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Alexander v. Whitman

May 23, 1997

KAREN ALEXANDER; DENNIS DRAZIN, ESQ.; DRAZIN AND WARSHAW,

v.

CHRISTINE TODD WHITMAN; PETER VERNIERO; *fn1 JANICE S. MATHIS; STEPHEN R. ROTHMAN; ELTON A. CONDA; W. ROBERT HENTGES; HARRY A. FREITAG, JR.; MARIA VIZCARRONDO-DE SOTO; DONALD H. WAGNER; DONALD W. DE LEO; SUSAN HOFFMAN GREENE; CAROL OSWALD; KEVIN J. HOAGLAND; MARIE S. MUHLER; *FN2 JOHN PECORARO; FRANKLIN V. FISHER; ROSALIE MASSERI; GENEVA B. WOOD; VERNON A. NOBLE; NANCY FITZGIBBONS; ANN P. CONTI; ALBERT J. RUH; MARIA BARNABY GREENWALD

KAREN ALEXANDER, INDIVIDUALLY AND ON BEHALF OF ALL PERSONS SIMILARLY SITUATED; DENNIS DRAZIN, ESQ., INDIVIDUALLY AND ON BEHALF OF ALL ATTORNEYS SIMILARLY SITUATED; AND DRAZIN & WARSHAW, A PROFESSIONAL CORPORATION, INDIVIDUALLY AND ON BEHALF OF ALL FIRMS SIMILARLY SITUATED,

APPELLANTS



ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

(Civil No. 94-5229)

Before: GREENBERG, ALITO and McKEE, Circuit Judges

McKEE, Circuit Judge

Filed May 23, 1997

Argued: May 9, 1996

Opinion filed: May 23, 1997

OPINION OF THE COURT

Karen Alexander, Dennis Drazin, Esq., and the lawfirm of Drazin and Warshaw, P.C., appeal from the district court's dismissal of their complaint under Fed R. Civ. P. 12(b)(6). Plaintiffs had alleged that New Jersey's Wrongful Death Act, N.J.S.A. 2A:31-1 et seq., and Survival Action Act, N.J.S.A. 2A:15-3, violate the Equal Protection and Due Process Clauses of the Fourteenth Amendment of the United States Constitution because they deny a cause of action to the statutory beneficiaries unless a fetus survives past birth. For the reasons that follow, we disagree and will affirm the district court's dismissal of the complaint.

I. FACTS

On July 15, 1992, Karen F. Alexander, who was then eight and one-half months pregnant, was admitted to the Jersey Shore Medical Center to give birth to her child. The vital signs of Ms. Alexander's baby were taken only fourteen minutes prior to delivery by cesarean section, and the fetus appeared normal and healthy. Tragically, however, the child was stillborn. *fn3

An autopsy was performed, and a death certificate was issued showing the date of the child's birth as July 15, 1992. The birth certificate noted the child's name was Kaylyn Elissa Alexander and that she was "stillborn" due to "cardio-vascular collapse."

On July 13, 1994, Karen Alexander filed a complaint in the Superior Court of Monmouth County, New Jersey, seeking damages individually *fn4 and in her capacity as Administratrix Ad Prosequendum of the Estate of Kaylyn Elissa Alexander, Deceased, under the New Jersey Wrongful Death Act, N.J.S.A. 2A:31-1, and as General Administrator of the Estate of Kaylyn Elissa Alexander, Deceased, under the New Jersey Survival Action statute, N.J.S.A. 2A:15-3. The complaint alleged that the negligence of doctors, nurses, and other health care personnel at Jersey Shore Medical Center had injured Ms. Alexander's baby while it was still in her mother's womb. Ms. Alexander requested that the Surrogate of Monmouth County issue Letters of Administration Ad Prosequendum and General Letters of Administration for the Estate of Kaylyn Elissa Alexander. On October 18 and 31, 1994, the Surrogate denied the request for Letters Ad Prosequendum because Kaylyn Elissa had been stillborn.

On October 28, 1994, Karen Alexander and Dennis Drazin, a New Jersey lawyer, and Drazin & Warshaw, P.C., a law firm, filed a class action complaint under 42 U.S.C. Section(s) 1983 in the United States District Court for the District of New Jersey. The suit named Christine Todd Whitman, individually, and as Governor of the State of New Jersey, Deborah T. Poritz, individually, and as Attorney General of the State of New Jersey, *fn5 and the Surrogates of all twenty-one counties in New Jersey as defendants. Alexander brought the action individually, on behalf of all mothers whose fetuses had allegedly been injured in utero by the tortious acts of a third party and who were later stillborn, on behalf of her own stillborn child, and on behalf of all stillborn children who were similarly situated. The complaint alleged violations of the Equal Protection and Due Process clauses of the Fourteenth Amendment. Essentially, the complaint alleged the New Jersey Wrongful Death Act (as interpreted by the New Jersey Supreme Court in Giardina v. Bennett, 545 A.2d 139 (N.J. 1988)), and the New Jersey Survival Action Act are unconstitutional because they deny recovery on behalf of stillborn fetuses. Plaintiffs requested, inter alia, that these statutes be declared unconstitutional, an order directing the surrogate to issue letters of administration in the estate of Kaylyn Elissa Alexander to Karen Alexander, and money damages. Drazin and Drazin & Warshaw, P.C., individually and on behalf of all attorneys and law firms (the "Drazin plaintiffs"), raised the same constitutional challenge to the statues, and alleged that their constitutional rights are violated because they are precluded from bringing wrongful death and survival actions on behalf of potential clients whose children were stillborn because of the tortious acts of third parties.

On December 11, 1995, the Governor and the Attorney General (the "State defendants") filed a motion to dismiss the complaint under Fed. R. Civ. P. 12(b)(6). The Surrogates (the "County defendants") thereafter moved to join in the state defendants' 12(b)(6) motion. Plaintiffs then cross-moved for class certification and for summary judgment.

Subsequently, fifteen of the Surrogates executed Consent Orders of Judgment. *fn6 Following argument, the district court granted the State defendants' motion to dismiss. Consequently, plaintiffs' motions for class certification and for summary judgment were denied. This appeal followed. *fn7

II. STANDARD OF REVIEW

We exercise plenary review over a district court's order dismissing a complaint under Fed. R. Civ. P. 12(b)(6). Moore v. Tartler, 986 F.2d 682, 685 (3d Cir. 1993). We must determine if plaintiff may be entitled to relief under any reasonable reading of the pleadings, Holder v. City of Allentown, 987 F.2d 188, 193 (3d Cir. 1993), assuming the truth of all the factual allegations in the complaint. D.R. v. Middle Bucks Area Vocational Technical Sch., 972 F.2d 1364, 1367 (3d Cir. 1992). A court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proven consistent with the allegations. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). *fn8

III. DISCUSSION

A. THE STATUTORY SCHEME

It is helpful to briefly discuss the two causes of action at issue in this dispute before proceeding with our analysis.

1. WRONGFUL DEATH ACTION.

The fundamental purpose of a wrongful death action is to compensate survivors for the pecuniary losses they suffer because of the tortious conduct of others. Alfone v. Sarno, 403 A.2d 9, 12 (N.J. Super. Ct. App. Div. 1979), modified on other grounds, 432 A.2d 857 (N.J. 1979). This cause of action was not recognized at common law and is purely a creature of statute. Schmoll v. Creecy, 254 A.2d 525, 527 (N.J. 1969). New Jersey's Wrongful Death Act provides, in relevant part, as follows:

When the death of a person is caused by a wrongful act, neglect or default, such as would, if death had not ensued, have entitled the person injured to maintain an action for damages resulting from the injury, the person who would have been liable in damages for the injury if death had not ensued shall be liable in an action for damages, notwithstanding the death of the person injured and although the death was caused under circumstances amounting in law to a crime.

N.J.S.A. 2A:31-1.

An award of damages in a wrongful death action "is not a matter of punishment for an errant defendant or of providing for decedent's next of kin to a greater extent than decedent himself would have been able, but is rather a replacement for that which decedent would likely have provided and no more." Hudgins v. Serrano, 453 A.2d 218, 224 (N.J. App. Div. 1982). The amount of recovery is based upon the contributions, reduced to monetary terms, which the decedent might reasonably have been expected to make to his or her survivors. Alfone, 402 A.2d at 12. Damages are awarded for pecuniary loss only, and not for injury to feelings, mental suffering, or loss of society or companionship. Id. However, economic dependency is not the sole measure of the damages. Minor children may recover the pecuniary value of the loss of care, guidance and advice of a parent during their minority. Id. In addition, the wrongful death statute permits the award of hospital, medical and funeral expenses. N.J.S.A. 2A:31-5.

A wrongful death action is available when a child is killed by the tortious act of another.

When parents sue for the wrongful death of a child, damages should not be limited to the well-known elements of pecuniary loss such as the loss of the value of the child's anticipated help with household chores, or the loss of anticipated direct financial contributions by the child after he or she becomes a wage earner. . . . [I]n addition, the jury should be allowed, under appropriate circumstances, to award damages for the parents' loss of their child's companionship as they grow older, when it may be most needed and valuable, as well as the advice and guidance that often accompanies it.

Green v. Bittner, 424 A.2d 210, 211 (N.J. 1980). However, damages for these additional items are confined to their pecuniary value, not including the value of the emotional loss. Id.

Damages for the wrongful death of an infant are likewise recoverable and, "like wrongful-death damages generally, are limited to economic matters[] [such as] . . . the pecuniary value of the child's help with household chores, the pecuniary value of the child's anticipated financial contributions, and the pecuniary value of the child's companionship . . . as the parents grow older." Carey v. Lovett, 622 A.2d 1279, 1291 (N.J. 1993)(citing Green, 424 A.2d at 211). However, "[t]he problem in evaluating the economic value of a newborn's life is obvious. No one can know much, if anything, about the infant and his or her future economic worth. That difficulty, however, should not preclude any award. Some award is appropriate even though the inferences, and estimate of damages, are based on uncertainties." Carey, 622 A.2d at 1291.

The particular aspect of New Jersey's wrongful death action that gives rise to the instant controversy arises from the holding in Giardina v. Bennett, 545 A.2d 139 (N.J. 1988). There, the New Jersey Supreme Court held that the New Jersey Wrongful Death Act does not permit recovery for damages attributable to the wrongful death of a fetus. However, even though the parents cannot recover for the death of the fetus in such cases, they can recover damages for their own injuries that result from the tortious conduct. "[M]edical malpractice causing an infant stillbirth constitutes a tort against the parents, ...


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