Appendix — Alexander v. Whitman

2) 9% +322 auG 21 1997

No. 9@frict OF THE Utenk

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1997

KAREN F. ALEXANDER

Petitioner.

- against -

CHRISTINE TODD WHITMAN: et al.

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

——

APPENDIX IN SUPPORT OF PETITION

FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Harold J. Cassidy, Esq.

P. O. Box 280

225 Broad Street

Red Bank, New Jersey 07701

(732) 530-9779

NDEX PPENDIX

EXHIBIT PAGE NO.

A. Opinion of the U.S. Court of Appeals

for the Third Circuit dated May 23,1997 ........ A-1

B. New Jersey Wrongful Death and Survival Action

PS re ee ee eee ee A-31

. Section 1 of the Fourteenth Amendment ....... A-34

D. Memorandum and Order of Honorable Mary

Little Parell, U.S.D.J., United States

District Court, District of New

Jersey dated May 18,1995 ................ A-35

E. Class Action Complaint .................... A-49

F. Medical and Scientific Facts Contained

in the Record Below ..................000.5. A-75

G. Opinion of the Superior Court of New Jersey,

Appellate Division, entitled Matawaran

eg er A-103

H. Plaintiffs’ Notice of Cross Motion

for Summary Judgment .................. A-110

I. Order on the Mandate of the Third Circuit

Court of Appeals Entered by the District

Court Dismissing the Complaint and for

Pe kee sea ee eh ae do x 5 A-113

J. Order of Judgment of the Third Circuit

Court of Appeals affirming Dismissal

of the Complaint and for Taxed Costs ........ A-115

K. es A-117

Affidavit of Harold J. Cassidy, Esq. in

Support of Motion for Summary Judgment .....

Correspondence from Surrogates Office .......

Medical Malpractice Complaint

GG DG DONG onc icc ee ceca easeween

Affidavit of Karen Alexander ...............

Death Certificate of Kaylyn Elissa Alexander ....

Pe TE nn ins 4468 4S ee

Photographs of Kaylyn Elissa Alexander .......

Consent Order of Judgment ...............

ey TA on os 0 0s 6404488 OR

Amended Notice of Appeal ................

Order granting dismissal

of the emotional distress

(Portee Claim) of Karen Alexander ...........

Order granting dismissal

of the emotional distress

(Portee Claim) of Karen Alexander

as to defendant, Alqaisi, M.D. ..............

A-1

Filed May 23, 1997

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 95-5414

KAREN ALEXANDER; DENNIS DRAZIN, ESQ.;

DRAZIN AND WARSHAW,

V.

CHRISTINE TODD WHITMAN; PETER VERNIERO;'

JANICE S. MATHIS; STEPHEN R. ROTHMAN; ELTON A.

CONDA; W. ROBERT HENTGES; HARRY A. FREITAG, JR.;

MARIA VIZCARRONDO-DE SOTO; DONALD H. WAGNER;

DONALD W. DE LEO; SUSAN HOFFMAN GREENE;

CAROL OSWALD; KEVIN J. HOAGLAND; MARIE S.

MUHLER; *JOHN PECORARO; FRANKLIN V. FISHER;

ROSALIE MASSERI; GENEVA B. WOOD; VERNON A.

NOBLE; NANCY FITZGIBBONS; ANN P. CONTI; ALBERT J.

RUH; MARIA BARNABY GREENWALD

Karen Alexander, individually and on behalf of all persons

similarly situated; Dennis Drazin, Esq., individually and

on behalf of all attorneys similarly situated; and Drazin &

Warshaw, a professional corporation, individually and on

‘Deborah T. Poritz was the Attorney General for the

State of New Jersey when this suit was instituted. Since

that time, Deborah T. Poritz resigned as Attorney General

and was appointed Chief Justice of the Supreme Court of

New Jersey. Subsequently, Peter Verniero was appointed

the Attorney General. Pursuant to Fed. R. App. Proc. 43(c),

Peter Verniero is automatically substituted as a party

plaintiff for Deborah T. Poritz.

A-2

behalf of all firms similarly situated,

Appellant

*Caption amended per the Clerk’s order of 10/25/95

ON APPEAL FROM THE

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

(Civil No. 94-5229)

Argued: May 9, 1996

Before: GREENBERG, ALITO and McKEE, Circuit Judges

(Opinion filed: May 23, 1997)

HAROLD J. CASSIDY, ESQ. (Argued)

GREGORY R. MILNE, ESQ.

Cassidy, Foss & San Filippo

225 Broad Street

P.O. Box 896

Red Bank, NJ 07701

Attorneys for Appellants

PETER VERNIERO, ESQ.

Attorney General

JEFFREY J. MILLER, ESQ. (Argued)

ANDREA M. SILKOWITZ, ESQ.

Assistant Attorneys General

Richard J. Hughes Justice Complex

CN-112

Trenton, NJ 08625

Attorneys for Appellees, Christine

Todd Whitman and Peter Verniero

A-3

RONALD KEVITZ, ESQ.

Morris County Counsel

W. RANDALL BUSH, ESQ. (Argued)

First Assistant Counsel

Administration and Records Building

CN 900

Morristown, NJ 07963

Attorneys for Appellee, John Pecoraro

ROBERT E. MARGULIES, ESQ.

Marguiles, Wind, Herrington & Knopf

15 Exchange Place

Suite 510

Jersey City, NJ 07302

Attorneys for Amicus Curiae,

Andrea Guillian and Marilyn Gotay

RICHARD F. COLLIER, JR., ESQ.

Collier, Jacob & Mills

580 Howard Avenue

Corporate Park Ill

Somerset, NJ 08873

Attorney for Amicus Curiae,

The World Federation of Doctors Who

Respect Life

PAUL E. NEWELL, ESQ.

Newell & Adubato

80 Court Street

Freehold, NJ 07728

Attorneys for Amicus Curiae,

Association of Trial Lawyers of

America - New Jersey

A-4

OPINION OF THE COURT

McKEE, Circuit Judge

Karen Alexander, Dennis Drazin, Esq., and the law firm of

Drazin and Warshaw, P.C., appeal from the district court’s

dismissal of their complaint under Fed. R. Civ. P. 12(b)(6).

Plaintiffs had alleged that New Jersey’s Wrongful Death Act,

N.J.S.A. 2A:31-1 et seq., and Survival Action Act., N.J.S.A.

2A:15-3, violate the Equal Protection and Due Process Clauses of

the Fourteenth Amendment of the United States Constitution

because they deny a cause of action to the statutory beneficiaries

unless a fetus survives past birth. For the reasons that follow, we

disagree and will affirm the district court’s dismissal of the

complaint.

1. FACTS

On July 15, 1992, Karen F. Alexander, who was then eight

and one-half months pregnant, was admitted to the Jersey Shore

Medical Center to give birth to her child. The vital signs of Ms.

Alexander’s baby were taken only fourteen minutes prior to

delivery by cesarean section, and the fetus appeared normal and

healthy. Tragically, however, the child was stillborn.”

An autopsy was performed, and a death certificate was

issued showing the date of the child’s birth as July 15, 1992. The

birth certificate noted the child's name was Kaylyn Elissa

Alexander and that she was "stillborn" due to “cardio-vascular

collapse."

On July 13, 1994, Karen Alexander filed a complaint in the

Superior Court of Monmouth County, New Jersey, seeking

2in plaintiffs’ motion for summary judgment states that

the child died “while she was stil! in her mother’s womb

and before her actual birth, and was therefore declared

‘stillborn’." Joint Appendix, at 37. The hospital’s records

state that the child had "interpartum demise.” /d.

A-5

damages individually® and in her capacity as Administratrix Ad

Prosequendum of the Estate of Kaylyn Elissa Alexander, Deceased,

under the New Jersey Wrongful Death Act., N.J.S.A. 2A:31-1,

and as General Administrator of the Estate of Kaylyn Elissa

Alexander, Deceased, under the New Jersey Survival Action

statute, N.J.S.A. 2A:15-3. The complaint alleged that the

negligence of doctors, nurses, and other health care personnel at

Jersey Shore Medical Center had injured Ms. Alexander’s baby

while it was still in her mother’s womb. Ms. Alexander requested

that the Surrogate of Monmouth County issue Letters of

Administration Ad Prosequendum and General Letters of

Administration for the Estate of Kaylyn Elissa Alexander. On

October 18 and 31, 1994, the Surrogate denied the request for

Letters Ad Prosequendum because Kaylyn Elissa had been stillborn.

On October 28, 1994, Karen Alexander and Dennis Drazin,

a New Jersey lawyer, and Drazin & Warshaw, P.C., a law firm,

filed a class action complaint under 42 U.S.C. 81983 in the United

States District Court for the District of New Jersey. The suit

named Christine Todd Whitman, individually, and as Governor of

the State of New Jersey, Deborah T. Poritz, individually, and as

Attorney General of the State of New Jersey,* and the Surrogates

of all twenty-one counties in New Jersey as defendants.

Alexander brought the action individually, on behalf of all mothers

whose fetuses had allegedly been injured in utero by the tortious

acts of a third party and who were later stillborn, on behalf of her

own stillborn child, and on behalf of all stillborn children who were

similarly situated. The complaint alleged violations of the Equal

Protection and Due Process clauses of the Fourteenth Amendment.

Essentially, the complaint alleged the New Jersey Wrongful Death

Act (as interpreted by the New Jersey Supreme Court in Giardina

v. Bennett, 545 A.2d 139 (N.J. 1988), and the New Jersey

3in the state court action, Karen Alexander seeks

recovery in her individual capacity for the emotional distress

and mental suffering which resulted from the stillbirth

allegediy caused by the medical malpractice of the

defendants.

‘See n.1, supra.

A-6

Survival Action Act are unconstitutional bacause they deny

recovery on behalf of stillborn fetuses. Plaintiffs requested, inter

alia, that these statutes be declared unconstitutional, an order

directing the surrogate to issue letters of administration in the

estate of Kaylyn Elissa Alexander to Karen Alexander, and money

damages.

Drazin and Drazin & Warshaw, P.C., individually and on

behalf of all attorneys and law firms (the "Drazin plaintiffs"), raised

the same constitutional challenge to the statutes, and alleged that

their constitutional rights are violated because they are precluded

from bringing wrongful death and survival actions on behalf of

potential clients whose children were stillborn because of the

tortious acts of third parties.

On December 11, 1995, the Governor and the Attorney

General (the "State defendants") filed a motion to dismiss the

complaint under Fed. R. Civ. P. 12(b)(6). The Surrogates (the

"County defendants") thereafter moved to join in the state

defendants’ 12(b)(6) motion. Plaintiffs then cross-moved for class

certification and for summary judgment.

Subsequently, fifteen of the Surrogates executed Consent

orders of Judgement.® Following argument, the district court

granted the State defendants’ motion to dismiss. Consequently,

plaintiffs’ motions for class certification and for summary judgment

were denied. This appeal followed.°®

SBy those Consent Orders, the fifteen Surrogates

agreed not to file any further submissions opposing the

factual and legal contentions of the plaintiffs and agreed to

be bound by all future interlocutory and final orders of the

district court. (112A-147A).

Plaintiffs’ section 1983 complaint sought money

damages (Count V) and declaratory and injunctive relief

(Counts |, ll, Ill and IV). However, plaintiffs are not

appealing the district court’s dismissal of their complaint as

it relates to their claim for money damages. See Notice of

Appeal (Joint Appendix, at 148).

A-7

ll. STANDARD OF REVIEW

We exercise plenary review over a district court’s order

dismissing a complaint under Fed. R. Civ. P. 12(b)(6). Moore v.

Tartler, 986 F.2d 682, 685 (3d Cir. 1993). We must determine if

plaintiff may be entitled to relief under any reasonable reading of

the pleadings, Holder v. City of Allentown, 987 F.2d 188, 193 (3d

Cir. 1993), assuming the truth of all the factual allegations in the

complaint, D.R. v. Middle Bucks Area Vocational Technical Sch.,

972 F. 2d 1364, 1367 (3d Cir. 1992). A court may dismiss a

complaint only if it is clear that no relief could be granted under

any set of facts that could be proven consistent with the

allegations. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984).’

ill. DISCUSSION

A. THE STATUTORY SCHEME

It is helpful to briefly discuss the two causes of action at

issue in this dipute before proceeding with our analysis.

' WRONGFUL DEATH ACTION.

The fundamental purpose of a wrongful death action is to

compensate survivors for the pecuniary losses they suffer because

of the tortious conduct of others. A/fone v. Sarno, 403 A.2d 9,

12 (N.J. Super. Ct. App. Div. 1979). This cause of action was not

recognized at common law and is purely a creature of statute.

Schmoli v. Creecy, 254 A.2d 525, 527 (N.J. 1969). New

7Our standard of review on an appeal from a denial

of summary judgment is plenary. Wa/dorf v. Shuta, 896

F.2d 723, 728 (3d Cir. 1990), and our review of class

certification determinations is normally limited to whether

the district court abused its discretion. Lusard/ v. Xerox

Corp., 975 F.2d 964, 973 (3d Cir. 1992). However,

because we find that the district court’s dismissal of the

complaint under Fed. R. Civ. P. 12(b)(6) was proper, we

need not address the propriety of its denial of plaintiffs’

motions for summary judgment and for class certification.

A-8

Jersey’s Wrongful Death Act provides, in relevant part, as follows:

When the death of a person is caused by a wrongful

act, negigect or default, such as would, if death had not

ensued, have entitled the person inured to maintain an

action for damages resulting from the injury, the person

who would have been liable in damages for the injury if

death had 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.S.A. 2A:31-1.

An award of damages in a wrongful death action "is not a

matter of punishment for an errant defendant or of providing for

decedent’s next of kin to a greater extent than decedent himself

would have been able, but is rather a replacement for that "which

decedent would likely have provided and no more." Hudgins v.

Serrano, 453 A.2d 218, 224 (N.J. App. Div, 1982). The amount

of recovery is based upon the contributions, reduced to monetary

terms, which the decedent might reasonably have been expected

to make to his or her survivors. A/fone, 402 A.2d at 12. Damages

are awarded for pecuniary loss only, and not for injury to feelings,

mental suffering, or loss of society or companionship. /d.

However, economic dependency is not the sole measure of the

damages. Minor children may recover the pecuniary value of the

loss of care, guidance and advice of a parent during their minority.

Id. \n addition, the wrongful death statute permits the award or

hospital, medical and funeral expenses. N.J.S.A. 2A:31-5.

A wrongful death action is available when a child is killed

by the tortious act of another.

When parents sue for the wrongful death of a child,

damages should not be limited to the well-known elements

of pecuniary loss such as the loss of the value of the child’s

anticipated help with household chores, or the loss of

anticipated direct financial contributions by the child, after

he or she becomes a wage earner.... [I]n addition, the jury

should be allowed, under appropriate circumstances, to

a

A-9

award damages for the parents’ loss of their child’s

companionship as they grow older, when it may be most

needed and valuable, as well as the advice and guidance

that often accompanies it.

Green v. Bittner, 424 A.2dd 210, 211 (N.J. 1980). However,

damages for these additional items are confined to their pecuniary

value, not including the value of the emotional loss. /d.

Damages for the wrongful death of an infant are likewise

recoverable and, “like wrongful-death damages generally, are

limited to economic matters[] [such as] . . . the pecuniary value of

the child’s help with household chores, the pecuniary value of the

child’s anticipated financial contributions, and the pecuniary value

of the child’s companionship . . . as the parents grow older.”

Carey v. Lovett, 622 A.2d 1279, 1291 (N.J. 1993) (citing Green

424 A.2d at 211). However, "(t]he problem in evaluating the

economic value of a newborn’s life is obvious. No one can know

much, if anything, about the infant and his or her future economic

worth. That difficulty, however, should not preclude any award.

Some award is appropriate, even though the inferences, and

estimate of damages, are based on uncertainties." Carey, 622

A.2d at 1291.

The particular aspect of New Jersey’s wrongful death

action that gives rise to the instant controversy arises from the

holding in Giardina v. Bennett, 545 A.2d 139 (N.J. 1988). There,

the New Jersey Supreme Court held that the New Jersey Wrongful

Death Act does not permit recovery for damages attributable to

the wrongful death of a fetus. However, even though the parents

cannot recover for the death of a fetus in such cases, they can

recover damages for their own injuries that result from the tortious

conduct. “[Mledical malpractice causing an infant stillbirth

constitutes a tort against the parents, entailing the direct infliction

of injury, their emotional distress and mental suffering, for which

they are entitled to recover compensatory damages." /d. at 139.

2. SURVIVAL ACTION

At common law, a right to bring an action in trespass was

personal and died with the person. Canino v. New York News,

A-10

Inc. 475 A.2d 528, 529 (N.J. 1984). Accordingly, survival

actions, like wrongful death actions, did not exist. Soden v.

Trenton and Mercer County Trust Co., 127 A. 558, 559 (N.J.

1925). Survival action statutes modify the common law rule and

provide that the personal right of action in trespass survives to the

personal right of action in trespass survives to the personal

representative of the decedent’s estate. /d., at 559.

New Jersey’s Survival Action statute provides as follows:

Executors and administrators may have an action for

any trespass done to the person or property, real or

personal, of their testator or intestate against the

trespasser, and recover their damages as their testator or

intestate would have had if he was living.

in those actions based upon the wrongful act,

neglect, or default of another, where death resulted from

injuries for which the deceased would have had a cause of

action if he had lived, the executor or administrator may

recover all reasonable funeral and burial expenses in

addition to damages accrued during the lifetime of the

deceased.

N.J.S.A. 2A:15-3. A _ survival action “gives executors or

administrators a right of action for tortious injury or damage to the

deceased or his property incurred prior to death.” A/fone, 403

A.2d at 13. The major item of damages in a survival action (aside

from funeral and burial expenses) is recovery for the decedent’s

pain and suffering between the time of injury and the time of

death. However, an award for pain and suffering is appropriate

only for pain and suffering that is conscious. /d. Recovery is also

permitted for “hedonic damages,” i.e., loss of enjoyment of life.

Eyoma v. Falco, 589 A.2d 653, 658 (N.J. Super. Ct., App. Div.

1991).

The court in Giardina did not address rights of recovery on

behalf of stillborn children under New Jersey’s survival action.

However, the district court here found that "it is clear by the

implications of the holding in Giardina and by the language of the

survival action statute itself that the New Jersey Legislature did

A-11

not intend to provide the parents of unborn or stillborn fetuses

with a statutory cause of action for survival." Dist. Ct. Op. at 13.

neither party to this appeal disagrees with that portion of the

district court’s holding, and we will therefore assume that New

Jersey’s survival action, like the wrongful death action, is limited

to situations where the fetus survives until after birth.

B. KAREN ALEXANDER’S CLAIM ON BEHALF OF HER CHILD

AND ALL OTHER SIMILARLY SITUATED STILLBORN

FETUSES.

Ms. Alexander asserts a claim under 42 U.S.C. § 1983 on

behalf of her stillborn child, Kaylyn Elissa, and all stillborn children

and fetuses, alleging that the exclusion of stillborn children and

fetuses from the coverage of New Jersey’s wrongful death and

survival actions violates the United States Constitution. 42 U.S.C.

§1983 provides in relevant part:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any State...

subjects, or causes to be subjected, any citizen of the

United States or other person within the jurisdiction thereof

to the deprivation of any rights, privileges, or immunities

secured by the Constitution and laws, shail be liable to the

party injured in any action at law, suit in equity, or other

proper proceeding for redress.

42 U.S.C. $1983. Section 1983 "is not itself a source of

substantive rights, but a method for vindicating federal rights

elsewhere conferred by those parts of the United States

Constitution and federal statutes that it describes." Baker v.

McCollan, 443 U .S. 137, 144. n.3 (1979).

Ms. Alexander’s claim on behalf of her stillborn child is

grounded in the Equal Protection Clause of the Fourteenth

Amendment, which provides that: “No State shall. . . deny to any

person within its jurisdiction the equal protection of the laws."

A-12

U.S. CONST. amend. XIV, §1.° In essence, Ms. Alexander

argues that her stillborn child was a “person” who is denied the

equal protection of the law because, under New Jersey law,

wrongful death and survival actions can be maintained on behalf

of children who are injured prenatally, are born and then die as a

result of the prenatal injury, whereas, under New Jersey law,

wrongful death and survival actions cannot be maintained on

behalf of stillborn children.

However, Ms. Alexander can only establish a claim on

behalf of her child under the Fourteenth Amendment if her child

(and others similarly situated) fall(s) within the protections afforded

"persons[s]" as that term is used in the Fourteenth Amendment,

and it is clear it does not. The Supreme Court has already decided

that difficult question for us in Roe v. Wade, 410 U.S. 113, 158

(1973). There, the Court expressly held that "the word ‘person,’

as used in the Fourteenth Amendment does not include the

unborn." The Court held that "person" has "application only

postnatally.” /d. at 157. That constitutional principle was more

recently. re-affirmed in Planned Parenthood of Southeastern

Pennsylvania v. Casey, 505 U.S. 833, 846 (1992). There, Justice

Stevens, writing separately from the joint opinion of Justices

O’Connor, Kennedy and Souter, wrote that, as a matter of federal

constitutional law, a fetus is a "developing organism that is not yet

a ‘person’" and "does not have what is sometimes described as a

‘right to life.’" /d. at 913 (Stevens, J., concurring in part and

dissenting in part). This principle "remains a fundamental premise

of our constitutional law governing reproductive autonomy.” /d. at

914. Since the unborn are not persons within the meaning of the

Fourteenth Amendment, no claim alleging an equal protection

violation can be brought on behalf of the stillborn child.®

*Our discussion of the claim brought on behalf of the

stillborn child assumes that Karen Alexander has standing

to assert the claim.

*Because the unborn are not persons within the

meaning of the Fourteenth Amendment, it follows that the

unborn are not encompassed within the meaning of the

term "person" or "citizen" for purposes of 42 U.S.C.

2

*

2

A-13

Of course, as noted above, our inquiry must accept all well

pleaded facts as true and we note that the complaint avers that

the stillborn child was a human being from the moment of

conception.'° However, even if that is established as a matter of

fact, we must look to controlling law to determine what effect, if

any, that fact has upon our analysis. Our inquiry is not a factual

one. Itis a legal one. The question is not whether a stillborn child

is a human being from the moment of conception, but whether

that unborn “human being” is included within the meaning of the

"person" contained in the Fourteenth Amendment. That legal

question was resolved over twenty-four years ago when the

Supreme Court decided Roe. In fact, the Court there specifically

differentiated between the factual inquiry into when life begins,

and the legal issue of the scope of the Fourteenth Amendment.

The Court stated:

We need not resolve the difficult question of when life

§1983. See Reed v. Gardner, 986 F.2d 1122, 1127-28

(7th Cir. 1993).

1m 440 of the complaint it is averred that:

As a matter of fact a child at every age of gestation

from conception to birth is a complete, separate and

irreplaceable human being and the daughter of Karen

F. Alexander and all mothers similarly situated are

actual human beings who have relationships with

their mothers carrying them. This relationship

between these two separate, complete individual

human beings is in actual existence throughout

pregnancy. As a matter of fact, a child can

experience pain beginning at eight weeks after

conception up to the time of actual birth. As a

matter of fact, Karen F. Alexander’s baby daughter

and all children similarly situated from ages eight

weeks after conception experience pain and suffer

during trauma or as a result of injury or the damage

to bodily systems necessary for the continuance of

the life of the child.

A-14

begins. When those trained in the respective disciplines of

medicine, philosophy, and theology are unable to arrive at

any consensus, the judiciary, at this point in the

development of man’s knowledge, is not in a position to

speculate as to the answer.

410 U.S. at 159. Thus, it is immaterial that the compliant pleads

that a stillborn child is a human being from conception.

Plaintiffs’ reliance upon the advances of medical technology

is likewise beside the point. Plaintiffs contend that Roe was based

in part upon limited medical and scientific knowledge and that

technological advances since Roe was decided allow us to study

human development from the molecular stage. In fact, plaintiffs

claim that the Roe Court provided for an evolving jurisprudence to

keep pace with the state of medicine and science when it wrote

"the judiciary, at this point in the development of man’s

knowledge, is not in a position to speculate as to the answer” to

the question of when human life begins. See Appellants’ Brief, at

41-42. However, no advance in technology or science can

authorize us to depart from well established legal precedent, and

we do not believe the Supreme Court intended to grant a license

to do so in Roe.

Similarly, plaintiffs’ reliance on what they believe to be an

essential underpinning of the New Jersey Supreme Court’s

decision in Smith v. Brennan, 157 A.2d 497 (N.J. 1960), does not

make the constitutional claim raised on behalf of the stillborn child

a cognizable one. In Brennan, the New Jersey Supreme Court held

that children who survive a prenatal injury can bring a cause of

action in tort against the person who caused the prenatal injury."'

'\Smith v. Brennan overruled Stemmer v. Kline, 26

A.2d 489 (N.J. 1942), which did not allow a surviving child

a cause of action in tort for prenatal injuries. Stemmer v.

Kline declined to recognize a cause of action for prenatal

injury based, in large part, upon Dietrich v. Inhabitants of

Northampton, 138 Mass. 14, 52, Am.Rep. 242 (Sup. Jud.

Ct. 1884), which was a wrongful death case where the

child was apparently stillborn. Dietrich held that

A-15

The court explained its holding by noting that "[mJedical authorities

have long recognized that a child is in existence from the moment

of conception, and not merely a part of its mother’s body."'? /d.

at 502.

The plaintiffs attempt to leverage this language by arguing

that the New Jersey Supreme Court has recognized as scientific

fact that an unborn child is a human being from the moment of

conception. However, even assuming the court has recognized

Massachusetts’ wrongful death statute was inapplicable to

a fetus, based on its view that a child is part of its mother

before birth and does not have a separate existence or

personality.

l2Perhaps realizing the import of its holding that a

child is in existence from the moment of conception, the

New Jersey Supreme Court qualified its language. The

court wrote:

The semantic argument whether an unborn

child is a "person in being" seems to us to be beside

the point. There is no question that conception sets

in motion biological processes which if undisturbed

will produce what every one will concede to be a

person in being. If in the meanwhile those

processes can be disrupted resulting in harm to the

child when born, it is immaterial whether before

birth the child is considered a person in being. And

regardless of analogies to other areas of law, justice

/ requires that the principle be recognized that a child

has a legal right to begin life with a sound mind and

: body. If the wrongful conduct of another interferes

| with that rights, and it can be established by

competent proof that there is a causal connection

between the wrongful interference and the harm

suffered by the child when born, damages for such

harm should be recoverable by the child.

Smith, 157 A.2d at 503.

A-16

this as fact, it does not follow that the court has also recognized

the unborn child to be a “person” under the Fourteenth

Amendment. Moreover, even if it had, it should be clear that no

such holding could contravene or reverse the contrary holding of

the United States’ Supreme Court. Quite simply, a state cannot

"declare a fetus a person" and thereby add "new persons to the

constitutional population." Ronald Dworkin, Unenumerated Rights:

Whether and How Roe Should Be Overruled, 59 U. CHI. L. REV.

381, 400. In addition, Smith was decided on common law

principles and created a common law remedy for a surviving child

harmed by a prenatal injury. No federal constitutional principles

were implicated in that court’s analysis.

The short answer to plaintiffs’ argument is that the issue is

not whether the unborn are human beings, but whether the unborn

are constitutional persons.'* It is beyond question that medical

and scientific knowledge has advanced significantly since Roe.

However, even with those advances, the Supreme Court has

consistently adhered to Roe’s holding that the unborn are not

person under the Fourteenth Amendment. See Planned Parenthood

of Southeastern Pennsylvania, 505 U.S. at 855-61. Therefore,

plaintiffs’ argument that Roe was based on imperfect science is to

no avail.'*

3The phrase “constitutional person" is Ronald

Dworkin’s. Ronald Dworkin, Unenumerated Rights:

Whether and How Roe Should Be Overruled. 59 U. CHI. L.

REV. 381, 398.

‘interestingly, Justice O’Connor, writing for the

Court in Planned Parenthood v. Casey, clearly

acknowledged the advances in medical knowledge since

Roe. She wrote:

"We have seen how time has overtaken some of

Roe’s factual assumptions: advances in maternal

health care allow for abortions safe to the mother

later in pregnancy than was true in 1973, and

advances in neonatal care have advanced viability to

a point somewhat earlier. But these facts go only to

:

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A-17

Accordingly, the district court properly granted a 12(b)(6)

dismissal of the equal protection claim raised on behalf of the

stillborn child.

C. KAREN ALEXANDER’S CLAIM ON BEHALF OF

HERSELF AND OTHER SIMILARLY SITUATED

MOTHERS

Besides asserting a claim on behalf of_her stillborn child,

Karen Alexander asserts a claim on her own behalf and on behalf

of all mothers whose children were stillborn because of the

tortious conduct of others. She claims that her interest in her

relationship with her unborn child during pregnancy is a

fundamental interest protected by the United States Constitution

and that the challenged statutes violate both the Due Process and

Equal Protection Clauses of the Fourteenth Amendment.

7. THE DUE PROCESS CLAIM.

The Due Process Clause not only requires that the

government follow appropriate procedures when it seeks to

"deprive any person of life, liberty or property,” it also prevents

"certain government actions regardless of the fairness of the

procedures used to implement them.” Daniels v. Williams, 474

U.S. 327, 331 (1986). Thus, the Due Process Clause has a

substantive component which guarantees that “all fundamental

rights comprised within the term liberty are protected by the

Federal Constitution from invasion by the States." Planned

Parenthood of Southeastern Pennsylvania, 505 U.S. at 847

(quoting Whitney v. California, 274 U.S. 357, 373

the scheme of time limits on the realization of

competing interests, and the divergences from the

factual premises of 1973 have no bearing on the

validity of Roe’s central holding, that viability marks

the earliest point at which the State’s interest in

fetal life is constitutionally adequate to justify a

legislative ban on nontherapeutic abortions.

Planned Parenthood, 505 U.S. at 860 (citations omitted).

A-18

(1927)(Brandeis, J., concurring).

Although the “outer limits of the substantive sphere of

liberty which the Fourteenth Amendment protects" have not been

defined, /d., at 848, certain protected liberties fall within the ambit

of protection. Thus, those to whom the Amendment applies have

a right to be free

from bodily restraint but also the right . . . to contract, to

engage in any of the common occupations of life, to

acquire useful knowledge, to marry, establish a home and

bring up children, to worship God according to the dictates

of [their] own conscience[s], and generally to enjoy those

privileges long recognized . . . as essential to the orderly

pursuit of happiness by free men.

Board of Regents. v. Roth, 408 U.S. 564, 572 (1972) (quoting

Meyer v. Nebraska, 262 U.S. 390, 399 (1923)).

In addition, the Constitution "promise[s] . . . that there is a

realm of personal liberty which the government may not enter."

Planned Parenthood of Southeastern Pennsylvania, 505 U.S. at

847. The result is a right of "personal privacy[.]" Roe, 410 U.S.

at 152. The rights included within that zone are deemed

“fundamental” and include “activities relating to marriage",

“procreation”, “contraception”, "family relationships" and "child

rearing and education.” Id. at 152-53. They therefore involve "the

most intimate and personal choices” a person can make in his or

her lifetime. They include "choices central to the liberty protected

by the Fourteenth Amendment." Planned Parenthood of

Southeastern Pennsylvania, 505 U.S. at 851.

“The first step in any substantive due process review is to

determine the standard of review." Sammon v. New Jersey Bd. of

Med. Exam’s, 66 F.3d 639, 643-44 (3d Cir. 1995). Ms.

Alexander argues that we must give these New Jersey statutes

Strict scrutiny because they impact upon a woman’s "relationship"

with an unborn fetus, and that relationship is within this protected

zone of privacy included in the substantive component of the Due

Process Clause.

Se a9 TO SRR Ree D IN wee ee othe

A-19

Where fundamental rights or interests are involved, a state

regulation limiting these fundamental rights can be justified only by

a compelling state interest and legislative enactments must be

narrowly drawn to express only the legitimate state interests at

stake. Roe, 410 U.S. at 154 (citations omitted). Therefore, state

limitations on a fundamental right such as the right of privacy are

permissible only if they survive strict constitutional scrutiny.

Planned Parenthood, 505 U.S. at 929 (Blackmun, J.

dissenting)(citing Griswold v. Connecticut, 381 U.S. 479, 485

(1965)). However, where fundamental rights or interests are not

implicated or infringed, state statutes are reviewed under the

rational basis test. That is "the test traditionally applied in the area

of social or economic legislation." Roe, 410 U.S. at 173

(Rehnquist, J., dissenting)(citing Williamson v. Lee Optical Co.,

348 U.S. 483, 491 (1955)). Under rational basis review, "a statute

withstands a substantive due process challenge if the state

identifies a legitimate state interest that the legislature could

rationally conclude was served by the statute." Sammon, 66 F.3d

at 645.

Ms. Alexander argues that her relationship with her unborn

child during pregnancy is itself a fundamental interest, and that

these statutes should receive strict scrutiny because they impact

upon that relationship. However, we need not now determine

whether a mother’s relationship with her unborn child during

pregnancy is a fundamental interest because the New Jersey

statutes at issue here do not affect Ms. Alexander’s relationship

with her unborn child. A mother’s relationship with her fetus is

exactly the same whether or not she can bring a wrongful death

or survivor action. it is not the relationship that is_affected here,

it is the ability to recover for the loss of that relationship.

Neither the Wrongful Death Act nor the Survival Action Act

interfered with any decision Karen Alexander made or might have

made about her stillborn child. It is impossible for us to imagine

that any such decision would be the least bit influenced by

whether or not a mother could bring a wrongful death or survival

action to recover damages for the loss of a fetus. Ms. Alexander’s

assertion of a constitutionally impermissible interference with a

fundamental interest is grounded in her argument that stillborn

children and fetuses are being denied the protection of New

A-20

Jersey’s tort law. The purpose of those laws, she argues, "is the

deterrence of conduct which injures and kills others, and the

promotion of caution to protect health and life." Appellants’ Brief

at 4. The denial of the tort law’s protection is alleged to be the

resulting infringement upon her fundamental interest in her

relationship with her stillborn child. Appellants’ Brief at 32.

However, that argument misstates the reality of New

Jersey’s tort law system. The wrongful death and survival

Statutes do preclude Ms. Alexander from instituting certain kinds

of law suits on her own behalf, and on behalf of her unborn child.

However, she is not being denied the protection of the state's tort

law. She has a tort remedy and that remedy is a common law

cause of action to recover for emotional distress and any injury to

herself when medical malpractice causes the stillbirth of a baby.

The gravity of such negligence, the foreseeability of

parental suffering and the genuineness of injury and loss

present a compelling case for recognition of the direct injury

to the parents.

. .. We thus conclude that the wrong committed by

a doctor in negligently causing the pre-birth death of an

infant constitutes a tort against the parents.

Giardina, 545 A.2d at 141-42. Thus, contrary to Ms. Alexander's

assertions here, Giardina did not leave pregnant women

defenseless against negligence that results in the death of a fetus.

In fact, that court began its analysis noting "[bly recognizing such

a cause of action [in tort] we protect the interests affected by the

tortious conduct resulting in the death of an infant before birth."

/d. at 139. Those are the same interests that are implicated by

wrongful death and survival actions. /d."®

We do not mean to suggest that the Fourteenth

Amendment requires a state to provide a tort remedy for

prenatal injuries. Indeed, that assertion is endemic in Ms.

Alexander's attempt to fashion a Due Process right from

New Jersey’s purported failure to protect her fetus from the

negligence of health care providers. Rather, we mention

bo eOeR Sm Lode

tt Neg

A-21

Karen Alexander also relies heavily upon Levy v. Louisiana,

391 U.S. 68 (1968), its companion case, G/ona v. American Guar.

& Liab. Ins. Co. 391 U.S. 73 (1968), and Weber v. Aetna Cas. and

Sur. Co., 406 U.S. 164 (1972). However, those cases addressed

the constitutionality of legislative enactments that discriminated

against persons on the basis of having been born out of wedlock.

They did not implicate substantive due process. Instead, they

were equal protection challenges to statutory classifications. Levy

invalidated the provisions of a state statute that excluded

illegitimate children from the class of children entitled to recover

for a parent's death under Louisiana’s wrongful death statute and

Giona involved the same statute’s exclusion of a mother from

recovering for the wrongful death of her illegitimate son. Weber

invalidated the provisions of Louisiana’s workman’s compensation

statute which excluded unacknowledged illegitimate children from

recovering for the death of their wage-earner father.

In deciding Levy, the Supreme Court recognized that the

illegitimate children’s right to recover "involve[s] the intimate,

familial relationship between a child and his own mother." Levy,

391 U.S. at 71. That recognition informed the decisions in G/ona

and Weber. However, the interest at issue in each of those cases

was the classification of the child’s legitimacy, "and the inability

of both parent and child to reverse the burdens imposed by

illegitimacy." Laurence H. Tribe, AMERICAN CONSTITUTION LAW

§16-24, at 1554 (2D ED. 1988). The cases were not decided

upon the basis of the family relationship as Ms. Alexander argues.

In Parham v. Hughes, the Court explained the basis of Levy and its

progeny.

The basis rationale of these decisions is that it is unjust and

ineffective for society to express its condemnation of

procreation outside the marital relationship by punishing the

illegitimate child who is in no way responsible for his

situation and is unable to change it.

the aspects of tort law that serve to protect her own bodily

integrity, and the health of the fetus, to illustrate the

weakness in her argument. See Parham v. Hughes, 441

U.S. 347 (1979) infra.

A-22

441 U.S. at 352."°

In Parham, the Court upheld a Georgia statute that

restricted the class of persons who were entitled to bring wrongful

death actions to recover for the death of an illegitimate child.

Under that statute, only the mother, and those fathers who had

legitimated the child in the manner prescribed by statute, could file

suit. The plaintiff was the father of an illegitimate child whom he

had not legitimated. The father had, however, signed the child’s

birth certificate and had contributed to the child’s support. When

the child and its mother were killed in an auto accident, the father

brought a wrongful death action in state court. The defendant

moved for summary judgment on the grounds that the applicable

Statute precluded the suit because plaintiff had not legitimated the

child, but the trial court denied the motion on the grounds that the

statute violated both the Equal Protection and Due Process

Clauses. On appeal, the Georgia Supreme Court reversed, and the

Supreme Court thereafter accepted the appeal from that decision

to decide “whether [the] statutory scheme violates the Equal

Protection or Due Process Clause of the Fourteenth Amendment by

denying . . . the right to sue for the child’s wrongful death." /d. at

349. The Court refused to apply the heightened scrutiny it had

applied in Weber, and upheld the statute using the "rational

means" test, and the concomitant presumption of validity. The

Court reasoned that the classification established under the statute

was @ rational means of limiting tort claims, as well as false claims

of paternity. The Court focused primarily upon the classification,

and did not base its analysis upon whether the statute deprived

plaintiff of a fundamental right noting - in passing - “[iJt can not

seriously be argued that a statutory entitlement to sue for the

wrongful death of another is itself a ‘fundamental’ or constitutional

right." /d. at 358. Ms. Alexander’s Equal Protection and Due

Process claims must fail for the same reason. The statutes do not

"Ms. Alexander criticizes the district court for

relying upon Roe while not even citing Levy. See

Appellant’s Br. at 40. However, it is easy to understand

why the district court did not cite Levy, Glona or Weber.

Those cases are simply not relevant to the issues raised

here.

A-23

interfere with her relationship with her fetus as she claims, nor do

they interfere with a fundamental right.

Parents do, of course, have a fundamental liberty interest

in the care and custody of their children. Santosky v. Kramer, 455

U.S. 745, 753 (1982); see also Lehr v. Robertson, 463 U.S. 248,

258 (1983)("[T]he relationship of love and duty in a recognized

family unit is an interest in liberty entitled to constitutional

protection.”). Moreover, there is an intense emotional bond

consisting of the great joy and hope that naturally develops

between a mother and the child she is carrying in her womb.

indeed, it is the awareness of the reality and intensity of the

mother-fetal bond which apparently led the New Jersey Supreme

Court to create a parental right of recovery for the emotional

distress suffered by the parents when medical malpractice causes

a stillbirth. Giardina, 3545 A.2d at 140.

Karen Alexander’s actual complaint is with the tort remedy

that New Jersey has provided. She would prefer to be able to

institute a wrongful death and survival action, either in lieu of, or

in addition to, the tort remedy first recognized in Giardina v.

Bennett.'’ Since there are rather severe limitations on the

emotional distress that one can recover for under Giardina, the

concern is that the mother of a stillborn will not be able to show

the degree of severity necessary to recover, in spite of the fact

that negligence and causation are shown. However, the fact that

a mother may not be able to prove the degree of emotional distress

necessary to recover in a given case does not mean that mothers

whose children are stillborn because of the tortious conduct of

others are denied the protection of New Jersey’s tort law.

'7To prove a claim for emotional distress caused by

the tortiously-caused death of a fetus, “the mother must

prove that she suffered emotional distress so severe that it

resulted in physical manifestations or that it destroyed her

basic emotional security." Carey v. Lovett,622A.2d 1279

(N.J. 1993). “the worry and stress . . . [attendant] upon

the birth of every child will not suffice. Nor will the upset

that every parent feels when something goes wrong in the

delivery room.” /d.

A-24

Since New Jersey has not infringed upon any relationship

Ms. Alexander had with her stillborn infant, this substantive due

process claim does not merit strict scrutiny review. Accordingly,

we inquire only to see if it is a rational means of achieving a

legitimate state interest. When subjecting a state statute to

rational basis review, "a court. . . is not entitled to second guess

the legislature on the factual assumptions or policy considerations

underlying the state." Sammon, 66 F.3d at 645. The only inquiry

permitted "is whether the legislature rationally might have believed

that the predicted reaction would occur or that the desired end

would be served.” /d. It is up to the person challenging the

statute to “convince the court that the legislative facts on which

the classification [of the statute] is apparently based could not

reasonably be conceived as true by the governmental

decisionmaker." /d. at 645-46 (quoting Vance v. Bradley, 440

U.S. 93, 111 (1979)). A statute “withstands a substantive due

process challenge if the state identifies a legitimate state interest

that the legislature rationally could conclude was served by the

statute.” /d. at 645.

One cannot seriously argue that New Jersey has no interest

in defining who is entitled to recover for injuries and in setting

limits on tort recovery for wrongful death. The 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. Although a state could permit

recovery for an injury to that which would later develop into a

fetus, it is certainly not required to do so under the Due Process or

Equal Protection Clauses. Limiting such actions in the manner that

New Jersey has chosen is both reasonable and practical. Ms.

Alexander argues that including stillborn children and fetuses

within the coverage of wrongful death and survival actions would

not harm New Jersey’s legitimate interest in setting limits on tort

NN _EESS hh

A-25

impartially," New York Transit Authority v. Beazer, 440 U.S. 568,

587 (1979), and “directs that ‘all Persons similarly circumstanced

shall be treated alike.’" Plyler y. Doe, 457 US. 202, 216

415 (1920)). Therefore, “[gleneral rules that apply evenhandedly

to all persons within the jurisdiction unquestionably comply” with

the Equal Protection Clause. Beazer, 440 US. at 587. Only when

However, the clause does not require that things which are

different in fact be treated in law as thought they are the same.

Plyler, 457 U.S. at 216. "The initial discretion to determine what

some groups of citizens differently than others." McGowan Vv.

Maryland, 366 U.S. 420, 425 (1961). Therefore, "a Statutory

Classification that neither proceeds along suspect lines nor

"’ Federal Communications Comm. ». Beach involved

Amendment of 8 provision of the Cable Communications

Policy Act by operators of Satellite master antenna and

television facilities. Because the Fifth Amendment imposes

as

A-26

—_—

aa

Mrs. Alexander argues that New Jersey’s exclusion of the

stillborn and fetuses from coverage under the wrongful death and

survival acts creates two distinct classes.'* While that may be

true insofar as it states the similarity between the respective

tragedies, it is not true insofar as it attempts to foster a principle

of Equal Protection jurisprudence.

Nis Alexander’s Equal Protection claim parallels her Due

Process claim in that she argues that New Jersey’s classification

affects fundamental rights, i.e., a mother’s interest in her

relationship with her child. However, as discussed earlier, Karen

Alexander has not demonstrated how these statutes affect her

relationship with her unborn child. Therefore, her own Equal

Protection challenge is also entitled only to "rational basis”

scrutiny. The rational basis standard is a “relatively relaxed

standard reflecting the Court’s awareness that the drawing of lines

that create distinctions is peculiarly a legislative task and an

on the federal government the same standard required of

state legislation by the Equal Protection Clause of the

Fourteenth Amendment. Schweiker v. Wilson, 450 U.S.

221, 226 n.6 (1981), the Due Process Clause of the Fifth

Amendment has an “implied equal protection guarantee.”

Beach, 508 U.S. at 312.

Actually, Karen Alexander posits four classes. The

first class is the largest class and is composed of all

mothers who are pregnant. The second class is contained

in the first class and is composed of pregnant mothers

whose children sustain a prenatal injury. The third class is

a subclass of the second class and consists of pregnant

mothers whose children sustain a prenatal injury resulting

in the death of a child after a live birth. The fourth class is

also a subclass of the second class and is the Karen

Alexander class composed of all pregnant mothers whose

children sustain a prenatal injury and are stillborn. See

Appellants’ Brief, at 16-17. However, we do not think that

delineating four classes is necessary for the purposes of

this equal protection argument. It is the third and fourth

classes which are significant here.

5

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A-27

unavoidable one." Massachusetts Bd. of Retirement v. Murgia,

427 U.S. 307, 314 (1976). Although New Jersey could have

chosen to afford all mothers whose fetuses are injured a cause of

action under the challenged statutes, the wisdom of not doing so

is not before us. It is the legality of not doing so that we must

decide, and we do not think the distinction that the state has

drawn is illegal.

[R]ational basis review in equal protection analysis

is not a license for Courts to judge the wisdom, fairness, or

logic of legislative choices. Nor does it authorize the

judiciary [to] sit as a superlegisiature to judge the wisdom

or desirability of legislative policy determinations made in

areas that affect neither fundamental! rights nor proceed

along suspect lines. For these reasons, 4 classification

neither involving fundamental rights nor proceeding along

suspect lines is accorded a strong presumption of validity.

Such a classification cannot run afoul of the Equal

Protection Clause if there is a rational relationship between

the disparity of treatment and some legitimate

governmental purpose. Further, a legislature that creates

these categories need not actually articulate at any time the

purpose or rationale supporting its classification. Instead,

a classification must be upheld against equal protection

challenge if there is any reasonably conceivable state of

facts that could provide a rational basis for the

classification ....

A statute is presumed constitutional . . . and the

burden is on the one attacking the legislative arrangement

to negative every conceivable basis which might support it,

whether or not the basis has a foundation in the record.

Finally, courts are compelled under rational-basis review to

accept a legislature’s generalizations even when there is an

imperfect fit between means and ends. A classification

does not fail rational-basis review because it is not made

with mathematical nicety or because in practice it results in

some inequality. The problems of government are practical

ones and may justify, if they do not require, rough

accommodations - illogical, it may be, and unscientific.

i

A-28

Heller v. Doe, 509 U.S. 312, 319-21 (1993). The “standard of

rationality . . . must find some footing in the realities of the subject

addressed by the legislation." /d. at 321. Only when the

classification “rests on grounds wholly irrelevant to the

achievement of the State’s objectives” does a statute fail rational

basis review. /d. at 323.

Apparently, there is no legislative history to assist us in

determining if the challenged statues are rationally related to a

legitimate state interest. However, the assumed legislative bases

for the Wrongful Death Act were extensively discussed in Giardina

v. Bennett. There, the New Jersey Supreme Court analyzed that

Statute and concluded that the legislature defined the wrongful

death action with the intent of limiting it to the class of people

considered persons by the common law. As noted earlier, the New

Jersey legislature was doing nothing more than setting limits on

tort recovery in those cases when a person is killed by the tortious

conduct of another. Accordingly, we find no violation of the Equal

Protection Clause.

D. THE CLAIM OF THE DRAZIN PLAINTIFFS.

As noted above, Ms. Alexander’s attorney and his law firm

(the Drazin plaintiffs) also challenge these statutes. They allege a

constitutional violation of their rights because they are precluded

form bringing wrongful death and survival actions on behalf of

Karen Alexander and other potential clients whose children were

stillborn because of the wrongful acts of third parties. We are

aware no constitutional provision that creates a right in attorneys

to bring lawsuits under the circumstances involved here.

Moreover, the district court quite properly concluded that Ms.

Alexander is the party best suited to challenge these statutes and

held that the Drazin plaintiffs lack standing. See Amato v. Wilentz,

952 F.2d 752 (3d cir. 1991).

In Wilentz, we noted that an inquiry into standing also

encompasses prudential considerations.

Where a plaintiff asserting third party standing has suffered

concrete, redressable injury (that is, the plaintiff has Article

lll standing), federal courts are to examine at least three

A-29

additional factual elements before allowing the suit to

proceed. First, the court must examine the relationship

between the plaintiff and the third party whose rights are

asserted; second, the court must consider the ability of the

third party to advance its own rights - whether some

obstacle impedes the rightholder’s own suit; and third, the

court must inquire into the impact on third party interest -

whether the plaintiff and the third party have consistent

interests.

95.2d at 749 (citations omitted). We added that a Court may

consider other "factors [that] may also be relevant to the ultimate

prudential consideration." Id. at 750. The nature of the claim

asserted by the Drazin plaintiffs would fall woefully short of these

considerations even if it comported with the more formal “case

and controversy" components or Article Ill standing. Indeed,

whatever loss the Drazin plaintiffs may assert here is reduced to

such insignificance (if not absurdity) by Ms. Alexander’s tragic loss

that we can not help but wonder how the Drazin plaintiffs can

seriously challenge the district court’s ruling as to their lack of

standing. Moreover, since we conclude that there is no

constitutional violation here, the Drazin plaintiffs’ marginal claim

fails in any event.

IV. CONCLUSION

in concluding, we wish to stress that we do not intend

minimize the immensity of Ms. Alexander’s tragic loss. Any parent

would appreciate that it is of monumental proportion. However,

our task is to apply those principles that control and guide legal

analysis and thereby determine if the district court erred in

dismissing the suit that was brought under section 1983. Though

we understand how a parent would conclude that the interests at

stake here are fundamental, that is not the test we must apply.

"fundamental interest" in constitutional adjudication are not

equivalent to general interests of “particular human or societal

significance." Price v. Cohen, 715 F.2d 87, 93 (3d Circ.

1983)(citing San Antonio Sch. Dist. v. Rodriguez, 411 U.S. 1, 33

(1973). Rather, fundamental interests are those which “have their

source, explicitly or implicitly, in the Constitution.” Id. (citing

Plyler, 457 U.S. at 217 n.15 (1982).

VX

A-30

For the reasons set forth above we hold that Ms. Alexander

has failed to establish that New Jersey’s limitation on wrongful

death and survival actions is unconstitutional, and we therefore

affirm the judgment of the district court.

A-31

WRONGFUL DEATH STATUTES

N.J.S.A. 2A:31-1 to 2A:31-6

N.J.S.A. 2A:31-1 When action lies

When the death of a person is caused by a wrongful act,

neglect or default, such as wound, if death had not ensued, have

entitled the person injured to maintain an action for damages

resulting from the injury, the person who would have been liable

in damages for the injury if death had 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.S.A. 2A:31-2 Persons entitled to sue or make claim

Every action commenced under this chapter shall be

brought in the name of an administrator ad prosequendum of the

decedent for whose death damages are sought, except where

decedent dies testate and his will probated, in which event the

executor named in the will and qualifying, or the administrator with

the will annexed, as the case may be, shall bring the action.

N.J.S.A. 2A:31-3 Limitation of actions

Every action brought under this chapter shall be

commenced within two years after the death of the decedent, and

not thereafter.

N.J.S.A. 2A:31-4 Persons entitled to amount recovered

The amount recovered in proceedings under this chapter

shall be for the exclusive benefit of the persons entitled to take

any intestate personal property of the decedent, and in the

proportions in which they are entitled were dependent on the

decedent at his death, they shall take the same as though they

were sole persons so entitled, in such proportions, as shall be

determined by the court without a jury, and as will result in a fair

and equitable apportionment of the amount recovered, among

ee

A-32

them, taking into account in such determination, but limitec

necessarily thereby, the age of the dependents, their physical and

mental condition, the necessity or desirability of providing them

with educational facilities, their financial condition and the

availability to them of other means of support, present and future,

and any other relevant factors which will contribute to a fair and

equitable apportionment of the amount recovered.

N.J.S.A. 2A:31-5 Assessment of damages by jury

In every action brought under the provisions of this chapter

the jury may give such damages as they shall deem fair and just

with reference to the pecuniary injuries resulting from such death,

together with the hospital, medical and funeral expenses incurred

for the deceased, to the persons entitled to any intestate personal

property of the decedent.

N.J.S.A. 2A:31-6 To whom amount recovered paid; release or

cancellation of judgment

When an action is commenced by an administrator ad

prosequendum under this chapter, no payment in settlement

thereof or in satisfaction of a judgment rendered therein shall be

made to him, but such payment shall be made only to the duly

appointed general administrator of the estate of the decedent, who

has filed a bond or supplemental bond adequate to protect the

persons entitled to receive the amount so paid.

No release or cancellation of a judgment, whether by

warrant or otherwise, by an administrator ad prosequendum or by

his attorney of record or attorney in fact shall release the person

making payment from lability to the persons entitled to any

intestate personal property of the decedent, shall operate as a valid

cancellation of the judgment or be an authority to the clerk of any

court to cancel the judgment of record.

SURVIVAL ACTION

N.J.S.A. 2A:15-3

N.J.S.A. 2A:15-3 Actions which survive; torts to decedent; funeral

and burial expenses

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Executors and administrators may have an action for any

trespass done to the person or property, real or personal, of their

testator or intestate against the trespasser, and recover their

damages as their testator or intestate would have had if he was

living.

In those actions based upon the wrongful act, neglect, or

default of another, where death resulted from injuries for which the

deceased would have had a cause of action if he had lived, the

executor or administrator may recover all reasonable funeral and

burial expenses in addition to damages accrued during the lifetime

of the deceased.

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U.S. Constitution

FOURTEENTH AMENDMENT

SECTION 1. All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are citizens of the

United States and the State wherein they reside. No State shall

make or enforce any law which shall abridge the privileges or

immunities of citizens of the United States; nor shall any State

deprive any person of life, liberty or property, without due process

of law; nor deny to any person within its jurisdiction the equal

protection of the laws.

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NOT FOR PUBLICATION FILED

May 15, 1995

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY At 8:30 M

WILLIAM T. WALSH

Clerk

KAREN F. ALEXANDER, et al, :

: CIVIL ACTION NO: 94-5229

Plaintiffs, : (MLP)

: MEMORANDUM AND ORDER

Vv. ; ENTERED ON THE

: DOCKET ON 5-18-97

CHRISTINE TODD WHITMAN, : WILLIAM T. WALSH,

et al, ; CLERK

Defendants. : BY: _/s/ LAK

(Deputy Clerk)

PAR istri

This matter is before the Court on motion by state

defendants Whitman and Poritz to dismiss, on motions by the

County Surrogate defendants to join in the state defendants’

motion to dismiss, and on motions by plaintiffs for class

certification and for summary judgment. A hearing on these

motions was held before this Court on March 6, 1995.

Subsequently, plaintiffs filed a motion for leave to file a

supplemental brief which is also presently before the Court.’ For

\Plaintiffs seek leave to file a supplemental brief

based on the perceived need to clarity the issues

concerning the relevance of “viability” to this case and the

way in which certain Supreme Court cases should be

reconciled by this Court. Defendants oppose this motion.

Initially, the Court notes that it afforded plaintiffs

ample time and leeway to argue.and clarify its points at the

A-36

the following reasons, the motion to dismiss is granted, the

motions to join in the motion to dismiss are granted, the motion for

class certification is dismissed, the motion for summary judgment

is denied and the motion for leave to file a supplemental brief is

denied.

ACKGROUND

On July 15, 1992, plaintiff Karen F. Alexander was

approximately eight and one-half months pregnant when the fetus

she was carrying was delivered "stillborn." It is alleged that

plaintiff Alexander’s unborn baby was fatally injured while still in

the womb due to the negligence of doctors, nurses and other

health care personnel at Jersey Shore Medical Center.

On July 13, 1994, plaintiff Alexander filed a lawsuit in the

Superior Court of New Jersey, Monmouth County, seeking

damages as the Administratrix Ad Prosequendum of the Estate of

Kaylyn Alexander under the New Jersey Wrongful Death Act, N.J.

Stat. Ann. 2A:31-1, and as the General Administratrix of the

Estate of Kaylyn Alexander under the New Jersey survival action

statute, N.J. Stat. Ann. 2A:15-2. Plaintiff Alexander requested

that the Surrogate of Monmouth County in the State of New

Jersey issue Letters of Administration Ad Prosequendum and

general Letters of Administration for the Estate of Kaylyn

Alexander. This request was denied by letter dated October 18,

1994 on the basis that the baby identified as Kaylyn Alexander

was "stillborn." This state suit is currently pending.

On October 24, 1994, plaintiffs Karen F. Alexander, Dennis

hearing on these motions. Further, the Court notes that no

issues arose during the hearing which had not previously

been briefed by the parties. Thus, the Court concludes that

the issues before the Court have been sufficiently briefed

and argued by the parties and there is no need to clarify the

issues which plaintiffs seek to clarify by way of a

supplemental brief. Accordingly, the motion for leave to file

a supplemental brief shall be denied.

A-37

Drazin, Esq., and the law firm of Drazin and Warshaw, F<.”

instituted this suit against Christine Todd Whitman, the Governor

of the State of New Jersey, Deborah T. Portiz, the Attorney

General for the State of New Jersey, and the Surrogate of each

and every county in the State of New Jersey. Plaintiff correctly

asserts in this federal suit that her state court cia ‘vill be

dismissed since the language of the Wrongful Death Act and the

survival action statute, as written by the New Jersey Legislature

and as construed by the New Jersey Supreme Court, do not

provide a cause of action for the death of a fetus and since the

Superior Court of New Jersey is duty bound to follow the law as

it currently exists in New Jersey. It is here, in this federal suit,

that plaintiff alleges these statutes, as written and as construed,

are unconstitutional on the basis that they violate plaintiff's rights

of equal protection and due process as secured by the Fourteenth

Plaintiff Karen F. Alexander brings this action on behalf of

herself as the Administratrix Ad Prosequendum and the General

Administratrix of the Estate of Kaylyn Alexander and also seeks to

assert the action on behalf of the proposed class of all other

mothers similarly situated whose stillborn fetuses have been

injured in utero due to the tortious acts of third parties.

Further, Dennis Drazin, an attorney licensed to practice in

New Jersey, and the New Jersey law firm of Drazin and Warshaw,

P.C., (the "Drazin plaintiffs") are named as plaintiffs in this action

on the basis that their constitutional rights have been violated in

that they are precluded from bringing wrongful death and survival

actions of behalf of potential clients whose stillborn fetuses have

been injured in utero due to the tortious acts of third parties. The

Drazin plaintiffs assert this action on behalf of themselves and the

proposed class of all other attorneys and law firms similarly

situated. As will be discussed infra discussion part |, neither

Dennis Drazin, Esq. nor the law firm of Drazin and Warshaw, P.C.

have standing to bring this suit. As such, all further reference to

plaintiff in this Memorandum is a reference to plaintiff Karen F.

Alexander unless otherwise indicated.

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Amendment to the United States Constitution.* Plaintiff seeks a

constitutional declaration which would expand the available causes

of action for damages in New Jersey against alleged tortfeasors in

cases involving the in utero death of a fetus.‘

| 1ION

Defendants’ move to dismiss the complaint pursuant to

Federal Rule of Civil Procedure 12(b)(6). A court may dismiss a

complaint pursuant to Rule 12)(b)(6) “only if, accepting all well

pleaded facts as true, the plaintiff is not entitled to relief.”

Bartholomew v. Fischl, 782 F.2d 1148, 1152 (3d Cir. 1986).

Additionally, all reasonable inferences from plaintiff's allegations

"must be accepted as true and viewed in the light most favorable

to the non-moving party.” Sturm v. Clark, 835 F.2d 1009, 1011

(3d Cir. 1987). This Court may not dismiss a complaint unless

plaintiff can prove no set of facts which would entitle him to relief.

Conley v. Gibson, 355 U.S. 41, 45-46 (1957). “The issue is not

°To the extent that plaintiff alleges a violation of the unborn

child’s Fourteenth Amendment rights, the Supreme Court has held

that "the word ‘person" as used in the Fourteenth Amendment,

does not include the unborn.” Roe v. Wade, 410 U.S. 113, 158

(1973).

‘The New Jersey Supreme Court holds that the bereaved

parents of a fetus which dies before birth have available a common

law cause of action in tort for compensatory damages based on

their emotional distress and mental anguish due to the negligent

conduct of a third party who is alleged to have proximately caused

the stillbirth of a baby. See Giardina v. Bennett, 111 N.J. 412,

545 A.2d 139 (1988). However, the New Jersey Supreme Court

has determined that the statutorily created causes of action for

wrongful death and for survival do not provide a further remedy

with respect to the death of a fetus. Id.

*The motion to dismiss was filed by defendants Whitman and

Poritz. Each of the County Surrogate defendants has filed a

motion to join in the motion to dismiss. The Court grants the

motions to join the motion to dismiss.

EEE

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whether a plaintiff will ultimately prevail but whether the claimant

is entitled to offer evidence to support the claims." Scheuer v.

Rhodes, 416 U.S. 232, 236 (1974).

a ndin

Defendants move to dismiss Counts Three and Four, which

are counts brought by plaintiffs Dennis Drazin, an attorney licensed

to practice in New Jersey, and the New Jersey law firm of Drazin

and Warshaw, P.C. (the "Drazin plaintiffs"), for the reason that

these plaintiffs iack standing to assert the claims contained in

these counts. The Drazin plaintiffs allege that their constitutional

rights have been violated in that they are precluded from bringing

wrongful death and survival actions on behalf of potential clients

whose stillborn fetuses have been injured in utero due to the

tortious acts of third parties. The Drazin plaintiffs bring this action

on behalf of themselves and the proposed class of all other

attorneys and law firms similarly situated.

A plaintiff must have standing to sue on the claim brought

in order to present a justiciable case or controversy to the Court.

Valley Force Christian College v. Americans United for Separation

of Church and State, Inc., 454 U.S. 464, 471-72 (1982). To have

standing, a plaintiff must be entitled to have the court decide the

case and must have personally suffered some actual or threatened

injury as a result of a defendant’s allegedly unlawful conduct.

Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 99-100

(1979); see Gariano v. CSC Ins. Co., 845 F. Supp. 1074, 1077

(D.N.J. 1994). The standing inquiry involves both constitutional

limitations on federal-court jurisdiction and prudential limitations on

its exercise. Warth v. Seldin, 422 U.S. 490, 498 (1975).

As stated by the Supreme Court in Warth v. Seidin:

in its constitutional dimension, standing imports

justiciability: whether the plaintiff has made out a ‘case or

controversy’ between himself and the defendant within the

meaning of Art. Ill. This is the threshold question in every

federal case, determining the power of the court to

entertain the suit. As an aspect of justiciability, the

standing question is whether the plaintiff has alleged such

A-40

a personal stake in the outcome of the controversy as to

warrant his invocation of federal-court jurisdiction and to

justify exercise of the court’s remedial powers on his

behalf. The Art. Ill judicial power exists only to redress or

otherwise to protect against injury to the complaining party,

even though the court’s judgment may benefit others

collaterally. A federal court’s jurisdiction therefore can be

invoked only when the plaintiff himself has suffered ‘some

threatened or actual injury resulting from the putatively

illegal action.’

Id. at 498-99 (citations omitted).

The Supreme Court has repeatedly held that generally, in

order to have standing, a litigant must assert his own legal rights

and interests, and cannot rest his claim to relief on the legal rights

or interests of third parties. See Warth v. Seldin, 442 U.S. at 499;

Tileston v. Uliman, 381 U.S. 44, 46 (1943); United States v

Raines, 362 U.S. 17, 22 (1960); Barrows v. Jackson, 346 U. S.

249, 255-56 (1953); Gladstone, Realtors v. Village of Bellwood,

441 U.S. 91, 100 (1979). Even though a party might suffer a

direct substantial injury from the application of a statute, unless

that party is within the class whose constitutional rights are

allegedly infringed by the statute, that party does not have

standing to challenge the constitutionality of the statute. Barrows

v. Jackson, 346 U.S. at 256. The requirement that a plaintiff

assert his own legal rights in a case and not those of third parties

derives from "prudential" principles established by the judiciary "to

limit access to the federal courts to those litigants best suited to

assert a particular claim.” | ne Realtors v. Vill f

Bellwood, 441 U.S. at 99; see Gariano v. CSC Ins. Co, 845 F.

Supp. at 1077 n.5.

The Drazin plaintiffs rely on Singleton v. Wulff, 428 U.S.

106 (1976) as supportive of their contention that they have

standing here. However, the facts presented to the Court in

Singleton are materially distinct from the facts presented to this

Court in the instant case.

In Singleton v. Wulff, the Supreme Court permitted two

physicians to assert a constitutional challenge to a state statute

A-41

excluding abortions not "medically indicated" from the purposes

for which medicaid benefits are available to needy persons. The

physicians were the only plaintiffs in Singleton and the action was

not asserted by any woman or women who had been denied

medicaid funding for an abortion. In holding that the physicians

had standing to assert the constitutional challenge, the Court

specifically looked to the fact that there were obstacles hampering

the ability of a woman to assert that she has a constitutional right

to medicaid benefits for an abortion. In addressing this fact, the

Court noted:

If there is some genuine obstacle to such assertion, [] the

third party’s absence from court loses its tendency to

suggest that his rights is not truly at stake, or truly

important to him, and the party who is in court becomes by

default the right’s best available proponent.

Id. at 115-116.

Here, this action is premised on the assertion that the

limitations of the New Jersey wrongful death and survival action

statutes unconstitutionally impinge upon plaintiff Karen F.

Alexander’s right to recover damages against persons whose

allegedly tortious actions caused the death of the fetus she was

carrying. Clearly, it is the legal rights and interests of plaintiff

Karen F. Alexander which are at issue in this suit. Unlike the

Singleton case where the action was not brought by any woman

or women who had been denied medicaid funding for an abortion,

Karen F. Alexander is a plaintiff here and undeniably she is the

litigant best suited to bring this suit,° not the Drazin plaintiffs,

6Plaintiff Karen Alexander presents a justiciable claim here.

Plaintiff has asserted causes of action under the statutes in state

court and has attempted to obtain the necessary Letters of

Administration Ad Prosequendum and general Letters of

Administration. Under the existing state of the law, a cause of

action under these statutes based on the wrongful death of a fetus

is not recognized and plaintiff’s causes of action asserted in the

state court will not be recognized and will be dismissed. Thus,

plaintiff's challenge to the constitutional validity of theses statutes

A-42

who stand to benefit only collaterally from a declaration by the

Court here that the statutes are unconstitutional. Thus, since the

Drazin plaintiffs’ claim for relief here in necessarily based on the

alleged violation of the constitutional rights of plaintiff Alexander

and the proposed class of all other mothers similarly situated, it is

clear to the Court that neither Dennis Drazin, Esq. nor the law firm

of Drazin and Warshaw, P.C. have standing to bring this suit.

Accordingly, insofar as defendants move to dismiss the compliant

based on the Drazin plaintiffs’ lack of standing, the motion shall be

granted.

il. nstitutional Challenge

Here, the Court is presented with a constitutional challenge

to the New Jersey Wrongful Death Act, N.J. Stat. Ann. 2A: 31-1,

and the New Jersey survival action statute, N.J. Stat. Ann. 2A:15-

a The New Jersey Wrongful Death Act provides:

When 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 injured to maintain an action for

damages resulting from the injury, the person who would

have been liable in damages for the injury if death had 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.

presents a substantial controversy between parties having adverse

legal interest. Plaintiff has personally suffered some actual or

threatened injury as a result of the allegedly unconstitutional denial

of her purported legal right to bring a cause of action under the

statutes. See Railway Mail Ass'n v. rsi, 326 U.S. 88, 93

(1945); Florida Lime and Avocado Growers, Inc. v. Jacobsen, 362

U.S. 73, 85086 (1960); Baker v. Carr, 369 U.S. 186 (1962).

A-43

The New Jersey survival action statute provides:

Executors and administrators may have an action for any

trespass done to the person or property, real or personal, of

their testator or intestate against the trespasser, and

recover their damages as their testator or intestate would

have had if he was living. :

In those actions based upon the wrongful act, neglect, or

default of another, where death resulted from injuries for

which the deceased would have had a cause of action if he

had lived, the executor or administrator may recover all

reasonable funeral and burial expenses in addition to

damages accrued during the lifetime of the deceased.

N.J. Stat. Ann. 2A:15-3.

it is a well-settled principle of constitutional law that the

determination of the meaning and constitutionality of state

statutes is most appropriately the function of the highest state

court. Plymouth Coal. Co. v. Pennsylvania, 232 U.S. 531, 546

(1914). The New Jersey Supreme Court, Giardina v. Bennett, 111

N.J. 412, 545 A.2d 139 (1988), was presented with the issue of

whether "[parents] have a statutory cause of action for the

recovery under the Wrongful Death Act attributable to their baby’s

stillbirth." Id. at 420. The court considered and analyzed at length

the language, legislative history and treatment of the New Jersey

Wrongful Death Act, N.J. Stat. Ann. 2A:31-1, and interpreted the

use of the word "person," as set forth in the language of the Act,

as set forth in the language of the Act, as not having been

intended by the Legislature to encompass or include unborn or

stillborn fetuses. Id. at 420-28. The Giardina court held that the

Wrongful Death Act does not provide the parents of a stillborn

fetus with a cause of action under this Act. Id. at 429.’ In its

discussion of the issue, the Giardina court recognized that permits

7See also Eqbert v. Wenz!l, 199 Neb. 573, 260 N.W. 2d 480,

482 (1977) (no intention by legislature to create an action for the

wrongful death of a viable fetus when it enacted the wrongful

death statute).

A-44

i this kind of a case are not without a remedy since the common

law provides a cause of action for "compensatory damages based

on their emotional distress and mental anguish proximately caused

by the negligent conduct of their doctor that results in the stillbirth

of their baby.” Id. at 420. The hold of the Giardina court is the

current state of the law as applied in New Jersey and has not been

contradicted or overruled by any legislative act.

Although not expressly addressed by the New Jersey

Supreme Court in Giardina, it is clear by the implications of the

holding in Giardina and by the language of the survival action

statute itself that the New Jersey Legislature did not intend to

provide the parents of an unborn or stillborn fetus with a statutory

cause of action for survival.®

Here, plaintiff alleges that the failure to include unborn or

stillborn fetuses within the definition of “persons” as provided by

the language of the Wrongful Death Act and the failure to include

unborn or stillborn fetuses within the language of the survival

action statute, constitutes a violation of the Equal Protection and

Due Process clauses of the Fourteenth Amendment. Plaintiff

argues that the State of New Jersey has neither a rational basis

nor a compelling interest® in excluding unborn or stillborn fetuses

SExamination of the language of the survival action statute

clearly indicates that the legislature meant to create this cause of

action for "persons" who were born alive, e.g., "if [the deceased]

had lived" and "damages accrued during the lifetime of the

deceased."

®"The tests to determine the validity of state statutes under the

Equal Protection Clause have been variously expressed, but this

Court requires, at a minimum, that a statutory classification bear

some rational relationship to a legitimate state purpose." Weber

v. Aetna Cas. & Sur. Co., 406 U.S. 164, 172 (1972) (citing Morey

v. Doud, 354 U.S. 457 (1957); Williamson v. Lee Optical Co., 348

U.S. 483 (1955)). However, plaintiff urges that because the

statutes at issue impinge upon a fundamental interest, a

heightened level of scrutiny is applied which requires the state to

have a compelling interest to justify excluding parents of unborn

Pea ee ea

A-45

from the definition of "persons" as provided by the language of the

Wrongful Death Act and from the language of the survival action

statute.

The Supreme Court has held that legislation "inevitably

requires that some persons who have an almost equally strong

claim to favored treatment be placed on different sides of the line,

and the fact [that] the line might have been drawn differently as

some points is a matter for legislative, rather than judicial,

consideration." United States R.R. Retirement Bd. v. Fritz, 449

U.S. 166, 179 (1980). "[T]he Fourteenth Amendment permits the

or stillborn fetuses from having a right of action on these statutes.

However, contrary to plaintiff's assertion, the statutes at

issue do not impinge upon a fundamental interest. Liberty

interests which have been held to be fundamental include

"personal decisions relating to marriage, procreation,

contraception, family relationships, child rearing, and education."

Planned Parenth f h rn Pennsylvania v. om

U.S. __, S. Ct. 2791, 2807 (1992). As such, the Constitution

protects a person’s most basic decisions about family and

parenthood from unwarranted governmental intrusion or

interference. Id.

The statutes at issue create causes of action to remedy

damage caused by tortious conduct which has resulted in death

and do not impinge upon any fundamental interest in making basic

decisions about family and parenthood or upon any personal

decision relating to marriage, procreation, contraception, family

relationships, child rearing, and education. Any impingement here

would be on the right to maintain statutorily created causes of

action based in tort and this right is not fundamental for purposes

of determining the level of scrutiny applied to a statute which is

constitutionally challenged.

Accordingly, these statutes are subject to review under the

rational basis standard.

A-46

States a wide scope of discretion in enacting laws which affect

some groups of citizens differently than others." McGowan v.

Maryland, 366 U.S. 420, 425 (1961). "State legislatures are —

presumed to have acted within their constitutional power despite

the fact that, in practice, their laws result in some inequality. A

statutory discrimination will not be set aside if any state of facts

reasonably may be conceived to justify it." Id. at 425-26; see

Plymouth Coal Co. v. Pennsylvania, 232 U.S. 531, 546 (1914);

State v. Profaci, 56 N.J. 346, 349-50, 266 A.2d 579, 581

(1970). Moreover, a legislature is not required to articulate its

reasons for enacting a statute and it is entirely irrelevant for

constitutional purposes whether the conceived reason for the

challenged distinction actually motivated the _ legislature.

Accordingly, if a statute is susceptible to a judicial interpretation

rendering it constitutionally valid, the canons of statutory

construction require the courts to adopt such an interpretation.

See h h_ Min melters v. Beaver nty, 262 U.S.

325, 331 (1922); Driscoll v. Edison Light & Power Co., 372 U.S.

29 (1963).

In Justic v. Acchison, 19 Cal, 3d 564, 565 P.2d 122, 139

Cal. Rptr. 97 (1977), overruled on other grounds by Ochoa v.

Superior Court, 39 Cal. 3d 159, 703 P.2d 1, 216 Cal. Rptr. 661

(1985), the Supreme Court of California addressed the issue of

whether an unborn fetus is a person for purposes of the state’s

wrongful death statute. The plaintiffs in Justus, like the plaintiffs

herein, argued that the failure to provide a statutory cause of

action for the wrongfu! death of a fetus constitutes a denial of the

equal protection of the laws. Id, 565 P.2d at 133. The Justus

court considered and rejected this argument and upheld the

constitutionality of the statute. Id, 565 P.2d at 1233-34.'°As

correctly noted by the Supreme Court of California in Justus:

[The Equal Protection Clause] is not intended to make it

necessary that the legislature, when conferring new rights

of action upon particular classes of citizens for injuries not

‘in Giardina, the New Jersey Supreme Court cited with

approval the reasoning of the Supreme Court of California in

Justus. Giardina, 111 N.J. at 422, 424.

A-47

previously actionable, should by the same act declare that

all persons who may suffer damages from injuries of that

character shall also have such right of action. Many

considerations of public policy affect the question of the

propriety and extent of such laws, the weight and effect of

which, and the method of meeting or avoiding them, are

matters resting exclusively in the legislative discretion . . ..

The decision of the legislature as to how far it will extend

the new right is conclusive, unless it appears beyond

rational doubt that an arbitrary discrimination between

persons or classes similarly situated has been made without

any reasonable cause therefor.

Justus, 565 P.2d 133-34 (citations omitted).

The rational basis standard requires only that a statute be

rationally related to a legitimate government objective. Schweiker

v. Wilson, 450 U.S. 221, 230 (1981). Here, in enacting the

Wrongful Death Act and the survival action statute, the New

Jersey Legislature created new rights of action for injuries or

damages not previously actionable. The purpose behind wrongful

death and survival statutes is to provide a decedent’s survivors

and dependents with a right to recover compensatory damages

suffered as a result of the wrongful death of the decedent. That

these statutory causes of action are limited to situations where the

decedent was born alive is not arbitary, but bears a rational

relationship to the legitimate legislative goal of placing reasonable

limits on wrongful death and survival actions in the State of New

Jersey. See Giardina, 111 N.J. at 424-27; Justus, 565 P.2d at

133-34. As such, the Legislature was not acting irrationally or

arbitrarily by failing to extend these statutorily created causes of

action for wrongful death and survival to the parents of fetuses

never born alive. See Justus, 565 P.2d at 133-34.

Although the parents of a baby never born alive may claim

a right to assert these statutory causes of action which is almost

equally as strong as the claimed right of the parents of a baby born

alive, the fact that these statutes require a "person" to have been

born alive is a distinction which is a matter for legislative, rather

than judicial, consideraion. See Uni R.R. Retirement Bd.

v. Fritz, 449 U.S. at 179. Thus, there is no denial of due process

A-48 iste

or equal protection based on the fact that these statutes do not

provide a tort cause of action for the wrongful death of a fetus or

unborn child. See Justus, 565 P.2d at 133-34.

Accordingly, defendants’ motion to dismiss the complaint

in its entirety for failure to state a claim shall be granted.’

IT IS therefore on this 12th day of May, 1995, ORDERED

that the motion to dismiss by defendants Whitman and Poritz is

hereby GRANTED;

IT IS FURTHER ORDERED that the motions by the County

Surrogate defendants to join in the motion to dismiss by

defendants Whitman and Poritz is hereby GRANTED;

IT 1S FURTHER ORDERED that the motion by plaintiffs for

class certification is hereby DISMISSED;

IT IS FURTHER ORDERED that the motion by plaintiffs for

summary judgment is hereby DENIED;

IT IS FURTHER ORDERED that the motion by plaintiffs for

leave to file a supplemental brief is hereby DENIED.

/s/ Mary Little Parell

MARY LITTLE PARELL

United States District Judge

"Since the Court concludes that this action should be

dismissed in its entirety, there is no need to consider plaintiffs’

motion for class certification. Accordingly, the motion for class

certification shall be dismissed.

A-49

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

CASSIDY, FOSS & SAN FILIPPO

225 Broad Street

P.O. Box 896

Red Bank, New Jersey 07701

(908) 741-2525

HJC/5217

Attorneys for Plaintiffs

KAREN F. ALEXANDER, Individually,

on her own behalf; and KAREN F.

ALEXANDER, on behalf of all other

persons similarly situated; and

DENNIS DRAZIN, ESQ., individually

on his own behalf, and DENNIS

DRAZIN, ESQ., on behalf of all

attorneys similarly situated; : Civil Action No.

DRAZIN AND WARSHAW/, a profes- ;

sional corporation for the practice

of law, organized under the laws

of the State of New Jersey,

individually and DRAZIN AND

WARSHAW, P.C. on behalf of all

law firms similarly situated

CLASS ACTION

Plaintiff(s), : COMPLAINT

Vv.

CHRISTINE TODD WHITMAN,

individually, and CHRISTINE

TODD WHITMAN in her capacity

as governor of the State of

; New Jersey; DEBORAH T. PORITZ,

individually, and DEBORAH T.PORITZ,

in her capacity as the Attorney

General of the State of New Jersey;

JANICE S. MATHIS, as Surrogate of

Atlantic County New Jersey; STEPHEN

TTS SST

A-50

R. ROTHMAN, as Surrogate of Bergen

.. CountyNewdJersey; ELTON A-CONDA TST

as Surrogate of Burlington County

New Jersey; MARIA BARNABY

GREENWALD as Surrogate of Camden

County New Jersey; W. ROBERT

HENTGES as Surrogate of Cape May

County New Jersey; HARRY A.

FREITAG, JR. as Surrogate of

Cumberland County New Jersey;

MARIA VIZCARRONDO-DeSOTO as

Surrogate of Essex County New

Jersey; DONALD H. WAGNER as

Surrogate of Gloucester County

New Jersey; DONALD W. DeLEO as

Surrogate of Hudson County New

Jersey; SUSAN HOFFMAN GREENE as

Surrogate of Hunterdon County

New Jersey; CAROL OSWALD as

Surrogate of Mercer County New

Jersey; KEVIN J. HOAGLAND as

Surrogate of Middlesex County New

Jersey; MARIE S. MUHLER as

Surrogate of Monmouth County New

Jersey; EUGENE F. DOYLE as

Surrogate of Morris County New—

Jersey; FRANKLIN V. FISCHER as

Surrogate of Ocean County New :

Jersey; ROSALIE MASSERI as Surrogate :

of Passaic County New Jersey; GENEVA :

B. WOOD as Surrogate of Salem County :

New Jersey; VERNON A. NOBLE, as

Surrogate of Somerset county New

Jersey; NANCY FITZGIBBONS as :

Surrogate of Sussex County New Jersey; :

ANN P. CONTI as Surrogate of Union

County New Jersey; ALBERT J. RUH as

Surrogate of Warren County New

Jersey.

Defendant(s).

A-51

The plaintiffs, Karen F. Alexander, Dennis Drazin, Esq. and

Drazin & Warshaw, a professional corporation, individually on their

own behalf, and on behalf of all other persons and entities similarly

situated, all of whom reside in the State of New Jersey, by way of

Complaint against the main defendants, say:

P This is a Civil Action brought pursuant to 42 U.S.C.

§1983 to address the deprivation of the color of state law of

rights, privileges and immunities guaranteed by the Constitution of

the United States. Plaintiffs bring this action on their own behalf

and on behalf of all other persons similarly situated seeking a

declaratory judgment that the wrongful death statute and the

survival action statutes of the State of New Jersey, on its face,

and as applied, which extend various causes of action to some

mothers and children, but deprive other mothers and children of

the same causes of action, are unconstitutional as being in

violation of the equal protection clause of the Fourteenth

Amendment of the United States Constitution and further seek

mandatory injunctions against the defendants to extend the causes

of action to all mothers and children properly before the New

Jersey courts and for money damages and attorneys fees and

other relief which the court deems just.

JURISDICTION AND VENUE

2. This action is brought pursuant to 42 U.S.C. §1983

and 42 U.S.C. §1988. Jurisdiction is conferred upon the Court by

28 U.S.C. §1343. Declaratory and related injunctive relief are

authorized by 28 U.S.C. §§2201-2202. Venue is properly laid in

the District of New Jersey pursuant to 28 U.S.C. 81391.

PARTIES

3. Karen F. Alexander, is a citizen of the State of New

Jersey and of the United States. In 1992 she was pregnant with

a baby girl who died as a result of the professional negligence of

a number of tortfeasors. Karen Alexander’s daughter died before

actual birth.

4. The Plaintiff Drazin and Warshaw, Esqs. is a law firm

organized as a Professional Corporation under the laws of the

A-52

State of New Jersey with offices in Red Bank, New Jersey and its

members are iicensed to practicetaw ir that State. Drazin and

Warshaw provide services to victims of all forms of tortious

conduct, including the representation of mothers who have lost

children through the negligence of others, including the

representation of mothers whose children have died prior to birth

as a result of the tortious conduct of third parties. in their

representation of persons who have lost children as a result of the

negligence of people who are legally liable, Drazin and Warshaw

are compensated for their services by the payment of attorneys

fees based upon the fact of monetary recover and its amount.

5. Plaintiff Dennis Drazin, Esq., is a citizen of the State

of New Jersey and of the United States. He is an attorney at law

of the State of New Jersey and is the president of the professional

corporation of Drazin and Warshaw, organized to practice law. In

his law practice he routinely represents victims of the tortious

conduct of third parties, including mothers whose children have

died as a result of the negligence of persons who are legally liable

under New Jersey Law for their conduct. The services are

compensated in such cases by payment of attorneys fees based

upon the amount of damages that is recovered in the particular

action in which he provides his services.

6. The defendant Christine Todd Whitman is sued

herein personally in her individual capacity as well as in her

capacity as Governor of the State of New Jersey. She currently

holds the office of Governor of the State of New Jersey and has

held that office since January of 1994. As Governor she is the

individual who is ultimately responsible for the enforcement of the

laws of the State, their implementation, and the even handed

application of the laws.

YP Deborah T. Poritz is sued herein in her individual

Capacity as well as her capacity as Attorney General of the State

of New Jersey. She currently holds the office of Attorney General

and is responsible for the review and enforcement of the laws of

the State of New Jersey.

8. Janice S. Mathis is currently the Surrogate of

Atlantic County of the State of New Jersey and as such is the

A-53

: individue’ who Supervises and is responsible for the issuance of

Genera’ Letters é A dmimustration of the estates of all individuals ~~ ~~

j who reside wittwm Atientic County as well as the issuance of all

. Letters of Admurustretion Ad Prosequendum of the estate of all

individuals who have died residing within the County.

: Steven R. Rothman, is currently the Surrogate of

Bergen County of the State of New Jersey and as such is the

individual! who supervises and is responsible for the issuance of

: general Letters of Administration of the estates of all individuals

who reside within Bergen County as well as the issuance of all

Letters of Administration Ad Prosequendum of the estate of all

individuals who have died residing within the County.

Wie ae RAR al Meteo Aa

10. Elton A. Conda, is currently the Surrogate of

j Burlington County of the State of New Jersey and as such is the

individual who supervises and is responsible for the issuance of

general Letters of Administration of the estates of all individuals

who reside within Burlington County as well as the issuance of all

Letters of Administration Ad Prosequendum of the estate of all

individuals who have died residing within the County.

aw ey hone i

ee ee

11. Maria Barnaby Greenwaid, is currently the Surrogate

of Camden County of the State of New Jersey and as such is the

individual who supervises and is responsible for the issuance of

general Letters of Administration of the estates of all individuals

who reside within Camden County as well as the issuance of all

Letters of Administration Ad Prosequendum of the estate of all

individuals who have died residing within the County.

eens

12. W. Robert Hentges, is currently the Surrogate of

Cape May County of the State of New Jersey and as such is the

individual who supervises and is responsible for the issuance of

general Letters of Administration of the estates of all individuals

who reside within Cape May County as well as the issuance of all

Letters of Administration Ad Prosequendum of the estate of all

individuals whe have died residing within the County.

Poe ee ee

13. Harry A. Freitag, Jr., is currently the Surrogate of

Cumberland County of the State of New Jersey and as such is the

individual who supervises and is responsible for the issuance of

A-54

general Letters of Administration of the estates of all individuals

————~ ~~ who reside within Gunrbertanc-Gounty-es-welt-es-the- issuance of — --

all Letters of Administration Ad Prosequendum of the estate of all

individuals who have died residing within the County.

14. Maria Vizcarrondo-DeSoto, is currently the Surrogate

of Essex County of the State of New Jersey and as such is the

individual who supervises and is responsible for the issuance of

general Letters of Administration of the estates of all individuals

who reside within Essex County as well as the issuance of all

Letters of Administration Ad Prosequendum of the estate of all

individuals who have died residing within the County.

15. Donald H. Wagner, is currently the Surrogate of

Gloucester County of the State of New Jersey and as such is the

individual who supervises and is responsible for the issuance of

general Letters of Administration of the estates of all individuals

who reside within Gloucester County as well as the issuance of all

Letters of Administration Ad Prosequendum of the estate of all

individuals who have died residing within the County.

16. Donald W. DeLeo, is currently the Surrogate of

Hudson County of the State of New Jersey and as such is the

individual who supervises and is responsible for the issuance of

general Letters of Administration of the estates of all individuals

who reside within Hudson County as well as the issuance of all

Letters of Administration Ad Prosequendum of the estate of all

individuals who have died residing within the County.

17. Susan Hoffman Greene, is currently the Surrogate of

Hunterdon County of the State of New Jersey and as such is the

individual who supervises and is responsible for the issuance of

general Letters of Administration of the estates of all individuals

who reside within Hunterdon County as well as the issuance of all

Letters of Administration Ad Prosequendum of the estate of all

individuals who have died residing within the County.

18. Carol Oswald, is currently the Surrogate of Mercer

County of the State of New Jersey and as such is the individual

who supervises and is responsible for the issuance of general

Letters of Administration of the estates of all individuals who

A-55

F reside within Mercer County as well as the issuance of all Letters

—-—-~—ef Administration Ad-Prosequendum of the estate of allindividuals —-- ———

who have died residing within the County.

19. Kevin J. Hoagland, is currently the Surrogate of

Middlesex County of the State of New Jersey and as such is the

individual who supervises and is responsible for the issuance of

general Letters of Administration of the estates of all individuals

who reside within Middlesex County as well as the issuance of all

Letters of Administration Ad Prosequendum of the estate of all

individuals who have died residing within the County.

Janae ia ae Nl calles call date Ate 6 en saiNle chert

20. Marie S. Muhler, is currently the Surrogate of

Monmouth County of the State of New Jersey and as such is the

individual who supervises and is responsible for the issuance of

F general Letters of Administration of the estates of all individuals

who reside within Monmouth County as well as the issuance of all

Letters of Administration Ad Prosequendum of the estate of all

individuals who have died residing within the County.

?

21. Eugene F. Doyle. is currently the Surrogate of Morris

County of the State of New Jersey and as such is the individual

who supervises and is responsible for the issuance of general

Letters of Administration of the estates of all individuals who

reside within Morris County as well as the issuance of all Letters

of Administration Ad Prosequendum of the estate of all individuals

who have died residing within the County.

: 22. Franklin V. Fischer, is currently the Surrogate of

Ocean County of the State of New Jersey and as such is the

4 individual who supervises and is responsible for the issuance of

general Letters of Administration of the estates of all individuals

who reside within Ocean County as well as the issuance of all

Letters of Administration Ad Prosequendum of the estate of all

individuals who have died residing within the County.

23. Rosalie Masseri, is currently the Surrogate of Passaic

County of the State of New Jersey and as such is the individual

who supervises and is responsible for the issuance of general

Letters of Administration of the estates of all individuals who

reside within Passaic County as well as the issuance of all Letters

a ee

A-56

of Administration Ad Prosequendum of the estate of all individuals

who have died residing withirrthé County. :

24. Geneva B. Wood, is currently the Surrogate of Salem

County of the State of New Jersey and as such is the individual

who supervises and is responsible for the issuance of general

Letters of Administration of the estates of all individuals who

reside within Salem County as well as the issuance of all Letters

of Administration Ad Prosequendum of the estate of all individuals

who have died residing within the County.

25. Vernon A. Noble, is currently the Surrogate of

Somerset County of the State of New Jersey and as such is the

individual who supervises and is responsible for the issuance of

general Letters of Administration of the estates of all individuals

who reside within Somerset County as well as the issuance of all

Letters of Administration Ad Prosequendum of the estate of all

individuals who have died residing within the County.

26. Nancy Fitzgibbons, is currently the Surrogate of

Sussex County of the State of New Jersey and as such is the

individual who supervises and is responsible for the issuance of

general Letters of Administration of the estates of all individuals

who reside within Sussex County as well as the issuance of all

Letters of Administration Ad Prosequendum of the estate of all

individuals who have died residing within the County.

27. Ann P. Conti, is currently the Surrogate of Union

County of the State of New Jersey and as such is the individual

who supervises and is responsible for the issuance of general

Letters of Administration of the estates of all individuals who

reside within Union County as well as the issuance of all Letters of

Administration Ad Prosequendum of the estate of all individuals

who have died residing within the County.

28. Albert J. Ruh, is currently the Surrogate of Warren

County of the State of New Jersey and as such is the individual

who supervises and is responsible for the issuance of general

Letters of Administration of the estates of all individuals who

reside within Warren County as well as the issuance of all Letters

A-57

i _ of Administration Ad Prosequendum of the estate of all individuals

“| who have died residing within the County. a ie

4

4

: COUNT ONE

: 29. Karen F. Alexander is a mother who carried her baby

girl from conception for more than eight and one-half months. On

or about July 15, 1992, as the direct result of the negligence of

her primary treating doctor, and other physicians, nurses and

health care providers, plaintiff Karen Alexander’s daughter was

caused injury, pain, suffering and death.

pala coohialae.

30. Theplaintiff Karen F. Alexander’s daughter was born

on July 15, 1992. Her baby daughter was not alive at the

moment of birth, as a direct consequence of the negligence of the

treating doctor and others.

Ea RL EH Tapa Re OSs

: 31. On or about July 13, 1994, the plaintiff Karen F.

: Alexander instituted a law suit against the negligent parties who

caused the death of her daughter. In the law suit Karen F.

Alexander brought a wrongful death claim as the Administratrix Ad

Prosequendum of the Estate of her daughter, and a survival action

for the suffering of the daughter as the General Administratrix of

the Estate of her baby girl. That action is currently pending in the

Law Division of the Superior Court of New Jersey, venued in

Monmouth County, and bears Docket No. L-3896-94.

6 thie laude dhe SONGS 240 is

32. By letter dated October 18, 1994 defendant Marie

Muhler, Surrogate of Monmouth County, denied plaintiff Karen

Alexander’s request for the issuance of Letters of Administration

Ad Prosequendum on the grounds that the baby was "still born”.

3a. Under N.J.S.A. 2A:31-1 to 6, New Jersey has

created a cause of action, known as a “wrongful death" action,

extended to survivors of individuals who have died as a result of

' the tortious conduct of third parties. Under the statute as

construed by the New Jersey Supreme Court, the compensation

that is awarded to persons to whom a wrongful death action is

given is based on the pecuniary value of lost services and other

activity of value based upon the relationship between the plaintiff

and the decedent. Under New Jersey law a mother is extended a

i) atti Se ae ay ee war NT eR

A-58

wrongful death cause of action for the death of her child as a

résult of the tortious conduct of third part parties. The right to receive

and the amount of the monetary damages is based upon the

existence and loss of the relationship between the mother and her

child. Karen Alexander is the mother of a child who died as the

result of the tortious conduct of third parties. Included among the

wrongful death causes of action, that New Jersey extends to

mothers who have lost children as a result of the tortious conduct

of third parties, is a cause of action extended to mothers when the

trauma inflicted upon her child which ultimately causes the child’s

death, occurs during pregnancy. The trauma (or medical

malpractice) under New Jersey law may occur at any age of

gestation from conception to birth, and the mother would possess

the cause of action. However, under the wrongful death statute,

as construed by the New Jersey Supreme Court (most recently in

Giardina v. Bennett, 111 N.J. 412 (1988)), the statute excludes a

class of mothers, including Karen Alexander, from enjoying the

benefits of the wrongful death cause of action where the child dies

before actual birth, although it extends the cause of action to

those mothers whose child was traumatized prior to birth (even in

early stages of pregnancy) but merely survives birth for any length

of time.

34. | Theclass of mothers on whose behalf this action is

brought, of which Karen F. Alexander is a representative, are all

pregnant women, where their children are of all ages from

conception to birth and where the children have died before actual

birth due to tortious conduct of third parties.

35. Under the Due Process Clause of the Fourteenth

Amendment of the United States Constitution, Karen F. Alexander

enjoys a protectable interest in her relationship with her daughter

at all ages of her daughter’s life from conception until natural death

and possesses a protectable interest under the same clause, in her

child’s life. Until the death of her child, plaintiff Alexander and her

daughter had an existing relationship protected by the due process

clause, and enjoyment of it was a fundamental constitutional right

under the United States Constitution.

36. The New Jersey wrongful death statute as written

and construed deprives Karen F. Alexander of the equal protection

A-59

of the laws and is violative of her due process rights, and is thus

unconstitutional under the Fourteenth Amendment of the United

States Constitution Equal Protection and Due Process Clauses.

The State of New Jersey and the named defendants have neither

: a rational basis nor a compelling interest in depriving a class of

mothers who carry children during pregnancy and whose children

die prior to actual birth as a result of the tortious conduct of third

parties from sharing in the benefits of the wrongful death statute,

which is extended to all other mothers, and as such constitutes a

: violation of equal protection and due process liberty interests and

i property interests of Karen Alexander. In addition, Karen

Alexander has a protectable interest in her child’s life, which

interest is material to her equal protection of the laws and is

~ violated by the New Jersey statutory scheme.

37. The Law Division of the Superior Court of New

; Jersey is duty bound to follow the statute as written and as

construed by the New Jersey Supreme Court. Consequently,

Karen F. Alexander’s wrongful death cause of action is not

recognized by the Law Division, because she falls within a class of

mothers who is excluded under the statute. She, and ail those

similarly situated, are entitled to share in the proceeds of the cause

of action and otherwise has standing to act as the Administratrix

Ad Prosequendum of the Estate of her daughter. In order for her

to prosecute the action, Karen F. Alexander or someone in her

place, must establish that she is entitled to act as the

Administratrix Ad Prosequendum of the Estate of her daughter and

has the right to prosecute her claim. To do so, she or her

representative must obtain letters ad prosequendum from the

Surrogate of Monmouth County or the other twenty surrogates in

the state. As a matter of course and custom in furtherance of the

statutory scheme under the wrongful death statutes and in

. violation of the constitutional rights of Mrs. Alexander and all

+ mothers similarly situated, the Surrogates of Monmouth County

and the other twenty Counties of the State of New Jersey, refuse

to issue Letters of Administration Ad Prosequendum of the estate

of a child who dies prior to actual birth. The defendant Governor

Christine Todd Whitman, as chief executive of the State of New

3 Jersey is responsible for the just and even handed enforcement,

j administration and implementation of all laws in a constitutional

fashion and has taken action to promote the unconstitutional

Si ae ere

Se ee Obani hater iad aes aa

et witd

A-60

deprivation of the plaintiff's constitutional rights and has failed to

——~———-—__ take action to torrect tie unconstitutional deprivation of the

plaintiff's rights. The defendant Deborah T. Poritz, as Attorney

General, is responsible for the review and enforcement of the laws

of the State of New Jersey and has failed to correct the

unconstitutional deprivations of the plaintiffs’ rights and has

promoted the unconstitutional deprivation of the plaintiffs’ rights.

38. Under the facts, the plaintiff Karen F. Alexander has

the standing to seek the relief sought in this complaint for

declaratory judgment and injunctive relief against the defendants.

There is an actual controversy between the parties as set forth

herein. The plaintiff and the members of her class have no clear

and adequate remedy at law. If the wrongful death statute is not

declared unconstitutional and a mandatory injunction issued

compelling the defendants to extend the cause of action to this

class of mothers in the same manner in which is extended to other

mothers, it will Cause irreparable injury to the plaintiff and the

members of her class.

WHEREFORE, the plaintiff Karen F. Alexander, individually,

on her own behalf, and Karen F. Alexander on behalf of all other

mothers similarly situated who carry children at all ages of

gestation from conception to birth who are injured as a result of

the tortious conduct of third parties and whose injuries result in

death prior to their birth, pray that this court grant the following

relief against the named defendants:

1. Declare that the plaintiff, Karen Alexander and all

those similarly situated enjoyed an existing relationship between

mother and child protected by the Fourteenth Amendment and the

New Jersey Wrongful Death Statute (N.J.S.A. 2A:31-1 to 6), on

its face (as construed by the New Jersey Supreme Court) and as

applied is unconstitutional in that it violates the rights of the

plaintiff Karen Alexander and the members of her class guaranteed

under the due process clause of the United States Constitution,

which extends them protection of their liberty interests, property

interests and interests in the life their children.

2. Declare that the plaintiff, Karen Alexander and all

those similarly situated enjoyed an existing relationship between

es

RE en eR re ee er

A-61

the mother and child protected by the Fourteenth Amendment and

~ the New Jersey Wrongful Death Statute (N.J.S.A. ZA:31-T 6 6), ~

on its face (as construed by the New Jersey Supreme Court) and

as applied is unconstitutional in that it violates the rights of the

plaintiff Karen Alexander and the members of her class guaranteed

under the equal protection clause of the Fourteenth Amendment of

the United States Constitution;

3. Enter an Order providing for a mandatory injunction

directing that defendants Mathis, Rothman, Conda, Barnaby,

Greenwald, Hentges, Freitag, Vizcarrondo-DeSoto, Wagner, DeLeo,

Greene, Oswald, Hoagland, Muhler, Doyle, Fischer, Masseri, Wood,

Noble, Fitzgibbons, Conti and Ruh issue Letters of Administration

Ad Prosequendum in wrongful death actions brought by mothers

whose children are alleged to have died as a result of tortious

conduct of third parties even though the child died before actual

birth;

4. Enter an Order directing that the defendant Christine

Todd Whitman as Governor of the State of New Jersey and Chief

Executive Officer of the State and Deborah T. Poritz, as Attorney

General, direct that the actions of all agents of the State be in full

compliance with the recognition of the rights of the plaintiffs and

extending to them the wrongful death cause of action in the same

manner and to the same extent of all other persons to whom the

cause of action is extended;

3. Grant to the plaintiff all expert fees, costs and

attorneys fees in connection with the preparation and prosecution

of this action, and grant all other relief which the court deems just.

ECOND NT

39. The plaintiff, Karen F. Alexander on her own behalf

and on behalf of those similarly situated repeats and incorporates

by reference the allegations of the prior thirty-eight paragraphs as

if set forth at length herein.

40. As a matter of fact a child at every age of gestation

from conception to birth is a complete, separate and irreplaceable

human being and the daughter of Karen F. Alexander and all

A-62

mothers similarly situated are actual human beings who have

relationships with their mothers carrying them. This relationship

between these two separate, complete individual human beings is —

in actual existence throughout pregnancy. As a matter of fact, a

child can experience pain beginning at eight weeks after

conception up to the time of actual birth. As a matter of fact,

Karen F. Alexander’s baby daughter and all children similarly

situated from ages eight weeks after conception to birth

experience pain and suffer during trauma or as a result of injury or

the damage to bodily systems necessary for the continuance of the

life of the child.

41. In the law suit commenced on or about July 13,

1994, the plaintiff Karen F. Alexander seeks damages from third

parties on account of their tortious conduct which resulted in the

injury and pain and suffering of her daughter, and as such she has

filed a "survival action". The laws of the State of New Jersey,

under N.J.S.A. 2A:15-3, extends to the estates of individuals who

have died as a result of the tortious conduct of third parties, the

ability to recover money damages for the pain, suffering and

injuries sustained by an individual while alive as a result of the

tortious conduct. Under the relevant statute and case law, the

mere fact that the injured human being has died as a result of the

tortious conduct does not extinguish the cause of action.

However, under the statute and the case law construing it,

children who have expired prior to actual birth and their intestate

Survivors are excluded from the class of individuals who is given

the cause of action for the child’s injuries, pain and suffering.

Under New Jersey law, children who sustain injuries, pain and

suffering, during all ages during pregnancy and survive birth are

extended a survival action even though they may die shortly after

birth and their estates can recover for the injuries, pain and

suffering sustained by them as a result of trauma during

pregnancy. The class of children who are excluded from the

benefits of the cause of action created by state statutes and law

is based only upon the arbitrary fact that a child has not survived

birth.

42. By letter dated October 18, 1994 defendant Marie

Muhler, Surrogate of Monmouth County, denied plaintiff Karen

A-63

Alexander’s request for the issuance of Letters of General of

Administration on the grounds that the baby was "stillborn".

43. The New Jersey survival action statute as written

and construed, both on its face and as applied, is unconstitutional

because it deprives the baby daughter of Karen F. Alexander and

all children similarly situated of the equal protection of the laws

and is violative of the rights of the baby daughter of Karen F.

Alexander and all children similarly situated, including protectable

liberty interests, property interests, and protectable interest in their

life under the Fourteenth Amendment of the United States

Constitution equal protection and due process clauses. The State

of New Jersey and the named defendants herein have neither a

rational basis nor a compelling interest in depriving a class of

children of any age from conception to actual birth who are injured

and suffer and experience pain prior to birth as a result of the

tortious conduct of third parties from sharing in the benefits of the

survival action statute. The statutes, therefore, violate the equal

protection rights of the baby daughter of Karen F. Alexander and

children similarly situated as well as the due process, liberty

interest, property interest and life interest of these children. In

addition, Karen F. Alexander and all mothers similarly situated have

a protectable interest in their child's life and a protectable interest

in their child’s health such that the denial by the State of New

Jersey and the named defendants of the survival action is a

violation of the equal protection and due process rights of the

Fourteenth Amendment of Karen F. Alexander and all other

mothers similarly situated. Karen F. Alexander and all members of

her class have the legal standing to raise and litigate the rights of

their children.

44. Under the laws of the State of New Jersey, the

survival action of the daughter of Karen F. Alexander is not

recognized by the courts because the child is excluded under the

Statute as construed, both on its face and as applied. Mrs.

Alexander and all other similarly situated are entitled to share in

the proceeds of the survival action and otherwise has standing to

otherwise act as the general administratrix of the estate of her

daughter. The defendant Governor, Christine Todd Whitman, as

the Chief Executive of the State of New Jersey is responsible for

the enforcement and implementation of all laws in a constitutional

A-64

fashion and has taken action to promote the unconstitutional

depravation of the plaintiff’s constitutional rights, and has failed to

take action to correct the unconstitutional depravation of the

plaintiff’s rights. The defendant Deborah T. Poritz, as Attorney

General, has failed to take corrective action to prevent the violation

of plaintiff's rights and those of her daughter and has promoted

such violation. The plaintiff Karen F. Alexander is unable under the

law to obtain letters of General Administration of the Estate of her

daughter from the surrogate of Monmouth County. Neither she

nor any other mother similarly situated are able to obtain any

letters of General Administration from any of the twenty-one

surrogates within the State of New Jersey. As a matter of course

and custom and in violation of the constitutional rights of Mrs.

Alexander and her daughter and all children similarly situated and

all mother similarly situated, and in furtherance of the statutory

scheme of the survival action statutes, the Surrogates of

Monmouth County and the other twenty counties of the State of

New Jersey refuse to issue letters of General Administration of the

estates of children who die prior to actual birth.

45. Under the facts, the plaintiff Karen F. Alexander and

all those similarly situated have standing to seek the relief sought

in this complaint for declaratory judgment and injunctive relief

against the defendants.

46. There is an actual controversy between the parties

as set forth herein. The plaintiff and members of her class do not

have a clear and adequate remedy at law. If the survival action is

not declared unconstitutional and the mandatory injunction issued

compelling the defendants to extend the cause of action to this

class of children and their mothers in their representative

Capacities in the same manner and to the same extent as to other

mothers and children who are injured and die as a result of the

tortious conduct of third parties, it will cause irreparable injury to

the plaintiff and her child and the members of their classes.

WHEREFORE, the plaintiff Karen F. Alexander, individually

and on her own behalf, and Karen F. Alexander on behalf of all

other mothers similarly situated who carry children at all ages of

gestation from conception to birth who were injured as a result of

the tortious conduct of third parties and who die prior to actual

MN AR RELATE & EE TS AL! 4 ae SU

Ate TP Ree LMS. ahh UE

eS SA RE ce A RR BE ella PPTL Ee en, RSD et 18

paatiitea

A-65

birth, pray that this court grant the following relief against the

named defendants:

a Declare that the plaintiff Karen F. Alexander’s baby

daughter and all those children similarly situated possess rights and

interests under the equal protection clause of the Fourteenth

Amendment of the United States Constitution and that the New

Jersey survival action (N.J.S.A. 2A:15-3) on its face (as construed

by the New Jersey courts) and as applied is unconstitutional in

that it violates the rights of the daughter of Karen F. Alexander and

all children similarly situated, which rights are guaranteed under

the equal protection clause of the Fourteenth Amendment of the

United States Constitution;

y i Declare that the plaintiff, Karen F. Alexander's

daughter, and all those children similarly situated, possess rights

and protectable interests under the Fourteenth Amendment Due

Process clause and that the New Jersey survival statute (N.J.S.A.

2A:15-3) on its face (as construed by the New Jersey courts) and

as applied is unconstitutional because it violates the rights of Karen

F. Alexander’s baby daughter and all member of her class

guaranteed under the Due Process clause including their protected

liberty interests, property interests and their protected interests in

their own life under the Fourteenth Amendment of the United

States Constitution;

x F Declare that the plaintiff, Karen F. Alexander and all

those similarly situated enjoy equal protection and due process

rights and interests under the Fourteenth Amendment and New

Jersey’s survival statute (N.J.S.A. 2A:15-3) on its face (as

construed by the New Jersey courts) and as applied is

unconstitutional because it violates the rights and interests of

Karen F. Alexander and the members of her class under the Due

Process clause since she and they have protected liberty interests

in the health of their children at all ages, including pregnancy,

property interests and their own interests in the life of their

children at all ages including ages during pregnancy under the due

process clause of the United States Constitution and that it also

violates the equal protection rights and interests of Karen F.

Alexander and all members of her class under the equal protection

clause of the United States Constitution;

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4. Entry of an Order providing for a mandatory

injunction directing defendants Mathis, Rothman, Conda, Barnaby,

Greenwald, Hentges, Freitag, Vizcarrondo-DeSoto, Wagner, DeLeo,

Greene, Oswald, Hoagland, Muhler, Doyle, Fischer, Masseri, Wood,

Noble, Fitzgibbons, Conti and Ruh to issue Letters of General

Administration of the estate of children who die prior to actual

birth in survival actions brought by mothers whose children are

alleged to have died as a result of tortious conduct of third parties

even though the child died before actual birth;

5. Entry of an Order directing that the defendant

Christine Todd Whitman as Governor of the State of New Jersey

and Chief Executive Officer of the State and Deborah T. Poritz, as

Attorney General, take all necessary action to insure that the

wrongful death and survival actions extended by the State of New

Jersey be in full compliance with the recognition of the rights of

plaintiffs and her child and the members of their classes and

extend to them the wrongful death cause of action and the survival

action in the same manner and to the same extent as all other

persons to whom the causes of actions are extended;

6. Entry of an Order directing that the defendants pay

the plaintiffs all costs, expert fees and attorneys fees in connection

with the preparation and prosecution of this action, and any other

relief the court deems just.

COUNT THREE

47. The plaintiffs Dennis Drazin, Esq., individually on his

own behalf and on behalf of all attorneys similarly situated and

Drazin and Warshaw, a professional corporation organized under

the Laws of the State of New Jersey to practice law, individually,

and on behalf of all members of its class, repeats and incorporates

by reference the allegations of the first forty-three paragraphs of

this Complaint as if set forth at length herein.

48. The plaintiffs Dennis Drazin, Esq., individually and

Drazin and Warshaw, are attorneys who practice law in the State

of New Jersey maintaining offices in the municipality of Red Bank.

A substantial portion of their practice is devoted to the

representation of victims of tortious conduct who have suffered

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injury, disability and death. Included among those who have

sought counsel from these plaintiffs are mothers whose children

have died as a result of the tortious conduct of third parties,

including mothers whose children died prior to actual birth. In their

practice they have been compelled to decline cases where mothers

have sought their services for compensation for the wrongful death

and for compensation in survival actions of their children because

of the discriminating and unconstitutional laws of the State of New

Jersey. in these matters these plaintiffs are compensated by

receiving fees conditioned upon their clients recovering damages

and based upon the amount of the recovery, the fee arrangements

being contingent fee agreements.

49. Dennis Drazin, and Drazin and Warshaw, and

individual attorneys and law firms similarly situated represent and

advise mothers who have lost their children as a result of their

death because of tortious conduct of third parties where the death

of the children occur prior to actual birth and shall continue to be

practicing in this area of law in the future. The New Jersey

wrongful death statute as written and construed by New Jersey

court deprives the clients of Dennis Drazin, Drazin and Warshaw,

all individual attorneys and law firms similarly situated of the equal

protection of the laws and is violative of their client’s equal

protection and due process rights under the Fourteenth

Amendment of the United States constitution. The State of New

Jersey and the named defendants herein have neither a rational

basis nor a compelling interest in depriving the clients of Dennis

Drazin and Drazin and Warshaw, all individual attorneys and law

firms similarly situated from sharing in the benefits of the wrongful

death statute which is extended to all victims of tortious conduct

except members of the class represented by Karen Alexander, and

as such, constitutes a violation of the equal protection right of

their clients, and a deprivation of their clients’ due process liberty

interests, property interests. In addition, the New Jersey statutory

scheme violates the rights of these plaintiff's clients because they

violate a protectable interest of their clients in their child’s life,

which is material to the equal protection of the laws and

substantive due process.

50. As a result of the unconstitutional deprivation of the

rights of their clients, Dennis Drazin, individually, and on behalf of

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all attorneys similarly situated, and Drazin and Warshaw on their

own behalf and on behalf of all law firms similarly situated, have

Sustained monetary damages in the form of lost fees in their

representation of their clients. Dennis Drazin, individually and on

behalf of all attorney similarly situated and Drazin and Warshaw

and on behalf of all law firms similarly situated have standing to

raise the constitutional rights of their clients where their equal

protection and due process rights under the Fourteenth

Amendment of the United States Constitution is violated by the

New Jersey wrongful death statute. There is an actual

controversy between the parties as set forth herein. The plaintiffs,

and the members of their class, have no clear and adequate

remedy at law. If the wrongful death statute is not declared

unconstitutional, and a mandatory injunction issued compelling the

defendants to extend the cause of action to the class of mothers

represented in this action in the same manner in which it is

extended to other mothers, it would cause irreparable injury to

Dennis Drazin, individually, and the members of his class, and

Drazin and Warshaw, individually and the members of its class.

WHEREFORE, the plaintiff, Dennis Drazin individually on his

own behalf and Dennis Drazin on behalf of all attorneys similarly

situated, and Drazin and Warshaw, P.C., on its own behalf and on

behalf of all law firms similarly situated pray that this court grant

the following relief against the name defendants:

1. Declare that all mothers have an existing relationship

during pregnancy of mother and child which is protected by the

Fourteenth Amendment of the United States Constitution and that

the New Jersey wrongful death statute (N.J.S.A. 2A:31-1 to 6) on

its face (as construed by the New Jersey Supreme Court) and as

applied is unconstitutional because it violates the rights of their

clients who are mothers who carry children and whose children die

as a result of the tortious conduct of third parties and where the

children die prior to actual birth under the due process clause and

that the New Jersey wrongful death statute violates their rights

under the Due Process clause of the United States Constitution,

and deprives their clients of their protectable liberty interests,

property interests and interests in the life of their clients’ children;

en

evnend at lis bhi

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z. Declare that all mothers whose children are injured

and die as a result of tortious conduct of third parties where death

occurs prior to birth and all those similarly situated enjoy an

existing relationship between the mother and child protected under

the Fourteenth Amendment of the United States Constitution and

the New Jersey wrongful death statute (N.J.S.A. 2A:31-1 to 6) on

its face (as construed by the New Jersey Supreme Court) and as

applied is unconstitutional because it violates the rights of such

mothers and all the members of their class as guaranteed under

the equal protection clause of the Fourteenth Amendment of the

United States Constitution;

3. Entry of an Order providing for a mandatory

injunction directing defendants Mathis, Rothman, Conda, Barnaby,

Greenwald, Hentges, Freitag, Vizcarrondo-DeSoto, Wagner, DeLeo,

Greene, Oswald, Hoagland, Muhler, Doyle, Fischer, Masseri, Wood,

Noble, Fitzgibbons, Conti and Ruh to issue Letters of

Administration Ad Prosequendum in the wrongful death actions

brought by mothers whose children are alleged to have died as a

result of tortious conduct of third parties even though and where

the child died prior to actual birth;

5. Entry an Order directing that the defendant Christine

Todd Whitman as Governor of the State of New Jersey and Chief

Executive Officer of the State and Deborah T. Poritz, as Attorney

General, direct that the actions of all agents of the State be in full

compliance with the recognition of the rights of mothers whose

children have been injured and have died as a result of the tortious

conduct of others, where the children have died prior to actual

birth and the mother alleges that death is due to the tortious

conduct of others and extending to them the wrongful death cause

of action in the same manner and to the same extent as all other

persons to whom the cause of action is extended;

6. Grant to the plaintiffs all costs, expert fees and

attorneys fees in connection with the preparation and prosecution

of this action, and grant all other relief the court deems just.

COUNT FOUR

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51. The plaintiffs Dennis Drazin, Esq., individually on his

own behalf and on behalf of all attorneys similarly situated and

Drazin and Warshaw, a professional corporation organized under

the Laws of the State of New Jersey to practice law, individually,

and on behalf of all law firms similarly situated, repeat and

incorporate by reference the allegations of the first forty-eight

paragraphs of this Complaint as if set forth at length herein.

52. The plaintiffs Dennis Drazin, Esq., individually and

Drazin and Warshaw, P.C. are attorneys who practice law in the

State of New Jersey maintaining offices in the municipality of Red

Bank. A substantial portion of their practice is devoted to the

representation of victims of tortious conduct who have suffered

injury, disability and death. Included among the clients who have

sought counsel from these plaintiffs are mothers whose children

have suffered injury, pain and suffering, and death as a result of

the tortious conduct of third parties, including mothers whose

children died prior to actual birth. In their practice they have been

compelled to turn away cases where mothers have sought their

services for compensation under the New Jersey survival statute

and for compensation in survival action of their children. In these

matters these plaintiffs are compensated by receiving fees

conditioned by the plaintiffs recovering damages and based upon

the amount of the recovery, the fee arrangements being contingent

fee agreements.

53. Dennis Drazin, and Drazin and Warshaw, individual

attorneys and law firms similarly situated represent and are

consulted by mothers who have lost their children as a result of

the injury, pain, suffering and death of their children as a result of

tortious conduct of third parties where the death of the children

occur prior to actual birth and they shall continue to practice in this

area of law in the future. The New Jersey survival statute as

written and construed by New Jersey court deprives the clients of

Dennis Drazin, Drazin and Warshaw, and all individual attorneys

and law firms similarly situated of the equal protection of the laws

and violates the rights of their clients and the rights of their clients’

children to equal protection and due process under the Fourteenth

Amendment of the United States. The State of New Jersey and

the named defendants herein have neither a rational basis nor a

compelling interest in depriving the clients and client's childi en of

A-71

Dennis Drazin, Drazin and Warshaw, all other attorneys and all

other law firms similarly situated (where they represent a class of

mothers who carry children during pregnancy whose children die

prior to actual birth as a result of tortious conduct of third parties)

from sharing in the benefits of the survival statute which is

extended to all other clients and their children’s estates and, as

such, constitutes a violation of the equal protection, due process

liberty interests and property interests of the clients and the

client's children of Dennis Drazin, Drazin and Warshaw, all

individual attorneys and law firms similarly situated. In addition,

the New Jersey statutory scheme violates the rights of these

plaintiff’s clients and their client’s children because they violate a

protectable interest in their client’s interests in their children’s life

and their children’s own interest in life in which is material to the

equal protection of the laws and substantive due process.

54. As a result of the unconstitutional deprivation of the

rights of their clients, and those of their client’s children, Dennis

Drazin, individually, and on behalf of all attorneys similarly

situated, and Drazin and Warshaw on their own behalf and on

behalf of all law firms similarly situated, have sustained monetary

damages in the form of lost fees in their representation of their

clients. Dennis Drazin, individually and on behalf of all attorney

similarly situated and Drazin and Warshaw and on behalf of all law

firms similarly situated have standing to raise the constitutional

rights of their clients and the rights of their client’s children, where

their equal protection and due process rights under the Fourteenth

Amendment of the United States Constitution is violated by the

New Jersey survival statute. There is an actual controversy

between the parties as set forth herein. The plaintiffs, and the

members of their class, have no clear and adequate remedy at law.

If the survival statute is not declared unconstitutional, and a

mandatory injunction issued compelling the defendants to extend

the cause of action to the class of mothers and their children

represented in this action in the same manner in which is extended

to other mothers, it would cause irreparable injury to Dennis

Drazin, individually, and the members of his class, and Drazin and

Warshaw, individually and the members of its class.

WHEREFORE, the plaintiff, Dennis Drazin individually on his

own behalf and Dennis Drazin on behalf of all attorneys similarly

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situated, and Drazin and Warshaw, P.C., on its own behalf and on

behalf of all law firms similarly situated pray that this court grant

the following relief against the name defendants:

‘ Declare that all mothers and their children have an

existing relationship during pregnancy of mother and child which

is protected by the Fourteenth Amendment of the United States

Constitution and that the New Jersey survival statute (N.J.S.A.

2A:15-3 to 6) on its face (as construed by the New Jersey

Supreme Court) and as applied is unconstitutional in that it violates

the rights of the mothers who carry children and whose children

die as a result of the tortious conduct of third parties and the

rights of the children themselves and where the children die prior

to actual birth and that the New Jersey survival statute violates

their and their children’s rights under the Due Process clause of the

United States Constitution, and deprives them of protection of

their liberty ir, 2rests, property interests and interests in the life of

their children and their children’s own liberty, property interests

and interests in life;

2. Declare that all mothers whose children are injured

and die as a result of tortious conduct of third parties whose death

occurs prior to birth and their children enjoy an existing relationship

between the mother and child protected under the Fourteenth

Amendment of the United States Constitution and that the New

Jersey survival statute (N.J.S.A. 2A:15-3) on its face (as

construed by the New Jersey Supreme Court) and as applied is

unconstitutional because it violates the rights of such mothers and

their children and all the members of the class as guaranteed under

the equal protection clause of the Fourteenth Amendment of the

United States Constitution;

xf Entry of an Order providing for a mandatory

injunction directing defendants Mathis, Rothman, Conda, Barnaby,

Greenwald, Hentges, Freitag, Vizcarrondo-DeSoto, Wagner, DeLeo,

Greene, Oswald, Hoagland, Muhler, Doyle, Fischer, Masseri, Wood,

Noble, Fitzgibbons, Conti and Ruh to issue General Letters of

Administration in the survival actions brought by mothers whose

children are alleged to have died as a result of tortious conduct of

third parties even though the child died prior to actual birth;

A-73

4. Entry of an Order directing that the defendant

Christine Todd Whitman as Governor of the State of New Jersey

and Chief Executive Officer of the State and Deborah T. Poritz, as

Attorney General, direct that the actions of all agents of the State

be in full compliance with the recognition of the rights of mothers

whose children have been injured and have died as a result of the

tortious conduct of others, where the children have died prior to

actual birth and the rights of the children themselves, where the

mother alleges injury, pain, suffering and death is due to the

tortious conduct of others and extending to them the survival

cause of action in the same manner and to the same extent as all

other persons to whom the cause of action is extended;

5. Grant to the plaintiff all costs, expert fees and

attorneys fees in connection with the preparation and prosecution

of this action, and grant all other relief the court deems just.

COUNT FIVE

55. On behalf and Karen F. Alexander on behalf of all

members of her class, Dennis Drazin, Esq., individually on his own

behalf, Dennis Drazin, Esq. on behalf of all members of his class,

and Drazin and Warshaw, P.C., individually and on behalf of all

members of its class, repeat and incorporate by reference the

allegations contained in the first fifty-two paragraphs of this

complaint as if set forth at length herein.

56. The defendant, Christine Todd Whitman, individually,

is the Governor of the State of New Jersey, and as such is

responsible for the executive duties of the State of New Jersey.

She is responsible for overseeing the fair and evenhanded

administration and implementation of the rights of all individuals

within New Jersey and ultimately responsible to insure against any

violation of individual constitutional rights of the individuals in New

Jersey. The defendant Deborah T. Poritz, individually, is the

Attorney General of the State of New Jersey and as such is

responsible for the review and correction of laws which violate the

constitutional rights of individuals within New Jersey and for the

supervision of the laws to insure that they are applied in a

constitutional manner.

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57. The concepts and principles of law of equal

protection in due process which form the basis of this complaint

are well known to Christine Todd Whitman and Deborah T. Poritz,

or should have been well known to them, and their failure to

correct the unconstitutional deprivation of the rights of the

plaintiffs, their clients and members of their classes, constitutes a

knowing deprivation of the constitution rights of the plaintiffs, their

clients and the members of their classes.

WHEREFORE, the plaintiff, Karen F. Alexander, individually

on her own behalf, and Karen F. Alexander on behalf of all

members of her class, Dennis Drazin, Esq., individually on his own

behalf, and Dennis Drazin, Esq., on behalf of all members of his

class, and Drazin and Warshaw, P.C., individually and on behalf of

all members of its class, pray this court to grant the judgment

against the defendants Christine Todd Whitman and Deborah T.

Poritz, for money damages together with interest, costs of suit,

expert fees, and attorneys fees and any and all other relief the

court deems just.

CASSIDY, FOSS & SAN FILIPPO

Attorneys for Plaintiff

BY: /s/ Harold J. Cassidy

HAROLD J. CASSIDY, ESQ.

Dated: October 20, 1994

PROVIDE NEW FACTUAL INFORMATION WHICH

CONCLUSIVELY ESTABLISHES THIS FACT. THERE

| AND M

CONCERNING THE BIOLOGICAL AND_ GENETIC

F | T

THE LIFE OF A PERSON BEGINS AT CONCEPTION.

AS A MATTER OF FACT A CHILD CAN

XPERI PAIN BEGINNING AT EIGHT WEEK

AFTER CONCEPTION.

1. The Exploding Revolution of

Molecular Biology Has

Changed Man’s Knowledge of

Developmental Neurology.

Biologically, human beings are made up of molecular

building blocks. Their development is controlled by the genetic

material DNA and RNA which contain instructions carried out by

the synthesis and functioning of proteins. In 1973 most of our

knowledge concerning human identity and development before

birth was based upon gross morphological observations and

biochemical studies on often heroic quantities of material. Since

Roe, there have been many scientific, medical and technological

advances and discoveries.’ They show ignorance, errors of fact

‘Including: (1) Recombinant DNA Technology (allows the production of a

large amount of specific pieces of DNA which assists in DNA probe research); (2)

DNA Probe Technology (use of pieces of DNA that are radioactively labeled to

find a piece of DNA or RNA that is related in sequence); (3) Southern Blot

(combines the separation of molecules by electric charge and size with DNA

probe technology); (4) Northern Blot (combines the separation of molecules by

electric charge and size along with RNA probe technology for DNA); (5) DNA

Mapping (process by which a map is made with guide posts of the DNA available

in a particular sample (including chromosomes)); often accomplished by cutting

the DNA molecule into pieces and then determining from where the pieces were

derived); (6) DNA Finger Printing (a procedure whereby DNA probes to

minisatellite regions of human DNA are used to provide a complex Southern Blot

A-76

and judgment concerning past scientific understanding of the

child's existence as a unique human being, early development,

ability to react to its environment and to feel pain prior to birth.

These techniques permit scientists to observe human existence

pattern; provides a test for relatedness between samples of DNA; used with PCR

such comparisons can be done on as little as one cell from each source; (7)

Polymerase Chain Reaction (PCR) (a test-tube method of amplifying DNA

sequences to billions of times invented in late 1984 used to obtain information

from a single cell); (8) Monoclonal Anti-Body Technology (antibody preparation

which contains only single type of antibody molecule); (9) Hybridona Technique

(used to produce human specific antibodies; detects human proteins or peptides);

(10) Flow Cytometry (cells in suspension, often marked with fluorescent

monoclonal antibodies are intercepted by a beam of light; produces signals which

drive a cell sorting apparatus which sorts and counts cells based upon a desired

property - used to completely remap the nervous system and for prenatal

diagnosis with fetal cells isolated from maternal blood); (11) Improved Ultrasound

Technology (permits observation of the fetus at early ages of gestation); (12)

DNA Methylation (modification of DNA so that it is recognized as different); (13)

Fetal Heart Monitoring (observes the operation of the human heart of the fetus

at early stages of development); (14) Advances in electroence photography which

improve detection of signals of brain activity; (15) DNA cloning (application of

DNA techniques to prenatal diagnosis of certain single gene disorders introduced

in 1976; DNA-based tests first applied for prenatal diagnosis of alpha-

Thalassemia, 1978, sickle cell anemia, 1978, beta-thalassemia, 1980, hemophilia

A, 1985, hemophilia B, 1984, phenylketonuria, 1985, Duchenne and Becker

muscular dystrophy, 1985, cystic fibrosis, 1986, and Huntington’s disease,

1986. Boehm, C.D., et als., "Prenatal Diagnosis by DNA Analysis” In The Unborn

Patient 2nd ed., edited by Michael R. Harrison et al., 82-91 at 82. Philadelphia:

W.B. Saunders Company, (1991); and (16) the use of restriction endonuclease

enzymes. Martinis, J.; et als., "Novel Applications of Monoclonal Antibodies.” In

Basic Biology of New Development in Biotechnology In Basic Life Sciences

25(1983): 129-154, at p. 129-130. Cole, S.C.P., et als., "Human Monoclonal

Antibodies.” Mo/ Cell Biochem 62 (1984): 109-120, at p. 109; Watson, J.D., et

als., Recombinant DNA: A Short Course. San Francisco: W.H. Freman, 1983;

Campbell, A.M. "Monoclonal Antibody Technology” In Laboratory Techniques and

Biochemistry and Molecular Biology, edited by R.H. Burdon and P.H. Van

Knippenberg. Eisevier (Amsterdam), 1985; Arnheim, N., et als., "Polymerase

Chain Reaction.” Chemical & Engineering News (Oct. 1990): 36-47, at p. 36.

White, T.J., et als., "The Polymerase Chain Reaction.” Trends Genet 5(1989):

185-189, at p. 185. Arnheim, N., et als., "Application of PCR: "Organismal and

Population Biology.” Bioscience 40(1990):174-182, at p. 174; Holding, C., et

als., "Diagnosis of Beta-Thalassaemia by DNA Amplification in Single Blastomeres

from Mouse Preimplantation Embryos." Lancet ll (1989): 532-535. Handyside,

A.H., et als., "Biopsy of Human Preimplantation Embryos and Sexing by DNA

Amplification.” Lancet | (1989):347-349.

A-77

and development at a molecular level, applicable in determining

genetic uniqueness, genetic diseases, sex and paternity through

the analysis of human genes well in advance of gross anatomical

observation.

» B The Life of Each Person Begins at Conception.

(a) Recent Developments in Science Support the

Conclusion that the Life of a Human Being

begins at Conception.

All of the genetic information and material necessary for the

complete development of a unique human being is present at the

moment of conception, when the male sperm penetrates inside the

female’s ovum. The child is a complete. separate, unique,

identifiable human being for life from conception and the essence

of the human being is complete.” The genetic information needed

2 Moore, K.L., Before We Are Born, W.B. Saunders (1989) p.25, 26; Gilbert,

S.F., Developmental Biology, Sinauer Ass. Inc., 1985, p.32-37, 58-63; Volpe,

E.P., Seeds of Life, In Biology and Human Concerns (1983), Stout, J., 3rd Ed.

Wm. C. Brown Co., p.18-20; Gilbert, S.F., Developmental Biology, Sinauer Ass.

Inc., 1985, p.32-37, 58-63; Oppenheimer, S.B., et al. Introduction to Embryonic

Development, 1989, Allyn and Bacon; Editorial Production Service, Lifland, et al.

Bookmakers, p.20-60; Bernstein, R. et al. Biology: The Study of Life (1982),

Harcorth, Brace, Jocvanovick, Inc. p. 584; Harlock E.B. Child Development 6th

ed. McGraw-Hill, Inc. 1978 p. 53-54; Goin, O.B. Man and the Natural World 2nd

ed. New York: Macmillan Publishing Co., inc., 1975 p. 183; Clark J. ed. The

Nervous System: Circuits of Communication In The Human Body. Torstar Books,

inc., 1985, p. 99. Volpe, E.P. Biology and Human Concerns, 3rd ed. Wm. C.

Brown Co. 1983, p. 20. Audesirk, G.; and Audesink, T. Biology: Life on Earth.

2nd ed. New York: Macmillian Publishing Company, 1989, p. 587-588. Nelson,

G.E. Biological Principles with Human Applications 3rd ed. New York: John Wiley

& Sons, 1989, p. 247, 288. Jennett, S. Human Physiology. New York: Churchill

Livingstone, 1989, p. 409. Moore, K. Before We Are Born 3rd ed. Philadelphia:

W.B. Saunders Company, 1989, p. 25, 26, 28, 31. Thibodeau, G.A.; and

Anthony, C.P. Structure and Function of the Body 8th ed. St. Louis: Times

Mirror/Mosby College Publishers, 1988, pp. 409-410. Thibodeau, G. Anatomy

and Physiology. St. Louis: Times Mirror/Mosby College Publishing, 1987; Scarr,

S.; Weinberg, R.A.; and Levine A. Understanding Development. Harcourt Brace

Jovanovich, Inc., 1986, p. 86. Craig, G. Human Development 4thed. Englewood

Cliffs, NJ: Prentice-Hall, 1986, p. 57. Schuster, S.h.; and Asburn, S.S. The

—____-_.__ ee

A-78

to create a human being, as these authorities indicate, is D.N.A.

From all of the authorities cited herein, the best analogy for an

understanding of the workings of DNA in conception might be as

follows: Physically, it is analogous to the ribbon of tape that is

Process of Human Development: A Holistic Life-Span Approach 2nd ed. Boston:

Little,

Brown, and Company, 1986, p. 50, 58-59. Crouch, J.E. Functional Human

Anatomy 4th ed. Philadelphia: Lea & Febiger, 1985, p. 31. Gilbert, S.F.

Development Biology. Sunderiand, MA: Sinauer Associates, Inc., 1985, p. 32.

Clark, J. ed. The Nervous System: Circuits of Communication in The Human

Body. Torstar Books, Inc., 1985, p. 99. Clark, J.; ed. Growth and Development:

The Span of Life in The Human Body. Torstar Books, Inc., 1985, p. 9-10. Clark,

J.; ed. Genetics and Heredity: The Biveprints of Life, in The Human Body. Torstar

Books, Inc., 1985. Turner, J.S.; and Helms, D.B. Lifespan Developmental 2nd

ed. CBS College Publishing (Hold, Rinehart, and Winston), 1983, p. 52-53.

Volpe, E.P. Biology and Human Concerns 3rd ed. Dobuque, lowa: Wm. C. Brown

Company Publishers, 1983, p. 18-20. Bernstein, R. and Bernstein, S. Biology:

The Study of Life. New York: Harcourt Brace Jovanovick, Inc., 1982, p. 544,

584. Goldenring, J.M. Development of the Fetal Brain. 307 The New England

Journal of Medicine 564(1982), p. 564. Bryant, N.J. Disputed Paternity. New

York: Brian C. Decker, a Division of Thieme-Stratton, Inc., 1980. Mussen, P.H.;

Conger, J.J.; and Kagan, J. Child Development and Personality 5th ed. New York:

Harper & Row, 1979, p. 52-53. Parker, S. Life Before Birth: The Story of the

First Nine Months. Cambridge: Cambridge University Press, 1979, p. 8, 12.

Harlock, E.B. Child Development 6th ed. McGraw-Hill, Inc., 1978, p. 51, 53-54.

Strand, F.L. Physiology: A Regulatory Systems Approach. New York: Macmillan

Publishing Company, Inc., 1978, p. 542. Fitzgerald, H.E.; Strommen, E.A.; and

McKinney, J.P. Developmental Psychology: The infant and Young Child.

Homewood, IL: The Dorsey Press, 1977, p. 26. Pikunas, J. Human Development:

An Emergent Science. McGraw-Hill, Inc., 1976, p. 111. Mader, S.S. Inquiry into

Life. Dobuque, lowa: Wm. C. Brown Company Publishers, 1976, p. 433.

Sussman, L.N. Paternity Testing By Blood Grouping. Springfield, IL: Charles C.

Thomas Publisher, 1976. Munsinger, H. Fundamentals of Child Development 2nd

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