time the recipient . . . has no cause to complain." Martin, 469 N.Y.S.2d at 928, 457 N.E.2d at 1155.
In accordance with these decisions, this court holds that, because plaintiff's valve continues to function as intended, any cause of action plaintiffs might have for emotional damage arising out of the valve's failure has not yet accrued.
In their brief in opposition to defendants' motion, plaintiffs appear to have abandoned all of their claims except those alleging fraud on defendants' part. See Pls.' Br. in Opp'n at 5-11. Plaintiffs allege that "defendants elected to totally ignore the allegation of fraud contained in the Complaint" and assert that their fraud claims should not be dismissed, since a California state court allowed a claim to stand under similar circumstances. Id. at 7, 9-11 (citing Khan v. Shiley Inc., 217 Cal. App. 3d 848, 266 Cal. Rptr. 106 (Cal. Ct. App. 1990)).
This court, however, will follow the reasoning of the Third Circuit in Brinkman, 902 F.2d 1558. In Brinkman, the Third Circuit, applying Pennsylvania law, affirmed summary judgment for defendants even though plaintiffs alleged "intentional, reckless and/or negligent misrepresentations," in addition to other claims. See Defs.' Br. in Supp. Ex. S. The lower court had dismissed plaintiffs' claims because the "heart valve has not malfunctioned or failed to serve the purpose intended." Brinkman, 732 F. Supp. at 34.
New Jersey treats all product liability actions the same, regardless of the theory asserted. See N.J.S.A. § 2A:58C-1b(3). Plaintiffs cannot avoid the physical harm requirement by recasting their product liability claims as fraud claims. Plaintiffs' argument that New Jersey courts are reluctant to dismiss "innovative tort claims without full development of facts at trial" is unavailing. See Pls.' Br. in Opp'n at 8 (quoting Becker v. Interstate Properties, 569 F.2d 1203, 1206 (3d Cir. 1977), cert. denied, 436 U.S. 906, 56 L. Ed. 2d 404, 98 S. Ct. 2237 (1978)). "It is beyond the authority of a federal court in [a diversity case] to create entirely new causes of action." Wolk v. Saks Fifth Ave. Inc., 728 F.2d 221, 223 (3d Cir. 1984).
In support of their position, plaintiffs also direct the court's attention to N.J.S.A. § 2A:58C-5, a section of the NJPLA which permits an award of punitive damages for intentional misrepresentation. See Pls.' Br. in Opp'n at 11-12. This section, however, simply addresses the type of damages that may be recovered if a valid basis for liability is established. Where a valid basis for liability does not exist, as in the instant case, reliance on section 2A:58C-5 is misplaced.
In opposition to the motion, plaintiffs also assert that "very little discovery has been engaged in this case." See Pls.' Br. in Opp'n at 5. However, as the Brinkman court noted, "no amount of discovery can change the significant material facts that (1) the heart valve has not failed to function properly, and (2) plaintiffs' emotional distress is related to the contents of a television show and not from a defective prosthetic valve." Brinkman, 732 F. Supp. at 35.
Because no genuine issues of material fact exist, and defendants are entitled to judgment as a matter of law, defendants' motion for summary judgment is granted. An order accompanies this opinion. No costs.
ORDER - January 22, 1993, Filed, Entered
THIS MATTER having come before the court on motion for summary judgment filed by defendants, Pfizer, Inc. and Shiley, Inc.; and the court having considered the written submissions and oral argument of counsel; and good cause having been shown,
IT IS on this 22nd day of January, 1993,
ORDERED that summary judgment be and hereby is, granted in favor of defendants, Pfizer, Inc. and Shiley, Inc.
CLARKSON S. FISHER
United States District Judge