The opinion of the court was delivered by: STANLEY R. CHESLER
STANLEY R. CHESLER, U.S. Magistrate Judge1
On September 30, 1991, suit was filed by plaintiffs Eileen Rossi and Frank Rossi as individuals, and by Eileen Rossi as guardian ad litem for her minor son, Michael Rossi, asserting claims for "wrongful life" and "wrongful birth" against defendants Somerset Ob-Gyn Associates and Harvey A. Kasper, M.D.
The complaint alleges that defendants were negligent in treating Eileen Rossi during the pregnancy, by failing to determine through a sonogram and other tests that Michael had severe congenital birth defects. The complaint further alleges that, as a result of defendants' negligence, plaintiffs Eileen Rossi and Frank Rossi "did not have the choice of terminating the pregnancy, and the infant and incompetent plaintiff, Michael Rossi, was born with multiple birth defects. . . ." Complaint P 9. Michael Rossi's claim for "wrongful life," set forth in count one, sought damages for the extraordinary medical expenses he will incur through his life. His parents' claim for "wrongful birth," set forth in count two, also sought reimbursement for Michael's medical expenses, as well as general damages for anguish and emotional distress.
Following the close of discovery, defendants moved for summary judgment on both claims. The summary judgment motion directed against the parents' "wrongful birth" claims was based upon statute of limitations grounds and was granted on May 7, 1993. Rossi v. Somerset Ob-Gyn, Civ. No. 91-4347 (D.N.J. filed May 7, 1993).
Defendants based their application for summary judgment on the infant plaintiff's claim upon their contention that New Jersey law required proof of proximate causation before a plaintiff could recover on a "wrongful life" claim. Thus, defendants argued, before the infant plaintiff could recover damages for "wrongful life," he first had to establish that his parents would have chosen to have an abortion if they had been aware of his condition. Defendants further contended that the record proofs failed to meet plaintiffs' burden on this issue. The court was not persuaded by defendants' arguments that New Jersey law had such a proximate cause requirement, and therefore denied summary judgment on the infant plaintiff's claim.
The case was ultimately set for trial on May 20, 1994. In advance of trial, counsel for defendants submitted a trial brief which renewed defendants' argument that the infant plaintiff could not prevail on a "wrongful life" claim under New Jersey law, unless he established that his parents would have opted for an abortion if defendants' malpractice had not deprived them of that option. Following jury selection on May 20, 1994, the court heard further argument on this issue. The court was persuaded that its initial view of New Jersey law was incorrect, and that defendants' position was correct. The court advised the parties of its determination so that they could proceed accordingly.
The trial resumed on May 23, 1994. At that time, counsel for plaintiffs indicated that the trial testimony of Mrs. Rossi would remain as set forth in her pre-trial deposition -- i.e., that Mrs. Rossi would not affirmatively indicate that she would have undergone an abortion if she had been advised of her infant's birth defects. Plaintiffs' counsel further indicated that neither parent would testify at trial that the infant would have been aborted if they had been aware of his condition. Plaintiffs' counsel requested the opportunity to reargue the issue and indicated that, if the court was not inclined to reverse itself, plaintiffs wanted a "mistrial," to provide them the right to appeal the court's legal determination. Following further legal argument, the court adhered to its determination on the issue of proximate cause. Based upon plaintiffs' counsel's representations that neither parent would testify that the infant would have been aborted if the parents had known of his condition, the court concluded that the infant plaintiff could not sustain a prima facie case for "wrongful life." The court indicated that it would therefore grant judgment in favor of defendants, under Federal Rule of Civil Procedure 50(a), with the reasons for its decision set forth in a written opinion.
A. Wrongful Life and Wrongful Birth Causes of Action
The New Jersey courts recognize two separate causes of action that may arise from the negligent failure of a medical professional to diagnose the existence of birth defects during pregnancy. The first cause of action, "wrongful birth," applies to the "cause of action of parents who claim that the negligent advice or treatment deprived them of the choice of avoiding conception or . . . of terminating the pregnancy." Procanik by Procanik v. Cillo, 97 N.J. 339, 348, 478 A.2d 755 (1984). The New Jersey Supreme Court first recognized this cause of action in Berman v. Allan, 80 N.J. 421, 404 A.2d 8 (1979). In Berman, the court permitted a parent to recover damages for the emotional distress and anguish caused by defendants' conduct, which "directly deprived her and, derivatively, her husband of the option to accept or reject a parental relationship with the child and thus caused them to experience mental and emotional anguish upon their realization that they had given birth to a child afflicted with Down's Syndrome." Id. at 433. The Berman court refused, however, to permit the parents to recover any damages for extraordinary medical expenses incurred in raising the child. Id. at 432. The court also refused to recognize a cause of action on behalf of the child, concluding that it "has not suffered any damage cognizable at law by being brought into existence." Id. at 429-30.
In Schroeder v. Perkel, 87 N.J. 53, 432 A.2d 834 (1981), the New Jersey Supreme Court liberalized the recovery permitted in a "wrongful birth" suit, by authorizing the parents to recover the extraordinary medical expenses incurred in raising their child. Id. at 69-71. However, the court again refused to recognize a cause of action on behalf of the child. Id. at 65-66.
In Schroeder, the court emphasized:
Parents have a right of their own either to accept or reject a parental relationship, and the deprivation of that right by negligent misconduct of another, creates a cause of action in the parents. In Berman, the parents were deprived of the choice whether to bear the emotional burden of an afflicted child. In the present case, Mr. and Mrs. Schroeder were deprived of the choice whether to conceive a second child whose birth would impose extensive medical expenses on them.
Id. at 66. Thus, both the Berman and Schroeder opinions focused the parents' claims upon a deprivation of the parents' right to choose whether or not to terminate a pregnancy.
In Procanik, the New Jersey Supreme Court finally recognized a cause of action, on behalf of the child, for "wrongful life." When this court heard the summary judgment motion in the instant matter, plaintiff contended that, as in Berman and Schroeder, the gravamen of the cause of action created in Procanik is the parents' loss of the right to choose whether or not to terminate a pregnancy. Thus, plaintiff argued that, to establish his claim, he was not required to establish that he would not have been born but for the defendants' negligence. Plaintiff relied on language in a post-Procanik case, Hummel v. Reiss, 129 N.J. 118, 608 A.2d 1341 (1992), to support this argument. The Hummel court characterized the holding in Procanik in the following language: "In . . . Procanik v. Cillo, supra, 97 N.J. 339, 478 A.2d 755, we recognized the child's cause of action for wrongful ...