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March 22, 1972

Elaine ROSENTHAL, as Executrix of the Estate of Martin C. Rosenthal, Deceased, Plaintiff,
Kenneth W. WARREN and New England Baptist Hospital, Defendants

Croake, District Judge.

The opinion of the court was delivered by: CROAKE


CROAKE, District Judge.

 This is a wrongful death action brought by the widow and Executrix of the Estate of Dr. Martin C. Rosenthal for the alleged negligence and malpractice of defendants with respect to Dr. Rosenthal, now deceased. The action is maintained in this court under diversity jurisdiction 28 U.S.C. § 1332.

 By this motion plaintiff seeks to strike the affirmative defenses of the defendants based on the Massachusetts Death Statute limiting recoverable damages and/or granting partial summary judgment striking the aforesaid affirmative defenses.

 The facts pertinent to this motion are undisputed. The action stems from an operation performed by Dr. Warren upon Dr. Rosenthal in the New England Baptist Hospital (Hospital) in Boston, Massachusetts. Following an examination and diagnosis by Dr. Warren, Dr. Rosenthal was admitted to the Hospital on March 16, 1969. On March 19, 1969 Dr. Warren performed an operation upon Dr. Rosenthal, and on March 27, 1969, while still in the Hospital, Dr. Rosenthal died.

 This Federal court sitting in New York determines this motion concerning a diversity action by applying the choice-of-law rules of the forum state. Klaxon v. Stentor Electric Mfg. Co., 313 U.S. 487, 61 S. Ct. 1020, 85 L. Ed. 1477 (1941); Erie R.R. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938); Patch v. Stanley Works, 448 F.2d 483, 487 (2d Cir. 1971). Pearson v. North East Airlines, 199 F. Supp. 539, 540 (S.D.N.Y. 1961).

 New York has abandoned the strict choice of lex loci delicti as the test of which state law to apply in tort cases. Babcock v. Jackson, 12 N.Y. 2d 473, 240 N.Y.S. 2d 743, 191 N.E. 2d 279 (1963). Though New York has not been entirely consistent in applying subsequent standards, Miller v. Miller, 22 N.Y. 2d 12, 15, 290 N.Y.S. 2d 734, 738, 237 N.E. 2d 877, 879 (1968). The court has indicated that its determination involves consideration of the significant interests which each state may have in the particular issue in question. Tooker v. Lopez, 24 N.Y. 2d 569, 301 N.Y.S. 2d 519, 249 N.E. 2d 394 (1969), Babcock v. Jackson, 12 N.Y. 2d at 481, 484, 191 N.E. 2d at 284, 240 N.Y.S. 2d at 751 (1963).

 By using the significant interests standard, on the issue of whether or not liability exists for an alleged tort, New York has applied the law of the state wherein the alleged tortious conduct occurred. Babcock v. Jackson, 12 N.Y. 2d at 483, 240 N.Y.S. 2d at 750-751, 191 N.E. 2d at 284. The court has reasoned that "it is appropriate to look to the law of the place of the tort so as to give effect to that jurisdiction's interest in regulating conduct within its borders, and it would be almost unthinkable to seek the applicable rule in the law of some other place." Id. see Kilberg v. North East Airlines, Inc., 9 N.Y. 2d 34, 211 N.Y.S. 2d 133, 172 N.E. 2d 526 (1961); see also Heaney v. Purdy, 29 N.Y. 2d 157, 159, 324 N.Y.S. 2d 47, 48, 272 N.E. 2d 550 (1971).

 In contrast to the foregoing, the present motion concerns itself with the extent of liability; that is, with the propriety of applying that part of the Massachusetts Death Statute which would limit recovery to ". . . not less than five thousand nor more than fifty thousand dollars, to be assessed with reference to the degree of his culpability . . ." Mass. Gen. L. Ch. 229, § 2, or applying New York law which places no fixed limit on recovery N.Y. Estates, Powers & Trusts L., McKinney's Consol. Laws, c. 17-b, 5-4.3; N.Y. Constitution Article I, § 16. The courts have had occasion to discuss the issue that now confronts this court. Gore v. Northeast Airlines, Inc., 373 F.2d 717 (2d Cir. 1967); Pearson v. Northeast Airlines, Inc., 309 F.2d 553 (2d Cir.) (en banc), cert. denied, 372 U.S. 912, 83 S. Ct. 726, 9 L. Ed. 2d 720 (1962); Tooker v. Lopez, supra ; Miller v. Miller, 22 N.Y. 2d 12, 290 N.Y.S. 2d 734, 237 N.E. 2d 877 (1968); Long v. Pan American World Airways, Inc., 16 N.Y. 2d 337, 266 N.Y.S. 2d 513, 213 N.E. 2d 796 (1965); Babcock v. Jackson, supra ; Kilberg v. Northeast Airlines, supra.

 In not one of the above-cited cases, nor in any case not cited above but mentioned by the parties, has the New York Court of Appeals applied a statute which would impose a limitation on recovery in an action by a New York plaintiff for the death of a New York decedent.

 At the time of Dr. Rosenthal's death, plaintiff, the decedent and their children were domiciliaries of New York. Plaintiff and her children are still domiciled in New York. The estate is being administered in New York. The action against the Hospital was brought in the Supreme Court of the State of New York and removed to this forum on grounds of diversity of citizenship. Plaintiff obtained quasi in rem jurisdiction over Dr. Warren by attaching the obligation of his liability insurance policy to defend and indemnify, held by an insurance company with offices in New York. See Seider v. Roth, 17 N.Y. 2d 111, 269 N.Y.S. 2d 99, 216 N.E. 2d 312 (1966).

 The fact that Massachusetts is the state in which the alleged wrongdoing occurred, where the alleged tortfeasor resides, and where the defendant hospital is located, is not without significance in the present determination. Yet, these factors must be placed in their proper perspective. Neither the Hospital nor the defendant doctor are strictly local entities. The defendant Hospital encouraged and solicited business out of state, including the solicitation of New York residents. According to the 1969 annual report of the Hospital, about one-third of the patients were out of state, and approximately eight per cent were from New York.* The aforesaid report denotes Dr. Warren as a member of two of the hospital committees, a member of the corporation, and on the Board of Trustees. It is asserted without contradiction that Dr. Warren, currently Surgeon-in-Chief of the Hospital, is a well-known physician and surgeon treating many patients who originate from places beyond the borders of Massachusetts.

 New York has expressed its concern as to the limitation of recovery for the death of a New Yorker. Article I, Section 16 of the New York Constitution provides in pertinent part:

The right of action now existing to recover damages for injuries resulting in death, shall never be abrogated; and the amount recoverable shall not ...

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