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Chaya Grossbaum and Menachem Grossbaum, Individually and As Guardians Ad Litem of v. Genesis Genetics Institute

June 9, 2011


The opinion of the court was delivered by: Hon. Garrett E. Brown, Jr.



BROWN, Chief Judge:

This matter comes before the Court upon the Daubert motion and summary judgment motion (Doc. Nos. 109, 111) filed by Defendants Genesis Genetics Institute, LLC, and Dr. Mark R. Hughes (collectively "Genesis Defendants"); the motion for summary judgment (Doc. No. 108) filed by New York University Hospitals Center and New York University School of Medicine (collectively "NYU Defendants"); as well as multiple motions to strike (Doc. Nos. 122, 124, 129) related to certain aspects of the parties' briefing. This Court has considered the parties' motions and decided them without oral argument pursuant to Federal Rule of Civil Procedure 78. For the following reasons, the Court will grant Genesis Defendants' summary judgment motion (Doc. No. 109) and deny as moot Genesis Defendants' Daubert motion (Doc. No. 111). The Court will permit supplemental briefing on NYU Defendants' summary judgment motion.


This dispute concerns the liability of a genetics laboratory and reproductive services clinic when, notwithstanding their pre-pregnancy screening services, a couple using their services conceives and delivers a child with birth defects. In discussing the relevant facts, the Court draws all reasonable inferences in favor of Plaintiffs, the non-moving parties. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

Plaintiffs Chaya Grossbaum and Menachem Grossbaum were married on August 22, 2002. When they were in high school, both Chaya and Menachem learned that they were genetic carriers for cystic fibrosis ("CF"). (GG 56.1 Statement ¶ 1; Pls.' 56.1 Resp. ¶ 1.) Because of their status as CF carriers, when the Grossbaums decided they were ready to start a family in or about early 2004, the Grossbaums were referred by one or more rabbis to the New York University School of Medicine Program for IVF (in vitro fertilization), Reproductive Surgery and Infertility. (See GG 56.1 Statement ¶ 8; NYU 56.1 Resp. ¶ 8; Pls.' 56.1 Resp. ¶ 8.) During their consultation with the NYU Defendants, Plaintiffs agreed to undergo IVF with pre-implantation genetic diagnosis (PGD), in the hopes of conceiving a child without CF. (GG 56.1 Statement ¶ 10; Pls.' 56.1 Resp. ¶ 10.)

NYU Defendants provided the IVF and implantation services, and the Genesis Genetics Institute, LLC, provided PGD testing of the Grossbaums' embryos prior to implantation. Genesis Genetics is a Michigan limited liability corporation with its sole place of business in Michigan, and its founder and director Dr. Mark R. Hughes has been a Michigan resident since 1998. (GG 56.1 Statement ¶ 11; Pls.' 56.1 Resp. ¶ 11.) The IVF process began in late June or July 2004, with Chaya taking fertility drugs to increase her body's production of mature eggs. (GG 56.1 Statement ¶¶ 15--16; NYU 56.1 Resp. ¶¶ 15--16; Pls.' 56.1 Resp. ¶¶ 15--16.) On July 14, 2004, an NYU physician retrieved 33 eggs from Chaya's ovaries, and NYU personnel successfully fertilized 10 of the eggs with Menachem's sperm via IVF. (GG 56.1 Statement ¶ 21; NYU 56.1 Resp. ¶ 21; Pls.' 56.1 Resp. ¶ 21.) According to NYU's contemporaneous Semen Collection Record, the Grossbaums had intercourse on the morning of July 14 using a condom to collect the sperm that would be used for the IVF. (Blaine Decl. Ex. 13 at CG 129.) Plaintiffs do not specifically dispute this fact. (See Pls.' 56.1 Resp. ¶¶ 17--20.)*fn1 NYU personnel performed biopsies on the Grossbaum embryos on July 17, 2004, and sent cells from each embryo to Genesis Defendants for PGD testing. (GG 56.1 Statement ¶ 22; NYU 56.1 Resp. ¶ 22; Pls.' 56.1 Resp. ¶ 22.) On July 19, 2004, Genesis Defendants faxed a report to NYU Defendants addressing the results of the PGD testing and the transferability of different embryos ("PGD report"). (See GG 56.1 Statement ¶ 23; NYU 56.1 Resp. ¶ 23; Pls.' 56.1 Resp. ¶ 23; Blaine Decl. Ex. 13 at CG064, CG125.) The PGD report identified embryos Nos. 8 and 10 as "Carrier maternal-OK for transfer," and made differing assessments about the other tested embryos. (Blaine Decl. Ex. 13 at CG064.) That day, NYU endocrinologist Dr. Frederick Licciardi and NYU embryologist Alexis Adler reviewed the results of the PGD report and decided to substitute embryo No. 7 for embryo No. 10; the PGD report indicated that embryo No. 7 was "Carrier at worst." (See GG 56.1 Statement ¶ 24; NYU 56.1 Resp. ¶ 24; Pls.' 56.1 Resp. ¶ 24; Blaine Decl. Ex. 13 at CG064.) The same day, Chaya was implanted with embryos No. 7 and 8.

Rosie Grossbaum was born on March 25, 2005, in Denville, New Jersey. However, at all relevant times during their interactions with Defendants, the Grossbaums resided in Brooklyn, New York. Indeed, the Grossbaums lived in New York from 2002 until "approximately five months" after Rosie's birth in 2005, at which point the Grossbaums moved to New Jersey. (GG 56.1 Statement ¶¶ 7, 28; Pls.' 56.1 Resp. ¶¶ 7, 28; Blaine Decl. Ex. 9 (Dep. of Chaya Grossbaum, Vol. I) at 9--10; Pls.' Resp. Br. at 3 ("The Plaintiffs move to New Jersey followed the baby's birth by approximately five months.").) Approximately two weeks after her birth, Rosie was diagnosed with CF. (GG 56.1 Statement ¶ 28; Pls.' 56.1 Resp. ¶ 28; Blaine Decl. Ex. 27 (Dep. of Chaya Grossbaum, Vol. II) at 221:5--7.)

On March 23, 2007, the Grossbaums, both individually and on behalf of their infant daughter Rosie, filed a four-count Complaint alleging that Genesis Defendants, NYU Defendants, and unidentified parties were negligent in their provision of embryo-screening and in vitro fertilization services. Plaintiffs seek emotional distress damages "with respect to the delivery and upbringing of the infant Plaintiff Rosie Grossbaum due to the special needs for care and treatment of a cystic fibrosis baby and the attendant risks to the child," damages for the "considerable costs and expenses" of Rosie's medical care, and damages for Rosie's continuing care after she reaches the age of majority. The Genesis Defendants and NYU Defendants have filed crossclaims for contribution against each other.

Both Genesis Defendants and NYU Defendants now move for summary judgment. Genesis Defendants argue: (1) that Michigan law applies, and does not allow Plaintiffs' wrongful birth and wrongful life claims; (2) alternatively, that New York law applies, and Plaintiffs' claims are barred by New York's two-and-a-half-year statute of limitations for medical malpractice claims, N.Y. C.P.L.R. 214-a; and (3) if New Jersey law applies, Plaintiffs claims fail under New Jersey's statute of limitations. Regardless of choice of law, Genesis Defendants contend that Plaintiffs' negligence claim fails because: (a) Plaintiffs cannot prove causation, and (b) because Plaintiffs have not presented credible evidence that Genesis Defendants' conduct departed from the applicable standard of care for PGD. Genesis Defendants also move to exclude Plaintiffs' proffered expert witnesses, Dr. Garry Cutting and Dr. Charles Strom, pursuant to Federal Rule of Evidence 702. In their summary judgment motion, NYU Defendants assert:

(1) that New Jersey law governs; (2) that Dr. Cutting's expert opinion is inadmissible, because Dr. Cutting is not qualified to testify against Dr. Licciardi; and (3) that the record establishes that Dr. Licciardi was not negligent and did not cause Plaintiffs' harm. NYU Defendants also responded to Genesis Defendants' summary judgment motion, opposing Genesis Defendants invocation of Michigan law, presenting grounds for summary judgment in their favor under New York law, and arguing in favor of a longer statute of limitations for Plaintiffs' claims against Genesis Defendants. Both Plaintiffs and Genesis Defendants have moved to strike NYU Defendants' response brief to Genesis Defendants' motion for summary judgment as an improper and untimely additional brief. (See Doc. Nos. 122, 124.) Plaintiffs filed a consolidated response brief to the Defendants' motions, countering, inter alia: (1) that New Jersey law applies; (2) that they can prove causation and negligence against both Genesis Defendants and NYU Defendants; (3) that their claims were filed within the statute of limitations; and (4) that their proffered experts are sufficiently qualified to provide expert testimony.


This Court has diversity jurisdiction pursuant to 28 U.S.C. § 1332(a). Plaintiffs, New Jersey residents, are diverse from the Genesis Defendants (Michigan) and NYU Defendants (New York), and Plaintiffs seek damages in excess of $75,000.

Summary Judgment

A party seeking summary judgment must "show[] that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Hersh v. Allen Prod. Co., 789 F.2d 230, 232 (3d Cir. 1986). 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." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (noting that no triable issue exists unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict in its favor). In deciding whether triable issues of fact exist, this Court must view the underlying facts and draw all reasonable inferences in favor of the nonmoving party. Matsushita, 475 U.S. at 587; Pa. Coal Ass'n v. Babbitt, 63 F.3d 231, 236 (3d Cir. 1995). "After giving notice and a reasonable time to respond, the court may: (1) grant summary judgment for a non-movant; (2) grant the motion on grounds not raised by a party; or (3) consider summary judgment on its own after identifying for the parties material facts that may not be genuinely in dispute." Fed. R. Civ. P. 56(f).

Before the Court may resolve the parties' motions, the Court must determine which state's law ...

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