NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 11-3455

_____________

CHAYA GROSSBAUM; 

MENACHEM GROSSBAUM, her spouse, individually and as guardians ad litem 

of the infant R.G.,

 Appellants

v.

GENESIS GENETICS INSTITUTE, LLC, of the State of Michigan; 

MARK R. HUGHES; 

NEW YORK UNIVERSITY SCHOOL OF MEDICINE; 

NEW YORK UNIVERSITY HOSPITALS CENTER, both corporations in the 

state of New York;

ABC CORPS 1-10;

JOHN DOES 1-10

_____________

 

On Appeal from the United States District Court

for the District of New Jersey

District Court No. 2-07-cv-01359

District Judge: The Honorable Esther Salas

 

Argued June 28, 2012

Before: SMITH and FISHER, Circuit Judges

RAKOFF, District Judge∗

(Opinion Filed: July 24, 2012)

Lewis Stein [ARGUED]

 ∗ The Honorable Jed S. Rakoff, Senior District Judge for the United States District 

Court for the Southern District of New York, sitting by designation.
2

Nusbaum, Stein, Goldstein, Bronstein & Kron

20 Commerce Boulevard

Suite E

Succasunna, NJ

Counsel for Appellant

John L. Basiak, Jr.

Sarah L. Blaine

Thomas E. Redburn, Jr.

Lowenstein Sandler

65 Livingston Avenue

Roseland, NJ

Stephen N. Leuchtman [ARGUED]

1380 East Jefferson Street

Detroit, MI

Counsel for Appellees Genesis Genetics Institute, LLC & Mark R. Hughes

Charles W. Craven [ARGUED]

Marshall, Dennehey, Warner, Coleman & Goggin

8th Floor

1845 Walnut Street

Philadelphia, PA 

R. Scott Eichhorn

Matthew S. Schorr

Marshall, Dennehey, Warner, Coleman & Goggin

425 Eagle Rock Avenue

Suite 302

Roseland, NJ

Counsel for Appellees New York University School of Medicine & New York 

University Hospitals Center

 

_____________________

 OPINION

_____________________ 

SMITH, Circuit Judge.
3

Chaya and Menachem Grossbaum (the “Grossbaums”) filed suit against 

Genesis Genetics Institute, LLC, Mark R. Hughes, New York University School of 

Medicine, New York University Hospitals Center, ABC Corps. 1-10, and John 

Does 1-10.1

I.

 The Grossbaums raise claims on their own behalf, and on behalf of 

their infant daughter, arising out of Defendants’ alleged negligence in testing and 

implanting an embryo containing the mutation for the genetic disorder cystic 

fibrosis. The District Court, applying New York law, dismissed the Grossbaums’ 

claims as untimely. For the following reasons, we will affirm.

The Grossbaums are both “carriers” of the genetic mutation for cystic 

fibrosis, meaning both of them have one gene with the mutation and one gene 

without the mutation. Because cystic fibrosis is a recessive disorder, an individual 

needs two genes with the mutation in order to suffer from the disorder; 

consequently, neither of the Grossbaums actually suffers from cystic fibrosis. 

Nevertheless, because they are both carriers, children conceived by them would 

have an approximately one-in-four chance of receiving two genes with the 

mutation, and thus a one-in-four chance of suffering from the disorder.

In February 2004, while living in New York, the Grossbaums discussed

 1 We refer to defendants Genesis Genetics Institute, LLC and Mark R. Hughes 

collectively as “Genesis.” We refer to defendants New York University School of 

Medicine and New York University Hospitals Center collectively as “NYU.” 
4

having a child. Aware of the risks, they inquired about a new process known as 

Pre-Implantation Genetic Diagnosis (“PGD”) that might decrease the probability 

that their child would suffer from cystic fibrosis. PGD required fertilizing several 

of Chaya Grossbaum’s eggs, and testing the resulting embryos for the relevant 

genetic mutation. One or more embryos that did not appear to have two genes with 

the mutation would then be implanted using in vitro fertilization (“IVF”).

In March 2004, the Grossbaums consulted with Defendants about both 

procedures. Under the proposed arrangement, Genesis would perform the PGD, 

and NYU would perform the IVF. The Grossbaums agreed to both procedures, 

signing consent forms acknowledging certain attendant risks. On July 14, 2004, 

Defendants began the procedures in New York by collecting and fertilizing several 

of Chaya Grossbaum’s eggs. Cells from these embryos were sent to Genesis, 

located in Michigan, to perform the PGD. On July 19, 2004, Genesis reported to 

NYU that at least three of the embryos did not contain two genes with the mutation 

for cystic fibrosis and were thus safe for implantation. That same day, after 

discussing the PGD results with the Grossbaums, NYU implanted two of these 

embryos using IVF. The IVF procedure took place in New York. NYU monitored 

Chaya Grossbaum’s pregnancy for several weeks after the implantation; all of this 

monitoring took place in New York.

Unbeknownst to the Grossbaums and the Defendants, at least one of the 
5

implanted embryos had two genes with the mutation for cystic fibrosis. The 

Grossbaums’ daughter was born in New Jersey on March 25, 2005, and was soon 

thereafter diagnosed with cystic fibrosis. The Grossbaums filed suit on March 23, 

2007. 

On January 20, 2011, Genesis and NYU filed separate motions for summary 

judgment. Genesis argued that New York law should apply, and that the 

Grossbaums’ claims were untimely under N.Y.C.P.L.R. 214-a, which sets out a 

statute of limitations for medical malpractice claims.2

On June 10, 2011, the District Court ruled on the pending motions for 

summary judgment. The court first agreed with Genesis that New York law 

 NYU argued that New 

Jersey law should apply, and that the Grossbaums’ claims failed under New Jersey 

law. In opposition to these motions, the Grossbaums argued only that New Jersey 

law should apply, and that summary judgment was not warranted under New 

Jersey law. They offered no argument as to whether their complaint was timely 

under Rule 214-a. In its reply brief, NYU raised the issue of untimeliness under 

New York law, pursuant to Rule 214-a.

 2 N.Y.C.P.L.R. 214-a requires that:

An action for medical, dental or podiatric 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.

Id.
6

applied. The court then considered whether the Grossbaums’ claims were 

untimely under Rule 214-a—an issue raised in Genesis’s brief to which the 

Grossbaums had declined to respond. The court concluded that the Grossbaums’ 

claims were untimely under Rule 214-a and granted Genesis’s motion for summary 

judgment.

The District Court also recognized, however, that NYU had failed to argue 

that the Grossbaums’ claims were untimely under Rule 214-a in their opening 

brief, and had only raised the issue in their reply brief. Therefore, the court 

declined to grant NYU’s motion for summary judgment and instead requested 

supplemental briefing from the Grossbaums “addressing only NYU Defendants’ 

reply brief arguments that Plaintiffs’ claims fail under New York’s statute of 

limitations and for lack of causation[.]” App’x A40. 

On June 29, 2011, the Grossbaums filed their supplemental brief. This brief 

did not address the argument that the Grossbaums’ claims were untimely under 

Rule 214-a. Subsequently, the District Court granted NYU’s motion for summary 

judgment, noting that the Grossbaums “failed to advance any arguments relating to 

the statute of limitations as it pertains to the NYU Defendants, other than 

criticizing [the District Court’s] choice of law analysis.” App’x A42. The 
7

Grossbaums timely appealed.3

III.

The Grossbaums raise two arguments on appeal concerning the District 

Court’s orders granting Defendants’ motions for summary judgment.4

First, we agree with the District Court that New York law applies. A federal 

court sitting in diversity applies the forum state’s choice-of-law rules. Gen. Star 

Nat’l Ins. Co. v. Liberty Mut. Ins. Co., 960 F.2d 377, 379 (3d Cir. 1992). If an 

 First, they 

argue that the District Court erred by applying New York law, rather than New 

Jersey law. Second, they argue for the first time that even if New York law does 

apply, their claims are timely. Specifically, they argue that the 2.5-year statute of 

limitations in Rule 214-a did not begin to run until March 25, 2005, the date their 

daughter was born. Thus, they claim, their complaint, filed less than two years 

after their daughter’s birth, was timely. We review these issues de novo, applying 

the same standard as the District Court. See Doe v. Luzerne Cnty., 660 F.3d 169, 

174 (3d Cir. 2011).

 3 The District Court had diversity jurisdiction over this matter, pursuant to 28 

U.S.C. § 1332. We have jurisdiction over this appeal pursuant to 28 U.S.C. 

§ 1291.

4 The Grossbaums request that, if we reverse the District Court’s grant of summary 

judgment, we also reverse the court’s ruling on particular discovery matters. 

Because we will affirm the judgment of the District Court, we do not reach these 

arguments.
8

“actual conflict” exists between the laws of jurisdictions with ties to a case, New 

Jersey applies the “most significant relationship” test set forth in the Restatement 

(Second) of Conflict of Laws. See Lebegern v. Forman, 471 F.3d 424, 428 (3d 

Cir. 2006); P.V. ex rel. T.V. v. Camp Jaycee, 962 A.2d 453, 459-60 (N.J. 2008). 

As the District Court found, an actual conflict exists here: Michigan bars all 

variations of the claims asserted by the Grossbaums, see Mich. Comp. Laws Ann. 

§ 600.2971, whereas the New Jersey and New York statutes of limitations for 

medical malpractice claims differ in both length and the date on which they begin 

to run, compare N.J. Stat. Ann. § 2A:14-2 (two-year statute of limitations), and

Caravaggio v. D’Agostini, 765 A.2d 182, 189 (N.J. 2001) (holding that the statute 

of limitations begins to run on the date the alleged malpractice is discovered), with

N.Y.C.P.L.R. 214-a (30-month statute of limitations running from the act, 

omission, or failure complained of). 

The court also applied the proper legal test for establishing the jurisdiction 

with the “most significant relationship” to the claims, and considered all of the 

relevant factors. See Camp Jaycee, 962 A.2d at 459-60. Almost all of the relevant 

events occurred in New York: the Grossbaums initially consulted with NYU in 

New York, Chaya Grossbaum’s eggs were collected and fertilized in New York, 

NYU spoke with the Grossbaums about the results of the PGD tests in New York, 

the IVF took place in New York, follow-up consultations during the early stages of 
9

pregnancy took place in New York, and the Grossbaums lived in New York 

throughout the pregnancy. Admittedly, the Grossbaums did stay in New Jersey in 

the weeks leading up to their daughter’s birth, and their daughter was actually born 

in New Jersey. Nonetheless, we agree with the District Court that the weight of the 

relevant factors points towards applying New York law.

Second, we conclude that the Grossbaums have waived their argument that 

their claims are timely under Rule 214-a. “‘Absent exceptional circumstances, this 

Court will not consider issues raised for the first time on appeal.’” In re Ins. 

Brokerage Antitrust Litig., 579 F.3d 241, 261 (3d Cir. 2009) (quoting Del. Nation 

v. Pennsylvania, 446 F.3d 410, 416 (3d Cir. 2006)). Such a rule is “‘essential . . . 

[so] that litigants may not be surprised on appeal by final decision there of issues 

upon which they have had no opportunity to introduce evidence.’” Harris v. City 

of Phila., 35 F.3d 840, 845 (3d Cir. 1994) (quoting Hormel v. Helvering, 312 U.S. 

552, 556 (1941)).

We may depart from this general rule at our discretion, where “under the 

circumstances it would be just to do so[.]” Del. Nation, 446 F.3d at 416 n.9. For 

example, we might consider an issue raised for the first time on appeal “where the 

proper resolution is beyond any doubt, or where injustice might otherwise result.” 

Singleton v. Wulff, 428 U.S. 106, 121 (1976) (internal citations and quotation 

marks omitted). We have also departed from this rule “where there has been an 
10

intervening change in law or the lack of representation by an attorney.”5

We see no extraordinary circumstances here that would justify departing 

from our general rule in this instance. The Grossbaums made a tactical choice not 

to respond to Genesis’s argument concerning Rule 214-a, and instead to rely 

completely on their argument against applying New York law. The District Court 

gave the Grossbaums a second opportunity to raise an argument regarding Rule 

214-a, specifically requesting briefing addressing the argument “that [their] claims 

fail under New York’s statute of limitations[.]” App’x A40. Again, they made the 

tactical decision not to contest this issue, despite a specific request from the 

District Court. 

 Del. 

Nation, 446 F.3d at 416 n.9.

 5 At oral argument, the Grossbaums suggested that there could be no waiver unless 

they intended to waive the argument. Such an argument confuses two separate 

types of waiver. Certainly, for a criminal defendant to waive a constitutional right, 

that waiver must be intentional. See United States v. Andrews, 681 F.3d 509, 517 

n.4 (3d Cir. 2012) (citing United States v. Olano, 507 U.S. 725, 733 (1993)). Here, 

the Grossbaums have not waived a constitutional right, but have instead waived an 

argument by failing to raise that argument before the District Court. See Del. 

Nation, 446 F.3d at 416 & n.9. A litigant can waive an argument by failing to 

raise the issue before the District Court, even if that litigant did not intend to 

concede the argument. See id. at 416 (“Although the Delaware Nation now 

contends that it did not concede the argument . . . it does not, and cannot, argue 

that it raised the issue before the District Court. Therefore, the issue is waived.” 

(citation omitted)). Even if the Grossbaums were correct, however, they 

intentionally waived their argument here when they were presented with two 

opportunities to raise the argument before the District Court and declined to do so 

for strategic reasons.
11

The Grossbaums’ tactical choice may have been unwise, but it does not 

constitute an exceptional circumstance such that we can overlook their failure to 

raise the argument before the District Court. Such a result would be particularly 

inappropriate here, “where important and complex issues of law are presented[.]” 

Frank v. Colt Indus., Inc., 910 F.2d 90, 100 (3d Cir. 1990). We thus hold that the 

Grossbaums have waived their argument that their claims are timely under 

Rule 214-a. Consequently, we will affirm the District Court’s conclusion that their 

claims are untimely under New York law.6

IV.

For the foregoing reasons, we will affirm the judgment of the District Court.

 6 Because we conclude that the Grossbaums’ claims are untimely under New York 

law, we need not determine the precise nature of the claims presented in the 

Grossbaums’ complaint—i.e., whether they are “wrongful birth” claims or 

“wrongful life” claims—and whether such claims are cognizable under New York 

law. Even if the Grossbaums’ claims could be properly characterized as “wrongful 

life” claims, and even if such claims were cognizable under New York law, the 

Grossbaums have waived their argument that such claims were timely under Rule

214-a.