The opinion of the court was delivered by: COHEN
The defendant, Boeing Commercial Airline Co. ("Boeing"), has filed several in limine motions to allow us to clarify various aspects of the case before this action proceeds to trial. We limit this discussion to the resolution of whether we should exclude all evidence pertaining to plaintiff Warren Schroeder's per quod claim at trial. While there is little difference in the end result, we believe this motion is more properly approached as a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6). Since we are sitting in diversity, pursuant to 28 U.S.C. § 1332, we are bound to apply the law of the state in which we sit. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 82 L. Ed. 1188, 58 S. Ct. 817 (1938). We therefore look to New Jersey law for disposition of this matter. We believe New Jersey law bars outright, for the reasons set forth fully below, plaintiff Warren Schroeder's cause of action for consortium.
Since we have previously set forth a comprehensive discussion of the general factual background in this case, Schroeder v. Boeing Commercial Airplane Co., 123 F.R.D. 166, 167 (D.N.J. 1988), we will try to emphasize more specifically the facts necessary for today's determination, leaving the reader to refer to our prior opinion for the overall background. To summarize, Teresa Schroeder is a former Eastern Airlines flight attendant who claims to have been severely injured by design defects in a Boeing 757 in which she was working on July 15, 1985. At that time, Teresa Schroeder was engaged to be married to her present husband and co-plaintiff, Warren Schroeder, but it is not in controversy that they had not yet been married.
Defendant expresses disbelief of plaintiff's affidavit and offers an Application For Marriage License purported to have been filed at a date unknown with the New Jersey State Department of Health which lists the intended date of marriage as July 23, 1985. As further evidence that there was no intention on plaintiffs' part to be married before July 15, 1985, defendant also submits the Certificate of Marriage and Marriage License dated July 1, 1985 which likewise indicates the date of marriage as July 23, 1985. Finally, we note that we have nothing in the way of testimony from the Honorable Joseph W. Zampino, Merchantville Municipal Court Judge, who was supposed to perform the ceremony, that it was to take place prior to July 15, 1985. Nor does it make any difference that plaintiffs had planned to get married prior to July 15, 1985. It is only significant, we think, that they were in fact married on July 23, 1985, in a civil ceremony, See T. Schroeder Aff. at 2, and that therefore, plaintiffs were not married as that term is defined at the time Teresa Schroeder's accident occurred.
II. THE LAW OF CONSORTIUM IN NEW JERSEY
As previously noted, we are bound to apply New Jersey law in this diversity action. Erie, supra. The Supreme Court of New Jersey has decided the precise question before us on all fours in Mead v. Baum, 76 N.J.L. 337, 69 A. 962 (1908). The question is whether a married man can maintain a cause of action for loss of consortium, derivative of his spouse's claim for injury, when his spouse was injured while the two were engaged to be married, but had not yet been married. The answer in Mead is clearly and unequivocally "No". The lower New Jersey courts have consistently followed Mead1 and found no cause of action, except for one aberration, Stahl v. Nugent, 212 N.J. Super. 340, 514 A.2d 1367 (Law Div. 1986). In Stahl, the Court apparently found repugnant the rationale upon which the Supreme Court of New Jersey relied in making its decision in Mead, stating that:
The theory in Mead is that a groom takes his bride "as he finds her," likening the claim to that of a man who hires an injured employee and then seeks damages from the tortfeasor for the inability of the employee to function fully.
To parallel a married man whose wife's injury causes him a loss of her consortium with a hiring boss who takes his laborer as he finds him should have been seen as callous in 1908 as in 1986.
Stahl, supra 212 N.J. Super. at 341.
Rejecting Mead, the court in Stahl then concluded that since the plaintiffs were engaged to be married at the time of injury, and did in fact subsequently marry shortly after the accident, the husband could maintain a cause of action for loss of consortium sustained from the date of marriage. Mead, however, remains the controlling law in New Jersey, and Stahl has been criticized by subsequent Law Division cases examining the same issue. In Sykes the court stated: