B.F., et al., Respondents,v.Reproductive Medicine Associates of New York, LLP, et al., Appellants.BriefN.Y.November 15, 2017APL-2016-00159 New York County Clerk’s Index No. 800405/11 Court of Appeals 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 ALAN COPPERMAN, M.D. AARONSON RAPPAPORT FEINSTEIN & DEUTSCH, LLP Attorneys for Appellant Alan Copperman, M.D. 600 Third Avenue, 5th Floor New York, New York 10016 212-593-6700 Of Counsel: Elliott J. Zucker Nancy Ledy-Gurren Date Completed: February 16, 2017 To Be Argued By: Nancy Ledy-Gurren Time Requested: 15 Minutes {01939066.DOCX } TABLE OF CONTENTS Table of Authorities……………………………………………………….….…….. i Legal Argument……………………………………………………………….…….. 1 I. A Plain Reading of CPLR §214-a Renders This Action Untimely…………………………………………………………….. 1 Adherence to the Statutory Scheme…………… ……………… 1 The Irrelevance of Damages in Determining the Timeliness of the Claim…………………………………………………….. 7 II. The Plaintiffs’ Failure to Appeal from Those Parts of the Appellate Division’s That Dismissed Portions of Their Claims Negates Further Review……………………………………………………………… 10 Conclusion………………………………………………………………….………. 12 i {01939066.DOCX } TABLE OF AUTHORITIES Page Alquijay v. St. Luke’s-Roosevelt Hospital, 63 N.Y.2d 978, 473 N.E.2d 244, 483 N.Y.S.2d 944 (1984)…………………………………………………………... 4 Flanagan v. Mt. Eden General Hosp., 24 N.Y.2d 427, 248 N.E.2d 871, 301 N.Y.S.2d 23 (1969)……………………………………………………………. 5 Fleishman v. Lilly & Co., 62 N.Y.2d 888, 467 N.E.2d 517, 478 N.Y.S.2d 853 (1984)………………………………………………………….. 2 Goldsmith v. Howmedica, Inc., 67 N.Y.2d 120, 491 N.E.2d 1097, 500 N.Y.S.2d 640 (1986)…………………………………………………………... 9 Hain v. Jamison, 28 N.Y.3d 524 (2016)…………………………………………… 10 Hecht v. City of New York, 60 NY2d 57, 61, 454 N.E.2d 527, 467 N.Y.S.2d 187 (1983)…………………………………………………………… 10 Helgans v. Plurad, 255 A.D.2d 554, 680 N.Y.S.2d 648 (2d Dept. 1998)………... 7 Highby v. Mahoney, 48 N.Y.2d 15, 396 N.E.2d 183, 421 N.Y.S.2d 35 (1979)……………………………………………………………. 2 Kronos v. AVX Corp., 81 N.Y.2d 90, 612 N.E.2d 289, 595 N.Y.S.2d 931 (1993)…………………………………………………………… 3 LaBarbera v. New York Eye & Ear Infirmary, 91 N.Y.2d 207, 691 N.E.2d 617, 668 N.Y.S.2d 546 (1998)…………………………………………. 2, 7 Rodriguez v. Manhattan Medical Group, 77 N.Y.2d 217, 567 N.E.2d 235, 566 N.Y.S.2d 193 (1990)…………………………………………………………… 2 511 W. 232nd Owners Corp. v. Jennifer Realty Co., 98 NY2d 144, 773 N.E.2d 496, 746 N.Y.S.2d 131 (2002)………………………………………… 10 ii {01 938 912 .DOC X } 1 Although the plaintiffs have submitted a lengthy brief in response to the defendants’ appeals, their argument does little to address the central question that brings this case before the Court: by what authority may a court expand the applicable statute of limitations beyond what the Legislature has very specifically set forth in the governing law it has drafted? It is our position on this appeal that the four corners of the statute must be followed, and that if any change or “expansion” of time in which to bring a lawsuit is going to be allowed, it must be expressly allowed by the legislative branch. Whatever alleged unfairness may be claimed by the respondents, they have submitted nothing to refute this basic proposition. LEGAL ARGUMENT1 I. A Plain Reading of CPLR §214-a Renders This Action Untimely Adherence to the Statutory Scheme As the defendants showed in their initial briefs, this Court has repeatedly rejected prior attempts to read the precise language of CPLR §214-a in an expansive manner. For medical malpractice actions, that statute unambiguously provides that, but for two exceptions (governing foreign bodies and continuous treatment) that are not pertinent to the facts in the case at bar, a cause of action 1 We would again note that we have read and digested the brief submitted in reply by our codefendant, RMA, and we would ask that the Court consider all arguments in that brief as fully incorporated herein. {01 938 912 .DOC X } 2 accrues as of the date of the “act, omission or failure complained of,” and any lawsuit must be commenced within two-and-a-half years thereafter. Here, the plaintiffs cannot seriously contest that the “failure complained of” focuses on the defendants’ alleged failure to test an egg donor for Fragile X, nor do they dispute that the lawsuit was brought more than two-and-a-half years after the accrual date. They further do not seem to dispute that this is a medical malpractice case, one involving an alleged deviation from the accepted standard of care by professionals with expertise in a particular field of medicine. Nevertheless, the plaintiffs insist, the Court should not apply the law the way it reads in black and white. Yet this Court’s jurisprudence says quite the opposite. Repeatedly, this Court has stated that the law must be applied as written, that even if seeming “unfairness” is the result, the courts have no ability to apply the statute of limitations beyond the scope of the instructions in the statute’s plain wording, and that if any changes are going to be made to how the statute applies, those changes must come from the Legislature. That, certainly, was the import of LaBarbera v. New York Eye & Ear Infirmary, 91 N.Y.2d 207, 691 N.E.2d 617, 668 N.Y.S.2d 546 (1998), Highby v. Mahoney, 48 N.Y.2d 15, 396 N.E.2d 183, 421 N.Y.S.2d 35 (1979), and Fleishman v. Lilly & Co., 62 N.Y.2d 888, 467 N.E.2d 517, 478 N.Y.S.2d 853 (1984), all cases discussed in our original brief, and all cases conspicuously ignored by the respondents. It is true, too, of Rodriguez v. {01 938 912 .DOC X } 3 Manhattan Medical Group, 77 N.Y.2d 217, 567 N.E.2d 235, 566 N.Y.S.2d 193 (1990), which the plaintiffs try to factually distinguish without once mentioning the Court’s warning in that case, in which it held that it was “duty bound” to reject readings of CPLR §214-a that were “plainly inconsistent” with the legislative intent of limiting and controlling the time period in which malpractice actions can be commenced. Not having anything to say about these prior warnings against legislatively unauthorized expansions of the statute of limitations, a good portion of the respondents’ brief therefore falls into discussion of non-medical malpractice cases, in which the language of the applicable statute of limitations is not nearly as precise as the wording of CPLR §214-a. For example, the plaintiffs begin their brief by citing Kronos v. AVX Corp., 81 N.Y.2d 90, 612 N.E.2d 289, 595 N.Y.S.2d 931 (1993), a claim of tortious inducing a party in to breach of contract, in which the accrual of time was measured not by CPLR §214-a, but rather by CPLR §214(4). The difference is significant, and dispositive. Thus, the Court in Kronos noted that, “a tort cause of action cannot accrue until an injury is sustained….That, rather than the wrongful act of defendant or discovery of the injury by the plaintiff, is the relevant date for marking accrual.” 81 N.Y.2d at 94. The language of CPLR §214-a, on the other {01 938 912 .DOC X } 4 hand, is concrete is stating that, for medical malpractice, accrual is indeed measured from the wrongful act. It might be appropriate at this point to question how the plaintiffs would define the wrongful “act, omission or failure” that forms the basis of their complaint and that, by statute, starts their time running in which to institute a lawsuit. Knowing full well that New York prohibits “wrongful life” claims (see, e.g., Alquijay v. St. Luke’s-Roosevelt Hospital, 63 N.Y.2d 978, 473 N.E.2d 244, 483 N.Y.S.2d 944 (1984)), they are careful to avoid arguing that the birth of their child was an “act, omission or failure.” But when they discuss the allegations that are so obviously the heart of their case – the failure to conduct the Fragile X screening or inform them of the failure to do that screening – all the plaintiffs can do is say “conception is not an injury.” Yet this once again misses the point: by statute, the accrual date is not the realization of an injury; it is the underlying act, omission or failure. This would, of course, be a different case if the governing statute simply provided that the plaintiffs have a given period of time from the accrual date in which to institute a lawsuit, without then defining the accrual date itself. The ability of the courts to interpret the accrual date for statute of limitations purposes absent statutory instruction is not something we challenge. Here, however, we {01 938 912 .DOC X } 5 have statutory instruction that unambiguously measures the running of the statute of limitations in medical malpractice cases from the date of the alleged wrong. The plaintiffs ignore the history that created CPLR §214-a at their peril. In Flanagan v. Mt. Eden General Hosp., 24 N.Y.2d 427, 248 N.E.2d 871, 301 N.Y.S.2d 23 (1969), a case plaintiffs brush aside as “having nothing to do with this case,” the Court indicated that its ability to read the medical malpractice statute of limitations in an expansive fashion was because the Legislature had yet to speak on the manner. After all, in 1969, there was no CPLR §214-a, and the accrual time for medical malpractice actions was a judicial creation. As this Court put it: Our decision does not encroach upon any legislative prerogatives. The Legislature did not provide that the Statute of Limitations should run from the time of the medical malpractice. This court did. Therefore, a determination that the time of accrual is the time of discovery is no more judicial legislation than was the original determination. Granted, the Legislature could have acted to change our rule; however, we would surrender our own function if we were to refuse to deliberate upon unsatisfactory court-made rules simply because a period of time has elapsed and the Legislature has not seen fit to act. 24 N.Y.2d at 434 (emphasis added). Yet this is not 1969. The Legislature has not been silent with regard to the medical malpractice statute of limitations for many decades now. The Legislature has very specifically delineated how and from when to compute the running of the statute of limitations in medical malpractice cases. When it has seen fit to do so, {01 938 912 .DOC X } 6 the Legislature has carved out exceptions to the statute and given instruction for how to compute the accrual date in cases of retained foreign bodies or continuous treatment circumstances. As importantly, and as pointed out in the original briefs, the Legislature has had before it multiple attempts to further expand the malpractice statute of limitations to encompass a “discovery rule,” and has consistently rejected those proposals. This case is hardly the first “wrongful birth” case in the State. Indeed, the defendants’ original briefs contained a detailed history of these claims. If the Legislature wants to someday re-write the CPLR so that the statute of limitations in such cases is measure from birth, rather than from the date of the act or omission complained of (as the statute now reads), it is perfectly free to do so. Until that time, however, we submit that the courts are no more free to impose their own re- working of the plain language of the statute than they would be to independently themselves create a “discovery” rule. Can strict adherence to the language crafted by the Legislature sometime yield harsh, or even unfair, results? Of course. The same could be said of the plaintiff with a failure to diagnose cancer claim who does not even learn he or she has cancer until more than two-and-a-half years after a misdiagnosis occurred. As pointed out previously, the harsh result cannot as a matter of law alter the statute of limitations. The Legislature enacts these statutes after careful consideration, {01 938 912 .DOC X } 7 knowing it has to balance the needs of litigants on all sides, both plaintiffs and their right to redress a wrong, and defendants and their right to not having claims against them run in some indeterminate, open-ended fashion. See, e.g., LaBarbera, supra; Helgans v. Plurad, 255 A.D.2d 554, 680 N.Y.S.2d 648 (2d Dept. 1998). The courts, we submit, have no right to alter this balance once the Legislative branch has spoken. To do so based on the facts of this case would be especially egregious, because a “strict” adherence to legislative intent and the language of CPLR §214-a did not necessarily have to result in a situation in which the plaintiffs were nonsuited. The plaintiffs in the case at bar had ample time to commence this lawsuit after they first discovered that their child carried the Fragile X mutation. Why they chose not to is something that remains unexplained. The Irrelevance of Damages in Determining the Timeliness of the Claim The plaintiffs insist that the fact that the parents in the case at bar (to whom the “wrongful birth” claim belongs) would not sustain any damages until after their child was born should for some reason be controlling. This is unpersuasive for both factual and legal reasons. Factually, when parents in a wrongful birth claim start to sustain damages, or begin expending the “extraordinary” costs associated with raising their child, is necessarily something that varies widely on a case-by-case basis. There are situations, as in the case now before the Court, where those expenses do not start {01 938 912 .DOC X } 8 occurring until a considerable period after the time of birth. That does not mean the cause of action starts to accrue once the parents lay out the first dollar in extraordinary costs. Conversely, it is easy to picture a factual scenario in which, unlike the plaintiffs here, the parents are informed of a similar act of alleged malpractice (failure to screen for a genetic abnormality) before the child is born, and then start incurring extraordinary expenses in anticipation of the care they feel their child will need as soon as they bring the baby home, be it by buying equipment, installing at-home monitoring or other devices, purchasing special clothes, or anything else. We assume our adversaries would admit that these are compensable items of damages in a wrongful birth case, even if that pecuniary loss happened before birth. Why, then, should the accrual date be measured by birth if it is at least theoretically possible to incur compensable loss before that time? As a legal matter, the fact that damages may not be known at the time a medical malpractice cause accrues for statute of limitations purposes has never acted as a type of toll on the time needed to commence the lawsuit. This is, again, most easily seen in “failure to diagnose” cases. There is no dispute that, in those cases, the statute of limitations begins to run at the time of the missed diagnosis, and that remains true even if the damage that results is not known for months or even years thereafter. {01 938 912 .DOC X } 9 This Court has recently addressed this idea head-on, and has still rejected the idea that there should be some kind of exception to the CPLR’s express language regarding the accrual and timeliness of a medical malpractice action because it might sometimes “effectively foreclose[] an action against the doctor before any injury has been suffered.” Thus, in Goldsmith v. Howmedica, Inc., 67 N.Y.2d 120, 491 N.E.2d 1097, 500 N.Y.S.2d 640 (1986), the Court wrote: The argument is not new. We have carefully considered it on numerous occasions. In each, we weighed the detriments of such a result against the effect of potentially open-ended claims upon the repose of defendants and society, and held that the Statute of Limitations must run from the time of the act until the Legislature decrees otherwise. 67 N.Y.2d at 123-24. In the case at bar, of course, the Legislature has not decreed otherwise, and the timeliness of the action must still thus be measured “from the time of the act.” The act(s) in this case are precisely what the plaintiffs have already alleged: failure to screen for Fragile X, and failure to inform the plaintiffs that the donor egg had not been so screened. There is no dispute that this action was commenced more than two-and-a-half years later, and indeed more than two- and-a-half years from the last date on any treatment by the defendants. It is therefore untimely on its face, and the Court should not go beyond the express language of the CPLR to rule otherwise. {01 938 912 .DOC X } 10 II. The Plaintiffs’ Failure to Appeal from Those Parts of the Appellate Division’s That Dismissed Portions of Their Claims Negates Further Review The First Department, as part of its decision, dismissed causes of action originally pled by the plaintiffs sounding in negligence, negligent misrepresentation, breach of contract, fraud and fraudulent concealment. The plaintiffs have never sought permission for further appellate review of these issues by this Court. When the defendants moved for leave to appeal to the Court of Appeals, they did so only on the question of whether the Appellate Division correctly decided the issue of the timeliness of the plaintiffs’ lawsuit. The plaintiffs made no cross-motion or sought any type of relief with regard to the parts of the order that ostensibly left them aggrieved. As this Court noted late last year in Hain v. Jamison, 28 N.Y.3d 524 (2016), “Our review of the Appellate Division order is ‘limited to those parts of the judgment that have been appealed and that aggrieve the appealing party,’ and we generally may not grant affirmative relief to a nonappealing party (Hecht v. City of New York, 60 NY2d 57, 61, 454 N.E.2d 527, 467 N.Y.S.2d 187 [1983]; see 511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 151, 773 N.E.2d 496, 746 N.Y.S.2d 131 [2002]). Inasmuch as plaintiff did not seek leave to appeal to this Court, we may not, on this appeal, reinstate the complaint as asserted by non-appellant plaintiff against the Farm.” {01 938 912 .DOC X } 11 The same principle applies to the case now before this Court, and the plaintiffs’ attempt to “back door” a review of parts of the First Department’s orders with which they disagree should not be permitted. {01 938 912 .DOC X } 12 CONCLUSION For the reasons set forth above and in the defendants’ original briefs, it is respectfully submitted that the Appellate Division plainly erred in ignoring the express language of CPLR §214-a in holding that the statute of limitations in a “wrongful birth” case should be measured from the date of birth, rather than from the date of the alleged act or omission complained of. This Court should thus reverse, and dismiss the plaintiffs’ complaint as untimely. Dated: New York, New York February 16, 2017 Respectfully submitted, _______________________________ Elliott J. Zucker, Esq. AARONSON RAPPAPORT FEINSTEIN & DEUTSCH, LLP Attorneys for Defendant-Appellant ALAN B. COPPERMAN, M.D. 600 Third Avenue New York, NY 10016 (212) 593-6700 Nancy Ledy-Gurren, Esq. Of Counsel Ledy-Gurren Bass D'Avanzo & Siff, LLP 475 Park Avenue South, NY 10016 (212) 447-1105