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ROSENTHAL v. WARREN

April 15, 1974

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


Bauman, District Judge.


The opinion of the court was delivered by: BAUMAN

BAUMAN, District Judge.

The motion before the court presents the following difficult, and at once intriguing question: would New York apply the Massachusetts doctrine of charitable immunity in a wrongful death action, brought by a New York decedent's estate, to recover damages for alleged medical malpractice in Massachusetts by residents of that state. Defendant, New England Baptist Hospital (hereinafter "the Hospital"), a Massachusetts charitable corporation, has asserted this doctrine as an affirmative defense. I am now confronted with plaintiff's motion to strike.

 I.

 The relevant facts are not disputed. Decedent, a New York physician, traveled to Boston for medical examination and diagnosis by defendant Warren, subsequent to which he entered the Hospital for surgery. On March 27, 1969, eight days after the operation performed by Dr. Warren, Rosenthal died.

 Plaintiff, decedent's executrix, sued Dr. Warren and the Hospital in the state courts of New York, alleging malpractice and seeking damages in the amount of $1,250,000. Based on diversity the action was properly removed to this court.

 Defendants initially attempted to avail themselves of the Massachusetts wrongful death statute which limits recoverable damages in such action to ". . . not less than five thousand, nor more than fifty thousand dollars". *fn1" Judge Croake granted plaintiff's motion to strike this affirmative defense on the ground that the New York courts, *fn2" faced with such a fact situation, would apply New York law which places no limitation on recoverable damages in such cases. *fn3" Rosenthal v. Warren, 342 F. Supp. 246 (S.D.N.Y. 1972). This ruling was appealed, prior to final judgment, to our Court of Appeals pursuant to 28 U.S.C. ยง 1292(b) where the majority, in affirming, held that under New York choice of law rules, the Massachusetts law would not be applied to limit recoverable damages. 475 F.2d 438 (2d Cir. 1973). *fn4" Having concluded that New York follows an "interest analysis" approach, *fn5" Judge Oakes formulated the test to be applied:

 
". . . as we view it, the New York courts would balance against the New York interest in protecting its domiciliaries against wrongful death limitations the interest of Massachusetts in limiting damages for wrongful deaths allegedly caused by Massachusetts citizens or occurring in Massachusetts." Rosenthal v. Warren, 475 F.2d at 444.

 Following a thorough examination of New York law on the subject of limitation of damages in wrongful death actions the court concluded:

 
"In any event it is our considered view that the New York Court of Appeals would view the Massachusetts limitation . . . as so 'absurd and unjust ' that the New York policy of fully compensating the harm from wrongful death would outweigh any interest Massachusetts has in keeping down in this limited type of situation the size of the verdict . . . . Thus the anachronistic concept embodied in the Massachusetts act is hardly one that the New York courts can be expected to embrace in the case of the death of a New York domiciliary with whose wife and children New York is vitally concerned. [citation omitted]. The New York policy favors 'a just recovery ' and 'principles of fair play ' [citation omitted] . . . which would not be furthered by applying the idiosyncratic Massachusetts law here. Our educated guess as to what the New York courts would do is to . . . apply the New York law of damages." Id. at 445-446.

 The case thereafter appeared on my docket for trial, *fn6" and I permitted the Hospital to amend its answer in order to plead the defense of charitable immunity under Massachusetts law which plaintiff now moves to strike. *fn7"

 Obviously the key issue here is whether the Court of Appeals' decision in Rosenthal, regarding the inapplicability of the Massachusetts wrongful death recovery limitation, compels the same decision with respect to the charitable immunity defense. The resolution of this vexing question requires a careful scrutiny of the factors considered decisive by that court, as well as a re-examination of New York law in view of the different public policy considerations presented here.

 No New York decision dealing with the charitable immunity doctrine of a foreign state has reached the choice of law question since the rejection of the rigid lex loci delicti approach by Babcock v. Jackson, 12 N.Y. 2d 473, 240 N.Y.S. 2d 743, 191 N.E. 2d 279 (1963). *fn8" What faces me then, is a question not previously addressed by this court, the New York Court of Appeals or the Second Circuit.

 II.

 New York's "interest analysis" approach to choice of law problems was first enunciated by Judge Fuld in Babcock v. Jackson, supra, which sounded the death knell of the rigid rule that the law of the place of the tort inevitably governs. Looking toward achieving "justice, fairness and the best practical result" the New York Court of Appeals directed that courts give "controlling effect to the law of the jurisdiction which, because of its relationship or contact with the occurrence or the parties has the greatest concern with the specific issue raised in the litigation." *fn9" As it went on to say "the merit of such a rule is that it gives to the place having ...


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