B.F., et al., Respondents,v.Reproductive Medicine Associates of New York, LLP, et al., Appellants.BriefN.Y.November 15, 2017To be Argued by: WENDY R. FLEISHMAN (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., Plaintiffs-Respondents, – against – REPRODUCTIVE MEDICINE ASSOCIATES OF NEW YORK, LLP and ALAN COPPERMAN, M.D., Defendants-Appellants. BRIEF FOR PLAINTIFFS-RESPONDENTS B.F. AND STEVEN FARBER WENDY R. FLEISHMAN RACHEL J. GEMAN KELLY K. MCNABB LIEFF CABRASER HEIMANN & BERNSTEIN, LLP Attorneys for Plaintiffs-Respondents 250 Hudson Street, 8th Floor New York, New York 10013 Tel.: (212) 355-9500 Fax: (212) 355-9592 Date Completed: January 20, 2017 1335839.6 -i- TABLE OF CONTENTS Page COUNTERSTATEMENT OF THE QUESTIONS PRESENTED .......................... 2 SUMMARY .............................................................................................................. 3 COUNTERSTATEMENT OF FACTS .................................................................... 7 A. Background Facts ................................................................................. 7 B. Procedural History .............................................................................. 10 1. The Supreme Court’s Order ..................................................... 13 2. Defendants Appealed the Supreme Court Order to the First Department. ..................................................................... 14 3. Defendants’ Appeal to this Court. ........................................... 16 ARGUMENT .......................................................................................................... 16 POINT I: THE FIRST DEPARTMENT’S ORDER FINDING THAT THE STATUTE OF LIMITATIONS DOES NOT ACCRUE IN A WRONGFUL BIRTH ACTION UNTIL THE DATE OF BIRTH IS IN HARMONY WITH THE STATUTE AND THE CASE LAW. .................................................. 16 A. The Supreme Court’s Decision Rests Properly on the Judicial Principle That a Statute of Limitations in a Tort Does Not and Cannot Commence Running Until the Cause of Action Accrues. ..... 16 B. A Wrongful Birth Claim is By Definition a Claim to Address the Parents’ Increased Financial Obligation to Raise an Impaired Child Injured by Professional Negligence. ......................... 19 C. Strong Precedent Supports the Decision that the Statute of Limitations for Medical Malpractice Did Not Accrue until Baby M.F.s “Wrongful Birth.” .................................................................... 22 1. Defendants’ Reliance on Failure-to-Diagnosis Case Law Is Unpersuasive. ....................................................................... 25 2. Defendants Improperly Compare this Case to the Foreign Object and the Continuous Treatment Doctrines. .................... 28 3. Conception Is Not An Injury.................................................... 29 TABLE OF CONTENTS (continued) Page 1335839.6 -ii- D. Application of the Standard Rules of Accrual Is Not an End Run Around the Statute of Limitations. ............................................. 31 POINT II: THE FIRST DEPARTMENT’S ORDER DISMISSING PLAINTIFFS’ COMMON-LAW CAUSES OF ACTION SHOULD BE REVERSED. ........................................................................................................... 33 A. The Negligence Claims Are Based on Dr. Copperman’s and RMA’s Failure to Implement Proper Procedures for Screening Oocyte Donors, not for Professional Negligence. .............................. 34 B. The Breach of Contract Seeks Different Damages than those Sought for Defendants’ Professional Negligence. ............................. 38 C. Fraud and Fraudulent Concealment Damages Differ from the Damages for Medical Malpractice Action for Wrongful Birth.......... 39 CONCLUSION ....................................................................................................... 42 TABLE OF AUTHORITIES Page -iii- 1335839.6 Cases Alpert v. Shea Gould Climenko & Casey, 559 N.Y.S.2d 312 (First Dep’t 1990) ................................................................... 42 Alquijay v. St. Lukes’- Roosevelt Hosp. Ctr., 63 N.Y.2d 978 (1984) ........................................................................................... 20 Annunziata v. Quest Diagnostics Inc., 127 A.D.3d 630 (1st Dep’t 2015), aff’d 22 N.Y.3d 1 (2013) ............................... 36 Bay Area Laundry and Dry Cleaning Pension Trust Fund v. Ferbar Corp. of Cal., 522 U.S. 192 (1997) ............................................................................................. 17 Becker v. Schwartz, 46 N.Y.2d 401 (1978) .............................................................................. 19, 20, 30 Bleiler v. Bodnar, 65 N.Y.2d 65 (1985) ............................................................................................. 37 Bridgestone/Firestone, Inc. v. Recovery Credit Servs., Inc., 98 F.3d 13 (2d Cir. 1996) ..................................................................................... 41 Brushton-Moira Cent. School Dist. v. Thomas Assoc., 91 N.Y.2d 256 (1998) ........................................................................................... 39 Channel Master Corp. v. Aluminum Ltd. Sales, Inc., 4 N.Y.2d 403 (1958) ............................................................................................. 40 Ciceron v. Jamaica Hosp., 264 A.D.2d 497 (2d Dep’t 1999) ................................................................. passim Flanagan v. Mt. Eden General Hosp., 24 N.Y.2d 427 (1969) ........................................................................................... 28 Fonda v. Wapner, 103 A.D.3d 510 (1st Dep’t 2013) ......................................................................... 20 Foote v. Albany Med. Ctr. Hosp., 16 N.Y.3d 211 (2011) ...................................................................................... 5, 21 Ginsberg ex rel. Ginsberg v. Quest Diagnostics, Inc., 117 A.3d 200 (N.J. Super. 2015) .......................................................................... 23 Goodstein Constr. Corp. v. City of New York, 80 N.Y.2d 366 (1992) ........................................................................................... 39 TABLE OF AUTHORITIES (continued) Page 1335839.6 -iv- Graham Cnty. Soil & Water Conservation Dist. v. United States ex rel. Wilson, 545 U.S. 409 (2005) ............................................................................................. 17 Green v. Brennan, Postmaster General, 578 U.S. ___ (2016) ............................................................................................. 17 Grossbaum v. Genesis Genetics Institute, LLC, Civil Action No. 07-1359, 2011 WL 2462279 (D.N.J. June 10, 2011) ............... 23 Helgans v. Plurad, 255 A.D.2d 554 (2d Dep’t 1998) ......................................................................... 25 Jorge v. New York City Health & Hosp. Corp., 164 A.D.2d 650 (1st Dep’t 1991), rev’d, 79 N.Y.2d 905 (1992) ............ 22, 23, 24 Kronos, Inc. v. AVX Corp., 81 N.Y.2d 90, 612 N.E.2d 289, 595 N.Y.S.2d 931 (1993) .................................... 1 Levin v. Yeshiva Univ., 96 N.Y.2d 484 (2001) ........................................................................................... 34 Marchand v. Capone, 223 A.D.2d 686 (2d Dep’t 1996) ......................................................................... 22 Martin v. Dierck Equip. Co., 43 N.Y.2d 583 (1978) ........................................................................................... 20 McDermott v. Toore, 56 N.Y. 2d 399 (1982) ................................................................................... 25, 28 Nykorchuck v. Henriques, 78 N.Y.2d 255 (1991) ........................................................................................... 25 O’Toole v. Greenberg, 64 N.Y.2d 427 (1985) .............................................................................. 15, 18, 30 Order of Railroad Telegraphers v. Railway Express Agency, 321 U.S. 342 (1994) ............................................................................................. 33 Pahlad ex rel. Berger v. Brustmas, 33 A.D.3d 518, 519 (1st Dep’t 2006), aff’d, 8 N.Y.3d 901 (2007) .............. 21, 23 Reid v. Terwilliger, 116 N.Y. 530 (1889) ............................................................................................. 39 Reiter v. Cooper, 507 U.S. 258 (1993) ............................................................................................. 17 TABLE OF AUTHORITIES (continued) Page 1335839.6 -v- Rockefeller v. Moront, 81 N.Y.2d 560 (1993) ........................................................................................... 20 Rodriguez v. Manhattan Medical Group, P.C., 77 N.Y.2d 217 (1990) ........................................................................................... 28 Rodriguez v. Saal, 43 A.D.3d 272 (1st Dep’t 2007) ........................................................................... 38 Sabadie v. Burke, 849 N.Y.S.2d 440 (2d Dep’t 2008) ...................................................................... 16 Scrofini v. Sebollena, 226 A.D.2d 523 (2d Dep’t 1996) .................................................................. 22, 23 Weed v. Myers, 251 A.D.2d 1062 (4th Dep’t 1998) ......................................................... 22, 24, 25 Weiner v. Lenox Hill Hosp., 88 N.Y.2d 784 (1996) .................................................................................... 36, 37 Williams v. State of New York, 18 NY 2d 481 (1966) ............................................................................................ 19 Wood v. Carpenter, 101 Y.S. 135 (1879) ............................................................................................. 33 Young v. New York City Health & Hosps. Corp., 91 N.Y.2d 291(1998) ............................................................................................ 25 Statutes Civil Practice Law and Rules § 214 ..................................................................................................................... 37 Civil Practice Law and Rules § 214-a .......................................................................................................... passim Civil Practice Law and Rules § 3211(a)(5) .......................................................................................................... 12 Civil Practice Law and Rules § 3211(a)(7) ................................................................................................... 12, 34 Treatises 4 West’s New York Practice Series, 1995 ............................................................... 39 Haig, Commercial Litigation in New York State Courts, § 51.3[c], at 31 .............. 39 Restatement [Second] of Contracts § 347, comment a; § 344 ................................. 39 TABLE OF AUTHORITIES (continued) Page 1335839.6 -vi- Other Authorities Edward J. Larson, The Meaning of Human Gene Testing for Disability Rights, 70 U.Cin.L.Rev. 913 (2002) ................................................................................. 19 Wendy F. Hensel, The Disabling Impact of Wrongful Birth and Wrongful Life Actions, 40 Harv. L. Rev.-C.L.L.Rev. 141, 141 (2005) ............................... 19 1335839.6 -1- Plaintiffs-Respondents B.F. and Steven Farber, a married couple, individually and as parents and natural guardians on behalf of their minor child, M.F. (“Plaintiffs” or “the Farbers”), respectfully submit this response to the appeal of Defendants-Appellants Reproductive Medicine Associates of New York, LLP (“RMA”) and Alan Copperman, M.D. (“Copperman”) (collectively “Defendants”), taken from the December 17, 2015 Decision and Order of the Supreme Court, Appellate Division, First Department (R. 1756-82) (“Order” or “First Department Order”). The Order correctly affirmed the Supreme Court of New York’s (Lobis, J.) denial of Defendants’ motion to dismiss the medical malpractice action brought against them for the wrongful birth claim of infant M.F., pursuant to CPLR § 3211(a)(5), and correctly applied existing law in finding that the action had been timely filed pursuant to CPLR § 214(a) (12-25). These rulings from Judge Lobis’ January 7, 2014 Order (“Supreme Court Order”) should be affirmed. This Court has made clear that “as a general proposition, a tort cause of action cannot accrue until an injury is sustained … [t]he Statute of Limitations does not run until there is a legal right to relief. Stated another way, accrual occurs when the claim becomes enforceable, i.e., when all elements of the tort can be truthfully alleged in a complaint.” Kronos, Inc. v. AVX Corp., 81 N.Y.2d 90, 94, 612 N.E.2d 289, 595 N.Y.S.2d 931 (1993) (citations omitted); LaBello v. Albany Med. Ctr., 85 N.Y.2d 1335839.6 -2- 701, 704, 651 N.E.2d 908, 628 N.Y.S.2d 40 (1995) (citing Kronos and concluding that “a cause of action for medical malpractice premised on faulty prenatal care and consequent injuries accrues at live birth”). The First Department Order also granted the motion to dismiss the Farbers’ claims sounding in negligence and negligent misrepresentation, common-law fraud and fraudulent concealment, and breach of contract, finding that those claims were “essentially redundant of the medical malpractice claim.” Order, at 12 (R. 1768.). That ruling was incorrect because the allegations and remedies are distinct, involving, in the main, Defendants’ false and specific misrepresentations and omissions that were designed to, and did, induce the Plaintiffs to use Defendants’ services and to believe that appropriate and fulsome genetic screening of their egg donor had been done. COUNTERSTATEMENT OF THE QUESTIONS PRESENTED 1. Where the Defendants’ medical malpractice resulted in the “wrongful birth” of a severely impaired child who will indisputably require medical care and treatment that a “normal” child would not require, do Plaintiffs assert timely claims because, as the Appellate Division correctly concluded, the cause of action accrued upon the birth of the infant and, therefore, was not barred by the applicable statute of limitations (CPLR § 214-a). Proposed answer to Question 1: Yes. 1335839.6 -3- 2. Did the Appellate Division correctly conclude that the medical malpractice claim was commenced properly within two years and six months after the date of birth, because a legal right to relief did not or could not have existed until the live birth occurred? Proposed answer to Question 2: Yes. 3. Did the Appellate Division incorrectly dismiss Plaintiffs’ claims for ordinary negligence, fraud/fraudulent concealment, negligent misrepresentation, and breach of contract because, as the Partial Dissent points out (per Manzanet- Daniels, J.), “it cannot be determined on the motion to dismiss whether additional causes of action alleged are duplicative of or subsumed within the cause of action alleging medical malpractice”? (R. 1774). Proposed answer to Question 3: Yes. SUMMARY Parents Mr. and Mrs. Farber seek damages for the “wrongful birth” of their son, M.F., who was born with Fragile X Syndrome on September 25, 2009. RMA and RMA’s chief executive officer Dr. Copperman, the latter a purported infertility specialist, are charged with professional negligence in failing to provide services they expressly promoted, promised, and guaranteed to the Farbers: in vitro fertilization with the use of an oocyte (egg) donor who had been completely screened for any inheritable genetic disorder that could cause mental retardation in the resulting child, and who was herself a patient of the clinic. 1335839.6 -4- The complaint alleges, and the record supports, that Defendants knew and had reason to know that a screening test for Fragile X – the most commonly inherited form of mental retardation1 – was available at the time for less than $200, but neither provided the test nor told the Farbers the truth that no such screening test would be performed on the RMA donor. As a result, male fraternal twins were born to the Farbers with a gene mutation on their X chromosomes. Fragile X Syndrome is an inheritable genetic condition that can cause extreme mental retardation and movement disorders in males, like M.H., who have a significant number of repeated gene mutations. Defendants knew their representations regarding screening procedures to be false but nonetheless lured the Farbers, desperate for a child of their own, to believe RMA and Dr. Copperman and pay a large sum of money for implantation of two fertilized embryos, using eggs donated by the anonymous donor, who was also a patient of RMA (R. 66-67). The twins were conceived by in vitro fertilization on January 21, 2009 (R. 67, 296). Fraternal twins were born on September 25, 2009 (R. 68). It is undisputed that the first time the Farbers learned that there was anything potentially “wrong” with their sons was after a telephone call in May of 2010, when Dr. Copperman “suggest[ed]” that the Farbers see a genetic counselor (R. 68, 1 It is estimated that as many as 1 in 250 women carry either partial or full repeat mutations (R. 70). It is only passed through the female’s donated X chromosome (i.e., only a mother can pass Fragile X to the child) (R. 71). 1335839.6 -5- 563-65). Following a series of appointments with a geneticist, it was confirmed that baby M.F. had full-blown Fragile X Syndrome and D.H. did not suffer from the same genetic fate (R. 69, 770). The relevant facts are undisputed (and, indeed, must be taken as true). The legal issue here for the medical malpractice claim turns on whether Plaintiffs’ complaint is timely. It is timely because Plaintiffs brought their Complaint within two-and-a-half years of the birth of the twins. In arguing otherwise, Defendants make the meritless argument that, despite well-established law, the lower courts’ decision was an “aberrant deviation” from settled law (Def. Copperman Br. at 25). To the contrary, in holding that the statute could not have started to run before a live birth, the courts acted squarely within Court of Appeals precedent on this point in LaBello, 85 N.Y.2d 701, and also consistent with the Second Department’s decision in Ciceron v. Jamaica Hosp., 264 A.D.2d 497 (2d Dep’t 1999) (holding that a cause of action accrued at the time of live birth of the infant plaintiff, not at the time of earlier alleged malpractice). In fact, the measure of damages for this particular claim – the increased financial obligation of raising a mentally-disabled child – is dependent entirely on the event creating the justiciable controversy (the live birth). See Foote v. Albany Med. Ctr. Hosp., 16 N.Y.3d 211, 215 (2011). 1335839.6 -6- The courts below carefully considered, and appropriately rejected, the arguments Defendants make here, and found that the Farbers timely commenced this action because they filed within twenty-seven months after baby M.F.’s birth on September 25, 2009. In addition to being on sound legal foundation, the First Department Order also comports, indirectly but definitively, with the policy of limiting medical malpractice claims. Here, Plaintiffs gave birth to twin boys from the same egg donor who was a carrier of Fragile X. M.F. suffers from a full-mutation of Fragile X Syndrome. M.F.’s twin brother, D.F., does not have a full Fragile X mutation and does not require extraordinary medical treatment or educational services due to developmental delays and mental retardation. Had Plaintiffs brought placeholder claims at the time of fertilization, rather than a timely claim after birth, the claim would have been unripe as to M.F. and non-existent as to D.F (even imagining that Plaintiffs had learned of the fraud and malpractice before the birth, which they did not). Plaintiffs do not have (and have never had) any legally cognizable claim for the birth of D.F., which Defendants would no doubt have argued had such a suit been brought.2 That cannot be the right result. There is no legitimate purpose served by requiring unripe claims to be 2 The First Department illustrated this point, noting that “[e]ven if knowledge of the impairment of the fetus would not have prompted the parents to choose to terminate the pregnancy, the natural course of any pregnancy is a matter of substantial uncertainty” (R. 1767). 1335839.6 -7- made as possible placeholder claims. Even worse would be the result Defendants clearly advocate: the Catch-22 where the claim goes effectively from unripe to untimely. For all of these reasons, the Court should affirm the First Department Order as to timeliness of the medical malpractice claim. It should also overturn the dismissal of the common-law causes of action for the reasons set forth in Point II below. COUNTERSTATEMENT OF FACTS A. Background Facts Prior to the birth of the twins, the Plaintiffs first sought reproductive assistance from Defendants in February 2008. (R. 65.) The Farbers sought out Dr. Copperman and RMA hoping to become pregnant with the assistance of in vitro fertilization, and were not at first considering using a donor egg. (R. 65-66.) Dr. Copperman met with Mr. and Mrs. Farber and persuaded them to use a donor egg supplied by RMA, suggesting that RMA provided the best services as compared to the other infertility practice where the Farbers had previously sought care (R. 65-66). At that first consultation with Dr. Copperman, Mr. Farber, a special education teacher in New York who was intimately aware of the challenges presented by mentally impaired children, specifically raised the question of genetic screening. Dr. Copperman assured the Farbers that RMA was the premier 1335839.6 -8- infertility center in the New York City, and he specifically promised the Farbers that every form of genetic testing that was available at the time would be used to test for any inheritable form of mental retardation. The Farbers took Dr. Copperman at his word. They expressly told him that they were specifically conditioning the use of an egg donor on Dr. Copperman’s and RMA’s promise that the donor would be tested (R. 65-66). Specifically, Dr. Copperman and RMA made the following assurances: (1) RMA employed a rigorous screening process that included genetic testing for all possible birth defects, to the extent that such tests existed; (2) RMA and Dr. Copperman had a superior reproductive assistance program to anything else available; and (3) all donors that RMA and Dr. Copperman employed to donate eggs were healthy (R. 65). The Farbers were also provided marketing materials regarding the donor program that further reinforced these promises (R. 65-66). Relying on these promises and the materials provided to them, the Farbers proceeded, paying well over $21,000 to achieve their dream of having children (R. 66). At the time, Fragile X screening, a simple blood test, cost between $100 and $200, a small fraction of the amount the Farbers paid to RMA. The Farbers conceived twin boys on January 21, 2009 and the boys were born on September 25, 2009 (R. 68-69). 1335839.6 -9- According to RMA records, Dr. Copperman and RMA received notice that the oocyte donor (the “Donor”) was a Fragile X carrier in February 2010, when one of the affected families reported to RMA that their twin sons conceived through in vitro egg donation at RMA had Fragile X Syndrome3 (R. 347). Dr. Copperman and RMA decided to wait until May 10, 2010, a full three months later, to inform the Farbers that their sons faced the same risk because they were the result of fertilization by the same RMA Donor4 (R. 68, 348). Because RMA and Dr. Copperman never conducted the screening that Dr. Copperman and RMA promised to conduct, and because neither Dr. Copperman nor anyone else at RMA ever told Mr. and Mrs. Farber that if they wanted genetic testing for inheritable forms of intellectual delays and spectrum 3 Fragile X Syndrome is part of Fragile X-associated Disorders (“FXD”), which is a family of genetic conditions that can affect individuals in a variety of ways. The conditions are all caused by changes in the gene known as FMR1. Fragile X Syndrome (“FXS”) is the most common cause of inherited intellectual disability and the most common known genetic cause of autism or autism spectrum disorders. Symptoms of FXS include a range from learning disabilities to more severe cognitive or intellectual disabilities that were previously referred to as “mental retardation.” Delays in speech and language development are common, as are a variety of physical and behavioral characteristics. FXS is caused by a “full mutation” of the FMR1 Gene. Fragile X-associated Disorders (FXD) can be passed on by carriers of the FMR1 gene mutation who have no apparent signs of an FXD. In some families a number of individuals may be affected, while in other families a diagnosed individual may be the only known family member to exhibit symptoms. Also, in some families, only carriers are identified and there are no apparently affected family members. https://fragilex.org/fragile-x/ 4 Prior to the Farbers’ first contacts with RMA in 2008, the Donor had first presented at the clinic in 2005 and first donated in 2007 as an RMA oocyte donor (R. 1123-1196). The Donor donated her eggs four additional times—including twice in 2007 and three times in 2008 (R. 1192). At no time prior to or during the course of her donations was this patient screened for Fragile X, and never was until long after she had donated eggs for multiple births (R. 1123-1196). It is believed that there are at least six children who are the offspring of this donor. Five of them have full mutations and suffer severe disabilities. 1335839.6 -10- disorders, that a “Fragile X test should be done” and that specifically that crucial screening test was never performed, the Farbers were unaware that M.F. and D.F. were ever at risk for a genetic mutation (R. 68-69). As a result, M.F. was born with a full-mutation of Fragile X, and his fraternal twin brother is a premutation carrier of Fragile X5(R. 69). Mr. and Mrs. Farber did not bring an action for wrongful birth in connection with D.F.’s birth, since they hope and expect that they will not be faced with the same financial challenges as raising M.F., because only M.F. suffers the permanent impairments and severe disabilities due to his full- blown Fragile X Syndrome. M.F.’s disabilities are profound and permanent, and he requires constant care from home care, medical providers, including physicians, specially trained educators and therapists. M.F. will never live an independent life or engage in independent activities of daily living (R. 70). B. Procedural History On December 6, 2011, well within the statute of limitations, Plaintiffs initiated this wrongful birth action against Defendants asserting the following causes of action: (1) fraudulent concealment; (2) medical malpractice; (3) negligence; (4) common law fraud; (5) negligent misrepresentation; (6) breach 5 Males who carry the Fragile X premutation, like D.F., can pass Fragile X to their daughters but not to their sons. According to the National Fragile X Foundation, there is no reported risk for a male Fragile X premutation carrier to pass on Fragile X permutation to a daughter who then would have full blown Fragile X Syndrome. https://fragilex.org/fragile-x/carriers/. 1335839.6 -11- of contract; (7) breach of contract/third-party beneficiary; (8) breach of express warranty of merchantability; (9) breach of implied warranty of merchantability; (10) breaches of express and implied warranties/third-party beneficiary; (11) failure to warn under products liability theory; and (12) negligent infliction of emotional distress (R. 73-89). In January 2012, Defendants RMA and Dr. Copperman answered. A Preliminary Conference was conducted on April 13, 2012, before Justice Lobis. At that time, the Supreme Court set an initial disclosure schedule. The Court held compliance conferences and issued discovery orders.6 After that, the Farbers executed authorizations, produced documents, and sat for three days of depositions. Yet, despite repeated requests and compliance orders from the lower court, Defendants continually ignored their own disclosure obligations. Dr. Copperman avoided being deposed in this or any of the other pending matters brought against RMA for the failure to screen the same Donor at issue here.7 On May 14, 2013, Defendant Dr. Copperman moved to dismiss this action pursuant to CPLR §§ 3211(a)(5) and (a)(7) (R. 27-59). RMA’s motion to dismiss followed on June 6, 2013, raising the same grounds (302-335), that: (1) the 6 As reflected on the Court Docket, compliance conferences were held on September 11, 212, February 26, 2013, and April 16, 2013, before the motion to dismiss was first initiated by Dr. Copperman. 7 One such case is Dennehy v. Reproductive Medicine Assocs. of New York, LLP, 800340/2011, the companion case on appeal before this Court. 1335839.6 -12- professional negligence claims were untimely, per CPLR § 3211(a)(5);8 (2) all claims (other than medical malpractice) failed to state a cause of action, per CPLR § 3211(a)(7); and (3) punitive damages were not an appropriate remedy (R. 27-59, 302-335). Thus, at the time Defendants moved to dismiss, much of the Plaintiffs’ discovery had been undertaken but Defendants had not produced a single document or witness. Plaintiffs opposed the motion and cross-moved to compel discovery with a detailed attorney’s affirmation, attaching the Compliance Conference Orders of April 16, 2013 (R. 1075-1076), February 26, 2013 (R. 1077), excerpts of deposition transcripts of the Farbers, extensive medical records and materials the Farbers had in their possession concerning the oocyte donation, and disclosure of the failure to screen and ultimate diagnosis of the M.F.’s Fragile X Syndrome (R. 1036-1299, 1359-1557). Plaintiffs argued, among other things, that under New York law, a cause of action accrues for wrongful birth at the time of the birth, and that, because none of the discovery that was ordered had been produced, Plaintiffs and the lower court could not address whether the claims asserting fraudulent concealment, negligence, common law fraud, negligent misrepresentation, and breach of contract were duplicative of the medical malpractice cause of action, and so the claims should not be dismissed upon a 8 Counts 2, 3, 6, and 7 1335839.6 -13- motion to dismiss the complaint. Plaintiffs asserted that each count was adequately plead to survive a CPLR §3211 (a)(7) dismissal (R. 1038-1074). 1. The Supreme Court’s Order The Supreme Court granted the motions to dismiss in part, and denied them in part; and granted Plaintiffs’ cross-motion for discovery (R. 14-25). Because this was a motion to dismiss, Justice Lobis accepted all the facts as pled in the Complaint as true and applied existing law to the facts of the case. The court held that: “[i]n actions like this one, arising out of injury to an infant, appellate authority provides that the infant’s and parents’ cause of action accrue upon the birth of the infant” (R. 21), relying upon this Court’s decision in, 85 N.Y.2d 701, 707-08 and the decision in Ciceron, 264 A.D.2d 497, 498 (R. 21). The Supreme Court denied as premature Defendants’ motion to dismiss claims for fraudulent concealment, negligence, common law fraud, negligent misrepresentation, and breach of contract, stating that “[i]t would be an abuse of discretion for this Court to dismiss the action at this stage of the litigation based on the Defendants’ one-sided recounting of the events that transpired in this case.” (R 21-23). Concurrently, the court granted in part Plaintiffs’ motion to compel disclosure of the discovery from Defendants (R. 23-24). Plaintiffs’ remaining causes of action for breach of contract/third-party beneficiary; breach of express 1335839.6 -14- warranty of merchantability; breach of implied warranty of merchantability; breaches of express and implied warranties/third-party beneficiary; failure to warn under products liability theory; and negligent infliction of emotional distress were dismissed (R. 24).9 Finally, the court concluded that, although punitive damages are not an independent claim, Plaintiffs’ surviving causes of action may warrant punitive damages and sustained this demand for relief (R. 24-25). 2. Defendants Appealed the Supreme Court Order to the First Department. The primary question presented was “whether plaintiffs’ wrongful birth cause of action accrued upon the termination of defendants’ treatment of the plaintiff mother, less than two months after the implantation of the embryo, or upon the birth of the infant several months later” (R. 1759). On December 17, 2015, the First Department affirmed the trial court’s decision “that the wrongful birth claim accrued upon the birth of the infant and, therefore, was not barred by the applicable statute of limitations (CPLR § 214-a) when this action was commenced within 2½ years after the birth.” (R. 1759, 1762- 67) The First Department applied the reasoning used by this Court in LaBello to 9 Plaintiffs did not appeal the dismissal of causes of action for breach of contract/third-party beneficiary; breach of express warranty of merchantability; breach of implied warranty of merchantability; breaches of express and implied warranties/third-party beneficiary; failure to warn under products liability theory; and negligent infliction of emotional distress were dismissed. 1335839.6 -15- address the question of when a wrongful birth cause of action accrues (R. 1764-65, n.2). The court stated the principle: “[l]iability for negligent conduct exists only when it proximately causes legal harm to a fully protected interest of another.” (R. 1766 (citing O’Toole v. Greenberg, 64 N.Y.2d 427, 431 (1985)). Specifically, the court stated: In the case of a claim for wrongful birth, the parents’ legally cognizable injury is the increased financial obligation of raising an impaired child . . . . Whether this legally cognizable injury will befall potential parents as the result of the gestation of an impaired fetus cannot be known until the pregnancy ends. Only if there is a live birth will the injury be suffered. Thus, until there is a live birth, the existence of a cognizable legal injury that will support a wrongful birth cause of action cannot even be alleged. Without legally cognizable damages, there is no legal right to relief, and the statute of limitations cannot run until there is a legal right to relief. (R. 1767 (Internal citations and quotations omitted.)) The First Department’s reasoning is supported by this Court’s long-standing precedent and by common sense. Medical malpractice lawsuits should not be filed before an injury is sustained. The First Department, however, went further and erroneously modified the trial court’s order to grant Defendants’ motion to dismiss the causes of action for ordinary negligence, breach of contract, fraud/fraudulent concealment, and negligent misrepresentation. The court agreed with the Defendants that these claims were essentially redundant of the medical malpractice claim (R. 1768). The timeliness of these claims is not in dispute, however. As shown below, the First 1335839.6 -16- Department’s dismissal of the breach of contract, fraud, fraudulent concealment, negligence, and negligent misrepresentation claims was in error. The parties have not completed discovery to date and fact finding on these issues remain; conversely, even the allegations as pleaded show that the claims are distinct from the malpractice claim. 3. Defendants’ Appeal to this Court. On July 21, 2016, the First Department granted leave to appeal and certified the following question of law: “Was the order of the Supreme Court, which was modified in part and otherwise affirmed by this Court, properly made?” (R. 1752-55). ARGUMENT POINT I: THE FIRST DEPARTMENT’S ORDER FINDING THAT THE STATUTE OF LIMITATIONS DOES NOT ACCRUE IN A WRONGFUL BIRTH ACTION UNTIL THE DATE OF BIRTH IS IN HARMONY WITH THE STATUTE AND THE CASE LAW. A. The Supreme Court’s Decision Rests Properly on the Judicial Principle That a Statute of Limitations in a Tort Does Not and Cannot Commence Running Until the Cause of Action Accrues. When applying the statute of limitations applicable to medical malpractice claims, CPLR § 214-a, this Court has conclusively held the statute of limitations 1335839.6 -17- does not begin to run until there is a legal right to relief.10 Accrual only occurs when the claim becomes enforceable, i.e., when all elements of the tort can be truthfully alleged in a complaint. LaBello, 85 N.Y.2d at 706 (rejecting the defendants’ argument that CPLR § 214-a expresses accrual of medical malpractice claims as of the time of the negligent act or omission in a medical malpractice action premised on faulty prenatal care and consequent injuries to the baby). The United States Supreme Court recently enunciated the “standard rule” for limitations periods: “Ordinarily, a ‘limitations period commences when the plaintiff has a complete and present cause of action.’” Green v. Brennan, 136 S. Ct. 1769, 1776 (2016) (quoting Graham Cnty. Soil & Water Conservation Dist. v. United States ex rel. Wilson, 545 U.S. 409, 418 (2005)). “[A] cause of action does not become ‘complete and present’ for limitations purposes until the plaintiff can file suit and obtain relief.” Bay Area Laundry and Dry Cleaning Pension Trust Fund v. Ferbar Corp. of Cal., 522 U.S. 192, 201 (1997). Although the standard rule can be displaced such that the limitations period begins to run before a plaintiff can file a suit, courts “will not infer such an odd result in the absence of any such indication” in the text of the limitations period. Reiter v. Cooper, 507 U.S. 258, 267 (1993). 10 Defendants have the “initial burden of establishing prima facie that the time in which to sue has expired.” Sabadie v. Burke, 849 N.Y.S.2d 440, 441 (2d Dep’t 2008). 1335839.6 -18- As the First Department correctly analyzed, the Farbers’ claim for malpractice did not become legally cognizable until they, as parents, became actually responsible for the immense financial obligations of caring for a severely impaired child, which did not occur until the child was born alive: “Only if there is a live birth will the injury be suffered.” Until that time, a “wrongful birth cause of action cannot even be alleged.” (R. 1765). The First Department relied on the decision in Ciceron, which held that a wrongful birth claim accrued upon the child’s birth because it would not be enforceable before that time, citing LaBello. The proposition that a legally cognizable right under tort law does not materialize until injury occurs is consistent with general limitations principles. See, e.g., 1993 & 2011 Supplementary Practice Commentaries on CPLR 203, at C203:1. Defendants’ argument that the court created a previously-unrecognized exception to the statute of limitations for medical malpractice claims is wrong. The court explained an essential tenet of the law: that a statute of limitations cannot run until there is a cause of action. See, e.g., LaBello, 85 N.Y.2d at 706. And, there is no cause of action sounding in tort (whether for negligence, malpractice, or products liability) unless a plaintiff can show actual harm. Cf. O’Toole, 64 N.Y.2d 427, 431-432 n.4 (1985) (“[B]irth of a healthy child does not constitute a cognizable legal harm for which an action in tort will lie.”) 1335839.6 -19- B. A Wrongful Birth Claim is By Definition a Claim to Address the Parents’ Increased Financial Obligation to Raise an Impaired Child Injured by Professional Negligence. For some time, tests have existed that, when properly used, can advise physicians and the expecting parents of certain birth defects the unborn child possessed or was likely to possess, like Down Syndrome, anencephaly, or Tay- Sachs disease. With the completion of the Human Genome Project, scientific knowledge of genetic markers exploded exponentially, as a steady development of genetic screening testing became available to the medical community.11 There were parallel developments in the jurisprudence concerning questions of “wrongful birth” and “wrongful life”. This Court, faced with complaints brought by two families of children born and unwanted—one with Down Syndrome, and the other suffering from an undetected birth anomaly—grappled with the question of which was a judiciable question in 1978. See Becker v. Schwartz, 46 N.Y.2d 401 (1978). This Court eschewed any claims brought by a child for his or her unwanted birth. The Court made clear that a child cannot suffer a legally cognizable injury for his or her unwanted birth, whether he or she was healthy or maimed, citing Williams v. State of New York, 18 NY 2d 481,484 (1966). The Court of Appeals found no 11 Wendy F. Hensel, The Disabling Impact of Wrongful Birth and Wrongful Life Actions, 40 Harv. L. Rev.-C.L.L.Rev. 141, 141 (2005); See, e.g., Edward J. Larson, The Meaning of Human Gene Testing for Disability Rights, 70 U.Cin.L.Rev. 913, 913 (2002) (“During the 1990’s . . . triumphant researchers claimed to isolate the genes that contribute to some forms of Alzheimer’s disease, breast cancer, cystic fibrosis, depression, eating disorders, fragile x syndrome, Gaucher disease, Huntington’s disease—and the list goes on”). 1335839.6 -20- cognizable claim for injuries on behalf of the parents due to the unwanted birth of a healthy child, but recognized the right of the parents of a child born with Down Syndrome to bring a claim for the increased financial burden of raising an impaired child, when the impairment could have been detected prenatally and the failure to detect it was caused by professional negligence. Becker, 46 N.Y.2d at 413; Alquijay v. St. Lukes’- Roosevelt Hosp. Ctr., 63 N.Y.2d 978 (1984). Further, a child who is in utero and is injured by professional negligence incidental to prenatal care or labor and delivery has a claim against the healthcare providers because, in that case, the child would have been born a normal healthy child but for the malpractice of the medical providers. The remedy afforded an injured party in negligence is designed to place that party in the position he or she would have occupied but for the negligence of the defendant. See Martin v. Dierck Equip. Co., 43 N.Y.2d 583, 589 (1978). Thus, the damages recoverable on behalf of an infant for an in utero injury are intended to restore the infant to the position he or she would have occupied were it not for the failure of the defendant to act in a non-negligent manner. Contrary to what Dr. Copperman argues,12 a legally cognizable injury for which damages are warranted is required before a legitimate action can be brought at all. The “limitations period for medical malpractice actions generally runs from the date of the last act constituting the basis of the 12 Dr. Copperman argues that the First Department misunderstood the “the notion of damages” and conflated “pecuniary loss to harm” (Def. Copperman Br. at 19). 1335839.6 -21- claim,” Rockefeller v. Moront, 81 N.Y.2d 560, 563 (1993). However, in a wrongful birth action the last event necessary to make defendants liable is the birth of the child. Fonda v. Wapner, 103 A.D.3d 510, 511 (1st Dep’t 2013). “[T]he parents’ legally cognizable injury is the increased financial obligation arising from the extraordinary medical treatment rendered to the child during minority.” Foote v. Albany Med. Ctr., 16 N.Y.3d 211, 215 (Internal citation and quotation marks omitted.) Indeed, even an infant’s claim for in utero injuries does not accrue until live birth. The First Department’s reliance on LaBello was proper. In LaBello, the infant plaintiff was injured in utero as a result of the alleged malpractice of the defendants. In that case, this Court held that the cause of action accrued at the time of birth based upon the principles that (1) an infant plaintiff has no right of action unless born alive, (2) liability for in utero injuries does not exist until there is a live birth, and (3) the statute of limitations cannot run until there is a legal right to relief, LaBello, 85 N.Y.2d 701. In sum, Plaintiffs had not sustained an injury until M.F. was born with Fragile X because it is the financial burden that they will bear that is the cognizable injury. M.F. will require extraordinary medical care and educational services. See, e.g., Pahlad v. Brustman, 33 A.D.3d 518, 519 (1st Dep’t 2006), aff’d, 8 N.Y.3d 901 (2007) (“[A] cause of action for wrongful [birth] accrues at the time of the infant plaintiff’s birth.”); Ciceron, 264 A.D.2d 497, 498 (2d Dep’t 1999) (holding a 1335839.6 -22- cause of action for wrongful birth “would not have been enforceable until after the live birth of the infant plaintiff, so that it accrued at the time of birth, rather than at the time of the earlier alleged malpractice”); cf. Marchand v. Capone, 223 A.D.2d 686, 687 (2d Dep’t 1996) (“Although a medical malpractice claim ordinarily accrues when the alleged act of malpractice is committed (CPLR § 214-a), a cause of action premised on faulty prenatal care and consequent injuries accrues at live birth.” (Internal citation and quotation marks omitted)). C. Strong Precedent Supports the Decision that the Statute of Limitations for Medical Malpractice Did Not Accrue until Baby M.F.s “Wrongful Birth.” There is no reason offered by the defense why the principles this Court enunciated in LaBello should be overturned and replaced by Defendants’ suggestion of a different accrual date. The evolution of the case law does not support Defendants’ argument that either Justice Lobis or the First Department deviated from that precedent or that either court created a new statute of limitations by “judicial fiat.” Defendants argue that the reasoning in Jorge v. New York City Health & Hosps. Corp., 164 A.D.2d 650 (1st Dep’t 1991), rev’d on other grounds, 79 N.Y.2d 905 (1992), decided three years earlier than LaBello, and its application in Scrofini v. Sebollena, 226 A.D.2d 523 (2d Dep’t 1996) and Weed v. Meyers, 251 A.D.2d 1062 (4th Dep’t. 1998) should control (RMA Br. at 37-38; Copperman Br. at 22-24 ). However, as the First Department already recognized, the plaintiff in 1335839.6 -23- Jorge did not argue that the statute of limitations ran from the date of the infant’s birth, but rather, revolved around the question whether the continuous treatment doctrine applied. This Court addressed the application and principles of the continuous treatment doctrine. Had the plaintiff in Jorge argued that the accrual of the cause of action been on the date of birth, Jorge likely would have been a different result. See Ginsberg ex rel. Ginsberg v. Quest Diagnostics, Inc., 117 A.3d 200, 225-26 (N.J. Super. 2015) (reviewing both Pahlad, 33 A.D.3d 518, 519, and Jorge and following the rationale in Pahlad, that the accrual date is the date of the child’s birth); cf. Grossbaum v. Genesis Genetics Inst., LLC, Civil Action No. 07-1359, 2011 WL 2462279 (D.N.J. June 10, 2011) (citing Jorge for the proposition that CPLR § 214-a applies to a genetics lab who provided diagnostic tests, but recognizing that the plaintiff had not been given an opportunity to brief the statute of limitations issues raised in the defendant’s reply brief, thus the Court was not alerted to any additional case law regarding accrual of the action). Fifteen years after Jorge, the First Department unanimously agreed that in wrongful birth cases, the “plaintiff parents’ claim for economic expenses accrues at the time of the infant’s birth.” Pahlad, 33 A.D.3d 518, 519, 522. Defendants also cite a 1996 Second Department case that cited Jorge without further explanation. See Scrofini, 226 A.D.2d 523. But only three years after the decision in Scrofini, the Second Department analyzed the issue in this case and concluded precisely as 1335839.6 -24- the First Department has—that a wrongful birth “cause of action would not have been enforceable until after the live birth of the infant plaintiff, so that it accrued at the time of birth, rather than at the time of the earlier alleged malpractice.” Ciceron, 264 A.D.2d 497, 498. Defendants cite only to a 1998 Fourth Department decision that relied on Jorge without further explanation for the proposition that the First Department’s Decision here creates a meaningful inter-departmental conflict. See Weed, 251 A.D.2d 1062 . In Weed, the plaintiff brought a wrongful birth cause of action against his ophthalmologist for the failure to provide genetic counseling following the birth of his children who suffered from retinoblastoma, a hereditary form of eye cancer. Id. at 1062. The plaintiff had been treated by the ophthalmologist for retinoblastoma in 1966 and continued to see the eye doctor for routine eye exams until 1990. Id. His children were born in 1989 and December 1990. Without an explanation, the court reached a results-based conclusion that the parents’ cause of action was time barred. Id. at 1062-63. The circumstances in Weed are in sharp contrast to the present matter. There, the defendant was an ophthalmologist—who had no connection to whether or not the father had offspring. The only malpractice that could have occurred was when the ophthalmologist cared for the father. That case has nothing to do with the cases involving wrongful birth. Here, the issue is when did the duty arise and 1335839.6 -25- when did the injury occur as a result of the breach of that duty. The breach in this case was Defendants’ failure to disclose the truth and test for the genetic infirmity as promised. The Weed case has no bearing on this matter. The clear evolution of case law over the last twenty plus years supports the lower court’s decision. 1. Defendants’ Reliance on Failure-to-Diagnosis Case Law Is Unpersuasive. To support the proposition that the statute of limitations began to run at the time of the earlier alleged malpractice, Defendants analogize a wrongful birth claim with a medical malpractice claim based on failure to diagnose cancer (Def. RMA Br. at 26-28; Def. Copperman Br. at 17-19). Defendants are wrong, and by doing so are doing precisely what they accused the First Department of doing: conflating injury and damages. In all failure to diagnose cases, 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. For example, in Helgans v. Plurad, 255 A.D.2d 554, 557 (2d Dep’t 1998), the plaintiff in Helgans had cancer and the plaintiff did not discover the cancer or incur economic damages until eight years later. In Young v. New York City Health & Hosps. Corp., 91 N.Y.2d 291(1998), there was a failure to diagnose cancer and the delay in 1335839.6 -26- treatment for the cancer resulted in worsening injuries.13 But, in both cases, the defendants’ argument that an injury had not occurred because the cancer had not metastasized immediately following misdiagnosis was wrong—the patient had cancer that would at a minimum needed to be monitored to avoid further progression of the disease. By failing to diagnose on the date the cancer was already present, the patient lost an opportunity to treat. The cognizable injury was that lost opportunity in the face of the then present harm, the cancer, not the worsening cancer that occurred later. The worsening cancer is the consequence of the harm caused, not the harm itself for purposes of creating a cognizable tort. Defendants improperly suggest that because the plaintiffs in these “failure-to- diagnosis” cases did not incur damages for medical treatment until they learned of their cancer that somehow is analogous to a wrongful birth case. That argument is illogical and mistakenly conflates the harm to the cancer patient with the conception of the child in a wrongful birth. This argument fails because on the date of the failure to diagnose, the cancer plaintiff has a legitimate claim as contrasted with the date of conception, when the parents still could not have initiated a lawsuit for wrongful birth. Again, conception alone itself does not create a viable claim for wrongful birth. Contrary to what RMA and 13 See also Nykorchuck v. Henriques, 78 N.Y.2d 255 (1991) (misdiagnosis of breast cancer leading to surgery and chemotherapy); McDermott v. Toore, 56 N.Y. 2d 399 (1982) (failure to diagnosis cancer lead to its progression resulting in radical surgery and extensive physical therapy that left the plaintiff with a severe limp and other permanent, debilitating injuries). 1335839.6 -27- Dr. Copperman argue, this case is not a “late discovery” case analogous to a failure to diagnose case. In the failure to diagnose the cancer case, the injury is just that—the failure to timely diagnose. In a wrongful birth case, the injury is the financial obligation that arises from the birth of an impaired child, which birth could have been avoided. The timing of the malpractice and the injury in each set of cases is not the same. In this case, there was no injury until the birth of the impaired baby because, unlike undiagnosed cancer, the cancer is a certainty, but the birth of an impaired child is not certain at the time of conception.14 This is best demonstrated here by Mr. and Mrs. Farber, who were blessed with fraternal twins. D.F. is not impaired. Therefore, the Farbers cannot make a claim for the financial obligation of raising D.F., so notwithstanding Dr. Copperman’s and RMA’s professional negligence, there is no actionable tort for malpractice in connection with D.F.’s conception. In wrongful birth actions, the cause of action accrues at the live birth of an impaired child when the parents can first assert a right to relief. 14 Defendants may reply that Plaintiffs could have undergone an amniocentesis that may have revealed the presence of Fragile X in the fetus, however, this is unpersuasive for three reasons: (1) the baby still must be born alive; (2) amniocentesis is not always accurate and cannot always measure the severity of the condition; and (3) as applied more broadly beyond this case, some diseases that cause impairment to babies cannot be diagnosed by amniocentesis (e.g. anatomical defects, such as heart malformations or a cleft lip or palate). 1335839.6 -28- 2. Defendants Improperly Compare this Case to the Foreign Object and the Continuous Treatment Doctrines. Defendants further attempt to muddy the waters by relying largely on opinions that were decided in applying the foreign object or continuous treatment exceptions to CPLR § 214-ad Case law interpreting the “foreign object” and “continuous treatment” discovery rules is irrelevant to this case. This line of case law largely deals with tolling the statute of limitations, not when the action accrues. See, e.g., McDermott, 56 N.Y.2d 399, 407 (holding “continuous treatment serves simply as a toll,” not an accrual). Defendants first rely on the history of Flanagan v. Mt. Eden Gen. Hosp., 24 N.Y.2d 427 (1969) and the enactment of CPLR § 214-a, as support for the fact that the Legislature has only created two limited exceptions to the general principle that the discovery rule does not apply to claims for medical malpractice. That statement, while true, has nothing to do with this case. Defendants then rely on Rodriguez v. Manhattan Med. Group, P.C., 77 N.Y.2d 217 (1990), as further support that there are only two exceptions to CPLR § 214-a. This Court in Rodriguez considered whether the foreign object exception applied to an IUD birth control device and found that the plaintiff’s claim was untimely because the IUD was not a foreign object within the meaning of the statute. Id. at 222. This case has nothing to do with the delayed discovery of an injury or a foreign object. Here, 1335839.6 -29- there simply was no cause of action at all until the twins were born and the Farbers had a claim for the exceptional financial obligations of raising an impaired child. The obvious distinction between the “foreign object” cases relied on by Defendants and this case is that, in those cases, the plaintiffs were already injured, but had not yet discovered their injury. In the present case, the Farbers were not injured until they gave birth to an impaired baby. The First Department recognized this distinction by noting “[w]hether this legally cognizable injury will befall potential parents as the result of the gestation of an impaired fetus cannot be known until the pregnancy ends. Only if there is a live birth will the injury be suffered” (R. 1767).15 3. Conception Is Not An Injury. Defendants argue that Plaintiffs’ injury occurred at either (1) when the Farbers were deprived of the opportunity to refuse the egg donation; or, (2) when the Farbers could have terminated the pregnancy (Def. RMA Br. at 28-29). Defendant Copperman argues that the injury in this matter is the Farbers’ “opportunity to refuse the donor eggs and never conceive the infant” (Def. Copperman Br. at 19-20). In other words, Defendants argue the “injury” is the conception of the two embryos. There is no support for this position in the record 15 Indeed, as a result of Defendants’ delay in telling the Farbers the truth about the failure to screen the Donor, there was a delay from the date of birth in September 25, 2009 until Dr. Copperman contacted Mrs. Farber sometime in May 2010. Plaintiffs do not claim late discovery although the facts certainly would give rise to such a claim, if one were available. 1335839.6 -30- or in the law. If this were true, Plaintiffs would have a “wrongful life claim” as to the birth of both children. This Court has squarely rejected that proposition. See O’Toole, 64 N.Y.2d at 432 (holding that the birth of a healthy child does not constitute a cognizable legal harm). Moreover, Defendants’ arguments cannot be squared with this Court’s holding in Becker v. Schwartz, 46 N.Y.2d 401 (1978). In that case, this Court rejected wrongful life claims as viable causes of action. Id. at 411 (“The remedy afforded an injured party in negligence is designed to place that party in the position he would have occupied but for the negligence of the defendant.”). If the injury is conception, seeking recovery for conception would demand “a calculation of damages dependent upon a comparison between the Hobson’s choice of life in an impaired state and nonexistence.” Id. at 412. To assess damages for conception would also require consideration of mitigating factors (i.e., terminating the pregnancy to avoid having a disable child, enduring amniocentesis testing that would put the mother and her unborn child at risk of miscarriage, or, in this case, risking the life of the healthy twin baby). This Court has declined undergoing this type of assessment for policy reasons in rejecting claims for the parents’ emotional injuries in birthing an infant in an impaired state. See, e.g., id. at 414-15 (reasoning that “parents of a deformed infant will suffer the anguish that only parents can experience upon the birth of a child in an impaired state . . . [but] may 1335839.6 -31- yet experience a love that even an abnormality cannot fully dampen. To assess damages for emotional harm endured by the parents of such a child would, in all fairness, require consideration of this factor in mitigation of the parents’ emotional injuries.”). To state another way, to accept Defendants’ position would require the trial courts to undergo an assessment of damages that reduced the recovery to parents who did not abort the pregnancy of a disabled child. This cannot be the right result. Conception is not an injury. The injury is the extraordinary expense of raising a disabled child caused by the negligence of Defendants. D. Application of the Standard Rules of Accrual Is Not an End Run Around the Statute of Limitations. Defendants make a third argument, citing Fleishman v. Lilly & Co., 62 N.Y.2d 888 (1984) (an action by patient and husband against doctor and drug manufacturer for development of cancer allegedly resulting from use of prescribed Diethylstilbestrol (“DES”)), that should be rejected out of hand. RMA and Dr. Copperman argue that the courts below “judicially legislated” a new exception to the applicable statute of limitations. There is no support for this argument. In Fleishman, this Court flatly rejected the arguments put forth by the defense here: It is not persuasive to say that any change is better left to the Legislature. That the determination of when a cause of action accrues is not solely a matter for the Legislature, is plainly evident by this court’s determination here and previously, that a cause of action of this type accrues upon injury which is assumed to occur at the time of 1335839.6 -32- exposure, ingestion or injection of the cancer-causing foreign substance (see, e.g., Schwartz v. Heyden Newport Chem. Corp., 12 N.Y.2d 212, supra; Schmidt v. Merchants Desp. Transp. Co., 270 N.Y. 287, supra). Indeed, when this court acted to change the common law by adopting a date-of-discovery rule for the commencement of foreign-object medical malpractice cases, it stated: “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.” (Flanagan v. Mount Eden Gen. Hosp., 24 N.Y.2d 427, 434; see Woods v. Lancet, 303 N.Y. 349, 354–356, supra). Id. at 891-92. As in Fleishman, here, the courts below did not step into the shoes of the Legislature by creating a “third exception to the medical malpractice statute of limitations.” Instead, the courts relied upon precedent and did exactly what they should have—apply the law to the facts and make a decision. The courts below applied the law and decided that the cause of action accrued at the time of birth when there was a cognizable legal harm for which the parents can seek relief. Defendants’ desired interpretation of CPLR § 214-a and application in this case are unreasonable. Finding that the statute of limitations began to run prior to birth would essentially cut short plaintiffs’ time-period to bring this type of action 1335839.6 -33- by nine months or more. The Legislature has not done so and this Court should not do so. Furthermore, the First Department’s decision does not offend the policy considerations underlying the statute of limitations, which include “preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared.” (Def. RMA Br. at17-18) (citing Order of Railroad Telegraphers v. Railway Express Agency, 321 U.S. 342 (1944); Wood v. Carpenter, 101 U.S. 135 (1879)). In wrongful birth actions, the injury either accrues at the live birth of an impaired child, or it does not. If the pregnancy does not result in a live birth or results in a healthy birth (such as D.F. in the present action), no cause of action exists. Thus, within nine months of conception, there either is an injury or there is not. No claims have been permitted to slumber here.16 POINT II: THE FIRST DEPARTMENT’S ORDER DISMISSING PLAINTIFFS’ COMMON-LAW CAUSES OF ACTION SHOULD BE REVERSED. The First Department improperly granted Defendants’ motion to dismiss the negligence, negligent misrepresentation, breach of contract, fraud, and fraudulent 16 Defendant RMA acknowledges that the First Department’s ruling does not turn on when injury was discovered, but nonetheless, and inconsistently, argues incorrectly that the First Department created a discovery rule. (Def. RMA Br. at 2). Defendant Dr. Copperman also notes that it is illogical to treat the Appellate Division’s opinion as a discovery rule by recognizing the birth of the child “did not tell the parents anything (let alone that a cognizable injury existed)” (Def. Copperman Br. at 17). 1335839.6 -34- concealment causes of action. At the time Defendants sought to dismiss these claims under CPLR § 3211(a)(7), neither Dr. Copperman nor RMA had produced a single document and Dr. Copperman had evaded deposition, in violation of multiple court orders (R. 18). Because discovery and fact finding on these issues was necessary, the decision should be reversed, and the lower court’s decision reinstated. See Levin v. Yeshiva Univ., 96 N.Y.2d 484 (2001) (where the claim for disparate impact based on sexual orientation had been improperly dismissed on a motion to dismiss by the Appellate Division, the Court of Appeals reinstated the claim.) Moreover, as Justice Manzanet-Daniels correctly observed in the Dissent of the First Department Order, Plaintiffs’ claims for negligence, breach of contract, fraud and fraudulent concealment were sufficiently plead and are not duplicative of the medical malpractice claim (R. 1779). A. The Negligence Claims Are Based on Dr. Copperman’s and RMA’s Failure to Implement Proper Procedures for Screening Oocyte Donors, not for Professional Negligence. The ordinary negligence claim is premised on Defendants’ failure to adopt and implement proper screening processes and procedures for oocyte donors. If RMA and Dr. Copperman had implemented these procedures, this process would have detected that the Donor was a Fragile X carrier prior to the fertilization and transfer of the two embryos to Mrs. Farber on January 21, 2009 (R. 67, 80-81). 1335839.6 -35- Notably, discovery has demonstrated Defendants’ awareness of the Fragile X test and its widespread use and availability, Defendants had been screening for Fragile X in patients using their own eggs since 2007, before the Farbers encountered Defendants in 2008. As an initial matter, Plaintiffs submit that the First Department’s assertion that to prove their negligence claim, Plaintiffs must proffer expert testimony concerning the standard of care for screening of egg donors is incorrect. Expert testimony is unnecessary at the pleading stage. Additionally, the standard of care is reflected by Defendants’ own systematic use of the test for IVF patients using their own eggs. As important, Defendants expressly assumed a duty to test for this disorder, in order to screen out Donors who could pass to their offspring the most common form of inheritable intellectual delay and development disorders, causing retardation. Defendants assured the Farbers that they would do all necessary tests. This was a negligent misrepresentation upon which they relied. Specifically, Plaintiffs explicitly requested that the donor be screened for all genetic mutations that would cause conditions of mental retardation to the extent possible (R. 66). At the relevant time, a simple genetic test for Fragile X was readily-available for a nominal price (R. 70), yet despite these specific assurances, Defendants failed to have the screening tests performed. 1335839.6 -36- The argument that the negligence claim is fully duplicative of the medical malpractice claim fails. Defendants’ failure to screen does not implicate (or does not only implicate) questions of medical competence or professional judgment, but rather the simple and unfathomable failure to order a simple and necessary blood test. cf. Annunziata v. Quest Diagnostics Inc., 127 A.D.3d 630 (1st Dep’t 2015), aff’d 22 N.Y.3d 1 (2013) (involving the misreading of a Pap smear tissue sample, not the failure to order the test in the first place). As Justice Mazanet-Daniels quoted, citing to this Court, “the distinction between medical malpractice and negligence is a subtle one, for medical malpractice is but a species of negligence and no rigid analytical line separates the two” (R. 1310) (quoting Weiner v. Lenox Hill Hosp., 88 N.Y.2d 784, 787 (1996). (Internal quotations marks omitted.) Here, it is markedly premature to dismiss the negligence claim as duplicative of the medical malpractice claim, especially given that the negligence asserted encompasses a wider array of misconduct other than the professional malpractice. As this Court wrote further in Weiner, “although a ‘hospital in a general sense is always furnishing medical care to patients … not every act of negligence toward a patient would be medical malpractice.’” Id. at 788 (quoting Bleiler v. Bodnar, 65 N.Y.2d 65, 73 (1985)). When “the gravamen of the complaint is not negligence in furnishing medical treatment to a patient, but the hospital’s failure in fulfilling a 1335839.6 -37- different duty,” the claim sounds in negligence. Id. (quoting Bleiler, 65 N.Y.2d 65, 73). In this case, the negligence happened prior to conception when Defendants did not order a blood test to screen for genetic anomalies that cause mental retardation, intellectual and development delays, and autism (i.e., Fragile X) as explicitly requested by the Farbers (R. 66) and promised by Dr. Copperman and RMA (R. 66). This Court has held that failure to adopt proper procedures and provide screening and testing is considered negligence and is afforded the longer three-year statute of limitations. See, e.g., Weiner, 88 N.Y.2d 788-89; Bleiler, 65 N.Y.2d at 74 (holding that a claim for failure to promulgate appropriate rule and procedures, specifically procedures regarding the taking of patient histories and requiring that patients complaining of eye injuries be seen by eye specialists, “sounds in negligence, and is subject to the three-year limitations period (CPLR § 214), rather than the shorter medical malpractice limitations period (CPLR § 214-a)”); Rodriguez v. Saal, 43 A.D.3d 272 (1st Dep’t 2007) (failing to properly screen donated kidney resulting in the transplant of a diseased kidney with extensive tumor infiltration sounded in negligence). The recovery under the claim for negligence is also not nearly as limited as the damages available under the wrongful birth claim. Negligence here as plead is not duplicative of the medical malpractice as plead. 1335839.6 -38- The cause of action for negligence should be permitted to stand as to both Defendants RMA and its CEO, Dr. Copperman. B. The Breach of Contract Seeks Different Damages than those Sought for Defendants’ Professional Negligence. Contrary to the First Department’s characterization, the contract was not based on the promise that the child would be free of birth defects and that Defendants would carry out treatment in accord with the prevailing medical standard of care (R. 1770). The contract for the IVF cycle using an anonymous egg donor supplied by RMA was specifically conditioned on the screening for genetic anomalies that can cause inheritable forms of intellectual, emotional and motor delays and problems (i.e., Fragile X) (R. 65-66, 1490-1507). The Farbers specifically requested testing for all genetic forms of mental retardation. Dr. Copperman promised to conduct such tests, and that the Farbers understood from the materials shown to them that such testing would be undertaken. Defendants assured the Farbers that all available screening would be conducted, above and beyond what was in accordance of the prevailing medical standard of care, because Defendants represented that RMA was the premier infertility center in New York (R. 65). The Farbers paid for this IVF cycle, which they believed included this testing (R. 66-67). Defendants failed to order the promised screening, thereby breaching their contract with the Farbers (R. 80-81). This Court has held the theory underlying 1335839.6 -39- contract damages is to “make good or replace the loss caused by” the breach of contract. See, e.g., Reid v. Terwilliger, 116 N.Y. 530, 534 (1889). Damages are intended to return the parties to the point at which the breach arose and to place the nonbreaching party in as good a position as it would have been had the contract been performed. See, e.g., Goodstein Constr. Corp. v. City of New York, 80 N.Y.2d 366, 373 (1992); Haig, Commercial Litigation in New York State Courts, § 51.3[c], at 31 4 West’s New York Practice Series, 1995; Restatement [Second] of Contracts § 347, comment a; § 344), Brushton-Moira Cent. School Dist. v. Thomas Assoc., 91 N.Y.2d 256 (1998). The damages for breach of contract here is the cost of the in vitro fertilization, fees paid, and the costs of litigation, not the extraordinary cost of raising a disabled child. The contract damages are not duplicative of damages available under the malpractice claim for wrongful birth. C. Fraud and Fraudulent Concealment Damages Differ from the Damages for Medical Malpractice Action for Wrongful Birth. Where one is induced to enter into contract by fraud, the cause of action arises immediately upon commission of fraud. Here, Mr. and Mrs. Farber were improperly induced to employ Dr. Copperman and RMA to assist them with their infertility treatment. Under the breach of contract action, the Farbers are entitled to get their money back under the contract, plus interest and attorneys’ fees and costs. However, under the fraud-based causes of action, they are entitled to additional damages. The two causes of action sounding in fraud assert recovery for 1335839.6 -40- Defendants’ unlawful and fraudulent conduct in both inducing them to enter the contract as well as concealing their breaches. The essential elements of a cause of action for fraud are “representation of a material existing fact, falsity, scienter, deception and injury” Channel Master Corp. v. Aluminum Ltd. Sales, Inc., 4 N.Y.2d 403, 407 (1958). As a threshold matter, then, Plaintiffs have satisfied this burden because they have alleged a misrepresentation and a material omission by Defendants, on which the Farbers relied, that induced the Farbers to engage the services of RMA and Dr. Copperman. The pleading lays out these elements. When a plaintiff claims that the defendant breached a contract that it never intended to honor, plaintiff may present that claim as an action sounding in fraud if (1) the defendant owed a legal duty to the plaintiff “separate from the duty to perform under the contract”; (2) the defendant makes a fraudulent misrepresentation that is “collateral or extraneous” to the contract; or (3) the plaintiff seeks special damages unrecoverable as contract damages. See Bridgestone/Firestone, Inc. v. Recovery Credit Servs., Inc., 98 F.3d 13, 20 (2d Cir. 1996) (applying New York law.) It was never Dr. Copperman’s or RMA’s intention to honor their contractual obligation to the Farbers or effectuate their representations; this constitutes fraud because the concealment of the fact that no genetic screening of the type described was conducted was an additional fraudulent misrepresentation that was collateral 1335839.6 -41- or extraneous to the contractual promise. Further, Dr. Copperman’s and RMA’s ongoing concealment of that failure to screen (through May 2010) was collateral to the initial contract for services entered into by the Farbers with RMA and Copperman. RMA and Copperman inexplicably sat on the information for at least three months before Dr. Copperman contacted Mrs. Farber (R. 68-69). Therefore, Plaintiffs have alleged with the necessary particularity that RMA’s and Copperman’s ongoing concealment constitutes a scheme to defraud rather than a mere breach of contract. The remedies to which the Plaintiffs are entitled under the fraud claims are more expansive than the recovery of the extraordinary expenses of raising a child with delays and impairments, including economic and non-economic damages and consequential damages. See Alpert v. Shea Gould Climenko & Casey, 559 N.Y.S.2d 312, 314 (First Dep’t 1990) (fraud claims permit “recovery of consequential damages naturally flowing from a fraud”) For example, the damages for wrongful birth ends when M.F. turns 21, but fraud damages will extend throughout his life. At minimum, discovery is necessary to determine the extent of damages Plaintiffs suffered from the fraud separate from and in addition to the damages due to the medical negligence. Finally, other than for the breach of contract cause of action, punitive damages are warranted here under all of the causes of action (including medical malpractice). The courts' decisions permitting Plaintiffs to seek punitive damages should not be disturbed on appeal. CONCLUSION For the foregoing reasons, Plaintiffs respectfully request that this Court uphold the rulings of the Supreme Court of New York, New York County and the Appellate Division, First Department as to the statute of limitations decision and reverse the First Department Order and reinstate the causes of action for negligence, negligent misrepresentation, breach of contract, fraud, and fraudulent concealment. Dated: January 20, 2017 1335839.6 Respectfully submitted, By: Wendy R. Fleisliman Rachel J. Geman Kelly K. McNabb LIEFF CABRASER HEIMANN & BERNSTEIN LLP 250 Hudson Street, 8th Floor New York, NY 10013-1413 Telephone: (212) 355-9500 Facsimile: (212) 355-9592 Counsel for Plaintiffs-Respondents -42- NEW YORK STATE COURT OF APPEALS CERTIFICATE OF COMPLIANCE I hereby certify pursuant to 22 NYCRR PART 500.1(j) that the foregoing brief was prepared on a computer using Microsoft Word. Type. A proportionally spaced typeface was used, as follows: Name of typeface: Times New Roman Point size: 14 Line spacing: Double Word Count. The total number of words in this brief, inclusive of point headings and footnotes and exclusive of pages containing the table of contents, table of citations, proof of service, certificate of compliance, corporate disclosure statement, questions presented, statement of related cases, or any authorized addendum containing statutes, rules, regulations, etc., is 10,484. Dated: January 20, 2017 WENDY R. FLEISHMAN LIEFF CABRASER HEIMANN & BERNSTEIN, LLP Attorneys for Plaintiffs-Respondents 250 Hudson Street, 8th Floor New York, New York 10013 (212) 355-9500