Abigail Ginsberg v. Quest Diagnostics, Incorporated (076288)

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)

Ginsberg v. Quest Diagnostics, Incorporated (A-33/34/53-15) (076288)

Argued September 13, 2016 -- Decided October 26, 2016

(NOTE: The Court did not write a plenary opinion in this case. Instead, the Court affirms the judgment of
the Appellate Division substantially for the reasons expressed in Judge Sabatino’s written opinion, which is
published as Ginsberg ex rel. Ginsberg v. Quest Diagnostics, Inc., 441 N.J. Super. 198 (App. Div. 2015).)

PER CURIAM

In this interlocutory appeal, the Court considers whether the choice-of-law principles set forth in §§ 146,
145, and 6 of the Restatement (Second) of Conflict of Laws (1971) (Restatement) should be applied uniformly to all
defendants in a given case, or whether courts should undertake a defendant-by-defendant choice-of-law analysis
when the defendants are domiciled in different states.

Plaintiffs Tamar Ginsberg and Ari Ginsberg, who are now New Jersey residents, lived in New York during
Tamar’s pregnancy and at the time of the birth of their daughter, Abigail Ginsberg. Abigail tragically died from
Tay-Sachs disease, a genetically inherited, incurable neurological disorder, at the age of three.

Plaintiffs sued a New York laboratory owned and operated by defendant Quest Diagnostics Incorporated
(Quest), a New Jersey-based medical testing company, alleging failure to provide correct blood test results when
plaintiff Ari Ginsberg sought to determine whether he was a Tay-Sachs carrier. Quest, in turn, asserted a third-party
claim against Mount Sinai Medical Center, Inc. (Mount Sinai), a New York hospital, which allegedly tested Ari
Ginsberg’s blood sample in New York pursuant to its contract with Quest. Plaintiffs also sued several New Jersey-
domiciled defendants (the New Jersey defendants), whom they alleged to have provided plaintiff Tamar Ginsberg
with negligent advice and treatment in New Jersey.

Plaintiffs asserted claims for wrongful birth, wrongful life, negligence, negligent hiring, and medical
malpractice. A substantial distinction between New York and New Jersey law with respect to wrongful birth claims
gave rise to the choice-of-law issue at the heart of this case. Although both states recognize a claim premised on a
plaintiff’s lost opportunity to terminate a pregnancy when it is anticipated that the child will suffer from congenital
defects, the two states’ laws differ with respect to the damages that a plaintiff may recover in a wrongful birth case.
New Jersey recognizes damages for emotional injury to the parents as well as for the special medical expenses they
incur in raising their child; New York limits damages to expenses for care and treatment.

Before the trial court, Quest, Mount Sinai, and the New Jersey defendants moved for a determination that
New York law govern the plaintiffs’ claims. The trial court considered itself constrained to apply the law of a single
state to the case and denied defendants’ motion after performing the three-step choice-of-law determination directed
by the Restatement. First, the court determined that there was a genuine conflict between New York and New
Jersey law. Second, it identified the place of injury as New Jersey and determined that New Jersey law would
therefore presumptively govern the case under Restatement § 146. Third, the court found that based on the contacts
set forth in Restatement § 145 and the principles stated in Restatement § 6, the nexus between New York and the
issues and parties in this case failed to overcome the presumption in favor of New Jersey law. Accordingly, the
court held that New Jersey law governs plaintiffs’ claims against all defendants.

The Appellate Division granted leave to appeal and reversed the trial court’s determination in a published
opinion. Ginsberg ex rel. Ginsberg v. Quest Diagnostics, Inc., 441 N.J. Super. 198 (App. Div. 2015). Although the
panel agreed that New Jersey and New York law diverged in material respects, it concluded that New York
constituted the place of injury because it was the state of plaintiffs’ domicile during Tamar’s pregnancy, the state in

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which prenatal testing would have been conducted and the pregnancy would likely have been terminated, and the
state in which Abigail Ginsberg was born.

The appellate panel then considered the contacts set forth in Restatement § 145 and the principles stated in
Restatement § 6 to determine whether New Jersey has a more significant relationship to the parties and the issues
than New York. The panel rejected the trial court’s assumption that the law of a single state must govern all of the
issues in this lawsuit and instead undertook separate choice-of-law analyses for the New Jersey and New York
defendants. The panel found that the presumption in favor of New York law was overcome with regard to the New
Jersey defendants, but not with regard to Quest and Mount Sinai.

The Court granted the New Jersey defendants’ motion for leave to appeal, challenging the application of
New Jersey law to the claims against them, and plaintiffs’ cross-motion for leave to appeal, challenging the
application of New York law to the claims against Quest and Mount Sinai. 223 N.J. 552 (2015); 223 N.J. 553
(2015); 224 N.J. 242 (2016).

HELD: The judgment of the Appellate Division is AFFIRMED substantially for the reasons expressed in Judge
Sabatino’s opinion.

1. The Court agrees with the panel that, in a majority of cases, a defendant-by-defendant analysis furthers the
Restatement principles and provides the most equitable method of resolving choice-of-law questions. First, the
central inquiry under Restatement §§ 146, 145, and 6 focuses the court on the state’s relationship to all parties in a
case, which may lead to different results for defendants who reside in different states. Second, both § 145(2) and § 6
suggest a defendant-specific analysis in assessing whether the presumption in favor of applying the law of the place
of injury has been overcome by directing the court’s attention to each defendant as an individual. Third, a
defendant-specific choice-of law analysis accords with the Court’s longstanding recognition that it is appropriate to
analyze choice-of-law questions on an issue-by-issue basis. (pp. 15-17)

2. The Court observes that 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. The relevant law can be incorporated
into a charge that will guide the jury as it considers the elements of each claim against each defendant. The Court
acknowledges that a defendant-by-defendant choice-of-law analysis is not feasible in every matter and notes that, in
a complex case with many parties from different states, the trial court retains the discretion to decline a defendant-
by-defendant approach and to apply the law of a single state to claims asserted against all defendants. (pp. 17-18)

3. The New Jersey defendants’ concern that they could be held liable for a disproportionate share of an award of
damages for emotional harm is unfounded because, under the New Jersey Comparative Negligence Act, a New
Jersey defendant’s liability for non-economic damages would be limited in accordance with its percentage share of
fault under N.J.S.A. 2A:15-5.2(a)(2). (p. 19)

The judgment of the Appellate Division is AFFIRMED, and the matter is REMANDED to the trial court
for proceedings consistent with this opinion.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-
VINA, SOLOMON, and TIMPONE join in this opinion.

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SUPREME COURT OF NEW JERSEY
A-33/34/53 September Term 2015
076288

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

Plaintiffs-Respondents
and Cross-Appellants,