                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-18-2007

Warriner v. Stanton
Precedential or Non-Precedential: Precedential

Docket No. 05-3435




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                                      PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT


                    No. 05-3435


        ROBERT TROY WARRINER, JR.,
             by his guardian ad litems
     R. Troy Warriner, Sr. and Teresa Warriner;
           R. TROY WARRINER, SR.;
        TERESA WARRINER, individually,

                                     Appellants
                          v.

          ROBERT P. STANTON, M.D.;
        ALFRED I. DUPONT HOSPITAL
     FOR CHILDREN OF THE DE NEMOURS
FOUNDATION a/k/a ALFRED I. DUPONT HOSPITAL
 FOR CHILDREN; ALFRED I. DUPONT INSTITUTE
       OF THE NEMOURS FOUNDATION;
      THE NEMOURS FOUNDATION, INC.


   On Appeal from the United States District Court
             for the District of New Jersey
                (D.C. No. 03-cv-02211)
   District Judge: Honorable Jerome B. Simandle
             Argued September 11, 2006
Before: FUENTES, FISHER and BRIGHT,* Circuit Judges.

                   (Filed January 18, 2007)

Gerarld A. McHugh, Jr.
Martina W. McLaughlin (Argued)
Raynes, McCarty, Binder, Ross & Mundy
1845 Walnut Street, Suite 2000
Philadelphia, PA 19103
      Attorneys for Appellants

Andrew R. Rogoff (Argued)
Pepper Hamilton
18th and Arch Streets
3000 Two Logan Square
Philadelphia, PA 19103
       Attorney for Appellee



                 OPINION OF THE COURT


FISHER, Circuit Judge.
       This is an appeal from an order of the District Court for
the District of New Jersey granting the defendant’s motion for


       *
       The Honorable Myron H. Bright, United States Circuit
Judge for the Eighth Circuit, sitting by designation.

                               2
summary judgment in a diversity action. The sole issue
presented on appeal is whether the District Court erred in its
choice of law analysis. Applying New Jersey’s “governmental
interest” test, which requires a court to consider the nature and
magnitude of each state’s interest in having its law govern a
particular issue, the District Court concluded Delaware had a
stronger interest than New Jersey in seeing its tort statute of
limitations applied to the medical malpractice claim in this case.
Consequently, it dismissed the plaintiffs’ claim as time-barred
under the Delaware statute. For the reasons stated below, we
will affirm the judgment of the District Court.
               I. Factual and Procedural History
       Robert Troy Warriner, Jr., a New Jersey resident, was
born in 1989 with a physical deformity called talipes
equinovarus, more commonly known as “club foot.” This
condition was first diagnosed twelve days after Warriner’s birth
by physician Robert Stanton, a specialist in pediatric orthopedic
surgery at the Alfred I. duPont Hospital for Children (“DuPont
Children’s Hospital”) in Wilmington, Delaware. DuPont
Children’s Hospital is owned by The Nemours Foundation, Inc.
(“Nemours”).1 Over the next several years, between 1989 and
1996, Warriner underwent multiple corrective surgeries
performed by Dr. Stanton at DuPont Children’s Hospital.
Warriner’s suit centers on a final surgery performed in
December of 1996. That surgery involved a procedure called

       1
        The Nemours Foundation is a non-profit organization
created by philanthropist Alfred I. du Pont in 1936. It owns and
operates the Hospital for Children in Wilmington, Delaware, as
well as The Nemours Children’s Clinic in Pensacola, Florida.

                                3
“bilateral tibia and fibula anterior closing wedge osteotomies,”
which Warriner’s parents believed would allow Warriner to
walk independently. The Warriners allege the surgery was
“inappropriately designed” and resulted in an overcorrection that
further hampered their son’s ability to walk. In the aftermath,
Warriner has undergone additional surgeries and physical
therapy.
        In January of 2003, Warriner, by guardians ad litem, filed
a complaint for medical malpractice in New Jersey state court
against Dr. Stanton and his employer, Nemours. Dr. Stanton
was dismissed from the case by agreement of the parties.
Nemours removed the case to federal court and filed a motion to
dismiss on the basis that the case was barred by Delaware’s tort
statute of limitations. The parties entered into a stipulation of
undisputed facts to aid the District Court in determining whether
New Jersey’s or Delaware’s statute of limitations should apply.
That stipulation established the following additional facts. In
1995, Dr. Stanton became licensed in New Jersey at the
instruction of his employer Nemours in order to facilitate
payments from the State of New Jersey for treatment rendered
to New Jersey residents. Dr. Stanton continues to be licensed in
New Jersey and, in order to maintain his license, he takes
continuing education classes each year. Nemours continues to
pay Dr. Stanton’s annual renewal fees and he last renewed his
license in 2003.
       In addition, from September 1998 through May 2001, Dr.
Stanton worked as a pediatric specialist with a widely publicized
new health program opened by Nemours in southern New
Jersey. Dr. Stanton was listed in a professional journal in 2001
as an orthopedic specialist available for appointments at the

                                4
facility. Since 1995, Dr. Stanton has provided medical
treatment to nearly two thousand New Jersey residents at the
southern New Jersey facility, The Nemours Children’s Clinic in
Wilmington, and affiliated sites. Dr. Stanton received his
medical malpractice insurance from The Nemours Foundation
Self-Insurance Trust Fund to cover his medical malpractice
liability. That coverage included medical malpractice claims in
New Jersey as well as Delaware.
         Analyzing the choice of law issue under New Jersey’s
governmental interest test, the District Court determined that
Delaware law was applicable and that, as a result, Warriner’s
claims were time-barred under Delaware’s tort statute of
limitations. The District Court reasoned that New Jersey’s
primary interest in the case arose out of Warriner’s New Jersey
residence, and that that interest was greatly attenuated because
New Jersey had no connection to the events and conduct giving
rise to the lawsuit. By contrast, the District Court observed that
all of the events and conduct giving rise to the litigation
occurred in Delaware, and Delaware had a strong, clearly stated
policy interest in protecting its health care providers through its
statute of limitations. In addition, it rejected Warriner’s
argument that New Jersey’s statute of limitations and its minor
tolling provision should apply because Dr. Stanton retained a
New Jersey medical license and was affiliated with a pediatric
practice in New Jersey. It observed that Dr. Stanton was not
licensed in New Jersey at the time the Warriners began seeing
him in Delaware, and he did not see any patients in New Jersey
until nearly two years after the alleged negligent surgery in this
case. The District Court concluded that Delaware’s strong
governmental interest in seeing its law applied to torts alleged
to have occurred within its borders, committed by physicians

                                5
practicing within those borders, predominated and granted
defendant’s motion for summary judgment.
       Warriner filed a timely appeal.
     II. Statement of Jurisdiction and Standard of Review
       Plaintiffs initially filed an action in New Jersey state
court. Defendants removed the action to the United States
District Court for the District of New Jersey under 28 U.S.C.
§§ 1332 and 1441. We have appellate jurisdiction over the final
judgment of the District Court pursuant to 28 U.S.C. § 1291.
        In reviewing a grant of summary judgment, we apply the
same standard the district court was required to use initially.
Public Interest Research Group of N.J., Inc. v. Powell Duffryn
Terminals, Inc., 913 F.2d 64, 76 (3d Cir. 1990). Summary
judgment is appropriate where “there is no genuine issue as to
any material fact and . . . the moving party is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56. The sole issue
before us on appeal, the District Court’s interpretation and
application of New Jersey’s choice of law rules, is a purely legal
one and therefore subject to plenary review. Simon v. United
States, 341 F.3d 193, 199 (3d Cir. 2003).
                         III. Discussion
A.     New Jersey’s Governmental Interest Test
       It is well established that in a diversity action, a district
court must apply the choice of law rules of the forum state to
determine what law will govern the substantive issues of a case.
Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941).
This diversity action was initiated in the United States District
Court for the District of New Jersey, so the District Court

                                 6
properly turned to New Jersey’s choice of law rules. In tort
cases, New Jersey has rejected the strict lex loci delicti rule for
determining choice of law based on the place where the wrong
occurred and replaced it with the more flexible “governmental
interest” test.2 E.g., Veazey v. Doremus, 510 A.2d 1187 (N.J.
1986); Pfau v. Trent Aluminum Co., 263 A.2d 129 (N.J. 1970);
Mellk v. Sarahson, 229 A.2d 625 (N.J. 1967). Applying that
test, the determinative law is “that of the state with the greatest
interest in governing the particular issue.” Veazey, 510 A.2d at
1189. The governmental interest analysis is fact-intensive:
“Each choice-of-law case presents its own unique combination
of facts – the parties’ residence, the place and type of occurrence
and the specific set of governmental interest – that influence the
resolution of the choice-of-law issue presented.” Erny v. Estate
of Merola, 792 A.2d 1208, 1221 (N.J. 2002).
       Factors drawn from § 145 of the Restatement (Second) of
Conflicts of Law (1971) guide New Jersey courts in applying the
governmental interest test in tort cases. See Fu v. Fu, 733 A.2d
1133, 1140-41 (N.J. 1999). Those factors are grouped as


       2
        Until Heavner v. Uniroyal, Inc., 305 A.2d 412 (N.J.
1973), the New Jersey governmental interest approach applied
only to choices of substantive law. Procedural matters, such as
the appropriate statute of limitations, were governed by forum
law. In Heavner, the New Jersey Supreme Court abandoned the
“mechanical rule” that the New Jersey statute of limitations still
applied in cases where a foreign substantive law was chosen, in
an attempt to discourage forum shopping. Instead, New Jersey
“borrows” the statute of limitations of the state whose
substantive law applies to the case. Heavner, 305 A.2d at 418.

                                7
follows: “(1) the interests of interstate comity; (2) the interests
of the parties; (3) the interests underlying the field of tort law;
(4) the interests of judicial administration; and (5) the competing
interests of the states.” Id. The most important of those factors
in the context of a tort claim is the competing interests of the
states. Id. at 1141. As discussed by the New Jersey Supreme
Court in Fu, the initial focus “should be on what policies the
legislature or court intended to protect by having that law apply
to wholly domestic concerns, and then, whether these concerns
will be furthered by applying that law to the multi-state
situation.” Id.
        Fu also provides guidance in approaching the other four
factors. First and foremost, in evaluating the competing
interests of the states and interstate comity, “the most significant
factor[s] in the tort field,” id. at 1142, a court must consider
“whether application of a competing state’s law would frustrate
the policies of other interested states.” Id. at 1141. Second, in
considering the goals of tort law, a court should measure “the
degree to which deterrence and compensation, the fundamental
goals of tort law, would be furthered by the application of a
state’s local law . . . .” Id. However, “because every tort rule,
to some extent, is designed both to deter and to compensate, it
is necessary to evaluate on a case-by-case basis the relative
weight of those underlying purposes with respect to a specific
rule.” Id. The remaining two factors – the interests of the
parties and judicial administration – are much less significant in
the analysis. Erny, 792 A.2d at 1217. “The protection of the
parties’ justified expectations, a factor of extreme importance in
the field of contracts, ordinarily plays little or no part in a
choice-of-law question in the field of torts.” Fu, 733 A.2d at
1141. This is so because “a person who causes an unintentional

                                 8
injury is not necessarily aware of the law that may be applied to
the consequences of his actions.” Id. In addition, to the extent
the interests of judicial administration conflict with a strong
state policy, “that factor must yield.” Id.
        The governmental interest inquiry proceeds in two steps.
The first step involves determining whether an actual conflict of
law exists between the states involved, Veazey, 510 A.2d at
1189, because “where the application of either state’s law would
yield the same result, no conflict exists to be resolved.” High v.
Balun, 943 F.2d 323, 325 (3d Cir. 1991). In this case, the
parties do not dispute that an actual conflict of law exists. The
District Court was faced with the election of a statute of
limitations from two possible options ! Delaware’s statute of
limitations, under which plaintiff’s claim was time-barred, or
New Jersey’s statute of limitations, under which the claim was
not time-barred because of a tolling provision that preserves a
minor plaintiff’s claim until the minor reaches the age of
eighteen. Since there is no question in this case that an actual
conflict exists, we devote our analysis to the second element of
the governmental interest inquiry which requires that we
“identify the governmental policies underlying the law of each
state and how those policies are affected by each state’s contacts
to the litigation and to the parties.” Veazey, 510 A.2d at 1189.
B.     Policy Interests Underlying Each State’s Statute of
       Limitation
       Looking at the policies that underlie the respective state
statutes of limitation that are in conflict in this case, we find that
the District Court correctly identified the relevant policy
concerns of both New Jersey and Delaware. With respect to the
New Jersey statute, we have consistently “identified New

                                  9
Jersey’s policies in a tort context as consisting primarily of
compensation and deterrence.” Schum v. Bailey, 578 F.2d 493,
496 (3d Cir. 1978). In addition, the New Jersey statute of
limitations, N.J. Stat. § 2A:14-2, including as it does a minor
tolling provision, evinces a desire on the part of New Jersey to
protect “minors who are presumably not well-versed in legal
matters from the adverse consequences of their inexperience.”
LaFage v. Jani, 766 A.2d 1066, 1075 (N.J. 2001) (citation
omitted).
        We can assume Delaware’s statute of limitations, Del.
Code Ann. tit. 18, § 6856, shares New Jersey’s interest in
compensation and deterrence, “[b]ecause every tort rule, to some
extent, is designed both to deter and to compensate.” Fu, 733
A.2d at 1141. However, Delaware’s statute was enacted by the
Delaware legislature with an additional policy concern in mind,
namely concern over a perceived crisis in health care associated
with medical malpractice claims. The Delaware Medical
Malpractice Act was enacted in 1976 “due to the concern over
the law at that time and the rising costs of malpractice liability
insurance,” and specifically addressed the applicable statute of
limitations for medical malpractice claims. Meekins v. Barnes,
745 A.2d 893, 895-96 (Del. 2000). The statute of limitations
was designed to provide “an atmosphere in which the number of
suits and claims of malpractice, as well as the size of judgments
and settlements, would be reduced thereby reducing the cost
and/or maintaining the availability of medical malpractice
insurance for health care providers.” Miller v. Spicer, 822 F.
Supp. 158, 172 (D. Del. 1993); see 60 Del.Laws ch. 373 (1976).
       The introductory paragraphs of the 1976 Act elaborate at
length on the policy goals of the legislation, indicating that the

                               10
main reason for passage of the legislation was the concern over
the rising cost of malpractice liability insurance. 60 Del.Laws
ch. 373.3 The two-year statute of limitations was designed “to
eliminate the uncertainty created by [an] open-ended period of
limitations.” Dunn v. St. Francis Hospital, Inc., 401 A.2d 77, 79
(Del. 1979) (quoting Report of the Delaware Medical
Malpractice Commission, pp. 3-4 (Feb. 26, 1976)). The
Delaware legislature concluded that the uncertainty created by
an open-ended statute of limitations was not only harmful to
health care providers but was also leading to the withdrawal of
health care liability insurers from the state, thus “endangering
the ability of the citizens of Delaware to continue to receive
quality health care as well as adequate and just compensation for
negligent injuries . . . .” Preamble to 60 Del.Laws ch. 373
(1976). To address these various policy concerns, the Delaware
Medical Malpractice Act modified the applicable statute of


       3
         The Delaware Legislature found, in part, that “the
number of suits and claims for damages both in Delaware and
throughout the Nation as well as the necessary costs of defense
and the size of judgments and settlements thereon, arising from
professional patient care have increased tremendously in the
past several years; and . . . there has been a tremendous increase
in the cost of liability insurance coverage for health care
providers in Delaware, and in some instances the withdrawal of
liability insurance companies from the business of insuring
health care providers in Delaware, endangering the ability of the
citizens of Delaware to continue to receive quality health care as
well as adequate and just compensation for negligent injuries .
. . .” Preamble to 60 Del.Laws, ch. 373 (1976).

                               11
limitations for medical malpractice claims and settled on a two-
year statute of limitations.
C.     Relevant Contacts and their Relationship to the Policy
       Interests of Each State
        Having identified the governmental policies underlying
each state’s statutes of limitation, we must next determine “how
those policies are affected by each state’s contacts to the
litigation and to the parties.” Veazey, 510 A.2d at 1189. “[I]f a
state’s contacts [with the transaction] are not related to the
policies underlying its law, then that state does not possess an
interest in having its law apply.” Id. This part of the inquiry
involves an examination of whether the states’ contacts to the
litigation align with the policies identified. Erny, 792 A.2d at
1216.
       In evaluating the contacts in a choice of law context, the
New Jersey Supreme Court has adopted the approach taken by
the Restatement (Second) of Conflict of Laws (“Restatement”)
(1971). Fu, 733 A.2d at 1152 (“Thus, New Jersey now adheres
to the method of analysis set forth in Restatement . . . .”).
Section 145(2) of the Restatement sets forth a list of contacts
that are the most pertinent to the governmental-interest test:
these are (1) the place where the injury occurred; (2) the place
where the conduct causing the injury occurred, (3) the domicile,
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. In this case, those
contacts as stipulated by the parties are as follows:
       1.     Warriner’s alleged injury occurred in
              Delaware.

                               12
       2.     Dr. Stanton’s alleged tortious conduct
              occurred in Delaware.
       3.     Warriner is domiciled in New Jersey; The
              Nemours foundation is incorporated in
              Florida with its principal place of business
              in Wilmington, Delaware.
       4.     Warriner’s ten-year patient-doctor
              relationship with Dr. Stanton was based at
              DuPont Children’s Hospital in
              Wilmington, Delaware. Dr. Stanton never
              treated Robert in New Jersey.
        Apart from those contacts listed in § 145(2), two
additional contacts exist between the parties and the respective
states:
       5.     Dr. Stanton became licensed in New
              Jersey in 1995 in order to facilitate
              collection of payments from New Jersey,
              one year prior to the alleged malpractice.
              He did not see patients in New Jersey until
              two years after the alleged malpractice.
       6.     In 1997, the year following the accident,
              The Nemours Foundation entered into a
              pediatric partnership with AtlanticCare in
              Southern New Jersey. Dr. Stanton was a
              pediatric specialist employed at the
              partnership from September 1998 through
              May 2001. He was listed in a professional
              staff directory as an orthopedic specialist
              available for appointments in New Jersey.

                               13
        Examining these respective contacts, we find the District
Court did not err in concluding Delaware law applied. It
correctly placed special emphasis in this case on the fact that all
of the contact between Warriner and Dr. Stanton occurred in
Delaware. In personal injury cases, the New Jersey Supreme
Court has counseled that “the place where the injury occurred is
a contact that, as to most issues, plays an important role in the
selection of the state of the applicable law.” Fu, 733 A.2d at
1142 (quoting Restatement, § 145 cmt. e). Furthermore, it has
explained that “[w]hen both conduct and injury occur in a single
jurisdiction, with only ‘rare exceptions, the local law of the state
where conduct and injury occurred will be applied’ to determine
an actor’s liability.” Id. (quoting Restatement, § 145 cmt. d).
This general rule is followed because “a state has an obvious
interest in regulating the conduct of persons within its territory
and in providing redress for injuries that occurred there.” Id. In
this case, both the allegedly tortious conduct and injury occurred
in Delaware. In fact, Warriner’s entire treatment history –
beginning a mere twelve days after his birth and extending over
nearly a decade – was based in Delaware and undertaken by a
Delaware doctor. Each of these contacts is relevant to
Delaware’s stated public policy of providing a finite period of
time for medical malpractice claims to require plaintiffs to file
timely claims, particularly when those injuries occur within the
State of Delaware. Most importantly, considering the interests
of interstate comity, it is apparent that the application of New
Jersey’s statute of limitations in this case would directly
contravene Delaware’s clearly articulated interest in shielding
its health care providers from liability for a claim that, under its
own considered judgment, expressed through its statute of
limitations, is unquestionably stale. See Erny, 792 A.2d at 1217

                                14
(“When considering the interests of interstate comity, a court
must determine whether application of a competing state’s law
would frustrate the policies of other interested states.”) (quoting
Fu, 733 A.2d at 1141).
        Furthermore, the fact that all the contacts occurring in
this case were in Delaware takes on even greater significance
considering that they were not fortuitous but rather intentionally
initiated by the Warriners themselves. Id. (“The place of injury
becomes less important where it is simply fortuitous.”).
Warriner elected to travel to Delaware from 1989 until 1998 for
specialized medical treatment and, even after his final surgery
with Dr. Stanton in 1996 and the establishment of a
Nemours-related facility in New Jersey in 1997, continued to
receive medical treatment in Delaware. In the context of a
doctor-patient lawsuit, we have observed that “it is only fair that
the law of the state to which the patient has voluntarily traveled,
and in which the doctor has chosen to [practice], be applied to
adjudicate the respective rights, duties, and obligations between
the parties.” Blakesley v. Wolford, 789 F.2d 236, 243 (3d Cir.
1986). In addition, although Warriner was a resident of New
Jersey at the time of the alleged malpractice, “citizens do not . . .
carry their home state’s laws with them wherever they go.”
Amoroso v. Burdette Tomlin Memorial Hosp., 901 F. Supp. 900,
906 (D.N.J. 1995). Indeed, it is hornbook law that “by entering
the state . . . the visitor has exposed himself to the risks of the
territory and should not expect to subject persons living there to
a financial hazard that their law had not created.” Id. (quoting
D. F. Cavers, The Choice of Law Process 146-47 (1965)).
       We agree with the Warriners that the fact that Dr. Stanton
was licensed in New Jersey prior to the accident is relevant to

                                 15
New Jersey’s public policy goals of deterring tortious conduct
and providing compensation for victims of such conduct.
However, as stipulated by the parties, Dr. Stanton’s New Jersey
license was obtained at the instruction of his employer in order
to facilitate payments rather than for the purpose of practicing
medicine in New Jersey. And while Dr. Stanton did eventually
begin to see patients in New Jersey, it was not until two years
after the date of the alleged malpractice involving Warriner.
Placed in proper perspective, Dr. Stanton’s limited contact with
New Jersey at the time of Warriner’s injury pales in comparison
to the overwhelming number of contacts with Delaware in this
case, and the exceedingly strong and clearly articulated public
policy interest of Delaware in having its law apply to those
contacts.
       In addition, Delaware’s statute of limitations, like all tort
rules, also implicitly reflects a policy interest in deterring
tortious conduct and providing compensation to injured victims,
and Delaware’s own judgment is on equal footing with New
Jersey’s as to how long its health care providers should be
exposed to liability to adequately serve the goals of
compensation and deterrence. Fu, 733 A.2d at 1141 (“Rules . . .
that deny liability are entitled to equal consideration in
choice-of-law determinations as are rules imposing liability.”).
On balance then, it was not erroneous for the District Court to
accord relatively little significance to the fact that Dr. Stanton
has been licensed in New Jersey.4


       4
        We do not disagree with the dissent that the fact that Dr.
Stanton was licensed in New Jersey is a contact of some
significance. However, we do believe the significance of this

                                16
        It is certainly true that New Jersey has a policy interest in
safeguarding the welfare of minors and ensuring they are
compensated for their injuries. And while we agree with
Warriner that this interest is very substantial, we do not agree
that this interest should in effect trump all other factors in the
governmental interest analysis. Warriner suggests that the
substantial weight New Jersey affords this particular interest is
“confirmed by the overriding weight our courts ascribe to a
child’s New Jersey domicile and residency in the choice of law
analysis.” Br. of Appellant, at 17 (quoting Black v. Walker, 684
A.2d 1011, 1017 (N.J. Super 1996)). The authority cited by
Warriner here, however, is taken entirely out of context and is
unpersuasive.5 In Black v. Walker, supra, a New Jersey
appellate court concluded that “family-law precedent . . .


fact is diminished in light of the overwhelming number of
Delaware contacts in this case.
       5
         We note appellants fail to cite case law from the New
Jersey Supreme Court for many of their propositions, including
the one discussed here. In construing state law, “we must
determine how the highest court of the State would decide an
issue.” Commissioner of Internal Revenue v. Estate of Bosch,
387 U.S. 456, 464-465 (1967). In diversity cases, the decisions
of lower state courts “while attributed some weight, are not
controlling where the highest court of the state has not spoken
on the point . . . . If there be no decision by that court then [we]
must apply what [we] find to be the state law after giving
‘proper regard’ to relevant rulings of other courts of the State.
In this respect, we may be said to be, in effect, sitting as a state
court.” Id. at 465 (citations omitted).

                                 17
confirms the overriding weight our courts ascribe to a child’s
New Jersey domicile and residency in the choice-of-law
analysis.” Id. (emphasis added). As the full quote, as opposed
to the excised version cited by Warriner, makes clear, the
appellate court in Black was considering choice of law in the
context of family law, more specifically in the context of child-
support payments, an area in which it is apparent, indeed
patently obvious, that the interests of a minor are of paramount
concern. This case is therefore of little value to the analysis in
the present case. In the specific context of a torts choice of law
analysis, we find no authority, and appellants have cited none,
suggesting in effect that a state’s interest in compensating its
minors, as opposed to other victims of tortious conduct, should
“unequivocally outweigh” all other policy considerations.6

       6
        Similarly, we do not find persuasive the cases cited by
the dissent in support of the proposition that New Jersey’s
compensation interest is a trump card in the analysis. Unlike the
case before us, these cases reveal no true conflict between New
Jersey’s compensation interest and the policies of the other
states involved. See Pine v. Eli Lilly & Co., 492 A.2d 1079,
1083 (N.J. Super. Ct. App. Div. 1985) (applying NJ law but
stating “[w]e are unable to conclude that New York has any
compelling interest in having its statute of limitations apply here
to defeat recovery by plaintiff”); Dent v. Cunningham, 786 F.2d
173, 176 (3d Cir. 1986) (“Both New Jersey’s and California’s
policies in a tort context consist primarily of compensation and
deterrence. . . . [W]e conclude that application of New Jersey
law would in no way interfere with California’s interests in
deterrence and compensation.”). In cases such as these, where
there are no “competing state interests” to be balanced, we

                                18
Consequently, while we give this factor due consideration and
accord it substantial significance, we still must view it in light
of all the policy concerns implicated by the facts before us. And
as substantial as this particular interest may be, when put on the
scales opposite Delaware’s extraordinarily strong interests in
this case, it fails to outweigh them.
        Finally, appellants rely heavily on our decision in Schum
v. Bailey, supra, arguing it is virtually indistinguishable from the
case before us and should therefore light our way. While Schum
does in fact confirm “New Jersey’s strong interest in protecting
the compensation rights of its domiciliaries” as well as New
Jersey’s interest in deterring tortious conduct on the part of
medical practitioners, Schum, 578 F.2d at 496-97, we agree with
the District Court that it is distinguishable from the case before
us.
        In Schum, a New Jersey resident filed a medical
malpractice claim against her New York physician for tortious
conduct occurring in New York. All of the defendant’s services,
including the surgery at issue, were performed in New York, the
state in which the defendant maintained his major practice.
Applying the governmental interest test, we determined that
New York’s interests in compensating its own domiciliaries and
deterring future misconduct were the same as New Jersey’s, and
that the interests of both states would be adequately served by
application of New Jersey law. Id. at 496 (“Having identified
the relevant policies, and, having examined them in light of this
factual context, it becomes evident that both policies would be


readily concede that New Jersey’s compensation interest may
emerge as “paramount.”

                                19
served by the application in this case of New Jersey’s own
law.”).
        Thus, the key to understanding Schum and how it is
distinguishable from the case before us is that in Schum, there
was no true conflict between the policies of the states of New
York and New Jersey. Id. at 497 (“[S]ince [the] record reveals
no conflict between New York and New Jersey insofar as the
application of their substantive laws is concerned, and since the
record also reveals that New Jersey has a substantial interest in
the application of its own law, we conclude that New Jersey, as
an interested forum, would apply its own law of liability.”)
(emphasis added).7 Schum merely reaffirms that “[i]f a strong
state policy or interest will be neither fostered by applying that
state’s law, nor frustrated by the failure to apply it, it is highly
unlikely that that state has any interest whatsoever in blanketing
that particular issue with its law.” White v. Smith, 398 F. Supp.
130, 134 (D.N.J.1975). See also General Ceramics v. Firemen’s
Fund Ins. Cos., 66 F.3d 647, 656 (3d Cir. 1995) (“A multistate
conflict of laws exists only when contacts are distributed such
that more than one state wants to regulate the case.”) (citations
omitted). By contrast, in this case, as already discussed at


       7
        Contesting our conclusion that Schum is distinguishable
from our own case for this reason, the dissent cites dicta from
the concurrence in Schum, finding there was indeed a conflict
between New York and New Jersey in having their laws applied.
See Schum, 578 F.2d at 501-02 (Gibbons, J., concurring). We
cite the majority opinion and find it more persuasive on this
particular point.


                                20
length, there is a clear and substantial conflict between the
concerns of New Jersey’s and Delaware’s law with respect to
the statute-of-limitations issue. The outcome in this case,
therefore, is not prescribed by Schum, as Warriner has so
persistently argued before the District Court and our own Court.
                        IV. Conclusion
        The District Court did not err in its application of New
Jersey’s governmental interest choice of law rule. Nearly all of
the relevant contacts in this medical malpractice case occurred
in Delaware ! the allegedly tortious conduct, the injury, and a
decade long course of treatment involving numerous trips to a
physician based in Delaware and operating out of Delaware. In
addition, Delaware has a clearly articulated policy interest in
regulating malpractice claims through its statute of limitations.
These factors overwhelmed any interest New Jersey had in this
case by virtue of Warriner’s status as a New Jersey resident and
the defendant’s limited professional connection to the state at
the time of injury. Performing the balancing act required by the
governmental interest test, the District Court did not err in
determining that Delaware’s statute of limitations applied to the
claim in this case. It therefore did not err in concluding the
defendant was entitled to judgment as a matter of law.
       For the reasons stated, we will affirm the judgment of the
District Court.




                               21
BRIGHT, dissenting.
        I respectfully dissent from the majority’s opinion because
New Jersey’s interest in providing a right of action for
compensation to its resident child in this case justifies
application of New Jersey’s statute of limitations. N.J. Stat.
§ 2A:14-2 tolls the applicable statute of limitations for minors
until the minor reaches the age of majority. Del. Code. Ann. tit.
18, § 6856 tolls the statute of limitations for minors until the
minor reaches the age of six years. Robert Warriner is a minor
over the age of six years old, and therefore, the district court’s
application of Delaware’s statute of limitations proved fatal to
his cause of action against Stanton and the hospital parties.
        In this instance, the majority does not assign sufficient
weight to New Jersey’s compensation interest. A review of the
cases in New Jersey and in this circuit shows one consistent
result: New Jersey’s statute of limitations, when longer, is
applied in lawsuits for injuries occurring in another state when
brought in New Jersey by New Jersey residents. For example,
in Warner v. Auberge Gray Rocks Inn, Ltee., 827 F.2d 938, 942
(3d Cir. 1987), this court applied New Jersey’s statute of
limitations when a New Jersey resident sued a Canadian entity
for an injury that occurred in Quebec. Quebec’s one-year statute
of limitations had run prior to the commencement of the suit and
New Jersey’s longer statute of limitations had not. Id. at 940.
When applying New Jersey’s statute of limitations, the court
focused on New Jersey’s significant interest in providing a right
of compensation for its residents. See id. at 941-42. Likewise,
in Schum v. Bailey, 578 F.2d 493 (3d Cir. 1978), this court
applied New Jersey law when a New Jersey plaintiff brought an
action against a New York doctor for malpractice alleged to

                               22
have occurred in New York.8 See id. at 497. Because New
York did not have an applicable discovery rule (relating to when
the statute of limitations begins to run) and New Jersey did,
application of New York’s law, as in the instant case with
Delaware’s law, would have been fatal to plaintiff’s claim. See
id. at 494-95.
        Similarly, in Pine v. Eli Lilly & Co., 492 A.2d 1079 (N.J.
Super. Ct. App. Div. 1985), the plaintiff’s residence constituted
the only contact with New Jersey. Notably, the plaintiff had
established residence in New Jersey after discovering his
potential claim would be time barred in New York. Id. at 1081-
82. The court determined that New Jersey’s interest in
compensating its own domiciliaries was paramount and
outweighed other governmental interests, even though the
“’factual contacts’ prong of the governmental interest test alone
would require the ‘borrowing’ of New York’s limitations
statute[.]” Id. at 1083; see also Dent v. Cunningham, 786 F.2d
173, 176, 177 (3d Cir. 1986) (New Jersey’s longer statute of
limitations applied despite significant California contacts
because of New Jersey’s substantial interest in compensating its
own domicilairies).



       8
        The majority distinguishes this analogous precedent by
explaining, as the district court did, that “in Schum, there was no
true conflict between the policies of the states of New York and
New Jersey.” I disagree. See Schum, 578 F.2d at 501-02
(Gibbons, J., concurring) (finding the existence of a conflict
between New York’s interest in the cost of health care and New
Jersey’s compensation interest).

                                23
        Moreover, the majority exaggerates the impact on
Delaware’s interest in shielding health care providers from stale
claims by focusing on Delaware’s statute of limitations for
medical malpractice claims rather than on the relevant tolling
provisions applicable to the claims of minors. Both Delaware
and New Jersey have expressed a policy of protecting minors by
enacting minor tolling measures. See N.J. Stat. § 2A:14-2
(tolling until minor reaches age of majority, but prior to child’s
thirteenth birthday for medical malpractice claims for injuries
sustained at birth); Del. Code. Ann. tit. 18, § 6856 (tolling until
minor reaches age of six years). Although applying the longer
of the two provisions would impact Delaware’s policy more
than applying the shorter provision would, this presents a
question of degree of impact, not, as the majority describes, a
“direct contravention” of Delaware’s interest.
       In this case, also, Stanton and the hospital parties
maintained sufficient contacts with New Jersey residents to
create an expectation that they might be subject to New Jersey
laws. Notably, Stanton held a license to practice medicine in
New Jersey at the time of the injury. The majority attempts to
minimize these contacts by explaining that Stanton held a
license only for the purpose of collecting payments from the
state of New Jersey for medical treatments for New Jersey
patients. Yet, this reason for Stanton’s contacts does not
diminish them.
        Of particular concern is that the alleged malpractice in
this case happened to a child. Both Delaware and New Jersey,
by tolling their statutes of limitations as applied to minors, have
expressed a policy to permit children an extended opportunity
to recover for their injuries. Here, this policy expressed by both

                                24
states requires a conclusion asserting the primacy of the longer
New Jersey statute of limitations to protect the rights of the
injured child.




                              25
