MENDEZ et al v. UNITED STATES OF AMERICA et al

Filing 103

OPINION. Signed by Judge Noel L. Hillman on 12/7/2016. (dmr)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

MARY O. MENDEZ, ET AL.,
Plaintiffs,
v.

CIVIL NO. 14-7778(NLH/KMW)
OPINION

UNITED STATES OF AMERICA,
ET AL.,
Defendants.
APPEARANCES:
LOREN T. FINESMITH
1521 LOCUST STREET
10TH FLOOR, SUITE 1001
PHILADELPHIA, PA 19102
On behalf of Plaintiffs Mary O. Mendez,
Estate of Bryan Jadiel Mendez, and Miletzy Hernandez
JORDAN MILOWE ANGER
OFFICE OF THE U.S. ATTORNEY
970 BROAD STREET
7TH FLOOR
NEWARK, NJ 07102
On behalf of Defendant United States of America
JARAD L. SILVERSTEIN
CAROLYN R. SLEEPER
PARKER MCCAY PA
9000 MIDATLANTIC DRIVE
SUITE 300
MOUNT LAUREN, NJ 08054
856-596-8900
On behalf of Defendants Cindy Aves, Beryl Kelley, Christine
Ward, Cooper Anesthesia Associates, Cooper University Hospital,
and Cooper University Physicians

HILLMAN, District Judge
Presently before the Court is the motion (Docket No. 82) of
the Defendants Cindy Aves, Beryl Kelley, Christine Ward, Cooper
Anesthesia Associates, Cooper University Hospital, and Cooper
University Physicians (“Defendants”) for partial summary
judgment as to any and all claims made by Plaintiff Miletzy
Hernandez (“Miletzy” or “Hernandez”).1

For the reasons expressed

below, Defendants’ motion will be granted.
FACTUAL BACKGROUND
On July 20, 2010, Mary Mendez (“Mendez”), who was between
37 and 38 weeks pregnant, had a spontaneous rupture of her
membranes and went to Cooper University Hospital for the
delivery of her baby.2 (Docket No. 75 at 8.)

She was moved to

the labor room and electronic fetal and maternal heart rate
monitors were placed on her within minutes of her arriving at
the hospital. (Id.)

Dr. Chang, who was the attending physician

for labor and delivery, had given her prenatal care and was

Co-defendant, the United States of America, has moved to join
this motion. (Docket No. 86.) The Motion of the United States
will be granted.
1

The facts set forth in the Factual Background are from the
allegations of the Amended Complaint. We resolve all factual
disputes and inferences in favor of Hernandez, the non-moving
party. See Boyle v. Cnty. of Allegheny, 139 F.3d 386, 393 (3d
Cir. 1998).
2

2

aware of her gestational diabetes, her morbid obesity, and the
large size of her baby. (Id.)
Dr. Chang informed Mendez that she would have a vaginal
delivery but possibly with suction. (Docket No. 75 at 9.)

The

plaintiffs allege that symptoms of ongoing fetal distress were
not appropriately treated or were ignored by Doctor Chang, other
doctors and nurses throughout Mendez’s labor. (Id.)

Due to the

fetus’s failure to descend and a non-reassuring fetal heart
rate, Dr. Chang decided to immediately perform a cesarean
section. (Id.)

Twenty minutes later, at 3:35 a.m., all monitors

were removed. (Id.)
Plaintiff was moved from the labor room to the operating
room at around 4:00 a.m. (Docket No. 75 at 10.)
rate monitor was attached. (Id.)
given spinal anesthesia. (Id.)

A fetal heart

Around that time, Mendez was
The fetal heart rate dropped

from 140 or more to 70’s or 60’s and just prior to beginning the
cesarean section, to 50 beats per minute. (Docket No. 75 at 1011.)

Delivery was extremely difficult and a tight nuchal cord

was noted at the time of delivery. (Docket No. 75 at 11.)
The baby, Bryan Jadiel Mendez, was delivered at 4:35 a.m.
(Id.)

Bryan “had a heart rate of approximately 10 to 20 beats

per minute upon delivery and no heart sounds 30 seconds after
birth.” (Id.)

The baby was limp at birth and stopped moving.

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(Id.)

The attempts to resuscitate the baby ended at 4:47 a.m.

and he was pronounced dead at 5:00 a.m. (Id.)
Hernandez is Mendez’s sister. (Docket No. 90-1 at 3.)
Mendez and her daughter lived with Hernandez during Mendez’s
pregnancy and at the time Bryan was born. (Id.)

Mendez

continued to live with Hernandez on weekends afterwards. (Id.)
Hernandez sees Mendez’s daughter daily and has a close
relationship with her. (Id.)
Hernandez arrived at the hospital at 6:00 p.m. on the
evening before the birth and stayed with her sister in the labor
and delivery room until Mendez went into the operating room.
(Id.)

Hernandez saw that her sister was connected to fetal

heart rate monitors and heard conversations between the doctor
and her sister as to whether Mendez should continue with natural
childbirth or have a cesarean section. (Id.)

Hernandez believed

the attending nurse, Beryl Kelly, R.N., was not providing Mendez
and the baby with adequate care, including failing to use an
internal fetal heart rate monitor in a timely manner and failure
to give Mendez oxygen. (Docket No. 90-1 at 4.)
Hernandez dressed to go to the operating room for the
cesarean section but was not permitted to enter. (Id.)

She was

in the recovery room and within view of the operating room door.
(Id.)

She saw a doctor and nurse running down the hall to the

operating room. (Id.)

Seeing the staff running, she thought

4

Nurse Kelly, members of the obstetrics and gynecology (OB/GYN)
team in the operating room or both had injured Mendez or the
baby as a result of medical negligence. (Id.)

When the

operating room door was open she saw Bryan intubated and
motionless. (Id.)
alive. (Id.)

She could not tell whether or not he was

About 25 minutes later, someone handed her the

body of the deceased baby Bryan and she fainted. (Id.)
PROCEDURAL BACKGROUND
Plaintiffs filed a complaint in the Superior Court of
Camden County, New Jersey, Law Division against CAMcare, Dr.
Chang, and the other Defendants in this action. (Docket No. 75
at 6.)

The United States of America, a Defendant, removed the

action to the United States District Court, Camden vicinage. See
Mary O. Mendez, et al. v. Eric Chang, D.O., et al., Docket No.
13-2274 (RMB)(D.N.J.).

The United States was substituted as the

proper Defendant in place of CAMcare, Dr. Chang, and other
employees of CAMcare. (Docket No. 75 at 7.)
The United States then filed a motion to dismiss
Plaintiffs’ claims for failure to exhaust their administrative
remedies. (Id.)

The claims against the United States were

dismissed and the remaining claims remanded to state court. Mary
O. Mendez, et al. v. Eric Chang, D.O., et al., Docket No. 132274 (RMB)(D.N.J.)(Docket No. 9).

Plaintiffs timely filed

Federal Tort Claims Act claims with the United State Department

5

of Health and Human Services (HHS). (Docket No. 75 at 7.)
denied the claims. (Id.)

HHS

Plaintiffs had then exhausted their

administrative remedies. (Id.)

The Superior Court of New Jersey

dismissed Plaintiffs’ state action without prejudice by
agreement of the parties so Plaintiffs could reassert their
claims in federal court. (Id.)
Mendez, individually and as the mother of Decedent in her
own right and as Administratrix Ad Prosequendum of the Estate of
Bryan Jadiel Mendez, and her sister, Hernandez, filed a new
federal complaint (Docket No. 1) and an amended complaint
(Docket No. 75) alleging a medical malpractice action against
moving Defendants and others.

Hernandez seeks to recover on a

claim of negligent infliction of emotional distress (Docket No.
75 at 23-25) and five other related claims as well (Docket No.
75.)

Presently before the Court is Defendants’ motion for

summary judgment as to all claims asserted by Hernandez. (Docket
No. 82 at 11.)
JURISDICTION and CHOICE OF LAW
This Court has jurisdiction over this action pursuant to 28
U.S.C. § 1346(b) and 28 U.S.C. § 1367(a) in that one of the
Defendants is the United States.

The United States has

sovereign immunity except where it consents to be sued. U.S. v.
Bormes, --- U.S. ---, 133 S.Ct. 12, 16, 184 L.Ed.2d 317 (2012).
The Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671

6

et seq., provides for a limited waiver of the sovereign immunity
of the United States. 28 U.S.C. § 2679(b)(1); White–Squire v.
U.S. Postal Service, 592 F.3d 453, 456 (3d Cir. 2010).
The FTCA gives a federal district court exclusive
jurisdiction over civil actions,
on claims against the United States, for money damages
. . . for injury or loss of property, or personal
injury or death caused by the negligent or wrongful
act or omission of any employee of the Government
while acting within the scope of his office or
employment, under circumstances where the United
States, if a private person, would be liable to the
claimant in accordance with the law of the place where
the act or omission occurred.
28 U.S.C. § 1346(b); CNA v. U.S., 535 F.3d 132, 141 (3d Cir.
2008)(citing FDIC v. Meyer, 510 U.S. 471, 477, 114 S.Ct. 996,
127 L.Ed.2d 308 (1994)).
FTCA claims are governed by the substantive tort law of
the state where the acts or omissions occurred. See FDIC v.
Meyer, 510 U.S. at 477–78; Ciccarone v. United States, 486 F.2d
253, 257 (3d Cir. 1973).

We therefore apply New Jersey

substantive law to the allegations of the amended complaint.
LEGAL STANDARD: MOTION FOR SUMMARY JUDGMENT
Summary judgment is appropriate where the Court is
satisfied that “‘the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to

7

a judgment as a matter of law.’” Celotex Corp. v. Catrett, 477
U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)(quoting
Fed.R.Civ.P. 56.)

An issue is genuine if it is supported by

evidence such that a reasonable jury could return a verdict in
the nonmoving party's favor. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

A

fact is material if, under the governing substantive law, a
dispute about the fact might affect the outcome of the suit. Id.
“In considering a motion for summary judgment, a district court
may not weigh evidence or determine credibility; instead, the
nonmoving party's evidence “is to be believed and all
justifiable inferences are to be drawn in his favor.” Marino v.
Indus. Crating Co., 358 F.3d 241, 247 (3d Cir.
2004)(quoting Anderson, 477 U.S. at 255)(internal quotations
omitted).
The moving party bears the initial burden of demonstrating
the absence of a genuine issue of material fact. Celotex, 477
U.S. at 323 (“[A] party seeking summary judgment always bears
the initial responsibility of informing the district court of
the basis for its motion, and identifying those portions of ‘the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,’ which
it believes demonstrate the absence of a genuine issue of
material fact.”(citation omitted); see also Singletary v. Pa.

8

Dept. of Corr., 266 F.3d 186, 192 n. 2 (3d Cir. 2001)(“Although
the initial burden is on the summary judgment movant to show the
absence of a genuine issue of material fact, ‘the burden on the
moving party may be discharged by “showing” — that is, pointing
out to the district court - that there is an absence of evidence
to support the nonmoving party's case’ when the nonmoving party
bears the ultimate burden of proof.”)(quoting Celotex, 477 U.S.
at 325).
Once the moving party has met this burden, the nonmoving
party must identify, by affidavits or otherwise, specific facts
showing that there is a genuine issue for trial. Celotex, 477
U.S. at 324.

A “party opposing summary judgment may not rest

upon the mere allegations or denials of the ... pleading[s].”
Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir.
2001)(internal quotations omitted).

To withstand a properly

supported motion for summary judgment, the nonmoving party must
identify specific facts and affirmative evidence contradicting
those offered by the moving party, Anderson, 477 U.S. at 256-57,
and do more than solely rest upon mere allegations, general
denials, or vague statements, Saldana, 260 F.3d at 232.
ANALYSIS
Hernandez asserts claims for indirect or bystander
negligent infliction of emotional distress against the United
States and the other Defendants. (Docket No. 90-1 at 4-5.)

9

Her

claims rest upon her contention that the Defendants negligently
provided obstetrics care for her sister, Mary, and nephew,
Bryan, during labor and delivery, such that he died shortly
after birth.
In Portee v. Jaffee, 84 N.J. 88 (1980), the Supreme Court
of New Jersey set forth a test for a bystander claim for
negligent infliction of emotional distress when there is neither
risk nor actual physical harm to the bystander. Id.

This “new

species of negligence liability” was intended to protect an
interest in personal emotional stability. Id. at 101.

This

cause of action requires the perception of death or serious
physical injury. Id.

The Court explained, “The harm we have

determined to be worthy of judicial redress is the trauma
accompanying the observation of the death or serious physical
injury of a loved one.” Id.

The Court observed, “The emotional

harm following the perception of the death or serious injury to
a loved one is just as foreseeable as the injury itself, for few
persons travel through life alone.” Id. at 101.
The Supreme Court of New Jersey held that a plaintiff must
prove the following four elements in such a claim:

“(1) the

death or serious physical injury of another caused by
defendant’s negligence; (2) a marital or intimate, familial
relationship between plaintiff and the injured person; (3)

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observation of the death or injury at the scene of the accident;
and (4) resulting severe emotional distress.” Id.
In Frame v. Kothari, 115 N.J. 638 (1989), the New Jersey
Supreme Court set out the standard for an indirect claim for
emotional distress resulting from a medical malpractice action.
Gendek v. Poblete, 139 N.J. 291, 300 (1995).

The Frame standard

is a modification of Portee:
[A]n indirect claim for emotional distress
attributable to medical malpractice must be based on
evidence demonstrating that the victim was (1) a
marital or intimate family member of the claimant, and
that the claimant (2) witnessed the malpractice, and
(3) immediately connected or associated the
malpractice with the injury, and (4) as a result,
suffered severe emotional distress.
Gendek, 139 N.J. at 300 (citing Frame, 115 N.J. at 643).
The Court discussed the “special requirements” applicable
to indirect claims involving medical malpractice, wherein the
claimant is required to show that he had “contemporaneously
observe[d] the malpractice and its effects on the victim and
that he [had been] shocked by the results.” Gendek, 139 N.J. at
300 (quoting Carey, id. at 62).

The Court in Frame describes

the special requirements as the “family member witnesses the
physician’s malpractice, observes the effect of the malpractice
on the patient, and immediately connects the malpractice with
the injury. . . .” Frame, 115 N.J. at 649.

The Court said, “The

special requirements for establishing an indirect claim for

11

emotional distress that is based on medical malpractice are
strictly applied.” Gendek, 139 N.J. at 297 (citing Frame, 115
N.J. at 651-52.)
Frame:

Intimate Familial Relationship

The central issue before this Court is whether Hernandez
had an “intimate familial relationship” with her deceased
nephew, Bryan, as required by Portee and Frame.

Under New

Jersey law “intimate familial relationship” is to be construed
restrictively.3

Plaintiffs have not provided the Court with any

New Jersey case law holding that an aunt has an intimate
familial relationship with the injured or deceased person in a
bystander negligent infliction of emotional distress action.
Nor are we aware of any such case law.

In 2012, the Supreme

Court of New Jersey summarized the relationships it had to date
recognized under Portee: “parent, child, spouse or an individual
with whom one shares a marital-like or intimate familial
relationship[.]” McDougall v. Lamm, 211 N.J. 203, 229 (2012).
An aunt was not specifically included in the list.

“In general, our Courts have applied all the elements of
the Dillon-Portee test restrictively.” Dunphy v. Gregor,
136 N.J. 99, 106 (1994). Dillon v. Legg, 68 Cal.2d 728
(1968), is a California case involving bystander emotional
distress, and was cited with approval in Portee. Dunphy,
136 N.J. at 103. In addition, the Dunphy Court said, “We
have similarly encouraged narrow applications of the other
prongs of the Dillon-Portee test.” Id. at 107.
3

12

While the New Jersey courts have not expressly addressed
whether an aunt-nephew relationship falls under Portee and
Frame, it is useful to examine which relationships the courts
have determined are in the protected class and the basis for the
courts’ determinations.

Certainly, a parent and child

relationship is within the class of relationships that could be
an intimate familial relationship.

For example, in the seminal

case of Portee, a mother, who witnessed the suffering and death
of her son who was trapped for over four hours between an
elevator shaft and the door, had an intimate familial
relationship with her son.
Other examples include: (1) a mother who watched her
daughter die soon after an anesthesiologist negligently put
fluids into her daughter’s jugular vein, Polikoff v. Calabro,
209 N.J. Super. 110 (App. Div. 1986); (2) a mother who saw her
son lying in the street after he had been hit by a bus, Mercado
v. Transport of N.J., 176 N.J. Super. 234 (Law Div. 1980); and
(3) the parents whose health care providers negligently treated
their baby as deceased during labor and delivery, even though
the baby was alive, Carey v. Lovett, 132 N.J. 44 (1993).

Thus,

parents are clearly in the class of persons who could have an
intimate familial relationship with a seriously injured or
deceased person under New Jersey law.

13

The reason for including parents in the protected class is
the profound parental emotional interest deserving protection
from negligence.

The Court noted, “[O]nly the most profound

emotional interests should receive vindication for their
negligent injury.” Portee, 84 N.J. at 98.

The Court explained,

“[T]he interest assertedly injured is more than a general
interest in emotional tranquility.

It is the profound and

abiding sentiment of parental love.” Id. at 97.

As to parental

love, the Court explained: “Our analysis of the specific
emotional interest injured in this case — a fundamental interest
in emotional tranquility founded on parental love — reveals
where the limits of liability would lie.” Id. at 98.

Thus, in

general, New Jersey courts have recognized parental love as a
profound love deserving protection under New Jersey law.
Portee and Frame expressly included “marital” relationships
in the definition of intimate familial relationships.

For

example, the Court in Jablonowska v. Suther, 195 N.J. 91, 107
(2008), said Portee requires that “plaintiff has a sensory,
contemporaneous perception of severe injury to a spouse or close
family member[.]”

The New Jersey Court also decided co-

habitating fiancés, like spouses, are within this protected
class. Dunphy v. Gregor, 136 N.J. 99 (1994).

In Dunphy, a

fiancé who lived with her partner and who watched him die in a

14

traffic accident was deemed to have an intimate familial
relationship with him.
Certainly not all relationships in New Jersey fall within
the class of intimate familial relationships as defined by
Portee and Frame.

A woman, who along with her husband took a

child, who was a close family friend and neighbor, to visit a
circus performance did not have an intimate familial
relationship with the boy who was mauled to death by a leopard.
Eyrich for Eyrich v. Dam, 193 N.J. Super. 244 (App. Div.),
certif. denied, 97 N.J. 583 (1984).
family. Id. at 259.

She and the boy were not

Also, a dog owner whose dog was mauled by

another dog was not protected under this law. McDougall v. Lamm,
211 N.J. 203 (2012).4
Central to our analysis is the guidance of the Supreme
Court of New Jersey which has encouraged its courts to construe

Defendants cite Michelman v. Ehrlich, 311 N.J. Super. 57 (App.
Div. 1998), in support of their argument that an aunt, like a
grandfather, does not have an intimate familial relationship
with her nephew. In Michelman, a grandfather was denied his
claim as to the “wrongful birth” of his grandchild. Id.
However, a “wrongful birth” cause of action is different from
the instant cause of action as only parents may bring a wrongful
birth action. See id. at 69. In Michelman, the court determined
no duty of care was owed to the grandfather. Id. The policy
discussion in Michelman regarding wrongful birth, i.e. who has a
right to terminate a pregnancy (not the grandfather), is not
directly relevant to the tort in the instant action. At least
one New Jersey court has assumed a grandparent may have an
intimate familial relationship with a grandchild. See Ortiz v.
John D. Pittenger Builder, Inc., 382 N.J. Super 552, 558 (Law
Div. 2004).
4

15

the elements of Portee narrowly.

The Portee Court described at

length the special nature of parental love and of a mother’s
instinctive love.

To our knowledge, the Court has not broadened

this class to include materteral (aunt) or avuncular (uncle)
relationships.

Nor, as mentioned above, did the McDougall Court

include an aunt-nephew relationship in the list of intimate
familial relationships it had recognized.
We conclude it is not within the province of this Court to
expand the scope of the protected class of persons falling under
New Jersey bystander emotional distress law under these facts.
This deference is particularly important considering the New
Jersey Court’s counsel to define the class narrowly.

Therefore,

this Court construes New Jersey law to hold that at present, an
aunt-nephew relationship, without more, is not an intimate
familial relationship protected under the rules of Portee and
Frame.
Notwithstanding our conclusion, we are also mindful that
the Supreme Court of New Jersey has expressly rejected drawing a
“bright line” to define a bystander-victim relationship. See
Dunphy v. Gregor, 136 N.J. 99, 108 (1994).5

Instead of a bright

In Dunphy, the New Jersey rejected the California Court’s
bright line test which held that a fiancé who cohabitated with
her fiancé did not have an intimate familial relationship with
him because of the “clear rule” that liability would be limited
to persons closely related by blood or marriage. Id. at 106-07.
The New Jersey Court opted not to use a bright line test in part
5

16

line test, the New Jersey Court embraces using a traditional
tort analysis in considering a bystander liability cause of
action:
Nothing in our experience with bystander liability
counsels a departure from our accustomed application
of the traditional principles of tort law. Rather, we
are convinced that the solution to the posed question
lies not in a hastily-drawn “bright line” distinction
between married and unmarried persons but in the
“sedulous application” of the principles of tort law,
which inform our ultimate determination that a
particular claimant is owed a duty of care.
Id.

In applying the traditional principles of tort law to the

facts in this action, the central question becomes, “Did the
health care providers owe a duty of reasonable care to the aunt,
Miletzy, as to their acts involving the newborn, Bryan?”

We

conclude that they did not.
The Court described the law regarding duty: “In the law of
negligence, including that pertaining to family torts, the scope
of a duty depends generally on the foreseeability of the
consequences of a negligent act, as limited by policy

because it concluded that unlike California’s experience,
bystander liability was not becoming too expansive and
burdensome in New Jersey. Id. at 108. The Court explained, “In
short, we have countenanced no rapid or radical expansion of
bystander liability since Portee.” Id. Rather, the Supreme
Court of New Jersey said the two states’ experiences were not
parallel because the New Jersey Courts had applied the elements
of Dillon and Portee restrictively. Id. at 105-06. The New
Jersey Court also rejected the California Court’s approach of
drawing a bright line in order to have a “sufficiently definite
and predictable test to allow for consistent application from
case to case.” Id. at 105 (quotations and citations omitted).
17

considerations and concerns for fairness.” Carey, 132 N.J. at
57; see also, Dunphy, 136 N.J. at 108.

Our analysis of the duty

owed to Hernandez by the health care providers focuses,
therefore, on: (1) foreseeability, (2) public policy, and (3)
fairness.
The Court explained the connection between foreseeability
and an intimate familial relationship:
One can reasonably foresee that people who enjoy an
intimate familial relationship with one another will
be especially vulnerable to emotional injury resulting
from a tragedy befalling one of them. Foreseeability
based on that standard, as recognized by the Appellate
Division majority, preserves the distinction that must
be made between ordinary emotional injuries that would
be experienced by friends and relatives in general and
those indelibly stunning emotional injuries suffered
by one whose relationship with the victim at the time
of the injury, is deep, lasting, and genuinely
intimate.
Dunphy, 136 N.J. at 109, 110 (quotations and citations omitted).
Thus, New Jersey law draws a distinction between (1)
“friends and relatives in general” who might experience ordinary
emotional injuries and (2) those who at the time of the injury
had a “deep, lasting, genuinely intimate” relationship with the
victim.

Simply being a relative alone is insufficient to

satisfy the foreseeability requirement.
The Dunphy Court discussed the factors that should be
considered in determining whether a relationship is an intimate
familial relationship:

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That standard must take into account the duration of
the relationship, the degree of mutual dependence, the
extent of common contributions to a life together, the
extent and quality of shared experience, and, as
expressed by the Appellate Division, whether the
plaintiff and the injured person were members of the
same household, their emotional reliance on each
other, the particulars of their day to day
relationship, and the manner in which they related to
each other in attending to life's mundane
requirements.
Dunphy, 136 N.J. at 112 (citation and quotation omitted).
In deciding that a cohabitating fiancé had an intimate
familial relationship with her fiancé, for example, the Supreme
Court of New Jersey concluded:
An intimate familial relationship that is stable,
enduring, substantial, and mutually supportive is one
that is cemented by strong emotional bonds and
provides a deep and pervasive emotional security. We
are satisfied that persons who enjoy such an intimate
familial relationship have a cognizable interest in
the continued mutual emotional well-being derived from
their relationship. When that emotional security is
devastated because one witnesses, in close and direct
proximity, an accident resulting in the wrongful death
or grievous bodily injury of a person with whom one
shares an intimate familial relationship, the
infliction of that severe emotional injury may be the
basis of recovery against the wrongdoer.
Dunphy, 136 N.J. at 115.
Hernandez did not have the intimate familial relationship
described by Dunphy.

It is difficult to imagine a loss more

painful that the death of a newborn, but it would be impossible
for Hernandez to have the “stable, enduring, substantial, and
mutually supportive” relationship with the newborn whom she

19

never saw alive.6

For the same reason, she did not have a

relationship with him “that [was] cemented by strong emotional
bonds” and a “deep and pervasive emotional security.” Id.

There

was no relationship, no mutual dependence, no common
contributions to life together, no shared experiences and no
shared household.

Hernandez’s statement that “Bryan’s mother

and sister, Olga, resided with his aunt Miletzy Hernandez when
he was in utero[.]” (Docket No. 90-1 at 5.) does not change our
conclusion.

Nor does her assertion that she accompanied and

stayed with the baby’s mother throughout labor and delivery
change our calculus.

Her love and support for her sister and

her baby notwithstanding, she does not have an intimate familial
relationship as described by Dunphy.
Nor are the claims of Hernandez cognizable under Carey, 132
N.J. 44 (1993), which involved negligent obstetrics care.

The

Court discussed whether the mother and the father were making
direct or indirect claims.

The New Jersey court drew a clear

distinction between a mother’s and a father’s relationship to a
newborn and naturally elevated the former over the latter.

An

aunt’s relationship to the newborn, is more remote than the
mother’s relationship to the baby, and ordinarily, more remote
than the father’s relationship to the baby.

This excludes the moment the operating room door was open when
she might have seen him alive.
6

20

The Carey court discussed the dichotomy of the mother’s and
father’s relationship to the baby during childbirth given her
unique physiological connection to the baby. Id. at 56-62.

The

Court observed that the mother, as a matter of simple biology,7
necessarily has an intimate familial relationship with her
newborn.

On the other hand, the Court held, whether a father

does depends upon whether his relationship has the intimacy to
support such an action. Carey, 132 N.J. at 60-61.

A father does

not automatically have an “intimate familial relationship”
status because “[n]o matter how intimately involved in the birth
of his child the father may be, his role differs from that of
the mother.” Id. at 60.8

Rather, in the case of the father,

Carey, 132 N.J. at 59 (“Our analysis begins by recognizing that
the physical and emotional ties between mother and fetus so
unite them that a physician should anticipate that any
malpractice that adversely affects the fetus will cause
emotional distress to the mother.”)
7

In Carey, the Court distinguished between the mother’s and
father’s claim for emotional distress. Id. at 56-62. As the New
Jersey Supreme Court later noted:
8

If the obstetrical malpractice occurs during
pregnancy, and the fetus, although born alive, suffers
injuries that are ultimately fatal, the child may
plausibly be considered as the primary victim. It
does not necessarily follow, however, that the
mother's claim for emotional distress that arises from
the victimization of her infant should be considered
an indirect claim. In that setting, the special
requirements that are imposed to establish an indirect
claim for negligent infliction of emotional distress,
as exemplified by Portee, would appear to be
superfluous. Those special requirements serve to
21

courts must determine whether he has “an intimate family
relationship to the mother and baby” and whether he was “drawn
sufficiently into the treatment of the mother and the baby” to
conclude the physician’s duty to him is like that owed to the
mother. Id. at 61.
We are unable to conclude on these facts that Hernandez’s
relationship with her newborn nephew – one ordinarily more
attenuated than that of a father and child - is equivalent to
the parents’ relationship with their newborn child so as to make
the health care providers’ duty to her a foreseeable one.
Unlike her sister, Hernandez was not biologically intertwined
with the baby during the gestation period. See Gendek, 139 N.J.
at 298 (“[A] pregnant woman and her fetus are one physiological
unit[.]”).

She did not endure months of pregnancy.

She did not

assure the genuineness of the claim for emotional
distress and the basic fairness and reasonableness in
imposing liability for that kind of emotional distress
on the tortfeasor. However, no need exists, as
recognized by Carey, to impose on the mother, who has
herself been a victim of malpractice during pregnancy
or the delivery of her child, the added requirements
that she “be contemporaneously aware of the
malpractice and the injury of her fetus” or be
“shocked” by the malpractice. Her emotional distress
over the condition and fate of her newborn baby is
unquestionably immediate and genuine and inextricably
related to the malpractice.
Gendek v. Poblete, 139 N.J. 291, 298-99 (quoting Carey, at
60).

22

go through the pain of labor and childbirth.

Unlike Mendez, she

did not have a doctor-patient relationship with the health care
providers.

She had neither legal rights nor responsibilities as

to the baby.

And, as we previously explained, she did not have

the Court-recognized profound parental love.
Nor does her relationship equate with that of a father.
She was not the baby’s parent and therefore not immediate
family.

Again, she had no legal rights and no responsibilities

for the baby.

She had no financial obligations for the baby.

Her name was not on the birth certificate.

She did not share

the doctor-patient relationship with the mother and the baby’s
health care providers.

She was not sufficiently drawn into the

obstetrics care for the mother and baby.

Her relationship did

not have the intimacy to support such an action.

For all of

these reasons, it was not foreseeable to the health care
providers that Hernandez would sustain emotional harm as a
result of their negligent actions.
Defendants argue that under Carey, only “a mom and a dad”
can bring claims for emotional distress based upon negligence
affecting a fetus. (Docket No. 92 at 2.)

They say only direct

claims and not bystander claims are actionable under Carey.
(Docket No. 92 at 2.)

They contend that an aunt’s claim would

be indirect, and for that reason, not cognizable under Carey.
They argue that “Miletzy cannot establish an intimate familial

23

relationship because she never developed a relationship with the
fetus.” Id.

Their conclusion is “That is why the law says it is

a direct claim only when the injury involves a fetus—only mom
and dad have that standing to pursue such a claim.” Id.
Contrary to Defendants’ contention, Carey did not hold that
only mothers and fathers can bring a claim for emotional
distress involving harm to a fetus because both are direct
claims. As we discuss below, Carey held that a father’s
obstetrics malpractice claim would be an indirect claim, not a
direct claim.9

This characterization as indirect would not bar

him from bringing a claim.

Therefore, it follows that neither

would characterizing an aunt’s claim as indirect bar her from
bringing a claim.
In Carey, the Court minimized the importance of the
classifications.

They concluded the characterization of the

claim as direct or indirect should have no bearing on whether
the person could bring an action: “The characterization of a
claim as direct or indirect, although useful for distinguishing
claims in which the source of the emotional distress is an
injury to the claimant from those in which the injury is to

The Supreme Court of New Jersey has provided that only parents
may bring a wrongful birth action for the policy reason
discussed in Michelman, see supra note 4, but it appears the
Court has not applied this sweeping rule to obstetrics
malpractice actions involving the negligent care and delivery of
a baby.
9

24

another, should not predetermine the rights of the parties.”
Carey, at 57.
If the Court’s discussion in Carey about the complexities
of the direct and indirect classifications of mothers and
fathers claims resulted in any ambiguity about the
classification of a father’s claim,10 the ambiguity later faded
away, as in Gendek the Court said: “[In Carey], the father,
unlike the mother, was not a direct object of any medical
malpractice, and consequently his claim was considered to be an
indirect claim for emotional distress.” Gendek v. Poblete, 139
N.J. 291, 299-300 (1995).
Thus, we do not agree that Carey holds that only a “mom and
dad” can bring an action involving a fetus because only they
have direct claims in such actions.

While, ultimately we agree

with Defendants that Hernandez does not have a cognizable claim,
we come to that conclusion on other grounds.

Justice Handler in Carey v. Lovett, 132 N.J. 44, 70-74
(1983)(Handler, J. concurring), spoke about the majority’s
characterization of claims in his concurring opinion. He said
“I am puzzled and troubled by the Court’s reasoning, which in
some ways relegates the mother to the status of a mere bystander
when it is painfully obvious that she herself is the patient.”
Id. at 71. He also argued the father should not be regarded as
a “bystander in the treatment of his wife.” Id. at 74. He said
the Court had decided a duty was owed to both the mother and
father in other cases involving newborns, such as those
concerning malpractice in genetics counseling, and he argued
that both parents should have a direct claim, here, as well. Id.
at 73-74.
10

25

New Jersey courts look not only to foreseeability when
analyzing whether the providers owe a duty, but also to public
policy:
Our concern is not only with the genuineness of
emotional-distress claims and speculative damages but
also with the effects of the expansion of liability on
the medical profession and society. Expanding
liability should entail the balancing of many
interests: a weighing of the relationships of the
parties, the nature of the risk, and public interest
in the proposed solution. Malpractice insurance
premiums for all health care providers have risen from
$60 million in 1960 to $7 billion in 1988; $5 billion
of these premiums are paid by physicians. These
premiums are a very substantial portion of the $105
billion directly spent on physicians' services in
1988.
Carey, 132 N.J. at 58, 59 (quotations and citations omitted.)
In the concurring opinion in Frame v. Kothari, 115 N.J. 638
(1989), Chief Justice Wilentz and Justice Garibaldi echoed this
sentiment.

They explained, “The torts process, like the law

itself, is a human institution designed to accomplish certain
social objectives.

Courts have always shaped the law of

negligence to further societal interests in curtailing or
encouraging certain types of behavior.” Id. at 650 (citation and
quotation omitted).

They added, “These societal interests must

be protected through continual re-evaluation.” Id. at 651.
Chief Justice Wilentz and Justice Garibaldi warned about
the costs to society of increasing medical malpractice
liability:

26

We suspect that the cost to society of expanding
medical malpractice liability to allow a family member
to recover for his or her emotional distress as a
result of a physician's improper diagnosis will
outweigh the benefits to society. Possible costs to
society include the increasing number of physicians
who refuse to practice in certain fields, the cost, in
all fields, of an increase in “defensive
medicine,” and the increasing cost of medical
treatment itself. The loss is the failure to
compensate for the suffering of family members arising
from the death or serious injury of a loved one caused
by medical malpractice.
Id. at 651-52. (footnotes with citations and quotations
omitted).
We see nothing in New Jersey law that suggests the New
Jersey Supreme Court would strike this public policy balance
differently now than they did in Frame and expand the class of
individuals capable of bringing bystander emotional distress
actions.

The New Jersey Supreme Court would likely conclude

that expanding the foreseeable class of potential plaintiffs to
a virtually unlimited class of aunts, uncles, cousins and other
extended family members in a bystander action involving
obstetrics malpractice and a newborn would not serve the public
interest.

Expanding liability to that degree would be

inconsistent with the restrictive construction of the class as
articulated by the precedents of that Court.

And importantly,

no additional appreciable deterrence would be gained by adding
an aunt to the class of potential plaintiffs. See Frame, 115
N.J. at 652(concurring opinion)(“We do not believe that the

27

majority achieves any additional deterrence given the present
state of medical malpractice liability.”)(Footnote with citation
omitted.)
Lastly, we look to fairness.

In Portee, the Court quoted

Chief Justice Weintraub who described fairness and duty:
“Whether a duty exists is ultimately a question of fairness.
The inquiry involves a weighing of the relationship of the
parties, the nature of the risk, and the public interest in the
proposed solution.” Portee at 101 (citing Goldberg v. Housing
Auth. Of Newark, 38 N.J. 578 (1962)(emphasis in original.)

We

conclude it would be unfair for the health care providers to owe
a duty of care to Hernandez.

The health care providers did not

have a doctor-patient relationship with Hernandez.

The doctor-

patient relationship was only between the providers and the
mother and the baby.

The risk was very targeted — to the baby.

Expanding the protected class would not change that.

Finally,

in concluding that an aunt is not included in the protected
class, we address the interest in “prevent[ing] liability from
exceeding the culpability of defendant’s conduct.” Portee, at
101.
Admittedly, as to fairness, the Carey Court recognized the
absence of a physician-patient relationship between a father and
a doctor.

Regarding a father, they said “The absence of such a

relationship, however, does not necessarily preclude the

28

existence of a duty extending from the physicians to the
father.” Carey, 132 N.J. at 61.

The Court said, “When the

father is drawn sufficiently into the treatment of the mother
and the baby, the physician’s duty to him is like that owed to
the mother.” Id.

So while the father might not, de jure, have a

relationship with the health care providers, the Court
overlooked this if a father were de facto sufficiently involved
in the treatment of the mother and baby.

The Court has not

drawn a parallel analysis for other relatives of the baby.
By opening the obstetrics team up to liability to an aunt,
and by extension to others outside the nuclear family who may be
bystanders to malpractice, obstetrics health care providers
could be exposed to unprecedented liability to third parties.
We are confident that New Jersey courts would view this result
as unfair to the medical profession.
For all these reasons, this Court concludes that under a
traditional tort analysis as defined by the New Jersey courts,
on the facts of this case, the doctors did not owe a reasonable
duty of care to Miletzy regarding any malpractice involving
Bryan and Mary.

In reaching this result, we recognize that we

are drawing a line.

The Supreme Court of New Jersey explained

it is the business of the courts to draw lines:
Whenever a court draws lines, it risks the criticism
of arbitrariness. Drawing lines, however, is the
business of the courts, and lines must be drawn to

29

provide remedies for wrongs without exposing
wrongdoers to unlimited liability. Our task is to
draw the boundary of a claim that permits recovery for
the added stress caused by medical misdiagnosis
without unreasonably burdening the practice of
medicine.
Id., 115 N.J. at 649.

We are confident that this is the line

the Supreme Court of New Jersey would draw.
Frame:

Observation of Malpractice

Even if Hernandez had satisfied the intimate familial
relationship prongs of Portee and Frame, by her own admissions,
she cannot satisfy the Frame special requirements that she
observed the malpractice and immediately connected it to the
injury or death.

As mentioned above, these special requirements

in Frame are strictly applied. Gendek, 139 N.J. at 297.
As to medical malpractice cases in other jurisdictions
wherein the emotional distress claims were denied, the Supreme
Court of New Jersey in Frame explained:
[T]he common thread running through these cases is
that a misdiagnosis normally does not create the kind
of horrifying scene that is a prerequisite for
recovery. Rarely will a member of the patient’s
family contemporaneously observe the immediate
consequences of the defendant’s misdiagnosis, and even
more rarely will the consequences of the misdiagnosis
be the injury or death of a loved one contemplated by
the gruesome scene portrayed in Portee.
Frame, 115 N.J. at 647-48.
Hernandez says when she saw a doctor and nurse running to
the operating room, she believed “Mary Mendez, the baby, or both

30

had been injured as a result of medical negligence by Nurse
Kelley in the delivery room, by member(s) of the ob/gyn team in
the operating room, or both.” (Docket No. 90-1 at 4).

Her

assertions that: (1) someone (Nurse Kelley, the OB/GYN team or
both); (2) might have given some kind of negligent care (a lack
of oxygen, the failure to timely use a fetal heart monitor, some
other unspecified inadequate care or some act or inaction in the
operating room); (3) with the negligent care being given to
someone (Mendez, the baby or both); (4) at some place (either in
the labor room or the operating room or both); (5) thus possibly
in her presence or not in her presence; (6) resulting in the
baby’s later tragic demise while not in her presence are too
speculative and remote to satisfy the strict requirements of
Frame and Gendek.
As to the purported malpractice, she is not able to answer
the simple questions of “Who?” did “What?” “To whom?” and
“Where?” and “When?”

Speculating or assuming without any

foundation, knowledge, medical training, or something more, that
the care to someone, witnessed or not witnessed, might be
negligent, is not contemporaneously observing malpractice for
purposes of this law.
Hernandez expressly admits she was barred from entering the
operating room. (Docket No. 90-1 at 8.)

While she says she

could see into the room when the door was opened by the doctor,

31

she does not allege that she observed the operation.

She

observed the doctor and nurse running to the operating room to
administer urgent care to the baby, but this does not qualify as
observing malpractice.

She saw the baby intubated and

motionless through the operating room door, and did not know if
the baby were alive, however this was not observing malpractice.
Hernandez did not see the fetal heart rate dropping to 60’s
or 70’s from 140’s.

She did not see the baby in distress.

did she see the baby limp at birth and then not moving.
not present when the baby was pronounced dead.

Nor

She was

While seeing her

deceased nephew not long after delivery was likely very
distressing, she witnessed the result of the asserted
malpractice and not the act of malpractice.

Our conclusion is

that because no reasonable juror could find that she
contemporaneously observed the malpractice, she could not have
connected the malpractice with the baby’s death as required by
Frame and Gendek.

CONCLUSION
In sum, as to a bystander emotional distress action
involving malpractice in the delivery of a baby, under New
Jersey law: (1) on these facts an aunt is not within the class
of persons who has an “intimate familial relationship” with her
newborn nephew and (2) even if Hernandez were within the class

32

of persons who could have an intimate familial relationship with
a newborn, under a traditional tort and negligence analysis, she
was owed no duty of reasonable care by the health care providers
who delivered and cared for her sister’s baby.

Lastly, even if

Hernandez did have an intimate familial relationship with her
nephew, she did not observe the medical malpractice and
therefore did not meet the strict special requirements of Frame
and Gendek.
We pause to note that in reaching this conclusion, we do
not mean to minimize the grief and sadness Hernandez no doubt
feels over the loss of her nephew.

But as the Appellate

Division of the New Jersey Superior Court observed in a similar
context, there must be reasonable limitations on who can recover
for their emotional harm:
Here defendants violated a duty owed Harold Brehm.
While this no doubt caused Bernadette Brehm emotional
distress, there must be some reasonable limitation on
who may be awarded damages for improper conduct. In
many situations wrongful conduct by a person may cause
emotional distress to third parties. For example,
wrongful discharge of an employee may cause severe
emotional distress to the employee's spouse.
Similarly, medical malpractice resulting in injury to
a patient could result in emotional distress to the
patient's spouse. In our view extension of the right
to recover to Bernadette Brehm in this case would be
unreasonable.
Brehm v. Pine Acres Nursing Home, 190 N.J. Super. 103, 110 (App.
Div. 1983)(dismissing emotional distress action by wife of
nursing home patient brought against nursing home and others).

33

Here, as in Brehm, there must be some reasonable limit on
who may recover for the negligence of others.

In light of the

important policy considerations in a case of this kind, we leave
it to the New Jersey Supreme Court to expand the scope of
liability for bystander emotional distress claims, if they so
decide.11
Accordingly, the Court will grant the motion of the Codefendant, the United States of America, to join this motion, as
referenced in Footnote 1.

Defendants’ motion for partial

summary judgment will be granted as to all the claims of
Plaintiff Miletzy Hernandez.

Appropriate Orders will be

entered.

Dated: December 7, 2016
At Camden, New Jersey

s/ Noel L. Hillman
Noel L. Hillman, U.S.D.J.

In a Pennsylvania action, the Superior Court of Pennsylvania
affirmed the dismissal of a complaint against a landowner in a
bystander negligent infliction of emotional distress action.
The action was brought by a cousin who had witnessed his cousin
drown in a pool. Blanyar v. Pagnotti, 451 Pa. Super. 269, (1996)
aff’d, 551 Pa. 313 (1998)(per curiam)(internal citation
omitted). While the decision involves Pennsylvania law, the
issues are similar and the discussion is illuminating. In terms
of public policy, the Court said, “Were we to accept appellant's
argument and hold actionable all emotional trauma causally
connected to the Defendant's tortious conduct, we would [wreak]
upon our society a problem of unlimited or unduly burdensome
liability.” Blanyar, 451 Pa. Super. at 277. The Court added,
“Moreover, because of the important and far reaching public
policy concerns involved, any further extension of recovery for
the tort for negligent infliction of emotional distress should
come from our Supreme Court.” Id. The same holds true here, as
to the New Jersey Supreme Court.
11

34