With respect to the general calculation of damages, New Jersey places
limits on what a plaintiff may recover by requiring that "future lost
earnings be based on probable net earnings, take home pay, the amount
left after taxes are deducted" and by providing that future damages must
be reduced to present value. Poust v. Huntleigh Healthcare,
998 F. Supp. 478, 498-99 (D.N.J. 1998) (quotation omitted). Pennsylvania
does not impose either of these limitations. See Kaczkowski v. Bolubasz,
421 A.2d 1027, 1039 (Pa. 1980) (instructing courts of Commonwealth to
"abandon the practice of discounting lost future earnings"); Rivera v.
Phila. Theological Seminary of St. Charles Borromeo, Inc., 507 A.2d 1, 22
(Pa. 1986) (finding "no reason to re-evaluate" case law holding "that
income tax consequences are not considered in fixing damages for the
determination of decedent's earning capacity") (quotation omitted).
As for damages under each state's survival statute, New Jersey's law
is, again, more restrictive than Pennsylvania's. Under New Jersey's
Survival Act, N.J.S.A. § 2A:15-3, recovery is limited "to the pain
and suffering experienced by the decedent from the time of the alleged
negligence and resulting injury until the time of death." Capone v.
Nadig, 963 F. Supp. 409, 412 (D.N.J. 1997) (citing Evoma v. Falco,
589 A.2d 653 (N.J.Super. Ct. App. Div. 199 1)). Pennsylvania's Survival
Act, 20 Pa. C.S.A. § 3371, on the other hand, "permits an estate to
recover not only for the decedent's pain and suffering, but also for the
prospective net earning capacity of the decedent." Id. at 412-13 (citing
Skoda v. W. Penn Power Co., 191 A.2d 822, 829 (Pa. 1963)) (emphasis
Notwithstanding these differences in the two states' approaches to
damages, the Court concludes that the purported conflict is a false one.
The Court draws support for this conclusion from the Third Circuit's
reasoning in its analogous Lacey decision. Lacey involved an airplane
accident that occurred in British Columbia, Canada. Plaintiff, an
Australian citizen, brought suit in the Western District of Pennsylvania
against two defendants, one of whom was a Pennsylvania citizen. Lacey,
932 F.2d at 172-75.
At issue before the Lacey court was whether the law of British Columbia
or the law of Pennsylvania should apply; the apparent conflict resulted
"primarily from the fact that Pennsylvania has adopted strict liability,
whereas British Columbia has not." Id. at 188. These different standards
revealed the two jurisdictions' divergent policy interests.
Pennsylvania's adoption of a strict liability standard evinced the
state's "interest in deterring the manufacture of defective products and
in shifting the costs of injuries onto producers." Id. British Columbia,
however, adopted a policy of "fostering industry within its borders."
Id. Applying Pennsylvania's law, the court concluded, would further
Pennsylvania's interest, but, in light of the fact that the allegedly
negligent conduct took place within Pennsylvania and not within British
Columbia, applying British Columbia's law would not promote that
jurisdiction's interest. Id. In contrast, "applying British Columbia's
negligence standard . . . would harm Pennsylvania's interest." Id. Based
on this analysis, the Third Circuit concluded that the case "present[ed]
a false conflict, and that the district court probably should apply the
law of Pennsylvania — the
jurisdiction whose interests would be
damaged if its law were not applied." Id.*fn2
The same scenario is present in this case. New Jersey's law governing
damages has been described, by "the majority of the cases," as embodying
the "Legislature's interest in the `protection of defendants from large
recoveries.'" Capone, 963 F. Supp. at 413 (quoting Colley v. Harvey
Cedars Marina, 422 F. Supp. 953, 955 (D.N.J. 1976)). Pennsylvania, by
contrast, has adopted a "liberal damage policy." Blakesley v. Wolford,
789 F.2d 236, 240 (3d Cir. 1986). Applying New Jersey law in this case
would undoubtedly limit defendants' exposure to damages. This outcome,
however, cannot be said to promote New Jersey's policy of protecting
defendants from large damages recoveries because none of the defendants
are New Jersey citizens and none of the allegedly negligent conduct
occurred in New Jersey. Application of New Jersey law would also impair
Pennsylvania's interest in promoting recovery and its corollary interest
in deterring tortious conduct within its borders. On the other hand,
application of Pennsylvania law would not only promote Pennsylvania's
interest, but it would also avoid any deleterious impact on New Jersey's
policy. Cf. Broome v. Antlers' Hunting Club, 595 F.2d 921, 925 (3d Cir.
1979) (concluding that "New York's interest in applying its law of
damages to its resident who chose to vacation in Pennsylvania would weigh
lightly on the qualitative scale compared with Pennsylvania's policy of
compensating tort victims when that state is the place of the tortious
Accordingly, the Court concludes that the relevant differences in
Pennsylvania's and New Jersey's law governing damages constitute a false
conflict. The Court will therefore apply the law of Pennsylvania, "the
state whose interests would be harmed if its law were not applied."
Lacey, 932 F.2d at 187.
In the alternative, the Court concludes that even if there is a true
the second component of Pennsylvania's choice-of-law
analysis, requiring the court to determine "which state has the greater
interest in the application of its law," leads to the same result
— application of Pennsylvania's law of damages. LeJeune, 85 F.3d at
Under Pennsylvania law, to conduct this analysis, the Court must
evaluate "what contacts each state has with the accident, the contacts
being relevant only if they relate to the `policies and interest
underlying the particular issue before the court.'" Cipolla, 267 A.2d at
856 (quoting Griffith v. United Air Lines, Inc., 203 A.2d 796, 805
(1964)). "When doing this it must be remembered that a mere counting of
contacts is not what is involved." Id. Instead, "[t]he weight of a
particular state's contacts must be measured on a qualitative rather than
quantitative scale." Id. In a tort case, the Pennsylvania analysis is
essentially the same as that set forth in Restatement (Second) of
Conflict of Laws § 145 (1971). See Troxel v. A.I. duPont Institute,
636 A.2d 1179, 1180-81 (Pa.Super.Ct.), appeal denied, 647 A.2d 903 (Pa.
1994). Section 145 provides, in relevant part, that the contacts to be
considered include: "(a) the place where the injury occurred, (b) the
place where the conduct causing the injury occurred, (c) the domicil,
residence, nationality, place of incorporation and place of business of
the parties, and (d) the place where the relationship, if any, between
the parties is centered." Restatement (Second) of Conflict of Laws §
Application of the Restatement to the facts of this case weighs heavily
in favor of utilizing Pennsylvania law. The injury, decedent's death,
occurred in Pennsylvania as a result of defendants' allegedly negligent
conduct, which also took place in Pennsylvania.*fn4 All defendants are
citizens of Pennsylvania, and, importantly, conduct business in
Pennsylvania; defendants are therefore on notice — at least
constructively — of Pennsylvania's law governing remedies for
injuries caused by negligent conduct. Finally, the only relationship that
ever existed between the parties arose out of the accident which, as
stated, occurred in Pennsylvania.
The sole significant contact with New Jersey in this case is that
decedent was, and plaintiffs are, citizens of that state. New Jersey, in
enacting wrongful death and survival statutes, surely has an interest in
the administration of a decedent's estate and in the decedent's heirs'
recovery of damages. See Kiehn v. Elkem-Spigerverket A/S Kemi-Metal,
585 F. Supp. 413, 417 (M.D.Pa. 1984) (citing Griffith, 203 A.2d at 807)
(noting that "causes of action in wrongful death and survival cases are
unique in that they are specifically authorized by statute" and that
those statutes reflect important state interests). Notwithstanding this
important interest, the Court, conducting the necessarily "qualitative"
analysis, concludes that Pennsylvania's contacts with this case are
weightier than New Jersey's contacts.*fn5
Thus, the Court determines
that Pennsylvania has a more significant interest in the application of
its law to this case.
For the foregoing reasons, the Court will apply Pennsylvania law
to the damages issues in this case.