Klonoski v. Mahlab
This text of Klonoski v. Mahlab (Klonoski v. Mahlab) is published on Counsel Stack Legal Research, covering District Court, D. New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
Klonoski v. Mahlab CV-95-153-M 12/21/95 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Richard F. Klonoski, Individually and in His Capacity as Administrator of The Estate of Jolanta K. Klonoski; Brian Klonoski, Through His Father and Next of Kin, Richard F. Klonoski; Karina Klonoski, Through Her Father and Next of Kin, Richard F. Klonoski; Caroline Klonoski, Through Her Father and Next of Kin, Richard F. Klonoski, Plaintiffs,
v. Civil No. 95-153-M
Beniamin Mahlab, M.D.; Eric Sailer, M.D.; Hitchcock Clinic, Inc.; and Mary Hitchcock Memorial Hospital, Inc., Defendants.
O R D E R
Plaintiffs, Richard, Brian, Karina, and Caroline Klonoski,
bring this action against defendants, Benjamin Mahlab, M.D., Eric
Sailer, M.D., Mary Hitchcock Memorial Hospital, Inc., and
Hitchcock Clinic, Inc., for injuries arising out of the death of
Jolanta Klonoski, the wife of Richard and the mother of Brian,
Karina, and Caroline. This court's jurisdiction is based on
diversity of citizenship. 28 U.S.C. § 1332. Presently before
the court is the plaintiffs' motion for certification of a controlling question of state law to the New Hampshire Supreme
Court.
I. FACTUAL AND LEGAL BACKGROUND
Count III of plaintiffs' complaint is brought by the three
minor children of Jolanta Klonoski and seeks damages for the loss
of their mother's love, companionship, society, comfort, support,
affection, solace, care, income, and services. In short, the
Klonoski children seek to recover for the loss of their mother's
consortium. Defendants assert as an affirmative defense that New
Hampshire law does not recognize a cause of action for loss of
parental consortium.
No New Hampshire statute or precedent explicitly recognizing
a cause of action for loss of parental consortium has been
brought to the court's attention. Plaintiffs, however, claim
that the New Hampshire Supreme Court would recognize this cause
of action if presented with the opportunity to do so and,
accordingly, request this court to certify pursuant to Rule 34 of
the New Hampshire Supreme Court Rules the following issues:
1. Under New Hampshire law, may children recover for the loss of a parent's love, society, companionship, support, comfort, services, income, affection, solace, and care where that loss has been caused by the negligence of defendant(s)?
2 2. If so, what measure and elements of damages are to be included in the children's recovery?
For the reasons discussed below, plaintiffs' request is denied.
II. DISCUSSION
Whether to certify a state law issue to the state's highest
court is discretionary. Lehman Bros, v. Schein, 416 U.S. 386,
391 (1974); Fischer v. Bar Harbor Banking & Trust Co., 857 F.2d
4, 7 (1st Cir. 1988), cert, denied, 489 U.S. 1018 (1989); Nieves
ex rel Nieves v. University of Puerto Rico, 7 F.3d 270, 275 (1st
Cir. 1993). Certification is generally appropriate when the
legal question is novel, and the state's law on the question is
unsettled. Lehman Bros., 416 U.S. at 391. The question
plaintiffs seek to certify is not particularly novel, having been
addressed several times since 1988 by this court and the state's
trial courts. See Wood v. Sands Bros. Constr., No. C-91-640-L,
slip op. (D.N.H. Sept. 29, 1992) (Loughlin, J.); Lee v. Looser,
No. C-91-315-S, slip op. (D.N.H. July 22, 1992) (Stahl, J.);
Berinqer v. Meadow Green-Wildcat Corp., No. C-90-001-L (D.N.H.
Aug. 28, 1990)(Loughlin, J.); Zekser v. Crisp, No. 90-C-1697,
slip op. at 9, Hillsborough County Super. C t . Nov. 2, 1990); Geis
3 v. Garrison Medical Prof'l Assoc., No. 88-C-153, slip. op. at 1,
(Strafford County Super. C t . Oct. 1, 1988).
The condition of New Hampshire's law on the question of
parental consortium is not particularly unsettled. While it is
true that neither New Hampshire's Supreme Court nor its general
court has directly addressed the precise issue at hand, the
absence of an on point statute or a definitive ruling by the
state's highest court does not necessarily compel certification.
Fischer, 857 F.2d at 7; Transamerica Ins. Co. v. Duro Bag Mfg.,
50 F.3d 370, 372 (6th Cir. 1995). Rather, "in the absence of a
definitive ruling by the highest state court, a federal court may
consider analogous decisions, considered dicta, scholarly works,
and any other reliable data tending convincingly to show how the
highest court in the state would decide the issue at hand."
Fischer, 857 F.2d at 7 (internal quotations omitted). Those
courts that have considered the question have determined that New
Hampshire law does not recognize a cause of action for loss of
parental consortium. See Wood, No. C-91-640-L, slip op. (D.N.H.
Sept. 29, 1992); Lee, No. C-91-315-S, slip op. (D.N.H. July 22,
1992); Berinqer, No. C-90-001-L (D.N.H. Aug. 28, 1990); Zekser,
No. 90-C-1697, slip op. at 9, Hillsborough County Super. C t . Nov.
2, 1990); Geis, No. 88-C-153, slip. op. at 1, (Strafford County
4 Super. C t . Oct. 7, 1988) . But see Duggan v. Fortin Rental
Eguip., No. C-89-375-L, slip. op. (D.N.H. Dec. 20, 1989)
(Loughlin, J.) (declining to decide whether New Hampshire would
recognize cause of action for loss of parental consortium and
labelling it a "close guestion"). In addition, in the analogous
case of Siciliano v. Capitol City Shows, 124 N.H. 719, 475 A.2d
19 (1984), the New Hampshire Supreme Court declined to recognize
a cause of action allowing parents to recover for the loss of
consortium in an action for the wrongful death of their child.
Id. at 728. Many of the policies supporting that decision are
egually applicable here. See id. at 726-29.
Finally, it should be reiterated that a party who chooses
the federal forum in a diversity action, as plaintiffs have done
here, "is in a peculiarly poor position to seek certification."
Fischer, 857 F.2d at 8 (guoting Cantwell v. University of
Massachusetts, 551 F.2d 879, 880 (1st Cir. 1977)). A federal
court "should be wary of certification where [the] reguesting
party merely seeks to persuade [the] state court to extend
current state law." Nieves, 7 F.3d at 278 (citing Venezia v.
Miller Brewing Co., 626 F.2d 188, 192 n.5 (1st Cir. 1980)).
In a case such as this, where the interpretive signposts of
state law are, at present, relatively clear and unambiguous.
5 certification to the New Hampshire Supreme Court would be
inappropriate as an unwarranted burden on that court. Armacost
v. Arnica Mut. Ins. Co., 11 F.3d 267, 269 (1st Cir. 1993).
Therefore, plaintiffs' motion for certification to the New
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