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Landmark Conflict of Laws Decision: New Jersey Supreme Court Approves Use of Different Laws for Defendants from Different States
        An unfortunate human story leads to a landmark decision regarding conflict of laws between States. Tamar Ginsberg and her husband, Ari Ginsberg, were expecting their child in New York. Their daughter, Abigail Ginsberg, was born in New York. When she was seven months old, Abigail was diagnosed with Tay-Sachs disease, an inherited incurable neurological disorder. She died in New York at the age of three years as a result of that disease. Her parents, who had moved to New Jersey, brought suit there against a prominent New York-based testing laboratory and a major New York hospital, and also against several New Jersey-based physicians and other care providers, for “wrongful life,” alleging negligence in the failure to test Ari Ginsberg correctly and to report whether the baby was likely to be born with the incurable disease. New York and New Jersey both recognize a tort of wrongful life. So, what issue was before the Supreme Court of New Jersey, in Ginsberg v. Quest Diagnostics, Inc. (N.J., Sept. 2016)?

        Damages: Both States permit recovery of economic expenses that the parents must bear for the care of the child. Only New Jersey permits a recovery for the emotional injury of the parents, while New York law specifically bars damages for emotional harm resulting from the birth of the child “in an impaired state.” The New Jersey and New York defendants all urged the court to apply the New York law. The lower courts performed a conflict-of-laws analysis on these facts and ruled that the New York defendants should clearly be judged under New York law, where Abigail was conceived and born, and where their allegedly negligent conduct occurred. But they decided that the New Jersey defendants would be judged by New Jersey’s statute, which permits “emotional injury” damages. The New Jersey defendants appealed.

        The Supreme Court agreed with the lower courts, pushing aside the arguments of the New Jersey defendants that by so deciding, they would be the only defendants responsible for emotional injuries of the parents. “In a case such as this, involving the law of only two states, a defendant-by-defendant approach is unlikely to prove impractical should the matter proceed to trial,” says the Court, but in a complex case with many parties from different states, a trial court should exercise discretion under Restatement of Law, and apply the law of a single State as to all defendants. Time will tell how this new conflict-of-laws approach will develop.

© November 2016, Law Offices of John C. Lane

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