Marie Dennehy, et al., Respondents,v.Alan B. Copperman, M.D., et al., Appellants.BriefN.Y.November 15, 2017APL-2016-00160 New York County Clerk’s Index No. 800349/11 Court of Appeals STATE OF NEW YORK MARIE DENNEHY and JAMES DENNEHY, Plaintiffs-Respondents, against ALAN B. COPPERMAN, M.D., REPRODUCTIVE MEDICINE ASSOCIATES OF NEW YORK, LLP and REPRODUCTIVE MEDICINE ASSOCIATES INTERNATIONAL, LLP, Defendants-Appellants. >> >> BRIEF FOR PLAINTIFFS-RESPONDENTS DUFFY & DUFFY, PLLC Attorneys for Plaintiffs-Respondents By: POLLACK, POLLACK, ISAAC & DE CICCO, LLP Appellate Counsel 225 Broadway, Suite 307 New York, New York 10007 212-233-8100Of Counsel: James N. LiCalzi Brian J. Isaac Date Completed: January 19, 2017 To Be Argued By: Brian J. Isaac Time Requested: 15 Minutes i TABLE OF CONTENTS Page TABLE OF AUTHORITIES...........................................ii PRELIMINARY STATEMENT...........................................1 INTRODUCTION....................................................2 STATEMENT OF THE CASE...........................................5 T.D.’s Birth and Surrounding Circumstances.................5 Litigation.................................................9 Motions...................................................10 Order and Decision of the Appellate Division, First Department......................12 QUESTIONS PRESENTED............................................20 DISCUSSION.....................................................21 POINT I BECAUSE IT IS IMPOSSIBLE FOR A WRONGFUL BIRTH CLAIM TO BE PROPERLY ALLEGED AND PLED IN THE ABSENCE OF THE BIRTH OF A LIVE CHILD, THE TRIAL COURT AND THE APPELLATE DIVISION RIGHTLY HELD THAT THE WITHIN CAUSE OF ACTION ACCRUED UPON BIRTH OF A LIVE CHILD; DEFENDANTS’ CLAIM THAT THE APPELLATE DIVISION’S DECISION IMPROPERLY SKEWED THE LAW BY EXTENDING THE STATUTE OF LIMITATIONS BEYOND THAT WHICH THE LEGISLATURE AUTHORIZED IGNORES BLACK LETTER CASE LAW HOLDING THAT A CAUSE OF ACTION CANNOT ACCRUE UNTIL A CLAIM BECOMES ENFORCEABLE, I.E., WHEN ALL ELEMENTS OF THE TORT CAN BE TRUTHFULLY ALLEGED IN THE COMPLAINT.......21 The Nature of a “Wrongful Birth” Claim....................21 The Holding of the Lower Courts as to Accrual Was Correct.................................26 CONCLUSION.....................................................47 CERTIFICATE OF COMPLIANCE......................................48 ii TABLE OF AUTHORITIES Federal Cases Armour & Co. v. Wantock, 323 US 126 [1944].....................29 Grossbaum v. Genesis Genetics, 2011 U.S. Dist. LEXIS (D&J, 2011, affd., 489 F. Appx. 613 [3d Cir. 2012]) .........46 State Cases Ackerman v. Price-Waterhouse, 84 NY2d 535 [1994]................4 Aetna Life and Casualty Co. v. Nelson, 67 NY2d 169 [1986]......34 Albala v. NYC, 54 NY2d 269 [1981]..............................24 Alquijay v. St. Lukes, 63 NY2d 978 [1984].......................2 Bani Esraili v. Lerman, 69 NY2d 807 [1987]......................3 Becker v. Schwartz, 46 NY2d 401 [1978]......................2, 22 BF v. Reproductive Medicine Assoc. of NY, 136 AD3d 73 [1st Dept. 2015] .........................................passim Blanco v. AT&T, 90 NY2d 757 [1997].........................passim Britt v. Legal Aid, 95 NY2d 443 [2000]..........................3 Broadnax v. Gonzalez, 2 NY3d 148 [2004]........................25 Bustamante v. Westinghouse, 195 AD2d 318 [1st Dept. 1993].......33 Ciceron v. Jamaica Hospital, 264 AD2d 497 [2d Dept. 1999] .........................................24, 46 People ex rel Debenetti v. Clerk of NY Marine Courts, 3 How Pr. 309 [1856] ........................................28 Eli Kruikshank v. Bank of Montreal, 81 NY2d 399 [1993]..........4 Enright v. Eli Lilly, 77 NY2d 377 [1991].......................24 Ferrara v. Bernstein, 81 NY2d 895 [1993].......................25 Flanagan v. Mt. Eden General Hospital, 24 NY2d 427 [1969] ...............................3, 32, 33, 35 Fonda v. Wapner, 103 AD3d 510 [1st Dept. 2013]...............4, 24 Foote v. Albany MC, 16 NY3d 211 [2011].......................2, 5 iii Matter of Frutiger, 29 NY2d 143, 151 [Burke, dissnt.] [1971]...28 Home Ins. Co. v. American Home Products, 75 NY2d 196 [1990]....11 Howard v. Lecher, 42 NY2d 109 [1977]............................2 IDT v. Morgan Stanley, 12 NY3d 132 [2009]......................23 J.A. Preston Corp. v. Fabrication Ent., 68 NY2d 397 [1986].....28 Jorge v. NYCHH, 79 NY2d 905 [1992].........................passim Konar v. Monro Muffler Shops, 28 AD2d 642 [4th Dept. 1967]......31 Kronos v. AVX Corp., 81 NY2d 90 [1993].....................passim LaBello v. Albany MC, 85 NY2d 701 [1995]...................passim Leon v. Martinez, 84 NY2d 83 [1994]............................11 Lynch v. Bay Ridge Ob/Gyn, 72 NY2d 632 [1988]..................25 Martin v. Edwards, 60 NY2d 417 [1983]..........................36 Martinez v. LIJ MC, 70 NY2d 697 [1987].........................24 Mayzel v. Moretti, 105 AD3d 816 [2d Dept. 2013].............2, 21 Melfi v. Mount Sinai Hospital, 64 AD3d 26 [1st Dept. 2009]......31 Merril v. Albany MC, 71 NY2d 990 [1988]........................28 Montalbano v. 136 West 80th Street, 84 AD3d 600 [1st Dept. 2011] .............................................44 O’Toole v. Greenberg, 64 NY2d 427 [1985]................4, 17, 24 People v. Bourne, 139 AD2d 210 [1st Dept. 1988].................29 People v. Olah, 300 NY 96 [1949]...............................28 Prahlad v. Brustman, 33 AD3d 518 [1st Dept. 2006], affd., 8 NY3d 901 [2007] ................................24, 46 Rodriguez v. Manhattan Medical Group, 77 NY2d 217 [1990].......39 Sangaray v. West River Associates, 26 NY3d 793 [2016]..........44 Schmidt v. Merchants Despatch, 270 NY 287 [1936]...........22, 23 Scrofini v. Sebollena, 226 AD2d 523 [2d Dept. 1996]............46 Sebastian v. State, 93 NY2d 795 [1999].........................45 iv Sexton E. v. Rochester, 32 AD3d 887 [4th Dept. 1969]............31 Matter of Shannon B., 70 NY2d 458 [1987].......................28 Sheppard-Mobley v. King, 4 NY3d 627 [2005].....................25 Snyder v. Town Insulation, 81 NY2d 429 [1983]...................4 Tebbutt v. Virostek, 65 NY2d 931 [1985]....................24, 25 Victorson v. Bock Laundry Mach. Co., 37 NY2d 395 [1975]........36 Vigilant Ins. v. HA, 87 NY2d 36 [1995]......................4, 23 Walton v. Strong Memorial Hospital, 25 NY3d 554 [2015].....44, 45 Williams v. State, 18 NY2d 481 [1966].......................2, 45 State Rules CPLR § 214.....................................................30 CPLR § 214-a...............................................passim CPLR § 214-c...................................................31 CPLR § 3211[a][5][7]...........................................10 1 COURT OF APPEALS STATE OF NEW YORK ---------------------------------------X APL-2016-00160 Marie Dennehy and James Dennehy, Plaintiffs-Respondents, RESPONDENTS’ BRIEF -against- Alan D. Copperman, MD, Reproductive Medicine Associates of New York LLP And Reproductive Medicine Associates- International LLP, Defendants-Appellants. ---------------------------------------X PRELIMINARY STATEMENT Plaintiffs-respondents, Marie Dennehy and James Dennehy (“plaintiff[s]”), submit this brief in connection with the appeal taken by defendants-appellants Alan D. Copperman, MD (“Dr. Cooperman), Reproductive Medicine Associates of New York LLP and Reproductive Medicine Associates-International LLP (“RMS”) (collectively, “defendant[s]”) from the December 17, 2015 order of the Appellate Division, First Department (1544-46), 1 which affirmed the order of the trial court denying defendants’ motion for summary judgment based on the expiration of the statute of limitations (7-16). The Appellate Division, First Department granted leave to appeal on July 21, 2016 (1542). The order appealed from, we believe, should be affirmed for the reasons outlined herein. 1 Numbers in parentheses refer to pages of the record on appeal. 2 INTRODUCTION Plaintiffs brought a “wrongful birth” action against defendants. The narrow issue presented on this appeal, as defendants set forth in their briefs, is when such a cause of action “accrues.” It is well settled in New York that a negligent failure to test for disabilities or advise prospective parents that their child may be disabled is not actionable by the child as “a wrongful life” or “wrongful conception” tort. See, Becker v. Schwartz, 46 NY2d 401 [1978]; Howard v. Lecher, 42 NY2d 109 [1977]; Williams v. State, 18 NY2d 481 [1966]. In this regard, negligence in the performance of an amniocentesis test that resulted in the issuance of a report that a normal child should be expected does not give rise to a “wrongful life” claim on the part of an infant who was born with birth defects. And parents of such children may not recover damages for emotional distress occasioned by the birth and/or premature death of the child (Alquijay v. St. Lukes, 63 NY2d 978 [1984]). However, parents may recover damages for the cost of care and treatment of the child under a “wrongful birth” theory of liability (Becker v. Schwartz, supra; Foote v. Albany MC, 16 NY3d 211 [2011]; Mayzel v. Moretti, 105 AD3d 816 [2d Dept. 2013]). Because parents have an obligation to support children until they reach the age of 21, recovery under this theory is 3 generally limited to increased financial expenses and obligations arising from the extraordinary medical treatment rendered the child during minority (Bani Esraili v. Lerman, 69 NY2d 807 [1987]). Here, defendants assert that plaintiff last treated with defendants on September 26, 2008 (Copperman brief, p. 6; RMA brief, p. 7). This would render the complaint dismissible as barred by the statute of limitations if the cause of action accrued prior to birth. Defendants also contend that plaintiff is attempting to extend the applicable statute of limitations by judicial fiat (Flanagan v. Mt. Eden General Hospital, 24 NY2d 427 [1969]). Plaintiffs, on the other hand, posit that the cause of action accrued at birth; a “wrongful birth” cause of action requires that a live baby be born; a parent’s duty of support cannot exist in the absence of the successful delivery of a viable human being, since only living persons require support. As such, the cause of action can only accrue on the date that a baby is born alive. The logic of this position, we submit, is unassailable. Accrual for a tort action generally occurs “when the claim becomes enforceable, i.e., when all elements of the tort can be truthfully alleged in a complaint” (Kronos v. AVX Corp., 81 NY2d 90, 94 [1993]; see generally, Britt v. Legal Aid, 95 NY2d 443 4 [2000]; Vigilant Ins. v. HA, 87 NY2d 36 [1995]; Ackerman v. Price-Waterhouse, 84 NY2d 535 [1994]; Snyder v. Town Insulation, 81 NY2d 429 [1983]; Eli Kruikshank v. Bank of Montreal, 81 NY2d 399 [1993]; LaBello v. Albany MC, 85 NY2d 701 [1995]; see also, Fonda v. Wapner, 103 AD3d 510 [1st Dept. 2013]). Accordingly, since a parent’s duty of support would only be triggered by the delivery of a live baby, the Appellate Division’s decision holding that plaintiff’s cause of action accrued upon the birth of their son, T.D., was clearly correct. Otherwise stated, the Appellate Division’s decision was correct on the facts, correct on the law, and correct as a matter of equity. Defendants’ interpretation of the law would wrongly require plaintiff to bring an action before the event giving rise to the claim took place – this is, indeed, an artificial construction of the law, unsupported by the text of the relevant statute (CPLR §214-a). Because “liability for negligent conduct exists only when it proximately causes legal harm to a fully protected interest of another” (O’Toole v. Greenberg, 64 NY2d 427, 431 [1985]), the Appellate Division’s finding that “Whether this legally cognizable injury will befall potential parents as a result of the gestation of an impaired fetus cannot be known until the pregnancy ends” because “only if there is a live birth will the injury be suffered” cannot logically be controverted. 5 In a wrongful birth claim, “the parents’ legally cognizable injury is the increased financial obligation” of raising an impaired child (Foote v. Albany MC, supra at 215), so until there is a live birth of an impaired child, the facts underlying the claim cannot be alleged. And, as this Court noted in LaBello, supra at 704, the “statute of limitations cannot run until there is a legal right to relief”, so accrual of a wrongful birth claim clearly occurs upon the birth of an impaired child. Accordingly, plaintiff submits that the Appellate Division’s order affirming the trial court’s refusal to dismiss the subject complaint is correct in all respects. STATEMENT OF THE CASE T.D.’s Birth and Surrounding Circumstances This action arose out of infertility treatment for which Ms. Dennehy retained RMA and Dr. Copperman, after they were recommended to her in 2007 (537-38). In the fall of 2007, plaintiffs went to a presentation at RMA where in vitro fertilization (“IVF”) was described in detail, and they decided to retain RMA and Dr. Copperman to undertake IVF treatment with donor eggs (562-67, 585, 634). Defendants repeatedly assured plaintiffs that genetic testing would be performed to avoid giving birth to a child with genetic defects. In fact, testing “would be done on a donor” “to the umpteenth degree”; Ms. 6 Dennehy understood that donors would be tested for all known genetic disorders (691). She was assured of this on multiple occasions (692, 698, 700). On March 20, 2008, RMA let Ms. Dennehy know “we do not have a match as of yet, but are screening donors every day and will notify her of a match” (1137). On April 1, a donor became available; on April 2, RMA informed plaintiff of the donor’s availability; on April 3, plaintiffs accepted the donor (709-13, 1137, 1140-41). It is conceded that the donor was not screened for the Fragile X gene mutation; somehow, according to defendants, this was “in keeping with the standard of care” (RMA brief, p. 6). However, as plaintiff pointed out to the Appellate Division, this defect involves changes in part of the X chromosome; “it is the most common form of inherited intellectual disability in boys”, and is caused by a change in the FMR1 gene, where genetic material is improperly repeated. “There are very few outward signs” of the syndrome and there is “no specific treatment”, though genetic testing can reveal the existence of the disease. “Genetic testing can reveal who is the carrier of the Fragile X gene mutation” (Brief at 7-8, 1486-7). According to the genetic test report that is part of this record, the normal range of repeats is 43; a defect is present where there are 200 repeats. T.D., plaintiff’s child, was found 7 to have a “full mutation” with 1000 repeats (208-10). It seems very unlikely that not testing for this very common disorder conforms with the standard of care, given the assurances plaintiffs received, plaintiff’s 14 year history of infertility, Dr. Copperman’s recommendation of IVF, and his assurances about genetic testing (96, 102, 107, 132, 487-88). All this demonstrates the merit of the plaintiff’s claim; indeed, the Appellate Division affirmed the trial court’s finding that plaintiffs’ claim for punitive damages had merit. Plaintiffs were given a welcome packet on April 8, 2008 (175); on April 22, 2008, RMA e-mailed Ms. Dennehy a per cost summary for her “od shared cycle” along with a “credit card autho form for her cycle and storage fee.” The total fee was $24,330 (1144). This, according to an email in the record, includes all genetic testing (69-70). On April 29, 2008, plaintiff signed the consent forms (176-77). Dr. Copperman points out that this included an acknowledgment of the risk of receiving inaccurate or incomplete information from the egg donor and that there was no guarantee that a “healthy baby” would result from this procedure (Brief at 6). But that is not an excuse to omit genetic testing after assuring plaintiffs that same would be performed. On July 7, 2008, Ms. Dennehy was notified that the other shared recipient was not able to move forward; she then spoke to 8 “Finance” at RMA and it was agreed that the cycle would be non- shared (1160-61). On July 9, an RMA employee left Ms. Dennehy a message indicating that an additional $4,000 was owed for her treatment (1162). On August 6, 2008, eggs were retrieved from an anonymous donor who, according to defendants, was properly screened for genetic abnormalities and diseases (393, 1120, 1659). On August 11, the result was reviewed, and Ms. Dennehy underwent IVF under defendants’ auspices, with Dr. Tamnoy Mukherjee, a non-party to the litigation, performing the procedure (202-03, 1120). On August 22, 2008, Ms. Dennehy underwent a pregnancy test in Ireland; on August 26, she was confirmed to be pregnant (1178-80, 2004-05). Defendants assert that thereafter Ms. Dennehy was “discharged into the care of her private obstetrician” (Copperman brief, p. 6; 207). Contrary to defendants, however, plaintiffs claimed that Ms. Dennehy was seen twice weekly by RMA staff, including Dr. Copperman, until October of 2008 (Brief at 6, 1124-25, 1224-26, 1306). According to RMA, plaintiffs learned through follow up visits that “only one embryo of the two that were implanted has survived” (Brief at 6-7). On April 11, 2009, Ms. Dennehy gave birth to an infant boy, T.D. (122, 1306). Ms. Dennehy thought the birth went well, as RMA admits (Brief at 7). Of course, this was only because 9 appropriate testing was not done, and plaintiffs had no way to determine that T.D. was impaired. Both defense briefs give short shrift to the facts relating to the discovery of the Fragile X gene, so we clear up the omission here. On February 4, 2010, defendants received information suggesting that the egg donor might have a genetic mutation (11, 13); no genetic testing was done until February 22, 2010 when the donor tested positive for Fragile X syndrome, and was determined to be a carrier of the gene (413-14). Over the next three months, defendants made no attempt at all to notify plaintiffs of this information. On May 10, 2010, Ms. Dennehy received a call at home from Dr. Copperman, who expressed concern that the egg donor was a carrier of the Fragile X gene. Since that gene can result in the most common inherited form of mental retardation (314, 749-51), we question RMA’s assertion that there was no problem in failing to test for this genetic abnormality. On May 12, 2010, T.D. was tested for Fragile X syndrome, and the next day it was confirmed that he had it (744). As a result, he will suffer cognitive and intellectual disabilities, developmental delays and motor deficits (90-91). Litigation On October 11, 2011, plaintiffs commenced an action for wrongful birth damages for extraordinary expenses associated 10 with raising their severely disabled infant son (48-59). The causes of action sounded in medical malpractice, lack of informed consent, breach of contract, breach of express and implied warranties, negligence, and punitive damages. Dr. Copperman served a verified answer dated February 7, 2012 (72- 79), and RMA did the same, also serving combined demands, in early February of 2012 (244-95). Plaintiffs complied with discovery demands (80-96, 296-309). Depositions of plaintiffs were taken and completed (415-1086). Motions In the summer of 2012, both defendants moved by order to show cause to dismiss the complaint pursuant to CPLR §3211[a][5][7], alleging that it was filed after the expiration of the applicable statute of limitations and failed to state a cause of action (17-18, 211-12). Plaintiff opposed both motions (1087-482, 1483-1505) and defendants submitted reply papers (1506-39). Decision in the Trial Court Justice Joan B. Lobis denied the motions in an order and decision dated December 12, 2013, except that she dismissed the cause of action for breach of warranty and declined to impose sanctions on a counsel for frivolous conduct (7-16). 2 After going over the facts (9-12) and setting forth the parties’ competing 2 The court noted that defendants “had the right to preserve their right to challenge the current legal landscape on any appeal” (13). 11 claims (12), the trial court noted that a motion to dismiss a claim for facial insufficiency must be evaluated in a light most favorable to the plaintiff, who is entitled to the benefit of every possible inference that can be derived from the language in the complaint (Leon v. Martinez, 84 NY2d 83 [1994]) (12-13). The trial court also noted that medical malpractice actions must be brought within 2½ years of the act or omission of which the plaintiff complains (13). But where the underlying action is one for wrongful birth, the action accrues upon the infant’s birth (13, citing Ciceron v. Jamaica Hospital, 264 AD2d 497 [2d Dept. 1999]). T.D. was born on April 11, 2009, so the medical malpractice and lack of informed consent causes of action were timely. The claims for breach of contract, negligence and misrepresentation were legitimate, and dismissal was premature for lack of discovery of the defendants (14-15). The claim for punitive damages was also legitimate, flowing from action that could properly be classified as willful, wanton or reckless (Home Ins. Co. v. American Home Products, 75 NY2d 196, 204 [1990]) (15). However, there was no cognizable claim for breach of warranty based on the fact that the donated egg was not a “good” (16). Defendants appealed to the Appellate Division, First Department (1-5.5). 12 Order and Decision of the Appellate Division, First Department The Appellate Division’s decision in this case was predicated on BF v. Reproductive Medicine Assoc. of NY, 136 AD3d 73 [1st Dept. 2015] (“BF”), a case which is being considered together with this case. Accordingly, we discuss the BF decision extensively, since it forms the basis upon which the Appellate Division decided this case. BF involved a factual scenario similar to that presented in this case. As recounted in the majority opinion, the issue in the “wrongful birth” cause of action related to “defendant’s failure to perform adequate genetic screening of an egg donor for an in vitro fertilization” resulting “in the conception and birth of plaintiff’s impaired child.” As formulated by the court, the primary issue in the appeal was whether “plaintiff’s wrongful birth cause of action accrued upon termination of the defendant’s treatment of the plaintiff mother, less than 2 months after the implantation of the embryo, or upon the birth of the infant several months later.” The majority and concurring opinion both held foursquare that “the wrongful death claim accrued upon the birth of the infant and, therefore, was not barred by the applicable statute of limitations...” (136 AD3d at 75). Plaintiffs were unable to achieve pregnancy naturally. Accordingly, they consulted with Dr. Copperman and RMA in February of 2008, placing themselves on a waiting list for an 13 egg donor. Plaintiffs were told that “RMA screened donor candidates for genetic diseases and other conditions, but the particular conditions for which candidates were tested were not discussed with them.” Notwithstanding such fact, the plaintiffs were told, “that some risk of birth defects would remain notwithstanding the screening” (136 AD3d at 75). Plaintiffs received a donor match in October of 2008. After accepting the donor, plaintiffs signed a consent form to go forward with the IVF procedure in December of 2008. The form contained representations that plaintiffs understood “that the risk of major birth defects following the use of donor oocytes (eggs) appears to be the same as in the general population” (Id.) In late January of 2009, 2 embryos were implanted in the plaintiff mother. The embryos were produced by fertilizing a donated ovum with the sperm of the plaintiff father. A short time thereafter, medical testing confirmed that the mother was pregnant with twins. According to the Appellate Division’s decision, the mother ceased treatment with RMA on March 10, 2009, after which she treated with a private physician unaffiliated with RMA or Dr. Copperman (136 AD3d at 76). On September 25, 2009 the mother gave birth to twin boys. 14 Unfortunately, in February of 2010, Dr. Copperman received information that there was a possible genetic mutation with respect to the donor egg. Just as in this case, in BF, RMA tested positive for the Fragile X chromosome, a chromosome that can “produce intellectual disability and other defects, particularly in males.” The donor was shown to be a Fragile X carrier. Unlike this case where there was a substantial delay in notification, in BF, Dr. Copperman contacted the plaintiff’s mother the day after he learned of the potential genetic mutation and informed her that the egg donor was a Fragile X carrier. Thereafter, plaintiffs had their sons tested and found that one of the two boys had the full Fragile X mutation (136 AD3d at 76). This fact, that one of the two children the plaintiff mother gave birth to had a genetic mutation, is significant, though ignored by defendants in their briefs. Since it is clearly possible for a baby to be delivered free of genetic mutations even where an egg donor is a Fragile X carrier, the Appellate Division’s decision holding that a wrongful birth cause of action accrues upon a live birth is a correct, sensible and logically coherent application of existing law. Indeed, since a wrongful birth cause of action is one in which the parents seek recovery for the extraordinary medical expenses of caring for an impaired infant up until the age of 21, holding 15 that accrual occurs when an infant is born, and born impaired, is logical as well. Moreover, contrary to defendants, such a holding does not improperly extend the statute of limitations or provide plaintiffs with an unfair windfall. The Appellate Division’s decision, in fact, makes it clear that the cause of action accrues upon birth, regardless of whether the parents know that the infant is impaired or possibly impaired by means of a genetic defect. Plainly, tying the accrual of a wrongful birth claim to an actual live birth comports with the essence of the tort as well as the rule of law that holds that liability for negligent conduct can only exist where the negligent conduct causes legal harm to a protected interest of another. After recounting the facts, the majority specifically noted that this Court had “not addressed the question of when a wrongful birth cause of action accrues” (136 AD3d at 77). Citing to LaBello v. Albany Medical Center, supra, the First Department stated that this Court noted in LaBello that ‘”an infant plaintiff’s medical malpractice action, premised on alleged injurious acts or omissions occurring prior to birth, accrues on the earliest date the injured infant plaintiff could juridically assert the claim and sue for relief, that is, the date of being born alive’”. Plaintiffs in BF relied heavily on LaBello but the defendants “correctly” countered that LaBello “hinged on the 16 principle that ‘an infant plaintiff has no right of action unless born alive’ and does not control the present question concerning the time of accrual of a cause of action belonging to two adults, each of whom was fully capable of bringing suit at all relevant times” (136 AD3d at 78). Defendants, by way of contrast, in support of their argument that the wrongful birth cause of action accrued at the time of the malpractice relied on Jorge v. NYCHH, 79 NY2d 905, 906 [1992]. In that case, plaintiff alleged that “but for a false negative reading of a sickle cell anemia test of the father of her unborn child, she would have terminated her pregnancy, which, when carried to term, resulted in the birth of a child afflicted with sickle cell anemia.” This Court reversed the First Department and dismissed the complaint as time barred, noting that plaintiff’s “subsequent obstetric treatment did not toll the statute of limitations under the continuous treatment doctrine” (Id.) The First Department in BF noted that this Court’s decision in Jorge “implicitly took the position that the wrongful birth claim accrued before the child was born. However, insofar as can be discerned from the opinions issued in Jorge by the Court of Appeals and by this Court, the plaintiff in that case did not argue that her claim accrued only upon the birth of the child, without regard to the applicability of the continuous treatment doctrine” (136 AD3d at 78-79). 17 That being the case, because this Court made clear that a cause of action could not properly accrue until a plaintiff possesses a viable cause of action, as a logical matter, a wrongful birth claim could not arise until there was the birth of a live child. Citing to this Court’ decision in O’Toole v. Greenberg, supra, the majority noted that in order to have a viable cause of action, plaintiffs “must show not only injuria, namely the breach of the defendant’s obligation, but also damnum to themselves in the sense of damage recognized by law.” Since a wrongful birth claim seeks to compensate parents for a legally cognizable injury in the form of 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” (136 AD3d at 79). Of course, “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’”. The majority then turned to the plaintiffs’ causes of action alleging ordinary negligence, breach of contract, fraud and negligent misrepresentation. It dismissed those claims as 18 “redundant of the medical malpractice claim” (136 AD3d at 79- 80). However, both the majority and the concurring/dissenting opinion stated that “plaintiffs have adequately pleaded a basis for an award of punitive damages” given “their allegations that Fragile X is a common cause of mental retardation for which donor candidates could easily have been tested, and given that defendant’s failure to screen for Fragile X potentially affected many patients other than plaintiffs” (136 AD3d at 82). Justice Sallie Manzanet-Daniels dissented and concurred. Of relevance to this case is the fact that Justice Manzanet-Daniels specifically agreed with the majority that, “the parents claims accrued upon the birth of their son with Fragile X syndrome, and thus are timely.” Justice Manzanet-Daniels also concurred, “that plaintiffs parents have adequately pleaded a basis for punitive damages” (136 AD3d at 82-83). However, Justice Manzanet-Daniels would not have dismissed the additional causes of action on the grounds that they were “duplicative or subsumed within the cause of action alleging medical malpractice” because “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” (136 AD3d at 83, citing Weiner v. Lenox Hill Hospital, 88 NY2d 784, 787 [1996]). 19 Since the cognizability of the plaintiffs causes of action that the Appellate Division dismissed in its decision is not presently before this Court, no extended discussion of the dissent’s holding with regard to those claims is necessary here. However, Justice Manzanet-Daniels’ discussion of the facts does warrant some mention. For example, the dissent/concurrence noted that the Fragile X mutation is an inherited cause of mental impairment. Plaintiffs alleged that it was by “far the most common type of known inherited mental retardation in male children.” A “simple blood test costing $100 to $200 has been readily available since 1992 to test for this condition.” As the disease is only passed through a females X chromosome, M.F.’s “Fragile X mutation must have been inherited from the egg donor and not from his father” ({136 AD3d at 84). The concurrence/dissent also noted that those “affected with Fragile X mutation range from having ‘learning disabilities to severe mental retardation and autism.’” Other “behavioral, intellectual and social characteristics” that afflict those with Fragile X “include speech, language and motor delay, tactile defensiveness and sensory overload, and abnormal physical features” (136 AD3d at 84). The infant plaintiff’s mutation would require “intensive physical therapy, occupational speech and behavioral therapies for several hours a day, 5 times per week”; the infant plaintiff would also require “special 20 education services for the rest of his life, and will most likely never live independently” (136 AD3d at 84). The foreseeability that these types of horrific injuries can befall a baby where proper testing protocols are not followed, in our view, as a matter of public policy, fully supports the Appellate Division’s unanimous holding that a wrongful birth cause of action accrues upon the birth of a live child. Defendants, however, take a different tack in their brief claiming that the Appellate Division’s decision distorts the law. Because in regular, run of the mill medical malpractice cases the accrual of the cause of action begins on the date the negligent treatment ended, plaintiffs in this case cannot benefit from a different rule in which accrual occurs on the date of the birth of a live baby. For the reasons previously articulated and those set forth herein infra, plaintiff submits that the Appellate Division’s decision is correct and that it should be affirmed in all respects. QUESTIONS PRESENTED Does a “wrongful birth” claim accrue upon the birth of a live infant or does the cause of action accrue upon the date of the medical provider’s last treatment? For the reasons outlined herein at length, plaintiff submits that the Appellate Division and trial court correctly 21 held that a wrongful birth cause of action accrues upon the birth of a live child. DISCUSSION POINT I BECAUSE IT IS IMPOSSIBLE FOR A WRONGFUL BIRTH CLAIM TO BE PROPERLY ALLEGED AND PLED IN THE ABSENCE OF THE BIRTH OF A LIVE CHILD, THE TRIAL COURT AND THE APPELLATE DIVISION RIGHTLY HELD THAT THE WITHIN CAUSE OF ACTION ACCRUED UPON BIRTH OF A LIVE CHILD; DEFENDANTS’ CLAIM THAT THE APPELLATE DIVISION’S DECISION IMPROPERLY SKEWED THE LAW BY EXTENDING THE STATUTE OF LIMITATIONS BEYOND THAT WHICH THE LEGISLATURE AUTHORIZED IGNORES BLACK LETTER CASE LAW HOLDING THAT A CAUSE OF ACTION CANNOT ACCRUE UNTIL A CLAIM BECOMES ENFORCEABLE, I.E., WHEN ALL ELEMENTS OF THE TORT CAN BE TRUTHFULLY ALLEGED IN THE COMPLAINT The Nature of a “Wrongful Birth” Claim It is well settled that New York recognizes a “wrongful birth claim”, which compensates parents for the extraordinary expenses incurred or to be incurred in supporting a child who is severely damaged, and is delivered as the result of professional negligence. The “parents must establish that malpractice by a defendant physician deprived them of the opportunity to terminate the pregnancy within the legally permissible time period, or [as alleged here] that the child would not have been conceived but for the defendant’s malpractice” (Mayzel v. Moretti, 105 AD3d 816-7 [2d Dept. 2013]). There is, of course, no claim for “wrongful life” based on the claim that the impaired child would have been better off had it never come into being. But the parents of such a child may seek to recover the 22 expenses “relating to the care” of that child during his or her minority (Foote v. Albany MC, supra at 215; Bani Esraili v. Lonerman, supra; Becker v. Schwartz, supra). Here, plaintiffs have adequately pled and asserted a “wrongful birth” cause of action. Accrual of Tort Causes of Action In Kronos v. AVX Corp., 81 NY2d 90, 94 [1993], this Court held that accrual for statute of limitations purposes generally occurs “when the claim becomes enforceable, i.e., when all elements of the tort can be truthfully alleged in a complaint.” “Though negligence may endanger the person or property of another, no actionable wrong is committed if the danger is averted. It is only through the [injury] to person or property arising from negligence which constitutes an invasion of a personal right, protected by law, and, therefore, an actionable wrong” (Schmidt v. Merchants Despatch, 270 NY 287, 300-1 [1936]). The cause of action, then, accrues “only when the forces wrongfully put in motion produce injury.” Otherwise, “a cause of action might be barred before liability arose” (id.). That rule “does not mean that the cause of action accrues only when the injured person knows or should know that the injury occurred. The injury occurs when there is a wrongful invasion of person or property rights and then the cause of action accrues. Excepting cases of fraud…the statutory period of limitation 23 begins to run from the time when liability for wrong has arisen, even though the injured party may be ignorant of the existence of the wrong or injury” (id.). In addition, “Consequential damages may flow later from an injury too slight to be noticed at the time it is inflicted. No new cause of action accrues when such consequential damages arise. So far as consequential damages may be reasonably anticipated, they may be included in a recovery for the original injury, though even at the time of trial they may not yet exist. When substantial damage may result from any wrong affecting the person or property of another, a cause of action for such wrong immediately accrues” (id.). Of course, as the Appellate Division recognized here, in a wrongful birth claim, no cause of action accrues until an infant is actually born alive. While most tort actions compensate an injured plaintiff for the damages he or she sustains as a result of the negligence of another, a wrongful birth claim is brought on behalf of the parents, not the infant, where proper treatment would have allowed the parents to end the pregnancy and thus avoid the financial obligation of supporting and caring for a catastrophically injured child. If the child is not born alive, no wrongful birth claim can ever be properly pled. This is when all elements necessary to assert the claim can be truthfully alleged in the complaint. See, IDT v. Morgan Stanley, 12 NY3d 132, 140 [2009]; Britt v. LAS, supra; Vigilant Ins. v. HA, 24 supra; Ackerman v. Price Waterhouse, supra; Eli Kruikashank v. Bank of Montreal, supra. This Court has also held that liability exists “only when [the tortious conduct] causes legal harm to a fully protected interest of another” (O’Toole v. Greenberg, 64 NY2d 427, 431 [1985]). Until there is a legal right to relief, the statute of limitations cannot run (LaBello, 85 NY2d at 704). Logically, then, accrual in a wrongful birth cause of action occurs at the birth of a live child, without which no proper claim can be stated, based on longstanding case law. See, Prahlad v. Brustman, 33 AD3d 518 [1st Dept. 2006], affd., 8 NY3d 901 [2007]; Ciceron v. Jamaica Hospital, 264 AD2d 497 [2d Dept. 1999]; see generally, Fonda v. Wapner, supra. New York does not generally recognize pre-conception torts (Enright v. Eli Lilly, 77 NY2d 377 [1991]; Albala v. NYC, 54 NY2d 269 [1981]), but the law regarding negligence in conception is constantly evolving. Where a pregnant woman generally opposed to abortion decides to submit to one only because of negligent medical advice, and the fetus proves normal, she may recover for the resulting emotional distress. See, Martinez v. LIJ MC, 70 NY2d 697 [1987]. On the other hand, in Tebbutt v. Virostek, 65 NY2d 931 [1985] and its progeny, this Court, at first, held that a mother could not, like a bystander, sue for emotional harm caused by learning of the death of a third party. The relief was 25 available based on the breach of a duty owed directly to the mother. On similar grounds, recovery was allowed where defendant negligently failed to advise plaintiff that she could still be pregnant due to an incomplete abortion, and she then miscarried (Ferrara v. Bernstein, 81 NY2d 895 [1993]). Where a physician negligently failed to detect pregnancy before prescribing a drug potentially harmful to the fetus, and the plaintiff, believing that the fetus would be harmed or injured, decided to undergo an abortion, plaintiff could recover from the injuries resulting from the abortion and the decision to have it (Lynch v. Bay Ridge Ob/Gyn, 72 NY2d 632 [1988]). In Broadnax v. Gonzalez, 2 NY3d 148 [2004]), this Court, overruling Tebbutt, held that an expectant mother could recover for emotional distress resulting from a miscarriage or stillbirth caused by medical malpractice, even in the absence of independent physical injury, and the father could maintain a derivative action for loss of services and consortium even where the physician owed no duty of care to him. It was held improper to immunize physicians whose negligence caused miscarriages or stillbirths, as had previously been the case. In Sheppard-Mobley v. King, 4 NY3d 627 [2005], this Court held that plaintiff could not recover when a drug meant to induce a miscarriage failed, but could recover for the distress 26 of having to decide whether to seek an out of state late term abortion or risk the birth of a child with congenital defects. We could go on, but the point is that the cases are extremely detailed and fact-sensitive. Accordingly, it is important to examine the gravamen of the specific cause of action to determine the viability of the claim and its accrual for statute of limitation purposes. The Holding of the Lower Courts as to Accrual Was Correct Here, the holding of the Appellate Division and trial court that a cause of action for wrongful birth accrued when there was a live healthy birth (136 AD3d at 76) is sound as a matter of both law and logic. A medical, dental or podiatric malpractice cause of action “must be commenced within two years and six months of the act, omission or failure complained of or last treatment where there is continuous treatment for the same illness, injury or condition which gave rise to said act, omission or failure” pursuant to CPLR §214-a. As the Appellate Division noted in this case, this Court has not yet “addressed the question of when a wrongful birth cause of action accrues” (136 AD3d at 78). But in LaBello, supra, this Court did hold that an infant’s “medical malpractice cause of action, premised on alleged injurious acts or omissions occurring prior to birth, accrues, on the earlier date the injured infant plaintiff could juridically assert the 27 claim and sue for relief, that is, the date of being born alive” (85 NY2d at 703). Showing evenhandedness, the Appellate Division noted that “defendants correctly point out that LaBello, which hinged on the principle that ‘an infant plaintiff has no right of action unless born alive’…does not control the present question concerning the time of accrual of a cause of action belonging to two adults, each of whom was fully capable of bringing suit at all relevant times” (136 AD3d at 78). Both below and on this appeal, defendants contends that the cause of action accrued when defendants last treated plaintiff, on the strength of Jorge v. NYCHHC, 79 NY2d 905 [1992]. There, plaintiff alleged that defendant negligently read a father’s test results for sickle cell anemia as being negative when they were positive, and plaintiff gave birth to an infant with sickle cell anemia. Plaintiff claimed she would have terminated her pregnancy had the test been read properly, and sought damages for the expenses to be incurred in caring for the child (79 NY2d at 906). Defendant moved to dismiss the case as untimely. The motion was granted, though plaintiff claimed that the statute of limitations had been tolled by the continuous treatment doctrine. On appeal, a divided Appellate Division reversed. This Court reversed the Appellate Division, holding that continuous treatment did not apply to toll the statute of 28 limitations, because the medical error was the misreading of the test result, which was “not committed in relation to the ongoing obstetric care that plaintiff received”; accordingly, the action was dismissed as untimely (id.). The Appellate Division here properly noted that in Jorge this Court “implicitly took the position that the wrongful birth claim accrued before the child was born” (136 AD3d at 78-9), but the “plaintiff in that case did not argue that her claim accrued upon the birth of the child, without regard to the applicability of the continuous treatment doctrine” (Id. at 79). Appellate courts, of course, do not create the law. See, Matter of Frutiger, 29 NY2d 143, 151 [Burke, dissnt.] [1971]. This is the reason that this Court normally lacks jurisdiction to review unpreserved issues (Merril v. Albany MC, 71 NY2d 990 [1988]; Matter of Shannon B., 70 NY2d 458 [1987]). Indeed, courts “only decide upon the ground of appeal taken by the respective parties” (People ex rel Debenetti v. Clerk of NY Marine Courts, 3 How Pr. 309 [1856]). This is why, “No opinion is an authority beyond the point actually decided, and no judge can write freely if every sentence is to be taken as a rule of law separate from its association” (People v. Olah, 300 NY 96, 101 [1949], citing Dougherty v. Equitable Life, 266 NY 71, 88; see, J.A. Preston Corp. v. Fabrication Ent., 68 NY2d 397 [1986]). Even dicta in 29 this Court’s decisions cannot be properly cited apart from the facts and issues being considered. See, People v. Bourne, 139 AD2d 210 [1st Dept. 1988]. Opinions “are to be read in light of the facts in the case under discussion” and should not have read into them “every limitation or variation which might be suggested by the circumstances of cases not before the court” (Armour & Co. v. Wantock, 323 US 126, 133 [1944]). Both defendants assert that the Appellate Division decision improperly lengthened the statute of limitations (Copperman brief, p. 1) and “disrupts established law and policy”, resulting in lopsided and unfair standards of law (RMS brief, p. 2). Dr. Copperman calls the decision a “rather extraordinary exercise of judicial fiat” in that the Legislature created the statutes of limitations, and the Appellate Division has created a “third recognized exception to the medical malpractice statute of limitations” which the Legislature did not authorize (Brief at 2). RMS argues that a “steadfast rule that a claim of malpractice accrues on the date of the malpractice” is required here, and that there is no rationale for a “single case factual ‘fix’” in this case (RMS brief, pp. 3-4). RMS even accuses the Appellate Division of overreaching and crafting an improper, “heretofore unknown discovery rule” which has been “consistently 30 rejected by the Legislature” and “does not even operate under the facts of this case as a discovery rule” (Brief at 4). Defendants claim that only two exceptions exist to the rule that cases must be brought within two years and six months after the date of last treatment, namely the continuous treatment doctrine and the foreign discovery rule (RMS brief, p. 5), and only the Legislature can create a third (Copperman brief, p. 2); accordingly, the Appellate Division’s decision was an exercise in judicial engineering. But in fact the decision is quite proper, contrary to defendants (RMS brief, p. 12). Defendant’s criticism of the Appellate Division’s decision is completely off the mark. The Appellate Division’s decision did not “create a distinct ‘discovery rule’ for ‘wrongful birth’ medical malpractice actions” in violation of the authority of legislature (RMS brief, p. 14). Nor does it operate as a broad “savings provision” that “creates an exception to CPLR §214-a (Brief at 14-15). Tying the statute of limitations to the specific nature of the underlying action is neither controversial nor unusual under New York case law on point. For example, in Blanco v. AT&T, 90 NY2d 757, 764 [1997], this Court held that plaintiff’s claim seeking recovery for repetitive stress injury incurred as a result of the use of computer keyboards accrued for purposes of CPLR §214 “upon the 31 onset of symptoms, or the last use of the keyboard, whichever is earlier.” This Court issued its decision despite a specific finding that “CPLR §214-c (was) inapplicable in this case” (90 NY2d at 766). Indeed, there is a small but significant body of case law holding that a claim “does not accrue with the negligent act but at the time plaintiff is actually injured by the negligent act” (Melfi v. Mount Sinai Hospital, 64 AD3d 26, 39 [1st Dept. 2009]; Sexton E. v. Rochester, 32 AD3d 887 [4th Dept. 1969]; Konar v. Monro Muffler Shops, 28 AD2d 642 [4th Dept. 1967]). Given defendants’ focus on policy and their claim that the Appellate Division’s decision dramatically expands the statute of limitations, invading the province of the legislature, their wholesale failure to even cite, much less discuss, this Court’s decision in Blanco is startling. Dr. Copperman’s brief discusses the continuous treatment doctrine to support its claim that this action was “untimely” on its “face.” (Brief at 11), positing that “CPLR §214-a shows both the legislature’s desire to reign in a prior history of statutes of limitations being used in an expansive way and to make sure its enactments in this area was strictly adhered to” (Id.) Dr. Copperman admits that “this Court created a common law exception for cases involving foreign objects”, ruling that “in those cases...actions do not begin accruing until the plaintiff- patient could reasonably have discovered the malpractice,” 32 citing to Flanagan v. Mt. Eden Gen. Hospital, 24 NY2d 427 [1969] (Brief at 11-12). It then notes that “some 6 years after Flanagan, the legislature enacted CPLR §214-a” which essentially implemented the common law exception set forth by this Court in Flanagan (Brief at 12-13). This, of course, is significant since it shows that this Court will apply the statute of limitations fairly in appropriate situations to insure that deserving plaintiffs are not deprived of the ability to bring an action that would, due to circumstances beyond their control, otherwise be barred by the improper application of a statute of limitations. While Dr. Copperman claims that the purpose of the legislature in enacting CPLR §214-a was to “curtail the excesses that followed Flanagan” (Brief at 13), citation to Flanagan destroys defendant’s argument that the Appellate Division was not authorized to hold that the statute of limitations in a wrongful birth case accrues upon the birth of a live baby. In Flanagan, this Court created an exception to the rule that tort cases of action accrued on the date the tortious act was committed in a “foreign object” case. The fact that the legislature subsequently adopted this Court’s decision in Flanagan statutorily does not change the fact that this Court plainly has the right to interpret statute of limitations 33 legislation in a sensible and coherent manner that is consistent with the nature of the underlying tort. RMS claims that the “statute of limitations accrues on the date of the alleged malpractice or the date of last treatment (Brief at 15). It cites to the legislative history underlying Flanagan (Brief at 16-19) to support its assertion that this Court has “repeatedly admonished against judicial extension of the discovery rule beyond the scope the legislature prescribed for it in the statute” (Brief at 19). RMS then goes on to cite to decisions of this Court which properly noted that deference must be given to decisions of the legislature and that this Court cannot intrude upon that field by legislating through judicial fiat (Brief at 20-23). Unfortunately both defendants, through misdirection, attempt to controvert the clear and correct holding of the First Department through semantic gamesmanship. The First Department itself has recognized that “Posing the wrong question usually leads to an answer which is less than enlightening.” See, Bustamante v. Westinghouse, 195 AD2d 318 [1st Dept. 1993], citing Lusenskas v. Axelrod, 183 AD2d 244 [1st Dept. 1992], app. dimsd. 81 NY2d 300 [1993]. Plaintiff submits that defendant is creating strawman, which it demolishes in an effort to find a valid basis to overturn the First Department’s decision. The First Department 34 did not engage in judicial legislation nor did it improperly expand the scope of CPLR §214-a. It simply recognized that a cause of action does not accrue under New York law until the plaintiff has a legal right to bring the action. Since a wrongful birth cause of action does not accrue unless and until a live baby is born, the First Department’s holding is both logical, consistent with this Court’s precedent and, most importantly, not violative of the prerogative of the legislature to make decisions regarding pertinent statutes of limitations. As stated previously, the issue in Blanco was when a cause of action for repetitive stress injury accrued. The Blanco court, citing to its prior decision in Aetna Life and Casualty Co. v. Nelson, 67 NY2d 169, 175 [1986], observed that as a general rule a cause of action accrues “when all of the facts necessary to the cause of action have occurred so that the party would be entitled to obtain relief in court.” Of course, in this case, if T.D., had not been born alive, no wrongful birth cause of action could ever have existed since a live birth is necessary to assert the cause of action. Because a wrongful birth cause of action exists to compensate parents for the support obligations they have in caring for a catastrophically injured child who would otherwise not be born but for the negligence of a medical professional, absent a live birth, no wrongful birth cause of action could ever be alleged, much less proven. 35 The Blanco court discussed three categories of latent injury cases. The first related to cases where the injury arose from the “inhalation, ingestion or injection of harmful substances which are assimilated into the body.” In those cases, this Court has “long applied a first exposure rule, under which the time to sue for the resultant injuries ran from the plaintiff’s first exposure to the substance, rather than from the discovery of the injury” (90 NY2d at 768). The second line of cases involved injuries caused by foreign objects that were negligently left in the plaintiff’s body. Under Flanagan, such actions did not accrue until the plaintiff could reasonably have discovered the injuries resulting from the malpractice. In discussing Flanagan, the Blanco Court noted, “that there was little danger of feigned claims” and that defendant, in “foreign object” cases would not be “unduly handicapped in defending such claims” by applying a “discovery” rule for determining when the claim accrued (Id.) The same is true here. Indeed, the underlying facts in this case are not in dispute and essentially come from defendant’s records. Nor is there any basis to assert that plaintiff’s claims are feigned. While there might be a dispute regarding professional negligence, that dispute is not dependent on the facts of the case, which are clear on their face. 36 The third line of cases discussed by the Blanco court were product liability claims against manufacturers where the product “defect manifested itself several years after manufacture” (Id. at 769). See generally, Victorson v. Bock Laundry Mach. Co., 37 NY2d 395 [1975]. The Blanco court held that “because plaintiff suffered no actual injury until the defect manifested itself, we held that the cause of action did not accrue until the defect actually caused injury.” The Blanco court also discussed, in detail, Martin v. Edwards, 60 NY2d 417 [1983], which involved product liability claims against a manufacturer of a defective heart valve and a defective Dalkon Shield. The Martin Court held that the claims “accrued upon causation of injury, which in most cases would correlate with the date the product actually malfunctioned.” In Martin, this Court observed that there was no danger of feigned or frivolous claims because the product could be removed and examined such that the factual predicate underlying the case would be clear. Furthermore, while “complicated medical questions may be involved and professional diagnostic judgment implicated,” those concerns would relate to recent rather than remote events such that there was no significant staleness problem. The Blanco court held that in a repetitive stress injury case, there is no “one readily discernible first date of injury” 37 (90 NY2d at 770). Here, of course, such a date is both discernible and indisputable: The date the infant is born alive. Choosing that date as the accrual point for wrongful birth claims was completely proper and, indeed, mandated under the facts disclosed by this record. After discussing competing policy concerns, and noting that “this Court has refused to waver from the first exposure rule” even though the rule “may seem unjust” because “ameliorative efforts” should ordinarily be left to the legislature (90 NY2d at 772), this Court, in Blanco, made clear that analysis of the underlying claim was necessary to determine the triggering point for the accrual of any specific statute of limitations date. This function was one that properly fell to the courts (90 NY2d at 773): Defendants are correct that we have long given deference to the legislature to recast the accrual methodology of toxic torts if it saw fit and as noted earlier, the legislature has on several occasions done so. However, in cases such as this, where we are presented with new categories of tort claims and injuries, we have always done a careful and balanced analysis of the nature of the claims and its intricate interplay with the policy considerations at the heart of our statute of limitations jurisprudence (cits.) Our analysis here is not a rejection of our (prior jurisprudence); it is a recognition that RSI cases present new and different challenges in defining the accrual dates for plaintiff’s causes of action. To accept defendant’s argument that we should rely upon the analysis we found appropriate in toxic tort cases is to ignore the significantly different nature of both plaintiff’s injuries and the alleged causes of action. 38 In holding that the repetitive stress injury claim accrued “upon the onset of symptoms or the last use of the injury producing device, whichever is earlier” (90 NY2d at 774), this Court in Blanco stated that “fairness to the plaintiff militates against the rule based on first use” since plaintiffs suffering from the condition “have no reason to complain...until a symptom actually manifests itself, and cannot be faulted for failing to exercise their legal rights prior to that time” (Id.) The Blanco court also noted that statute of limitations were designed to promote justice “by 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”; the doctrine also promotes “repose by giving security and stability to human affairs” (90 NY2d at 773). Plaintiff’s repetitive stress injury claim was not one in which there was any danger of fraud and allowing the claim to proceed on the merits would not prejudice the defendant due to the passage of time. Applying this Court’s ruling in Blanco to the case at bar, it seems clear that the Appellate Division’s decision is correct. Plaintiff could not plead a valid wrongful birth cause of action until T.D. was born. The underlying facts of the case essentially come from defendant’s records and there is no claim that any fact or issue could be artificially manufactured or 39 that defendant’s ability to defend against this action has been compromised due to the passage of time. Applying a statute of limitations accrual date to the precise period when the cause of action can actually be stated is completely congruent with the existing case law and represents a simple application of such law to the facts in this case. Defendant’s assertion that the Appellate Division recklessly invaded the province of the legislature by extending the statute of limitations to defendant’s detriment simply does not add up. Dr. Copperman’s observation that in Rodriguez v. Manhattan Medical Group, 77 NY2d 217 [1990] a case where it was claimed that defendant failed to detect the implantation of an IUD device in the plaintiff’s uterine wall, this Court feared that accepting plaintiff’s assertion as to when the statute of limitations would accrue had the potential to bring “virtually all medical malpractice cases under the discovery rule” (Brief at 14), has no application to the facts of this case in which the Appellate Division merely held that in wrongful birth cases, the cause of action accrues, at the earliest, upon birth, based upon the nature of the underlying case. RMS’s argument that the Appellate Division’s holding is “most certainly wrong as it mischaracterizes the description of the ‘injury’ for the precise purpose of defining a discovery 40 rule” (Brief at 23) is, to use RMS’s language, “certainly wrong.” Contrary to RMS, the issue is not “when the treatment was rendered,” but rather when plaintiff could actually assert a cognizable cause of action. Because, under Kronos, supra, a cause of action cannot accrue until there is a legal right to relief, RMS’s argument that a wrongful birth cause of action accrues on the date of last treatment and that there was a “cognizable cause of action to the parents at the time of the malpractice” (Brief at 24) is not only temporally incorrect but specious legally. Significantly, RMS never explains how a wrongful birth claim can be pled and proven in the absence of a live birth. Instead, it posits that the “First Department’s reasoning has been consistently rejected in many untimely medical malpractice actions” (Brief at 25). It then dutifully cites to cases having absolutely nothing to do with wrongful birth causes of action to support that conclusion. In addition, RMS fails to discuss that body of case law, which holds that the statute of limitations cannot run until there is a legal right to relief (Brief at 25-27). In fact, without realizing it, RMS actually supports plaintiff’s claims when, citing to LaBello, it states that “the injury (in that case) occurred at the time of the infant’s live birth, thus, providing the infant-plaintiff standing to assert all elements of the claim” (Brief at 27). That, of course, is 41 the precise observation made by all of the judges in the Appellate Division. RMS’s attempt to avoid the import of its characterization of this Court’s holding in LaBello by stating “here, the plaintiffs were allegedly injured when they were deprived of the opportunity to refuse the donor eggs, decline to conceive the infant, or terminate the pregnancy” (Id.) states a non-sequitur. The parents were injured when their support obligation came into existence; that accrued when T.D. was born. We believe it is significant that neither defendant cited, much less distinguished, this Court’s decision in Kronos. Indeed, this Court’s decisional law, as we have shown, establishes clearly that analyzing the specific nature of the plaintiff’s claim in order to determine the accrual of the applicable statute of limitations is both proper and mandatory. The Appellate Division’s adherence to that principle of law, and defendant’s decision to ignore it, speaks volumes as to the propriety of the Appellate Division’s decision. In this regard, RMS’s recognition that “permissible compensation in a ‘wrongful birth’ case is the extraordinary costs incurred in caring for the impaired child” also fully supports plaintiff’s position because a condition precedent to any parent having a support obligation is the birth of a live child. RMS’s statement that the “fact that costs had not yet 42 been incurred at the time of the alleged malpractice” (Brief at 28) is nothing but an evasion. The legal obligation to support a child does not exist until the child is born. As such, the Appellate Division’s decision did not intrude upon the province of the legislature (Copperman brief, pgs. 14- 1). And, the First Department’s rationale did make “particular sense” despite the fact that the birth itself “did not tell the parents anything” about the underlying malpractice claim (Copperman Brief, p. 17). What the Appellate Division did was to simply honor the well-settled rule that a cause of action under New York tort law cannot accrue until there exists a legal right to relief. Since neither defendant claims that a parent’s obligation to support a child is not dependent upon the child being born alive, defendant’s machinations and arguments are designed to avoid that inconvenient fact. RSM’s assertion that reversal of the Appellate Division order is required because “the legislature has refused to enact a discovery rule for medical malpractice cases” (Brief at 29-31) presupposes that the Appellate Division changed the law and sought to extend the statute of limitations for wrongful birth claims when, in fact, the court merely recognized that a wrongful birth claim could not be properly pled or alleged in the absence of a live birth. Dr. Copperman’s related claim that “ascertaining whether a legally cognizable injury exists has 43 never been the standard by which statute of limitations are measured in the field of medical malpractice” (Brief at 17) is similarly misplaced. As we have shown, this Court has regularly recognized that a tort cause of action accrues when a cognizable injury is sustained. Indeed, in Kronos, supra, 81 NY2d at 94, this Court, after noting that a “tort cause of action cannot accrue until an injury is sustained” immediately added “that, rather than the wrongful act of defendant or discovery of the injury by plaintiff, is the relevant date for marking accrual.” Thus, the fact that the statute of limitations in failure to diagnose cases is measured “from the time of the failure to diagnose, rather than from the discovery of the failure to diagnose the cancer” (Copperman brief, p. 17) attempts to improperly equate failure to diagnose cases with wrongful birth claims in which the plaintiff is the parent whose support obligations require the birth of a live child in order for the cause of action to exist (Brief at 17-19). Although RMS posits that the First Department’s holding is “inconsistent with a history of wrongful birth claims in New York (Brief at 31), its discussion of the origins of such claims fully supports plaintiff’s position (Brief at 31-38). Nowhere in RMS’s submissions does it explain how a wrongful birth claim in which the parents are compensated for their legal obligation to support a severely damaged child can exist in the absence of a 44 live birth. Instead, parroting the First Department, RMS states that in Jorge “this Court implicitly concluded that the claim accrued on the date of the ‘alleged act of malpractice – the misreading of the father’s genetic test result.’” But this does not mean that the “birth of the child had no place in the analysis of the accrual of the parent’s cause of action.” As the Appellate Division noted, and as we have shown, the plaintiff in that case did not argue that her claim accrued only upon the birth of the child without regard to the applicability of the continuous treatment doctrine. As the Appellate Division recognized, cases must be read in context. Where a party does not make a particular argument, the implicit holding of a case cannot be read to refute a contention that was not expressly raised by the parties. See, Sangaray v. West River Associates, 26 NY3d 793, 798-799 [2016] (Decision of the court in Montalbano v. 136 West 80th Street, 84 AD3d 600 [1st Dept. 2011] not controlling where the plaintiff “did not argue” that defendant “failed to maintain the sidewalk flag abutting his property in a reasonably safe condition”, a claim that was asserted by the plaintiff in the case under review). Indeed, “particular variations” of a given “fact pattern” do not expand a given statute of limitations “beyond its legislatively-limited scope” (Walton v. Strong Memorial Hospital, 25 NY3d 554, 573 [2015]. 45 In footnotes 6 and 7 of the Walton decision, this Court also noted that because of the way the case was argued, it had “no occasion” to thoroughly discuss certain issues which limited any precedential affect of the opinion. See generally, Sebastian v. State, 93 NY2d 795-796 [1999]. (“Claimants’ reliance on Williams v. State...is also misplaced” because the “parties” in that case “did not argue – and that case does not address – the State’s immunity from ordinary tort liability for negligence arising out of the governmental, as contrasted to propriety, acts in a juvenile delinquency placement circumstance.”) Although defendants’ attempt to distinguish the holding of this Court in LaBello that the “infant’s claim accrued upon the date of … birth” (RMS brief p. 35, Copperman brief pgs. 19-20), the distinction they draw supports the Appellate Division analysis. The fact that “this Court addressed the timeliness of an infant’s malpractice claim for prenatal injuries” (RMS brief p. 35) in LaBello supports the Appellate Division holding that the specific nature of the specific claim under review must be analyzed for determining the proper accrual of the statute of limitations in any given case. RMS’s citation to cases not involving wrongful birth to support its assertion that the cause of action at bar accrued on the last date of treatment (Brief at 35-38) also supports, 46 rather than refutes, the Appellate Division analysis. 3 Dr. Copperman argues, on a similar basis, that appellate courts have “over-read” LaBello and Ciceron to, in effect, create a statute of limitations accrual rule in wrongful birth claims that is not warranted (Brief at 22-25). Here, the Appellate Division, properly held that plaintiff’s cause of action accrued at birth because that was the time when the parents’ support obligation began. Finally, both defendants rely on Grossbaum v. Genesis Genetics, 2011 U.S. Dist. LEXIS, 62180 (D&J, 2011, affd., 489 F. Appx. 613 [3d Cir. 2012]). However, defendants concede that on appeal the Third Circuit “refused to address” plaintiff’s claim that the statute of limitations “began to run upon the infant’s birth” because it was “raised for the first time on appeal” (RMS brief, p. 42-43, Copperman brief, pgs. 24-25). Of course, this supports the finding of the Appellate Division in this case that 3 RMS’s claim that the Second Department’s decision in Scrofini v. Sebollena, 226 AD2d 523 [2d Dept. 1996] conflicted with its subsequent decision in Ciceron v. Jamaica Hospital, 264 AD2d 497 [2d Dept. 1999] (Brief at 36-40) and that Ciceron led to subsequent errors in First Department decisional law (Brief at 40-42) ignores the holding of the Scrofini court which held “the court correctly determined that the continuous treatment doctrine does not apply and dismissed the action as untimely.” As noted by the First Department, Jorge was predicated upon plaintiff’s assertion that the statute of limitations was tolled by virtue of the continuous treatment doctrine, not that the claim accrued upon birth. When the issue was properly presented in Ciceron, the Appellate Division, correctly recognizing the underlying nature of a wrongful birth claim, held that the cause of action accrued upon the birth of a live child. We also note, somewhat ironically, that when discussing Prahlad v. Brustman, supra, RMS writes “while Prahlad was affirmed by this Court, this Court did not address when the cause of action accrued, since it was not disputed by the parties,” the exact distinction noted by the Appellate Division when discussing Jorge. 47 Jorge is not dispositive because the plaintiff there did not assert that the cause of action accrued when plaintiff was born. As such, although well written by the two deans of appellate bar, defendant’s briefs and submissions actually establish the propriety of the Appellate Division’s order and decision in the case at bar. CONCLUSION Based upon the foregoing, it is respectfully submitted that the order and decision of the Appellate Division, First Department should be in all respects affirmed, and that this Court should issue any other, further or different relief as it deems just, proper and equitable. Respectfully submitted, DUFFY & DUFFY, PLLC Attorneys for Plaintiffs-Respondents Marie Dennehy and James Dennehy By: Brian J. Isaac, Esq. POLLACK POLLACK ISAAC & DECICCO, LLP Appellate Counsel 225 Broadway, Suite 307 New York, New York 10007 212-233-8100 James LiCalzi, Esq. Brian J. Isaac, Esq. Of Counsel 48 CERTIFICATE OF COMPLIANCE I hereby certify pursuant to 22 NYCRR §500.13(c) that the foregoing brief was prepared on a computer. A proportionally spaced typeface was used, as follows: Name of typeface: Courier New Point size: 12 Line spacing: Double The total number of words in the brief, inclusive of point headings and footnotes and exclusive of the statement of the status of related litigation; the corporate disclosure statement; the table of contents, the table of cases and authorities and the statement of questions presented required by subsection (a) of this section; and any addendum containing material required by §500.1(h) is 10,752. Dated: January 19, 2017 Respectfully submitted, DUFFY & DUFFY, PLLC Attorneys for Plaintiffs-Respondents Marie Dennehy and James Dennehy By: Brian J. Isaac, Esq. POLLACK POLLACK ISAAC & DECICCO, LLP Appellate Counsel 225 Broadway, Suite 307 New York, New York 10007 212-233-8100