Opposition Brief — LaPage v. Di Costanzo

Soprams Court, U.S.

FILED

No. O'S} j g 4 FFR 14 1994

IN THE

OFFICE Ur HE Ciera

Supreme Court of the United States

October Term, 1993

THERESA A. LAPAGE and GREGORY KENT JENKINS, as Natural Parents

and Limited Administratrices of the Goods, Chattels and Credits of ASHLEY

MARIE JENKINS, Deceased, and THERESA A. LAPAGE, Individually,

Petitioners,

against

LYNNE Di COSTANZO, M.D., REUVEN LEVY, P.C. and

ALICE HYDE MEMORIAL HOSPITAL,

Respondents.

APPEAL FROM THE APPELLATE DIVISION, THIRD DEPARTMENT, OF THE

SUPREME COURT OF THE STATE OF NEW YORK

BRIEF FOR RESPONDENT

REUVEN LEVY, PHYSICIAN, P.C. IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

MARK L. DUNN

MARTIN, GANOTIS, BROWN, MOULD & Currie, P.C.

Attorneys for Respondent

Reuven Levy, Physician, P.C.

499 South Warren Street

Syracuse, NY 13202

(315) 472-6674

Tue Reporter Company, Inc.—Walton, NY 13856—800-252-7181

Syracuse Office, University Building, Syracuse, NY | 3202—315-426-1235

NYC Office—30 Vesey Si., New York, NY 10007—212-732-6978—800-800-4264

(S3738—1994)

Printed on Recycled Paper

\

. 7

QUESTIONS PRESENTED

Whether there exist independent and adequate state

grounds for the decision of the Appellate Division, Third

Department affirming the dismissal of Petitioners’ cause of

action for wrongful death, asserted by the personal repre-

sentatives of a stillborn fetus?

Table of Contents

CORSIONS PUOROIIOGE 6 66's 0c ns svbcuepeeseearereee

Applicable Constitutional Provisions and Statutes... .

eetoreet GF GO GUO ois 0k kaos kun ce ue ee eeearces

DUUMNGTY OL ASRUNNOTE onc cccceveseetncaueneuan

ARGUMENT:

The Supreme Court is Without Jurisdiction to Grant Cer-

tiorari Because the Decision Below Rests Upon In-

dependent and Adequate State Grounds..........

The Long Presumption Does Not Apply in this Case

Because the Adequacy and Independence of the

State Law Ground is Clear in the Opinion Below .

A Stillborn Fetus Does Not Have the Legal Personality

Necessary to Challenge New York’s Wrongful

OGTR TIMWUED oo cn cccsvisuvevesdbeunbencecre:

There is no Basis to Disturb the Edifice of New York

Precedent Refusing to Allow the Personal Repre-

sentative of a Stillborn Fetus a Cause of Action for

WEOMTes TIONED occ esccsceccuvestbestawesees

COMO io.v ck uddcdcdacatestns ee

Page

TABLE OF AUTHORITIES

Page

CASES:

Bd. of Education v. Weider, 72 NY2d 174 (1988).... Il

Byrn v. NYC Health and Hospitals Corporation,

DRE He CEPTEDE eccceercccodecvoseeseues 12

Byrn v. N.Y.C. Health and Hospitals Corp., 38 AD2d

Se a ee, CWTRD vescccccceevesesscees 13

Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633

DP REDS UVEsb eu eed etanevadevecececectens 7

Coleman v. Thompson, 111 S.Ct. 2546 (1991)....... 6

Endresz v. Friedberg, 24 NY2d 478 (1969)....... passim

Evans v. People, 49 N.Y. 86 (1872)........0eeeeeee 13

Fine v. City of New York, 75 NY2d 863 (1990) ..... 11

Fox Film Corp. v. Muller, 296 U.S. 207, 56 S.Ct. 183

EE Eh aVeEVECse es b-cees eer eeeueecouereees 6

Gonzales v. New York Housing Authority, 77 NY2d

PEE IC CSCCC ce pee e eee eeecereesoneseeees 12

Hartnett v. Ballston Spa, 75 NY2d 863 (1990) ...... 1]

_

iv.

Page

Herb v. Pitcairn, 324 U.S. 117, 65 S.Ct. 459 (1945)... 5

Herndon v. Georgia, 295 U.S. 441, 55 S.Ct. 794 (1935) 6

Howlett v. Rose, 110 S.Ct. 2430 (1990) ............ 6

Illinois Pro-Life Coalition, Inc. v. Keith, 474 U.S. 980

SN nt ane geben Mea eae keene dees 4,10

Illinois v. Rodriguez, 110 S.Ct. 2793 (1990) ........ 5

Indilicato v. Bellevue Maternity Hospital, 108 A.D.2d

Pee Cre ey Crh eerecévecssuvasesens 8,9, 12

Keith v. Daley, 764 F.2d 1265 (7th Cir. 1985)...... 4,10

Klinger v. Missouri, 13 Wall. 257, 20 L.Ed. 635 (1872) 6

Matter of Haydorn v. Carroll, 225 NY 84 (1918) .... 11

Matter of Peabody, 5 N.Y.2d 541 (1959) ........... 14

Matter of Schinasi, 277 N.Y. 252 (1938) ........... 14

Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469

GSS Eade sbLateeeieanesetewnedes passim

Milks v. McIver, 264 N.Y. 267 (1934) ............. 7

Murphy v. American Home Products Corporation, 58

Peel MY MOU odn Ge bddccusbiateeccouesen 14

Page

People v. Bing, 76 N.Y.2d 331 (1990)......---+++- 15

People v. Hall, 158 A.D.2d 69 (Ist Dept. 1990) ..... 13

People v. Hobson, 39 N.Y.2d 479 (1976) .....--+++ 14

People v. Mackell, 40 N.Y.2d 59 (1976)......-++++- 14

Planned Parenthood v. Casey, 112 S.Ct. 2791

COGSED. cc vcaciauseduevecuescousacesasseus 4,10

Raymond v. Bartsch, 84 AD2d 60 (3d Dept.

BOSD). ov coccncencssccuscenscucewens 8, 9, 12, 13

Roe v. Wade, 410 U.S. 113 (1973).........65- 4,10, 13

Ryan v. Beth Israel Hospital, 96 Misc.2d 816, 409

N.Y.S.2d GB1 (IDTE) ..cccccccccvsccsssesenes 10

Tebbutt v. Virostek, 65 NY2d 931 (1985).......... 8,9

Yist v. Nunnemaker, 111 S.Ct. 2590 (1991)......... )

STATUTES:

Article 55 of New York’s Civil Practice Law and Rules 2

CPLR § SGOI(D(1) .... ccc ccccccccevevccecs we Sy

, |

Vi.

Page

See © POLED) ccucovcscvvicecccoecuceetosts 1,3

ees ee San ok ven teededsedecendncieeee 2, 9, 10

Fourteenth Amendment, United States Constitution. 4, 10

Be gd Be Pr ree 13

Pe eee tk Fee) ene ee 13

Sep ae BETO dcvcdséedeeedatdcuvceleuee |

OTHER AUTHORITY:

Wachtler, Stare Decisis and a Changing New York

Court of Appeals, 59 St. John’s Law Review 445,

Ue Cems 0 6 eeecerixescueeeneeniee 15

BRIEF OF RESPONDENT REUVEN LEVY, P.C. IN

OPPOSITION TO PETITION FOR WRIT OF CER-

TIORARI

APPLICABLE CONSTITUTIONAL PROVISIONS

AND STATUTES

United States Code: 28 USC 1257(a)

New York Statutes: CPLR § 5601(b)(1)

CPLR § 5602(a)(1)(i)

STATEMENT OF THE CASE

This is an action for alleged medical malpractice. The

facts are largely undisputed.

Theresa A. LaPage was admitted to the Defendant-Re-

spondent Alice Hyde Memorial Hospital on February 9,

1989 for obstetrical care. At 5:33 P.M. an internal fetal

monitor was placed. It was removed at 6:25 P.M. when Ms.

LaPage was moved from the obstetrics floor to an operating

room. Defendant-Respondent Reuven Levy, M.D. was

called to assist Defendant-Respondent Lynne DiCostanzo,

M.D. in the performance of an emergency cesarean section

upon Ms. LaPage. He first saw Ms. LaPage on February 9th

when she arrived in the operating room.

Ms. LaPage was anesthetized at 6:35 p.m. At 6:43 P.M. a

stillborn fetus was delivered. All parties have agreed that

the fetus was, in fact, stillborn.

2

This action was commenced in the Supreme Court,

Franklin County, State of New York by service of a sum-

mons and complaint alleging two causes of action. First,

Petitioners have asserted a cause of action for the alleged

wrongful death and conscious pain and suffering of the

stillborn infant. The alleged cause of action for wrongful

death is governed by EPTL § 5-4.1. Second, Petitioner

Theresa LaPage claims a cause of action for the physical

and emotional injuries she allegedly suffered as a result of

the Respondents’ negligent performance of the cesarean

section on February 9, 1989.

In the Supreme Court, Respondents moved for the sum-

mary judgment dismissal of Petitioners’ first cause of

action. In support of their motion Respondents argued that

the alleged infant plaintiff was not born alive and that the

law of New York unequivocally bars recovery under the

wrongful death statute by the personal representative(s) of a

stillborn fetus which allegedly died as a result of injuries

received while en ventre sa mere. In an Order dated Septem-

ber 4, 1992, the Honorable Jan H. Plumadore, Supreme

Court, Franklin County dismissed Petitioners’ first cause of

action for the alleged wrongful death and conscious pain

and suffering of the stillborn fetus.

Petitioners appealed to the Supreme Court, Appellate

Division, Third Department as of right, pursuant to applica-

ble provisions of Article 55 of New York’s Civil Practice

Law and Rules. In their Memorandum and Order entered on

June 17, 1993, the Appellate Division, Third Department

affirmed the lower court, confirming the validity of a long

line of precedent refusing to extend a cause of action for

wrongful death in New York to the personal representa-

tive(s) of a stillborn fetus. The Appellate Division empha-

Se

3

sized that any reconsideration of the rule established in this

precedent would be a task for New York’s Court of Appeals

or the New York Legislature. (Petitioner’s Appendix, A5-

A7)

Petitioners next sought an appeal as of right to New

York’s highest court, the Court of Appeals. Petitioners

sought this appeal pursuant to CPLR § 5601(b)(1), which

allows an appeal from an order of the Appellate Division

finally determining an action where there !s directly in-

volved a substantial constitutional (New York or federal)

question.

On September 14, 1993, the Court of Appeals dismissed

Petitioners request for an appeal as of right. The Court

based its dismissal “‘upon the ground that no substantial

constitutional question is directly involved.” (Petitioner’s

Appendix, A4)

Petitioners next made a motion seeking permissive leave

to appeal to the Court of Appeals, presumably pursuant to

CPLR § 5602(a)(1)(i). In a decision dated December 15,

1993, the Court of Appeals denied Petitioners motion for

leave to appeal. (Petitioner’s Appendix, 3).

Petitioners now seck a writ of certiorari.

SUMMARY OF ARGUMENT

The Supreme Court is without jurisdiction to grant cer-

tiorari in this case because the state court decision below

rests upon independent and adequate state grounds. The

court below dismissed Petitioners’ first cause of action in

etait

4

which they alleged a cause of action for wrongful death as

the personal representatives of a stillborn fetus. The state

court decision was based on a long and consistent line of

precedent construing New York’s wrongful death statute,

itself a legislative creation, to forbid such claims.

The lower court did not raise any federal constitutional

issues in its decision. Nor is federal law presented as a

decisional underpinning in the long line of precedent consis-

tently construing New York’s wrongful death statute since

its inception in 1847 to forbid the personal representative of

a stillborn fetus a cause of action for wrongful death.

The presumption favoring certiorari established in Michi-

gan v. Long, 463 U.S. 1032, 103 S.Ct. 3469 (1983) does not

apply in this case because the state court decision neither

rests primarily on nor is interwoven with federal law; and

because the adequacy of the state law rationale is clear from

the face of the opinion. The lower court decision is neither

formulary nor obfuscatory in its reliance on state law to

decide the instant question.

Petitioners argue that United States Supreme Court deci-

sions render New York’s rule “constitutionally wrong’’ be-

Cause 4 woman’s right to terminate an unwanted pregnancy

“only exists in pre-viability cases.”” They fail to grasp the

import of Roe v. Wade, 410 U.S. 113 (1973) and its progeny;

particularly Planned Parenthood v. Casey, 112 S.Ct. 2791,

2821 (1992). The Supreme Court has unequivocally ruled

that the word “‘person’’, as used in the Fourteenth Amend-

ment, and “‘person”’ as it is used in nearly every instance in

the United States Constitution do not include the unborn.

Roe v. Wade, supra, 410 U.S. at 158; Keith v. Daley, 764

F.2d 1265 (7th Cir. 1985), cert. denied Illinois Pro-Life

5

Coalition, Inc. v. Keith, 474 U.S. 980 (1985). These cases

clearly do not require New York to reverse its longstanding

refusal to allow the personal representatives of a stillborn

fetus to sue for wrongful death.

The predicate to Supreme Court review by certiorari, the

presence of an issue of federal law and the absence of an

independent and adequate state ground for the decision do

not exist in this case. It is, therefore, respectfuily requested

that certiorari be denied the Petitioners.

ARGUMENT

THE SUPREME COURT IS WITHOUT JURISDIC-

TION TO GRANT CERTIORARI BECAUSE THE DE-

CISION BELOW RESTS UPON INDEPENDENT AND

ADEQUATE STATE GROUNDS

Respect for the independence of state courts, general

unfamiliarity with state laws, and a desire to avoid render-

ing advisory opinions have been the basis for the Supreme

Court’s refusal to decide cases where there is an independ-

ent and adequate state ground for the decision below. //li-

nois v. Rodriguez, 110 S.Ct. 2793 (1990); Michigan v. Long,

463 U.S. 1032, 1040, 103 S.Ct. 3469, 3476 (1983). In such

cases, the Supreme Court will not undertake to review any

federal issue because its resolution would not affect the

judgment in any way, amounting to nothing more than an

advisory opinion. Herb vy. Pitcairn, 324 U.S. 117, 125-26,

65 S.Ct. 459, 462-64 (1945). Thus, it has been clearly

established that the Supreme Court will “not review a ques-

tion of federal law decided by a state court if the decision of

that court rests on a state law ground that is independent of

6

the federal question and adequate to support the judgment.”

Coleman v. Thompson, 111 S.Ct. 2546, 2553-54 (1991)

(referring to Fox Film Corp. v. Muller, 296 U.S. 207, 210,

56 S.Ct. 183, 184 [1935]); Klinger v. Missouri, 13 Wall.

257, 263, 20 L.Ed. 635 (1872).

This rule applies whether the state law ground is pro-

cedural or substantive. See, e.g., Fox Film, supra; Herndon

v. Georgia, 295 U.S. 441, 55 S.Ct. 794 (1935). The inde-

pendent and adequate state ground doctrine has been held to

apply in direct review proceedings, and is jurisdictional. See

Coleman v. Thompson, supra, 111 S.Ct. at 2554. Finally, it

is incumbent upon the Supreme Court to ascertain for itself

whether the asserted non-federal ground adequately sup-

ports the judgment below. Michigan v. Long, 463 U.S. 1032,

1038, 103 S.Ct. 3469, 3475 (1983). The standard of review

will be de novo. Howlett by and through Howlett v. Rose,

110 S.Ct. 2430, 2437 (1990).

The facts of this case lend themselves to a simple and

straightforward application of the independent and adequate

state ground doctrine. The opinion of the Appellate Divi-

sion, Third Department contains no discussion of federal

law, makes no reference or citation to federal law, and

clearly invokes state case law construing New York’s

wrongful death statute as the rationale for its decision.

Further, the Appellate Division, Third Department did not

raise any federal constitutional issues in its opinion. Nor is

federal law presented as a decisional underpinning in the

long line of precedent consistently construing New York’s

wrongful death statute since its inception in 1847 to forbid

the personal representative of a stillborn fetus that dies as a

result of injuries received while en ventre sa mere a cause of

action for wrongful death. See Endresz v. Friedberg, 24

7

NY2d 478 (1969) (referring to Milks v. Mclver, 264 N.Y.

267, 269 (1934) for the rule that “‘liability for damages

caused by wrong ceases at a point dictated by public policy

or common sense.’’)

THE LONG PRESUMPTION DOES NOT APPLY IN

THIS CASE BECAUSE THE ADEQUACY AND INDE-

PENDENCE OF THE STATE LAW GROUND IS

CLEAR IN THE OPINION BELOW

In 1983 there was established a conclusive presumption

to be applied in certain direct review cases to address the

problem presented by ambiguous state court decisions in

applying the independent and adequate state ground doc-

trine. Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469

(1983).

[W]hen,...,a state court decision fairly appears to rest

primarily on federal law, or to be interwoven with

the federal law, and when the adequacy and indepen-

dence of any possible state law ground is not clear

from the face of the opinion, we will accept as the

most reasonable explanation that the state court de-

cided the way it did because it believed the federal

law required it to do so. /d., at 1041, 103 S.Ct. at

3476.

The Long presumption has been more recently reiterated.

Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633

(1985).

There are, then, two requirements that must be met to

trigger the Long presumption and invoke the jurisdiction of

8

the Supreme Court. First, the state court decision must “‘rest

primarily” on or be “interwoven with”’ federal law. Second,

the adequacy and independence of “‘any possible state law

ground”’ must be unclear from the face of the opinion. /d.

In this case, the first requirement is not met. The decision

of the Supreme Court, Appellate Division, Third Depart-

ment neither rests upon nor is interwoven with federal law.

At issue is whether a wrongful death cause of action

asserted on behalf of a stillborn fetus was properly dis-

missed in a state court. The parties agree that the law of

New York is absolutely consistent. No wrongful death cause

of action exists on behalf of a stillborn fetus. See Endresz v.

Friedberg, supra, at 482-87; Tebbutt v. Virostek, 65 NY2d

931, 933 (1985); Raymond v. Bartsch, 84 AD2d 60 (3d

Dept. 1981), /v denied 56 NY2d 508 (1982). The Appellate

Division, Third Department affirmed the lower court deci-

sion without any reliance on or reference to federal law:

[while plaintiffs raise several interesting arguments

in support of their claim that the law should be

changed, this court has stated before that recon-

sideration of the law established in Endresz v. Fried-

berg, (supra) ‘must be addressed to the Legislature

or the Court of Appeals’ (Raymond v. Bartsch,

supra). Accordingly, we cannot conclude that the

wrongful death cause of action was inappropriately

dismissed (See, Indilicato v. Bellevue Maternity

Hosp., 108 AD2d 997 [3d Dept. 1985]).

Further, the decision of the Appellate Division was not

“interwoven” with federal law. Long, supra, 463 U.S. at

1041, 103 S.Ct. at 3476. Unequivocally, the decision of the

Third Department is neither formulary nor obfuscatory in its

9

rationale. Compare, YIst v. Nunnemaker, 111 S.Ct. 2590,

2594 (1991) (the problem faced by the Supreme Court in

applying the independent and adequate state ground doc-

trine arises when attribution of the reason underlying the

decision of the court below is difficult and artificial).

The decision affirming the denial of a right of recovery

under New York’s wrongful death statute by the personal

representative of a stillborn fetus which dies as a result of

injuries sustained while en ventre sa mere is based upon a

long line of state precedent construing New York’s wrongful

death statute to reject similar claims. See Endresz v. Fried-

berg, supra; Indilicato v. Bellevue Maternity Hospital,

supra; Raymond vy. Bartsch, supra. None of those decisions

either rest squarely on federal law or make mention of

federal law. Thus, there is no issue of federal law implicated

in New York’s interpretation of its wrongful death statute to

be inferred from EPTL § 5-4.1 or the case law construing

the statute.

A STILLBORN FETUS DOES NOT HAVE THE LE-

GAL PERSONALITY NECESSARY TO CHALLENGE

NEW YORK’S WRONGFUL DEATH STATUTE

Petitioners fail to address the independent and adequate

state ground doctrine in the argument contained in their

Petition. Instead, they argue that the Supreme Court has

jurisdiction over this case because “‘[t]he Endresz and Teb-

butt cases are constitutionally wrong”. This is so, Peti-

tioners argue, because the United States Supreme Court has

declared that a woman’s right to terminate an unwanted

pregnancy “‘only exists in pre-viability cases.”

10

Petitioners fail to grasp the import of Roe v. Wade, 410

U.S. 113 (1973) and its progeny. It has been clearly estab-

lished only that the state may not interfere with a woman’s

right to terminate her pregnancy before the fetus has at-

tained viability. /d., 410 U.S. at 163. In a recent partial

reaffirmation of the Roe case, the Supreme Court was care-

ful to neither confer nor require legal personality for fetuses

that are deemed viable. ‘‘[SJubsequent to viability, the state

in promoting its interest in the potentiality of human life

may, if it chooses, regulate, and even proscribe abortion

except where necessary in appropriate medical judgment,

for the preservation of the life of the mother.’’ Planned

Parenthood v. Casey, 112 S.Ct. 2791, 2821 (1992) (citing

Roe v. Wade, 410 U.S. 113, 164) (emphasis supplied); See

also Ryan vy. Beth Israel Hospital, 96 Misc.2d 816, 409

N.Y.S.2d 681 (1978).

___ It should be further noted that in nearly every instance in

the United States Constitution the use of the word “‘person”’

has not included stillborn infants. Roe v. Wade, supra, 410

U.S. at 158. Moreover, the Supreme Court has unequivo-

cally ruled that the word ‘“‘person’’, as used in the Four-

teenth Amendment, does not include the unborn. Roe v.

Wade, supra, 410 U.S. at 158; Keith v. Daley, 764 F.2d 1265

(7th Cir. 1985), cert. denied Illinois Pro-Life Coalition, Inc.

v. Keith, 474 U.S. 980 (1985).

Federal law compels no decision on the question of

whether to allow a cause of action under New York’s wrong-

ful death statute by the personal representative of a stillborn

fetus. There can be, then, no issue of federal law germane to

the resolution of this question. The decision properly lies

with the New York Legislature and Court of Appeals. See

Endresz v. Friedberg, 24 NY2d 478; EPTL § 5-4.1.

a ee

1]

The New York Court of Appeals has addressed the ques-

tion of whether Petitioners appeal directly involves any

constitutional issues. In earlier proceedings in this action,

Petitioners sought an appeal as of right to the Court of

Appeals of New York pursuant to CPLR § 5601(b)(1). Such

appeals will be allowed only from an order of the Appellate

Division which finally determines an action where there is

directly involved a substantial constitutional (New York or

federal) question. Hartnett v. Ballston Spa, 75 NY2d 863

(1990); Fine v. City of New York, 75 NY2d 863 (1990).

In cases where the decision of the Appellate Division was

or may have been based on grounds not involving constitu-

tional construction, no appeal as of right will lie pursuant to

CPLR § 5601(b)(1). In one such case involving statutory

construction issues and claims argued to be rooted in federal

law New York’s highest court wrote “‘[t}he core of the

Appellate Division decision was its construction of the per-

tinent statutes. While the Court went on to find the Supreme

Court’s order “S~would contravene the_Establishment

Clause . . . [t]he constitutional discussion . . . appears to

have been incidental to the Appellate Division holding.”’

Bd. of Education v. Weider, 72 NY2d 174, 182-83 (citing

Matter of Haydorn v. Carroll, 225 NY 84 [1918]). In their

decision dated September 14, 1993 denying Petitioners’

appeal as of right, the Court of Appeals based its decision

‘“‘upon the ground that no substantial constitutional question

is directly involved.”’ (Petitioner’s Appendix, 4)

12

THERE IS NO BASIS TO DISTURB THE EDIFICE

OF NEW YORK PRECEDENT REFUSING TO AL-

LOW THE PERSONAL REPRESENTATIVE OF A

STILLBORN FETUS A CAUSE OF ACTION FOR

WRONGFUL DEATH

This issue sought to be addressed by Petitioners is clearly

one of statutory construction. The wrongful death cause of

action was legislatively created in 1847. Gonzales v. New

York Housing Authority, 77 NY2d 663 (1991). In 1969, the

seminal case, Endresz v. Friedberg, supra, was decided. The

Endresz court traced the legislative and judicial history of

New York’s wrongful death statute. Their review failed to

disclose any precedent to extend a wrongful death cause of

action to the personal representative(s) of a stillborn fetus.

The cases since Endresz have echoed its pronouncement.

See Byrn v. NYC Health and Hospitals Corporation, 31

NY2d 194 (1972); Tebbut v. Virostek, 65 NY2d 931 (1985);

Raymond vy. Bartsch, supra; Indilicato v. Bellevue Maternity

Hospital, supra.

In affirming the dismissal of Petitioners’ wrongful death

cause of action on behalf of the stillborn fetus, the Appellate

Division, Third Department, relied on two of its prior deci-

sions, /ndilicato v. Bellevue Maternity Hospital, 108 A.D.2d

997 and Raymond v. Bartsch, 84 A.D.2d 60. In the /ndilicato

case, the Third Department affirmed the dismissal of a

wrongful death cause of action for the wrongful death of an

unborn child, citing Endresz v. Friedberg, 24 N.Y.2d 478.

Four years prior, in the Raymond v. Bartsch case, the Third

Department dismissed a similar cause of action for the

wrongful death of an unborn child, again invoking the En-

dresz case. Justice Casey noted that “‘reconsideration of the

13

rule set forth in Endresz must be addressed to the Legisla-

ture or the Court of Appeals.” Raymond v. Bartsch, supra.

The wrongful death statute and the Endresz decision re-

main consistent with the view that permeates the statutory

and common law of New York. Legal personality is confer-

red at live birth.

For example, at common law the destruction of an un-

quickened fetus was not considered manslaughter. Evans v.

People, 49 N.Y. 86 (1872). Further, a pregnant female who

was sentenced to death would be executed unless the fetus

had quickened. See Byrn v. N.Y.C. Health and Hospitals

Corp., 38 AD2d 316, 330 (2d Dept. 1972).

In addition, a criminal defendant cannot be charged with

homicide in the death of an unborn fetus. This is so because

the New York Legislature has excluded the unborn from the

definition of ‘‘person’’ pertinent to homicide: “‘a human

being who has been and is alive.” Penal Law § 125.05(1);

See also People v. Hall, 158 A.D.2d 69 (1st Dept. 1990).

Similarly, a woman consenting to a justifiable abortion

cannot be a principal or an accomplice in the death of the

fetus because the New York Legislature has not vested the

fetus with legal personality. Were such legal personality

conferred, criminal responsibility would, arguably, have to

attach. Penal Law § 125.05 (1), (3); See also Roe v. Wade,

410 U.S. 113, 158 n.54 (1973).

The Court of Appeals has held that an unborn fetus is not

a person beneficially interested in a trust such that their

14

consent need be obtained for revocation of that trust. Matter

of Peabody, 5 N.Y.2d 541 (1959). The Court noted therein

that an unborn fetus was not vested with legal personality

until it was born alive. /d. at 547.

In general, the Court of Appeals has confirmed that it

owes deference to consistent legislative determinations. In

the absence of ‘‘a constitutional question, even the State's

highest court may not refuse . . . to apply the plain import of

an applicable statute, which, until and uniess amended or

repealed, must be respected as the law for all our people, no

matter where positioned.’ People v. Mackell, 40 N.Y.2d 59,

64 (1976). Here the “plain import”’ of the applicable statute,

particularly in view of the concurring legislative determina-

tions in other areas of New York law, is that legal per-

sonality will be conferred, for purposes of maintaining a

wrongful death cause of action, at live birth, not at viability.

Should any reevaluation of New York’s wrongful death

statute need be undertaken, it is a task for the legislative

branch of government. ‘‘[T]he perception and declaration of

relevant public policy are best and most appropriately ex-

plored and resolved by the legislative branch of our govern-

ment.’’ Murphy v. American Home Products Corporation,

58 N.Y.2d 293 (1983).

It should be noted that precedents involving statutory

interpretation are entitled to great stability. “‘After all, in

such cases, courts are interpreting legislative intention and a

sequential contradiction is a grossly arrogated legislative

power. Moreover, if the precedent or precedents have ‘mis-

interpreted’ the legislative intention, the Legislature’s com-

petency to correct the misinterpretation is readily at hand.”

People v. Hobson, 39 N.Y.2d 479 (1976) (citing Matter of

Schinasi, 277 N.Y. 252, 265-66 [1938)}).

15

The doctrine of stare decisis “provides that once a court

has decided a legal issue, subsequent appeals presenting

similar facts should be decided in conformity with the ear-

lier decision.” People v. Bing, 76 N.Y.2d 331 (1990). As

interpreted by the Court of Appeals, stare decisis militates

strongly in favor of adhering to the legislative determination

and judicial precedent in New York which do not extend the

wrongful death cause of action to the personal representa-

tive(s) of the alleged estate of a stillborn fetus. This ap-

proach to stare decisis taken by the Court of Appeals recog-

nizes goals of “efficiency, predictability, and uniformity.”

Wachtler, Stare Decisis and a Changing New York Court of

Appeals, 59 St. John’s Law Review 445, 446 (1985).

In this case, to allow a wrongful death action to be

brought on behalf of a stillborn fetus would be to confer

legal personality at a point in time prior to live birth. Such a

change would be a radical departure from precedent as well

as from the scheme of the statutory and common law in New

York. Any such change would have far reaching implica-

tions and should only be undertaken by the legislature.

Simply put, the legislative purpose of New York’s wrong-

ful death statute has not been frustrated by case law inter-

preting the statute. Federal law does not require any depar-

ture from New York’s longstanding refusal to permit the

personal representative of a stillborn fetus to sue for wrong-

ful death. The state court decision is not, therefore, based on

federal law. It has as its rationale and independent and

adequate state grounds.

16

CONCLUSION

For the foregoing reasons, it is respectfully requested that

certiorari be denied the Petitioners.

Respectfully submitted,

MARK L. DUNN

MARTIN, GANOTIS, BROWN, MOULD

AND CURRIE, P.C.

Attorneys for the Respondent, Reuven

Levy, Physician, P.C. .

499 South Warren Street

Syracuse, NY 13202

(315) 472-6674