V. signals that the mere use of more than one set

of laws in a given case is not inherently untenable.

We have confidence that when proper jury instructions and a

carefully-constructed verdict form are used, most jurors should

be able to apply the laws of more than one state in the same

39 A-1387-14T3 case to different respective defendants. See Belmont Condo.

Ass'n, Inc. v. Geibel, 432 N.J. Super. 52, 97 (App. Div.)

(expressing the oft-repeated maxim that jurors are presumed to

follow the court's instructions), certif. denied, 216 N.J. 366

(2013). To simplify matters, the jurors need not be informed of

the identity of each state that supplies the particular rule of

law described in the jury charge and reflected in the queries

posed on the verdict form.

In short, since an issue-by-issue approach is tenable,

there is no reason to believe that a defendant-by-defendant

approach is inherently untenable. That said, we are cognizant

that a defendant-by-defendant approach to choice of law may be

unworkable in, say, a mammoth case involving defendants from

dozens of states.

Here, we have only two states whose laws are implicated.

The practical and analytic complexities of a defendant-by-

defendant approach do not appear to be overwhelming. In fact,

in several of the reported cases from other jurisdictions using

a defendant-by-defendant approach, the court did not find the

approach too unwieldy.15

15 See, e.g., Jaurequi, supra, 986 F.2d at 173; ABB Daimler-Benz, supra, 14 F. Supp. 2d at 88; Great Am. Reserve, supra, 766 N.E.2d at 1162; Boxer, supra, 652 F. Supp. at 1062.

40 A-1387-14T3 For these reasons, we reject the trial court's premise, and

the arguments raised by some of the present appellants, that the

law of only one state can be applied to all of the defendants

and to the third-party defendant Mt. Sinai.

Dr. Rubenstein, HUMC, and Durcan argue that a defendant-by-

defendant approach is not appropriate here, even if that can be

an option, because the totality of factual circumstances that

led up to Abigail's birth dominantly occurred in New York. They

assume that New York has "the most significant relationship" to

the case as a whole, and therefore New York law should apply to

their own conduct in New Jersey.

The New Jersey health care defendants suggest that

plaintiffs and their counsel have strategically omitted any New

York-based defendants from their complaint, including Dr.

Samson, a New York-licensed physician, in order to maximize

their chances of having facets of New Jersey law more favorable

to plaintiffs govern this case.16 That strategic assertion is

16 This claim of strategic manipulation is somewhat analogous to a claim that a plaintiff engaged in the "improper joinder" of one or more additional defendants in a state court action for the sole purpose of destroying federal diversity jurisdiction and thereby preventing removal of the case. See, e.g., Smallwood v. Ill. Cent. R.R. Co., 385 F.3d 568, 571 n.1 (5th Cir. 2004) (describing such a pleadings tactic as improper joinder), cert. denied, 544 U.S. 992, 125 S. Ct. 1825, 161 L. Ed. 2d 755 (2005); Schwartz v. State Farm Mut. Auto. Ins. Co., 174 F.3d 875, 878 (7th Cir. 1999) (disapproving of the practice); AIDS (continued)

41 A-1387-14T3 neither endorsed nor opposed by Quest and Mt. Sinai.

Plaintiffs, as we have already noted, assert they legitimately

omitted Dr. Samson as a defendant, because they ultimately

believed that he had not acted negligently.

Although the strategic claim raises concern, we need not

pass upon the bona fides of plaintiffs' decision to refrain from

suing Dr. Samson, or from naming in their complaint any other

defendants who are domiciled in New York. Unless the litigants

have omitted indispensable parties, see Rule 4:28-1 (regarding

compulsory joinder), a court must adjudicate a case based upon

the parties and claims that the litigants have chosen to include

in the pleadings, rather than some hypothetical broader or

different case that might have been brought.

No one has argued that Dr. Samson is an indispensable party

who must be added to this litigation under Rule 4:28-1. See

Bruno v. Mark MaGrann Assocs., Inc., 388 N.J. Super. 539, 547

(App. Div. 2006). In fact, none of the defendants nor Mt. Sinai

have filed any third-party or fourth-party claims against Dr.

Samson. He is not in this case. Even if he had been named,

that would not necessarily require that New York law be applied

(continued) Counseling & Testing Ctrs. v. Group W Television, Inc., 903 F.2d 1000, 1003-04 (4th Cir. 1990) (noting how such a tactic can affect the crafting of a complaint).

42 A-1387-14T3 to the conduct of the New Jersey health care defendants, who

provided services in this state to the parents.

Our recognition of a defendant-by-defendant option for

choice of law will serve to discourage the tactical structuring

of pleadings that attempts to tilt the nexus analysis. If a

defendant-by-defendant approach is available to the court,

plaintiffs will have less incentive to attempt to stack a

complaint with defendants from a state with laws more favorable

to plaintiffs' litigational interests. Likewise, defendants

will have less incentive to assert third-party claims against

parties from a state with laws more favorable to their own

interests, in a similar effort to have that state be deemed the

one with the "most significant relationship" to the case.

Hence, in the present context, plaintiffs' inclusion of

multiple New Jersey health care defendants in their complaint

ought not work to their tactical advantage if, as we have held,

the court is still free to allow New York law to apply to the

other parties whose conduct occurred in New York. Under the

approach we have endorsed, the court would not be constrained by

the sheer number of defendants from New Jersey in deciding

whether the claims arising in New York against the other parties

should instead be governed by the law of that state.

43 A-1387-14T3 In short, by adopting here a rule that authorizes a party-

specific approach to choice of law, we can deter and address

manipulative efforts to stack a case with parties from states

having laws that favor a pleader's interests. The approach

eliminates a pleader's expectation that the law of only one

"dominant" state will necessarily govern the case as a whole.

Consequently, there is no need to probe into the

motivations of plaintiffs in refraining from naming Dr. Samson.

If any gamesmanship has occurred here, a defendant-specific

choice-of-law approach helps assure that such conduct is not

rewarded. Moreover, as we explain more fully in Part II(D),

infra, the strong policy interests of New York and New Jersey in

having their respective laws regulate the conduct of health care

defendants and laboratories operating within their borders also

support a defendant-by-defendant approach.

D.

1.

With respect to Dr. Rubenstein, HUMC, and Durcan, it is

especially significant that each of them is a professional or

hospital located in, licensed in, and regulated by the State of

New Jersey. Professionals and their patients have a reasonable

expectation that the laws of the state of licensure will govern

the professional licensee's activities within the state where

44 A-1387-14T3 the services were provided.17 New Jersey has strong public

policies in the regulation of health care professionals who are

licensed in and who practice in this state, as well as the

regulation of hospitals that are licensed in this state.18

At the time that Dr. Rubenstein treated and counseled

Tamar, and at the time that HUMC and Durcan counseled her, she

was a resident of New Jersey. Those defendants' allegedly

17 See, e.g., N.J.S.A. 2A:53A-26 and -27 (the affidavit of merit statute governing suits against professionals licensed in this state); see also N.J.S.A. 45:1-1 to -21.4 (stating general provisions related to professions and occupations regulated by state boards of registration and examination); N.J.S.A. 45:9-1 to -58 (stating provisions related to medicine and surgery); N.J.S.A. 26:2H-1 to -26 (documenting the various requirements of the "Health Care Facilities Planning Act"); N.J.S.A. 45:9-37.112 (stating that "the profession of genetic counseling profoundly affects the lives of the people of New Jersey"). 18 See Hernandez v. Overlook Hosp., 149 N.J. 68, 81 (1997) (noting New Jersey's "strong public policy of ensuring that only qualified physicians serve the public"); see also Bloom v. Clara Maass Med. Ctr., 295 N.J. Super. 594, 607 (App. Div. 1996) (noting that "[a] hospital's selection of medical staff is thus deeply embedded in public policy concerns and must be 'exercised reasonably and for the public good.'" (quoting Desai v. St. Barnabas Medical Ctr., 103 N.J. 79, 87 (1986))); N.J.S.A. 26:2H- 1 ("It is hereby declared to be the public policy of the State that hospital and related health care services of the highest quality, of demonstrated need, efficiently provided and properly utilized at a reasonable cost are of vital concern to the public health."); see also Cooper Univ. Hosp. v. Jacobs, 191 N.J. 125, 136 (2007).

45 A-1387-14T3 tortious and injurious conduct —— to the extent it is actionable

—— took place entirely in New Jersey. 19

Although the New Jersey health care professionals

apparently believe it is more advantageous to their litigational

interests in this particular case to have the law of another

state govern their conduct, there are very strong public

policies and real-world expectations of professionals and

patients that support applying to such professionals the law of

the state in which they are licensed and in which they provided

services to the plaintiff patient.

In this regard, we take judicial notice under N.J.R.E. 201

that patients frequently travel across state lines to be treated

by a physician who is a surgeon or specialist because of that

individual's expertise. Patients also may be drawn to a

hospital in another state for the same reasons, or may have an

emergency condition while they are in the state temporarily. In

such circumstances, there should be a strong presumption that

the laws of the state of licensure and treatment govern the

patient's care in that state, subject to concerns of feasibility

and fairness. The motion judge correctly recognized these

19 We express no views, of course, about the merits of plaintiffs' claims, recognizing that discovery is not completed and that the time for dispositive motions by any party has not elapsed.

46 A-1387-14T3 principles and public policies relating to the New Jersey health

care professionals, but strayed in holding that New Jersey law

must apply to all defendants in the case.

It is likewise reasonable for a person receiving medical

services in New York, and for providers of such services in New

York, to expect that New York law would govern the provision of

those services. See Amoroso v. Burdette Tomlin Mem'l Hosp., 901

F. Supp. 900, 906 (D.N.J. 1995) (observing that medical

defendants who provided plaintiff care in a state "have the

right to expect that [the] law [of that state] will govern their

actions"); accord Blakesley, supra, 789 F.2d at 243; Capone v.

Nadig, 963 F. Supp. 409, 413-14 (D.N.J. 1997).

As we have noted, it is not unusual for people to travel

out-of-state to be treated by specialists. As the Third Circuit

Court of Appeals stated in Blakesley, supra, 789 F.2d at 243:

"[I]t is only fair that the law of the state to which the

patient has voluntarily traveled, and in which the doctor has

chosen to conduct the [medical procedure], be applied to

adjudicate the respective rights, duties, and obligations

between the parties." Accord Warriner v. Stanton, 475 F.3d 497,

502-04 (3d Cir. 2007) (applying Delaware law in a medical

malpractice case where plaintiff had traveled to Delaware for

medical care).

47 A-1387-14T3 A defendant professional's care should not be evaluated by

the laws of another state simply because there are multiple

other defendants in the case from different states. In our

mobile society, patients frequently have been treated by doctors

in a series of states when they move about the country.

Suppose, for instance, a patient is initially treated by

his primary care physician in New Jersey, and then moves to

Michigan, and then to California, where he is subsequently

treated by physicians from each of the other two states. If

that patient sues each of the doctors in the successive states

for malpractice or negligence for a failure to detect and

diagnose a cancerous tumor sooner, the New Jersey physician's

own conduct presumptively should not be governed by Michigan law

or California law. Yet, that would be the logical consequence

of adopting the "one-law-fits-all" approach advocated by HUMC,

Durcan, and Dr. Rubenstein in this case and adopted by the trial

court. We reject that approach.

Consequently, although New York may be the dominant "place

of injury" of plaintiffs in this case, as to the alleged

specific conduct of HUMC, Durcan, and Dr. Rubenstein, New Jersey

has strong linkages to plaintiffs' claims against those

particular defendants.

48 A-1387-14T3 2.

Our defendant-by-defendant analysis of the nexus reaches a

different conclusion as to defendant Quest and third-party

defendant Mt. Sinai. Quest handled and reported on Ari's blood

sample entirely in New York. Although Quest also coincidentally

tested Tamar's own blood sample in New Jersey, no claims have

been asserted about that accurate test concerning her specimen.

As a separate sovereign power, the state of New York also

has a strong interest in regulating its clinical laboratories.

See N.Y. Pub. Health Law § 570 (Consol. 2015) (stating that

"proper performance of clinical laboratory and blood banking

services is a matter of vital concern, affecting the public

health, safety and welfare"); see also Daxor Corp. v. State

Dep't of Health, 681 N.E.2d 356, 360 (N.Y. 1997), cert. denied,

523 U.S. 1074, 118 S. Ct. 1516, 140 L. Ed. 2d 669 (1998). New

York additionally has a strong interest in regulating the

conduct of its health care providers generally housed within its

borders. See N.Y. Pub. Health Law § 2800 (Consol. 2015)

(stating that "[h]ospital and related services including health-

related service of the highest quality, efficiently provided and

properly utilized at a reasonable cost, are of vital concern to

the public health"); accord State Univ. of N.Y. v. Young, 566

N.Y.S.2d 79, 80 (N.Y. App. Div. 1991) (noting New York's "strong

49 A-1387-14T3 public policy of providing high quality, efficient, and

effective hospital services").

We recognize that Quest's principal place of business

happens to be in New Jersey. However, the injury it allegedly

inflicted here dominantly occurred in New York.

Quest's third-party claims for contribution against Mt.

Sinai likewise have a strong nexus to New York. By all

indications, Mt. Sinai's activities were confined to that state,

the state where it is located and licensed as a hospital.

We do not reach Quest's contractually-based claims for

indemnification against Mt. Sinai because the record is

incomplete in that regard. That particular choice-of-law issue

is reserved for the trial court, to be guided, to the extent

that the contractual principles apply, by the principles of

Restatement, supra, §§ 186 to 188 and related case law used for

conflicts analysis in contracts matters. See N. Bergen Rex

Transp., Inc. v. Trailer Leasing Co., 158 N.J. 561, 568 (1999).

E.

We now turn to the several factors in Section 6 of the

Restatement, which are cross-referenced in the tort provisions

in Sections 145 and 146. Applying those Section 6 factors to

this case supports the application of New Jersey law to the

50 A-1387-14T3 conduct of Dr. Rubinstein, HUMC, and Durcan, and the application

of New York law to the conduct of Quest and Mt. Sinai.

The Restatement advises that the Section 6 factors are not

exclusive, and that they may be given varying weight depending

upon the circumstances presented. Restatement, supra, § 6, cmt.

c. Moreover, it is to be expected that, "in all but the

simplest case," "some factors will point in different

directions." Ibid. "[A]ny rule of choice of law, like any

other common law rule, represents an accommodation of

conflicting values." Ibid.

In areas such as tort law, where there is no precise

choice-of-law rule or series of rules, all that can be done "is

to state a general principle, such as application of the local

law 'of the state of most significant relationship,'" and "look

in each case to the underlying factors themselves in order to

arrive at a decision which will best accommodate them." Ibid.

Distilling these concepts, our Supreme Court has instructed

that, "[f]or purposes of an issue arising out of tort law, [the

Section 6] factors may be grouped into five categories of

interests: (1) the interests of interstate comity; (2) the

interests of the parties; (3) the interests underlying the field

of tort law; (4) the interests of judicial administration; and

(5) the competing interests of the states," Fu, supra, 160 N.J.

51 A-1387-14T3 at 122. "The most important of those [factors] is the competing

interests of the states." Erny, supra, 171 N.J. at 101.

We shall combine the first and fifth factors, which are

closely related, in our analysis for ease of discussion.

1. Interests of Interstate Comity and Competing Interests of the States

"Probably the most important function of choice-of-law

rules is to make the interstate and international systems work

well. Choice-of-law rules, among other things, should seek to

further harmonious relations between states and to facilitate

commercial intercourse between them." Restatement, supra, § 6,

cmt. d. The court must consider the interests of the competing

states, and whether application of a state's law would further

that state's interests or frustrate the interests of another.

P.V., supra, 197 N.J. at 152; Fu, supra, 160 N.J. at 122, 125;

Restatement, supra, § 6, cmt. f; but see Restatement, supra, §

145, cmt. c ("This factor must not be overemphasized, however[,

because] [t]o some extent, at least, every tort rule is designed

both to deter other wrongdoers and to compensate the injured

person.").

Causes of action for wrongful birth and wrongful life in

New Jersey advance several interests. They include: (1)

promoting a woman's right to make an informed choice regarding

whether to have a eugenic abortion; (2) regulating the conduct

52 A-1387-14T3 of professionals who provide prenatal and genetic testing by

deterring them from failing to provide women with complete and

accurate information necessary to make an informed choice; and

(3) compensating parents who lost their opportunity to make an

informed choice, resulting in the unwanted birth of an afflicted

child.

The first state interest, promoting a woman's right to make

an informed choice regarding whether to have a eugenic abortion,

would not likely be promoted by the application of New Jersey

law to plaintiffs' claims. That is because plaintiffs' decision

to choose an abortion would have occurred in New York, their

state of residence at the time of the pregnancy, and not New

Jersey.

However, the second state interest, regulating the conduct

of professionals who provide prenatal and genetic testing, would

be promoted by applying New Jersey law to the New Jersey health

care defendants. As we have already noted, New Jersey has an

interest in regulating the conduct of the physicians and genetic

counselors who practice within the state's borders, such as Dr.

Rubenstein and Durcan.20

20 See N.J.S.A. 45:9-1 to -27.9 (regulating the practice of medicine); N.J.S.A. 45:9-37.111 to -37.120 ("Genetic Counselor's Licensing Act"); N.J.A.C. 13:35-1.1 to -14.18 (regulation of various medical professionals, including genetic counselors).

53 A-1387-14T3 As for Quest, and the laboratory at Mt. Sinai, such

laboratories are regulated by both federal and state law. See

42 U.S.C.A. §§ 263a to 263a-7 (certification of laboratories,

including embryo laboratories); 42 C.F.R. §§ 493.1 to 493.2001

(regulation of clinical laboratories); N.J.S.A. 45:9-42.1 to

-42.25 ("Bio-analytical Laboratory and Laboratory Directors

Act"); N.J.S.A. 45:9-42.26 to -42.45 ("New Jersey Clinical

Laboratory Improvement Act"); N.J.A.C. 8:44-2.1 to -2.14

(operation of clinical laboratories); N.J.A.C. 8:45-1.1 to -1.3

(licensure of clinical laboratories); N.Y. Educ. Law §§ 8600 to

8610 (Consol. 2015) ("Clinical Laboratory Technology Practice

Act"); N.Y. Pub. Health Law §§ 570 to 581 (Consol. 2015)

(clinical laboratory and blood banking services); N.Y. Comp.

Codes R. & Regs. tit. 10, §§ 19.1 to 19.4 (2015) (clinical

laboratory directors), §§ 58-1.1 to 58-1.13 (2015) (approval of

laboratories), §§ 58-3.1 to 58-3.9 (2015) (laboratory inspection

and reference fees).

New York has an arguably stronger interest in regulating

the testing of Ari's blood because all of that relevant conduct

occurred in New York, with the actual testing performed in Mt.

Sinai's laboratory in New York. See P.V., supra, 197 N.J. at

153 (noting that New Jersey courts "have continuously deferred

to the rights of other jurisdictions to regulate conduct within

54 A-1387-14T3 their borders. That is particularly so when the conduct is

ongoing and directed towards residents and non-residents

alike").

The third state interest relating to wrongful birth claims,

i.e., compensating parents who lost their opportunity to make an

informed choice, resulting in the unwanted birth of an afflicted

child, has several dimensions here. The Ginsbergs are presently

New Jersey residents, and hence that this state has some

interest in seeing them fairly compensated for proven wrongs.

However, they became New Jersey residents several years after

they had already lost their opportunity to make an informed

choice and had suffered the unwanted birth of an afflicted

child, thus reducing this state's interest.

New York similarly has an interest in compensating its

citizens for wrongful birth. A major difference, as pointed

out, supra, in Part II(A), is that New York limits the available

damages on such claims, and prohibits wrongful life claims

asserted by the child.

New York's policies of limiting recovery for wrongful

birth, and precluding claims for wrongful life, are entitled to

considerable respect. See Rowe v. Hoffman-La Roche, Inc., 189

N.J. 615, 629 (2007) (noting that the choice-of-law question is

not which state has the better law; inquiry is limited to which

55 A-1387-14T3 state has greater interest in applying its law to the claims);

Fu, supra, 160 N.J. at 123 (observing that rules denying

liability "are entitled to equal consideration in choice-of-law

determinations as are rules imposing liability"); Restatement,

supra, § 145, cmt. c (stating that "[a] rule which exempts the

actor from liability for harmful conduct is entitled to the same

consideration in the choice-of-law process as is a rule which

imposes liability"); accord Blakesley, supra, 789 F.2d at 243

(recognizing that laws that limit medical malpractice liability

may work a hardship on out-of-state patients, but they also

provide a corresponding benefit, for example, by making

available specialized procedures that may not otherwise be

available).

Indeed, our own Supreme Court has recognized that the torts

of wrongful birth and wrongful life are controversial,

notwithstanding a woman's constitutional right to choose

abortion. See, e.g., Procanik, supra, 97 N.J. at 349-50, 353-55

(surveying law from other states and noting dissenting opinions

on our own Supreme Court); Schroeder, supra, 87 N.J. at 68

("[T]he problems of wrongful conception and wrongful birth

involve an evaluation not only of law, but also of morals,

medicine and society. Thus, it is not surprising that the same

issue may elicit divergent judicial responses."). Given that

56 A-1387-14T3 controversy, the impetus for applying New Jersey's substantive

law to such claims, conduct, and parties in another state is

limited.

In sum, we conclude that the values of interstate comity

and commerce would not be significantly affected by the

application of New Jersey law to the New Jersey health care

defendants. Conversely, New York's policies would be

potentially frustrated by the application of New Jersey law to

Quest and Mt. Sinai, for services that they each provided in New

York.

2. Interests of the Parties

"Generally speaking, it would be unfair and improper to

hold a person liable under the local law of one state when he

had justifiably molded his conduct to conform to the

requirements of another state." Restatement, supra, § 6, cmt.

g. However, this Section 6 factor is of lesser importance in

the field of torts than, for example, contract law.

Restatement, supra, § 145 cmt. b; accord Fu, supra, 160 N.J. at

123.

This is because persons who cause injury on non-privileged occasions, particularly when the injury is unintentionally caused, usually act without giving thought to the law that may be applied to determine the legal consequences of this conduct. Such persons have few, if any, justified expectations in the area of choice of law to

57 A-1387-14T3 protect, and as to them the protection of justified expectations can play little or no part in the decision of a choice of law question. Likewise, the values of certainty, predictability and uniformity of result are of lesser importance in torts than in areas where the parties and their lawyers are likely to give thought to the problem of the applicable law in planning their transactions. Finally, a number of policies, such as the deterrence of tortious conduct and the provision of compensation for the injured victim, underlie the tort field. These policies are likely to point in different directions in situations where the important elements of an occurrence are divided among two or more states.

[Restatement, supra, § 145, cmt. b.]

On the facts of this case, the interests of the parties are

consistent with applying New Jersey law to the New Jersey health

care defendants, and New York law to Quest and Mt. Sinai. As we

have already pointed out, it is reasonable for a person

receiving medical services in New Jersey (such as Tamar, who was

a New Jersey resident when she met with the New Jersey health

care defendants) and Ari (who was a New York resident when his

blood was tested in New York), and for providers of those

services to expect that the law of the state where the services

were provided would govern claims arising from those services.

See Restatement, supra, § 146, cmt. e.21

21 We ascribe little, if any, importance, to the present residency of Tamar and Ari in New Jersey, since they moved to (continued)

58 A-1387-14T3 3. Interests Underlying the Field of Law

This Section 6 factor requires "courts to consider the

degree to which deterrence and compensation, the fundamental

goals of tort law, would be furthered by the application of a

state's local law." Fu, supra, 160 N.J. at 123. "This factor

is of particular importance in situations where the policies of

the interested states are largely the same but where there are

nevertheless minor differences between their relevant local law

rules." Restatement, supra, § 6, cmt. h. "In such instances,

there is good reason for the court to apply the local law of

that state which will best achieve the basic policy, or

policies, underlying the particular field of law involved."

Ibid.

"When the tort rule primarily serves a deterrent purpose,

the state where the harmful conduct took place will likely have

the dominant interest with respect to that rule." Fu, supra,

160 N.J. at 123. Alternatively, "when the tort rule is designed

primarily to compensate a victim for his or her injuries, the

state where the injury occurred, which is often where the

plaintiff resides, may have the greater interest in the matter."

Ibid. "Because every tort rule, to some extent, is designed

(continued) this state only a few months before filing their complaint and long after their claims accrued.

59 A-1387-14T3 both to deter and to compensate, it is necessary to evaluate on

a case-by-case basis the relative weight of those underlying

purposes with respect to a specific rule." Ibid.

This factor does not clearly weigh in favor of either New

Jersey or New York, since both states' laws are designed to

deter the alleged negligence in this case. The laws of each

state also provide injured plaintiffs with a remedy, albeit not

the same remedy.

4. Interests of Judicial Administration

The Restatement advises that the interests of judicial

administration are important values in all areas of the law:

To the extent that they are attained in choice of law, forum shopping will be discouraged. These values can, however, be purchased at too great a price. In a rapidly developing area, such as choice of law, it is often more important that good rules be developed than that predictability and uniformity of result should be assured through continued adherence to existing rules. Predictability and uniformity of result are of particular importance in areas where the parties are likely to give advance thought to the legal consequences of their transactions.

[Restatement, supra, § 6, cmt. i.]

However, the Restatement also recommends that the interests of

administration should not be accorded too much weight. See

Restatement, supra, § 6, cmt. j ("Ideally, choice-of-law rules

should be simple and easy to apply. This policy should not be

60 A-1387-14T3 overemphasized, since it is obviously of greater importance that

choice-of-law rules lead to desirable results. The policy does,

however, provide a goal for which to strive.") (emphasis added);

see also Fu, supra, 160 N.J. at 124 (noting that the interests

of judicial administration "are of lesser importance and must

yield to a strong state interest implicated by the remaining

factors") (emphasis added).

The trial court found that the interests of judicial

administration weigh in this case in favor of applying one

state's law to all claims against all defendants, as doing so

would simplify any trial. That is certainly a pragmatic

observation. Nevertheless, given the circumstances here,

imposing the law of either New Jersey (or New York) across the

board to all of the defendants and Mt. Sinai indiscriminately

would not be a sound or fair result. Although we recognize the

value of the ease of judicial administration, that Section 6

factor is "of lesser importance" and "must yield to the strong

state interest[s] implicated." Fu, supra, 160 N.J. at 124.

Administrative ease therefore should not be dispositive in this

particular case.

On the whole, some of the Section 6 factors weigh in favor

of applying New Jersey law to the New Jersey health care

defendants and New York law to the New York defendants, while

61 A-1387-14T3 other factors are neutral as to which state's law should apply.

Considering those factors qualitatively, and giving due regard

for the divergent bases of the claims against the various

defendants and against Mt. Sinai, and the competing interests of

the states, we reach the following conclusions, on a defendant-

by-defendant basis.

First, we hold that New York law applies to the tort-based

claims asserted against Quest and Mt. Sinai. New York is the

place of injury relating to those alleged wrongdoers. New York

is also the state with the most significant relationship to

those claims because New York is the state where Ari resided and

sought the testing services at issue; it is the state where the

alleged misconduct of those parties occurred; it is the state

where those parties' relationships are centered; and New York

has a greater interest than New Jersey in regulating Quest and

Mt. Sinai under these circumstances. Additionally, to apply New

Jersey law to those claims would substantially frustrate the

interests of New York.

Conversely, we rule that New Jersey law should apply to the

claims asserted against Dr. Rubenstein, HUMC, and Durcan. Even

though New York is the dominant and perhaps exclusive place of

plaintiffs' injury, New Jersey is the state with the most

significant relationship to these particular claims. New Jersey

62 A-1387-14T3 is where these specific defendants' alleged misconduct occurred;

it is the location where those parties' relationships were

centered; and it is reasonable to expect that New Jersey law

would apply to the provision of medical and genetic counseling

and hospital services in New Jersey. Moreover, as we have

shown, New Jersey has a strong interest in regulating the

provision of medical and genetic counseling services and

hospitals in this state. Applying New York law to the New Jersey

health care defendants would substantially frustrate that

regulatory interest.

In sum, we conclude that the Section 6 and the other

Restatement factors support the use of a defendant-specific

approach to choice of law in this case. Under that approach,

New Jersey law will apply to the claims asserted against the New

Jersey health care defendants, and New York law will apply to

Quest and Mt. Sinai.

F.

That brings us to various subsidiary questions. First, we

consider what law governs the cross-claims asserted by and among

the New Jersey health care defendants (i.e., HUMC, Durcan, and

63 A-1387-14T3 Dr. Rubenstein) and the New York parties (i.e., Quest22 and Mt.

Sinai).

As a general matter, a claim of non-contractual

indemnification is derivative of the underlying claim against

the party seeking to be indemnified. See Rutgers Cas. Ins. Co.

v. LaCroix, 194 N.J. 515, 525 (2008) (recognizing, in the

context of insurance, that contribution claims are derivative of

a party's right to assert an underlying claim); see also Tucker

v. Allstate Ins. Co., 195 N.J. Super. 230, 233-34 (App. Div.

1984) (not permitting a derivative claim for contribution by

another insurer relative to a void policy).

This derivative aspect poses a potential problem in

identifying the applicable state law of contribution, insofar as

the New York parties' cross-claims against the New Jersey

defendants conceivably would be analyzed under New York law,

while the opposing cross-claims by the New Jersey defendants

against the New York parties would be conceivably analyzed under

New Jersey law. Both state's laws, to the extent they may

differ, cannot simultaneously apply in opposite directions. For

example, it is unclear whether the New York parties, who are not

22 For ease of this contribution discussion, we refer to Quest as a "New York" party, even though Quest's principal place of business is New Jersey, because its allegedly harmful conduct took place in New York.

64 A-1387-14T3 liable for wrongful life under New York law, could be liable for

cross-claims asserted against them by the New Jersey health care

defendants.

We need not enter this analytic thicket at this time. For

one thing, the identities of the parties at the ultimate time

this case is concluded, whether by settlement, dismissal, or

trial, remains to be seen. Some or all of the cross-claim

problems may be mooted, depending upon which claims and parties

are ultimately left in the case. We do not in this

interlocutory appeal have to resolve those cross-claim questions

now. Instead, we defer them to the trial court for resolution

at a later time, when it shall be guided by the "most

significant relationship" analysis. See Restatement, supra, §

173 (instructing that the "most significant relationship" test

of Section 145 should determine "whether one tort feasor has a

right to contribution or indemnity against another tort

feasor").

Second, despite the guidance we are providing in this

opinion, we do not completely foreclose the trial court from re-

examining the choice-of-law aspects of this case at the time of

trial. We appreciate that the parties and the trial court

typically have a strong need to have the governing choice-of-law

identified as early as possible in the life of a case. The

65 A-1387-14T3 parties will surely pursue discovery, including expert reports,

addressing the applicable state-specific standards of care

guided by that determination. Any dispositive motions filed

will also be guided accordingly.

Even so, we recognize that in rare and extraordinary

circumstances, there may be pragmatic or equitable reasons to

revisit choice of law at the time of trial to verify that the

court's initial assessment of the "most significant

relationship" of states to the viable issues or claims is still

valid, and that it can be feasibly implemented in jury

instructions and on the verdict form.

Although we do not at all imply that this case will prove

to be such a rare and exceptional circumstance, we reserve to

the trial court the ultimate authority to reconsider the choice-

of-law analysis at the time of trial. Such further review, if it

is conducted at all, must be guided by the principles we have

stated in this opinion. At that juncture, the trial court must

consider how cross-claims among any remaining defendants or

third-party defendants should be adjudicated, and what state's

law applies to any contractual indemnification claims that may

also remain.

A choice-of-law ruling made before trial is interlocutory

in nature, and as such, can be revisited by the court in its

66 A-1387-14T3 "sound discretion." Lombardi v. Masso, 207 N.J. 517, 534 (2011)

(quoting Johnson v. Cyklop Strapping Corp., 220 N.J. Super. 250,

257 (App. Div. 1987), certif. denied, 110 N.J. 196 (1988)).

Indeed, Quest and Mt. Sinai both acknowledge the court's

inherent authority to revisit an original choice-of-law ruling,

but urge that such authority be exercised very sparingly.

Plaintiffs likewise express concerns about reconsidering the

choice-of-law assessment after substantial resources have been

invested in a case.

We agree that an alteration of the choice-of-law ruling

should be done only in truly exceptional circumstances where it

would be simply unworkable or unjust to carry out the original

choice-of-law ruling at trial. On the other hand, we reject the

rigid positions of HUMC, Durcan, and Dr. Rubenstein that the

court's original choice-of-law rulings is an immutable "law of

the case." See Lombardi, supra, 207 N.J. at 539-40.

G.

Since they were not specifically addressed by the trial

court and were not fully briefed by all parties in these

interlocutory appeals, we decline to pass upon the discrete

choice-of-law issues concerning the applicable statutes of

limitations. We do instruct that such analysis likewise may

proceed on a defendant-by-defendant approach rather than a

67 A-1387-14T3 "global" approach. In particular, the trial court shall apply

the specific choice-of-law principles for statute of limitations

purposes expressed by the Supreme Court in Cornett, supra, 211

N.J. at 374-79. The trial court may also consider pertinent

concepts under Section 142 of the Restatement to the extent

those Restatement concepts are consistent with decisional law in

our State.

H.

For all of these reasons, the trial court's choice-of-law

decision and its corresponding orders dated September 26, 2014

respecting choice of law are reversed in part, consistent with

this opinion.

The matter is remanded to the trial court for the

completion of the case. We do not retain jurisdiction.

68 A-1387-14T3