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February 5, 1993

JUSTINE MASCARELLA, Individually and as Administratrix of the Estate of NEALA MASCARELLA, Deceased, Plaintiff,
ANNETTE M. BROWN, M.D., Defendant. ANNETTE M. BROWN, M.D., Third-Party Plaintiff, v. E.R. SQUIBB & SONS, INC. and ELISSA SANTORO, M.D., Third-Party Defendants.


The opinion of the court was delivered by: SONIA SOTOMAYOR



 Third-Party Defendant E.R. Squibb & Sons, Inc. comes before the Court on a motion for summary judgment to dismiss the Third-Party Complaint against it. In addition, Defendant/Third-Party Plaintiff Annette M. Brown, M.D., moves to dismiss the second count of Plaintiff's First Amended Complaint to the extent that it is premised on the wrongful death law of North Carolina. For the reasons stated below, the motion of E.R. Squibb & Sons, Inc. is DENIED and Dr. Brown's motion is GRANTED.

 I. Background

 The undisputed facts material to these motions are simple. During much of 1989, Neala Mascarella lived in New Jersey and worked for E.R. Squibb & Sons, Inc. ("E.R. Squibb") at its offices in New Brunswick, New Jersey. E.R. Squibb offered its employees a free mammography screening program and Ms. Mascarella participated in it. With the assistance of his staff, Dr. Clayton Leopold performed the mammography at E.R. Squibb's New Brunswick facility, where he is Associate Medical Director.

 During the screening examination, Ms. Mascarella advised Dr. Leopold that her sister had recently died of breast cancer, and Dr. Leopold noted that fact in his medical records. Dr. Leopold's office then forwarded Ms. Mascarella's mammogram films to Dr. Annette Brown, an independent contractor radiologist in New York, for reading.

 Several months after Ms. Mascarella had filed her state suit, she commenced this federal action against Dr. Brown for failure to diagnose her breast cancer. In June of 1992, Dr. Brown filed a Third-Party Complaint seeking indemnity and contribution from E.R. Squibb, claiming that it had negligently failed to inform her about the history of breast cancer in Ms. Mascarella's family. It is not clear whether Dr. Brown had been informed about Ms. Mascarella's family history of breast cancer, whether such notification would have made any difference in her recommendations to Ms. Mascarella, or whether such recommendations would have altered Ms. Mascarella's self-monitoring behavior.

 At some time after Ms. Mascarella left E.R. Squibb's employment at the end of 1989, she moved to North Carolina. She died there on September 27, 1992, approximately one year after this action was filed. The Court subsequently permitted the filing of a First Amended Complaint substituting Ms. Mascarella's daughter as Administratrix and adding a wrongful death cause of action as a second count. The second count states that the Administratrix "commences this action for all losses suffered as a result of death by wrongful act pursuant to North Carolina's Statutes 28 A-18-2, including but not limited to" various damages listed in the statute. Dr. Brown has moved to dismiss that portion of the First Amended Complaint which relies on North Carolina's wrongful death statute.


 A. E.R. Squibb's Motion for Summary Judgment

 Under Fed. R. Civ. P. 56(c), summary judgment is appropriate if the evidence demonstrates that "there is no genuine issue as to any material fact and [that] the moving party is entitled to judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202 (1986). "The judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Id. Thus, the Court must perform "the threshold inquiry of determining whether there is the need for a trial -- whether, in other words, there are any genuine factual issues that properly can be resolved only be a finder of fact because they may reasonably be resolved in favor of either party." Id. In determining whether there is a genuine issue of material fact, a court must resolve all ambiguities, and draw all reasonable inferences, against the moving party. See United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S. Ct. 993, 994, 8 L. Ed. 2d 176 (1962) (per curiam); Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 57 (2d Cir. 1987).

 E.R. Squibb argues that New Jersey law governs the third-party action against it, and that it is entitled to judgment as a matter of law because New Jersey's worker compensation laws preclude third-party claims for contribution and indemnification against a plaintiff's employer. See Ramos v. Browning Ferris Industries, 103 N.J. 177, 510 A.2d 1152, 1155 (N.J. 1986) (contribution); Stephenson v. R.A. Jones & Co., Inc., 103 N.J. 194, 510 A.2d 1161, 1163 (N.J. 1986) (indemnification). Not surprisingly, Dr. Brown argues that her third-party claim is governed by New York law, which recognizes third-party claims against a plaintiff's employer. See, e.g., Iannielli v. Serota, 169 A.D.2d 704, 564 N.Y.S.2d 189 (2d Dept.), appeal denied, 77 N.Y.2d 809, 571 N.Y.S.2d 912 (1991); 1974 Judicial Conference Report to 1974 Amendments of N.Y. CPLR 1401. Thus, E.R. Squibb's motion presents a choice of law question.

 A federal district court must apply the choice of law rules of the state in which it resides. Klaxon Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487, 61 S. Ct. 1020, 85 L. Ed. 1477 (1941); AroChem International, Inc. v. Buirkle, 968 F.2d 266, 269 (2d Cir. 1992). Therefore, New York's choice of ...

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