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, Respondents, against ALAN B. COPPERMAN, M.D., REPRODUCTIVE MEDICINE ASSOCIATES OF NEW YORK, LLP and REPRODUCTIVE MEDICINE ASSOCIATES INTERNATIONAL, LLP, Appellants. >> >> REPLY BRIEF FOR APPELLANT ALAN B. COPPERMAN, M.D. AARONSON RAPPAPORT FEINSTEIN & DEUTSCH, LLP Attorneys for Appellant Alan B. Copperman, M.D. 600 Third Avenue, 5th Floor New York, New York 10016 212-593-6700 Of Counsel: Elliott J. Zucker Nancy Ledy-Gurren Date Completed: February 16, 2017 To Be Argued By: Nancy Ledy-Gurren Time Requested: 15 Minutes {01939027.DOCX } TABLE OF CONTENTS Table of Authorities……………………………………………………….….…….. i Legal Argument……………………………………………………………….…….. 1 Adherence to the Statutory Scheme……………………………………… 1 The Irrelevance of Damages in Determining the Timeliness of the Claim.. 7 Conclusion………………………………………………………………….………. 11 i {01939027.DOCX } TABLE OF AUTHORITIES Page Aetna Life & Cas. Co. v. Nelson, 67 N.Y.2d 169, 492 N.E.2d 386, 501 N.Y.S.2d 313 (1986)…………………………………………………………… 4 Blanco v. American Tel. & Tel Co., 90 N.Y.2d 757, 689 N.E.2d 506, 666 N.Y.S.2d 536 (1997)…………………………………………………………... 4 Flanagan v. Mt. Eden General Hosp., 24 N.Y.2d 427, 248 N.E.2d 871, 301 N.Y.S.2d 23 (1969)……………………………………………………………. 5 Fleishman v. Lilly & Co., 62 N.Y.2d 888, 467 N.E.2d 517, 478 N.Y.S.2d 853 (1984)………………………………………………………….. 2 Goldsmith v. Howmedica, Inc., 67 N.Y.2d 120, 491 N.E.2d 1097, 500 N.Y.S.2d 640 (1986)…………………………………………………………... 10 Helgans v. Plurad, 255 A.D.2d 554, 680 N.Y.S.2d 648 (2d Dept. 1998)………... 7 Highby v. Mahoney, 48 N.Y.2d 15, 396 N.E.2d 183, 421 N.Y.S.2d 35 (1979)……………………………………………………………. 2 Kronos v. AVX Corp., 81 N.Y.2d 90, 612 N.E.2d 289, 595 N.Y.S.2d 931 (1993)…………………………………………………………… 3 LaBarbera v. New York Eye & Ear Infirmary, 91 N.Y.2d 207, 691 N.E.2d 617, 668 N.Y.S.2d 546 (1998)…………………………………………. 2, 7 Rodriguez v. Manhattan Medical Group, 77 N.Y.2d 217, 567 N.E.2d 235, 566 N.Y.S.2d 193 (1990)…………………………………………………………… 2 Schmidt v. Merchants Despatch Transp. Co., 270 N.Y. 287, 200 N.E.2d 824 (1936)………………………………………………………………. 9 ii {01 937 469 .DOC X } 1 Although the plaintiffs have submitted a lengthy brief in response to the defendants’ appeals, their argument does little to address the central question that brings this case before the Court: by what authority may a court expand the applicable statute of limitations beyond what the Legislature has very specifically set forth in the governing law it has drafted? It is our position on this appeal that the four corners of the statute must be followed, and that if any change or “expansion” of time in which to bring a lawsuit is going to be allowed, it must be expressly allowed by the legislative branch. Whatever alleged unfairness may be claimed by the respondents, they have submitted nothing to refute this basic proposition. LEGAL ARGUMENT1 Adherence to the Statutory Scheme As the defendants showed in their initial briefs, this Court has repeatedly rejected prior attempts to read the precise language of CPLR §214-a in an expansive manner. For medical malpractice actions, that statute unambiguously provides that, but for two exceptions (governing foreign bodies and continuous treatment) that are not pertinent to the facts in the case at bar, a cause of action 1 We would again note that we have read and digested the brief submitted in reply by our codefendant, RMA, and we would ask that the Court consider all arguments in that brief as fully incorporated herein. {01 937 469 .DOC X } 2 accrues as of the date of the “act, omission or failure complained of,” and any lawsuit must be commenced within two-and-a-half years thereafter. Here, the plaintiffs admit that the “failure complained of” focuses on the defendants’ alleged failure to test an egg donor for Fragile X, nor do they dispute that the lawsuit was brought more than two-and-a-half years after the accrual date. They further do not seem to dispute that this is a medical malpractice case, one involving an alleged deviation from the accepted standard of care by professionals with expertise in a particular field of medicine. Nevertheless, the plaintiffs insist, the Court should not apply the law the way it reads in black and white. Yet this Court’s jurisprudence says quite the opposite. Repeatedly, this Court has stated that the law must be applied as written, that even if seeming “unfairness” is the result, the courts have no ability to apply the statute of limitations beyond the scope of the instructions in the statute’s plain wording, and that if any changes are going to be made to how the statute applies, those changes must come from the Legislature. That, certainly, was the import of LaBarbera v. New York Eye & Ear Infirmary, 91 N.Y.2d 207, 691 N.E.2d 617, 668 N.Y.S.2d 546 (1998), Highby v. Mahoney, 48 N.Y.2d 15, 396 N.E.2d 183, 421 N.Y.S.2d 35 (1979), and Fleishman v. Lilly & Co., 62 N.Y.2d 888, 467 N.E.2d 517, 478 N.Y.S.2d 853 (1984), all cases discussed in our original brief, and all cases conspicuously ignored by the respondents. It is true, too, of Rodriguez v. {01 937 469 .DOC X } 3 Manhattan Medical Group, 77 N.Y.2d 217, 567 N.E.2d 235, 566 N.Y.S.2d 193 (1990), which the plaintiffs try to factually distinguish without once mentioning the Court’s warning in that case, in which it held that it was “duty bound” to reject readings of CPLR §214-a that were “plainly inconsistent” with the legislative intent of limiting and controlling the time period in which malpractice actions can be commenced. Not having anything to say about these prior warnings against legislatively unauthorized expansions of the statute of limitations, a good portion of the respondents’ brief therefore falls into discussion of non-medical malpractice cases, in which the language of the applicable statute of limitations is not nearly as precise as the wording of CPLR §214-a. For example, the plaintiffs cite to Kronos v. AVX Corp., 81 N.Y.2d 90, 612 N.E.2d 289, 595 N.Y.S.2d 931 (1993), a claim of tortious inducing a party in to breach of contract, in which the accrual of time was measured not by CPLR §214- a, but rather by CPLR §214(4). The difference is significant, and dispositive. Thus, the Court in Kronos noted that, “a tort cause of action cannot accrue until an injury is sustained….That, rather than the wrongful act of defendant or discovery of the injury by the plaintiff, is the relevant date for marking accrual.” 81 N.Y.2d at 94. The language of CPLR §214-a, on the other hand, is concrete is stating that, for medical malpractice, accrual is indeed measured from the wrongful act. {01 937 469 .DOC X } 4 The plaintiffs also focus on Blanco v. American Tel. & Tel Co., 90 N.Y.2d 757, 689 N.E.2d 506, 666 N.Y.S.2d 536 (1997), a product liability case involving multiple plaintiffs suing a variety of computer keyboard manufacturers, all claiming to have suffered a repetitive stress injury due to the defective design of the keyboards. The statute of limitations in that case, however, was not governed by CPLR §214-a, but was rather controlled by CPLR §214, a statute that does not explicitly set forth when the cause of action accrues (in marked contrast to the medical malpractice statute). It was because the case involved a different, nonspecific statute regarding the limitation of time in which to bring suit that this Court was able to look to case law holding that accrual should be measured by “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.” 90 N.Y.2d at 767, quoting Aetna Life & Cas. Co. v. Nelson, 67 N.Y.2d 169, 492 N.E.2d 386, 501 N.Y.S.2d 313 (1986). In doing so, the Court again emphasized the need to “give deference to the legislature,” while at the same time needing to craft a rule when the Legislature had not yet written a statute governing the accrual of “new categories of tort claims and injuries.” The ability of the courts to interpret the accrual date for statute of limitations purposes absent statutory instruction is not something we challenge. Here, however, we have statutory instruction that unambiguously measures the running {01 937 469 .DOC X } 5 of the statute of limitations in medical malpractice cases from the date of the alleged wrong. This is something the plaintiffs clearly fail to understand, as demonstrated by their argument that Flanagan v. Mt. Eden General Hosp., 24 N.Y.2d 427, 248 N.E.2d 871, 301 N.Y.S.2d 23 (1969), signifies this Court’s willingness to “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.” What the plaintiffs fail to remember is that at the time of the Flanagan decision in 1969, there was no CPLR §214-a, and the accrual time for medical malpractice actions was a judicial creation, since the Legislature had not yet spoken. As this Court put it: Our decision does not encroach upon any legislative prerogatives. The Legislature did not provide that the Statute of Limitations should run from the time of the medical malpractice. This court did. Therefore, a determination that the time of accrual is the time of discovery is no more judicial legislation than was the original determination. Granted, the Legislature could have acted to change our rule; however, we would surrender our own function if we were to refuse to deliberate upon unsatisfactory court-made rules simply because a period of time has elapsed and the Legislature has not seen fit to act. 24 N.Y.2d at 434 (emphasis added). {01 937 469 .DOC X } 6 Yet this is not 1969. The Legislature has not been silent with regard to the medical malpractice statute of limitations for many decades now. The Legislature has very specifically delineated how and from when to compute the running of the statute of limitations in medical malpractice cases. When it has seen fit to do so, the Legislature has carved out exceptions to the statute and given instruction for how to compute the accrual date in cases of retained foreign bodies or continuous treatment circumstances. As importantly, and as pointed out in the original briefs, the Legislature has had before it multiple attempts to further expand the malpractice statute of limitations to encompass a “discovery rule,” and has consistently rejected those proposals. This case is hardly the first “wrongful birth” case in the State. Indeed, the defendants’ original briefs contained a detailed history of these claims. If the Legislature wants to someday re-write the CPLR so that the statute of limitations in such cases is measure from birth, rather than from the date of the act or omission complained of (as the statute now reads), it is perfectly free to do so. Until that time, however, we submit that the courts are no more free to impose their own re- working of the plain language of the statute than they would be to independently themselves create a “discovery” rule. Can strict adherence to the language crafted by the Legislature sometime yield harsh, or even unfair, results? Of course. The same could be said of the {01 937 469 .DOC X } 7 plaintiff with a failure to diagnose cancer claim who does not even learn he or she has cancer until more than two-and-a-half years after a misdiagnosis occurred. As pointed out previously, the harsh result cannot as a matter of law alter the statute of limitations. The Legislature enacts these statutes after careful consideration, knowing it has to balance the needs of litigants on all sides, both plaintiffs and their right to redress a wrong, and defendants and their right to not having claims against them run in some indeterminate, open-ended fashion. See, e.g., LaBarbera, supra; Helgans v. Plurad, 255 A.D.2d 554, 680 N.Y.S.2d 648 (2d Dept. 1998). The courts, we submit, have no right to alter this balance once the Legislative branch has spoken. To do so based on the facts of this case would be especially egregious, because a “strict” adherence to legislative intent and the language of CPLR §214-a did not necessarily have to result in a situation in which the plaintiffs were nonsuited. The plaintiffs in the case at bar had ample time to commence this lawsuit after they first discovered that their child carried the Fragile X mutation. Why they chose not to is something that remains unexplained. The Irrelevance of Damages in Determining the Timeliness of the Claim The plaintiffs insist that the fact that the parents in the case at bar (to whom the “wrongful birth” claim belongs) would not sustain any damages until after their child was born should for some reason be controlling. This is unpersuasive for both factual and legal reasons. {01 937 469 .DOC X } 8 Factually, when parents in a wrongful birth claim start to sustain damages, or begin expending the “extraordinary” costs associated with raising their child, is necessarily something that varies widely on a case-by-case basis. There are situations, as in the case now before the Court, where those expenses do not start occurring until a considerable period after the time of birth. That does not mean the cause of action starts to accrue once the parents lay out the first dollar in extraordinary costs. Conversely, it is easy to picture a factual scenario in which, unlike the plaintiffs here, the parents are informed of a similar act of alleged malpractice (failure to screen for a genetic abnormality) before the child is born, and then start incurring extraordinary expenses in anticipation of the care they feel their child will need as soon as they bring the baby home, be it by buying equipment, installing at-home monitoring or other devices, purchasing special clothes, or anything else. We assume our adversaries would admit that these are compensable items of damages in a wrongful birth case, even if that pecuniary loss happened before birth. Why, then, should the accrual date be measured by birth if it is at least theoretically possible to incur compensable loss before that time? As a legal matter, the fact that damages may not be known at the time a medical malpractice cause accrues for statute of limitations purposes has never acted as a type of toll on the time needed to commence the lawsuit. This is, again, {01 937 469 .DOC X } 9 most easily seen in “failure to diagnose” case. There is no dispute that, in those cases, the statute of limitations begins to run at the time of the missed diagnosis, and that remains true even if the damage that results is not known for months or even years thereafter. This has been true as far back as a case strangely relied on by the plaintiffs, Schmidt v. Merchants Despatch Transp. Co., 270 N.Y. 287, 200 N.E.2d 824 (1936), which was not a medical malpractice case, and which was obviously written well before the enactment of CPLR §214-a, but which nevertheless held that while a cause of action accrues only when the wrongful act produces an injury (which, again, is no longer the case in medical malpractice actions), still concluded “[t]hat does not mean that the cause of action accrues only when the injured person knows or should know that the injury has occurred. The injury occurs when there is a wrongful invasion of personal or property rights and then the cause of action accrues.” 270 N.Y. at 300. Here, the “invasion of personal…rights” occurred at the time of treatment, prior to the infant’s birth, when the plaintiffs were denied the right to refuse use of donor eggs that the defendants had allegedly not had screened for Fragile X. That was the “injury,” not the fact that at some unspecific point in the future expenses would be incurred as a result of that injury. {01 937 469 .DOC X } 10 This Court has, much more recently, addressed this idea head-on, and has still rejected the idea that there should be some kind of exception to the CPLR’s express language regarding the accrual and timeliness of a medical malpractice action because it might sometimes “effectively foreclose[] an action against the doctor before any injury has been suffered.” Thus, in Goldsmith v. Howmedica, Inc., 67 N.Y.2d 120, 491 N.E.2d 1097, 500 N.Y.S.2d 640 (1986), the Court wrote: The argument is not new. We have carefully considered it on numerous occasions. In each, we weighed the detriments of such a result against the effect of potentially open-ended claims upon the repose of defendants and society, and held that the Statute of Limitations must run from the time of the act until the Legislature decrees otherwise. 67 N.Y.2d at 123-24. In the case at bar, of course, the Legislature has not decreed otherwise, and the timeliness of the action must still thus be measured “from the time of the act.” The act(s) in this case are precisely what the plaintiffs have already alleged: failure to screen for Fragile X, and failure to inform the plaintiffs that the donor egg had not been so screened. There is no dispute that this action was commenced more than two-and-a-half years later, and indeed more than two- and-a-half years from the last date on any treatment by the defendants. It is therefore untimely on its face, and the Court should not go beyond the express language of the CPLR to rule otherwise. {01 937 469 .DOC X } 11 CONCLUSION For the reasons set forth above and in the defendants’ original briefs, it is respectfully submitted that the Appellate Division plainly erred in ignoring the express language of CPLR §214-a in holding that the statute of limitations in a “wrongful birth” case should be measured from the date of birth, rather than from the date of the alleged act or omission complained of. This Court should thus reverse, and dismiss the plaintiffs’ complaint as untimely. Dated: New York, New York February 16, 2017 Respectfully submitted, _______________________________ Elliott J. Zucker, Esq. AARONSON RAPPAPORT FEINSTEIN & DEUTSCH, LLP Attorneys for Defendant-Appellant ALAN B. COPPERMAN, M.D. 600 Third Avenue New York, NY 10016 (212) 593-6700 Nancy Ledy-Gurren, Esq. Of Counsel Ledy-Gurren Bass D'Avanzo & Siff, LLP 475 Park Avenue South, NY 10016 (212) 447-1105