B.F., et al., Respondents,v.Reproductive Medicine Associates of New York, LLP, et al., Appellants.BriefN.Y.November 15, 2017To be Argued by: CARYN L. LILLING (Time Requested: 30 Minutes) APL-2016-00159 New York County Clerk’s Index No. 800405/11 Court of Appeals of the State of New York B.F. and STEVEN FARBER, a married couple, individually and as parents and natural guardians on behalf of their minor child, M.F., Respondents, – against – REPRODUCTIVE MEDICINE ASSOCIATES OF NEW YORK, LLP and ALAN COPPERMAN, M.D., Appellants. REPLY BRIEF FOR APPELLANT REPRODUCTIVE MEDICINE ASSOCIATES OF NEW YORK, LLP Of Counsel: CARYN L. LILLING KATHERINE HERR SOLOMON MAURO LILLING NAPARTY LLP 100 Crossways Park Drive, Suite 310 Woodbury, New York 11797 Tel.: (516) 487-5800 Fax: (516) 487-5811 Appellate Counsel to: PETER C. KOPFF, LLC Attorneys for Appellant Reproductive Medicine Associates of New York, LLP Date Completed: February 16, 2017 TABLE OF CONTENTS TABLE OF AUTHORITIES .................................................................................... ii INTRODUCTION ..................................................................................................... 1 POINT I PLAINTIFFS HAVE FAILED TO EFFECTIVELY DISPUTE THAT A STRAIGHT APPLICATION OF CPLR § 214-A RENDERS THE INSTANT ACTION UNTIMELY ....................................................................................... 7 LaBello is Not Controlling ..................................................................................... 7 A Straight Application of CPLR § 214-a Renders the Action Untimely ................................................................................................................. 9 “Wrongful Birth” Actions Historically Accrued On the Date of the Alleged Medical Malpractice ..................................................................... 10 The “Wrongful Birth” Claim is a Medical Malpractice Claim ............................ 12 Prior Precedent Analyzing CPLR § 214-a is Relevant ........................................ 18 POINT II PLAINTIFFS HAVE NOT APPEALED FROM THE FIRST DEPARTMENT’S DISMISSAL OF THEIR CAUSES OF ACTION SOUNDING IN NEGLIGENCE, BREACH OF CONTRACT AND FRAUD. THEREFORE, THEIR ARGUMENT THAT THE CLAIMS SHOULD BE REINSTATED IS NOT REVIEWABLE BY THIS COURT .................................................. 20 Negligence Claim ................................................................................................. 22 Breach of Contract Claim ..................................................................................... 24 Fraudulent Concealment and Fraud Claims ......................................................... 26 Negligent Misrepresentation Claim ...................................................................... 28 CONCLUSION ........................................................................................................31 ii TABLE OF AUTHORITIES Cases 511 West 232nd Owners Corp. v. Jennifer Realty Co., 98 NY2d 144 (2002) .............................................................................................21 Abbondandolo v. Hitzig, 282 AD2d 224 (1st Dept 2001) ..................................................................... 26, 27 Atton v. Bier, 12 AD3d 240 (1st Dept 2004) ..............................................................................27 Bayuk v. Gilbert, 57 AD3d 227 (1st Dept 2008) ..............................................................................27 Becker v. Schwartz, 46 NY 401 (1978) .................................................................................................17 Bellera v. Handler, 284 AD2d 488 (2d Dept 2001) .............................................................................29 Ciceron v. Jamaica Hosp., 264 AD2d 497 (2d Dept 1999) .............................................................................11 Coursen v. New York Hosp.-Cornell Med. Ctr., 114 AD2d 254 (1st Dept 1986) ............................................................................23 De Leon v. Hosp. of Albert Einstein Coll. of Medicine, 164 AD2d 743 (1st Dept 1991) ............................................................................22 Flanagan v. Mt. Eden General Hosp., 24 NY2d 427 (1969) .............................................................................................18 Haga v. Pyke, 19 AD3d 1053 (4th Dept 2005) ............................................................................29 Hain v. Jamison, 28 NY3d 524 (2016) .............................................................................................20 Hecht v. City of New York, 60 NY2d 57 (1983) ...............................................................................................20 iii J.A.O. Acquisition Corp. v. Stavitsky, 8 NY3d 144 (2007) ...............................................................................................29 Jensen v. Gen. Elec. Co., 82 NY2d 77 (1993) ...............................................................................................18 LaBarbera v. N.Y. Eye & Ear Infirmary, 91 NY2d 207 (1998) ...........................................................................................4, 5 LaBello v. Albany Med. Ctr. Hosp., 81 NY2d 399 (1993) ................................................................................ 7, 8, 9, 11 Leighton v. Lowenberg, 103 AD3d 530 (1st Dept 2013) ............................................................................25 Mandarin Trading Ltd. v. Wildenstein, 16 NY3d 173 (2011) .............................................................................................29 Marchand v. Capone, 223 AD2d 686 (2d Dept 1996) .............................................................................11 Massie v. Crawford, 78 NY2d 516 (1991) ............................................................................................... 4 McNamara v. Droesch, 49 AD3d 511 (2d Dept 2008) ...............................................................................27 Pagan v. Quinn, 51 AD3d 1299 (3d Dept 2008) .............................................................................25 Pahlad v. Brustman, 33 AD3d 518 (1st Dept 2006) ..............................................................................11 Perez v. Fitzgerald, 115 AD3d 177 (1st Dept 2014) ............................................................................22 Putter v. North Shore Univ. Hosp., 7 NY3d 548 (2006) ................................................................................................. 6 Rizk v. Cohen, 73 NY2d 98 (1989) ...............................................................................................26 iv Rodriguez v. Manhattan Med. Grp., P.C., 77 NY2d 217 (1990) .............................................................................................18 Roswick v. Mount Sinai Med. Ctr., 22 AD3d 409 (1st Dept 2005) ..............................................................................26 Scalisi v. New York Univ. Med. Ctr., 24 AD3d 145 (1st Dept 2005) ..............................................................................26 Simcuski v. Saeli, 44 NY2d 442 (1978) .............................................................................................28 Weed v. Meyers, 251 AD2d 1062 (4th Dept 1998) ................................................................... 11, 12 Statutes CPLR § 203 ..............................................................................................................10 CPLR § 203(a) .........................................................................................................10 CPLR § 214-a ................................................................................................... passim CPLR § 5511 ............................................................................................................21 INTRODUCTION Confronted with a clear misapplication of this State’s medical malpractice statute of limitations, and the First Department’s crafting of a “discovery” accrual rule to fit the singular facts of this case, plaintiffs go to considerable lengths to “redefine” the issues. They conflate pre-natal injuries to children with those to parents. They confuse actual injury with discovery of the injury. They confuse injury with the applicable measure of damages. They would carve out “wrongful birth” malpractice cases from other malpractice contexts, despite the fact that they cannot genuinely draw a distinction (much less a difference) between such cases and other failure to diagnose scenarios. Indeed, despite plaintiffs’ prolix arguments, they cannot, and do not, articulate how a “date of birth” accrual to the parents in a wrongful birth claim (distinct from any other malpractice case) is mandated by traditional concepts of injury, or will promote the objectives of the statute of limitations in the medical malpractice arena. The reason is simple. This is a case which involves reproductive science, and turns on the issue of whether there was a failure to diagnose a genetic mutation through specific pre-conception genetic testing. The issue of duty, any breach, and the operative standards (whatever the histrionics of the plaintiffs’ brief), are 2 irrelevant to the pure procedural issue before the Court. What is critical -- and remains unanswered by plaintiffs -- is how, or why, this case should be removed from the “failure to diagnose” construct that has uninterruptedly existed in the medical malpractice context, and placed in a category all its own. This is particularly true in this “wrongful birth” action, where the concept of injury is premised on interference with reproductive choices (and the measure of damages forged on the pecuniary cost of raising a child), and where the date of birth itself does not, as plaintiffs’ insist, serve to establish the “injury,” or alert the putative plaintiffs to a failure to diagnose. Indeed, as the defendants establish in their main brief, the First Department’s decision disrupts established law and policy, and does not create a logical, or reliable, construct that will even-handedly preserve the salutary objectives of the statute of limitations. For all of the plaintiffs’ distinctions and conflations, they do not articulate a rule that does more than fortuitously “save” the statute of limitations in their case: a case where they did not “discover” their cause of action upon the birth of their child, but upon being informed by Dr. Copperman, in May of 2010, that the donor was a Fragile X carrier. At that time, under the normal statute, the plaintiffs had in excess of a year (until September 10, 2011) to bring their claim, but did not. The statute, as routinely applied, did not fail them. These 3 plaintiffs simply need more time, and request that the law of medical malpractice be turned on its head to accommodate this one case (and serve no others in a logical way). The new “rule” that they argue -- that there is no “injury” until the date of birth -- is, pure and simple, an intellectual deception, unrelated to either the law or the facts of their case. The fact remains that the medical treatment involved pre- conception genetic testing, and if it were done incorrectly, the diagnosis would be made at the time of the treatment, just as in every other alleged misdiagnosis case. The injury -- which unquestionably was the interference with the parents’ reproductive choices (acceptance of the ooyctes, the decision to conceive, choices of further testing during pregnancy, termination of pregnancy) -- occurred to the parents at that very time, and their claims accrued, consistent with the medical malpractice statute of limitations of this state, at that time.1 1 The plaintiffs argue that there was no injury until the birth of the child, and indicate that this is so despite that fact that further prenatal testing might have revealed the presence, pre-birth, of the Fragile X mutation (Plaintiffs’ Respondents’ Brief at p. 27, ftnte. 14). This argument has neither logic nor common sense to commend it. The alleged misdiagnosis caused an injury at the time of its happening, i.e., the interference of the plaintiffs’ reproductive choice to not conceive a child with a genetic mutation. Certainly, they do not mean to argue that they had no right to check that diagnosis, or remedy their choices made, prior to the birth. Certainly, if they had “discovered” this misdiagnosis during pregnancy, they would have had a right to recover for any treatment they required to remedy the situation, or prepare for the birth. To suggest otherwise is simply to suggest that “wrongful birth” is their exclusive legal right, which is certainly not the case. 4 While plaintiffs argue for a new accrual, pivotal and overlooked by them is that while other statutes may provide that other tort claims accrue when “a plaintiff can show actual harm” (Plaintiff’s Respondent’s Brief at p. 18), CPLR § 214-a plainly states that “an action for medical…malpractice must be commenced within two years and six months of the act, omission or failure complained of” (CPLR § 214-a [emphasis added]; see also Massie v. Crawford, 78 NY2d 516, 519 [1991][“A claim accrues on the date the alleged malpractice takes place”]). It is undisputed that the alleged “act, omission or failure complained of” in the instant case was the failure to screen for Fragile X in and around October 2008. Plaintiff continued treatment with RMA through March 10, 2009. Thus, a straight application of CPLR § 214-a directs that the action was required to be commenced by September 10, 2011. Because the action was not commenced until December 6, 2011, it is untimely, and should have been dismissed. RMA acknowledges that the strict application of CPLR § 214-a can sometimes have harsh consequences. However, this Court has emphasized the impact of the codification of CPLR § 214-a, and the fact that it “constricts judicial expansiveness towards a more plaintiff friendly discovery rule” (LaBarbera v. N.Y. 5 Eye & Ear Infirmary, 91 NY2d 207, 213 [1998][citations omitted]). Indeed, this Court in LaBarbera went on to note: Yet, in closing our resolution and discussion of this case, we reiterate that this area of medical malpractice has engendered expressions of possible “unfairness” suffered by the strict adherence to definitive rules and policies. We conclude, nonetheless, that the Legislature, having statutorily occupied the field, is more appropriately suited to effectuate any redefinition or expansion of the application of the exception, if that is warranted. (id. [citations omitted]). In sum, the First Department in this case has crafted a “discovery” accrual rule, which acts as a third exception to the accrual-upon-act-or-omission rule set forth in CPLR § 214-a. The First Department’s holding must fail as it is unrecognized by statute, precedent and public policy, and does not turn on the “discovery” of an injury, but rather represents a factual “fix” towards timeliness under the circumstances of this case. Finally, plaintiffs’ emphasis on the purported merit to their claim is not only irrelevant to the analysis, but considerably misleading. The notion that RMA was under a duty to provide an egg donor “who had been completely screened for any inheritable genetic disorder” (Plaintiff’s Respondent’s Brief at p. 3 [emphasis added]), is grossly misinformed considering there are over 6,000 genetic disorders 6 that can be passed down through generations. Moreover, notably absent from plaintiffs’ brief is any explanation as to the delay of one-and-a-half years between becoming aware of their son’s condition and commencing the instant action within the statute of limitations period (Putter v. North Shore Univ. Hosp., 7 NY3d 548, 554 [2006] [“Since [plaintiff] had sufficient timely knowledge of the facts, was aware of the basis of a cause of action within the applicable statute of limitations and failed to bring a timely suit, further discovery is not necessary” and the action was dismissed as untimely]). As will be shown, the First Department’s determination that a “wrongful birth” cause of action accrues for purposes of the statute of limitations on the date of the infant’s birth should not be permitted to stand as it will not advance the purposes of the statute of limitations in medical malpractice actions in this State. 7 POINT I PLAINTIFFS HAVE FAILED TO EFFECTIVELY DISPUTE THAT A STRAIGHT APPLICATION OF CPLR § 214-A RENDERS THE INSTANT ACTION UNTIMELY. LaBello is Not Controlling Plaintiffs primary argument-- that there is no cause of action until there is a cognizable right created-- still rests, most erroneously, on LaBello v. Albany Med. Ctr. Hosp. (81 NY2d 399 [1993]). However, this reliance continues to overlook that LaBello’s holding concerned an infant plaintiff’s standing to bring an action for pre-natal injuries; as such, it is entirely irrelevant to the instant analysis. The plaintiff in LaBello was the infant, who was in utero when the alleged malpractice occurred, and, thus, lacked standing at that time to commence any legal action. In those circumstances, awaiting a live birth was required to determine the existence of a cause of action. In contrast, the plaintiffs in the case at bar were adults, who legally existed and had standing when the alleged medical malpractice occurred. Indeed, this Court explicitly particularized the issue in LaBello as “whether the infant’s cause of action accrued when the alleged negligent act or omission occurred, or, rather, on the date he was born” (id. at 702 [emphasis added]). Thus, the reasoning in LaBello that the infant “plaintiff could not have enforced his claim 8 prior to his birth, because neither he nor anyone on his behalf had any cognizable status in a court of law to sue” (85 NY2d at 707), is wholly inapplicable here. Moreover, this Court in LaBello made clear that its ruling did not create a new exception to the accrual-upon-act-or-omission rule set forth in CPLR § 214-a. Rather, this Court “[took] the statute on its own terms and appl[ied] it to this unenvisaged circumstance” (85 NY2d at 706). It is submitted that the circumstances were deemed unenvisaged because the plaintiff was in utero at the time of the alleged malpractice, without the jural capacity to sue. Thus, the Court was compelled to make a “policy determination” based, in part, on the well-settled law that “an infant plaintiff has no right of action unless born alive” (id. at 704). The circumstances were unique because a child in utero has no rights related to prenatal injuries unless born alive: a concept neither new, nor applicable to litigants who do not have to await birth to realize their legal rights. Here, the circumstances cannot be deemed in any way analogous: the parents, fully possessed of legal standing, are like any other putative malpractice plaintiffs, subject to diagnostic testing and relying on a diagnosis performed at the time of treatment. If their legal rights have been the subject of interference, they 9 have the standing to sue, and their claims accrue (whether or not they have discovered the interference), at the time of the alleged act of medical malpractice. In LaBello, this Court was compelled to undertake “statutory interpretation and harmonization” because the infant plaintiff was in utero at the time of the alleged negligent act, and the relevant statute, CPLR § 214-a, “expresses and presumes physical existence and juridical capacity to sue” (id. at 704, 706). Given the instant plaintiffs’ physical existence and capacity to sue at the time of the alleged act of malpractice, unlike in LaBello and contrary to plaintiffs’ assertion, it is unnecessary for this Court in this case “to fill the gap by traditional interpretation and common-law development and application” (id. at 706). Rather, a straight application of the plain language of CPLR § 214-a dictates that the accrual date for this medical malpractice action was the date of the plaintiff’s final treatment; the action was commenced more than two years and six months after the last date of treatment, rendering the action untimely. A Straight Application of CPLR § 214-a Renders the Action Untimely Plaintiffs’ reliance on United States Supreme Court precedent is misplaced to the extent that the statute at issue, CPLR § 214-a, expressly prescribes when a medical malpractice action accrues: “an action for medical…malpractice must be 10 commenced within two years and six months of the act, omission or failure complained of” (CPLR § 214-a [emphasis added]). Plaintiffs also cite CPLR § 203 and the “general limitations principles” (Plaintiffs’ Respondents’ Brief at p. 18), completely overlooking that CPLR § 203 governs the “[m]ethod of computing periods of limitations generally” and states that “[t]he time within which an action must be commenced, except as otherwise expressly prescribed, shall be computed from the time the cause of action accrued to the time the claim is interposed” (CPLR § 203[a][emphasis added]). Thus, since CPLR § 214-a “expressly prescribe[s]” when a medical malpractice claim shall be commenced, any reliance on or analysis of other sections of the CPLR is unnecessary in determining the timeliness of this medical malpractice action. “Wrongful Birth” Actions Historically Accrued On the Date of the Alleged Medical Malpractice Plaintiffs’ contention that the “clear evolution of case law over the last twenty plus years supports the lower court’s decision” (Plaintiffs’ Respondents’ Brief at p. 25), is both misinformed and without merit. As set forth in RMA’s main Brief, since its inception, a “wrongful birth” action has accrued, like any other medical malpractice action, on the date of the alleged malpractice (RMA’s Appellant’s Brief at p. 32-46). It was not until the Appellate Division, Second 11 Department inexplicably changed the law and created an exception to the accrual- upon-act-or-omission rule in Ciceron v. Jamaica Hosp. (264 AD2d 497 [2d Dept 1999]), that a “wrongful birth” action was deemed to accrue for purposes of the statute of limitations on the date of the infant’s birth. It is submitted that Ciceron, however, is unpersuasive to the extent that the Second Department not only failed to acknowledge that it was deviating from its prior precedent, but it carved out an exception to CPLR § 214-a, without undertaking any substantive analysis and based upon LaBello (supra) and Marchand v. Capone (223 AD2d 686 [2d Dept 1996], both of which addressed the clearly distinguishable infant’s cause of action, rather than the parent’s cause of action. Notably, the defendant in Ciceron did not seek leave to appeal to this Court. While the First Department relied on Ciceron in Pahlad v. Brustman (33 AD3d 518 [1st Dept 2006]), in the Decision and Order appealed from, it ostensibly recognized the flaws of the Ciceron decision, since it ultimately concluded that its citation to Ciceron in Pahlad was “dictum” (R. 1765). Finally, plaintiffs go to great lengths to distinguish Weed v. Meyers (251 AD2d 1062 [4th Dept 1998]). Regardless of how plaintiffs attempt to mischaracterize Weed, the plaintiff parents in Weed sought to recover the 12 extraordinary costs arising out of raising their disabled children, which, by all accounts, is a “wrongful birth” action. While the particular facts of the case are different from the case at bar, the fact remains that the claim in Weed was a “wrongful birth” claim, which the court concluded accrued, for purposes of the statute of limitations, on the date of the alleged medical malpractice. The “Wrongful Birth” Claim is a Medical Malpractice Claim Plaintiffs’ attempt to draw a distinction between a “wrongful birth” claim and every other medical malpractice claim is a transparent effort to simply “save” their untimely claim (Plaintiffs’ Respondents’ Brief at p. 20-21). It cannot be disputed that the plaintiffs’ claim is a medical malpractice claim, and CPLR § 214- a plainly states that “an action for medical…malpractice must be commenced within two years and six months of the act, omission or failure complained of” (CPLR § 214-a [emphasis added). Indeed, this case is not even a circumstance where plaintiffs can credibly argue that the statute, as written, closed the door on a remedy before they “discovered it.” As noted, the alleged “act, omission or failure complained of” in the instant case was the failure to screen for Fragile X in and around October 2008. Plaintiff continued treatment with RMA through March 10, 2009. Thus, a straight 13 application of CPLR § 214-a provides that the action was required to be commenced by September 10, 2011. Plaintiffs discovered their injury in May 2010, but inexplicably waited until December 6, 2011, to commence the action. Plaintiffs contend that the defendants are “wrong” for comparing a “wrongful birth” medical malpractice action with other medical malpractice actions (and particularly failure to diagnose cases) (Plaintiffs’ Respondents’ Brief at p. 25-27), but fail to support this notion with any case law or logical analysis. Plaintiffs assert that in cases involving a failure to diagnose cancer the “injury occurs at the time of the misdiagnosis, whether the plaintiff had or had not yet discovered the injury or incurred economic damages for medical treatment” (Plaintiffs’ Respondents’ Brief at p. 25). In fact, this point only states that the interference is complete, and the measure of damages is yet to be determined or discovered: the precise circumstance at bar. It is true that in every failure to diagnose cancer case “on the date of the failure to diagnose, the cancer patient has a legitimate claim”, whether they have discovered it or not, pursuant to the statutory scheme (Plaintiffs’ Respondents’ Brief at p. 26). In most medical malpractice cases, whether and to what extent the plaintiff has been injured (the measure of damages, the discovery of the injury) is 14 not known until sometime after the date of the misdiagnosis. That factor, however, does not alter the fact that the cause of action accrues, for purposes of the statute of limitations, on the date of the misdiagnosis, regardless of whether the extent of the interference is known at that time. Plaintiffs spend a considerable amount of time attempting to distinguish other “failure to diagnose” cases from the case at bar. But they draw a distinction without a difference. They claim that in “cancer diagnosis” cases, it is proper to have the claim accrue, because the failure to diagnose led to a “failure to treat,” and the injury (e.g., the cancer) already existed. That was supposedly the “harm”, whereas in this case, there was no “harm” until birth, when expenses for child rearing start to accrue. It is the plaintiffs, however, who conflate damages and injury. By analogy, when there is a failure to diagnose a genetic condition at the beginning of a pregnancy, reproductive choices are implicated, and the parents have suffered an interference at the time of treatment. This is directly analogous to the “failure to treat” that plaintiffs rely on with respect to other “failure to diagnose cases.” Indeed, it is indistinguishable. If this interference ultimately leads to the “wrongful birth” of a genetically impaired child, it is only the damages that later accrue. Plaintiffs point to no logical, or reasoned analysis to distinguish between these two types of “failure to diagnosis cases,” except for their stubborn insistence 15 that the measure of damages for a wrongful birth case is, somehow, an “injury,” when the measure of damages for other failure to diagnose cases does not (accurately) constitute an injury, or independent harm. Stated differently, in our medical malpractice law, discovery of the injury (the interference) does not govern accrual. This is true even if there is a lapse between occurrence of the injury and its discovery. Plaintiffs have articulated no sound reason why this long-standing policy of this State should be discarded in one particular brand of malpractice cases, i.e., a failure to diagnose a genetic disorder. Indeed, a valid basis to depart from this long-standing rule is completely absent in this case where the “delay” in genetic testing (between the injury and discovery of the injury) is likely to be the shortest of all circumstances, given the opportunities for pre-natal testing, and the ability to monitor a child. Moreover, the instant plaintiffs are in the identical position as the cancer patient: the injury occurred at the time of the alleged act of medical malpractice, when they were deprived of the opportunity to not conceive, “whether the plaintiffs had or had not yet discovered the injury or incurred any economic damages for medical treatment” (Plaintiffs’ Respondents’ Brief at p. 26). 16 Contrary to plaintiffs’ further assertion, concluding that the plaintiffs’ “wrongful birth” cause of action accrued at the time of the alleged medical malpractice does not also create a claim on behalf of plaintiffs’ other twin, who did not have Fragile X. The alleged interference with their reproductive choices accrued at the time of the testing of the oocytes, and the creation of the pregnancy. The interference with plaintiffs’ rights occurred, if at all, at that time and the plaintiffs had the legal right to evaluate their options. Their legal rights, at that point, were to forego conception, undergo further testing, or prepare for a pregnancy that they did not wish to undergo. Had they discovered the interference (but discovery is not the sine qua non to accrual) they could have acted on those rights. Had they had further testing, they might have brought an action on behalf of one pregnancy, and not the other, or assessed that there were damages as to one but not the other. Moreover, they would have had the same two and a half years to evaluate their legal rights. They were not compelled to decide that they had two and a half years from the birth of the child to move on their claim. Plaintiffs’ suggestion that they “could not” bring an action until birth (even if arguable) is not the equivalent of stating that they did not have a cause of action, or that one was not available to them evermore. 17 Moreover, the application of the accrual-upon-act-or-omission rule to the instant case is fully consistent with Becker v. Schwartz (46 NY 401 [1978]). The injury in this “wrongful birth” case is the deprivation of the opportunity to not conceive. That is the legal interference and harm that plaintiffs refuse to recognize. Thus, contrary to plaintiffs’ assertion, there would never be a need for anyone to “assess damages for conception” or undergo “a calculation of damages dependent upon a comparison between the Hobson’s choice of life in an impaired state and nonexistence” (Plaintiffs’ Respondents’ Brief at p. 30). It is undisputed that the damages recoverable in a “wrongful birth” claim are the extraordinary costs associated with raising the impaired child. An assessment of damages, however, is irrelevant to the accrual date of a medical malpractice claim pursuant to CPLR § 214-a. Quite simply, it is the plaintiffs, not the defendants, who continually conflate injury and the measure of damages. Plaintiffs cannot show -- in this case (or any other) -- that the “wrong” to the parents, occurred at birth. Indeed, they themselves admit that the birth of the children gave them no insight into the alleged malpractice, and that the changing of the rule will not materially operate to alter the statute of limitations on most “wrongful birth” cases. 18 Prior Precedent Analyzing CPLR § 214-a is Relevant Plaintiffs’ further contention that this Court’s analysis of CPLR § 214-a in cases involving the foreign object exception and continuous treatment doctrine “has nothing to do with this case” (Plaintiffs’ Respondents’ Brief at p. 28) is confounding to the extent an analysis of CPLR § 214-a and this Court’s repeated cautioning against expanding the application of the statute beyond the scope set forth by the Legislature is the core issue to be decided on this appeal. That the facts and alleged acts of medical malpractice in Flanagan v. Mt. Eden General Hosp. (24 NY2d 427, 431 [1969]) and Rodriguez v. Manhattan Med. Grp., P.C. (77 NY2d 217, 224 [1990]), may be different from the facts and alleged act of medical malpractice in this case does not alter the fact that the legal analysis is applicable. Finally, while plaintiffs argue that their claims have not “slumbered” (Plaintiffs’ Respondents’ Brief at p. 33), they have failed to explain or acknowledge their own delay in commencing the action. As noted, plaintiffs learned their son had Fragile X in May 2010. They had until September 2011 to commence a “wrongful birth” action, but inexplicably waited until December 2011, two months after the expiration of the statute of limitations, to commence the action (see Jensen v. Gen. Elec. Co., 82 NY2d 77, 89 [1993][“It should not be 19 overlooked that this conclusion will encourage timely action with ample time allowances by injured parties with knowledge of their injuries. This inducement is fair to everyone and benefits everyone proportionately. It discourages people from sitting on their rights and inhibiting early intervention and remediation, factors neutralizing or displacing the concern about some occasional anticipatory estimation of damages…”]). In sum, applying this Court’s prior analysis must result in a reversal of the First Department’s determination that a “wrongful birth” medical malpractice cause of action accrues, for purposes of the statute of limitations, on the date of the infant’s birth. The instant case is no different from any other medical malpractice action. Rightfully applying the continuous treatment doctrine to the facts of this case, the action is manifestly untimely. Moreover, the fact that the alleged medical malpractice is asserted in a “wrongful birth” context should not alter the accrual date of the statute of limitations pursuant to CPLR § 214-a. 20 POINT II PLAINTIFFS HAVE NOT APPEALED FROM THE FIRST DEPARTMENT’S DISMISSAL OF THEIR CAUSES OF ACTION SOUNDING IN NEGLIGENCE, BREACH OF CONTRACT AND FRAUD. THEREFORE, THEIR ARGUMENT THAT THE CLAIMS SHOULD BE REINSTATED IS NOT REVIEWABLE BY THIS COURT. Plaintiffs’ argument that the First Department erred in dismissing their claims sounding in negligence, negligent misrepresentation, breach of contract, fraud and fraudulent concealment is not preserved for this Court’s review. Only the defendants moved for leave to appeal to this Court from the First Department’s Decision and Order. And, the single issue raised in the motion for leave was whether the plaintiffs’ action for medical malpractice was timely commenced. Indeed, not only did plaintiffs not move for leave to appeal to this Court, but they vigorously opposed the defendants’ motions for leave to appeal. Thus, while plaintiffs are aggrieved by the Appellate Division’s Decision and Order, they never sought leave to appeal from the court’s Decision and Order, and, therefore, have not preserved their right to appeal the dismissal of the claims sounding in negligence, negligent misrepresentation, breach of contract, fraud and fraudulent concealment (Hain v. Jamison, 28 NY3d 524 [2016], citing Hecht v. 21 City of New York, 60 NY2d 57 [1983]; see also 511 West 232nd Owners Corp. v. Jennifer Realty Co., 98 NY2d 144 [2002]; CPLR § 5511). Further, in its certified question to this Court, the First Department asked only “[w]as the order of the Supreme Court, which was modified in part and otherwise affirmed by this Court, properly made” (R. 1754). The Supreme Court’s Order sustained the plaintiffs’ causes of action sounding in negligence, negligent misrepresentation, breach of contract, fraud and fraudulent concealment. As such, given the wording of the First Department’s certified question, together with the plaintiffs’ failure to seek leave to appeal, the instant appeal is properly limited to only the statute of limitations issue. For these reasons, plaintiffs’ arguments in Point II of their Brief should not be considered. In the event this Court addresses the dismissal of plaintiffs’ claims sounding in negligence, negligent misrepresentation, breach of contract, fraud and fraudulent concealment, it is submitted that the First Department properly dismissed the claims. 22 Negligence Claim Plaintiffs claimed that defendants committed common law negligence in their failure to (1) conduct a process in which donors are screened for Fragile X Syndrome and mental retardation; (2) warn plaintiffs that such a process did not exist and that they did not specifically test plaintiffs’ donor for Fragile X; and (3) provide professional treatment (R. 80-81). However, since plaintiffs’ negligence claim was based upon the same facts and transactions as the medical malpractice claim, it was merely repetitive of the medical malpractice claim, and properly dismissed. It is well settled in New York that in order for a cause of action to survive the shorter medical malpractice statute of limitations and continue to be viable under the longer general negligence statute of limitations, the complaint must focus not on the alleged negligence in the facility’s or doctor’s performance of medically related duties or treatment, but rather on the alleged failure to perform a completely different duty (see Perez v. Fitzgerald, 115 AD3d 177 [1st Dept 2014] lv to appeal dismissed, 23 NY3d 949 [2014]; De Leon v. Hosp. of Albert Einstein Coll. of Medicine, 164 AD2d 743, 747 [1st Dept 1991]). Indeed, general negligence principles are applicable only “in those cases where the alleged negligent act may be readily determined by the trier of the facts based upon 23 common knowledge” (Coursen v. New York Hosp.-Cornell Med. Ctr., 114 AD2d 254 [1st Dept 1986]). Here, plaintiffs’ cause of action sounding in negligence was identical to their claim sounding in medical malpractice. It cannot be legitimately disputed that RMA’s treatment of plaintiffs fell within RMA’s “medically related duties.” RMA’s treatment consisted of screening all donors and choosing the appropriate donor for plaintiffs. Such treatment constituted the performance of its medically related duties to the plaintiff mother. Moreover, whether RMA was negligent in failing to establish a facility-wide process in which specific tests were performed on egg donors cannot be “readily determined ... based upon common knowledge” (see Coursen, supra). In order to prove this claim, plaintiffs will be required to proffer expert testimony as to whether the standard of care in the medical community required screening of egg donors for Fragile X during the time period in question. The foregoing is not only beyond the ken of the average juror, but also the identical proof necessary to prove their medical malpractice claim. Based upon both factors, the negligence claim was properly dismissed. 24 Importantly, the fact that some discovery may still remain outstanding does not affect the foregoing analysis. Regardless of the documents RMA or Dr. Copperman may further produce or the testimony which may be provided at any depositions, such would not alter the fact that the negligence claim is identical to the medical malpractice claim and, therefore, may not be maintained. Breach of Contract Claim Plaintiffs additionally claimed that defendants entered into a contract with plaintiffs to provide a “suitable egg donor for purposes of artificial insemination in exchange for good and valuable consideration” (R. 84). It is alleged that, under the contract, defendants represented that they had a vigorous screening program, its donors had good genetic histories, and the eggs stored at defendants’ facility were “exceptionally safe” (R. 84). Plaintiffs suggested that defendants breached this contract by “not adequately screening for Fragile X Syndrome in the subject donor and donor egg, including a failure to screen for mental retardation in the donor or a history of mental retardation in the donor’s family” and by providing plaintiffs “with an embryo contaminated with a genetic defect - Fragile X” (R. 84). However, plaintiffs’ breach of contract cause of action was properly dismissed, as the contract entered into by plaintiffs and defendants did not provide an express 25 specific promise sufficient to maintain a separate action sounding in breach of contract. Where a plaintiff’s “proposed breach of contract claim is ‘legally redundant’” of that plaintiff’s medical malpractice claim, and plaintiff fails to demonstrate that, within the context of his or her medical treatment, defendants “expressed a specific promise to accomplish some definite result,” the breach of contract claim must fail (Leighton v. Lowenberg, 103 AD3d 530, 531 [1st Dept 2013]; see Pagan v. Quinn, 51 AD3d 1299 [3d Dept 2008]). Here, the written contract (the informed consent form) between plaintiffs and RMA provided no specific promise to accomplish some definite result. Rather, the form set forth the risks associated with the procedure (R. 288-295). Specifically, it noted that there was a possibility of risks arising from the incomplete or inaccurate information provided by the egg donor and that the donor was permitted to donate unless her close relatives showed tendencies for early onset diseases (which was not the case here) (R. 289). The contract further made clear that the risk of major birth defects associated with the use of donor eggs was the same as in the general population (R. 289). Certainly, RMA never guaranteed that the child born to plaintiffs would be without genetic disease. 26 Additionally, plaintiffs’ contention that Dr. Copperman and RMA orally assured them that the children born as a result of the in vitro fertilization procedure conducted at RMA would not have any genetic defects cannot be considered. Indeed, such an oral representation surely contradicts the written contract and, therefore, is barred by the parol evidence rule (see Scalisi v. New York Univ. Med. Ctr., 24 AD3d 145 [1st Dept 2005][“[t]he alleged oral representation is directly at variance with the parties’ subsequent written agreement, and is therefore barred by the parol evidence rule,” which precludes consideration of “prior oral promises that alter or contradict the meaning of a written agreement”]). Since, absent these alleged verbal assurances, there is no allegation that RMA contracted with plaintiffs to perform a procedure in which the donors would be screened specifically for Fragile X and would result in a child free of Fragile X, there can be no breach of the contract. Based upon the foregoing, plaintiffs’ breach of contract action was properly dismissed. Fraudulent Concealment and Fraud Claims It is well settled that allegations of fraudulent concealment and fraud identical to those of medical malpractice may not be entertained (see Rizk v. Cohen, 73 NY2d 98, 105 [1989]; Roswick v. Mount Sinai Med. Ctr., 22 AD3d 409 [1st Dept 2005]; Abbondandolo v. Hitzig, 282 AD2d 224 [1st Dept 2001]). 27 Furthermore, in order for a fraudulent concealment or fraud cause of action to stand, the claimed damages must be distinct from the damages flowing from the alleged medical malpractice (Abbondandolo, supra , 282 AD2d at 225; see also Bayuk v. Gilbert, 57 AD3d 227, 228 [1st Dept 2008]; McNamara v. Droesch, 49 AD3d 511 [2d Dept 2008]; Atton v. Bier, 12 AD3d 240, 241 [1st Dept 2004]). Here, plaintiffs’ fraudulent concealment and fraud claims were identical to their claim sounding in medical malpractice. Indeed, all of the claims included allegations that RMA misrepresented its screening process and failed to “properly” screen the donors and plaintiffs’ donor for Fragile X traits or characteristics. Moreover, the damages sought in the medical malpractice and the fraudulent concealment and fraud claims are identical. In their complaint, plaintiffs contended that, as a result of all three causes of action, “Plaintiffs have suffered and will continue to suffer damages for all costs and expenses incurred and for those which shall be incurred in the future, related to the medical/rehabilitative care and life care of M.F.” (R. 75, 80, 82). For these reasons alone, the fraudulent concealment and fraud claims were properly dismissed. Moreover, and more importantly, critical to a claim for fraud is a subsequent misrepresentation made by the defendant upon which the plaintiff relied. Here, 28 there is no allegation that RMA made a subsequent misrepresentation to plaintiffs. In fact, to the contrary, plaintiffs admitted that RMA specifically informed the plaintiff wife in May 2009 that the donor had not been tested for Fragile X (R. 555). The fact that plaintiffs chose not pursue the issue while under the care of their own obstetrician, cannot be construed as against RMA and certainly cannot be relied upon to suggest that any type of misrepresentation was made. Moreover, plaintiffs’ allegation that RMA withheld its knowledge that the donor was a carrier of Fragile X for a few months following such discovery may not be considered fraudulent concealment or fraud because mere withholding of a prior malpractice is insufficient to state a cause of action for fraudulent concealment or fraud (see Simcuski v. Saeli, 44 NY2d 442 [1978]). As such, the fraudulent concealment and fraud claims were properly dismissed. Negligent Misrepresentation Claim Essentially mirroring their fraud and fraudulent concealment claim, plaintiffs alleged that defendants misrepresented to plaintiffs in their written materials that RMA had a rigorous donor screening program and that all donors had a good genetic history (R. 82). Plaintiffs claimed that defendants “ought to have known that their statements were false because they did not check for all genetic defects and therefore the donor egg and embryo they provided to Plaintiffs was likely to 29 and did contain health problems, including a significant genetic defect” (R. 83). Plaintiffs further asserted that they relied upon defendants’ written materials and such alleged misrepresentations were material to the transaction (R. 83). However, as was the case with plaintiffs’ fraud and fraudulent concealment causes of action, this negligent misrepresentation claim was also properly dismissed as the damages alleged mirrored those of the medical malpractice claim. “It is well settled that ‘[a] claim for negligent misrepresentation requires the plaintiff to demonstrate (1) the existence of a special or privity-like relationship imposing a duty on the defendant to impart correct information to the plaintiff; (2) that the information was incorrect; and (3) reasonable reliance on the information’” (Mandarin Trading Ltd. v. Wildenstein, 16 NY3d 173, 180 [2011] quoting J.A.O. Acquisition Corp. v. Stavitsky, 8 NY3d 144, 148 [2007]). In order for plaintiffs to establish a valid negligent misrepresentation cause of action, they must also establish that the damages arising from the alleged negligent misrepresentation are separate and distinct from those resulting from the alleged malpractice (Haga v. Pyke, 19 AD3d 1053, 1055 [4th Dept 2005]; Bellera v. Handler, 284 AD2d 488, 490 [2d Dept 2001]). 30 Here, plaintiffs sought the exact same damages in both the medical malpractice and negligent misrepresentation claims. In this regard, plaintiffs sought, in both causes of action, damages for the costs already incurred and the costs that will be incurred in the future as a result of caring for the infant, M.F. (R. 80, 83). Thus, for this reason, the negligent misrepresentation claim was properly dismissed. CONCLUSION Based upon all of the foregoing, this Court should conclude that the Appellate Division's Decision and Order of December 17, 2015, which concluded that a "wrongful birth" action accrues, for purposes of the statute of limitations, on the date of the infant's birth, was wrongly decided. The defendants' motions to dismiss the "wrongful birth" medical malpractice action must be granted, and the plaintiffs' complaint dismissed in its entirety. Dated: Woodbury, New York February 16, 2017 Of Counsel CARYN L. LILLING KATHERINE HERR SOLOMON Respectfully submitted, MAURO LILLING NAP ARTY LLP By:~£~-- CYN L. LILLIN~ 1 00 Crossways Park Drive West, Ste. 310 Woodbury, NY 11797 (516) 487-5800 Appellate Counsel to: Peter C. Kopff, LLC Attorneys for Defendant-Appellant REPRODUCTIVE MEDICINE ASSOCIATES OF NEW YORK, LLP 31 WORD COUNT CERTIFICATION Pursuant to Rule 500.11 (m), Caryn L. Lilling, as appellate counsel for Appellant Reproductive Medicine Associates of New York, LLP, certifies that the word count for the text of this submission was obtained through the word count software on Microsoft Word, the word-processing system used to prepare the submission and states that the word count is 6,442.