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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2007

## Text

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 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

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27 BY Yes. Viability. Rice v. Rizk, 453 SW. 2 732, 735 (Ky. 1970)
(viable fetus a “person” within meaning of
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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

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‘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

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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).
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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).
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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).
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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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_1106%3A2. Public record. Not legal advice.