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June 14, 2005.


The opinion of the court was delivered by: JEROME SIMANDLE, District Judge


This case arises out of Plaintiffs' allegations that the DuPont Defendants, through its doctor, Robert P. Stanton, M.D., provided deficient medical care on December 5, 1996 when Dr. Stanton performed orthopedic surgery to correct seven-year-old Plaintiff Robert Warriner's condition of "talipes equinovarus" or "club feet" at its Wilmington, Delaware hospital. The principal issue to be determined pertains to choice of law, namely whether the statute of limitations law of New Jersey or that of Delaware is applicable here.

  This matter comes before the Court upon the motion of Defendant The Nemours Foundation, Inc. for summary judgment. For the reasons stated herein, Defendant's motion will be granted.


  The following facts are derived from the stipulation of undisputed facts entered into by the parties. Robert T. Warriner, Jr. was born with clubbed feet. Within twelve days of his birth on June 8, 1989, the infant's New Jersey pediatrician, Barry Kessler, M.D., referred the Warriners to the A.I. duPont Hospital for Children ("AIDHC") in Wilmington, Delaware for pediatric orthopedic care. (Defs.' Ex. D at ¶ 4.) Dr. Robert Stanton of AIDHC diagnosed Robert with talipes equinovarus ("club foot") and between 1989 and 1996, Dr. Stanton performed several surgeries to correct this condition in Wilmington, Delaware. (Id. at ¶ 2.) In December of 1996, Dr. Stanton performed a surgery in Wilmington, Delaware, which is the subject of this litigation. Plaintiffs allege that the December 1996 surgery was "inappropriately designed" by Dr. Stanton and "resulted in an overcorrection which detrimentally effected [sic] Robert's ability to ambulate." (Id. at ¶ 3.)

  When Dr. Stanton began to treat Robert in 1989, The Nemours Foundation did not operate a medical facility, nor did its physicians provide medical care, in the State of New Jersey. (Id. at ¶ 5.) Dr. Stanton has been employed by The Nemours Foundation, Inc. ("Nemours Foundation" or "Nemours") since 1988. (Id. at ¶ 7.) Since 1995, however, Dr. Stanton has maintained an active New Jersey medical license, upon the instruction of his employer, The Nemours Foundation, which requested that Dr. Stanton obtain his New Jersey license to practice medicine to facilitate the collection of medical payments from the State of New Jersey for treatment rendered by Dr. Stanton to New Jersey patients. (Id. at ¶ 8.) Dr. Stanton continues to maintain an active New Jersey medical license, the renewal fees for which are paid for by The Nemours Foundation. (Id. at ¶ 9.)

  In 1997, The Nemours Foundation developed the AtlanticCare/duPont Children's Health Program, a pediatric partnership between AtlantiCare and AIDHC, offering southern New Jersey residents, for the first time, access in New Jersey to pediatric specialists employed by Nemours. (Id. at ¶ 12.) From approximately September 1998 through May 2001, Dr. Stanton was one of the pediatric specialists affiliated with the Atlantic Care/duPont Children's Health Program in New Jersey. (Id. at ¶ 13.)

  This case was removed from state court on May 13, 2003 and Defendants filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) on September 26, 2003. After the filing of this motion, the parties stipulated to the dismissal of Defendant Robert B. Stanton, M.D. On June 30, 2004, this Court denied Defendants' motion to dismiss without prejudice to their reassertion of the statute of limitations defense in a motion for summary judgment devoted to that issue. The instant motion for summary judgment on the limitations issue was filed on September 20, 2004.


  Summary Judgment Standard

  The legal principles governing this motion are wellestablished. Summary judgment is appropriate only when the materials of record "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the non-moving party." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" only if it might affect the outcome of the suit under the applicable rule of law. Id. In deciding whether there is a disputed issue of material fact, the court must view the evidence in favor of the non-moving party by extending any reasonable favorable inference to that party; in other words, "[T]he nonmoving party's evidence `is to be believed, and all justifiable inferences are to be drawn in [that party's] favor.'" Hunt v. Cromartie, 526 U.S. 541, 552 (1999) (quoting Liberty Lobby, 477 U.S. at 255). The threshold inquiry is whether there are "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Liberty Lobby, 477 U.S. at 250; Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 329-30 (3d Cir. 1995) (internal citation omitted).*fn1 Moreover, Federal Rule of Civil Procedure 56(e) provides:
When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.
Fed.R.Civ.P. 56(e). Thus, if the plaintiff's evidence is a mere scintilla or is "not significantly probative," the court may grant summary judgment. Liberty Lobby, 477 U.S. at 249-50; Country Floors, 930 F.2d at 1061-62.

  Choice of Law

  The present motion requires the Court to determine whether this case, involving surgery performed on a New Jersey resident which occurred in Delaware, is governed by Delaware's two-year statute of limitations or by New Jersey's statute of limitations which is tolled until the minor plaintiff reaches the age of eighteen. As a federal court sitting in diversity, this Court is obligated to apply the choice of law rules of the forum state — in this case, New Jersey. See Klaxon Co. v. Stentor Elec. Mfg., 313 U.S. 487 (1941). New Jersey's choice of law principles dictate that a court use a flexible "governmental-interest" analysis "which requires application of the law of the state with the greatest interest in resolving the particular issue." Gantes v. Kason Corp., 679 A.2d 106, 109 (N.J. 1996); Veazey v. Doremus, 510 A.2d 1187 (N.J. 1986). Until 1973, the New Jersey governmental interest approach applied only to choices of substantive law. Procedural matters, such as the appropriate statute of limitations, were governed by forum law. In Heavner v. Uniroyal, Inc., 305 A.2d 412 (N.J. 1973), however, the New Jersey Supreme Court abandoned the mechanistic application of the forum statute of limitations in cases where a foreign substantive law was chosen, in an attempt to discourage forum shopping. In determining whether the present cause of action is time-barred, New Jersey choice of law rules therefore require a determination of which law will govern the merits of the case. Moreover, the Third Circuit has cautioned that "[t]o consider the limitation period in isolation . . . defeats the very purpose of Heavner which seeks to discourage forum shopping." Henry v. Richardson-Merrell, Inc., 508 F.2d 28, 32 n. 10 (3d Cir. 1975). "[T]he critical determination underlying the `borrowing' of a foreign statute of limitations is a determination as to whether a foreign substantive law is to be applied." Schum v. Bailey, 578 F.2d 493, 495 (3d Cir. 1978).

  The first prong of the New Jersey governmental-interest analysis requires a court to assess whether there is an actual conflict between the relevant laws of the respective states. If the court determines that such an actual conflict does exist, the second prong of the analysis "seeks to determine the interest that each state has in resolving the specific issue in dispute," by determining the factual contacts between the parties and each related jurisdiction. Gantes, 679 A.2d at 109. The "qualitative, not the quantitative" nature of each state's interest must ultimately determine which state's laws should apply. Veazey, 510 A.2d at 1189-1190. "[T]he object of the governmental interest analysis is to determine, based on the policies underlying the respective law of each state and the significance of its respective contacts with the ...

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