action, the case involves a "split domicile" situation.
The rule that differs in the two jurisdictions concerns the available remedies in a wrongful death action, which is unquestionably a "loss allocation" rule. See Schultz, 65 N.Y.2d at 198, 491 N.Y.S.2d at 96; Barkanic, 923 F.2d 957. Thus, the question is which loss allocation rule to apply -- that of North Carolina or that of New York.
Both Dr. Brown and Ms. Mascarella suggest that the third Neumeier rule applies to the case at bar. This rule applies where the parties are domiciled in separate states and the locus of the tort is yet another state. Under this rule, the law of New York -- the locus of the tort -- would govern the action, unless "displacing it 'will advance the relevant substantive law purposes without impairing the smooth working of the multistate system or producing great uncertainty for litigants.'" Schultz, 65 N.Y.2d at 201, 491 N.Y.S.2d at 98 (quoting Neumeier v. Kuehner, 31 N.Y.2d 121, 128, 335 N.Y.S.2d 64, 286 N.E.2d 454 (1972)). North Carolina's interest in this matter is in seeing that its decedents are compensated for certain types of harm. While these interests may be important, they "do not go to the heart of this lawsuit, a malpractice action arising out of alleged conduct in New York." Habrack v. Kupersmith, 1988 WL 102037 (S.D.N.Y. 1988). The Court thus finds that any interests that North Carolina may have in the application of its wrongful death laws are insufficient to displace New York law.
The Court notes, however, that the third Neumeier rule was applied in Schultz because the locus of the tort was separate from either party's domicile. Moreover, the language and context of the rule itself supports such an application. Here, however, the locus of the alleged malpractice is the same as Dr. Brown's domicile. Therefore, the more appropriate rule would appear to be the first part of the second Neumeier rule, which states that the law of the locus state applies if the tortfeasor is domiciled in that state and the other party has a different domicile. Here, the alleged malpractice occurred in New York, the state of Dr. Brown's domicile, but the plaintiff is domiciled elsewhere. Thus, even assuming Ms. Mascarella to be a North Carolina domiciliary, no additional liability should be imposed under North Carolina law -- New York law governs the wrongful death action. See Barkanic v. General Admin. of CAAC, 923 F.2d 957 (2d Cir. 1991) (Chinese wrongful death damage limitations applies where defendant's conduct occurred in China, its domicile, even though decedents were domiciled elsewhere). Moreover, there is no reason to displace New York law, especially since the second Neumeier rule is even more categorical than the third. Neumeier, 31 N.Y.2d 121, 128, 335 N.Y.S.2d 64, 70, 286 N.E.2d 454.
Thus, the Court finds that New York law governs the availability of damages in Ms. Mascarella's wrongful death action against Dr. Brown, whether the second or third Neumeier rule applies, and the second count of the First Amended Complaint should be dismissed to the extent that it relies on North Carolina law.
E.R. Squibb's motion for summary judgment is DENIED. Dr. Brown's motion to dismiss the second count of the First Amended Complaint insofar as it relies on North Carolina wrongful death law is GRANTED, and the plaintiffs may submit a Second Amended Complaint modifying the second count in accordance with this order within 20 days.
Dated: New York, New York
February 5, 1993