MALITON et al v. UNITED STATES OF AMERICA

Filing 79

OPINION & ORDER granting 57 Motion to Dismiss ; granting 61 Motion for Partial Summary Judgment; granting 62 Motion to Dismiss. Signed by Judge Stanley R. Chesler on 1/20/16. (sr, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
____________________________________
:
MATEUSZ MALITON et al.,
:
:
Plaintiffs,
:
Civil Action No. 12-1610 (SRC)
:
v.
:
:
OPINION & ORDER
UNITED STATES OF AMERICA et al.,
:
:
Defendants.
:
____________________________________:
CHESLER, U.S.D.J.
This matter comes before the Court on three motions: 1) the motion to dismiss any and all
wrongful birth claims and to limit plaintiffs’ damages to those for wrongful pregnancy only by
Defendants Nicholas Marino, St. Joseph’s Hospital & Medical Center, and Irina Tkach-Chubay
(the “Marino Motion”); 2) the motion to dismiss any and all wrongful birth claims and to limit
plaintiffs’ damages to those for wrongful pregnancy only by Defendant Roger Kierce (the “Kierce
Motion”); and 3) the motion for partial summary judgment by Defendant the United States of
America. For the reasons stated below, the three motions will be granted.
This case arises from a dispute over allegations of medical malpractice resulting in the
wrongful birth of a child, Plaintiff Mateusz Maliton (“Mateusz”), who has Downs’ syndrome. The
Plaintiffs are Mateusz and his mother and father, Maria Kapalka and Marek Maliton. The Second
Amended Complaint (“SAC”) alleges that Ms. Kapalka received medical treatment from
Defendant physician Dr. Tkach-Chubay at North Hudson Community Action Corporation Health
Center (“North Hudson”). The SAC alleges that North Hudson Community Action Corporation
Health Center is a federally qualified health center. The SAC also alleges that Ms. Kapalka

received medical treatment from Defendant physicians Drs. Marino and Kierce at Defendant St.
Joseph’s Hospital and Medical Center (“St. Joseph’s”).
Very briefly, the SAC alleges the following facts. In 2009, Ms. Kapalka received pre-natal
care from Dr. Tkach-Chubay at North Hudson, and she was advised to have a tubal ligation
performed during the delivery of the child. The child, Tomasz, was born in a delivery performed
at St. Joseph’s, but no tubal ligation was performed. Despite this, staff at North Hudson informed
Ms. Kapalka that a tubal ligation had been performed. Subsequently, Mr. Kapalka became
pregnant again, and gave birth to Mateusz, who was born with Downs’ syndrome.
The SAC contains five claims, all for negligence on the part of the treating physician and
hospital entity Defendants, seeking damages related to the birth of Mateusz, including the costs of
raising him. Plaintiffs’ opposition brief states their position candidly:
The case before this Court is one of first impression. No reported New Jersey case
has addressed a cause of action for wrongful pregnancy arising out of a failed
sterilization procedure which, as here, has resulted in the subsequent conception
and birth of a child with a birth defect.
...
Plaintiffs do not claim damages based on wrongful birth since Ms. Kapalka was not
deprived of the opportunity to terminate her pregnancy. Rather, she chose to give
birth to her son after prenatal testing disclosed the birth defect.
Notwithstanding, Plaintiffs maintain that . . . they should be entitled to recover the
extraordinary medical and life care expenses associated with raising their infant
son, and should not be confined to the limited damages awarded in prior New
Jersey cases where the wrongful pregnancy resulted in the birth of a normal child.
Plaintiffs assert that damages should be expanded in wrongful pregnancy cases such
as the present one so that New Jersey’s previously undeveloped wrongful
pregnancy doctrine will more appropriately correspond to its related and fullyformed law on wrongful birth.
(Pls.’ Opp. Br. 1-2.) Plaintiffs thus begin by conceding that their claims are not valid under
existing New Jersey law, and that, in bringing them, they ask this Court to develop and expand

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New Jersey law. The first question is, then: can it?
The Third Circuit has held: “In adjudicating a case under state law, we are not free to
impose our own view of what state law should be; rather, we are to apply existing state law as
interpreted by the state’s highest court in an effort to predict how that court would decide the
precise legal issues before us.”1 Horsehead Indus., Inc. v. Paramount Commc’ns, Inc., 258 F.3d
132, 140 (3d Cir. 2001). Furthermore:
When the state’s highest court has not addressed the precise question presented, a
federal court must predict how the state’s highest court would resolve the issue.
Although not dispositive, decisions of state intermediate appellate courts should be
accorded significant weight in the absence of an indication that the highest state
court would rule otherwise.
Orson, Inc. v. Miramax Film Corp., 79 F.3d 1358, 1373 n.15 (3d Cir. 1996) (citations omitted).
Plaintiffs contend that the New Jersey Supreme Court has not addressed the precise question
presented here. This Court must therefore predict how the New Jersey Supreme Court would
resolve this issue.
Plaintiffs’ opposition brief, while contending that this case presents an issue of state law of
first impression, and conceding that existing law does not allow them the full extent of the
damages they seek, fails to persuade this Court that, nonetheless, the New Jersey Supreme Court,
hearing these motions, would decide them in their favor. Plaintiffs offer this Court no basis to

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This holding alone requires a decision against Plaintiffs, whose argument strives to say
what New Jersey law should be. As the Third Circuit held, federal courts may not impose their
views of what state law should be. They base decisions on what state law is. See also City of
Philadelphia v. Lead Indus. Ass’n, 994 F.2d 112 (3d Cir. 1993) (“Federalism concerns require
that we permit state courts to decide whether and to what extent they will expand state common
law. Our role is to apply the current law of the appropriate jurisdiction, and leave it
undisturbed.”)

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predict a resolution of these questions of state law in their favor by New Jersey’s highest court. To
the contrary, Plaintiffs’ presentation of New Jersey law supports a prediction in favor of
Defendants.
Plaintiffs’ argument for why this Court should develop and expand New Jersey law is as
follows. New Jersey tort law recognizes a cause of action for wrongful pregnancy, negligence in
the performance of a sterilization procedure. Plaintiff states that there are three relevant New
Jersey state court cases: J.P.M., Portadin, and Betancourt. J.P.M. and Portadin are Appellate
Division cases; Betancourt is a trial court decision. The New Jersey Supreme Court offered this
summary and commentary on these cases:
Two recent decisions of the Appellate Division highlight the problem of assessing
damages in wrongful conception, wrongful birth and wrongful life cases. In P. v.
Portadin, 179 N.J. Super. 465 (1981), a husband and wife sued for certain expenses
resulting from the birth of a normal child following the allegedly negligent
performance of a sterilization procedure upon the wife. Relying on Berman, supra,
the Appellate Division concluded that plaintiffs were precluded from recovering
any expenses for raising their child. The court also concluded, however, that the
wife may recover for ‘the pain and suffering accompanying her pregnancy and
delivery and for the wages lost during that period, and that her husband may
recover for loss of consortium and for the medical expenses incurred which are
attributable to the pregnancy and delivery.’ P., supra, 179 N.J. Super. at 472. The
court disapproved Betancourt v. Gaylor, 136 N.J. Super. 69 (Law Div.1975), which
held that the costs of raising a child could be recovered in an action for “wrongful
pregnancy” based on negligent sterilization when a normal child is born. In another
case, J.P.M. v. Schmid Laboratories, Inc., 178 N.J. Super. 122 (1981), a husband
and wife sued the manufacturer of contraceptive devices in negligence, breach of
warranty and strict liability alleging that a defect in a condom caused the wife to
become pregnant and give birth to normal twins. The Appellate Division held that
interspousal immunity did not preclude a cross-claim for contribution by the
manufacturer against the husband for negligent use of the condom. The court
declined to permit damages for costs of raising and educating the twins. In this
opinion, we neither approve nor disapprove of those decisions.
Schroeder v. Perkel, 87 N.J. 53, 69 n.2 (1981). From this summary, we learn that the Appellate
Division rejected the holding of the trial court in Betancourt, and that the New Jersey Supreme
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Court did not indicate what it thought about the decisions in J.P.M. and Portadin.
Plaintiffs note that, in J.P.M. and Portadin, the Appellate Division relied upon the New
Jersey Supreme Court’s decision in Berman v. Allan, 80 N.J. 421, 425 (1979), a case in which
parents brought suit against physicians who allegedly provided negligent prenatal care, resulting in
the birth of a child with Downs’ syndrome:
The claim for damages asserted on behalf of the infant Sharon has aptly been
labeled a cause of action grounded upon “wrongful life.” Sharon does not contend
that absent defendants' negligence she would have come into the world in a normal
and healthy state. There is no suggestion in either the pleadings below or the
medical literature which we have scrutinized that any therapy could have been
prescribed which would have decreased the risk that, upon birth, Sharon would
suffer from Down’s Syndrome. Rather, the gist of the infant’s complaint is that had
defendants informed her mother of the availability of amniocentesis, Sharon would
never have come into existence.
The claim for damages asserted on behalf of the infant Sharon has aptly been
labeled a cause of action grounded upon “wrongful life.” Sharon does not contend
that absent defendants' negligence she would have come into the world in a normal
and healthy state. There is no suggestion in either the pleadings below or the
medical literature which we have scrutinized that any therapy could have been
prescribed which would have decreased the risk that, upon birth, Sharon would
suffer from Down's Syndrome. Rather, the gist of the infant’s complaint is that had
defendants informed her mother of the availability of amniocentesis, Sharon would
never have come into existence.
As such, this case presents issues different from those involved in malpractice
actions where a plaintiff asserts that a defendant’s deviation from sound medical
practices increased the probability that an infant would be born with defects. Nor
are we here confronted with a situation in which an individual’s negligence while a
child was in gestation caused what otherwise would have been a normal and healthy
child to come into the world in an impaired condition. Here, defendants’ alleged
negligence neither caused the mongoloid condition nor increased the risk that such
a condition would occur. In the words of the Gleitman majority, “the infant
plaintiff [asserts] . . . not that [she] should have been born without defects but
[rather] that [she] should not have been born at all. . .” 49 N.J. at 28. In essence,
Sharon claims that her very life is “wrongful.”
Id. at 426-27 (citations omitted). The Court then used clear, dramatic language to explain why it

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rejected the wrongful life claim:
One of the most deeply held beliefs of our society is that life – whether experienced
with or without a major physical handicap – is more precious than non-life.
Concrete manifestations of this belief are not difficult to discover. The documents
which set forth the principles upon which our society is founded are replete with
references to the sanctity of life. The federal constitution characterizes life as one of
three fundamental rights of which no man can be deprived without due process of
law. U.S. Const., Amends. V and XIV. Our own state constitution proclaims that
the “enjoying and defending [of] life” is a natural right. N.J. Const. (1947), Art. I, §
1. The Declaration of Independence states that the primacy of man's “unalienable”
right to life is a “self-evident truth.” Nowhere in these documents is there to be
found an indication that the lives of persons suffering from physical handicaps are
to be less cherished than those of non-handicapped human beings.
State legislatures – and thus the people as a whole – have universally reserved the
most severe criminal penalties for individuals who have unjustifiably deprived
others of life. Indeed, so valued is this commodity that even one who has
committed first degree murder cannot be sentenced to death unless he is accorded
special procedural protections in addition to those given all criminal defendants.
Moreover, it appears that execution is constitutionally impermissible unless the
crime which a defendant has perpetrated was one which involved the taking of
another’s life. Again, these procedural protections and penalties do not vary
according to the presence or absence of physical deformities in the victim or
defendant. It is life itself that is jealously safeguarded, not life in a perfect state.
Finally, we would be remiss if we did not take judicial notice of the high esteem
which our society accords to those involved in the medical profession. The reason
for this is clear. Physicians are the preservers of life.
No man is perfect. Each of us suffers from some ailments or defects, whether major
or minor, which make impossible participation in all the activities the world has to
offer. But our lives are not thereby rendered less precious than those of others
whose defects are less pervasive or less severe.
We recognize that as a mongoloid child, Sharon’s abilities will be more
circumscribed than those of normal, healthy children and that she, unlike them, will
experience a great deal of physical and emotional pain and anguish. We sympathize
with her plight. We cannot, however, say that she would have been better off had
she never been brought into the world. Notwithstanding her affliction with Down’s
Syndrome, Sharon, by virtue of her birth, will be able to love and be loved and to
experience happiness and pleasure – emotions which are truly the essence of life
and which are far more valuable than the suffering she may endure. To rule
otherwise would require us to disavow the basic assumption upon which our society
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is based. This we cannot do.
Accordingly, we hold that Sharon has failed to state a valid cause of action founded
upon “wrongful life.”
Id. at 421-30 (citations omitted). With these moving words, the New Jersey Supreme Court made
clear that a child born with Downs’ syndrome does not have a cause of action for negligence that
resulted in her having been born.
Plaintiffs argue that Schroeder, decided by the New Jersey Supreme Court two years later,
shows a “sea change in the law of wrongful birth and wrongful life following . . . Berman.” (Pls.’
Opp. Br. 6.) In a nutshell, in Schroeder, the New Jersey Supreme Court allowed the parents in a
wrongful birth suit to seek the incremental medical costs of raising a child with a hereditary birth
defect from the allegedly negligent physicians who failed to detect and inform the parents of the
risk. Schroeder, 87 N.J. at 57.
Plaintiffs do not say much about what that “sea change” in the law was, but imply that it
was the fact that the New Jersey Supreme Court allowed the parents in a wrongful birth case to
seek future medical costs. Plaintiffs do not explain the relevance of Schroeder to the instant case.
Schroeder was a wrongful birth case, and Plaintiffs have stated affirmatively that they have
brought a wrongful pregnancy case, not a wrongful birth case. Moreover, the New Jersey Supreme
Court explained its reasoning as follows:
In Berman, we recognized a separate cause of action of parents for the emotional
distress in giving birth to a child with Down's Syndrome. Parents have a right of
their own either to accept or reject a parental relationship, and the deprivation of
that right by the negligent misconduct of another creates a cause of action in the
parents. In Berman, the parents were deprived of the choice whether to bear the
emotional burden of an afflicted child. In the present case, Mr. and Mrs. Schroeder
were deprived of the choice whether to conceive a second child with cystic fibrosis
whose birth would impose extensive medical expenses upon them.

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Id. at 66. This makes clear that the New Jersey Supreme Court understood Berman and Schroeder
to be cases about the deprivation of the right of parents to make a choice about whether to bear a
child. Plaintiffs in the instant case, however, have affirmatively stated that they were not deprived
of this right:
Plaintiffs do not claim damages based on wrongful birth since Ms. Kapalka was not
deprived of the opportunity to terminate her pregnancy. Rather, she chose to give
birth to her son after prenatal testing disclosed the birth defect.
(Pls.’ Opp. Br. 1.)
Plaintiffs do not explain how, then, this Court could rely on Berman or Schroeder to predict
a New Jersey Supreme Court decision in their favor were this case before it. Schroeder supports a
claim for a child’s future medical costs when parents have been deprived of their right to make a
choice about whether to bear a child. Plaintiffs state that they were not deprived of that right.2
How, then, do Berman or Schroeder support their claims? Plaintiffs do not persuade this Court
that Berman or Schroeder support a prediction that the New Jersey Supreme Court would decide
these motions in their favor.3
Plaintiffs next contend that “[t]he frontier was further advanced” by the New Jersey
Supreme Court’s decision in Procanik. (Pls.’ Opp. Br. 8.) In Procanik, the New Jersey Supreme
Court recognized an infant’s “right to recover the extraordinary expenses necessitated by his birth
defects,” calling it a “wrongful life” action. Procanik v. Cillo, 97 N.J. 339, 356 (1984). Procanik

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Rather, the Plaintiff parents here acknowledge that they had the opportunity to choose
whether to continue the pregnancy or terminate it, and they chose to continue it. They were not
deprived of their right to make a choice.
3

Moreover, in Schroeder, the New Jersey Supreme Court limited damages for the
deprivation of the right to choose to bear a child to the “incremental medical costs” for a child
born with a birth defect. 87 N.J. at 71.
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does contain some language that appears to support Plaintiffs’ position: “The essence of the
infant’s claim is that the defendant doctors wrongfully deprived his mother of information that
would have prevented his birth.” Id. at 348. If this fairly and completely characterized the Court’s
decision in Procanik, based on the allegations in the SAC, Mateusz might have such a claim here.
The problem is that other statements in Procanik show that the New Jersey Supreme Court placed
important restrictions on a wrongful life action. The most relevant ones appear in this language:
Analysis of the infant’s cause of action begins with the determination whether the
defendant doctors owed a duty to him. The defendant doctors do not deny they
owed a duty to the infant plaintiff, and we find such a duty exists. In evaluating the
infant’s cause of action, we assume, furthermore, that the defendant doctors were
negligent in treating the mother. Moreover, we assume that their negligence
deprived the parents of the choice of terminating the pregnancy and of preventing
the birth of the infant plaintiff.
Id. at 348-49 (citations omitted). Note that, once again, the New Jersey Supreme Court has
pointed to the crucial role of depriving the parents of the choice of terminating the pregnancy.
This language alone undercuts any argument that Procanik supports a prediction that the New
Jersey Supreme Court would decide this motion in Plaintiffs’ favor.
Moreover, this language in Procanik supports the prediction that the New Jersey Supreme
Court, in considering the instant motion, would begin the analysis with the question of whether the
defendant doctors owed a duty to the infant with birth defects. This is a crucial question that
Plaintiffs do not discuss in their brief: did the doctors whose alleged negligence resulted in the
mother’s not being sterilized and not knowing that fact have a duty to future children not yet
conceived? At this juncture, it is sufficient to note that Plaintiffs have made no case to support the
prediction that the New Jersey Supreme Court would find such a duty. Without a duty, there can
be no action in negligence for the breach of that duty.

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The crux of Plaintiffs’ argument for expansion of existing New Jersey law is this:
If, as the Appellate Division determined in its 1981 decision in P. v. Portadin,
supra, there is truly no distinction between a ‘wrongful pregnancy’ and a ‘wrongful
birth’ case, then the damages recoverable in such actions should be uniform and
consistent. To reach such a harmonious result, the damages in wrongful pregnancy
actions should no longer be unrealistically limited. Rather, to bring them in
congruity with the present status of New Jersey’s law on ‘wrongful birth’ and
‘wrongful life,’ all extraordinary medical and life care expenses should likewise be
recoverable in a wrongful pregnancy case. . .
(Pls.’ Opp. Br. 9.) Crucially, this key part of Plaintiffs’ argument begins with “if.” It is certainly
true that, as Plaintiffs assert, the Appellate Division, in Portadin, stated: “We see no distinction
between a so-called ‘wrongful birth’ action, as in Berman, and the so-called ‘wrongful pregnancy’
action referred to in Betancourt v. Gaylor.” 179 N.J. Super. at 470. Plaintiffs, however, take this
statement out of context. The Portadin court was not holding that there are absolutely no
differences between a wrongful birth case and a wrongful pregnancy case. Consider the quote in
context:
Plaintiffs further argue that Berman is distinguishable because it involved parents
who wanted a child but had an abnormal child where as here, they did not want any
child, even a normal child. They rely on Betancourt v. Gaylor, 136 N.J. Super. 69,
77 (1975), wherein the Law Division held that child-rearing costs could be
recovered in an action for wrongful pregnancy based on negligent sterilization
where a normal child is born. We see no distinction between a so-called “wrongful
birth” action, as in Berman, and the so-called “wrongful pregnancy” action referred
to in Betancourt v. Gaylor, supra. In our view, the rule laid down in Berman is
applicable here and precludes recovery for the future expense which the parents
may incur in raising, educating and supervising the child. This result finds
persuasive support in Rieck v. Medical Protective Co. of Fort Wayne, Ind., 64
Wis.2d 514, 219 N.W.2d 242 (Sup.Ct.1974), wherein the court refused to award
damages to parents of a normal child who claimed that defendants, a clinic and an
obstetrician, failed to detect Mrs. Rieck's pregnancy in time to permit an abortion.
What the Wisconsin Supreme Court stated there is worthy of being repeated . . .
Id. at 470 (citations omitted). When considered in context, the statement about seeing no
distinction was offered as support for the holding that “the rule laid down in Berman is applicable
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here and precludes recovery for the future expense which the parents may incur in raising,
educating and supervising the child.” Id. The statement Plaintiffs cite is dicta, and dicta that can
mislead when quoted out of context. The Portadin court held in no uncertain terms that Berman
barred recovery of future child-rearing expenses in a wrongful pregnancy case.
This is New Jersey law, as it is now. Plaintiffs want it changed. Plaintiffs appear to
believe that Portadin was wrongly decided, but this Court cannot change state law to what it
should be. It must apply state law as it is. And Plaintiffs have cited no authority that supports the
conclusion that the holding of Portadin – that Berman bars recovery of future child-rearing
expenses in a wrongful pregnancy case – is no longer good law in New Jersey.
While this point provides a sufficient basis to predict that the New Jersey Supreme Court
would not decide this motion in Plaintiffs’ favor, there is more supporting this Court’s conclusion.
As discussed, the New Jersey Supreme Court has repeatedly expressed that, in its decisions, it has
sought to remedy a deprivation of the parents’ choice of avoiding conception. The parents in this
case affirmatively state that they were not deprived of this choice. Plaintiffs have not confronted
this point in their brief, and this Court predicts that this issue is likely to determine how the New
Jersey Supreme Court would decide these motions.
Defendants argue that this Court should limit Plaintiffs to a claim for wrongful pregnancy,
and that Plaintiffs have no cause of action for wrongful birth. In response, Plaintiffs disclaimed
any wrongful birth claim. Furthermore, Plaintiffs have stated that the Complaint does not bring
any wrongful birth claims. To the extent that the Complaint could be read to encompass any

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wrongful birth claims, such claims will be dismissed with prejudice.4
Plaintiffs’ claims are limited to a claim for wrongful pregnancy. Under Portadin,
Plaintiffs’ damages are limited to the following:
[W]e agree with plaintiffs that the trial judge erred in precluding them from
recovering damages for the medical expenses incurred during the course of Mrs. P’s
pregnancy and delivery. We do not read Berman as precluding the recovery of such
expenses. We are satisfied that Mrs. P may recover damages for the pain and
suffering accompanying her pregnancy and delivery and for the wages lost during
that period, and that her husband may recover for loss of consortium and for the
medical expenses incurred which are attributable to the pregnancy and delivery.
179 N.J. Super. at 472. Plaintiffs’ damages are limited to medical expenses incurred in Ms.
Kapalka’s pregnancy and delivery, pain and suffering from pregnancy and delivery, lost wages
during the pregnancy, and loss of consortium during the pregnancy. All three of Defendants’
motions will be granted.
For these reasons,
IT IS on this 20th day of January, 2016,
ORDERED that Defendants’ motions to dismiss (Docket Entry Nos. 57 and 62) are both
GRANTED; and it is further
ORDERED that Defendant’s partial motion for summary judgment (Docket Entry No. 61)
is GRANTED; and it is further

4

The Marino and Kierce motions seek to dismiss the wrongful birth claims, while the
United States moves for summary judgment on the wrongful birth claims. As the United States
contends in its opening brief, it relies upon the same grounds as the Marino and Kierce motions,
but moves under Federal Rule of Civil Procedure 56 because some defendants have relied on
facts external to the pleadings. In arriving at today’s decision, this Court has not relied on
factual allegations outside the pleadings, but on the disclaimer made by Plaintiffs in their
opposition brief. Since Plaintiffs stated in their opposition brief that the SAC contains no claims
sounding in wrongful birth, this Court finds that it is more appropriate to dismiss any such
disclaimed claims, rather than enter judgment on them.
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ORDERED that, to the extent that the Second Amended Complaint asserts claims
sounding in wrongful birth, such claims are hereby DISMISSED with prejudice; and it is further
ORDERED that Plaintiffs are limited to a claim for wrongful pregnancy, and Plaintiffs are
not entitled to damages except for medical expenses incurred in Ms. Kapalka’s pregnancy and
delivery, pain and suffering from pregnancy and delivery, lost wages during the pregnancy, and
loss of consortium during the pregnancy.

s/ Stanley R. Chesler
Stanley R. Chesler, U.S.D.J.

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