Abigail Ginsberg v. Quest Diagnostics, Incorporated (076288) , 227 N.J. 7 ( 2016 )

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)
Ginsberg v. Quest Diagnostics, Incorporated (A-33/34/53-15) (076288)
Argued September 13, 2016 -- Decided October 26, 2016
(NOTE: The Court did not write a plenary opinion in this case. Instead, the Court affirms the judgment of
the Appellate Division substantially for the reasons expressed in Judge Sabatino’s written opinion, which is
published as Ginsberg ex rel. Ginsberg v. Quest Diagnostics, Inc., 441 N.J. Super. 198 (App. Div. 2015).)
PER CURIAM
In this interlocutory appeal, the Court considers whether the choice-of-law principles set forth in §§ 146,
145, and 6 of the Restatement (Second) of Conflict of Laws (1971) (Restatement) should be applied uniformly to all
defendants in a given case, or whether courts should undertake a defendant-by-defendant choice-of-law analysis
when the defendants are domiciled in different states.
Plaintiffs Tamar Ginsberg and Ari Ginsberg, who are now New Jersey residents, lived in New York during
Tamar’s pregnancy and at the time of the birth of their daughter, Abigail Ginsberg. Abigail tragically died from
Tay-Sachs disease, a genetically inherited, incurable neurological disorder, at the age of three.
Plaintiffs sued a New York laboratory owned and operated by defendant Quest Diagnostics Incorporated
(Quest), a New Jersey-based medical testing company, alleging failure to provide correct blood test results when
plaintiff Ari Ginsberg sought to determine whether he was a Tay-Sachs carrier. Quest, in turn, asserted a third-party
claim against Mount Sinai Medical Center, Inc. (Mount Sinai), a New York hospital, which allegedly tested Ari
Ginsberg’s blood sample in New York pursuant to its contract with Quest. Plaintiffs also sued several New Jersey-
domiciled defendants (the New Jersey defendants), whom they alleged to have provided plaintiff Tamar Ginsberg
with negligent advice and treatment in New Jersey.
Plaintiffs asserted claims for wrongful birth, wrongful life, negligence, negligent hiring, and medical
malpractice. A substantial distinction between New York and New Jersey law with respect to wrongful birth claims
gave rise to the choice-of-law issue at the heart of this case. Although both states recognize a claim premised on a
plaintiff’s lost opportunity to terminate a pregnancy when it is anticipated that the child will suffer from congenital
defects, the two states’ laws differ with respect to the damages that a plaintiff may recover in a wrongful birth case.
New Jersey recognizes damages for emotional injury to the parents as well as for the special medical expenses they
incur in raising their child; New York limits damages to expenses for care and treatment.
Before the trial court, Quest, Mount Sinai, and the New Jersey defendants moved for a determination that
New York law govern the plaintiffs’ claims. The trial court considered itself constrained to apply the law of a single
state to the case and denied defendants’ motion after performing the three-step choice-of-law determination directed
by the Restatement. First, the court determined that there was a genuine conflict between New York and New
Jersey law. Second, it identified the place of injury as New Jersey and determined that New Jersey law would
therefore presumptively govern the case under Restatement § 146. Third, the court found that based on the contacts
set forth in Restatement § 145 and the principles stated in Restatement § 6, the nexus between New York and the
issues and parties in this case failed to overcome the presumption in favor of New Jersey law. Accordingly, the
court held that New Jersey law governs plaintiffs’ claims against all defendants.
The Appellate Division granted leave to appeal and reversed the trial court’s determination in a published
opinion. Ginsberg ex rel. Ginsberg v. Quest Diagnostics, Inc., 441 N.J. Super. 198 (App. Div. 2015). Although the
panel agreed that New Jersey and New York law diverged in material respects, it concluded that New York
constituted the place of injury because it was the state of plaintiffs’ domicile during Tamar’s pregnancy, the state in
1
which prenatal testing would have been conducted and the pregnancy would likely have been terminated, and the
state in which Abigail Ginsberg was born.
The appellate panel then considered the contacts set forth in Restatement § 145 and the principles stated in
Restatement § 6 to determine whether New Jersey has a more significant relationship to the parties and the issues
than New York. The panel rejected the trial court’s assumption that the law of a single state must govern all of the
issues in this lawsuit and instead undertook separate choice-of-law analyses for the New Jersey and New York
defendants. The panel found that the presumption in favor of New York law was overcome with regard to the New
Jersey defendants, but not with regard to Quest and Mount Sinai.
The Court granted the New Jersey defendants’ motion for leave to appeal, challenging the application of
New Jersey law to the claims against them, and plaintiffs’ cross-motion for leave to appeal, challenging the
application of New York law to the claims against Quest and Mount Sinai. 223 N.J. 552 (2015); 223 N.J. 553(2015); 224 N.J. 242 (2016).
HELD: The judgment of the Appellate Division is AFFIRMED substantially for the reasons expressed in Judge
Sabatino’s opinion.
1. The Court agrees with the panel that, in a majority of cases, a defendant-by-defendant analysis furthers the
Restatement principles and provides the most equitable method of resolving choice-of-law questions. First, the
central inquiry under Restatement §§ 146, 145, and 6 focuses the court on the state’s relationship to all parties in a
case, which may lead to different results for defendants who reside in different states. Second, both § 145(2) and § 6
suggest a defendant-specific analysis in assessing whether the presumption in favor of applying the law of the place
of injury has been overcome by directing the court’s attention to each defendant as an individual. Third, a
defendant-specific choice-of law analysis accords with the Court’s longstanding recognition that it is appropriate to
analyze choice-of-law questions on an issue-by-issue basis. (pp. 15-17)
2. The Court observes that in a case such as this, involving the law of only two states, a defendant-by-defendant
approach is unlikely to prove impractical should the matter proceed to trial. The relevant law can be incorporated
into a charge that will guide the jury as it considers the elements of each claim against each defendant. The Court
acknowledges that a defendant-by-defendant choice-of-law analysis is not feasible in every matter and notes that, in
a complex case with many parties from different states, the trial court retains the discretion to decline a defendant-
by-defendant approach and to apply the law of a single state to claims asserted against all defendants. (pp. 17-18)
3. The New Jersey defendants’ concern that they could be held liable for a disproportionate share of an award of
damages for emotional harm is unfounded because, under the New Jersey Comparative Negligence Act, a New
Jersey defendant’s liability for non-economic damages would be limited in accordance with its percentage share of
fault under N.J.S.A. 2A:15-5.2(a)(2). (p. 19)
The judgment of the Appellate Division is AFFIRMED, and the matter is REMANDED to the trial court
for proceedings consistent with this opinion.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-
VINA, SOLOMON, and TIMPONE join in this opinion.
2
SUPREME COURT OF NEW JERSEY
A-33/34/53 September Term 2015
076288
ABIGAIL GINSBERG, an infant,
by her mother TAMAR GINSBERG,
as Guardian ad litem; TAMAR
GINSBERG, Individually; and
ARI GINSBERG, Individually,
Plaintiffs-Respondents
and Cross-Appellants,
v.
QUEST DIAGNOSTICS,
INCORPORATED,
Defendant-Respondent,
and
ANDREW RUBENSTEIN, M.D.;
HACKENSACK UNIVERSITY MEDICAL
CENTER; HACKENSACK UNIVERSITY
MEDICAL CENTER DEPARTMENT OF
PEDIATRICS GENETICS SERVICE;
and JUDITH DURCAN, M.S.,
Defendants-Appellants
and Cross-Respondents,
and
QUEST DIAGNOSTICS,
INCORPORATED,
Third-Party Plaintiff,
v.
THE MOUNT SINAI MEDICAL
CENTER, INC.,
Third-Party Defendant-
Respondent.
1
ABIGAIL GINSBERG, an infant,
by her mother TAMAR GINSBERG,
as Guardian ad litem; TAMAR
GINSBERG, Individually; and
ARI GINSBERG, Individually,
Plaintiffs-Respondents
and Cross-Appellants,
v.
QUEST DIAGNOSTICS,
INCORPORATED,
Defendant-Respondent,
and
ANDREW RUBENSTEIN, M.D.
HACKENSACK UNIVERSITY MEDICAL
CENTER; HACKENSACK UNIVERSITY
MEDICAL CENTER DEPARTMENT OF
PEDIATRICS GENETICS SERVICE;
and JUDITH DURCAN, M.S.,
Defendants-Appellants
and Cross-Respondents,
and
QUEST DIAGNOSTICS,
INCORPORATED,
Third-Party Plaintiff,
v.
THE MOUNT SINAI MEDICAL
CENTER, INC.,
Third-Party Defendant-
Respondent.
2
ABIGAIL GINSBERG, an infant,
by her mother TAMAR GINSBERG,
as Guardian ad litem; TAMAR
GINSBERG, Individually; and
ARI GINSBERG, Individually,
Plaintiffs-Respondents
and Cross-Appellants,
v.
QUEST DIAGNOSTICS,
INCORPORATED,
Defendant-Respondent,
and
HACKENSACK UNIVERSITY MEDICAL
CENTER; HACKENSACK UNIVERSITY
MEDICAL CENTER DEPARTMENT OF
PEDIATRICS GENETICS SERVICE;
and JUDITH DURCAN, M.S.; and
ANDREW RUBENSTEIN, M.D.,
Defendants-Appellants
and Cross-Respondents,
and
QUEST DIAGNOSTICS,
INCORPORATED,
Third-Party Plaintiff,
v.
THE MOUNT SINAI MEDICAL
CENTER, INC.,
Third-Party Defendant-
Respondent.
3
ABIGAIL GINSBERG, an infant,
by her mother TAMAR GINSBERG,
as Guardian ad litem; TAMAR
GINSBERG, Individually; and
ARI GINSBERG, Individually,
Plaintiffs-Respondents
and Cross-Appellants,
v.
QUEST DIAGNOSTICS,
INCORPORATED,
Defendant-Respondent,
and
ANDREW RUBENSTEIN, M.D.;
HACKENSACK UNIVERSITY MEDICAL
CENTER; HACKENSACK UNIVERSITY
MEDICAL CENTER DEPARTMENT OF
PEDIATRICS GENETICS SERVICE;
and JUDITH DURCAN, M.S.,
Defendants-Respondents
and Cross Appellants,
and
QUEST DIAGNOSTICS,
INCORPORATED,
Third-Party Plaintiff,
v.
THE MOUNT SINAI MEDICAL
CENTER, INC.,
Third-Party Defendant-
Respondent.
4
Argued September 13, 2016 – Decided October 26, 2016
On appeal from the Superior Court, Appellate
Division, whose opinion is reported at 441
N.J. Super. 198 (App. Div. 2015).
Ellen L. Casagrand argued the cause for
appellants and cross-respondents Hackensack
University Medical Center, Hackensack
University Medical Center Department of
Pediatrics Genetics Service, and Judith
Durcan, M.S. (Buckley Theroux Kline &
Petraske, attorneys).
Michael R. Ricciardulli argued the cause for
appellant and cross-respondent Andrew
Rubenstein, M.D. (Ruprecht Hart Weeks &
Ricciardulli, attorneys; Mr. Ricciardulli
and Daniel B. Devinney, on the brief).
Victoria E. Phillips argued the cause for
respondents and cross-appellants Abigail
Ginsberg, Tamar Ginsberg, and Ari Ginsberg
(Phillips & Paolicelli, attorneys; Ms.
Phillips and Daniel J. Woodard, on the
briefs).
Thomas J. Cafferty argued the cause for
respondent Quest Diagnostics, Incorporated
(Gibbons, attorneys; Mr. Cafferty, Mark S.
Sidoti, Nomi I. Lowy, and Lauren James-Weir,
of counsel and on the briefs).
Benjamin H. Haftel argued the cause for
respondent The Mount Sinai Medical Center,
Inc. (Vaslas Lepowsky Hauss & Danke,
attorneys).
PER CURIAM
I.
5
When a conflict-of-law question arises in the setting of a
personal injury case, New Jersey courts have used principles set
forth in the Restatement (Second) of Conflict of Laws (1971)
(Restatement). P.V. ex rel. T.V. v. Camp Jaycee, 197 N.J. 132,
135-36 (2008); see also Erny v. Estate of Merola, 171 N.J. 86,
95-97 (2002) (employing Restatement factors in choice-of-law
analysis); Fu v. Fu, 160 N.J. 108, 119 (1999) (same). The
Restatement directs a three-step determination. First, the
court ascertains whether there is a genuine conflict between the
laws of two or more relevant states with regard to a material
issue in the case. Camp Jaycee, supra, 197 N.J. at 143; Rowe v.
Hoffman-La Roche, Inc., 189 N.J. 615, 621 (2007); Gantes v.
Kason Corp., 145 N.J. 478, 484 (1996). Second, if there is such
a conflict, the court identifies the state that is the place of
injury and presumes that the law of that state governs the
action. Restatement § 146; see also Camp Jaycee, supra, 197
N.J. at 141 (noting applicability of Restatement § 146
presumption in New Jersey personal injury actions).
Finally, the court determines whether the presumption in
favor of the law of the place of injury has been overcome by
virtue of a competing state’s “more significant relationship to
the parties and issues.” Camp Jaycee, supra, 197 N.J. at 143.
In assessing the relationship between the other state and the
parties and issues, the court considers a series of “contacts”:
6
(1) “the place where the injury occurred”; (2) “the place where
the conduct causing the injury occurred”; (3) “the domicil[e],
residence, nationality, place of incorporation and place of
business of the parties”; and (4) “the place where the
relationship, if any, between the parties is centered.”
Restatement § 145(2); see also Camp Jaycee, supra, 197 N.J. at
140-41. The court evaluates those contacts “according to their
relative importance with respect to the particular issue.”
Restatement § 145(2); see Camp Jaycee, supra, 197 N.J. at 140-
41, 143; see also Erny, supra, 171 N.J. at 101 (evaluating
contacts for alignment with state policies).
In its determination of whether a competing state bears a
more significant relationship to the issues and parties, the
court also relies on factors identified in Restatement § 6: (1)
“the needs of the interstate and international systems”; (2)
“the relevant policies of the forum”; (3) “the relevant policies
of other interested states and the relative interests of those
states in the determination of the particular issue”; (4) “the
protection of justified expectations”; (5) “the basic policies
underlying the particular field of law”; (6) “certainty,
predictability and uniformity of result”; and (7) “ease in the
determination and application of the law to be applied.”
Restatement § 6. Based on the contacts identified in
Restatement § 145 and the “cornerstone principles of
7
[Restatement §] 6,” the court decides whether the claim will be
decided under the law of the place of injury, in accordance with
the presumption, or under the law of another state. Camp
Jaycee, supra, 197 N.J. at 144, 155.
II.
This interlocutory appeal raises a question not addressed
in our prior choice-of-law jurisprudence: whether a court
should apply the Restatement’s principles uniformly to all
defendants in a given case, or undertake a defendant-by-
defendant choice-of-law analysis when the defendants are
domiciled in different states.
The appeal arises from the trial court’s application of the
Restatement’s choice-of-law rules to the cause of action
asserted by plaintiffs Tamar Ginsberg and Ari Ginsberg against
New York and New Jersey individuals and entities named as
defendants in this matter. Plaintiffs’ claims arose from the
birth, illness, and death of their daughter, Abigail Ginsberg.
When she was seven months old, Abigail was diagnosed with Tay-
Sachs disease, a genetically inherited, incurable neurological
disorder. Tragically, at the age of three, Abigail died of Tay-
Sachs disease.
Plaintiffs, who are now New Jersey residents, lived in New
York during Tamar’s pregnancy and at the time of their
daughter’s birth. They sued a New York laboratory owned and
8
operated by defendant Quest Diagnostics Incorporated (Quest), a
New Jersey-based medical testing company. They alleged that
Quest’s New York laboratory negligently failed to provide
correct blood test results to plaintiff Ari Ginsberg, who sought
genetic testing prior to plaintiffs’ marriage to determine
whether he was a Tay-Sachs carrier. Quest asserted a third-
party claim for indemnification, contribution, and breach of
contract against Mount Sinai Medical Center, Inc. (Mount Sinai),
a New York hospital, based on the allegation that Mount Sinai
tested plaintiff Ari Ginsberg’s blood sample in New York
pursuant to a contract between the hospital and Quest.
Plaintiffs also sued several New Jersey-domiciled
defendants. They alleged that defendant Dr. Andrew Rubenstein
(Dr. Rubenstein), a licensed New Jersey physician, failed to
review Ari Ginsberg’s genetic testing results, and that he
negligently advised and treated plaintiff Tamar Ginsberg in New
Jersey. They also claimed that defendant Judith Durcan, M.S.
(Durcan), a New Jersey genetic counselor; defendant Hackensack
University Medical Center (HUMC), a New Jersey hospital; and
defendant University Medical Center Department of Pediatrics
Genetics Service (Genetics Service), a division of HUMC,
9
negligently advised and treated plaintiff Tamar Ginsberg in New
Jersey.1
Plaintiffs contended that by virtue of defendants’
negligence, they were deprived of critical information about Ari
Ginsberg’s status as a Tay-Sachs carrier. They alleged they
were consequently denied the opportunity to seek prenatal
testing for Tay-Sachs disease and to terminate Tamar Ginsberg’s
pregnancy. They asserted claims for wrongful birth, wrongful
life, negligence, negligent hiring and medical malpractice.
After filing initial pleadings, the parties alerted the
trial court to a significant distinction between New York law
and New Jersey law with respect to plaintiffs’ claims for
wrongful birth. A wrongful birth claim, premised on a
plaintiff’s lost opportunity to terminate a pregnancy when it is
anticipated that the child will suffer from congenital defects,
is recognized in the laws of both states. See Canesi ex rel.
Canesi v. Wilson, 158 N.J. 490, 501-03 (1999) (defining wrongful
birth cause of action under New Jersey law); Schroeder ex rel.
Schroeder v. Perkel, 87 N.J. 53, 66-68 (1981) (same); Becker v.
Schwartz, 386 N.E.2d 807, 813 (N.Y. 1978) (defining wrongful
birth cause of action under New York law); Foote v. Albany Med.
1 Dr. Rubenstein, Durcan, HUMC and Genetics Service are
collectively referred to as the “New Jersey defendants.”
10
Ctr. Hosp., 944 N.E.2d 1111, 1113 (N.Y. 2011) (discussing
limited remedies in wrongful birth actions under New York law).
However, the two states’ laws substantially differ with
respect to the damages that a plaintiff may recover in a
wrongful birth case. New Jersey recognizes damages for “the
emotional injury of the parents” and “the special medical
expenses attributable to raising a child with a congenital
impairment” but not damages for “the birth defect or congenital
impairment itself.” Canesi, supra, 158 N.J. at 502 (citing
Schroeder, supra, 87 N.J. at 70; Berman ex rel. Berman v. Allan,
80 N.J. 421, 429-30, 433-34 (1979)). New York, in contrast,
limits damages in wrongful birth cases to “the pecuniary expense
which [the parents] have borne, and . . . must continue to bear,
for the care and treatment of their infants” and New York
specifically bars damages for “psychic or emotional harm”
resulting from the birth of the child “in an impaired state.”
Becker, supra, 386 N.E.2d at 813; see also Alquijay ex rel.
Alquijay v. St. Luke’s-Roosevelt Hosp. Ctr., 473 N.E.2d 244,
245-46 (N.Y. 1984) (limiting damages to pecuniary expenses).
That distinction between New Jersey and New York law gave rise
to the choice-of-law issue at the heart of this case.
Before the trial court, Quest, Mount Sinai and the New
Jersey defendants moved for a determination that New York law
govern plaintiffs’ claims against them. After authorizing
11
discovery on the choice-of-law dispute, the trial court denied
defendants’ motion to apply New York law. Significantly, the
trial court considered itself constrained to apply the law of a
single state to all of the claims and defenses asserted in this
case. Acknowledging the conflict between New Jersey and New
York law as applied to this case, the court reasoned that, for
purposes of conflict-of-law analysis, New Jersey was the place
of injury and, accordingly, New Jersey law was presumed to
govern this case. The trial court further found that based on
the contacts set forth in Restatement § 145, and the principles
stated in Restatement § 6, the nexus between New York and the
issues and parties in this case failed to overcome the
presumption in favor of New Jersey law. Accordingly, the court
held that New Jersey law governs plaintiffs’ claims against all
defendants.
An Appellate Division panel granted defendants’ motions for
leave to appeal and reversed the trial court’s determination in
a published opinion written by Judge Sabatino. Ginsberg ex rel.
Ginsberg v. Quest Diagnostics, Inc., 441 N.J. Super. 198 (App.
Div. 2015). The panel concurred with the trial court that New
Jersey and New York law diverged in material respects. Id. at
223-24. It concluded, however, that New York, not New Jersey,
constituted the place of injury for purposes of Restatement
§ 146. Id. at 227. The panel reasoned that New York was the
12
state of plaintiffs’ domicile during Tamar Ginsberg’s pregnancy,
the state in which prenatal testing would have been conducted
had plaintiffs been aware of Ari Ginsberg’s status as a Tay-
Sachs carrier, the state in which the pregnancy would likely
have been terminated, and the state in which Abigail Ginsberg
was born. Ibid. In accordance with Restatement § 146, the
panel presumed that New York law governed this case.
The Appellate Division panel then considered the contacts
set forth in Restatement § 145 and the principles stated in
Restatement § 6 to determine whether New Jersey has a more
significant relationship to the parties and issues than does the
place of injury, New York. Id. at 228-29. In that regard, the
panel rejected the trial court’s assumption that the law of a
single state must govern all of the issues in this lawsuit. Id.
at 229. It recognized “functional advantages” to a defendant-
by-defendant choice-of-law analysis in cases in which a
plaintiff asserts claims based on “different facts occurring in
different states at different times” and stated that a trial
court should have the discretion to adopt a defendant-specific
choice-of-law approach. Id. at 230. The panel further observed
that a defendant-by-defendant approach is consonant with the
principles stated in Restatement §§ 146, 145 and 6 and adopted
as New Jersey’s choice-of-law framework, and that it serves as a
disincentive to tactical pleading by plaintiffs. See id. at
13
231-34. Noting that such an approach may be unworkable in some
litigation, such as “a mammoth case involving defendants from
dozens of states,” the panel decided that it would be feasible
in this action. Id. at 231-32.
Accordingly, the Appellate Division panel undertook
separate choice-of-law analyses for the New Jersey and New York
defendants. Weighing the contacts enumerated in Restatement
§ 145(2) and the principles of Restatement § 6, the panel found
that the presumption in favor of New York law was overcome with
regard to the New Jersey defendants. Id. at 237-43. It reached
the opposite conclusion as to Quest and Mount Sinai and held
that New York law governed the claims asserted against those
defendants. Id. at 246.
We granted the New Jersey defendants’ motion for leave to
appeal, challenging the application of New Jersey law to the
claims against them, and plaintiffs’ cross-motion for leave to
appeal, challenging the application of New York law to the
claims against Quest and Mount Sinai. 223 N.J. 552 (2015); 223
N.J. 553 (2015); 224 N.J. 242 (2016).
III.
We affirm the Appellate Division panel’s determination,
substantially for the reasons stated in Judge Sabatino’s
thoughtful and comprehensive opinion. The panel properly
articulated the governing Restatement principles and applied
14
those principles to the facts presented in the record.
Ginsberg, supra, 441 N.J. Super. at 223-49.2 We add the
following comments regarding defendant-by-defendant choice-of-
law determinations under New Jersey’s Restatement approach to
conflicts-of-law issues in civil cases.
We concur with the panel that, in the majority of cases, a
defendant-by-defendant analysis furthers the Restatement
principles and provides the most equitable method of resolving
choice-of-law questions. Id. at 229-32; see also Camp Jaycee,
supra, 197 N.J. at 143; Restatement § 146. First, the central
inquiry in the Restatement analysis -- whether the presumption
in favor of the law of the place of injury is overcome under
Restatement §§ 146, 145 and 6 -- focuses the court on the
state’s relationship to the parties, as well as its nexus to the
issues, in the case. Camp Jaycee, supra, 197 N.J. at 143; see
also Restatement § 145(1) (directing determination of which
state has the “most significant relationship to the occurrence
and the parties” under Restatement § 6). The term “parties”
2 Before the trial court and the Appellate Division, the parties
identified a conflict between New York and New Jersey law with
respect to the statute of limitations. See Ginsberg, supra, 441
N.J. Super. at 225-26. The Appellate Division did not rule on
the choice-of-law issue as it applied to the statute of
limitations in light of the trial court’s election not to
address the issue and the parties’ decision not to fully brief
it in these appeals. Id. at 249. Accordingly, we do not
address that issue here.
15
clearly includes not only the plaintiffs, but the defendants and
any third-party defendants. As applied to defendants who reside
in different states, the court’s inquiry under Restatement § 145
may lead to different results.
Second, Restatement §§ 145(2) and 6, which set forth the
contacts and factors guiding the determination of whether the
presumption in favor of the law of the place of injury is
overcome, suggest a defendant-specific analysis. Three of the
four contacts identified in Restatement § 145(2) direct the
court’s attention to each defendant as an individual, not
defendants in the aggregate. See Restatement § 145(2)(b)
(considering place where conduct causing injury occurred);
Restatement § 145(2)(c) (considering parties’ domicil[e],
residence, nationality, place of incorporation and place of
business); Restatement § 145(2)(d) (considering place where
relationship, if any, between parties is centered).
When a court applies the factors set forth in Restatement
§ 6(2), it necessarily considers the nexus between the state and
each defendant. For example, a state’s interest in deterring
its own citizens from engaging in unlawful conduct may be a
pertinent consideration under Restatement § 6(2)(b) (relevant
policies of forum), Restatement § 6(2)(c) (relevant policies and
interests of other interested states), and Restatement § 6(2)(e)
(basic policies underlying particular field of law). Sensient
16
Colors Inc. v. Allstate Ins. Co., 193 N.J. 373, 384 (2008); Fu,
supra, 160 N.J. at 130; Pfizer, Inc. v. Emp’rs Ins. of Wausau,
154 N.J. 187, 201 (1998); HM Holdings, Inc. v. Aetna Cas. & Sur.
Co., 154 N.J. 208, 214 (1998). However, those policies may not
apply if the defendant is domiciled elsewhere.
Similarly, a state may have a strong interest in ensuring
that the expectations of its citizens as to the law that governs
them are met under Restatement § 6(2)(d) (protection of
justified expectations) and Restatement § 6(2)(f) (certainty,
predictability and uniformity of result). Also, in some cases a
state may have little or no interest in protecting the
expectations of nonresident individuals and entities. In short,
for different defendants, a court’s analysis under Restatement
§§ 145(2) and 6 can lead to different conclusions.
Third, we have long recognized that it is appropriate to
analyze choice-of-law questions issue-by-issue, even if that
approach complicates the trial. Camp Jaycee, supra, 197 N.J. at
143; Erny, supra, 171 N.J. at 95-96; Veazey v. Doremus, 103 N.J.
244, 248 (1986). A defendant-specific choice-of-law analysis
does not diverge from our traditional approach to conflicts of
laws or fundamentally alter the trial court’s task.
In a case such as this, involving the law of only two
states, a defendant-by-defendant approach is unlikely to prove
impractical should the matter proceed to trial. By virtue of
17
the distinct claims asserted against several individuals and
entities, the trial court would be required to instruct the jury
about several different claims even if no choice-of-law issue
had arisen. The application of New York law to some aspects of
the case, and New Jersey law to others, need not unduly
complicate the jury’s determination. Assisted by seasoned
counsel, the trial court will be in a position to incorporate
the relevant law into a charge that will guide the jury as it
considers the elements of each claim against each defendant.
We acknowledge that a defendant-by-defendant choice-of-law
analysis is not feasible in every matter. In very complex cases
with many defendants and multiple claims, a defendant-specific
choice-of-law analysis may generate a jury charge that is
unwieldy and unclear. We have held that an instruction that
confuses the jury may compromise the fairness of the trial. See
Komlodi v. Picciano, 217 N.J. 387, 409 (2014) (noting importance
of appropriate and correct jury charges in civil cases); Scafidi
v. Seiler, 119 N.J. 93, 101-02 (1990) (noting potential for
proximate cause charge to mislead jury). In a complex case with
many parties from different states, the trial court retains the
discretion to decline a defendant-by-defendant approach and,
utilizing a Restatement §§ 146, 145 and 6 analysis as described
above, apply the law of a single state to claims asserted
against all defendants.
18
Finally, we note the New Jersey defendants’ concern that
they could be liable for a disproportionate share of an award of
damages for emotional harm, notwithstanding what they
characterize as their minor roles in the events that gave rise
to this action. Their concern is unfounded. In accordance with
the New Jersey Comparative Negligence Act, in negligence and
strict liability actions in which liability is disputed, the
factfinder makes two determinations: (1) the assessment of
damages, under N.J.S.A. 2A:15-5.2(a)(1), and (2) “[t]he extent,
in the form of a percentage, of each party’s negligence or
fault,” N.J.S.A. 2A:15-5.2(a)(2). The trial court is charged to
“mold the judgment from the findings of fact made by the trier
of fact.” N.J.S.A. 2A:15-5.2(d).3 Any verdict in plaintiffs’
favor for emotional distress damages would be molded in
accordance with the jury’s allocation of fault to all
defendants, and a New Jersey defendant’s liability for non-
economic damages would be limited in accordance with its
percentage share of fault, under N.J.S.A. 2A:15-5.2(a)(2).
IV.
3 New York law similarly provides for the molding of a verdict
in cases involving the joint responsibility of tortfeasors. See
N.Y. C.P.L.R. § 1601 (Consol. 1986).
19
The judgment of the Appellate Division is affirmed, and the
matter is remanded to the trial court for proceedings consistent
with this opinion.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN,
PATTERSON, FERNANDEZ-VINA, SOLOMON, and TIMPONE join in this
opinion.
20