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 ¶
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
Moreover, Federal Rule of Civil Procedure
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.
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 ...