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Donovan v. Idant Laboratories


June 10, 2009


The opinion of the court was delivered by: O'neill, J.


On July 16, 2008, plaintiff Donna Donovan on behalf of herself and minor plaintiff Brittany Donovan, her daughter, filed a complaint in the Court of Common Pleas of Philadelphia County. They alleged that defendant Idant Laboratories, a division of Daxor Corporation, is liable for negligence, breach of contract, third-party beneficiary breach of contract, breach of the express warranty of merchantability, breach of implied warranty of merchantability, third-party beneficiary breach of express and implied warranties of merchantability, negligent misrepresentation, strict products liability and negligent infliction of emotional distress for providing defective sperm to Donna Donovan. On August 21, 2008, defendant removed the action to this Court.

On March 31, 2009, having found that New York law applies, I dismissed Donna Donovan's claims as time-barred and Brittany Donovan's claims of negligence and negligent misrepresentation as having failed to allege a legally-cognizable injury under New York law. I granted plaintiff's motion to amend her complaint on her breach of contract and warranty claims and denied defendant's motion to dismiss the strict liability claim. Before me now is defendant's motion for reconsideration of my denial of its motion to dismiss plaintiff's claims of strict liability and breach of warranty, plaintiff's response and defendant's reply thereto. Oral argument on this motion was held on June 2, 2009.*fn1

Local Civil Rule 7.1(g) allows parties to file motions for reconsideration in this Court.

E.D. Pa. R. 7.1(g). "The purpose of the motion for reconsideration is to correct manifest error of law or fact or to present newly discovered evidence." Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985). "In a motion for reconsideration, the burden is on the movant . . . to show 'manifest' errors of law or fact or new evidence." Egervary v. Rooney, 80 F. Supp. 2d 491, 506 (E.D. Pa. 2000), citation omitted. "[A] motion for reconsideration addresses only factual and legal matters that the Court may have overlooked. [It is improper] to 'ask the Court to rethink what [it] had already thought through -- rightly or wrongly.'" Glendon Energy Co. v. Borough of Glendon, 836 F. Supp. 1109, 1122 (E.D. Pa. 1993), citation omitted. "Because of the interest in finality . . . courts should grant motions for reconsideration sparingly." Rottmund v. Cont'l Assurance Co., 813 F. Supp. 1104, 1107 (E.D. Pa. 1992). I will consider defendant's motion for reconsideration although these issues were not adequately briefed in its original motion to dismiss or its reply.*fn2

Defendant argues that plaintiff's claims for strict liability and for breach of warranty are properly termed claims of "wrongful life." Wrongful life, i.e., that "but for" the tortfeasor's negligence the infant would not have been born, is not a legally cognizable injury in New York. Becker v. Schwartz, 46 N.Y.2d 401, 411 (1978). The New York Court of Appeals has concluded that an infant alleging a claim of wrongful life has not suffered a legally cognizable injury because "[w]hether it is better never to have been born at all than to have been born with even gross deficiencies is a mystery more properly to be left to the philosophers and the theologians," and because the remedy afforded an injured party in tort is designed to place that party in the position that she would have occupied but for the alleged negligence. Id. at 411-12. A cause of action based on "wrongful life" seeks to put the child in the position of having not received the defective sperm, "thereby depriving the infant plaintiff of [her] very existence." Id.

To sustain a claim of strict liability, "the manufacturer of a defective product is liable to any person injured or damaged if the defect was a substantial factor in bringing about [her] injuries or damages . . ." Codling v. Paglia, 32 N.Y.2d 330, 342 (1973). While damages are permitted for the economic loss of the damage to a person by a defective product, Rivkin v. Heraeus Kulzer GmbH, 289 A.D.2d 27, 27-28 (1st Dep't 2001), citing Rest. (Third) Torts-Products Liability § 21, here it is impossible to distinguish plaintiff's economic injuries from those of a claim for wrongful life. The Courts have declined to determine the economic value of the life of a person with disabilities as compared to having no life at all. Becker, 46 N.Y.2d at 411; see also Megan D. McIntyre, The Potential for Products Liability Actions when Artificial Insemination by an Anonymous Donor Produces Children with Genetic Defects, 98 Dick. L. Rev. 519, 538 (1994), noting that courts have not "been willing to say that children, no matter how severely impaired, would have been better off had they never been born."

Additionally, only personal, not economic, injuries are permitted for breaches of warranty. See e.g., Arell's Fine Jewelers, Inc. v. Honeywell, Inc., 170 A.D.2d 1013, 1014 (4th Dep't 1991), citing N.Y. Com. Code §2-318. In arguing that her claim is not one of wrongful life, plaintiff alleges that she is not claiming that she should never have been born, but that the product caused her genetic defect and defendant should have to pay for the costs of the injuries caused by the defective sperm. By stating the claim in this manner so as to avoid the pitfall of alleging a claim under wrongful life, plaintiff has alleged only economic damages. However, plaintiff's injuries can only be personal, rather than economic, in nature because, as noted above, the New York court will not assign an economic value to this kind of loss. Becker, 46 N.Y.2d at 411. If the sperm at issue was defective or did not live up to its warranty, to place plaintiff in the position which she would have occupied had the product not been distributed or the warranty not given would be to alter plaintiff's genetic identity so that she would be someone else.*fn3 These injuries are identical to the injury that New York courts consistently find not to be legally cognizable in causes of action for negligence and medical malpractice, regardless of whether the plaintiffs argue that their claims do not allege wrongful life. See e.g., Becker, 46 N.Y.2d at 411, Alquijay v. St. Luke's Roosevelt Hospital Center, 63 N.Y.2d 978 (1984), Paretta v. Medical Offices for Human Reproduction, 760 N.Y.S.2d 639 (N.Y. Sup. Ct. 2003).

While the Court of Appeals of New York has not been faced with determining whether strict liability and breach of warranty claims for the injury of wrongful life are barred,*fn4 I find it more likely than not that it would find that the injuries alleged in plaintiff's strict liability and warranty claims are essentially claims for wrongful life. As plaintiff has not alleged a legally cognizable injury, she has failed to state a claim for strict liability or third-party beneficiary breach of express or implied warranty.*fn5

An appropriate Order follows.

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