United States District Court, D. New Jersey
June 14, 2005.
ROBERT TROY WARRINER, JR., R. TROY WARRINER, SR., and TERESA WARRINER, Plaintiffs,
ROBERT P. STANTON, M.D., ALFRED I. DUPONT HOSPITAL FOR CHILDREN OF THE DE NEMOURS FOUNDATION a/k/a ALFRED I. DUPONT HOSPITAL FOR CHILDREN, ALFRED I. DUPONT INSTITUTE OF THE NEMOURS FOUNDATION, and THE NEMOURS FOUNDATION, INC., Defendants.
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
omitted).*fn1 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.
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 litigation,
which state, in the circumstances, has the paramount interest in
the enforcement of its law respecting the specific issue in
question." Butkera v. Hudson River Sloop "Clearwater," Inc.,
693 A.2d 520, 522 (N.J. 1997).
As the present motion involves the election of a statute of
limitations from two possible options, namely Delaware's two-year
statute of limitations and New Jersey's statute of limitations
which is tolled until the minor plaintiff reaches the age of
eighteen, a direct conflict between the laws of the two states
exists. Plaintiffs' January 17, 2003 Complaint regarding the
December 5, 1996 surgery is time-barred if Delaware law applies,
and is not time-barred if New Jersey law applies.
Having identified an actual conflict between the relevant laws
of the two states, this Court must next examine the nature and
magnitude of each state's interest in seeing its laws applied in
this case. Critical to the determination is the "nature of the contacts that the state has to the litigation and to the
parties." See Gantes v. Kason Corp., 679 A.2d 106, 110 (N.J.
1996). Other factors are also relevant, such as the interests of
interstate comity; the interests of the parties; the interests
underlying the field of law; the interests of judicial
administration; and the competing interests of the states. See
Restatement, §§ 6, 145 comment b; see also Pfizer, Inc. v.
Employers Ins. of Wausau, 712 A.2d 634, 639 (N.J. 1998).
Particularly relevant to this inquiry is where the injury
occurred, where the conduct at issue occurred, where the parties
reside, and where the relationship between the parties is
centered. Fu v. Fu, 733 A.2d 1133, 1142 (N.J. 1999).
Plaintiffs' instant lawsuit sounds in tort law, presenting an
issue of alleged medical malpractice. The Third Circuit has
consistently "identified New Jersey's policies in a tort context
as consisting primarily of compensation and deterrence." Schum,
578 F.2d at 496. Thus, New Jersey's strong interest in protecting
compensation rights of its domiciliaries is implicated here. At
the same time, Delaware, which has a strong interest in
protecting the rights of its domiciliary defendants in guest-host
situations, see Shuder v. McDonald's Corp., 859 F.2d 266, 270
(3d Cir. 1988), also has the same interest in the compensation of
its own domiciliaries, while simultaneously having no interest in
compensating a non-domiciliary. In addition, while New Jersey expresses an equally strong
interest in deterring future misconduct, as presumably would
Delaware, Delaware has also expressed an additional interest in
protecting its health care providers. Indeed, Delaware's
statutory scheme reflects its legislature's intent to provide a
remedy to injured parties while simultaneously shielding
Delaware's health care providers from the rising costs of
malpractice liability insurance, which it determined was driven,
at least in part, by the costs of defending malpractice suits.
See 18 Del. Code Ann. § 6856; DiFilippo v. Beck,
520 F. Supp. 1009, 1011 (D. Del. 1981) ("The adoption of the Act in 1976 was
the response of the Delaware General Assembly to what it
perceived to be a malpractice crisis in medical care."); Dunn v.
St. Francis Hospital, Inc., 401 A.2d 77, 79 (Del. 1979).
Having examined the governmental policies evidenced by the laws
of New Jersey and Delaware, the Court turns next to the factual
contacts between the parties and the related jurisdictions. See
Henry, 508 F.2d at 32. In 1989, in the early days after birth,
Robert Warriner received medical treatment in New Jersey from Dr.
Barry Kessler, a pediatrician not employed by or affiliated with
The Nemours Foundation, at the Atlantic City Medical Center, a
facility not owned or operated by, or otherwise affiliated with
The Nemours Foundation. (Defs.' Ex. D at ¶ 4.) Dr. Kessler
referred Robert to AIDHC in Wilmington, Delaware, for pediatric orthopedic care. (Id.) Upon this referral, Robert's
parents took him to Delaware, for medical treatment with Dr.
Stanton. (Id. at ¶ 2.) He received no medical care from Dr.
Stanton or any other Nemours physician in New Jersey before
coming to Delaware in 1989 or at any time thereafter. (Id. at ¶
Moreover, The Nemours Foundation did not operate a medical
facility in New Jersey, and its physicians, including Dr.
Stanton, did not provide medical care in New Jersey in 1989.
(Id. at ¶ 5; Defs.' Ex. F, Deposition of Robert P. Stanton,
M.D. at 9-10.) Prior to developing the AtlanticCare/duPont
Children's Health Program in 1997, Nemours operated no medical
facility in New Jersey and offered New Jersey residents no access
in New Jersey to pediatric specialists employed by The Nemours
Foundation. (Defs.' Ex. D at ¶ 12.)
While Dr. Stanton has maintained a New Jersey medical license
from 1995 until the present, he was not licensed to practice
medicine in New Jersey at the time Plaintiffs traveled to see him
in Delaware. (Id. at ¶ 8.) Moreover, Dr. Stanton did not see a
single patient in New Jersey until September 1998, nearly two
years after the alleged negligent conduct in this case. (Defs.'
Ex. F, Stanton Depo. at 15-17; Defs.' Ex. D at ¶ 17.) While The
Nemours Foundation did establish a formal presence for its
physicians to treat patients in New Jersey in 1997, Robert Warriner has never received medical treatment from a
Nemours physician or at a Nemours facility in New Jersey. (Defs.'
Ex. D at ¶ 6.)
Plaintiffs elected to travel to Delaware in 1989 for
specialized medical treatment that was then unavailable to them
in New Jersey. For nearly eight years thereafter, even after the
establishment of a Nemours-related facility in New Jersey in
1997, Plaintiffs continued to receive medical treatment solely in
Delaware, including the allegedly negligent surgery at issue in
this lawsuit in 1996.
Although New Jersey's sole interest in this case arises out of
Plaintiffs' residence, that interest is greatly attenuated in
this case because New Jersey has no connection to the acts giving
rise to this lawsuit. Moreover, in light of Delaware's
comprehensive contacts with the events giving rise to this
litigation, Delaware's strong governmental interest in applying
its laws to torts that are alleged to have occurred within its
borders, committed by physicians practicing within those borders,
must be said to predominate.
In arguing that New Jersey's law with respect to statute of
limitations is applicable here, Plaintiffs place principal
reliance upon the Third Circuit's holding in Schum v. Bailey,
578 F.2d 493 (3d Cir. 1978). In Schum, the plaintiff was a New
Jersey resident who filed a medical malpractice lawsuit against her New York physician arising out of surgery and treatment
performed in New York. The plaintiff, who initially consulted a
New Jersey physician, was referred by that doctor to the
defendant in New York. All of the defendant's services, including
the surgery at issue, were performed in New York, the state in
which the defendant maintained his major practice. The Third
Circuit held that the New Jersey statute of limitations applied
due to "New Jersey's strong interest in protecting the
compensation rights of its domiciliaries" as well as New Jersey's
interest in deterring tortious conduct on the part of medical
practitioners. Schum, 578 F.2d at 496-97.
Schum, however, is distinguishable from the present case.
First, the Third Circuit in Schum found that "the application
of New Jersey law in no way conflicts with any New York
interest." Id. at 496. The court found that New York's
interests in compensation of its own domiciliaries and deterrence
of future misconduct were the same as New Jersey's, and therefore
those interests would be adequately served by application of New
Jersey law. The court then went on to conclude that "since [the]
record reveals no conflict between New York and New Jersey
insofar as the application of their substantive laws is
concerned, and since the record also reveals that New Jersey has
a substantial interest in the application of its own law, we
conclude that New Jersey, as an interested forum, would apply its own law of
liability." Schum, 578 F.2d at 497.
This case, however, unlike the facts of Schum, presents a
true conflict between the interests of New Jersey and Delaware.
While New Jersey's law evinces an interest in compensation and
deterrence as well as a desire to protect minors who are not
well-versed in legal matters from the adverse consequences of
their inexperience, Delaware's statutory scheme reflects its
legislature's interest in not only providing compensation to
Delaware domiciled injured parties and deterring future
malpractice but also in shielding Delaware health care providers
from the rising costs of malpractice liability insurance.
Moreover, the court's analysis in Schum is distinguishable on
certain facts. In Schum, the defendant doctor, while a resident
of New York and having conducted the surgery at issue in New
York, was also "a staff member of, and performed professional
services at, at least two New Jersey medical facilities" at the
time of the incident giving rise to the litigation. Id. at 494.
The Third Circuit found it important that the defendant "was an
active member of the staff of St. Michael's Medical Center in
Newark from 1950-1953, served there variously as a consultant in
Cardio-Surgery and an attending surgeon from 1954-1973, and was
placed on `active' staff both at St. Michael's and at the Jersey
City Medical Center in 1973." Id. at 497. In reversing the district court, the Third Circuit found that the district court
had completely ignored the associations which the defendant had
with New Jersey hospitals. Id. at 497 n. 4.
Here, at the time of the alleged malpractice, Defendants had no
contact with New Jersey. While it is true that Dr. Stanton has
held a license to practice medicine in New Jersey since 1995,
there is no evidence that he practiced in New Jersey at the time
of the alleged malpractice. Moreover, the parties have stipulated
to the fact that Dr. Stanton provided no care for Robert in New
Jersey at any time. Similarly, while Dr. Stanton joined the staff
of two New Jersey medical facilities in September 1998, he never
administered care to Robert at either facility and, in fact, had
altogether stopped providing medical care to Robert in Delaware
by that time. Robert's place of residence yields this case's only
connection to New Jersey. In light of this fact, the extensive
connections of Delaware to all parties in this case, and the
paramount interest of Delaware in regulating the medical care
offered within its borders by shielding in-state physicians and
hospitals from high insurance premiums and stale malpractice
claims, this Court must apply Delaware's statute of limitations
to the instant action. In so doing, Plaintiffs' suit is
time-barred and must be dismissed. CONCLUSION
For the reasons discussed above, this Court will apply the
statute of limitations of Delaware to the instant lawsuit. Thus,
Defendant The Nemours Foundation's motion for summary judgment
will be granted and Plaintiff's case will be dismissed as