The opinion of the court was delivered by: Orlofsky, District Judge.
This products liability case, brought under New Jersey law,
presents claims relating to injuries allegedly resulting from the
premature activation of airbags in a low-speed automobile
collision. Plaintiff Eric Thomas ("Thomas") is suing Defendants
Ford Motor Company ("Ford"), Breed Technologies, Inc. ("Breed"),
and TRW, Inc. ("TRW") for injuries allegedly related to airbags
installed on Thomas's 1996 Ford Explorer. Specifically, Thomas
contends that the Explorer's airbags deployed improperly when the
Thomas family was involved in a minor traffic accident. Thomas
claims that he suffered injuries as a result of the improper
deployment of the airbags and that the airbags caused the deaths
of his pregnant wife and the unborn fetus she was carrying.
I. FACTUAL AND PROCEDURAL BACKGROUND
On February 1, 1999, Thomas filed a Complaint against Ford,
Breed, and TRW. See Compl. (filed Feb. 1, 1999). The Complaint
alleges that on February 9, 1997, Thomas and his family were
traveling in the Thomas's 1996 Ford Explorer on Hand Avenue in
Cape May Court House, New Jersey. See id. ¶ 15. Thomas's wife,
Tracy Rose Thomas ("Tracy Thomas"), who was six-months pregnant
at the time, was driving. See id. Thomas and his daughter, Alix
Thomas, were passengers. See id. Thomas claims that his wife
noticed a deer in the road, and attempted to avoid hitting the
deer, but in doing so struck a utility pole. See id. ¶ 18.
Thomas further alleges that the accident was a relatively minor
one because his wife was driving slowly when the accident
occurred because of inclement weather conditions. See id. ¶¶
17, 19, 20-21. Nevertheless, the Explorer's driver's side and
passenger-side airbags deployed. See id. ¶¶ 21, 24. Thomas
alleges that the airbags should not have deployed because the
accident involved a relatively low-speed collision with the
utility pole. See id. ¶¶ 21, 23. He also claims that the
deployment of the airbags proximately caused his wife's death and
the death of his unborn child, as well as his and his daughter's
injuries. See id. ¶¶ 21-24. He filed this action on his own
behalf, on behalf of the Estate of Tracy Rose Thomas, and on
behalf of his daughter, Alix Thomas, see id. ¶ 4, seeking
recovery from Ford, the manufacturer of the Explorer, and from
Breed and TRW, the alleged manufacturers of airbag components
installed in the Thomas's Explorer. See id. ¶¶ 5-7. On October
12, 1999, Thomas voluntarily dismissed Breed as a party to the
action. See Notice of Voluntary Dismissal (filed Oct. 12,
On April 5, 1999, Ford filed a motion pursuant to Federal Rule
of Civil Procedure 12(b)(6) to dismiss certain of Thomas's claims
for failure to state a claim upon which relief may be granted.
See Ford Mot. to Dismiss (filed Apr. 5, 1999). On May 26, 1999,
TRW also filed a motion to dismiss pursuant to Rule 12(b)(6),
moving for a dismissal of the same claims Ford seeks to dismiss.
See TRW Mot. Dismiss (filed May, 26, 1999).
This Court has jurisdiction over this case pursuant to
28 U.S.C. § 1332 (1994).*fn1
II. THE GOVERNING LEGAL STANDARD FOR A MOTION TO DISMISS
PURSUANT TO FED. R. CIV. P. 12(b)(6)
"In considering a motion to dismiss under Rule 12(b)(6), the
court may dismiss a complaint if it appears certain that the
plaintiff cannot prove any set of facts in support of its claims
which would entitle it to relief." Mruz v. Caring, Inc.,
39 F. Supp.2d 495, 500 (D.N.J. 1999) (Orlofsky, J.) (citing Ransom
v. Marrazzo, 848 F.2d 398, 401 (3d Cir. 1988)). "While all
well-pled allegations are accepted as true and reasonable
inferences are drawn in the plaintiff's favor, the Court may
dismiss a complaint where, under any set of facts which could be
shown to be consistent with a complaint, the plaintiff is not
relief." Id. (citing Gomez v. Toledo, 446 U.S. 635, 636, 100
S.Ct. 1920, 64 L.Ed.2d 572 (1980); Schrob v. Catterson,
948 F.2d 1402, 1405 (3d Cir. 1991); Markowitz v. Northeast Land
Co., 906 F.2d 100, 103 (3d Cir. 1990)); see also Conley v.
Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).
Finally, "Rule 12(b)(6) authorizes a court to dismiss a claim on
the basis of a dispositive issue of law." Neitzke v. Williams,
490 U.S. 319, 326-27, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989)
(noting that this procedure "streamlines litigation by dispensing
with needless discovery and factfinding").
A. A Claim on Behalf of the Fetus
Ford and TRW claim that the Complaint contains ambiguous
language concerning the death of Thomas's unborn child. See
Ford Mem. Law Supp. Mot. Dismiss at 2 (filed Apr. 5, 1999); TRW
Mem. Law. Supp. Mot. Dismiss at ii (filed May 26, 1999).
Specifically, Ford and TRW contend that Thomas is attempting to
state a statutory claim relating to the death of his unborn child
even though such claims are not cognizable under New Jersey's
Wrongful Death Act or New Jersey's Survival Act. See Ford Mem.
Law Supp. Mot. Dismiss at 2-3; TRW Mem. Law. Supp. Mot. Dismiss
at ii-iii. Ford and TRW move to dismiss any such claims for
failure to state a claim upon which relief may be granted. See
Ford Mem. Law Supp. Mot. Dismiss at 3; TRW Mem. Law. Supp. Mot.
Dismiss at iii. Thomas agrees that claims relating to the death
of a fetus are not cognizable under New Jersey statutory law, but
argues that it is sufficiently clear from the language of the
Complaint that Thomas is not impermissibly seeking recovery on a
statutory ground. See Pl.'s Answer in Opp'n to Mot. to Dismiss
(filed April 5, 1999).
I begin by noting that Ford's, TRW's, and Thomas's
understanding of New Jersey law is correct. The Supreme Court of
New Jersey held in Giardina v. Bennett, 111 N.J. 412,
545 A.2d 139 (1988) that a fetus is not a "person" within the meaning of
New Jersey's Wrongful Death Act and that a claim brought under
the Wrongful Death Act because of the death of a fetus is barred.
See id. at 428, 545 A.2d at 147. Moreover, while New Jersey
courts have not addressed the issue, at least one federal court
has ruled that the Giardina holding and the language of the
Survival Act imply that an action brought on behalf of a deceased
fetus pursuant to the Survival Act is similarly barred. See
Alexander v. Whitman, 114 F.3d 1392, 1399-1400 (3d Cir. 1997).
This is not to say, however, that parents are without legal
recourse when their unborn fetus dies as a result of the tortious
conduct of another. As Ford and Thomas recognize, see Ford Mem.
Law Supp. Mot. Dismiss at 2-3; Pl.'s Answer in Opp'n to Mot. to
Dismiss at 4, parents of deceased fetuses may bring a common-law
claim for compensatory damages for emotional distress and mental
anguish suffered as a result of the loss of a fetus. See
Giardina, 111 N.J. at 420, 545 A.2d at 143.
Consequently, the question of whether or not to grant Ford's
and TRW's motions to dismiss depends upon whether Thomas is, in
fact, seeking relief under the Wrongful Death and Survival Acts
for the death of his unborn child. I conclude that Thomas has not
asserted a claim for the death of his unborn child under either
New Jersey's Wrongful Death Act or the Survival Act. Although
there are references throughout the Complaint to the death of
Thomas's unborn child, none of these references can be construed
to articulate a barred claim. Most of these references appear in
Counts wholly unrelated to the Complaint's Wrongful Death and
Survival Acts Counts. See, e.g., ¶¶ 46, 49, 58-60, 69-71, 89,
94, 97, 99 (concerning product liability and breach of warranty
claims). In fact, Counts I and II of the Complaint, which set
forth Thomas's Wrongful Death and Survival Acts claims, make no
direct mention of the death of Thomas's unborn
child at all. Only one paragraph in the Complaint even
potentially supports Ford's and TRW's view that a barred claim is
alleged: "Individually, Dr. Thomas claims as damages any and all
damages recoverable as a result of the death of Tracy Rose Thomas
and his unborn baby as well as any damages to which he is
entitled under N.J.S. 2A:31-1 et seq. and N.J.S. 2A:15-3."
Compl. ¶ 26. This language is potentially ambiguous because the
death of Thomas's unborn child and the statutory citations to the
Wrongful Death and Survival Acts appear in the same paragraph.
Nevertheless, I find that it is clear that the paragraph seeks
recovery under the Wrongful Death and Survival Acts as
alternatives to recovery for the death of Thomas's unborn child.
It is especially clear that relief is not sought on behalf of
Thomas's unborn fetus pursuant to the Survival Act. No Estate is
raised on behalf of the fetus and paragraph twenty-six indicates
from the outset that the claim is being made on behalf of Thomas
"individually." Given the language of the Complaint and that on a
motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6), I must draw all reasonable inferences in favor of the
Plaintiff, see Mruz, 39 F. Supp.2d at 500, I find that Thomas
has not pled any barred statutory claims. Accordingly, I shall
deny Ford's and TRW's motions to dismiss any claim by Thomas
attempting to recover for the death of his unborn child under
either New Jersey's Wrongful Death Act or New Jersey's Survival
B. Claim for Hedonic Damages
Ford and TRW also move to dismiss Thomas's claim for "hedonic
damages." See Ford Mem. Law Supp. Mot. Dismiss at 3-7; TRW Mem.
Law. Supp. Mot. Dismiss at iii-iv. They contend that hedonic
damages, or damages for the "loss of life's pleasures," are
available only under New Jersey's Survival Act and not New
Jersey's Wrongful Death Act. See Ford Mem. Law Supp. Mot.
Dismiss at 3-4; TRW Mem. Law. Supp. Mot. Dismiss at iii.
Furthermore, they assert that hedonic damages are only available
to the extent that Tracy Thomas's death was not instantaneous and
that she survived the deployment of the airbags for some interval
of time before she died. See Ford Mem. Law Supp. Mot. Dismiss
at 5-6; TRW Mem. Law. Supp. Mot. Dismiss at iv. TRW argues
additionally that Tracy Thomas had to be conscious during this
interval for hedonic damages to be available. See TRW Mem. Law.
Supp. Mot. Dismiss at iv. Ford and TRW contend that the Complaint
in this case is insufficient in that it does not allege that
Tracy Thomas's death was not instantaneous. See Ford Mem. Law
Supp. Mot. Dismiss at 6-7; TRW Mem. Law. Supp. Mot. Dismiss at
iv. Again, Thomas substantially agrees with Ford and TRW's legal
analysis. See Pl.'s Answer in Opp'n to Mot. to Dismiss at 5. He
contends, however, that the Complaint need not allege with any
specificity whether and to what degree Tracy Thomas survived the
deployment of the airbags. See id.
For the most part, the parties have set forth the law
concerning hedonic damages with substantial accuracy. Hedonic
damages are available under New Jersey's Survival Act and not
under New Jersey's Wrongful Death Act. See Clement v. Consol.
Rail Corp., 734 F. Supp. 151, 156 (D.N.J. 1989) (Fisher, J.).
Moreover, hedonic damages are available only to the extent that
Tracy Thomas survived the tortious act that proximately caused
her death for some period of time. See id. at 155-56. She need
not have been conscious during this interval, however, ...