Opposition Brief — Acuna v. Turkish (No. 06-1689)

FILED

QD AUG 2 0 2097

In THE :

Supreme Court of the Hniteh States

ROSA ACUNA, Administratrix 2d Prosequendum of the

Estate of ANDRES ACUNA, deceased,

Petitioner,

¥

SHELDON C. TURKISH, M.D., and OBSTETRICAL

and GYNECOLOGICAL GROUP OF

PERTH AMBOY-EDISON,

Respondents.

On Petrrion ror A Writ or CERTIORARI

TO THE SupREME Court or New JERSEY

——oooeEeEeEeEE—eEoETe—e—————————— lO

BRIEF IN OPPOSITION

——EOEOEeEeEeE_——————EEE T_T

JOHN ZEN JACKSON

Counsel of Record

LsONARDO M. TAMBURELLO

Kauson, McBrung, Jacxson & Murruy, P.A.

25 Independence Boulevard

Warren, New Jersey 07059

(908) 647-4600

Counsel for Respondents

COUNSEL PRESS

(QB) 374-3521 - (ERY) 159-6899

i

QUESTIONS PRESENTED

Whether the Superior Court of New Jersey, Appellate

Division, correctly affirmed the dismissal of Petitioner’s

claim that the New Jersey Wrongful Death Statute, N.J. Stat.

Ann. § 2A:31-1 to -6 (2008), violates the Fourteenth

Amendment’s Equal Protection Clause because it does not

include a cause of action for the wrongful death of a non-

viable fetus.

ii

PARTIES TO THE PROCEEDING

Petitioner, Rosa Acuna, is an individual and a resident

of the State of New Jersey.

Respondent Sheldon C. Turkish is a individual licensed

to practice medicine in the State of New Jersey. Respondent

Obstetrical and Gynecological Group of Perth Amboy-

Edison, P.C. is a professional corporation of the State of New

Jersey.

CORPORATE DISCLOSURE STATEMENT

PURSUANT TO SUPREME COURT RULE 29.6

Respondent Obstetrical and Gynecological Group of

Perth Amboy-Edison does not have a parent corporation and

there is no publicly held company that owns 10% or more of

its stock.

iil

TABLE OF CONTENTS

QUESTIONS PRESENTED .. 2... ccc cece ewes

PARTIES TO THE PROCEEDING .............

CORPORATE DISCLOSURE STATEMENT

PURSUANT TO SUPREME COURT

PR ii oa FG aed ea RR NSS eke wea ess

pp a get | |) a rere

TABLE OF CITED AUTHORITIES ............

COUNTERSTATEMENT OF THE CASE ........

REASONS FOR DENYING THE PETITION .....

fd ae eer ere rere ee ree eee eee

The Appellate Division Correctly Held, In

Accord With Other State and Federal Courts,

that the “Born Alive” Requirement of New

Jersey’s Wrongful Death Act Does Not

Violate Fourteenth Amendment Equal

ee ee

ie ae engey ares ay wane gare wery ye ee ere

The Appellate Division’s Holding Is

Consistent with Other State Courts of Last

Resort to Consider the Question. .........

See ee eee ae ree ere eee

Page

18

24

iv

Contents

Page

APPENDIX A — STATE SURVEY OF

PERMITTED FETAL WRONGFUL DEATH

RUE <n ine caw kn es an ean haga eaceccaws 1

TABLE OF CITED AUTHORITIES

Page

FEDERAL CASES

Alexander v. Whitman, 114 F.3d 1392 (3d Cir. 1997),

cert. denied, 522 U.S. 949 (1997) ........... passim

BMW of North America, Inc. v. Gore, 517 U.S. 559

a ac GW A ee 08 A 6b RAR 9-10

Fields v. Legacy Health Sys., 413 F.3d 943 (9th Cir.

ech GiGi ck Wink ae kod ate REM EE ‘2,13

Geier v. American Honda Motor Co., Inc., 529 U.S.

Se i Catia oe bok NE aa ha eax ee 9

Gonzales v. Raich, 545 U.S. 1 (2005) ........... 9

Marie v. McGreevey, 314 F.3d 136 (3d Cir. 2002),

cert. denied, 539 U.S. 910 (2003) ........... passim

Miles v. Apex Marine Corp., 498 U.S. 19 (1990) ... 8

Parham v. Hughes, 441 U.S. 347 (1979) ......... 13

Planned Parenthood v. Casey, 505 U.S. 833 (1992)

CEG Lie eon gle ae ake a ee Cen 6,11, 14

Roe v. Wade, 410 U.S. 133 (1973) ........ 6,11, 14,19

Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573

EE gg ee tk Cas wae g RRA ae 8,9

vi

Cited Authorities

Page

Silkwood v. Kerr-McGee Corp., 464 U.S. 238 (1984)

Washington v. Glucksberg, 521 U.S. 702 (1997) ... 12

STATE CASES

Acuna v. Turkish, 808 A.2d 149 (N.J. Super. Ct. App.

Div. 2002), on subsequent appeal following

remand, 894 A.2d 1208 (N.J. Super. Ct. App. Div.

2006), certification granted on subsequent appeal,

902 A.2d 1234 (N.J. 2006), appeal dismissed as

to the issues raised by this petition, 915 A.2d 1045

poo -; Rewer re ee ree kere fe Pp re passim

Canino v. New York News, Inc., 475 A.2d 528

ee A ok he CRA es oben eke bee eee 3

Fort Worth Osteopathic Hosp. v. Reese, 148 S.W.3d

Cs 8 er hae RA Reda ee ewe 6, 20, 22

Giardina v. Bennett, 545 A.2d 139 (N.J. 1988) ...passim

Graf v. Taggart, 204 A.2d 140 (N.J. 1964) ....... 5

Hernandez v. Garwood, 390 So. 2d 357 (Fla. 1980)

ith RE eR RA Se Ld eee ees 6, 19, 20

Jeter v. Mayo Clinic Arizona, 121 P.3d 1256

CIDE: Fi SEE nce oh ek Se eh ase ee 15

vii

Cited Authorities

Page

Justus v. Atchison, 565 P.2d 122 (Cal. 1977),

overruled on other grounds, Ochoa v. Superior

ee Se ge, ee 6, 19

Kandel v. White, 663 A.2d 1264 (Md. 1995) ...... 6, 20

McVey v. Sargent, 855 N.E.2d 324 (Ind. Ct. App.

2006), transfer denied, 869 N.E.2d 447 (Ind.

SN eG BAIA Gril one Ok PE CR iow KF ass 6, 22

Smith v. Whittaker, 734 A.2d 243 (N.J. 1998) ..... 3

Wallace v. Wallace, 421 A.2d 134(N.H. 1980) .... 23

Young v. St. Vincent's Medical Center, 653 So.2d 499

(Fla. Dist. Ct. App. 1995), aff’d, 673 So.2d 482

eR ere yt pe era 20

STATE STATUTES

OS) See ae ae 3

rr eee 8

Pid. went. PR. © AAS 1 WD ow oc i cc eens 1

Tex. Civ. Prac. & Rem. Code Ann. § 71.001

I hice oie esd eG Ge ae RRs 20

1

COUNTERSTATEMENT OF THE CASE

Petitioner, Rosa Acuna (“Petitioner” or “Acuna”) is a

woman who grew up in the New Jersey and New York City

area and who, at the time of her deposition, had two children.

She attended high school for four years, but did not graduate.

(Pa555-56, 575, 634.)

On December 31, 1991, Acuna became a patient of

Respondent Dr. Turkish’s medical practice. (Pa579.) At that

time, she was using oral contraceptives to avoid pregnancy.

(Pa558-Pa559.)

On January 7, 1993, Acuna was seen by Dr. Armine Vafai,

the other physician in the practice, because of bleeding in

connection with a pregnancy. (Pa564-Pa565). The next day,

Dr. Vafai performed a dilation and curettage (D&C) procedure

on her because of an incomplete abortion, also known as a

miscarriage. (Pa565.)

On October 21, 1993, Petitioner gave birth to her first

child. (Pa575.) Her second child was born on June 21, 1995.

(Pa 634.)

At the latest, by the time of her first pregnancy in 1993,

Acuna knew that being pregnant meant that, barring a

miscarriage or an abortion, eventually she was going to have

a baby and, in the course of being pregnant, a fetus was

forming in her uterus. (Pa566 — Pa 568.)

On April 6, 1996, Acuna went to Dr. Turkish’s office.

She reporied a last menstrual period (LMP) of February 21,

1996. (Pa612.) During this visit, Dr. Turkish performed a

physical examination which revealed a pregnancy estimated

2

at seven or eight weeks of gestation post-LMP, (i.e., from

the first day of Petitioner’s last menstrual period said to be

February 21). (Pa611-Pa612.) An ultrasound confirmed the

pregnancy and indicated it was seven weeks from LMP.

(Pa607.) Calculations of pregnancy in terms of LMP are two

weeks longer than calculations of the pregnancy from the

time of conception. (Pa648-Pa649.) Thus, as of April 6, 1996,

the pregnancy was seven weeks LMP and five weeks post-

conception. /bid.

At the April 6 office visit, Dr. Turkish spoke with

Petitioner regarding her condition and treatment, including

a discussion of a procedure for the termination of the

pregnancy. (Pa603.) Dr. Turkish told Acuna to go home and

think about whether she wanted to terminate the pregnancy.

(Pa604.)

Three days later, on April 9, 1996, Acuna came back to

Dr. Turkish’s office for the procedure to terminate her

pregnancy. (Pa589.) At that time, she signed a document

giving her consent to the termination of her pregnancy.

(Pa590-Pa591; PaS94.) At the time of the procedure, Rosa

Acuna was 29 years old. (Pa 552.)

Petitioner filed a multi-count complaint against

Respondents alleging wrongful death (counts one and two),

survivor claims (counts three and four), emotional distress

(count five), medical malpractice / negligence (count six)

and personal injury (count eleven). Other parts of the

complaint (counts seven through ten) directed at a

fictitiously-designated nurse have been abandoned.

Acuna v. Turkish, 808 A.2d 149, 151 (N.J. Super. Ct. App.

Div. 2002) (“Acuna I’).

3

On May 1, 2001, the Honorable Douglas T. Hauge, J.S.C.

granted Respondents’ motion for partial summary judgment

and dismissed counts one through five asserting claims for

wrongful death, survivor claims and emotional distress.

Following leave granted, the Superior Court of New

Jersey, Appellate Division (“Appellate Division”) affirmed

the dismissal of counts one and two, the wrongful death

claims, but reversed and remanded on count five, the

emotional distress claim, holding that if Petitioner established

her claim for medical malpractice, this would constitute a

direct tort against Petitioner which would entitle her to

emotional distress-based damages. Acuna I, at 151.

Petitioner did not appeal the dismissal of the survivor

claims (counts three and four), ibid, and later abandoned

them.' See Acuna v. Turkish, 894 A.2d 1208, 1211 n.2 (N_J.

Super. Ct. App. Div. 2006) (“Acuna IT’).

Following remand and extensive discovery, Respondents

moved for summary judgment on the remaining claims of

emotional distress (count five) and negligence (counts six

and eleven).

' By separate statute, N.J. Stat. Ann. § 2A:15-3, tort claims for

an injury during one’s lifetime survive and are preserved to the

decedent’s estate. The executor or administrator may pursue any

cause of action that the decedent would have had if the decedent

had lived. This statute is interchangeability referred to in the case

law as the “Survivorship Act” and the “Survival Act.” Compare Smith

v. Whittaker, 734 A.2d 243, 249 (N.J. 1998) with Canino v. New

York News, Inc., 475 A.2d 528, 530 n.1 (N.J. 1984). Herein, these

claims will be referred to as Petitioner’s “survivor claims.” To the

extent which the Petition raises claims based on dismissal of the

survivor Claims, they have not been raised below before any appellate

tribunal, and therefore are not properly before this Court.

4

On March 3, 2004, the Honorable Amy Piro Chambers,

J.S.C., dismissed Petitioner’s remaining claims alleging

negligence, medical malpractice and emotional distress.

Acuna II, 894 A.2d at 1212. On appeal, the Appellate Division

reversed and remanded, “for reasons entirely different from

those advanced in Acuna’s brief.” /d. at 1213. However, it

declined to reconsider its prior decision affirming dismissal

of Petitioner’s wrongful death claims. /d. at 1215.

Prior to remand, however, the Supreme Court of New

Jersey granted Respondents’ Petition for Certification

regarding the negligence and emotional distress issues

addressed in Acuna II. 902 A.2d 1234 (N.J. 2006). This matter

has been fully briefed and argued before the New Jersey

Supreme Court.

In response to Respondents’ request for review by the

New Jersey Supreme Court, Petitioners filed an appeal

asserting “a substantial constitutional question” arising out

of the dismissal and denial of the wrongful death claims,

entitling Petitioner to an appeal “as of right” under the

applicable Rule of Court. However, the New Jersey Supreme

Court dismissed Petitioner’s appeal of the wrongful death

arguments raised by this Petition as not presenting a

substantial constitutional question. 915 A.2d 1045 (N.J.

2007).

REASONS FOR DENYING THE PETITION

This Petition should be rejected because it seeks review

of a well-settled question of New Jersey law which does not

conflict with any applicable federal decision, statute or

constitutional provision.

5

The Appellate Division correctly held that the State

Supreme Court’s interpretation of the New Jersey Wrongful

Death Act (hereafter “the Act”) in Giardina v. Bennett, 545

A.2d 139, 142 (N.J. 1988) and Graf v. Taggart, 204 A.2d

140, 142 (N.J. 1964), as not allowing a cause of action for

wrongful death prior to birth, did not violate the Fourteenth

Amendment’s Equal Protection Clause. Acuna IJ, 808 A.2d

at 155-56. The New Jersey Wrongful Death Act is an

appropriate exercise of a state’s police power to define its

own tort law.

Further weight against granting this Petition is found in

the Third Circuit’s repeated repudiation of Fourteenth

Amendment challenges to the Act which are nearly identical

to those advanced by Petitioner here. Marie v. McGreevey,

314 F.3d 136 (3d Cir. 2002), cert. denied, 539 U.S. 910

(2003); Alexander v. Whitman, 114 F.3d 1392, 1400 (3d Cir.

1997), cert. denied, 522 U.S. 949 (1997). There are no

conflicting decisions in other Circuits.

Moreover, with both Acuna / and Giardina, the State of

New Jersey is in accord with ten other jurisdictions which

require live birth and thirty-one other jurisdictions which

require at least fetal viability as a prerequisite to recovery in

tort for wrongful death. See Appendix A on Behalf of

Respondents, State Survey of Permitted Fetal Wrongful Death

Actions (“Appendix A”). The position advanced by Petitioner

that a wrongful death claim may be brought with regard to a

non-viable embryo is followed only in a distinct minority of

jurisdictions. See Appendix A, infra. The eight jurisdictions

which pegnit such actions are Georgia, Illinois, Louisiana,

Mississippi, Missouri, South Dakota, Texas and West

Virginia. That determination was generally made by

legislative action.

6

Additionally, in every case where a federal equal

protection chalienge has been brought, none of the statutes

which require live birth as a condition to a wrongful death

claim have been held to offend the Fourteenth Amendment.

Marie, 314 F.3d at 141-42; Justus v. Atchison, 565 P.2d 122,

131 (Cal. 1977), overruled on other grounds, Ochoa v.

Superior Court, 703 P.2d 1 (Cal. 1985); Hernandez v.

Garwood, 390 So. 2d 357, 359 (Fla. 1980); McVey v. Sargent,

855 N.E.2d 324, 328-29 (Ind. Ct. App. 2006), transfer denied,

869 N.E.2d 447 (Ind. 2007); Kandel v. White, 663 A.2d 1264,

1269 (Md. 1995); Fort Worth Osteopathic Hosp. v. Reese,

148 S.W.3d 94, 98 (Tex. 2004) (later abrogated by statute);

Attempting to lure the Court’s interest in this case,

Petitioner incorrectly asserts that the alleged errors below

are a result of “confusion” caused by Roe v. Wade, 410 U.S.

133 (1973) and Planned Parenthood v. Casey, 505 U.S. 833

(1992). While Petitioner seeks to compel recognition of a

five-week embryo within the scope of the New Jersey

statutory term “person,” the holding of Roe and reiterated in

Casey could not be clearer: neither an embryo nor a fetus is

a “person” for the purposes of the Fourteenth Amendment.

Thus, Petitioner’s attack on Giardina’s interpretation of the

Act is mere guise to overturn this aspect of Roe.

Furthermore, the acceptance of Petitioner’s position that

the Equal Protection Clause requires recognition of a

wrongful death cause of action for a non-viable fetus will

invalidate the statutory framework in place in most states in

the country and result in the expansion of tort liability. Of

the thirty-one jurisdictions which recognize a wrongful death

action when the predicate of viability (in contrast to live birth)

is met, at least twenty-one have explicitly rejected the attempt

to extend the cause of action to a non-viable fetus.

7

Accordingly, none of the compelling reasons indicated

in Rule 10 of the Supreme Court Rules are present.

Accordingly, as discussed below, the petition should be

denied.

POINT I: The Appellate Division Correctly Held, In

Accord With Other State and Federal Courts,

that the “Born Alive” Requirement of New

Jersey’s Wrongful Death Act Does Not

Violate Fourteenth Amendment Equal

Protection Guarantees.

The ability to sue for the “wrongful death” of another

did not exist at common law. Rather, it appeared as a

legislatively-recognized exception to the traditional rule

barring such recovery. As recognized below, it is neither a

Constitutional nor “fundamental” right subject to enhanced

scrutiny. Acuna I, 808 A.2d at 155. Owing to its statutory

origins in each state, the elements of this action, like other

torts, varies from state to state without implicating Equal

Protection concerns. There are varying standing

requirements, differing limitations periods, disparities in the

scope of recovery, and other distinctions in the elements of

these tort actions depending on state law.

In New Jersey, an action for wrongful death is intended

to compensate survivors for the pecuniary losses they suffer

because of the tortious conduct of others. Giardina, 545 A.2d

at 145. In relevant part, the statute, which enables this

recovery, provides:

[w]hen 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

8

injured to maintain an action for damages

resulting from the injury, the person who would

have been liable in damages for the injury had

death 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. Stat. Ann. § 2A:31-1.]

The scope of recoverable damages is set forth in a

separate provision, limiting them to “pecuniary injuries

resulting from such death, together with the hospital,

medical and funeral expenses incurred for the deceased.”

Id. at § 2A:31-5.

This tort action did not exist at common law. Instead, it

was created, and continues to be regarded, as a “creature of

statute” patterned on Lord Campbell’s Act, 9 & 10 Vict. c.

93, An Act for compensating the Families of Persons killed

by Accidents (Aug. 26, 1846). Giardina, 545 A.2d at 144-45

(citation omitted).

As this Court has noted, the statutory origin of a wrongful

death claim has “important consequences,” foremost among

them that “[s]ince the right was unknown at common law,

the legislatures which created the right were free to impose

restrictions upon it.” Sea-Land Services, Inc. v. Gaudet, 414

U.S. 573, 579 (1974) (internal quotation omitted), impliedly

overruled on other grounds, Miles v. Apex Marine Corp.,

498 U.S. 19 (1990).

As a result, wrongful death jurisprudence is unique to

each state. For example, some states hold that an action for

wrongful death is barred if the decedent already recovered

9

for the same injuries during their lifetime, while others permit

recovery in such cases. /d. at 579. In addition, while recovery

for “loss of support” in a wrongful death case has been

“universally recognized,” compensation for lost services and

“loss of society” has produced variation among the states.

Id. at 584-85.

The differences among the states regarding the definition

of, and remedies for, wrongful death is not surprising; the

regulation of health and safety, and the provision of tort

remedies to compensate for personal injuries is an area in

which states have historically exercised general police

powers. Geier v. American Honda Motor Co., Inc., 529 U.S.

861, 894 (2000); Silkwood v. Kerr-McG2e Corp., 464 U.S.

238, 248 (1984) (noting “the States’ traditional authority to

provide tort remedies to their citizens”); W. Prosser,

Handbook ef the Law of Torts, § 5 at 23 (4th ed. 1971)

(remarking that state tort law unquestionably relates to

matters of health and safety). Moreover, federalism

considerations grant State action of this kind, including New

Jersey’s definition of “person” in the context of the Act,

deferential treatment. Geier, 529 U.S. at 894

In this regard, the federal government’s deference to state

law has led to a variety of approaches which, while different,

are not mutually exclusive. BMW of North America, Inc. v.

? Indeed, under our federalist system, divergent and

experimental approaches are encouraged and intended. Gonzales v.

Raich, 545 U.S. 1, 42 (2005) (O’Connor, J., dissenting) (finding

“one of federalism’s chief virtues, of course, is that it promotes

innovation by allowing for the possibility that a single courageous

State may, if its citizens choose, serve as a laboratory; and try novel

social and economic expcriments without risk to the rest of the

country” (internal quotation omitted)).

10

Gore, 517 U.S. 559 (1996) (stating “[i]n our federal system,

States necessarily have considerable flexibility in determining

the level of punitive damages that they will allow in different

classes of cases and in any particular case”).

In New Jersey, the tort of wrongful death is considered

separate and “derivative” from other negligence-based

theories of recovery. Giardina, 545 A.2d at 145. Petitioner’s

reference to concepts based in medical malpractice, informed

consent and other negligence-related doctrines is therefore

misleading and of no consequence in the context of this

Petition. See, e.g., (Pet. Br. at 13 — 17.)

Giardina’s essential holding, that the Act “does not

permit recovery attributable to the wrongful death of an infant

before birth,” was reached after a searching review of the

Act’s language, legislative history, historical interpretation,

analogous statutory schemes and consideration of a common-

law remedy in the form of an emotional distress claim which

satisfactorily accommodates the parental interest implicated

in appropriate situations. Giardina, 545 A.2d at 146. For

example, the court noted that the legislature knows how to

encompass fetuses and embryos in statutory language, but

explicitly did not choose to do so in the Act. Jd. at 145-46.

The court also looked to previous cases in which courts

allowed children to recover for prenatal injuries after birth,

and noted in those cases the right to recover “attaches, not to

the embryo or fetus, but to the living child.” Jd. at 145

(internal quotation marks and citation omitted). The court

perceived a legislative intent that a fetus was not intended to

be included in the statute as “a being whose death can give

rise to a claim for pecuniary injury” and that “the Legislature

in enacting the original Act, and in subsequent revisions,

never intended to create a derivative action in favor of the

survivors of a fetus never born alive.” /d. at 147.

11

Only after this comprehensive review, did the New Jersey

Supreme Court find “no compelling underlying policy that

would impel us to give the statutory term ‘person’ an

expansive interpretation here.” Jd. at 146. Petitioner is thus

incorrect when she claims that Giardina construed the Act

to exclude recovery for fetal wrongful death “based

exclusively on the premise that the 19th century legislature

could not have intended to include [them] . .. because it

operated under a false assumption of fact that the unborn

child was merely part of his or her mother.” (Pet. Br. at 19

(emphasis added).) The court specifically referred to the

“contemporary setting” which included ever-enhancing

improvements in medical care and understanding of fetal

development. /d. at 146-47.

In the nineteen years since Giardina, the New Jersey

Legislature has not acted to override, correct or modify the

New Jersey Supreme Court’s judgment which anchors the

Act’s definition of “person” to the original legislative intent

of creating a narrow exception to the traditional common

law bar which completely prohibited tort recovery for

wrongful death.* Jd. at 145.

> It is also significant to note, as Judge (now Justice) Alito did

in a similar case discussed infra, that “at the time of the adoption of

the Fourteenth Amendment and for many years thereafter, the right

to recover for an injury to a stillborn child was not recognized.”

Alexander, 114 F.3d at 1409 (Alito, J., concurring). Accord, Casey,

505 U.S. at 913 (Stevens, J., concurring in part and dissenting in

part); Roe, 410 U.S. at 157 (stating that “the word ‘person,’ as used

in the Fourteenth Amendment, does not include the unborn”). Thus,

Giardina’ holding that an embryo or fetus is not a “person” under

the Act, is consistent with the original intent of the Act, which was

to create a limited exception to the common law rule barring recovery

for wrongful death, is also consistent with the Fourteenth

Amendment.

12

Petitioner nonetheless contends that the Act violates the

Equal Protection Clause and is subject to strict scrutiny

because it impacts an alleged fundamental right in her

“relationship” with her embryo. (Pet. Br. at 21-22.) Despite

Petitioner’s characterizations, the Appellate Division

correctly held that heightened scrutiny is inappropriate and

the Act easily survives rational basis review. Similarly, in

dismissing Petitioner’s claimed appeal “as of right,” the New

Jersey Supreme Court appropriately concluded that it did not

present “‘a substantial constitutional question.”

For purposes of substantive due process, state actions

which implicate anything less than a fundamental right

require only that the government demonstrate a reasonable

relation to a legitimate state interest to justify the action.

Washington v. Glucksberg, 521 U.S. 702, 722 (1997). Such

laws are generally presumed to be valid and will be sustained

if the classification is rationally related to a legitimate state

interest. Fields v. Legacy Health Sys. , 413 F.3d 943, 955 (9th

Cir. 2005).

Rational basis review is appropriate here because there

is no fundamental liberty interest embedded in the ability to

sue for wrongful death. “Fundamental interests” are not

simply general interests of “particular human or societal

significance”; rather, they are those which “have their source,

explicitly or implicitly, in the Constitution.” Alexander, 114

F.3d at 1409 (quotation omitted). Because the right to bring

a wrongful death action was not part of the common law,

and exists purely by operation of statute, “[i]t cannot seriously

be argued that a statutory entitlement to sue for the wrongful

death of another is a ‘fundamental’ or constitutional right.”

13

Parham v. Hughes, 441 U.S. 347, 358 n.12 (1979).* The

Appellate Division therefore correctly held that rational basis

review is appropriately applied to Petitioner’s claim, as was

the case in Alexander and Marie. Furthermore, the New

Jersey Supreme Court appropriately dismissed the appeal

“as not presenting a substantial constitutional question.”

The Third Circuit recently considered two Equal

Protection challenges that were virtually identical to

Petitioner’s. In both instances, the court applied rational basis

review, soundly repudiating plaintiff's arguments (repeated

by Petitioner here), and review was denied by this Court.

See Alexander, 114 F.3d at 1408, cert. denied, 522 U.S. 949

(1997); Marie, 314 F.3d 136, cert. denied, 539 U.S. 910

(2003). See also Fields, 413 F.3d 955-56 (rationai basis test

applied to Oregon statute of limitations and repose despite

alleged discrimination against claimants based on date of

death and discovery of injury causing death).

In Alexander, plaintiff was admitted to a hospital for

delivery of an apparently health baby. However, due to

unforeseen cardiovascular collapse, the delivery was

stillborn. 114 F.3d at 1396. She filed a lawsuit secking

wrongful death and survivor damages; however, the surrogate

refused to issue the required letters of administration. This

* Contrary to Petitioner’s contention, nowhere does Alexander

hold “that the question of whether an unborn child is a human being

is a question of scientific fact for a jury.” (Pet. Br. at 12.) In truth,

Alexander finds that for purposes of determining whether it is a

“person” under the Fourteenth Amendment, “it is immaterial that

the complaint pleads that a stillborn child is a human being from

conception”. 114 F.3d at 1401. Accordingly, there is no apparent or

actual conflict among the Circuits on this basis, as is suggested by

Petitioner. (Pet. Br. at 12-13.)

14

prompted the plaintiff to file a class action in the District

Court seeking a declaratory judgment that the Act was

unconstitutional on Equal Protection grounds because it

treated stillbirths different from live births by permitting a

cause of action for the latter and prohibiting a cause of action

for the former. /d. at 1396-97.

The Third Circuit affirmed the district court’s dismissal,

holding that the plaintiff “can only establish a claim on behalf

of her child under the Fourteenth Amendment if the children

fall within the protections afforded ‘person[s]’ as that term

is used.” /bid. As has been conclusively established by this

Court, they do not. Roe, supra, 410 U.S. at 157; Casey, 505

U.S. at 913 (Stevens, J., concurring in part and dissenting in

part). The Third Circuit further observed that “[t]he issue is

not whether the unborn are human beings, but whether the

unborn are constitutional persons,” id. at 1402 (emphasis

added).°

As for the plaintiff's claim in Alexander that the Act

violated her due process rights and right to equal protection,

the court held that rational basis was the appropriate level of

scrutiny as no fundamental right was implicated. The court

rejected the argument that the Act infringed on the plaintiff’ s

interest in her “relationship with her unborn child.” The court

> Petitioner’s arguments regarding the “second patient” to whom

a physician owes a duty of care when seeing a pregnant woman,

(Pet. Br. at 13), fail to address the proper inquiry regarding Fourteenth

Amendment “personhood.” Indeed, these arguments in this respect

are clearly erroneous, because if she were correct, then any

termination of a pregnancy would be, by definition, wrongful,

tortious, and criminal. Common sense dictates that a duty of care

with regard to this “second patient” is only triggered by a woman’s

decision to continue her pregnancy uninterrupted.

15

held that this relationship “is exactly the same whether or

not she can bring a wrongful death or survivor action.”

Id. at 1404. Rather than defining or influencing the

relationship, the Act determines only whether or not

Petitioner may seek pecuniary recovery for its loss. Jbid. The

court therefore held that the Act should be reviewed under

the rational basis test.

The Alexander court held that prohibiting a cause of

action for an embryo or fetus that dies in utero is rationally

related to the State’s interest in defining its own tort law:

[t]he requirement that the child on whose behalf

a wrongful death and survival action is instituted

have been born alive is rationally related to that

interest. New Jersey has chosen to draw a bright

line that eliminates the nearly impossible

problems of proof inherent in such actions when

injury to a fetus is at issue. Absent the limitation

in these statutes it would be difficult, if not

impossible, to prohibit a wrongful death or

survival action no matter how early the fetus was

in its development. This would mean that one

could recover if it could be established that a

zygote would have developed had not an alleged

tortfeasor injured a developing fertilized egg

seconds after the union of sperm and egg.

[Id. at 1407.]°

° An attempt to bring a wrongful death claim for the loss of a

three-day old frozen embryo that was to be implanted in the woman’s

body was rejected in Jeter v. Mayo Clinic Arizona, 121 P.3d 1256

(Ariz. Ct. App. 2005).

16

The court went on to observe that a state could permit

recovery for an injury to that which would later develop into

a fetus but “it certainly was not required to do so under the

Due Process or Equal Protection Clauses.” It therefore

concluded that “[l]imiting such actions in the manner that

New Jersey has chosen is both reasonable and practical.” /d.

In Marie v. McGreevey,’ the Third Circuit also rejected

the same argument advanced here in the specific context of

abortion. There, the plaintiffs were women who had abortions

allegedly without giving their informed consent and claimed

that the Act’s denial of their right to maintain a cause of

action for the wrongful death of an embryo or fetus in utero

violated their Equal Protection and Due Process rights under

the Fourteenth Amendment. 314 F.3d at 139. The court

rejected their claims for the same reasons discussed in

Alexander.

Like the Third Circuit, the New Jersey Appellate Division

recognized the frailty of Petitioner’s argument advanced here:

contrary to Petitioner’s contentions, the Act does not attempt

to classify women or give them special status based on

whether or not they are pregnant; nor does the Act, on its

face, focus on any special familial relationship or the sanctity

of life. Indeed, the entire linchpin of Petitioner’s argument

— that a woman has a fundamental relationship with her

embryo — was found to be “not dispositive” by the Appellate

Division because the Act does-not at all affect that

relationship. Acuna J, 808 A.2d at 155.

’ Even though it is directly on point, there is no citation,

discussion or analysis of Marie v. McGreevy in Petitioner’s brief.

This is astounding in light of Acuna originally having been an actual

party in interest to that litigation in the District Court and represented

by the same attorney in both matters.

17

Petitioners’ central arguments closely parallel (if not

exactly echo) those raised by the plaintiffs in Marie, and

should be rejected for the same reasons. Like that case,

Petitioner claims that Giardina violates her equal protection

rights by creating a subclass of pregnant women, namely

those who have elected to terminate their pregnancies,

because such women are disallowed under the statutory

scheme from asserting wrongful death claims. (Pet. Br. at

18.) Also, as in Marie, Petitioner alleges that she is subject

to an arbitrary and capricious classification because she is

unable to assert wrongful death claims on behalf of her

terminated embryo in the same manner as women whose

children suffered a pre-birth injury that causes death

subsequent to their live birth. (Pet. Br. at 19.) These claims,

the Third Circuit observed, are “precluded by” Alexander.

Id. at 140-41. —

Furthermore, although Petitioner is precluded from

bringing a wrongful death claim under the Act, she is not

without a cause of action; Giardina recognizes a “common

law cause of action for emotional distress and mental anguish

arising from the death of an infant before birth.” Acuna I,

808 A.2d at 158 (citing Giardina, 545 A.2d at 139). The

existence of this cause of action was a «© .ecognized by the

Third Circuit in Alexander, 114 F.3d at 1405-06, and Marie,

314 F.3d at 140.° This is the manner in which New Jersey

law accommodates alleged tortious injury to an embryo or

fetus that dies in utero. This not an action for the death of a

family member as contended by Petitioner. (Pet. Br. at 17.)

Rather the claimed malpractice giving rise to the emotional

8 Acuna has, in fact, raised 1 claim for common law emotional

distress in Count 5 of the Complaint. This issue remains with the

New Jersey Supreme Court.

18

distress claim was “directed against plaintiff as an expectant

mother and thus was a direct claim, not a derivative claim”

from the fetal death. Acuna J], 808 A.2d at 157; Acuna IT, 894

A.2d at 1211. Like the plaintiff in Alexander, the Petitioner’s

argument here boils down to a dissatisfaction with the cause

of action that New Jersey tort law has provided. Alexander,

114 F.3d at 1405-06. But this dissatisfaction does not rise to

the level of an equal protection violation. /d.

In a comment fairly summarizing the basic reason that

this Petition should be rejected, the Third Circuit in Marie

reiterated that “the New Jersey Wrongful Death Act does not

affect the parent/child relationship in this case any more than

it did in Alexander.” Id. at 140-42. For this reason, and those

expressed above, the Appellate Division correctly held that

the classification drawn by Giardina survives rational basis

review. See e.g., Acuna I, 808 A.2d at 155 (stating that “the

Act focuses on dependency and pecuniary loss. As such its

classifications are rationally related to its purpose”).

Accordingly, the Petition lacks merit and should

therefore be denied.

POINT II: The Appellate Division’s Holding Is

Consistent with Other State Courts of Last

Resort to Consider the Question.

Every other state court that has considered this issue has

also rejected the Federal Equal Protection challenge to their

wrongful death statutes that exclude recovery for stillbirths.°

® Petitioner suggests that New Jersey’s live birth prerequisite

to wrongful death claims is a peculiar anomaly. This is wrong.

(Cont’d)

19

The California Supreme Court considered this issue in

Justus v. Atchinson, 565 P.2d 122, 131 (Cal. 1977) where

court viewed the “principal issue” as whether a stillborn fetus

was a “person” within the meaning of that state’s wrongful

death statute. After concluding that it was not, the California

Supreme Court stated “[t]here is no merit in plaintiffs’

alternative contention that [such a construction of the statute]

denies them equal protection of the laws.” /d. at 122. It further

found that the legislature had acted rationally in not providing

a cause of action for wrongful death in the case of a stillbirth.

Ibid. Although the Justus court also denied recovery for

emotional distress on the part of the parents, that part of the

holding was subsequently overruled, bringing the decision

in line with the approach taken in Giardina.

The Florida Supreme Court employed this interpretation

of its wrongful death statute, rejecting a cause of action for

the death of a stillborn fetus in Hernandez v. Garwood, 390

So.2d 357 (Fla. 1980), and concluded there was no

constitutional defect. The plaintiff contended and the trial

court concluded that the denial of such a cause of action was

a violation of the Equal Protection guarantee. The Florida

Supreme Court tersely rejected this analysis, finding that

“(t]he statute in no way violates the equal protection clause

of the United States Constitution, see Roe v. Wade, 410 U.S.

93 S.Ct. 705, 35 L.Ed.2d 147 (1973) (the word ‘person’ as

(Cont'd)

Presently, eleven (11) states, including New Jersey, follow this “born

alive” rule; twenty-nine or thirty states as well as the District of

Columbia employ a viability standard, recognizing a cause of action

for the death of only a viable fetus; and only eight (8) recognize a

wrongful death claim for a fetal death prior to viability, either at

fertilization (six states) or when the fetus becomes “quick” (two

states). See Appendix A.

20

used in the fourteenth amendment does not include the

unborn).” Jd. at 359. This decision was followed in Young v.

St. Vincent's Medical Center, 653 So.2d 499 (Fla. Dist. Ct.

App. 1995), aff’d, 673 So.2d 482 (Fla. 1996).

Similarly, in Kandel v. White, 663 A.2d 1264 (Md. 1994),

the Maryland Court of Appeals rejected the contention that

drawing a line between viable and nonviable fetuses for

wrongful death recovery was arbitrary; it concluded that

excluding non-viable fetuses was not an equal protection

violation. Jd. at 1270.

The Texas Supreme Court also concluded that wrongful

death statutes may properly distinguish between live birth

and still births, and between viable and non-viable fetuses.

In Fort Worth Osteopathic Hosp. v. Reese, 148 S.W.3d 94

(Tex. 2004), wrongful death and survivor claims were

brought after a fetus died in utero during the seventh month

of pregnancy. While the court noted that the fetus was viable,

it nonetheless held that there was no cause of action under

either the wrongful death or survivor statute, each of which

required a live birth as a predicate for the claim."° In addition,

it dealt with the constitutional question as “a matter of first

impression,” stating:

Because we conclude that the Legislature’s

decision to exclude such claims is not

'© After the events giving rise to this case, the Texas legislature

enacted a statute under which a cause of action for wrongful death

may accrue at any time post-fertilization. See Tex. Civ. Prac. & Rem.

Code Ann. § 71.001 (Vernon 2007). That statute specifically did not

apply to claims arising out of medical care. Nonetheless, the analysis

in Reese illustrates that the Fourteenth Amendment does not demand

uniformity among the states in the regard.

21

unconstitutional, we hold that the court of appeals

erred in concluding that the Equal Protection

Clause guarantees parents the right to bring a

wrongful death or survival claim for a stillborn

child. [Jd. at 95.]

The Texas Supreme Court framed the equal protection

argument as follows:

Two classifications are at issue here. The first is

the distinction in the wrongful death statute

between parents of a stillborn fetus and parents

of a child born alive. The second is the distinction

under the survival statute between a fetus that dies

in utero and a fetus that is born but dies subsequent

to birth. The United States Supreme Court has held

that the unborn are not included within the

protection of the Fourteenth Amendment, which

contains the Equal Protection Clause. . . . While

the Supreme Court has acknowledged the state’s

interest in the life of a fetus before birth. . . it has

never repudiated its holding in Roe that the Equal

Protection Clause does not apply to a fetus.

[/d. at 98 (citations omitted). ]

Taking into consideration the derivative nature of the

wrongful death claim, it held that there was no equal

protection violation occasioned by prohibiting wrongful

death or survivor claims after a stillbirth. The court stated

that “[i]t is not a violation of the Equal Protection Clause to

fail to provide parents with a claim for the wrongful death of

a fetus in utero when the Equal Protection Clause does not

22

prohibit a legislative body from withholding a wrongful death

cause of action from the fetus.” /bid. "

Most recently, in McVey v. Sargent, 855 N.E.2d 324 (Ind.

Ct. App. 2006), transfer denied, 869 N.E.2d 447 (Ind. 2007),

the court rejected a challenge that that state’s Child Wrongful

Death Statute violated equal protection guarantees in not

permitting an action to be brought for the death of a viable

fetus. It noted that the cause of action had not been recognized

at common law and that the legislature intended to draw a

line that would define and limit the cause of action only when

the child had been “born alive.” It found that the state has

“an interest in determining that there is a specific point” at

which parents may bring an action for a child’s death. It

concluded:

The fact that the legislature set that point at the

time of a live birth is rationally related to its

legitimate interest in having such a time defined

for its citizenry so that they might then pursue

the action authorized by the statute. Therefore, we

do not find the statute to violate equal protection.

[855 N.E.2d at 329.]

The Indiana Supreme Court declined to review the

matter.

This Court has recognized that the state has the ability

to draw lines regarding the scope of tort liability and that the

" Further, it explicitly overruled an earlier Court of Appeals

holding that the wrongful death and survival statutes violated both

federal and state constitutions. Reese, 148 S.W. 3d at 97 (overruling

Parvin vy. Dean, 7 S.W.3d 264 (Tex. App. 1999). Parvin did not

proceed beyond the intermediate Court of Appeals.

23

primary tasking of the exercise of that power is to the

legislature. Although not speaking in terms of an equal

protection analysis, the New Hampshire Supreme Court

eloquently addressed this issue in considering the availability

of a wrongful death action for a ten to twelve week old fetus:

The viable-nonviable distinction was made as part

of the never-ending effort to widen more and more

the circle of liability which surrounds us. As with

all such efforts, the pressure never ends. When a

new line is drawn, the pressure shifts to form a

new and wider circle. Years ago, few if any would

have foreseen that the circle would include a

viable fetus. Who can foresee what the next step

would be if the circle were to include the

nonviable fetus. If life is not to become

intolerable, there must be some boundaries to the

zone of liability. Neither logic nor science is the

determining factor. It is the policy of the law which

must establish a reasonable limitation on liability.

In our opinion, it is not reasonable to extend

liability to a nonviable fetus. [Wallace v. Wallace,

421 A.2d 134, 136-37 (N.H. 1980).]

While a few states may have reached a contrary

conclusion as to the availability of the wrongful death cause

of action for a non-viable fetus, this does not render the New

Jersey statute violative of equal protection guarantees.

In sum, Petitioner’s arguments are contrary to the

decisions in sister jurisdictions, the fundamental principles

of the Act, and the basic reasoning of Giardina, Acuna I,

Alexander, and Marie. Against this, Petitioner has provided

no compelling basis for this Court to accept the Petition for

review.

24

CONCLUSION

It is submitted that in accordance with Rule 10, the

Petition be denied for the reasons expressed above, in

addition to those articulated by the Appellate Division in

Acuna I and by the Third Circuit in Alexander and Marie.

Respectfully submitted,

JOHN ZEN JACKSON

Counsel of Record

LEONARDO M. TAMBURELLO

Ka ison, McBripe, JACKSON & Murpny, P.A.

25 Independence Boulevard

Warren, New Jersey 07059

(908) 647-4600

Counsel for Respondents

APPENDIX

i

APPENDIX A ON BEHALF OF RESPONDENTS:

STATE SURVEY OF PERMITTED FETAL WRONGFUL DEATH ACTIONS

- Viability. Eich v. Gulf Shores, 300 So. 2d 354, 358 (Ala. No ower decision.

1974) (allowing wrongful death action for

viable fetus); Gentry v. Gilmore, 613 So. 2d

1241, 1243-44 (Ala. 1993) (no cause of action

for non-viable fetus).

’

3 AZ Yes. -~ : Viability. manana, v. aac Gan of County of No reported decision.

be Maricopa, 698 P.2d 712, 722 (Ariz. 1985)

(recognizing cause of action post-viability

wrongful death); Jeter v. Mayo Clinic

Arizona, 121 P.3d 1256 (Ariz. App. 2005)(a0

wrongful death cause of action for three-day

re non-viable embryo),

Ԥ :CA No. Live birth. peas Atchinson, $65 P.2d 122, 134 (Cal Justus, $65 P.2d at 131.

Reco pete 1977) (live birth required to state cause of

action for wrongful death), overruled on other

grounds,

Ochoa v. Superior Court, 703 P.2d 1 (Cal.

1985).

7 CT Yes. Viability. Hotala v. Markiewice,224A24 406,408 No reported decision.

(Conn. Super. 1966) (allows wrongful death

cause of action for viable fetus).

9&9 FL No. -Live birth. Hernandez v. Garwood, 390 So. 24 357,359 Ibid

: : ac ota ete

: Sli STATI OC bra UIC Kee, Lug fea. ig ni

1i HI Yes.. Viability. Wade v. U.S., 745 F. Supp. 1573, 1579 (D. No reported decision.

Hawaii 1990) (with no controlling authority

on point, federal court’s “best estimate” is that

Hawaii law would permit wrongful death

claim for viable fetus but not for non-viable

fetus)

BEST AVAILABLE COPY

2

APPENDIX A ON BEHALF OF RESPONDENTS:

STATE SURVEY OF PERMITTED FETAL WRONGFUL DEATH ACTIONS

: -_

f pares The cA <7, eal

Z Pw a0

eile tee hasten ue 5‘

: ae

eas ie

slaw woulda otyrecognize fer sa Ne

=

SSiltaetion ton comma m4

Seah As

pan v. peas Way, In inc., 333 N. W2d $30,

843-35 (lowa 1983) (wrongful death suit

cannot be — for the death of a viable

en on |

it deat atta ok

27 BY Yes. Viability. Rice v. Rizk, 453 SW. 2 732, 735 (Ky. 1970)

(viable fetus a “person” within meaning of

renee, death act).

; Code. P Be OPTS Zod (2006 }i(unt ale ; Otc

seers Peon Mae os wT et Sy bi

Coal Sime Dance de Siblerce) G2

SND ts. 3 34 bn037;(kea “994 Bee ast as pth ‘3 t35 ?

19 ME No. Live birth. aoe v. en 717 A.2d 367, 372 (Me. No sepertad distin.

1998) (state wrongful death act does not

recognize a cause of action for wrongful death

brought by the parents of a — eee

4 Randel Ve WAee

7 ROE ea Md:

: E HE Sahel oneepe ais Sas

‘21° MA = Yes.« Viability. Mone v. aouad the ys 331 N. FE 2d No reported decision.

916, 918-20 (1975); Remy v. MacDonald, 801

N.E 2d 260, 265 (Mass. 2004) (wrongful

death action allowed for viable fetus); Thibert

v. Mika, 646 N.E.2d 1025, 1026 (Mass. 1995)

(no cause of action for non-viable fetus).

3

APPENDIX A ON BEHALF OF RESPONDENTS:

STATE SURVEY OF PERMITTED FETAL WRONGFUL DEATH ACTIONS

jhe hy A

DN A a

Petit seek

wef Sa TO

fa Pe ed Ss ve a] eat ies - oo 4

ee: $ooa hes heen Gee tae =i ld BEE aoe Ste!

# pellvAStup bss SENSE cies e? em

7a

Udeath ch cnet

Ate PPE Mik bead

03 1 armor EY

ayy bs oe Fe i Bee

; Cl) dw idanpeioaes ip paren eco:

Verkaneus v. Contes (1949) 38 N.W.2d 838,

841 (Minn. 1949) (cause of action allowed for

“ae death of a oom ea

et a3 f +

by Sa Rk

ing Atashs ao

pat eS:

par

ae

hi

teehee

rk Boies

MO Yes. Fertilization. Connor v. Moutem Co,, 898 S.W.2d 89, 92-93

(Mo. 1995) (plintiff could bring a claim for

the wee death of non-viable ee

ab 2 Fe

Smi v. “Columbus — Manoa Inc., No onud 7 re

387 N.W.2d 490, 492 (Neb. 1986) (holding

that viable fetus which dies prior to birth as

result of another's negligence does not have

cause of action for damages under wrongful

—_ a

29 NH Yes. Viability Poliquin y. , McDonald, 135 A.2d 249, 251 "No ane d pearreany

(N.H. 1957) (cause of action exists for

wrongful death of stillborn viable fetus);

Wallace v. Wallace, 421 A.2d 134, 136-37

(N.H. 1980) (no cause of action for stillborn,

non- -viable fetus).

Areata Aaa REY

; = pisernt Bt aR irs) sore nunis

. seer <¢ ca ee = aa,

Salazar v. z Vincent Hosp., 619 P.2d 826, No reported decision.

830 (N.M. Ct. App.) (recognizing an

independent cause of action for the wrongful

death of a viable fetus), writ. quashed, 617

P.2d 1321 (N.M. 1980); Miller v. Kirk, 905

P.2d 194, 195-96 (N.M. 1995) (no cause of

action for non-viable fetus)

4

APPENDIX A ON BEHALF OF RESPONDENTS:

STATE SURVEY OF PERMITTED FETAL WRONGFUL DEATH ACTIONS

Didonalt v. Wane, 358 S.E.2d 489, 493

(N.C. 1987) (holding wrongful death statute’s

definition ¢ of “person” includes viable fetus).

eo PY A)

Viability.

| OH Yes. Viability Werling v. hae 476 N. E.2d 1053, 1055 No mamta detisians

(Ohio 1985) (holding that a viable fetus

negligently injured and subsequently stillborn

could be the subject of a wrongful death

action); Egan v. Smith, 622 N.E.2d 1191,

1193-94 (Ohio App. 1993) (no cause of action

for non-viable fetus).

Viability. Libbee v. Permanente Clinic, 518 P. 2d 636, No reported deciaien.

640 (Or. 1974) (wrongful death action is

available for death of viable fetus); LaDu v.

Oregon Clinic, P.C., 998 P.2d 773, 735-36

(Or. App.), review denied, 18 P.3d 1099 (Or.

2000) (no cause of action for wrongful death

of non-viable fetus).

oi 8 Goy esky Buby = O34 So087 61 0.11 Hes arte d; 5h

Bea tt Doe ce Met Sen ef abe eee: Beat

ie Pore Roe eh bishCrolt Reabe eLau eee eee eee |

39 RI Yes. Viability. sana v. AMICA Mut. Ins. Co., 587 A.2d No reported decision.

67, 69 (R.L. 1991) (holding non-viable fetus is

not a “person” within the meaning of the

wrongful death statute).

Fertilization. Wiersma v. Maple Leaf Farms, 543 N W2d

787, 792 (S.D. 1996) (allowing wrongful

death claim to be brought for non-viable

fetus).

43 1X Yes Fertilization. ex. Civ. Prac. & Rem. Code Ann n §7l 001 Fort Worth Osteopathic

(Vernon 2007) (defining embryo, at any stage Hosp. v. Reese, 148

post fertilization, as an “individual” for S.W.3d 94, 98 (Tx. 2004).

purposes of wrongful death act).

5

APPENDIX A ON BEHALF OF RESPONDENTS:

STATE SURVEY OF PERMITTED FETAL WRONGFUL DEATH ACTIONS

Vaillancourt v. “Medical Center 5 Meat of No naiaed decision.

Vermont, 425 4.2d 92, 95 (Vt. 1980)

{upholding statutory cause of action for

sche death of pee stillborn ane.

Diners Li5:n0 P ea ee pnd oe j

a ESE, ep] EWron aaa | ais Fg Boe tye eae aes eee te

47 WA Yes. Viability. Moen v. Hanson, 537 et 266. 266-67 No reported decision. But

(Wash. 1975 wrongful death action see Kim v. Long, 2004

permitted for viable fetus); Baw v. WL 1775664 *2 (Wash.

Burrington, 79 P.3d 456, 459 (Wash. Ct. App. App. 2004) (argument

2003) (no cause of action for non-viable raised, but constitutional

fetus), appeal denied, 95 P.3d 758 (Wash. issues not reached).

tc

pomewreares v. State Farm Mut fuomcbile Ins.

Co., 148 N.W.2d 107, 111-12 (Wis. 1967)

(wrongful death action permitted in death of

viable fetus).

tk Ci ahd. 7 4

ae NV ORO dryer re Cprowig

‘ cgateae ei, Pesonaseeee Wee

al Rcausethbyswrot caieclectocaefaults aes he

rei i: ew i Der eet ie

Seats

teh oat ity

meV ies

Mahi bade ybs

cee

51 pc Yes. Viability. Greater Southeast Fecmmainy Posy. v No reported decision.

Williams, 482 A.2d 394, 397-98 (D.C. 1984)

(cause of action for wrongful death of viable

fetus); cof Ferguson v. District of Columbia,

629 A.2d 15, 20 (D.C. 1993) (non-viable fetus

does not have cause of action under survival

Statute)

6

APPENDIX A ON BEHALF OF RESPONDENTS:

STATE SURVEY OF PERMITTED FETAL WRONGFUL DEATH ACTIONS

Wrongful Death Claim on Behalf of a Fetus Permitted: 39 Jurisdictions.

Viability: 31 AL, AZ, AR, CO, CT, DE, HI, ID, KS, KY, MD, MA,

MI, MN, MT, NV, NH, NM, NC, ND, OH, OK, OR,

PA, RI, SC, TN, UT, VT, WI, DC.

Quickening: 2 GA (statute), MS (statute).

Fertilization: 6 IL (statute), LA (statute), SD, MO, TX (statute), WV.

Wrongful Death Claim on Behalf of Non-Viable Fetus Not Permitted: 21 Jurisdictions.

AL, AK, AZ, HI, ID, KS, MD, MA, MI, MT, NH,

NM, OH, OK, OR, PA, RI, SC, UT,WA, DC.

Wrongful Death Claim on Behalf of a Fetus Not Permitted: 11 Jurisdictions.

AK’, CA, FL, IN, IA, ME, NE, NJ, NY, VA, WA.

Jurisdictions With No Controlling State Law: 1 Jurisdiction (WY)

Failed Equal Protection Challenges: 6 Jurisdictions

California: Justus v. Atchinson, 565 P.2d 122, 131 (Cal. 1977),

overruled on other grounds,

Ochoa v. Superior Court, 703 P.2d 1 (Cal. 1985).

Florida: Hernandez v. Garwood, 390 So. 2d 357, 359 (Fla. i980).

Indiana: McVey v. Sargent, 855 N.E.2d 324, 328-29 (Ind. Ct. App. 2006), transfer

denied, 869 N.E.2d 447 (Ind. 2007).

Maryland: Kandel v. White, 663 A.2d 1264, 1269 (Md. 1995).

New Jersey: Marie v. McGreevey, 314 F.3d 136, 141-42 (3d Cir. 2002), cert. denied,

539 U.S. 910 (2003).

Texas: Fort Worth Osteopathic Hosp. v. Reese, 148 S.W.3d 94, 98 (Tx. 2004),

abrogated by Tex. Civ. Prac. & Rem. Code Ann § 71.001 (Vernon 2007).

Successful Equal Protection Challenges:

None.

Alaska federal courts have held no wrongful death cause of action lies for a non-viable fetus, but state

courts have not considered this issue, or whether such a claim is allowed for a viable fetus.