NOT FOR PUBLICATION WITHOUT THE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,

as Guardian ad litem; TAMAR

GINSBERG, Individually; and 

ARI GINSBERG, Individually,

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. 

APPROVED FOR PUBLICATION

June 18, 2015

APPELLATE DIVISION
2 A-1387-14T3

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.
3 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.

_________________________________
4 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 PlaintiffRespondent,

v. 

THE MOUNT SINAI MEDICAL CENTER,

INC.,

Third-Party DefendantAppellant.

_________________________________

Argued March 16, 2015 - Decided

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.

June 18, 2015
5 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 JamesWeir, 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.
6 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 geneticallyinherited 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 
7 A-1387-14T3

company has brought a third-party complaint against a New York 

hospital that actually performed the testing. Numerous crossclaims 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 
8 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 thirdparty 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 thirdparty 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 
9 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.
10 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 TaySachs, 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 TaySachs. Ari also asked Dr. Samson about a chromosomal 
11 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 
12 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.
13 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 TaySachs.

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 
14 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 
15 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 TaySachs 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 
16 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 TaySachs 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 
17 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).
18 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. 
19 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-
20 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.
21 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)
22 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.
23 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.
24 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 
25 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-oflaw 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. 
26 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. 
27 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. 
28 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).
29 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.
30 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.
31 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)
32 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.
33 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 TaySachs. 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 
34 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 
35 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, 
36 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 
37 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 legalissue-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. 
38 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").
39 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 
40 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-bydefendant 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.
41 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-bydefendant 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)
42 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).
43 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.
44 A-1387-14T3

In short, by adopting here a rule that authorizes a partyspecific 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 
45 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. 26:2H1 ("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). 
46 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.
47 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). 
48 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.
49 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 healthrelated 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 
50 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 
51 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.
52 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 
53 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). 
54 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 
55 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 
56 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 
57 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 
58 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)
59 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.
60 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 
61 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 
62 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 defendantby-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 
63 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 
64 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.
65 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 reexamining 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 
66 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 choiceof-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 
67 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 
68 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.